In case where victim was raped repeatedly on multiple occasions by juvenile accused, P&H HC reiterates that relevant date for determining claim of juvenility would be date when last incident of rape occured

Read Order: Victim “Y” (name withheld) v. State of Punjab and Another

Monika Rahar

Chandigarh, March 1, 2022: While dealing with a revision petition against the Trial Court’s order directing the accused to be tried as a juvenile in a rape matter, the Punjab and Haryana High Court has reiterated that when the offence of rape is committed on more occasions than one, then in such a scenario the date on which the last incidence of rape took place, has to be considered for determining the claim of juvenility of the accused. 

The Bench of Justice Manjari Nehru Kaul made the above-mentioned observations in light of the law laid down by the Supreme Court in Sri Ganesh Vs. State of Tamil Nadu and another: 2017(1) RCR (Criminal) 556 wherein it was held that if the offence of rape was alleged to have been committed on multiple occasions, then the relevant date for determination of juvenility of the accused would be the date when last of such incidents of rape had occurred. 

In an FIR registered under Section 376 IPC (Section 4 and 5 of the POCSO Act added later on) for the rape of the petitioner/victim, the Judge, Children Court (Sessions Judge), Mansa declared the second respondent a child in conflict with the law and ordered him to be tried by the Juvenile Justice Board in view of the fact that on the date when the petitioner/victim was first raped in the year 2016, he was a minor. 

Hence, the petitioner/victim impugned the above-stated order of the Trial Court before the High Court. 

The petitioner’s counsel contended that the impugned order was passed by the Court below without appreciating the fact that the second respondent continuously raped the victim, a minor, on several occasions on the pretext of marriage. He further submitted that undoubtedly when the first occurrence took place, the second respondent was indeed a minor, however, the Court below failed to appreciate that it was a continuing offence and the last incident of rape was committed upon the victim in 2019 when the second respondent admittedly attained the age of majority. 

The counsel thus submitted that in the circumstances and as per various pronouncements of the Supreme Court, the age of the second respondent on the date when the last incident of rape was committed, was to be considered for determining as to whether he had to be tried as a juvenile or as an adult. Therefore, it was urged that the second respondent being 20 years of age on the date when the last incident of rape was committed, be tried as an adult. 

The counsel for the second respondent argued that the perusal of the contents of the FIR and the sequence of events as reflected therein clearly hinted towards a consensual relationship between the parties. He further submitted that the Court below had rightly observed while passing the impugned order that since it was a continuing offence and admittedly when the first incident of rape had taken place, the second respondent was a juvenile and hence entitled for being declared and tried as a child in conflict with the law.

After considering the rival submissions, the Court noted at the outset that a perusal of the allegations levelled in the FIR in question revealed that the second respondent allegedly committed rape upon the victim/petitioner for the first time in the year 2016 when the second respondent was a minor. However, the Court observed that thereafter he continued to rape the petitioner/victim on several occasions even after he had attained the age of majority, the last alleged incident of rape being committed in 2019. 

Admittedly, the Court observed that the date of birth of the second respondent was September 11, 1999, while the last incident of alleged rape took place in October 2019 when the second respondent was 20 years of age. 

Further, regarding the claim of the counsel for the second respondent that the relationship between the parties was consensual, the Court opined that it could not be gone into by the Court while deciding the instant revision as it was preferred only to challenge the order by which the second respondent was declared a juvenile. 

Thus, the petition was allowed and the second respondent was ordered to be tried as a juvenile.