DARGA RAM @ GUNGAversusSTATE OF RAJASTHAN

                        (2015] 1 S.C.R. 350


A                    DARGA RAM @ GUNGA
                                  v.
                      STATE OF RAJASTHAN
                 (Criminal Appeal No. 513 of 2008)

                         JANUARY 8, 2015
B
            [T.S. THAKUR AND R. BANUMATHI, JJ.]

         Penal Code, 1860 - ss. 302 and 376 - Murder and rape
    of minor girl aged 7 years - Conviction by courts below- Held:
c   The circumstances of the case form a complete chain and
    lead to an irresistible conclusion that the accused was
    responsible for rape and murder - Conviction affirmed.

         Juvenile Justice (Care and Protection of Children) Act,
0   2000 - s. 12(3)(b) - Conviction for rape and murder - In
    appeal to Supreme Court, plea of Juvenility - Constitution of
    Medical Board - The Board determined his age in the range
    of 30 to 36 years and took 33 years as his average age - In
     view of the opinion of the Medical Board, the accused was a
E   juvenile as on the date of occurrence - Sentence of life
    imprisonment set aside.

        Partly allowing the appeal, the Court

         HELD: 1. The prosecution has clearly established
F   that a "Jaagran" was arranged by the complainant on the
    offside of village near the well in which nearly 50 people
    participated including the deceased child.The deceased
    had gone out to sleep after dinner around mid night.
    The appellant was also participating in the "Jaagran" and
G   was seen sitting along with some of the prosecution
    witnesses. Deceased was found missing in the morning
    but upon search her dead body was noticed at some
    distance in the village in a naked condition with injuries
    on her private parts and her head smashed with a stone
H                                350
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 351


  lying nearby. The appellant made a disclosure statement A
  leading to the recovery of his blood stained clothes. The
  blood was found to be of human origin and belonging to
 group 'A" which also was the blood group of the
  deceased. The appellant on medical examination was
  found to have several injuries on his body including B
  injury on his penis. The injuries found on the person of
. the appellant were said to be 3 to 5 days old. The appellant
  did not offer any explanation for the injuries on his body.
  These circumstances form a complete chain and lead to
  an irresistible conclusion that the appellant was c
  responsible for the offence of rape and murder of the
  deceased. The conviction of the appellant for offences
  under Section 302 and 376 of IPC is affirmed. [para 10-
  11 and 17] [357-A-H; 358-A; 362-G]

     2. The appellant's age as per the Medical Board, has D
been placed in the range of 30 to 36 years. The Board
appears to have taken the average of two extremitees
and concluded that the appellant's age on the date of the
examination was about 33 years. The general rule about
age determination is that the age as determined can vary E
plus minus two years but the Board has in the present
case spread over a period of six years and taken a mean
to fix the age of the appellant at 33 years. However, in
view of the fact that the age was determined by a Medical
Board      comprising       Professors    of    Anatomy, F
Radiodiagnosis and Forensic Medicine, the court is
going by the age estimate given by the Medical Board
and declares the appellant to be a juvenile as on the date
of the occurrence. Even if the age of the appellant was
determined by the upper extremity limit i.e. 36 years the G
same would have been subject to variation of plus minus
2 years meaning thereby that he could as weli be 34 years
on the date of the examination. Taking his age as 34 years
on the date of the examination, he would have been 18
years, 2 months and 7 days on the date of the occurrence, H
    352       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   but such an estimate would be only an estimate and the
    appellant may be entitled to additional benefit of one year
    in terms of lowering his age by one year in terms of Rule
    12 (3)(b) which would then bring him to be 17 years and
    2 months old, therefore, a juvenile. The sentence awarded
B   to the accused shall stand set aside. [paras 13, 15, 16 and
    17) [360-A-D; 362-A-D; 361-D-E)

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 513 of 2008.

C       From the Judgment & Order dated 20.08.2007of the High
    Court of Judicature for Rajasthan Bench at Jodhpur in D.B.
    Criminal Jail Appeal No. 604 of 2004.

          Vijay Panjwani (A.C.) for the Appellant.
D         Milind Kumar for the Respondent.

          The Judgment of the Court was delivered by

         T.S. THAKUR, J. 1. The appellant was tried and
E   convicted for offences punishable under Sections 376 and 302
    IPC. For the offence of rape punishable under Section 376, he
    was sentenced to undergo imprisonment for a period of 10
    years besides a fine of Rs.1000/- and default sentence of one
    month with rigorous imprisonment. Similarly, for the offence of
F   murder punishable under Section 302 IPC, he was sentenced
    to undergo life imprisonment besides a fine of Rs.3,000/- and
    default sentence of three months' rigorous imprisonment. Both
    the sentences were directed to run concurrently. Criminal
    Appeal No.604 of 2004 filed by him was heard and dismissed
    by a Division Bench of the High Court of Judicature for
G   Rajasthan at Jodhpur. The present appeal assails the impugned
    judgment and order.

         2. A first Information Report was registered at Police
    Station Rani in the State of Rajasthan on 11th April, 1998, inter
H   a/ia, stating that the complainant on 9th April, 1998 had
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 353
            [T.S. THAKUR, J.]

organised a "Jaagran~ (night long prayer meet) near a well A
belonging to one Magga Ram. The complainant and other
relatives, in all around 50 persons assembled for the "Jaagran"
that continued till late night. This included his seven year old
daughter-Kamala who went to sleep along with other children
close to the place where the "Jaagran" was held. When he B
returned to his house he noticed that Kamala was missing.
Assuming that she may have gone away with one of the
relatives, a search was made at their houses but Kamala
remained untraceable. The search was then extended to
neighbouring areas where the dead body of Kamala was c
discovered by Magga Ram (PW-5) and Pura Ram. On receipt
of this information he and Naina Ram (PW-2) went to the place
and found that baby Kamala had been raped and killed by
crushing her head with a stone. The dead body of Kamala was,
according to the r3port, lying on the spot.                      0
     3. A case under Sections 302 and 376 of the IPC was
registered on the basis of the above information and
investigation started which led to the arrest of the appellant and
eventually a charge sheet against him before the jurisdictional
magistrate who committed the case to Additional Sessions             E
Judge, (Fast Track), Bali.

      4. Before the Sessions Court, the appellant pleaded not
guilty and claimed a trial. At the trial the prosecution produced
19 witnesses apart from placing reliance up0J1 several F
documents. No evidence in defence was, however, led by the
appellant. By its judgment and order dated 27th January, 2004
the trial Court eventually held the appellant guilty and accordingly
convicted and sentenced him as indicated above. Aggrieved
by the judgment and order passed by the trial Court, the G
appellant preferred Criminal Appeal No.604 of 2004 which was,
upon reappraisal of the evidence adduced before the trial Court,
dismissed by the High Court affirming the conviction recorded
against the appellant and the sentence awarded to him for both
the offences.
                                                                     H
    354       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A        5. We have heard learned counsel for the parties at
    considerable length. Prosecution case is based entirely on
    circumstantial evidence as no ocular account of the incident has
    been presented to the Court. Both the Courts below have,
    however, found the circumstantial t,evidence adduced by the
8   prosecution to be sufficient to record a finding of guilt against
    the appellant for the offences with which he was charged. We
    may briefly refer to the circumstance as also the evidence
    supporting the same.

         6. Th.e first and foremost is the deposition of Ota Ram
C   (PW-4) which clearly establishes that the appellant was also
    one of those who had participated in the "Jaagran" along with
    other villagers. To the same effect is the statement of Maga
    Ram (PW-5) who too had testified that the appellant was
    present in the "Jaagran". He had seen Kamala at around 10.00
0   in the night. The deposition of both these witnesses proves that
    apart from the appellant and several others, baby Kamala the
    deceased was also present at the "Jaagran" with other children
    and had gone off to sleep after taking dinner. That version is
    supported even by Naina (PW-1), who states that the appellant
E   was also present in the "Jaagran" around mid night when the
    tea was served to those present including the appellant. The
    witness has further deposed that his son and daughter Kamala
    were sleeping around the place but Kamala was found missing
    in the morning. There is, in our opinion, no reason to disbelieve
F   the version of these witnesses when they say that the "Jaagran"
    was held by the complainant in which Kamala his daughter was
    present and gone off to sleep nor is there any reason to
    disbelieve the story that even the appellant was present at the
    "Jaagran" and had tea with other witnesses around mid night.
G        7. That Kamala died a homicidal death was not seriously
    disputed either before the Courts below or before us and rightly
    so because the statement of doctor Omprakash Kuldeep (PW-
    18) who conducted the post-mortem and authored the report
    marked as Ex. P-34 has clearly opined that Kamala died a
H   homicidal death on account of injury on her head. In the
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 355
            [T.S. THAKUR, J.]
deposition, the doctor certified injuries even on her private parts. A
The post-mortem report certifies the following injuries on the
person of the cteceased:
      "1.   Face crushed.
      2.    Upper lip wad cut. Bleeding was from right ear,
                                                                     8
            dried seminal stains on right and left thigh.
      3.    Nose bone was depressed and fractured.
      4.    Fracture was on left orbital margin.
      5.    Fracture was in left temporal bone.
                                                                     c
      6.    Fracture was in maxilla bone of left side.
      7.    Fracture in parietal bone and occipital bone of right
            side which was upto the base of skull.
      8.    Incise teeth of lower and upper Uaw) were broken.        0
      9.    Achaimoisis was present in Genital organs labia.
      10.   Crushing wound was on forechet and perineum.
      11.   Hymn was congested."
     8. Rajendra Singh (PW-9), who investigated the case and E
who is a witness to the scene of occurrence, seized blood
stained clothes of the deceased including two hair recovered
from the private parts of the deceased. He is also witness to
the seizure of blood stained clothes of the appellant on the basis
of a disclosure statement made by him. Equally important is the F
circumstance that the FSL report found the trouser and the shirt
of the appellant to be stained with human blood belonging to
group 'A' which happened to be the blood group of the
deceased also. The stone used for crushing the head of the
deceased was also found to be smeared with human blood of
group 'A'.                                                         G
      9. What supports the prosecution case in a great measure
is also the fact that the appellant had suffered multiple injuries
on his private part& The medical examination report dated 13th
April, 1998 marked as Ex. P-38 has noticed the following
injuries on the person of the appellant:                             H
    356         SUPREME COURT REPORTS                   [2015] 1 S.C.R.


A    "(i)      Abrasion         1x0.5 cm. Size      Dorsal Aspect of (Rt)
                                                    Elbow joint.
     (ii)      Abrasion         3x2 cm. Size        Medical Aspect of
                                                    (Lt) Elbow joint.
     (iii)     Multiple         Varying in Size     Dorsal Aspect of (Lt)
B              Abrasion                             Elbow joint.
     (iv)      Abrasion         7.5x1 cm. Size      Ant. aspect of (Rt.)
                                                    leg Just below (Rt.)
                                                    knee joint
c    (v)       Abrasion         1.5x1 cm.           Ant. aspect of (Lt.)
                                                    knee joint
     (vi)      Abrasion         1x0.5 cm.           Medial side of Ant.
                                                    Aspect (Lt.) knee
                                                    joint
D
     (vii)     Abrasion         1x1 cm.             Lt. side of Ant.
                                                    Aspect of (Lt.) knee
                                                    joint
     (viii)    Abrasion         1x0.5 cm.           Dorsal Aspect of
                                                    Retracted Prepuce.
E
     (ix)      Abrasion         2x0.25 cm.          Lat. Aspect of (Rt.)
                                                    side of Retracted
                                                    prepuce.
     (x)       Abrasion         0.25x0.25 cm.       Dorsal Aspect of
F                                                   glans penis
     (xi)      Abrasion         2x0.25 cm.          Lat. Aspect of {Rt.0
                                                    Thigh
     (xii)     Abrasion         2x0.25 cm.          (Rt.) gluteal Region
G    (xiii)    Abrasion         2x1 cm.             (Lt.) Palm
            Duration of all injuries i.e. S.No. i to xiii is 3-5 days. "
          10. No explanation was, however, offered by the appellant
    for the injuries sustained by him one of which. was found even
H
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 357
            [T.S. THAKUR, J.]
at his penis. To summarise, the prosecution has clearly             A
established:

    (1) That a "Jaagran" was arranged by the complainant on
    the offside of village near the well in which nearly 50
    people participated including Kamala the deceased child.
                                                                    B
    (2) The deceased-Kamala had gone out to sleep after
    dinner around mid night.

    (3) The appellant was also participating in the "Jaagran"
    and was seen sitting along with some of the prosecution         c
    witnesses.

    (4) Kamala-deceased was found missing in the morning
    but upon search her dead body was noticed at some
    distance in the village in a naked condition with injuries on
    her private parts and her head smashed with a stone lying       D
    nearby.

    (5) The appellant made a disclosure statement leading to
    the recovery of his blood stained clothes.
                                                                    E
    (6) The blood was found to be of human origin and
    belonging to group 'A" which also was the blood group of
    the deceased-Kamala.

    (7) The appellant on medical examination was found to
    have several injuries on his body including injury on his       F
    penis.

    (8) The injuries found on the person of the appellant were
    said to be 3 to 5 days old.
                                                                    G
    (9) The appellant did not offer any explanation for the
    injuries on his body.

    11. The above circumstances, in our opinion, form a
complete chain and lead to an irresistible conclusion that the
appellant was responsible for the offence of rape and murder        H
    358        SUPREME COURT REPORTS               [2015) 1 S.C.R.


A of the hapless baby-Kamala who appears to have been picked
  up from th.e place where she was sleeping with other children
  and taken at a distance only to be raped and eventually killed.
  The trial Court, in the light of the evidence on record and careful
  analysis undertaken by it, correctly came to the conclusion that
B the appellant was guilty of murder of the deceased. There is
  no reason whatsoever for us to interfere with that finding.

          12. What remains to be addressed now is an application
    filed by the appellant in this Court seeking to raise a plea that
    the appellant was a juvenile on the date of the commission of
C   offence hence entitled to the benefit of Juvenile Justice (Care
    and Protection of Children) Act, 2000. Since the appellant did
    not have any documentary evidence like a school or other
    certificate referred to under the Act mentioned above, this Court
    had directed the Principal, Government Medical College,
D   Jodhpur, to constitute a Board of Doctors for medical
    examination including radiological examination of the appellant
    to determine the age of the appellant as in April, 1998 when
    the offence in question was committed. The Superintendant of
    the Central Jail was directed to ensure production of the
E   appellant for the purpose of determination of his age before the
    Medical Board for carrying out the tests and examination. In
    compliance with the said direction, the Principal constituted a
    Medical Board for determining the age of the appellant and
    submitted a report dated 4th February, 2014. The report records
F   the following findings and conclusions:

       "Age estimation of Darga ram @ Gunga s/o Heera on the
  basis of findings of X Ray of Elbow, Wrist, Pelvis, Sternum,
  Medial end of Clavicle, Skull and left shoulder joint (film
G no.10252 dated 04-02-2014, Eight Film and CT Scan of Skull
  and Mandible (film 56013, four films) dated 04-02-2014, is as
  below:-

          1.    All Epiphysis around elbow joint, lower end of
                Radius & Ulna, llias Crest ~ lschial tuberosity & for
H               medial end of Clavicle have appeared 7 fused, it
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 359
            [T.S. THAKUR, J.]
            suggests that his age is above 22 years.              A

            2. All the body pieces of sternum have fused with
            each other but not fused with Xiphoid process &
            manubrium sternum, it suggests his age is above
            25 years but below 40 years.
                                                                  B
            3. Posterior 1/3 of sagital suture have fused, it
            suggests his age is above 30 years & below 40
            years.

            4. Ventral 7 Dorsal margins of pubic symphysis are    c
            completely defined 7 there are no granular
            appearance on it, it suggests his age is below 36
            years.

Opinion:-
                                                                  D
     Concluding all the above radiological findings, dental &
Clinical appearance, the age of Darga Ram @ Gunga S/o
Heera is in between 30 years to 36 years and the average age
of Darga Ram @ Gunga S/o Heera is about 33 years on the
date of examination.                                              E

    Enclosure:- X Ray (8 plates) & CT Scan 4 Plates) as
above.

 Sd/-                        Sd/-                Sd/-
                                                                  F
 (Dr. L. Raichandani)      (Dr. AL.Chauhan)    (Dr. P.C. Vyas)

 Professor, Anatomy        PHOD,               PHOD,
                           Radiodiagnosis      forensic
                                               Medicine
                                                                  G
 Dr. S.N. Medical College Dr. S.N. Medical     Dr. S.N. Medical
                          College              College

 Jodhpur                   Jodhpur             Jodhpur''

                                                                  H
    360         SUPREME COURT REPORTS              [2015] 1 S.C.R.


A       13. It is evident from the opinion tendered by the Board
  that the appellant's age has been placed in the range of 30 to
  36 years. The Board appears to have taken the average of two
  extr~r:nitees and concluded that the appellant's age on the date
  of the examination was about 33 years. It was on the basis of
B this estimate that Mr. Panjwani contended that the appellant
  should have been around 14 years, 2 months and 7 days old if
  his age was 30 years on the date of medical examination. He
  should have been 17 years, 2 months and 7 days old on the
  date of the occurrence if his age is taken as 33 years and 20
c years,~ months and 7 days if his age is taken as 36 years on
  the date of the medical examination. It was argued that even if
  one were to accept the average of the two estimates in the
  range of 30-36 years, mentioned by the Medical Board, he was
  a juvenile on the date of the occurrence being only 17 years, 2
  months hence entitled to the benefit of the provisions of the
0
  Juvenile Justice (Care and Protection of Children) Act, 2000.

       14. The appellant is reported to be a deaf and dumb. He
  was never admitted to any school. There is, therefore, no
  officially maintained record regarding his date of birth.
E Determination of his age on the date of the commission of the
  offence is, therefore, possible only by reference to the medical
  opinion obtained from the duly constituted Medical Board in
  terms of Rule 12(3) (b) of the Juve11ile Justice (Care and
  Protection of Children) Rules, 2007. Rule 12(3)(b) reads as
  under:

          "12. Procedure to be followed in determination of
          Age.?

          (1) xxxxxxxxxxxxxxx
G
          (2) xxxxxxxxxxxxxxx

          (3)
          (b) and only in the absence of either (i}, (ii) or (iii) of
H         clause (a) above, the medical opinion will be sought from
DARGA RAM @ GUNGA v. STATE OF RAJASTHAN 361
            [TS. THAKUR, J.]
     a duly constituted Medical Board, which will declare the        A
     age of the juvenile or child. In case exact assessment of
     the age cannot be done, the Court or the Board or, as
     the case may be, the Committee, for the reasons to be
     recorded by them, may, if considered necessary, give
     benefit to the child or juvenile by considering his/her age     B
     on lower side within the margin of one year.
     and, while passing orders in such case shall, after taking
     into consideration such evidence as may be available,
     or the medical opinion, as the case may be, record a
     finding in respect of his age and either of the evidence        C
     specified in any of the clauses (a)(i), (ii), (iii) or in the
     absence whereof, clause (b) shall be the conclusive proof
     of the age as regards such child or the juvenile in conflict
     with law"
     15. The medical opinion given by the duly constituted           D
Board comprising Professors of Anatomy, Radiodiagnosis and
Forensic Medicine has determined his age to be "about" 33
years on the date of the examination. The Board has not been
able to give the exact age of the appellant on medical
examination no matter advances made in that field. That being        E
so in terms of Rule 12 (3) (b) the appellant may even be entitled
to benefit of fixing his age on the lower side within a margin of
one year in case the Court considers it necessary to do so in
the facts and circumstances of the case. The need for any such
statutory concession may not however arise because even if           F
the estimated age as determined by the Medical Board is taken
as the correct/true age of the appellant he was just about 17
years and 2 months old on the date of the occurrence and thus
a juvenile within the meaning of that expression as used in the
Act aforementioned. Having said that we cannot help observing        G
that we have not felt very comfortable with the Medical Board
estimating the age of the appellant in a range of 30 to 36 years
as on the date of the medical examination. The general rule
about age determination is that the age as determined can vary
plus minus two years but the Board has in the case at hand
                                                                     H
    362        SUPREME COURT REPORTS               [2015] 1 S.C.R.


A spread over a period of six years and taken a mean to fix the
  age of the appellant at 33 years. We are not sure whether that
  is the correct way of estimating the age of the appellant. What
  reassures us about the estimate of age is the fact that the same
  is determined by a Medical Board comprising Professors of
B Anatomy, Radiodiagnosis and Forensic Medicine whose
  opinion must get the respect it deserves. That apart even if the
  age of the appellant was determined by the upper extremity limit
  i.e. 36 years the same would have been subject to variation of
  plus minus 2 years meaning thereby that he could as well be
c 34 years on the date of the examination. Taking his age as 34
  years on the date of the examination he would have been 18
  years, 2 months and 7 days on the date of the occurrence but
  such an estimate would be only an estimate and the appellant
  may be entitled to additional benefit of one year in terms of
  lowering his age by one year in terms of Rule 12 (3)(b) (supra)
0
  which would then bring him to be 17 years and 2 months old,
  therefore, a juvenile.
         16. In the totality of the circumstances, we have persuaded
  ourselves to go by the age estimate given by the Medical Board
E and to declare the appellant to be a juvenile as on the date of
  the occurrence no matter the offence committed by him is
  heinous and but for the protection available to him under the
  Act the appellant may have deserved the severest punishment
  permissible under law. The fact that the appellant has been in
F jail for nearly 14 years is the only cold comfort for us to let out
  of jail one who has been found guilty of rape and murder of an
  innocent young child.
        17. In the result, this appeal succeeds but only in part and
  to the extent that while the conviction of the appellant for
  offences under Section 302 and 376 of IPC is affirmed the
G sentence awarded to him shall stand set aside with a direction
  that the appellant shall be set free from prison unless required
  in connection with any other case.
    Kalpana K.Tripathy                            Appeal partly allowed.