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Tuesday, January 10, 2017

The victim however in her examination in chief did not give any probable period or time when the intercourse had last taken place. In her cross- examination conducted on 06.10.2012, to a pointed query she answered, “We had intercourse finally in August, 2009”. At that juncture, the cross-examination of the victim was stopped and a plea of juvenility of the appellant was raised. It was submitted that going by the assertions of the victim, the appellant was definitely a juvenile on the alleged dates of occurrence. Criminal M.P. No.10872 of 2012 under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to “the Act”) was also filed praying that the age of the appellant be determined in terms of the provisions of the Act and the Rules framed thereunder. The complainant was also allowed to make her submissions. After hearing the parties, the Court posted the application for pronouncement of Orders on 04.12.2012. However, on 28.11.2012 an application under Section 216 of Cr.P.C. was filed by the prosecution for adding charge under Section 417 against the appellant. The request for addition of the charge was dismissed by the trial court which order was affirmed by the High Court by its Order dated 15.02.2013. The complainant challenged the order of the High Court by filing SLP(Crl.) No. 1899 of 2013 which was dismissed by this Court on 12.08.2014. The trial court thereafter postponed the issue of juvenility to be considered at the stage of final determination of the matter, which order was challenged by the appellant by filing petition under Section 482 of Cr.P.C. The challenge was accepted by the High Court and by Order dated 8.12.2014 it directed: “The learned III Additional Sessions Judge shall first decide the claim of juvenility raised by the petitioner herein and then to proceed with further in accordance with law. At any rate, appropriate decision on the claim of juvenility shall be made within a period of 30 days as provided in Rule 8B of the Tamil Nadu Juvenile Justice (Care and Protection of Children) Rules, 2001 from the date of receipt of the records from the trial court.” The matter was then heard by the trial court which after considering the relevant material on record declared the appellant to be juvenile in conflict with law under Section 7A of the Act. The trial court found the date of birth of the appellant to be 19.10.1991. Going by the assertions made by the victim that the sexual intercourse between them lastly occurred in the month of August, 2009, the trial court found that on the date of occurrence, the appellant was a juvenile. Concluding thus, the trial court directed: “29. Finally, this court allows the above Petition Crl.O.P.No.10872/2012 and decides that the offender was a Juvenile on the date of commission of offence. 30. As the offender on the date of occurrence of offence was a juvenile, the present case can be decided only by the Juvenile Board and this court orders transfer of the S.C.130/2011 to the Juvenile Board.”

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO.   39      OF 2017
                 (Arising out of SLP(Crl.) No.9073 of 2015)

Sri Ganesh                                              ...….. Appellant

                                   Versus

State of Tamil Nadu and Anr.                           …. Respondents


                               J U D G M E N T

Uday Umesh Lalit, J.

Leave granted.

This appeal by  special  leave  challenges  the  Judgment  and  Order  dated
13.10.2015 passed by the High Court of  Madras  in  Criminal  Revision  Case
No.383 of 2015.  In order to avoid any  identification  of  the  victim,  we
have transposed the original respondent  No.1  namely,  the  Complainant  as
respondent No.2 and the State  is  now  shown  as  respondent  No.1  in  the
matter.

Pursuant to complaint by the  complainant,  FIR  vide  Crime  No.5/2010  was
initially registered under Sections 417 and 506(ii) IPC on  26.03.2010  with
Old Washermenpet Police Station, Chennai against the appellant, his  father,
mother and uncle.  After  carrying  out  necessary  investigation,   charge-
sheet dated 18.11.2010 was filed against the  appellant  under  Section  376
IPC and against his parents and uncle under Sections 417 read with  109  IPC
and 506(ii) IPC.  It was alleged that  the  appellant  had  become  friendly
with the victim while they had reached 10+2 standard;  that  this  fact  was
known to the family of  the  appellant  who  treated  the  victim  as  their
daughter-in-law; that the appellant had committed  sexual  intercourse  with
the victim on 5 to 6 occasions; and that  the  behavior  of  the  family  of
appellant later changed and they refused to perform the marriage.    It  was
alleged that the appellant thus committed  offence  under  Section  376  IPC
while his family members were guilty of  offence  under  Sections  417  read
with 109 IPC and 506(ii) IPC.

Appropriate  charges  under  the  aforesaid  Sections  having  been  framed,
Criminal O.P. No.9823 of 2011 was filed in the High Court  seeking  quashing
of those charges.  The High Court by its Order dated 20.06.2012 quashed  the
charges as against the parents and uncle of the appellant but dismissed  the
challenge raised by the appellant. Consequently  the  trial  proceeded  only
against the appellant for the offence punishable under Section 376  IPC.  On
18.09.2012, the victim deposed before the  trial  court  as  PW-1.   In  her
examination-in-Chief she deposed:
      “………….......I firmly believed that the accused  and  his  family  will
not leave me and our marriage would definitely solemnize.   After  this  the
accused forced me and had intercourse with me 5 to 6 times.”

The victim however in her examination in chief did  not  give  any  probable
period or time when the intercourse had last taken  place.   In  her  cross-
examination conducted on 06.10.2012, to a pointed query  she  answered,  “We
had intercourse finally in August, 2009”.

At that juncture, the cross-examination of the  victim  was  stopped  and  a
plea of juvenility of the appellant was raised. It was submitted that  going
by the assertions of the victim, the appellant was definitely a juvenile  on
the alleged dates of occurrence.   Criminal  M.P.  No.10872  of  2012  under
Section 7A of the Juvenile Justice (Care and Protection  of  Children)  Act,
2000 (hereinafter referred to “the Act”) was also  filed  praying  that  the
age of the appellant be determined in terms of the  provisions  of  the  Act
and the Rules framed thereunder.  The complainant was also allowed  to  make
her  submissions.   After  hearing  the  parties,  the  Court   posted   the
application  for  pronouncement  of  Orders  on  04.12.2012.   However,   on
28.11.2012 an application under Section 216 of  Cr.P.C.  was  filed  by  the
prosecution for adding charge under Section 417 against the appellant.   The
request for addition of the charge was dismissed by the  trial  court  which
order was affirmed by the High Court by its  Order  dated  15.02.2013.   The
complainant challenged the order of the High Court by filing  SLP(Crl.)  No.
1899 of 2013 which was dismissed by this Court on  12.08.2014.

The  trial  court  thereafter  postponed  the  issue  of  juvenility  to  be
considered at the stage of final determination of the matter,   which  order
was challenged by the appellant by filing  petition  under  Section  482  of
Cr.P.C.  The challenge was accepted by the High Court  and  by  Order  dated
8.12.2014 it directed:
“The learned III Additional Sessions Judge shall first decide the  claim  of
juvenility raised by the petitioner herein and then to proceed with  further
in accordance with law.  At any rate, appropriate decision on the  claim  of
juvenility shall be made within a period of 30 days as provided in  Rule  8B
of the Tamil Nadu Juvenile Justice (Care and Protection of Children)  Rules,
2001 from the date of receipt of the records from the trial court.”


The matter was then heard by the trial court  which  after  considering  the
relevant material on  record  declared  the  appellant  to  be  juvenile  in
conflict with law under Section 7A of the Act.  The trial  court  found  the
date of birth of the appellant to be 19.10.1991.  Going  by  the  assertions
made by the victim that the sexual intercourse between them lastly  occurred
in the month of August, 2009, the trial court found  that  on  the  date  of
occurrence, the appellant was a juvenile.  Concluding thus, the trial  court
directed:
“29.  Finally, this court allows the  above  Petition  Crl.O.P.No.10872/2012
and decides that the offender was a Juvenile on the date  of  commission  of
offence.

30.   As the offender on the date of occurrence of offence was  a  juvenile,
the present case can be decided only by the Juvenile Board  and  this  court
orders transfer of the S.C.130/2011 to the Juvenile Board.”


The complainant being aggrieved, challenged the aforesaid  determination  by
filing Criminal Revision Case No.383 of 2015 in the High  Court  of  Madras.
The High Court by its Judgment  and  Order  dated  13.10.2015  allowed  said
criminal revision and remitted the matter back to the trial court for  fresh
consideration.   It was observed:
“It is evident that the trial court has not determined the  correct  age  of
the second respondent/accused or the date of occurrence  in  the  facts  and
circumstances of the case.  The trial court also did not take  note  of  the
fact that the offence alleged  to  have  been  committed  was  a  continuing
offence.  The trial court also did not consider the expert opinion  obtained
from  a   Medical   Officer   to   determine   the   age   of   the   second
respondent/accused.  The trial court has also not ascertained correctly  the
date on which the first  occurrence  took  place  and  the  last  occurrence
committed by the accused/second respondent  herein.   The  trial  court  was
carried away by an admission made by the complainant during  the  course  of
cross-examination.”


9.    Appearing for the appellant in support of the appeal, Mr.  A.  Ramesh,
learned Senior Advocate  submitted  that  the  determination  of  age  of  a
juvenile has to be principally on the  basis  of  documentary  evidence  and
only in the absence of such documentary evidence, medical opinion  could  be
pressed into service.  In his submission the High Court  was  completely  in
error in setting aside the view taken by the trial court  and  in  remitting
the matter for fresh consideration.  Reliance was placed on the judgment  of
this Court in Ashwani Kumar Saxena v. State of Madhya  Pradesh[1].   On  the
other hand, Mr. Aditya Kumar Choudhary, learned Advocate appearing  for  the
complainant relied on decision of this Court in  Karthi  alias  Karthick  v.
State of Tamil Nadu[2] and submitted that the High Court  was  justified  in
remitting the matter for fresh consideration.

10.   The law on the point is well settled and succinctly stated in  Ashwani
Kumar’s case (supra)  where  this  Court  after  taking  into  consideration
relevant statutory provisions observed in paragraphs 32 to 34 as under:-
“32.  “Age determination inquiry” contemplated under Section 7-A of the  Act
read with Rule 12 of the 2007 Rules enables the court to seek  evidence  and
in that process, the  court  can  obtain  the  matriculation  or  equivalent
certificates, if available. Only in the  absence  of  any  matriculation  or
equivalent certificates, the  court  needs  to  obtain  the  date  of  birth
certificate from the school first attended other than a  play  school.  Only
in the absence of matriculation or equivalent certificate  or  the  date  of
birth certificate from the school first attended, the court needs to  obtain
the birth certificate given by a corporation or a municipal authority  or  a
panchayat (not an affidavit but certificates or documents). The question  of
obtaining medical opinion from a duly constituted Medical Board arises  only
if the abovementioned documents are unavailable. In  case  exact  assessment
of the age cannot be done, then the court, for reasons to be recorded,  may,
if considered necessary, give the  benefit  to  the  child  or  juvenile  by
considering his or her age on lower side within the margin of one year.

33.   Once the court, following the  abovementioned  procedures,  passes  an
order, that order shall be the conclusive proof of the age as  regards  such
child or juvenile in conflict with law. It has been made clear  in  sub-rule
(5) of Rule 12 that no further inquiry shall be conducted by  the  court  or
the Board after  examining  and  obtaining  the  certificate  or  any  other
documentary proof after referring to  sub-rule  (3)  of  Rule  12.  Further,
Section 49 of the JJ Act  also  draws  a  presumption  of  the  age  of  the
juvenility on its determination.

34.   Age determination inquiry contemplated under the JJ Act and  the  2007
Rules has nothing to do with  an  enquiry  under  other  legislations,  like
entry in service, retirement, promotion, etc. There may be situations  where
the entry made in the matriculation  or  equivalent  certificates,  date  of
birth certificate  from  the  school  first  attended  and  even  the  birth
certificate given by a corporation or a municipal authority or  a  panchayat
may not be correct.  But  court,  Juvenile  Justice  Board  or  a  committee
functioning under the JJ Act is  not  expected  to  conduct  such  a  roving
enquiry and to go behind those certificates to examine  the  correctness  of
those documents, kept during the normal course of business.  Only  in  cases
where those  documents  or  certificates  are  found  to  be  fabricated  or
manipulated, the court, the Juvenile Justice Board or the committee need  to
go for medical report for age determination.”


11.   In the present case the trial court took into account the  documentary
evidence as contemplated in the statutory provisions and returned a  finding
that the date of birth of the appellant was 19.10.1991.  During  the  course
of its judgment the  High  Court  could  not  find  such  conclusion  to  be
vitiated on any ground.  In the face of the relevant  documentary  evidence,
there could be no medical examination to ascertain the age of the  appellant
and as such the consequential directions  passed  by  the  High  Court  were
completely unwarranted.  Further, if the allegations of the prosecution  are
that the offence under Section 376  IPC  was  committed  on  more  than  one
occasion, in order to see whether the appellant was juvenile or not,  it  is
enough to see if he  was  juvenile  on  the  date  when  the  last  of  such
incidents had occurred.  The trial court was therefore  justified  in  going
by the assertions made by the victim  in  her  cross  examination  and  then
considering whether the appellant was juvenile on that date or not.

12.   The learned counsel for the respondent however relies on the  decision
of this Court in Karthi (supra).  In that case the  accused  had  repeatedly
engaged in consensual  sexual  intercourse  with  prosecutrix  on  different
dates on  promises of marriage.  After having found that the  promises  were
false, the prosecutrix had lodged a complaint asserting her exploitation  on
certain previous dates.   While  considering  the  delay  in  reporting  the
matter to the Police, this Court found that it was only  after  the  accused
had declined to marry the prosecutrix that a different dimension came to  be
attached to their relationship and thus there was no delay  in  registration
of FIR.  The decision in Karthi (supra) stands  on  a  completely  different
point and cannot be pressed into service to say that because  the  appellant
had refused to marry the victim, the date of the offence under  Section  376
would consequently change.  The date of  the  incident  remaining  constant,
the principle in Karthi (supra) will be of assistance only in  getting  over
the aspect of delay in lodging the FIR.

13.   We thus find that the approach of the High Court in the  present  case
was incorrect and completely misdirected.  Even if we  were  to  remand  the
matter back to the High Court for fresh consideration, in our view it  would
be an empty formality in the face of finding of fact rendered by  the  trial
court.  We, therefore, allow this appeal and  set  aside  the  Judgment  and
Order under appeal.  The view taken by the trial court is restored  and  the
matter stands disposed of in terms of the directions  issued  by  the  trial
court as stated above.
14.   The appeal is allowed in aforesaid terms.


                                                            ..……..………………..J.
(Pinaki Chandra Ghose)



                                             ..………………………J.
                                             (Uday Umesh Lalit)

New Delhi,
January 6, 2017
-----------------------
[1]    (2012) 9 SCC 750
[2]    (2013) 12 SCC 710


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