NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 658 OF 2011
STATE OF MADHYA PRADESH APPELLANT
VERSUS
MUNNA @ SHAMBHOO NATH RESPONDENT
JUDGMENT
Pinaki Chandra Ghose, J.
This appeal, by special leave, is directed against the judgment and order
dated 14th August, 2008 passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.776 of 1994, whereby the High Court allowed
the criminal appeal filed by the respondent herein and acquitted him.
The brief facts necessary to dispose of this appeal are that the family of
the prosecutrix (PW5) was the tenant of the father of the accused. As
per the prosecution story, on 5th May, 1991, the
prosecutrix, aged about
13 years, was sleeping in the night with her mother in the corridor of her
house. At about 4:30 am, the respondent-accused entered into the house of
the prosecutrix, took her to the adjoining room at the point of knife,
bolted the door and committed rape on her. After committing the offence the
accused and the prosecutrix remained in that room. Thereafter, the mother
and sister of the prosecutrix came to that room in search of the
prosecutrix and when the door was opened, the accused-respondent fled away.
The prosecutrix lodged the FIR at Garha Police Station after which the
Investigating Officer sent the prosecutrix for medical examination wherein
the report was handed over by Dr. Nisha Sahu. The Investigating Officer
received the date of birth of the prosecutrix. The respondent-accused was
arrested on 6th May, 1991. The Ossification Test of the prosecutrix was
conducted and the report was proved in the present case.
The charge under Section 376 of the Indian Penal Code was framed against
the respondent. The respondent pleaded not guilty and claimed trial. After
examining the witnesses and after hearing the counsel for the parties, the
Trial Court found that the charge was proved beyond reasonable doubt. The
Trial Court found the age of the prosecutrix to be less than 16 years, in
which case the question of consent did not arise and the respondent having
committed rape on a girl of less than 16 years of age, the offence clearly
fell within the parameters of rape under Section 376 of IPC. Consequently,
the respondent was convicted for the charge and was sentenced to seven year
rigorous imprisonment by the Trial Court by its judgment and order dated
30.07.1994.
Being aggrieved by the judgment and order dated 30.07.1994, passed by the
Trial Court, the respondent preferred Criminal Appeal No.776 of 1994 before
the High Court of Madhya Pradesh. The High Court found that the school
certificate was not proved without doubt. The medical evidence relied upon
by the Trial Court was disbelieved by the High Court as the doctor who
conducted the ossification test was not examined. X-ray report containing
the opinion of the doctor was also disbelieved by the High Court as it was
merely technical opinion and the doctor was not produced for examination by
the Trial Court. The pivotal fact for overturning the judgment of the Trial
Court was the deposition made by PW6 i.e. Malti Devi, mother of the
prosecutrix where she stated that in the morning when she saw that the
prosecutrix was not lying with her, she and her elder daughter started
searching the prosecutrix and when they opened the door of the room, they
found that the accused was standing with the prosecutrix behind the bags.
The High Court, therefore, allowed the said appeal, set-aside the
conviction of the respondent and acquitted him of the charge under Section
376 IPC.
The State is thus before us in appeal against the acquittal of the
respondent. The learned counsel appearing for the State has attacked the
judgment of acquittal passed by the High Court, mainly on two grounds.
First is whether the sexual intercourse was consensual; and second, whether
the age of the prosecutrix was below 16 years.
The High Court while setting aside the Trial Court judgment rightly
appraised the evidence on record and held that the sexual intercourse was
consensual. In her statement the prosecutrix (PW5) states that she was
sleeping between her mother and brother and the accused had reached her
after hopping over them and he dragged her into another room on the point
of a knife. However, sneaking in with such ease is highly doubtful. Even if
the accused made it through to the prosecutrix, it seems unnatural that the
prosecutrix was not alarmed by the knife upon being awaken from her sleep.
It is also to be noted that the prosecution never recovered any knife.
Further examination of the statement of PW5 that the accused and the
prosecutrix remained in the room for couple of hours and it was only when
her mother and elder sister came searching for her that the prosecutrix was
found in the room with the accused, hiding behind the bags. The above
narration leads to the inference that the prosecutrix was a consenting
party.
Section 375 (as it stood before the Criminal Law Amendment Act, 2013) of
the Indian Penal Code, 1860 states –
“A man is said to commit ‘rape’ who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:-
… … … … …
Sixthly – With or without her consent, when she is under sixteen years of
age...”
In light of the aforementioned provision, the second issue regarding the
determination of age of the prosecutrix is crucial to establish whether the
respondent is liable for rape or not.
To prove its case, the prosecution produced evidences including school
certificate, opinion of the doctor who conducted medical examination of the
prosecutrix, bone ossification test, but the High Court held that none of
them could bring home the case of the prosecution. The prosecution produced
school certificate of the prosecutrix and examined the Principal of Babu
Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where
the prosecutrix studied in her 9th standard. In his cross-examination, PW1
stated that the age of the prosecutrix was noted at the time of admission
but he had no knowledge about the fact as to what date of birth would have
been mentioned in her letter of declaration. The examination-in-chief of
PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her
opinion, the girl could not have attained the age of 14 years, but further
in her examination-in-chief and cross-examination, she stated that she
could not opine about the present intercourse. Other findings of PW8 are
mere opinions and cannot be relied upon completely to establish the guilt
of the accused.
From the X-ray report of the ossification test, the doctor opined that the
age of the prosecutrix could not be more than 14 years. However, since the
doctor was never examined, the X-ray report is not sufficient to prove the
age of the prosecutrix. The prosecutrix was examined as PW5 but the
prosecution failed to question the prosecutrix on her age, therefore no
fact could be gathered from her regarding the issue of age. PW6 Malti Devi
mother of the prosecutrix was examined where she stated the age of
prosecutrix to be 13 years. However, in her cross-examination, she stated
that her marriage was performed about 20 years ago and after two years of
her marriage the elder daughter (Sunita) was born, and 2-3 years thereafter
the prosecutrix was born. It means that the prosecutrix was aged about 15-
16 years at the time of the incident. But this is not sufficient to come to
any conclusion about the exact age of the prosecutrix. It appears that the
Ossification Test X-ray report is not sufficient to prove the age of the
girl. Further, the mother of the prosecutrix also was not able to give the
exact age of the prosecutrix. No question was also asked to the prosecutrix
by the prosecution about her age. Taking into account all these facts, the
High Court correctly came to the conclusion that the prosecution has
totally failed to prove beyond reasonable doubt that the girl was less than
16 years of age at the time of the incident. Therefore, the High Court
presumed that the girl was more than 16 years of age and was competent to
give her consent.
This Court in the case of Birad Mal Singhvi v. Anand Purohit, (1988) Supp.
SCC 604, has held:
“17. ...the entries regarding dates of birth contained in the scholar’s
register and the secondary school examination have no probative value, as
no person on whose information the dates of birth of the aforesaid
candidates were mentioned in the school record was examined.”
Further it was held by this Court in the case of Sunil v. State of Haryana,
(2010) 1 SCC 742 that –
“26. ………… In a criminal case, the conviction of the appellant cannot be
based on an approximate date which is not supported by any record. It would
be quite unsafe to base conviction on an approximate date.”
In view of the evidence on record and the rationale in the aforementioned
cases, we are of a considered view that the prosecution has totally failed
to prove beyond reasonable doubt that the girl was less than 16 years of
age at the time of the incident. Therefore, it can be held that the girl
was more than 16 years of age and she was competent to give her consent as
held by the High Court. Hence, in the present case, the question of rape
does not arise as consensual intercourse has been proved.
Thus, in the light of the above discussion, we are of the view that the
present appeal is devoid of any merit, and we find no ground to interfere
with the judgment passed by the High Court. The appeal is, accordingly,
dismissed.
…....................................J
(Pinaki Chandra
Ghose)
…...................................J
(R.K.
Agrawal)
New Delhi;
September 18, 2015.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 658 OF 2011
STATE OF MADHYA PRADESH APPELLANT
VERSUS
MUNNA @ SHAMBHOO NATH RESPONDENT
JUDGMENT
Pinaki Chandra Ghose, J.
This appeal, by special leave, is directed against the judgment and order
dated 14th August, 2008 passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.776 of 1994, whereby the High Court allowed
the criminal appeal filed by the respondent herein and acquitted him.
The brief facts necessary to dispose of this appeal are that the family of
the prosecutrix (PW5) was the tenant of the father of the accused. As
per the prosecution story, on 5th May, 1991, the
prosecutrix, aged about
13 years, was sleeping in the night with her mother in the corridor of her
house. At about 4:30 am, the respondent-accused entered into the house of
the prosecutrix, took her to the adjoining room at the point of knife,
bolted the door and committed rape on her. After committing the offence the
accused and the prosecutrix remained in that room. Thereafter, the mother
and sister of the prosecutrix came to that room in search of the
prosecutrix and when the door was opened, the accused-respondent fled away.
The prosecutrix lodged the FIR at Garha Police Station after which the
Investigating Officer sent the prosecutrix for medical examination wherein
the report was handed over by Dr. Nisha Sahu. The Investigating Officer
received the date of birth of the prosecutrix. The respondent-accused was
arrested on 6th May, 1991. The Ossification Test of the prosecutrix was
conducted and the report was proved in the present case.
The charge under Section 376 of the Indian Penal Code was framed against
the respondent. The respondent pleaded not guilty and claimed trial. After
examining the witnesses and after hearing the counsel for the parties, the
Trial Court found that the charge was proved beyond reasonable doubt. The
Trial Court found the age of the prosecutrix to be less than 16 years, in
which case the question of consent did not arise and the respondent having
committed rape on a girl of less than 16 years of age, the offence clearly
fell within the parameters of rape under Section 376 of IPC. Consequently,
the respondent was convicted for the charge and was sentenced to seven year
rigorous imprisonment by the Trial Court by its judgment and order dated
30.07.1994.
Being aggrieved by the judgment and order dated 30.07.1994, passed by the
Trial Court, the respondent preferred Criminal Appeal No.776 of 1994 before
the High Court of Madhya Pradesh. The High Court found that the school
certificate was not proved without doubt. The medical evidence relied upon
by the Trial Court was disbelieved by the High Court as the doctor who
conducted the ossification test was not examined. X-ray report containing
the opinion of the doctor was also disbelieved by the High Court as it was
merely technical opinion and the doctor was not produced for examination by
the Trial Court. The pivotal fact for overturning the judgment of the Trial
Court was the deposition made by PW6 i.e. Malti Devi, mother of the
prosecutrix where she stated that in the morning when she saw that the
prosecutrix was not lying with her, she and her elder daughter started
searching the prosecutrix and when they opened the door of the room, they
found that the accused was standing with the prosecutrix behind the bags.
The High Court, therefore, allowed the said appeal, set-aside the
conviction of the respondent and acquitted him of the charge under Section
376 IPC.
The State is thus before us in appeal against the acquittal of the
respondent. The learned counsel appearing for the State has attacked the
judgment of acquittal passed by the High Court, mainly on two grounds.
First is whether the sexual intercourse was consensual; and second, whether
the age of the prosecutrix was below 16 years.
The High Court while setting aside the Trial Court judgment rightly
appraised the evidence on record and held that the sexual intercourse was
consensual. In her statement the prosecutrix (PW5) states that she was
sleeping between her mother and brother and the accused had reached her
after hopping over them and he dragged her into another room on the point
of a knife. However, sneaking in with such ease is highly doubtful. Even if
the accused made it through to the prosecutrix, it seems unnatural that the
prosecutrix was not alarmed by the knife upon being awaken from her sleep.
It is also to be noted that the prosecution never recovered any knife.
Further examination of the statement of PW5 that the accused and the
prosecutrix remained in the room for couple of hours and it was only when
her mother and elder sister came searching for her that the prosecutrix was
found in the room with the accused, hiding behind the bags. The above
narration leads to the inference that the prosecutrix was a consenting
party.
Section 375 (as it stood before the Criminal Law Amendment Act, 2013) of
the Indian Penal Code, 1860 states –
“A man is said to commit ‘rape’ who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:-
… … … … …
Sixthly – With or without her consent, when she is under sixteen years of
age...”
In light of the aforementioned provision, the second issue regarding the
determination of age of the prosecutrix is crucial to establish whether the
respondent is liable for rape or not.
To prove its case, the prosecution produced evidences including school
certificate, opinion of the doctor who conducted medical examination of the
prosecutrix, bone ossification test, but the High Court held that none of
them could bring home the case of the prosecution. The prosecution produced
school certificate of the prosecutrix and examined the Principal of Babu
Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where
the prosecutrix studied in her 9th standard. In his cross-examination, PW1
stated that the age of the prosecutrix was noted at the time of admission
but he had no knowledge about the fact as to what date of birth would have
been mentioned in her letter of declaration. The examination-in-chief of
PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her
opinion, the girl could not have attained the age of 14 years, but further
in her examination-in-chief and cross-examination, she stated that she
could not opine about the present intercourse. Other findings of PW8 are
mere opinions and cannot be relied upon completely to establish the guilt
of the accused.
From the X-ray report of the ossification test, the doctor opined that the
age of the prosecutrix could not be more than 14 years. However, since the
doctor was never examined, the X-ray report is not sufficient to prove the
age of the prosecutrix. The prosecutrix was examined as PW5 but the
prosecution failed to question the prosecutrix on her age, therefore no
fact could be gathered from her regarding the issue of age. PW6 Malti Devi
mother of the prosecutrix was examined where she stated the age of
prosecutrix to be 13 years. However, in her cross-examination, she stated
that her marriage was performed about 20 years ago and after two years of
her marriage the elder daughter (Sunita) was born, and 2-3 years thereafter
the prosecutrix was born. It means that the prosecutrix was aged about 15-
16 years at the time of the incident. But this is not sufficient to come to
any conclusion about the exact age of the prosecutrix. It appears that the
Ossification Test X-ray report is not sufficient to prove the age of the
girl. Further, the mother of the prosecutrix also was not able to give the
exact age of the prosecutrix. No question was also asked to the prosecutrix
by the prosecution about her age. Taking into account all these facts, the
High Court correctly came to the conclusion that the prosecution has
totally failed to prove beyond reasonable doubt that the girl was less than
16 years of age at the time of the incident. Therefore, the High Court
presumed that the girl was more than 16 years of age and was competent to
give her consent.
This Court in the case of Birad Mal Singhvi v. Anand Purohit, (1988) Supp.
SCC 604, has held:
“17. ...the entries regarding dates of birth contained in the scholar’s
register and the secondary school examination have no probative value, as
no person on whose information the dates of birth of the aforesaid
candidates were mentioned in the school record was examined.”
Further it was held by this Court in the case of Sunil v. State of Haryana,
(2010) 1 SCC 742 that –
“26. ………… In a criminal case, the conviction of the appellant cannot be
based on an approximate date which is not supported by any record. It would
be quite unsafe to base conviction on an approximate date.”
In view of the evidence on record and the rationale in the aforementioned
cases, we are of a considered view that the prosecution has totally failed
to prove beyond reasonable doubt that the girl was less than 16 years of
age at the time of the incident. Therefore, it can be held that the girl
was more than 16 years of age and she was competent to give her consent as
held by the High Court. Hence, in the present case, the question of rape
does not arise as consensual intercourse has been proved.
Thus, in the light of the above discussion, we are of the view that the
present appeal is devoid of any merit, and we find no ground to interfere
with the judgment passed by the High Court. The appeal is, accordingly,
dismissed.
…....................................J
(Pinaki Chandra
Ghose)
…...................................J
(R.K.
Agrawal)
New Delhi;
September 18, 2015.
