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Thursday, July 9, 2015

12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: “Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the 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 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 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.” 13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.” (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed: “In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same.” 14. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.  442   OF  2010

State of Madhya Pradesh                                 … Appellant
                                  :Versus:
Anoop Singh                                                  … Respondent



                               J U D G M E N T
Pinaki Chandra Ghose


1.    The present Criminal Appeal has been preferred  against  the  judgment
and order dated 10.07.2008 passed by the High Court  of  Madhya  Pradesh  at
Jabalpur in Criminal Appeal No.924 of  2006,  whereby  the  High  Court  set
aside the judgment of  conviction  and  order  of  sentence  passed  by  the
learned Trial Court and acquitted the accused from all the charges  levelled
against him.



2.    The facts of the present matter  are  that  on  03.01.2003,  at  about
10:30 A.M. the prosecutrix was going to school along  with  her  sister.  On
realizing that she had left behind her practical  note  book,  she  returned
back and after taking the said note book she once again headed  towards  the
school. When she reached near Tar Badi  (wire  fencing)  near  Hawai  Patti,
there was an Ambassador car standing  there  and  as  alleged,  the  accused
respondent came out of the car, pulled the prosecutrix inside  the  car  and
forced her to smell something, as a result of which the  prosecutrix  became
unconscious. As alleged by the prosecution, the  prosecutrix  was  taken  to
some unknown place thereafter.



3.    On regaining consciousness, the prosecutrix felt pain in  her  private
parts.  On the same day, she was admitted in the  District  Hospital,  Satna
in an unconscious condition and information about the incident was given  to
Laxmikant Sharma (P.W.8), the uncle of the prosecutrix.  On 10.01.2003,  the
prosecutrix was discharged from the Hospital  and  sent  back  to  her  home
where she narrated the incident and thereafter an F.I.R was  lodged.  During
the  course  of  investigation,  the  prosecutrix  was  sent   for   medical
examination and her clothes were seized  and  slides  were  prepared.  After
receipt of the medical report, F.I.R was registered  and  site  map  of  the
spot was prepared. The Investigating Officer seized various  articles  which
included the prosecutrix’s birth certificate and certificate of  the  Middle
School Examination, 2001.  Along with that the relevant page (page  No.  20)
of  the  register  of  the  U.S.A  Hotel  was  also   seized.    After   due
investigation a charge-sheet was filed against the respondent  for  offences
under Sections 363, 366 and 376 of the Indian Penal  Code,  1860  (“I.P.C.”)
and the statements of the prosecution witnesses were recorded.



4.    On 27.03.2003, the Judicial Magistrate, First Class  Satna  registered
the Criminal Case No.116/2003 and passed the committal  order.  Accordingly,
the case was transferred and was received by  the  Upper  District  Sessions
Judge-III, Satna for trial.



5.    The IIIrd  Additional  Sessions  Judge,  Satna,  by  his  order  dated
24.04.2006 passed in Special Case No.123/2003, convicted the  accused  under
Sections 363, 366 and 376 of I.P.C. and held that all the  offences  against
the respondent were proved  beyond  reasonable  doubt.  The  respondent  was
awarded 7 years’ rigorous imprisonment and fine of Rs.500/-  for  the  crime
under Section 363 I.P.C.,  10  years’  rigorous  imprisonment  and  fine  of
Rs.1000/- for the crime under Section 366 I.P.C.,  and  10  years’  rigorous
imprisonment and fine of Rs.1000/- for the crime under  Section  376  I.P.C.
with default clauses. All the substantive sentences  were  directed  to  run
concurrently.



6.    Aggrieved by the aforesaid judgment and  order  passed  by  the  IIIrd
Additional Sessions Judge, Satna, the respondent preferred an  appeal  under
Section 374(2) of Cr.P.C.  before  the  High  Court  of  Madhya  Pradesh  at
Jabalpur, which was numbered as Criminal Appeal No.924 of 2006. The  learned
Single Judge of the  High  Court,  by  impugned  judgment  and  order  dated
10.07.2008, set aside the judgment and order of  conviction  passed  by  the
Trial Court against the respondent. The High Court ruled that  the  decision
of the Trial Court was  not  sustainable  solely  on  the  ground  that  the
prosecution had failed to prove the fact that the  girl  was  less  than  16
years of age at the time of the incident. The reasons that  weighed  heavily
with the ruling of the High Court were that, either  the  public  prosecutor
or P.W.7 Pramod Kumar Sharma (father of the prosecutrix) tried to file  Ext.
P/5 which was not part of the charge-sheet. Such type of evidence could  not
be created by any person except the Investigation Officer. It  was  for  the
prosecution to show that a particular document was taken  on  record  during
investigation but could not be filed. The prosecution could not  create  any
new evidence which was not part of the investigation. Ext. P/5 and Ext.  P/6
have variation in the date of  birth  of  the  prosecutrix.  In  certificate
Ext.P/5  the  date  of  birth  was  disclosed  as  29.8.1987,   whereas   in
certificate Ext.P/6 it has been  disclosed  as  27.8.1987.  The  High  Court
found this sufficient to disbelieve that the prosecutrix was below 16  years
of age at the time of the incident. The High Court relied on  the  statement
of PW-11 Dr. A.K. Saraf who took the X-ray of the  prosecutrix  and  on  the
basis of the ossification test, came to the conclusion that the age  of  the
prosecutrix was more than 15 years but less than 18 years. Considering  this
the High Court presumed that the girl was more than 18 years of age  at  the
time of the incident. The last ground taken by the High Court was  that  the
girl was a consenting party and was more than 18 years of age  at  the  time
of the incident and thus, no offence against the accused has been proved.



7.    We have heard the learned counsel appearing for the parties.



8.    Before us, learned counsel for the State of Madhya Pradesh has  raised
the contention that the High Court gave undue importance to  the  difference
of two days in the date of  birth  of  the  prosecutrix  as  per  the  birth
certificate and the certificate of the Middle School Examination  2001,  and
erroneously held that this difference is sufficient to  disbelieve  the  age
of the prosecutrix. Further, the High Court ought to  have  appreciated  the
law laid down by this Court that regarding the  determination  of  age,  the
birth certificate is the determining evidence.



9.    The learned counsel appearing for the respondent, on the  other  hand,
argued that the prosecution story  is  concocted  as  her  evidence  is  not
corroborated by the evidence of P.W.9 Jagdish  Gupta,  the  Manager  of  the
Hotel. Further, the respondent states that the prosecutrix did not give  any
resistance and there were no injury marks, which make it clear that she  was
a consenting party.  In  addition,  the  learned  counsel  argued  that  the
prosecution did not explain as to why  the  Investigating  Officer  did  not
seize the birth certificate during the course of investigation.



10.   We believe that the present case involves  only  one  issue  for  this
Court to be considered, which is regarding the determination of the  age  of
the prosecutrix.



11.   In the present case, the central question is whether  the  prosecutrix
was below 16 years of age at the time of the incident.  The  prosecution  in
support of their  case  adduced  two  certificates,  which  were  the  birth
certificate and the middle school certificate. The  date  of  birth  of  the
prosecutrix has been shown as 29.08.1987  in  the  Birth  Certificate  (Ext.
P/5), while the date of birth is shown as 27.08.1987 in  the  Middle  School
Examination Certificate. There is a difference  of  just  two  days  in  the
dates mentioned in the abovementioned Exhibits. The Trial Court has  rightly
observed that  the  birth  certificate  Ext.  P/5  clearly  shows  that  the
registration regarding the birth was made on 30.10.1987 and keeping in  view
the fact that registration was made within 2 months of the birth,  it  could
not be guessed that the prosecutrix was shown as under-aged in view  of  the
possibility of the incident in  question.  We  are  of  the  view  that  the
discrepancy of two days in the two documents adduced by the  prosecution  is
immaterial and the High Court was wrong  in  presuming  that  the  documents
could not be relied upon in determining the age of the prosecutrix.



12.   This Court in the case  of  Mahadeo  S/o  Kerba  Maske  Vs.  State  of
Maharashtra and Anr., (2013) 14 SCC 637, has held that  Rule  12(3)  of  the
Juvenile  Justice  (Care  and  Protection  of  Children)  Rules,  2007,   is
applicable in determining the age of the victim of rape.  Rule  12(3)  reads
as under:

“Rule 12(3): In every case concerning a child or juvenile in  conflict  with
law, the age determination inquiry shall be conducted by the  court  or  the
Board or, as  the  case  may  be,  the  Committee  by  seeking  evidence  by
obtaining –

(i) the matriculation or equivalent certificates, if available; and  in  the
absence whereof;



(ii) the date of birth certificate  from  the  school  (other  than  a  play
school) first attended; and in the absence whereof;



(iii) the birth certificate given by a corporation or a municipal  authority
or a panchayat;

(b) and only in the absence of either (i),  (ii)  or  (iii)  of  clause  (a)
above, the medical opinion will be sought from a  duly  constituted  Medical
Board, which will declare the 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 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 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.”


13.   This Court further held in paragraph 12 of  Mahadeo  S/o  Kerba  Maske
(supra) as under:

“Under rule 12(3)(b), it is specifically provided that only in  the  absence
of alternative methods  described  under  Rule  12(3)(a)(i)  to  (iii),  the
medical opinion can be sought for. In the light of  such  a  statutory  rule
prevailing for ascertainment of the age of the juvenile  in  our  considered
opinion, the same yardstick can be rightly followed by the  courts  for  the
purpose of the ascertaining the age of a victim as well.”
                                       (Emphasis supplied)
This Court therefore relied on the certificates  issued  by  the  school  in
determining the  age  of  the  prosecutrix.  In  paragraph  13,  this  Court
observed:
“In light  of  our  above  reasoning,  in  the  case  on  hand,  there  were
certificates issued by the  school  in  which  the  proseuctrix  did  her  V
standard and in the school leaving certificate issued by  the  school  under
Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and  this
document was also proved by PW 11. Apart from that the transfer  certificate
as well as the admission form  maintained  by  the  Primary  School,  Latur,
where the prosecutrix had her initial education, also confirmed the date  of
birth as 20.05.1990. the reliance placed  upon  the  said  evidence  by  the
Courts below to arrive at the age  of  the  prosecutrix  to  hold  that  the
prosecutrix was below 18  years  of  age  at  the  time  of  occurrence  was
perfectly justified and we do not find any grounds  to  interfere  with  the
same.”

14.   In the present case, we have before us  two  documents  which  support
the case of the prosecutrix that she was below 16 years of age at  the  time
the incident took place. These documents can be used  for  ascertaining  the
age of the prosecutrix as per Rule 12(3)(b).  The difference of two days  in
the dates, in our considered view, is immaterial  and  just  on  this  minor
discrepancy, the evidence in the  form  of  Exts.  P/5  and  P/6  cannot  be
discarded. Therefore,  the  Trial  Court  was  correct  in  relying  on  the
documents.



15.   The High Court also relied on the statement of PW-11  Dr.  A.K.  Saraf
who took the X-ray of the prosecutrix and on the basis of  the  ossification
test, came to the conclusion that the age of the prosecutrix was  more  than
15 years but less than 18 years. Considering this the  High  Court  presumed
that the girl was more than 18 years of age at the  time  of  the  incident.
With respect to this finding of the High Court, we are of the  opinion  that
the High Court should have relied firstly on  the  documents  as  stipulated
under Rule 12(3)(b) and only in the  absence,  the  medical  opinion  should
have been sought. We find that the Trial Court  has  also  dealt  with  this
aspect of the ossification test. The Trial Court noted that  the  respondent
had cited Lakhan Lal Vs. State of M.P.,  2004  Cri.L.J.  3962,  wherein  the
High Court of Madhya Pradesh said that where the doctor having examined  the
prosecutrix and found her to be below 18½ years, then keeping  in  mind  the
variation of  two years, the accused should be given the benefit  of  doubt.
Thereafter, the Trial Court rightly  held  that  in  the  present  case  the
ossification test is not the sole criteria for determination of the date  of
birth  of  the  prosecutrix  as  her  certificate  of  birth  and  also  the
certificate of her medical examination had been enclosed.



16.   Thus, keeping in view the medical examination reports, the  statements
of the prosecution witnesses which inspire confidence and  the  certificates
proving the age of the prosecutrix to be below 16 years of age on  the  date
of the incident, we set aside the  impugned  judgment  passed  by  the  High
Court and uphold the judgment and  order  dated  24.04.2006  passed  by  the
IIIrd Additional Sessions Judge, Satna in Special Case No.123/2003.



17.   Accordingly, this appeal is allowed.  We direct  that  the  respondent
shall be taken into custody forthwith to serve out the sentence.



……………………………..J (Pinaki Chandra Ghose)


……………………………..J (Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1C               COURT NO.11               SECTION IIA
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                      Criminal Appeal  No(s). 442/2010

STATE OF M.P.                                     Appellant(s)

                                VERSUS

ANOOP SINGH                                       Respondent(s)


Date : 03/07/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s)       Mr. Mishra Saurabh, AOR


For Respondent(s)      Mr. M.P. Singh, Adv.
                       Mr. Rajeev Kumar Bansal, AOR


      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  Uday
Umesh Lalit.
      The appeal is allowed and the respondent shall be taken  into  custody
forthwith to serve out the  sentence  in  terms  of  the  signed  reportable
judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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