AURANGABAD: The Aurangabad jail authorities on Friday initiated the process for shifting a juvenile in conflict with law, tried as an adult and sentenced for rape, to the Government Special Home at Yerawada in Pune following a recent ruling by the Aurangabad bench of the Bombay high court (HC) that the convict should be sent to jail only after he turns 21 years of age on May 27.
“We have requested the Aurangabad city police today to provide us an escort party for shifting the convict to the special home at Yerawada on Saturday,” Jayant Naik, Superintendent of Police, Aurangabad Central Jail, told TOI on Friday.
A special court in Jalna on March 4 last year had sentenced the accused, who was 17 at the time of commission of the offence on August 11, 2017, to 10 years’ rigorous imprisonment for raping a four-year-old girl residing in his neighbourhood at Ashti in Partur taluka of Jalna district. He was in a remand home ever since his arrest and was shifted to the Aurangabad jail following his conviction.
In an appeal proceeding, Justice Vibha Kankanwadi of the HC observed that the special court did not consider Section 19 of the Juvenile Justice Act of 2015 which provides that a child in conflict with law has to be sent to a place of safety till he attains the age of 21 years and, thereafter, be transferred to a jail. The convict in the instant case turned major during the course of trial. He will turn 21 on May 27, 2021 following which he shall be shifted to jail, the HC ruled.
The bench took exception to the special court simultaneously sentencing the convict under Section 376 (2) (i) read with Section 511 of the Indian Penal Code (for rape) and under Sec 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (Pocso) Act. “The learned Special Judge had totally ignored Section 42 of Pocso Act. He could not have imposed punishment to the child-in-conflict with law under both (IPC and POCSO) provisions,” the bench said.
Justice Kankanwadi observed, “It will not be out of place to mention here that the said court was not only the Special Court under the POCSO Act, but also was the Children’s Court under Juvenile Justice Act, 2015 and, therefore, proper consideration ought to have given to all the Acts involved in the case and ultimate operative order ought to have been given. Since the learned Special Judge has failed to do that, being the first Appellate Court, it is required to be done by this court.”
The bench cited absence of evidence to establish aggravated penetrative sexual assault and set aside the 10-year sentence under POCSO Act. Instead, the HC convicted the accused under Section 9(m) of the POCSO Act for aggravated sexual assault but said no separate sentence was needed in view of the conviction under the IPC Act.
The HC modified the 10-year sentence under the IPC Act to that of five years rigorous jail in view of Section 511 which says bid to commit offence shall attract half of the maximum sentence for such offence. “The child-in-conflict with law is entitled to set off under Section 428 of the Criminal Procedure Code (for the period served so far in custody),” the bench said.
‘Can’t allow challenge to JJB conclusion at appellate stage’
Initially, the Ashti police in Partur had filed a chargesheet relating to the case before the Juvenile Justice Board (JJB). After a principal magistrate’s order on March 17, 2018, the juvenile was referred to psychology test and counseling. Considering the psychiatry, special incident and counselor’s reports, the JJB concluded that the case be transferred to Children’s Special Court for trial. The court framed the charge on April 4, 2019 and the Special Court pronounced its verdict on March 3 last year. During the appeal hearing, the counsel for the juvenile sought to challenge the JJB’s conclusion but the HC held that “this cannot be allowed” at the appellate stage as the JJB’s conclusion was not challenged during the trial.