JUDGEMENT
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(1.)The Judgment and order dated 19.08.2010
passed by the High Court of Rajasthan at Jodhpur in
SBCRR No.597 of 2009 is under challenge in this appeal at
the instance of the appellant Om Prakash who is a hapless
father of an innocent girl of 13 years who was subjected
to rape by the alleged accused-Respondent No.2 Vijay
Kumar @ Bhanwroo who has been allowed to avail the
benefit of protection under Juvenile Justice (Care and
Protection of Children) Act 2000, although the courts below
could not record a finding that he, in fact, was a
juvenile since he had not attained the age of 18 years on the
date of incident. Hence this Special Leave Petition in which
leave has been granted after condoning the delay.
(2.)Thus the questions inter alia which require
consideration in this appeal are:-
(i) whether the respondent/accused herein
who is alleged to have committed an offence of
rape under Section 376 IPC and other allied
sections along with a co-accused who already
stands convicted for the offence under Section 376
IPC, can be allowed to avail the benefit of protection
to a juvenile in order to refer him for trial to a
juvenile court under the Juvenile Justice (Care and
Protection of Children) Act, 2000 (shortly referred to
as the Juvenile Justice Act ) although the trial court
and the High Court could not record a conclusive
finding of fact that the respondent-accused was
below the age of 18 years on the date of the
incident
(ii) whether the principle and benefit of
benevolent legislation relating to Juvenile Justice
Act could be applied in cases where two views
regarding determination of the age of child/accused
was possible and the so-called child could not be
held to be a juvenile on the basis of evidence
adduced
(iii) whether medical evidence and other
attending circumstances would be of any value and
assistance while determining the age of a juvenile, if
the academic record certificates do not conclusively
prove the age of the accused
(iv) whether reliance should be placed on
medical evidence if the certificates relating to
academic records is deliberately with held in order
to conceal the age of the accused and authenticity of
the medical evidence regarding the age is under
challenge
(3.)Juvenile Justice Act was enacted with a laudable
object of providing a separate forum or a special court for
holding trial of children/juvenile by the juvenile court as it
was felt that children become delinquent by force of
circumstance and not by choice and hence they need to be
treated with care and sensitivity while dealing and trying
cases involving criminal offence. But when an accused is
alleged to have committed a heinous offence like rape and
murder or any other grave offence when he ceased to be a
child on attaining the age of 18 years, but seeks protection
of the Juvenile Justice Act under the ostensible plea of
being a minor, should such an accused be allowed to be
tried by a juvenile court or should he be referred to a
competent court of criminal jurisdiction where the trial of
other adult persons are held.
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