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Friday, September 25, 2015

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.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. 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.

                                                              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.

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