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Friday, August 7, 2015

Sections 363, 366A/376/34 of the Indian Penal Code, 1860 (IPC) in order to escape the charge and in justification of their carnal desire and perverted acts, pleaded consentThe opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.”= there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” =The learned trial Judge has sentenced the appellants to suffer rigorous imprisonment for a term of 10 years each for the offence under section 376 (g) of IPC apart from other offences. Sentence in respect of the offence of rape has to be in consonance with the law. The concept of special reasons as engrafted in IPC prior to the amendment brought in force by Act 13 of 2013 with effect from 3.02.2013 is not to be invoked for the asking. We need not enumerate anything in that regard, for there is no justification or warrant for thinking of reduction of sentence in this case. The appellants, to say the least, had taken advantage of their social relationship with the prosecutrix. She had innocently trusted the first appellant and, in fact, there was no reason to harbour any kind of doubt. The devilish design of the appellant No. 1 and the crafty manipulation of the appellant No. 2 is manifest. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon juris” of our Constitution. The said rights are constitutionally secured. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution. 12. Consequently, the appeal being, sans stratum, stands dismissed.

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 983 OF 2015


Parhlad and Anr.                             ... Appellant
                                   Versus
State of Haryana                                     ... Respondent


                               J U D G M E N T


Dipak Misra, J.
      The present appeal depicts a sordid situation and  sketches  a  morbid
scenario, for the sad story commences with total trust, as  it  has  to  be,
inasmuch as the first appellant, the uncle of  the  prosecutrix,  being  the
cousin of her father, takes her with  him  but  does  not  return  and  thus
betrays the trust, definitely inconceivable, for the young girl, PW  7,  who
had remotely no idea about his dubious design when she  accompanied  him  to
the house  of  the  appellant  No.  2,  the  maternal  uncle  of  the  first
appellant, that she would be sexually assaulted first by the  appellant  No.
1 and thereafter by the appellant No.2 who also succeeded  in   his  threats
to the uncle – and at the end, they, after being sent up for trial  for  the
offences punishable under Sections 363,  366A/376/34  of  the  Indian  Penal
Code, 1860 (IPC) in order to escape  the  charge  and  in  justification  of
their carnal desire and perverted acts, pleaded consent.
2.    As the factual score would uncurtain,  the  case  of  the  prosecution
from the very beginning was that the prosecutrix was below sixteen years  of
age.  The trial court believed the prosecution as regards  the  age  of  the
prosecutrix as a consequence of  which  the  plea  of  the  defence  had  to
collapse like a pack of cards which  entailed  conviction  for  the  charged
offences as per judgment dated March 10, 2003 which led to the  sentence  of
rigorous  imprisonment  of  ten  years  under  Section  376(2)(g)  IPC  with
separate sentence under Section 363 IPC with the stipulation  that  all  the
sentences shall be concurrent.
3.    The judgment of  conviction  and  order  of  sentence  passed  by  the
learned Additional Sessions Judge, Sirsa in Sessions Case  No.  55  of  2002
were assailed before the High Court in Criminal Appeal No. 914 of  2003  and
the learned Single Judge referred to the  evidence  of  Manohar  Lal,  PW-1,
Principal of the Govt. Primary School, Rupana  Khurd,  Dist.  Sirsa,  Bhajan
Lal, PW-9, the father of the  prosecutrix,  Dr.  Santosh  Bishnoi,  who  had
examined the accused and the prosecutrix and took note of  the  ossification
test report, Ext. DA, and upon due appreciation of  ocular  and  documentary
evidence brought on record concurred with the view expressed  by  the  trial
court that the prosecutrix was below 16 years of age.  Be  it  stated   that
the High Court did not think it appropriate  to  rely  on  the  ossification
test report as it found a number of flaws with it and  opined  that  it  was
not worthy of credence.  Additionally, the High Court has  opined  that  the
prosecutrix had no idea about the evil design of accused Parhlad, her  uncle
and  she  had  proceeded  with  him  in  good  faith  and  under  compulsive
circumstances she was raped by the accused  persons  and,  therefore,  there
was really no consent.   On the basis of the said analysis, it affirmed  the
judgment of conviction and order of sentence  passed  by  the  trial  court.
Hence, this appeal by special leave.
4.    We have heard Mr.  Harinder  Mohan  Singh,  learned  counsel  for  the
appellant and Mr. Shekhar Raj Sharma, learned counsel  for  the  respondent-
State.
5.    The core issues that  arise  for  consideration  in  this  appeal  are
whether the finding as regards the age of the prosecutrix is  based  on  the
proper appreciation of evidence on record or  it  is  so  perverse  that  it
deserves to be dislodged in exercise of jurisdiction under  Article  136  of
the Constitution,  and  further  whether  the  opinion  of  the  High  Court
relating to consent withstands scrutiny.   On  a  perusal  of  the  findings
returned by the learned trial Judge as well as by  the  High  Court,  it  is
noticed that the learned trial Judge has relied upon the  testimony  of  the
prosecutrix, her father, and the school leaving certificate, which has  been
brought on record and tendered in evidence;  and  the  High  Court,  on  re-
appreciation of the testimony of the  prosecutrix  and  her  father  coupled
with the testimony of PW-1, the Head Master  of  the  concerned  school  has
found that the version of the prosecution is truthful.  As  is  perceptible,
the prosecutrix has deposed that she was about 14 years of age at  the  time
she went with her uncle and made a prey of the uncontrolled debased  conduct
of the appellants.  The  father  of  the  prosecutrix  has  testified  in  a
categorical manner  about  the  factum  of  age  of  the  prosecutrix.   The
Principal, PW-1, who has proved the school  leaving  certificate  has  stood
embedded in his testimony and not paved the path of  tergiversation  despite
the roving cross-examination. Nothing has been elicited to  create  on  iota
of doubt  in  his  testimony.   On  the  said  premises,  as  we  find,  the
conclusion has been arrived at that the prosecutrix was below  16  years  of
age.
6.     It is requisite to state here that the radiologist who had  conducted
the ossification test had opined that the age of the  prosecutrix  might  be
16-17 years.  The High Court in its analysis  has  recorded  that  the  said
piece of evidence was not beyond reproach inasmuch as it  had  not  depicted
the true situation as the eruption of teeth, number of teeth and many  other
aspects were not observed by the doctor conducting  the  ossification  test.
In this context reference to the decision in Ramdeo Chauhan alias  Raj  Nath
v. State of Assam[1] would be  apposite.   In  this  case,  Sethi,  J  while
considering the evidentiary value of radiological examination  opined that:-

“The statement of the doctor is no more than an opinion, the  court  has  to
base its conclusions upon all  the  facts  and  circumstances  disclosed  on
examining of the physical features of the person whose age is  in  question,
in conjunction with such oral  testimony  as  may  be  available.  An  X-ray
ossification test may provide a surer basis for determining the  age  of  an
individual than the opinion of a medical expert but it can by  no  means  be
so infallible and accurate a test as to indicate the exact date of birth  of
the person concerned. Too much of reliance cannot be placed upon  textbooks,
on medical jurisprudence and toxicology while  determining  the  age  of  an
accused. In this vast country with varied latitudes,  heights,  environment,
vegetation and nutrition, the height and weight cannot  be  expected  to  be
uniform.”

Be it noted, Phukan, J. concurred with the view expressed by Sethi, J.
7.    In this regard, we may, with profit, refer to the decision  in  Vishnu
alias Undrya vs. State of Maharashtra[2] wherein  a  contention  was  raised
that  the  age  of  a  prosecutrix  by  conducting  ossification  test   was
scientifically proved, and that it deserved acceptance.  The court  rejected
the said submission by stating that:-
“We are unable to accept this contention for the  reasons  that  the  expert
medical evidence is not binding on the ocular evidence. The opinion  of  the
Medical Officer is to assist the court as he is not a witness  of  fact  and
the evidence  given  by  the  Medical  Officer  is  really  of  an  advisory
character and not binding on the witness of fact.”

Similar view has  been  expressed  in  Arjun  Singh  v.  State  of  Himachal
Pradesh[3].
8.    Tested on the touchstone of aforesaid legal premises,  we do not  find
any perversity of approach as  regards  the  determination  of  age  of  the
prosecutrix.
9.    The next facet relates to the facet of consent.  It needs  no  special
emphasis to state that once it is held that  the  prosecutrix  is  below  16
years of age consent  is  absolutely  irrelevant  and  totally  meaningless.
However, as has been stated earlier the  High  Court  has  addressed  itself
with regard to the plea of consent advanced by  the  accused  persons.   The
material brought on record clearly reveal that Parhlad, first cousin of  the
father of the prosecutrix in the absence of her parents at  home  had  asked
her to go with him for harvesting wheat crop to  village  Rupana  Ganja  and
accordingly she had accompanied him to the residence of  the  appellant  No.
2, who is the maternal uncle of Parhlad.  The prosecutrix has  deposed  that
she was in a totally helpless situation and despite her resistance  she  was
sexually abused.   The mental and physical condition of a young  girl  under
the dominion of two grown up males who had become slaves of  their  prurient
attitude  can  be  well   imagined.    The   consent,   apart   from   legal
impermissibility, cannot be conceived of.   In  this  context  reference  to
certain authorities would be  appropriate.    In  State  of  H.P.  v.  Mango
Ram[4] a three-Judge Bench while  dealing with the consent has stated thus:-

“13. … Submission of the body under the fear of terror cannot  be  construed
as a consented sexual act. Consent for the purpose of Section  375  requires
voluntary participation not only after the exercise  of  intelligence  based
on the knowledge of the significance and moral quality of the act but  after
having fully exercised the choice between  resistance  and  assent.  Whether
there was consent or not, is to be ascertained only on a  careful  study  of
all relevant circumstances.”

10.   In Uday v. State of Karnataka[5] while reiterating a similar view  the
Court observed:-
“21. … We are  inclined  to  agree  with  this  view  …  that  there  is  no
straitjacket  formula  for  determining  whether  consent   given   by   the
prosecutrix to sexual intercourse is  voluntary,  or  whether  it  is  given
under a misconception of fact. In the  ultimate  analysis,  the  tests  laid
down by the courts provide at best  guidance  to  the  judicial  mind  while
considering a question of  consent,  but  the  Court  must,  in  each  case,
consider the evidence before it and the  surrounding  circumstances,  before
reaching a conclusion, because each case has its own  peculiar  facts  which
may have a bearing on the question whether the  consent  was  voluntary,  or
was given under a misconception of fact. It must  also  weigh  the  evidence
keeping in view the fact that the burden is  on  the  prosecution  to  prove
each and every ingredient of the offence, absence of consent  being  one  of
them.”

Similar view has been echoed in Deelip Singh v. State of  Bihar[6],  Pradeep
Kumar alias Pradeep Kumar Verma v. State of Bihar and  another[7]  and  Dilp
v. State of Madhya Pradesh[8].
Viewed on this prismatic reasoning, the conclusion arrived at  by  the  High
Court on the obtaining factual score cannot be faulted.
11.    Learned counsel for the appellant has submitted  that  the  appellant
are in  custody  for  more  than  8  years.   Needless  to  say,  it  is  an
alternative submission pertaining  to  quantum  of  sentence.   The  learned
trial Judge has sentenced the appellants  to  suffer  rigorous  imprisonment
for a term of 10 years each for the offence under section  376  (g)  of  IPC
apart from other offences.  Sentence in respect of the offence of  rape  has
to be in consonance with  the  law.   The  concept  of  special  reasons  as
engrafted in IPC prior to the amendment brought in force by Act 13  of  2013
with effect from 3.02.2013 is not to be invoked for  the  asking.   We  need
not enumerate anything in that regard, for  there  is  no  justification  or
warrant  for  thinking  of  reduction  of  sentence  in  this   case.    The
appellants,  to  say  the  least,  had  taken  advantage  of  their   social
relationship with the prosecutrix.  She had  innocently  trusted  the  first
appellant and, in fact, there was no reason to harbour any  kind  of  doubt.
The devilish design of the appellant No. 1 and the  crafty  manipulation  of
the appellant No. 2 is manifest.  It  has  to  be  borne  in  mind  that  an
offence of rape is basically an assault on the human  rights  of  a  victim.
It is an attack on her individuality.  It creates an incurable dent  in  her
right and free will  and  personal  sovereignty  over  the  physical  frame.
Everyone in any  civilised  society  has  to  show  respect  for  the  other
individual and no individual has any right to invade on  physical  frame  of
another in any manner.  It is not only an offence but such an act creates  a
scar in the marrows of the mind of the victim.  Anyone  who  indulges  in  a
crime of such nature not only does he violate the  penal  provision  of  the
IPC but also right of equality, right of  individual  identity  and  in  the
ultimate eventuality  an  important  aspect  of  rule  of  law  which  is  a
constitutional commitment.  The Constitution of India, an organic  document,
confers rights.  It does not condescend or confer any  allowance  or  grant.
It  recognises  rights  and  the  rights  are  strongly  entrenched  in  the
constitutional framework, its  ethos  and  philosophy,  subject  to  certain
limitation. Dignity of every citizen flows from the fundamental precepts  of
the equality clause engrafted under Articles 14  and  right  to  life  under
Article 21 of the  Constitution,  for  they  are  the  “fon  juris”  of  our
Constitution.  The said rights  are  constitutionally  secured.   Therefore,
regard being had to the  gravity  of  the  offence,  reduction  of  sentence
indicating any imaginary special reason would be an  anathema  to  the  very
concept of rule of law.  The perpetrators of the  crime  must  realize  that
when they indulge in such an offence, the really create a concavity  in  the
dignity and bodily integrity of an individual which is  recognized,  assured
and affirmed by the very essence of Article 21 of the Constitution.
12.   Consequently, the appeal being, sans stratum, stands dismissed.


                                  ........................................J.
                                 [DIPAK MISRA]



                                  ........................................J.
                                            [PRAFULLA C. PANT]

NEW DELHI
AUGUST 03, 2015.

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[1]
       (2001) 5 SCC 714
[2]    (2006) 1 SCC 283
[3]    (2009) 4 SCC 18
[4]    (2000) 7 SCC 224
[5]    (2003) 4 SCC 46
[6]    (2005) 1 SCC 88
[7]    (2007) 7 SCC 413
[8]    (2013) 14 SCC 331

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