published in http://judis.nic.in/supremecourt/filename=40458
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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2010
Jarnail Singh ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The factual position on which the prosecution version is founded,
commences with the passing of information by Savitri Devi (the mother
of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8,
on 26.3.1993, at about 6 am. She informed her husband, that the
prosecutrix VW - PW6 was missing from their residence. In this behalf
it would be pertinent to mention, that on 25.3.1993 at about 10 pm,
Jagdish Chander went to sleep in the “baithak” (drawing room) of their
residence. Savitri Devi, the mother of the prosecutrix VW - PW6, along
with the prosecutrix VW - PW6, and the other children (comprising of
three sons, the prosecutrix VW – PW6 and one other daughter), went to
sleep in the other rooms of the house. Savitri Devi, told her husband,
that she suspected the accused-appellant Jarnail Singh, may be
responsible for having taken away their daughter.
2. Jagdish Chander-PW8, commenced to search for his daughter.
During the course of the aforesaid search, the accused-appellant Jarnail
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Singh, who had his residence in the neighbourhood (of Jagdish
Chander-PW8), was also found missing from his residence. The search
for the prosecutrix VW - PW6 by her father, proved futile. It is therefore,
that Jagdish Chander-PW8, made a complaint Exhibit PO on 27.3.1993
to the Sub-Inspector Incharge, Police Post, Jathlana. In his complaint,
he described VW - PW6, as the elder of his two daughters. He gave out
her age as about 16 years. He also alleged, that his daughter VW -
PW6 had gone missing from their residence in the night intervening 25th
and 26th March, 1993. He also alleged, that an amount of Rs.3,000/-
was missing from his house, which he assumed may have been taken
away by his daughter VW - PW6, while leaving the house. In the
complaint Exhibit PO, the needle of suspicion was pointed at the
accused-appellant Jarnail Singh.
3. After the registration of the complaint of Jagdish Chander-PW8,
the prosecutrix VW - PW6 was recovered on 29.3.1983, from the
custody of the accused-appellant Jarnail Singh, from the house of
Shashi Bhan at Raipur in district Haridwar. The accused-appellant
simultaneously came to be arrested, on 29.3.1993.
4. The statement of the prosecutrix VW - PW6 was got recorded
under Section 164 of the Code of Criminal Procedure before O.P.
Verma, Judicial Magistrate First Class, Jagadhri on 6.4.1993.
It is
necessary in the facts and circumstances of this case to extract herein
her short statement recorded under Section 164 of the Code of Criminal
Procedure, which is being reproduced hereunder:
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“Stated that on the night of 25.3.1993 at around 11 pm, I went to a
street near my house to answer nature’s call. Accused Jarnail
Singh and his three accomplices were hiding there. When I got
up after answering nature’s call, then they caught hold of me and
inhaled me something by cloth, due to which, I got unconscious.
They took me to some unknown place in U.P. by putting me in
some vehicle. There they took me to a room.
Jarnail Singh, forcibly committed wrong (intercourse) with me. I
slapped on his face, then he put cloth in my mouth. Therefore, I
could not raise noise. Thereafter, everyone committed forcible
intercourse with me, turn by turn. Huge blood came out of my
vagina, and I felt a lot of pain. Thereafter, police caught us and
handed over me to my parents.”
5. On completion of investigation, a challan was presented under
Sections 366, 376 and 120 of the Indian Penal Code. The matter was
committed to the Court of Sessions, Jagadhri, whereupon, it was
marked to the Additional Sessions Judge, Jagadhri. The Additional
Sessions Judge, Jagadhri framed charges on 20.12.1993. The
accused-appellant pleaded not guilty, and claimed trial.
6. In order to bring home the charges levelled against the accusedappellant, the prosecution examined 9 witnesses. Thereafter, the
prosecution evidence was closed.
The statement of the accusedappellant Jarnail Singh, was then recorded under Section 313 of the
Code of Criminal Procedure. He denied the allegations levelled against
him, and pleaded false implication. Despite opportunity having been
afforded to him, the accused-appellant did not lead any evidence, in his
defence.
7. It is necessary to record, that on the culmination of the trial, the
Additional Sessions Judge, Jagadhri arrived at the conclusion, that the
prosecution had been able to bring home the guilt of the accused-
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appellant beyond any shadow of reasonable doubt, under Sections 366,
376(g) and 120-B of the Indian Penal Code. The accused-appellant
Jarnail Singh was accordingly held guilty of the charges levelled against
him. The Additional Sessions Judge, Jagadhri gave an opportunity of
hearing to the accused-appellant Jarnail Singh on the question of
sentence. Thereupon, for the offence under Section 376(g) of the Indian
Penal Code the accused-appellant was awarded rigorous imprisonment
for 10 years, he was also required to pay a fine of Rs.200/- (in case of
default in payment of fine, the accused-appellant was to undergo further
rigorous imprisonment for 3 months). For the offence under Section 366
of the Indian Penal Code, the accused-appellant was awarded rigorous
imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in
case of default in payment of fine, the accused-appellant was to undergo
further rigorous imprisonment for 3 months). And for the offence under
Section 120-B of the Indian Penal Code, the accused-appellant was
awarded rigorous imprisonment for 7 years, and was required to pay a
fine of Rs.150/- (in case of default in payment of fine, the accused appellant was to undergo further rigorous imprisonment for 3 months).
The aforesaid sentences were ordered to run concurrently.
8. Dissatisfied with the judgment dated 14.3.1995, rendered by the
trial Court, the accused-appellant Jarnail Singh preferred Criminal
Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at
Chandigarh (hereinafter referred to as, the High Court). The High Court
dismissed the appeal preferred by the accused-appellant on 4.11.2008.
The judgment of conviction dated 14.3.1995 and the order of sentence
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dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions
Judge, Jagadhri) were upheld.
9. Dissatisfied with the judgment of the trial Court dated 14.3.1995
and that of the appellate Court dated 4.11.2008, the accused-appellant
Jarnail Singh approached this Court. On 7.7.2010, this Court granted
leave, in the Petition for Special Leave to Appeal (Crl.) no. 7836 of
2009, filed by the accused-appellant. Having traversed the aforesaid
course, the instant criminal appeal has finally been placed before us, for
adjudication.
10. Before dealing with the issues canvassed at the hands of the
learned counsel for the accused-appellant Jarnail Singh, it is considered
expedient to have a bird’s eye view of the relevant prosecution
witnesses. It is, therefore, that we shall endeavour to deal with the
testimony of some of the prosecution witnesses hereunder:
(i) Dr. Kanta Dhankar was produced by the prosecution as
PW1. She had medico-legally examined the prosecutrix
VW - PW6 on 29.3.1993 at 3 pm. According to her
testimony, no blood or seminal stain was visible to the
naked eye, during the course of examination of the
prosecutrix VW - PW6. Pubic hairs were present. There
was no visible injury on the external genitalia or vagina.
The hymen of the prosecutrix VW - PW6 was found
ruptured. Her vagina admitted 2/3 fingers easily. The
clothes of the prosecutrix VW - PW6, a swab taken from
her vagina and her pubic hair, were sent to the forensic
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science laboratory for examination, so as to determine
whether there was any semen or blood thereon. Along with
the testimony of Dr. Kanta Dhankar- PW1, it is necessary to
record, that as per the report of the forensic science
laboratory (Exhibit PL), human semen was detected on the
prosecutrix’s “salwar” (female trouser), her underwear, as
also, on her pubic hair. The report of the serologist (Exhibit
PL/1) further revealed medium and small sized blood stains
on the “salwar”. The report of the serologist also disclosed,
that the stains on the “salwar” were of human blood.
(ii) Dr. Satnam Singh-PW2, was the second witness to be
examined by the prosecution. He had medico-legally
examined the accused-appellant Jarnail Singh. Dr. Satnam
Singh-PW2, while deposing before the trial Court affirmed,
that the accused-appellant was capable of sexual
intercourse.
(iii) The prosecution then examined Moti Ram as PW3. Moti
Ram testified, that he was present when the prosecutrix VW
- PW6, was recovered whilst in custody of the accusedappellant, from the house of Shashi Bhan at Raipur, in
district Haridwar. Moti Ram also affirmed the presence of
Om Prakash, Jagmal and Sumer Chand, along with the
police party, at the time of recovery of the prosecutrix VW -
PW6, on 29.3.1993. Moti Ram had identified the
prosecutrix VW - PW6, at the time of her said recovery.
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(iv) Satpal was produced by the prosecution as its fourth
witness. Satpal-PW4 was the Headmaster of the
Government High School, Jathlana, i.e. the school which
the prosecutrix VW - PW6, had first attended. Satpal-PW4
proved the certificate Exhibit PG, as having been prepared
on the basis of the school records. As per the certificate,
Exhibit P4, the prosecutrix VW - PW6 was born on
15.5.1977.
(v) The prosecutrix appeared as PW6 before the trial Court.
She affirmed the factual position expressed by her father
Jagdish Chander-PW8 in his complaint dated 27.3.1993
(Exhibit PO). She also reiterated the factual position
expressed by her, in her statement, recorded under Section
164 of the Code of Criminal Procedure, on 6.4.1993. In
sum and substance she asserted, that she had studied upto
class 3 at the Government High School, Jathlana,
whereafter, she started to do household work at home. On
25.3.1993 at about 11 pm, she had gone out of her house to
urinate in the street. The accused-appellant Jarnail Singh
and three other persons had caught hold of her, and had
taken her in a tanker towards Raipur side in Uttar Pradesh.
The accused-appellant Jarnail Singh and his three
accomplices, had then raped her in a small room. She also
testified, that she had been recovered by the police from
Raipur, and at the time of her recovery, Moti Ram-PW3 and
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her uncle Omilal (Om Prakash) and Jagmal were present
with the police party. Thereafter, she claims to have been
brought to police post Jathlana, and was got medico-legally
examined by a lady doctor at Civil Hospital, Radaur. Since
the prosecutrix VW - PW6, was not disclosing the entire
factual position, and seemed to be changing the version of
her statement recorded under Section 164 of the Code of
Criminal Procedure, the Public Prosecutor sought
permission to cross-examine her. Consequent upon being
permitted to cross-examine the prosecutrix VW - PW6, she
affirmed, that the accused-appellant had been alluring her
for marriage, with the promise of giving her ornaments and
clothes, and a further commitment to move her to the city,
after their marriage. During these allurements, the
accused-appellant Jarnail Singh used to also impress upon
her, that her parents were poor and would marry her to
some poor person, who would never be able to provide her
such facilities. During her cross-examination, she expressly
denied the suggestion, that she herself had allured the
accused-appellant Jarnail Singh, to take her away, in order
to marry him.
(vi) O.P. Verma, Judicial Magistrate First Class, Jagadhri,
appeared as PW7. He proved the statement, recorded
before him under Section 164 of the Code of Criminal
Procedure, by the prosecutrix VW - PW6, on 6.4.1993.
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(vii) Jagdish Chander-PW8, the father of the prosecutrix VW -
PW6 during the course of his deposition, affirmed the
factual position depicted in his complaint dated 27.3.1993
(Exhibit PO). He also corroborated the testimony of his
daughter (i.e., the prosecutrix VW - PW6) in all material
particulars.
The conviction of the accused-appellant at the hands of the trial Court
(on 14.3.1995) and by the High Court (on 4.11.2008) was primarily
based on the statements of the prosecution witnesses summarised
above.
11. We shall now endeavour to deal with the submissions advanced
at the hands of the learned counsel for the accused-appellant.
12. The first and foremost contention advanced at the hands of the
learned counsel for the accused-appellant was, that the prosecutrix VW
- PW6, had voluntarily and with her free consent, accompanied the
accused-appellant Jarnail Singh. It was contended, that in actuality, it
was the prosecutrix VW - PW6 who had allured the accused-appellant
to marry her, and had persuaded him to take her away during the night
intervening 25th and 26th March, 1993. In order to substantiate the
instant submission, it was pointed out that the prosecutrix VW - PW6
has remained with the accused Jarnail Singh for four days without any
protestation. During the course of the aforesaid four days in the
company of the accused-appellant Jarnail Singh, they had travelled from
one place to another, and had finally reached the house of Shashi Bhan
at Raipur (from where the police recovered her on 29.3.1993). It was
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submitted, that there was ample opportunity with her, to raise an alarm
during the aforestated four days. The fact that she did not raise any
alarm shows, that she had voluntarily remained with the accusedappellant Jarnail Singh. Therefore, sexual intercourse with the accusedappellant Jarnail Singh, according to learned counsel, was also
consensual. Thus viewed, it was asserted, that the accused-appellant
Jarnail Singh could not be accused of either having kidnapped her,
and/or having committed rape on her.
13. On the same issue, learned counsel for the accused-appellant
also invited our attention to the fact, that in the complaint lodged by
Jagdish Chandra (PW8), dated 27.3.1993, he had expressly mentioned
that the prosecutrix had taken away a sum of Rs.3,000/-. In this behalf it
was submitted that the instant act of the prosecutrix exhibits that she
had taken money from her father’s house to make good her escape in
the company of the accused-appellant Jarnail Singh. It is sought to be
inferred from the above, that the prosecutrix VW - PW6 had gone with
the accused-appellant Jarnail Singh, of her own free will. And, that she
had sexual intercourse with him consensually. For the reasons
indicated hereinabove, it was the vehement contention of the learned
counsel for the accused-appellant Jarnail Singh, that the courts below
had seriously erred in recording the appellant’s conviction under
Sections 366, 376 and 120-B of the Indian Penal Code.
14. We have given our thoughtful consideration to the first contention
advanced at the hands of the learned counsel for the accused-appellant.
We shall venture to determine the factual aspects taken into
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consideration by the learned counsel for the appellant, to substantiate
the alleged free will and consent of the prosecutrix VW - PW6
individually ,so as to effectively determine the veracity of the
submissions noticed above.
15. In so far as the issue of having gone with the accused-appellant
Jarnail Singh of her own free will, and of having had sexual intercourse
with him consensually, it is necessary only to examine the uncontested
deposition of the prosecutrix VW - PW6. In this behalf, it may be
pointed out, that in her statement recorded under Section 164 of the
Code of Criminal Procedure before the Judicial Magistrate, First Class,
Jagadhari on 6.4.1993, the prosecutrix VW – PW6 had expressly
asserted, that she was forcibly taken away on 25.3.1993, when she had
gone out of her house to urinate in the street, by Jarnail Singh and his
three accomplices. She had clearly and categorically testified, that all
the four had caught hold of her. They had made her inhale something,
which rendered her unconscious. She had further stated, that the
accused-appellant Jarnail Singh and his accomplices, had then taken
her to some unknown place in Uttar Pradesh in a vehicle where Jarnail
Singh forcibly attempted to commit intercourse with her. At that
juncture, she had slapped Jarnail Singh on his face, but in order to
subjugate her, he had put a cloth in her mouth to prevent her from
raising an alarm. Thereafter, the accused-appellant Jarnail Singh and
his accomplices had committed forcible intercourse with her, one after
the other. In her statement before the Trial Court, where she appeared
as PW6, she had reiterated clearly the position of having been taken
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away by the accused-appellant Jarnail Singh, and his three
accomplices. She affirmed, that she was taken away in a tanker to Uttar
Pradesh and then all the accused had committed rape on her in a small
room. On the aforestated aspect of the matter, she was not subjected t
cross-examination at the behest of the accused. Only a suggestion was
put to her, that she had persuaded the accused-appellant Jarnail Singh
to take her away, in order to perform marriage with her, and for the said
purpose had taken away cash, clothes and jewellery from her own
residence. The aforestated suggestion was denied by the prosecutrix
VW - PW6. Keeping in view the statement of the prosecutrix VW - PW6
under Section 164 of the code of Criminal procedure before the Judicial
Magistrate, First Class, Jagadhri, as also, the statement made by her
while appearing before the trial court, and the manner in which she was
subjected to cross-examination, there is no room for any doubt, that the
prosecutrix was forcefully taken away, and that, she was subjected to
rape at the hands of the accused-appellant Jarnail Singh and his three
accomplices. It may still have been understandable, if the case had
been, that she had consensual sex with the accused-appellant alone.
But consensual sex with four boys at the same time, is just not
comprehensible.
Since the fact, that the accused-appellate Jarnail
Singh and the prosecutrix VW – PW6 had eloped together is not
disputed. And furthermore, since the accused-appellant having had
sexual intercourse with the prosecutrix is also the disputed. It is just not
possible to accept the proposition canvassed on behalf of the accused appellant. We, therefore, find no merit in the instant submission.
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16. The contention advanced at the hands of the learned counsel for
the accused-appellant Jarnail Singh, that while leaving her house on
25.3.1993, the prosecutrix VW – PW6, had taken away a sum of
Rs.3,000/-, needs a holistic examination. Whilst it is true that in the
complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW -
PW6, had categorically mentioned that a sum of Rs.3,000/- was missing
from his residence, and the said fact was duly mentioned in his
complaint to the police dated 27.3.1993, yet he had not accuse the
prosecutrix VW - PW6 for having taken it away. The instant aspect, in
our considered view pales into insignificance, on account of the
statement made by Jagdish Chandra (PW8) before the Trial Court.
During the course of his deposition before the Trial Court, he had
asserted, that he had mentioned that a sum of Rs.3,000/- was missing
from his residence, but his wife Savitri Devi had found the aforesaid
money from the residence itself, a few days later. Accordingly, the
assertion made by the learned counsel representing the accusedappellant to the effect that the prosecutrix VW - PW6 had taken away a
sum of Rs.3,000/-, when she left the house of her father on 25.3.1993,
cannot be stated to have been duly proved. Besides the aforesaid, it is
apparent from the cross-examination of the prosecutrix VW - PW6, that
a suggestion was put to her that besides cash, she had taken away
clothes and jewellery at the time of leaving her father’s house on
25.3.1993. The prosecutrix VW - PW6 expressly denied the suggestion.
There is no material on the record of the case to substantiate the said
allegation. Therefore, it is not possible for us to accept the accusation
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levelled by the accused-appellant Jarnail Singh against the prosecutrix
VW - PW6, either on the issue of having taken away a sum of
Rs.3,000/- while leaving her house, or that she left her house on
25.3.1993 along with clothes and jewellery. Accordingly, the inference
drawn by assuming the said factual position as true, simply does not
arise.
17. The first contention advanced at the hands of the learned counsel
for the appellant can be conveniently determined from another
perspective. The High Court in the impugned order arrived at the
conclusion that the prosecutrix VW - PW6 was a minor at the time of
occurrence on 25.3.1993, and had concluded, that even if she had
accompanied the accused-appellant Jarnail Singh on 25.3.1993 of her
own free consent, and even if she had had sexual intercourse with the
accused consensually, the same would be immaterial. For, consent of a
minor is inconsequential.
18. During the course of hearing of the present appeal, learned
counsel for the appellant vehemently contested the determination of the
High Court in the impugned judgment, wherein it had concluded, that the
prosecutrix VW - PW6 was a minor. Insofar as the instant aspect of the
matter is concerned, it was pointed out, that the sexual organs of the
prosecutrix VW - PW6 were found to be fully developed by Dr. Kanta
Dhankar- PW1. Her hymen was found to be ruptured. It was also seen
during the medico-legal examination of the prosecutrix VW - PW6, that
the vagina admitted two/three fingers easily. Learned counsel for the
appellant-accused Jarnail Singh, also invited our attention to the cross-
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examination of Dr. Kanta Dhankar-(PW1), wherein she acknowledged
having mentioned the age of the prosecutrix VW - PW6 as 15 years, on
the basis of the statement made by the prosecutrix to her. Dr. Kanta
Dhankar-PW1 had also acknowledged, that she had not got the
ossification test conducted on the prosecutrix VW - PW6 to scientifically
determine the age of the prosecutrix. Based on the aforesaid, it was
averred that there was no concrete material on the record of the case,
on the basis of which it could have been concluded by the High Court,
that the prosecutrix was a minor on the date of occurrence.
19. In order to support his contention, that the prosecutrix was not a
minor at the time of occurrence, learned counsel for the appellant placed
reliance on the judgment rendered in Sunil vs. State of Haryana, AIR
2010 SC 392. Ordinarily, we would have extracted the observations on
which reliance was placed, but for reasons that would emerge from our
conclusion, we consider it inappropriate to do so.
20. On the issue of determination of age of a minor, one only needs to
make a reference to Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to as the 2007
Rules). The aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of Children) Act,
2000. Rule 12 referred to hereinabove reads as under :
“12. Procedure to be followed in determination of Age.― (1) In
every case concerning a child or a juvenile in conflict with law, the
court or the Board or as the case may be the Committee referred
to in rule 19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law within a period of
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thirty days from the date of making of the application for that
purpose.
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child
or as the case may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or documents, if
available, and send him to the observation home or in jail.
(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 –
(a) (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.
(4) If the age of a juvenile or child or the juvenile in conflict with
law is found to be below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and these rules
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and a copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the Act
and these rules, no further inquiry shall be conducted by the court
or the Board after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed off cases, where the status of juvenility has not been
determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under
the Act for passing appropriate order in the interest of the
juvenile in conflict with law.”
Even though Rule 12 is strictly applicable only to determine the age of a
child in conflict with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even for a child who
is a victim of crime. For, in our view, there is hardly any difference in so
far as the issue of minority is concerned, between a child in conflict with
law, and a child who is a victim of crime. Therefore, in our considered
opinion, it would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW-PW6. The manner of
determining age conclusively, has been expressed in sub-rule (3) of
Rule 12 extracted above. Under the aforesaid provision, the age of a
child is ascertained, by adopting the first available basis, out of a
number of options postulated in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a subsequent clause. The
highest rated option available, would conclusively determine the age of
a minor. In the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated option. In case,
the said certificate is available, no other evidence can be relied upon.
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Only in the absence of the said certificate, Rule 12(3), envisages
consideration of the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and conclusive, and
no other material is to be relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to be taken
into consideration, for determining the age of the child concerned, as the
said certificate would conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the concerned child, on the basis of medical
opinion.
21. Following the scheme of Rule 12 of the 2007 Rules, it is apparent
that the age of the prosecutrix VW - PW6 could not be determined on
the basis of the matriculation (or equivalent) certificate as she had
herself deposed, that she had studied upto class 3 only, and thereafter,
had left her school and had started to do household work. The
prosecution in the facts and circumstances of this case, had
endeavoured to establish the age of the prosecutrix VW-PW6, on the
next available basis, in the sequence of options expressed in Rule 12(3)
of the 2007 Rules. The prosecution produced Satpal (PW4), to prove
the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head
Master of the Government High School, Jathlana, where the prosecutrix
VW - PW6 had studied upto class 3. Satpal (PW4) had proved the
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certificate Exhibit-PG, as having been made on the basis of the school
records indicating, that the prosecutrix VW - PW6, was born on
15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007
Rules, it is not permissible to determine age in any other manner, and
certainly not on the basis of an option mentioned in a subsequent
clause. We are therefore of the view, that the High Court was fully
justified in relying on the aforesaid basis for establishing the age of the
prosecutrix VW – PW6. It would also be relevant to mention, that under
the scheme of Rule 12 of the 2007 Rules, it would have been improper
for the High Court to rely on any other material including the ossification
test, for determining the age of the prosecutrix VW-PW6. The
deposition of Satpal-PW4 has not been contested. Therefore, the date
of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as
15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix
VW-PW6, was less than 15 years old on the date of occurrence, i.e., on
25.3.1993. In the said view of the matter, there is no room for any doubt
that the prosecutrix VW - PW6 was a minor on the date of occurrence.
Accordingly, we hereby endorse the conclusions recorded by the High
Court, that even if the prosecutrix VW-PW6 had accompanied the
accused-appellant Jarnail Singh of her own free will, and had had
consensual sex with him, the same would have been clearly
inconsequential, as she was a minor.
22. Since the judgment relied upon by the learned counsel for the
appellant is distinguishable on facts. And since the judgment relied
upon, had not made any reference to the 2007 Rules, we are of the view
19Page 20
that the same would not be relevant for the purposes of determining the
age of the prosecutrix VW - PW6, specially in the background of the
evidence led by the prosecution through Satpal (PW4) to establish.
23. The next contention advanced at the hands of the learned counsel
for the accused-appellant Jarnail Singh was, that the oral testimony of
the prosecutrix VW - PW6 ought not to be accepted as sufficient to
return a finding of guilt against the accused-appellant Jarnail Singh.
Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is
pointed that there were a number of discrepancies and contradictions
therein. It was submitted, that such discrepancies can be seen on a
comparison of her deposition before the trial Court, with the statement of
the prosecutrix recorded under Section 164 of the Code of Criminal
Procedure on 6.4.1993, as also, the statement of the prosecutrix
recorded by the Investigating Officer under Section 161 of the Code of
Criminal Procedure on 29.3.1993.
24. We have given our thoughtful consideration to the above noted
submission, advanced at the hands of the learned counsel for the
appellant. We, however, find no merit therein. It is not as if the
prosecution version is entirely based on the statement of the prosecutrix
VW - PW6. It would be relevant to mention, that her recovery from the
custody of the accused-appellant Jarnail Singh from the house of Shashi
Bhan, at Raipur, is sought to be established from the statement of Moti
Ram-PW3. There can therefore be no room for any doubt, that after she
was found missing from her father’s residence on 25.3.1993, and after
her father Jagdish Chandra-PW8 had made a complaint to the police on
20Page 21
27.3.1993, she was recovered from the custody of the accusedappellant Jarnail Singh.
Thereafter, the prosecutrix VW - PW6 was
subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on
29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her
independent testimony, affirmed that she had been subjected to sexual
intercourse, inasmuch as her hymen was found ruptured. Even though
the visual examination of the prosecutrix VW – PW6, during the course
of her medico-legal examination did not reveal the presence of semen or
blood, yet the report of the forensic science laboratory (Exhibit PL) and
of the Serologist (Exhibit PL/1) clearly establish the presence of semen
on her salwar, underwear and pubic hair. The serologist’s report also
disclose, medium and small blood stains on her “salwar”. In her own
deposition, she had mentioned that, when she was raped by the
accused-appellant Jarnail Singh and his accomplices, bleeding had
taken place and she had felt pain, and her clothes were stained with
blood. Her deposition stands scientifically substantiated by Exhibits PL
and PL/1. The suggestion put to the prosecutrix VW – PW6 at the
behest of the accused-appellant Jarnail Singh, during the course of her
cross-examination, that she had accompanied the accused-appellant
Jarnail Singh, of her own free will and had had sexual intercourse with
him consensually, leaves no room for any doubt, that she was in his
company, and that, he had had sexual intercourse with her. The
assertion that the prosecutrix VW – PW6 had accompanied the
accused-appellant Jarnail Singh, and had had sexual intercourse with
him consensually is completely ruled out, because as per the
21Page 22
substantiated prosecution version, the prosecutrix VW - PW6 was not
taken away by the accused-appellant Jarnail Singh alone, but also, by
his three accomplices. All the four of them had similarly violated her
person.
Additionally, in her statement under Section 164 of the Code of
Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the
first instance, after having caught hold of her, the accused had made her
inhale something from a cloth which had made her unconscious.
Thereafter, when the accused-appellant Jarnail Singh attempted to
commit intercourse with her, she had slapped him. He had then put a
cloth in her mouth, to stop her from raising an alarm. Thereafter, each
one of the accomplices had committed forcible intercourse with her in
turns.
The factum of commission of forcible intercourse by the accusedappellant, as also, his accomplices was reiterated by her during her
testimony before the Trial Court as PW6. Besides the aforesaid, there
is a statement of her own father, Jagdish Chandra (PW8) who also in
material particulars had corroborated the testimony of the prosecutrix
VW - PW6.
The prosecutrix VW – PW6, was not subjected to crossexamination on any of these issues.
Nor was the prosecutrix confronted
with either the statements made by her under Section 161 or Section
164 of the Code of Criminal Prosecution, so as to enable her to explain
discrepancies, if any. Therefore, we find no merit at all, in the
submission advanced by the learned counsel. In the above view of the
matter, we are satisfied that there was substantial material corroborating
the statement of the prosecutrix VW - PW6, for an unequivocal
determination of the guilt of the accused-appellant Jarnail Singh.
22Page 23
25. No other submission besides those dealt with hereinabove, was
advanced at the hands of the learned counsel for the appellant. For the
reasons recorded above, we find no merit in the instant appeal and the
same is accordingly dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
23
Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2010
Jarnail Singh ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The factual position on which the prosecution version is founded,
commences with the passing of information by Savitri Devi (the mother
of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8,
on 26.3.1993, at about 6 am. She informed her husband, that the
prosecutrix VW - PW6 was missing from their residence. In this behalf
it would be pertinent to mention, that on 25.3.1993 at about 10 pm,
Jagdish Chander went to sleep in the “baithak” (drawing room) of their
residence. Savitri Devi, the mother of the prosecutrix VW - PW6, along
with the prosecutrix VW - PW6, and the other children (comprising of
three sons, the prosecutrix VW – PW6 and one other daughter), went to
sleep in the other rooms of the house. Savitri Devi, told her husband,
that she suspected the accused-appellant Jarnail Singh, may be
responsible for having taken away their daughter.
2. Jagdish Chander-PW8, commenced to search for his daughter.
During the course of the aforesaid search, the accused-appellant Jarnail
1Page 2
Singh, who had his residence in the neighbourhood (of Jagdish
Chander-PW8), was also found missing from his residence. The search
for the prosecutrix VW - PW6 by her father, proved futile. It is therefore,
that Jagdish Chander-PW8, made a complaint Exhibit PO on 27.3.1993
to the Sub-Inspector Incharge, Police Post, Jathlana. In his complaint,
he described VW - PW6, as the elder of his two daughters. He gave out
her age as about 16 years. He also alleged, that his daughter VW -
PW6 had gone missing from their residence in the night intervening 25th
and 26th March, 1993. He also alleged, that an amount of Rs.3,000/-
was missing from his house, which he assumed may have been taken
away by his daughter VW - PW6, while leaving the house. In the
complaint Exhibit PO, the needle of suspicion was pointed at the
accused-appellant Jarnail Singh.
3. After the registration of the complaint of Jagdish Chander-PW8,
the prosecutrix VW - PW6 was recovered on 29.3.1983, from the
custody of the accused-appellant Jarnail Singh, from the house of
Shashi Bhan at Raipur in district Haridwar. The accused-appellant
simultaneously came to be arrested, on 29.3.1993.
4. The statement of the prosecutrix VW - PW6 was got recorded
under Section 164 of the Code of Criminal Procedure before O.P.
Verma, Judicial Magistrate First Class, Jagadhri on 6.4.1993.
It is
necessary in the facts and circumstances of this case to extract herein
her short statement recorded under Section 164 of the Code of Criminal
Procedure, which is being reproduced hereunder:
2Page 3
“Stated that on the night of 25.3.1993 at around 11 pm, I went to a
street near my house to answer nature’s call. Accused Jarnail
Singh and his three accomplices were hiding there. When I got
up after answering nature’s call, then they caught hold of me and
inhaled me something by cloth, due to which, I got unconscious.
They took me to some unknown place in U.P. by putting me in
some vehicle. There they took me to a room.
Jarnail Singh, forcibly committed wrong (intercourse) with me. I
slapped on his face, then he put cloth in my mouth. Therefore, I
could not raise noise. Thereafter, everyone committed forcible
intercourse with me, turn by turn. Huge blood came out of my
vagina, and I felt a lot of pain. Thereafter, police caught us and
handed over me to my parents.”
5. On completion of investigation, a challan was presented under
Sections 366, 376 and 120 of the Indian Penal Code. The matter was
committed to the Court of Sessions, Jagadhri, whereupon, it was
marked to the Additional Sessions Judge, Jagadhri. The Additional
Sessions Judge, Jagadhri framed charges on 20.12.1993. The
accused-appellant pleaded not guilty, and claimed trial.
6. In order to bring home the charges levelled against the accusedappellant, the prosecution examined 9 witnesses. Thereafter, the
prosecution evidence was closed.
The statement of the accusedappellant Jarnail Singh, was then recorded under Section 313 of the
Code of Criminal Procedure. He denied the allegations levelled against
him, and pleaded false implication. Despite opportunity having been
afforded to him, the accused-appellant did not lead any evidence, in his
defence.
7. It is necessary to record, that on the culmination of the trial, the
Additional Sessions Judge, Jagadhri arrived at the conclusion, that the
prosecution had been able to bring home the guilt of the accused-
3Page 4
appellant beyond any shadow of reasonable doubt, under Sections 366,
376(g) and 120-B of the Indian Penal Code. The accused-appellant
Jarnail Singh was accordingly held guilty of the charges levelled against
him. The Additional Sessions Judge, Jagadhri gave an opportunity of
hearing to the accused-appellant Jarnail Singh on the question of
sentence. Thereupon, for the offence under Section 376(g) of the Indian
Penal Code the accused-appellant was awarded rigorous imprisonment
for 10 years, he was also required to pay a fine of Rs.200/- (in case of
default in payment of fine, the accused-appellant was to undergo further
rigorous imprisonment for 3 months). For the offence under Section 366
of the Indian Penal Code, the accused-appellant was awarded rigorous
imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in
case of default in payment of fine, the accused-appellant was to undergo
further rigorous imprisonment for 3 months). And for the offence under
Section 120-B of the Indian Penal Code, the accused-appellant was
awarded rigorous imprisonment for 7 years, and was required to pay a
fine of Rs.150/- (in case of default in payment of fine, the accused appellant was to undergo further rigorous imprisonment for 3 months).
The aforesaid sentences were ordered to run concurrently.
8. Dissatisfied with the judgment dated 14.3.1995, rendered by the
trial Court, the accused-appellant Jarnail Singh preferred Criminal
Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at
Chandigarh (hereinafter referred to as, the High Court). The High Court
dismissed the appeal preferred by the accused-appellant on 4.11.2008.
The judgment of conviction dated 14.3.1995 and the order of sentence
4Page 5
dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions
Judge, Jagadhri) were upheld.
9. Dissatisfied with the judgment of the trial Court dated 14.3.1995
and that of the appellate Court dated 4.11.2008, the accused-appellant
Jarnail Singh approached this Court. On 7.7.2010, this Court granted
leave, in the Petition for Special Leave to Appeal (Crl.) no. 7836 of
2009, filed by the accused-appellant. Having traversed the aforesaid
course, the instant criminal appeal has finally been placed before us, for
adjudication.
10. Before dealing with the issues canvassed at the hands of the
learned counsel for the accused-appellant Jarnail Singh, it is considered
expedient to have a bird’s eye view of the relevant prosecution
witnesses. It is, therefore, that we shall endeavour to deal with the
testimony of some of the prosecution witnesses hereunder:
(i) Dr. Kanta Dhankar was produced by the prosecution as
PW1. She had medico-legally examined the prosecutrix
VW - PW6 on 29.3.1993 at 3 pm. According to her
testimony, no blood or seminal stain was visible to the
naked eye, during the course of examination of the
prosecutrix VW - PW6. Pubic hairs were present. There
was no visible injury on the external genitalia or vagina.
The hymen of the prosecutrix VW - PW6 was found
ruptured. Her vagina admitted 2/3 fingers easily. The
clothes of the prosecutrix VW - PW6, a swab taken from
her vagina and her pubic hair, were sent to the forensic
5Page 6
science laboratory for examination, so as to determine
whether there was any semen or blood thereon. Along with
the testimony of Dr. Kanta Dhankar- PW1, it is necessary to
record, that as per the report of the forensic science
laboratory (Exhibit PL), human semen was detected on the
prosecutrix’s “salwar” (female trouser), her underwear, as
also, on her pubic hair. The report of the serologist (Exhibit
PL/1) further revealed medium and small sized blood stains
on the “salwar”. The report of the serologist also disclosed,
that the stains on the “salwar” were of human blood.
(ii) Dr. Satnam Singh-PW2, was the second witness to be
examined by the prosecution. He had medico-legally
examined the accused-appellant Jarnail Singh. Dr. Satnam
Singh-PW2, while deposing before the trial Court affirmed,
that the accused-appellant was capable of sexual
intercourse.
(iii) The prosecution then examined Moti Ram as PW3. Moti
Ram testified, that he was present when the prosecutrix VW
- PW6, was recovered whilst in custody of the accusedappellant, from the house of Shashi Bhan at Raipur, in
district Haridwar. Moti Ram also affirmed the presence of
Om Prakash, Jagmal and Sumer Chand, along with the
police party, at the time of recovery of the prosecutrix VW -
PW6, on 29.3.1993. Moti Ram had identified the
prosecutrix VW - PW6, at the time of her said recovery.
6Page 7
(iv) Satpal was produced by the prosecution as its fourth
witness. Satpal-PW4 was the Headmaster of the
Government High School, Jathlana, i.e. the school which
the prosecutrix VW - PW6, had first attended. Satpal-PW4
proved the certificate Exhibit PG, as having been prepared
on the basis of the school records. As per the certificate,
Exhibit P4, the prosecutrix VW - PW6 was born on
15.5.1977.
(v) The prosecutrix appeared as PW6 before the trial Court.
She affirmed the factual position expressed by her father
Jagdish Chander-PW8 in his complaint dated 27.3.1993
(Exhibit PO). She also reiterated the factual position
expressed by her, in her statement, recorded under Section
164 of the Code of Criminal Procedure, on 6.4.1993. In
sum and substance she asserted, that she had studied upto
class 3 at the Government High School, Jathlana,
whereafter, she started to do household work at home. On
25.3.1993 at about 11 pm, she had gone out of her house to
urinate in the street. The accused-appellant Jarnail Singh
and three other persons had caught hold of her, and had
taken her in a tanker towards Raipur side in Uttar Pradesh.
The accused-appellant Jarnail Singh and his three
accomplices, had then raped her in a small room. She also
testified, that she had been recovered by the police from
Raipur, and at the time of her recovery, Moti Ram-PW3 and
7Page 8
her uncle Omilal (Om Prakash) and Jagmal were present
with the police party. Thereafter, she claims to have been
brought to police post Jathlana, and was got medico-legally
examined by a lady doctor at Civil Hospital, Radaur. Since
the prosecutrix VW - PW6, was not disclosing the entire
factual position, and seemed to be changing the version of
her statement recorded under Section 164 of the Code of
Criminal Procedure, the Public Prosecutor sought
permission to cross-examine her. Consequent upon being
permitted to cross-examine the prosecutrix VW - PW6, she
affirmed, that the accused-appellant had been alluring her
for marriage, with the promise of giving her ornaments and
clothes, and a further commitment to move her to the city,
after their marriage. During these allurements, the
accused-appellant Jarnail Singh used to also impress upon
her, that her parents were poor and would marry her to
some poor person, who would never be able to provide her
such facilities. During her cross-examination, she expressly
denied the suggestion, that she herself had allured the
accused-appellant Jarnail Singh, to take her away, in order
to marry him.
(vi) O.P. Verma, Judicial Magistrate First Class, Jagadhri,
appeared as PW7. He proved the statement, recorded
before him under Section 164 of the Code of Criminal
Procedure, by the prosecutrix VW - PW6, on 6.4.1993.
8Page 9
(vii) Jagdish Chander-PW8, the father of the prosecutrix VW -
PW6 during the course of his deposition, affirmed the
factual position depicted in his complaint dated 27.3.1993
(Exhibit PO). He also corroborated the testimony of his
daughter (i.e., the prosecutrix VW - PW6) in all material
particulars.
The conviction of the accused-appellant at the hands of the trial Court
(on 14.3.1995) and by the High Court (on 4.11.2008) was primarily
based on the statements of the prosecution witnesses summarised
above.
11. We shall now endeavour to deal with the submissions advanced
at the hands of the learned counsel for the accused-appellant.
12. The first and foremost contention advanced at the hands of the
learned counsel for the accused-appellant was, that the prosecutrix VW
- PW6, had voluntarily and with her free consent, accompanied the
accused-appellant Jarnail Singh. It was contended, that in actuality, it
was the prosecutrix VW - PW6 who had allured the accused-appellant
to marry her, and had persuaded him to take her away during the night
intervening 25th and 26th March, 1993. In order to substantiate the
instant submission, it was pointed out that the prosecutrix VW - PW6
has remained with the accused Jarnail Singh for four days without any
protestation. During the course of the aforesaid four days in the
company of the accused-appellant Jarnail Singh, they had travelled from
one place to another, and had finally reached the house of Shashi Bhan
at Raipur (from where the police recovered her on 29.3.1993). It was
9Page 10
submitted, that there was ample opportunity with her, to raise an alarm
during the aforestated four days. The fact that she did not raise any
alarm shows, that she had voluntarily remained with the accusedappellant Jarnail Singh. Therefore, sexual intercourse with the accusedappellant Jarnail Singh, according to learned counsel, was also
consensual. Thus viewed, it was asserted, that the accused-appellant
Jarnail Singh could not be accused of either having kidnapped her,
and/or having committed rape on her.
13. On the same issue, learned counsel for the accused-appellant
also invited our attention to the fact, that in the complaint lodged by
Jagdish Chandra (PW8), dated 27.3.1993, he had expressly mentioned
that the prosecutrix had taken away a sum of Rs.3,000/-. In this behalf it
was submitted that the instant act of the prosecutrix exhibits that she
had taken money from her father’s house to make good her escape in
the company of the accused-appellant Jarnail Singh. It is sought to be
inferred from the above, that the prosecutrix VW - PW6 had gone with
the accused-appellant Jarnail Singh, of her own free will. And, that she
had sexual intercourse with him consensually. For the reasons
indicated hereinabove, it was the vehement contention of the learned
counsel for the accused-appellant Jarnail Singh, that the courts below
had seriously erred in recording the appellant’s conviction under
Sections 366, 376 and 120-B of the Indian Penal Code.
14. We have given our thoughtful consideration to the first contention
advanced at the hands of the learned counsel for the accused-appellant.
We shall venture to determine the factual aspects taken into
10Page 11
consideration by the learned counsel for the appellant, to substantiate
the alleged free will and consent of the prosecutrix VW - PW6
individually ,so as to effectively determine the veracity of the
submissions noticed above.
15. In so far as the issue of having gone with the accused-appellant
Jarnail Singh of her own free will, and of having had sexual intercourse
with him consensually, it is necessary only to examine the uncontested
deposition of the prosecutrix VW - PW6. In this behalf, it may be
pointed out, that in her statement recorded under Section 164 of the
Code of Criminal Procedure before the Judicial Magistrate, First Class,
Jagadhari on 6.4.1993, the prosecutrix VW – PW6 had expressly
asserted, that she was forcibly taken away on 25.3.1993, when she had
gone out of her house to urinate in the street, by Jarnail Singh and his
three accomplices. She had clearly and categorically testified, that all
the four had caught hold of her. They had made her inhale something,
which rendered her unconscious. She had further stated, that the
accused-appellant Jarnail Singh and his accomplices, had then taken
her to some unknown place in Uttar Pradesh in a vehicle where Jarnail
Singh forcibly attempted to commit intercourse with her. At that
juncture, she had slapped Jarnail Singh on his face, but in order to
subjugate her, he had put a cloth in her mouth to prevent her from
raising an alarm. Thereafter, the accused-appellant Jarnail Singh and
his accomplices had committed forcible intercourse with her, one after
the other. In her statement before the Trial Court, where she appeared
as PW6, she had reiterated clearly the position of having been taken
11Page 12
away by the accused-appellant Jarnail Singh, and his three
accomplices. She affirmed, that she was taken away in a tanker to Uttar
Pradesh and then all the accused had committed rape on her in a small
room. On the aforestated aspect of the matter, she was not subjected t
cross-examination at the behest of the accused. Only a suggestion was
put to her, that she had persuaded the accused-appellant Jarnail Singh
to take her away, in order to perform marriage with her, and for the said
purpose had taken away cash, clothes and jewellery from her own
residence. The aforestated suggestion was denied by the prosecutrix
VW - PW6. Keeping in view the statement of the prosecutrix VW - PW6
under Section 164 of the code of Criminal procedure before the Judicial
Magistrate, First Class, Jagadhri, as also, the statement made by her
while appearing before the trial court, and the manner in which she was
subjected to cross-examination, there is no room for any doubt, that the
prosecutrix was forcefully taken away, and that, she was subjected to
rape at the hands of the accused-appellant Jarnail Singh and his three
accomplices. It may still have been understandable, if the case had
been, that she had consensual sex with the accused-appellant alone.
But consensual sex with four boys at the same time, is just not
comprehensible.
Since the fact, that the accused-appellate Jarnail
Singh and the prosecutrix VW – PW6 had eloped together is not
disputed. And furthermore, since the accused-appellant having had
sexual intercourse with the prosecutrix is also the disputed. It is just not
possible to accept the proposition canvassed on behalf of the accused appellant. We, therefore, find no merit in the instant submission.
12Page 13
16. The contention advanced at the hands of the learned counsel for
the accused-appellant Jarnail Singh, that while leaving her house on
25.3.1993, the prosecutrix VW – PW6, had taken away a sum of
Rs.3,000/-, needs a holistic examination. Whilst it is true that in the
complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW -
PW6, had categorically mentioned that a sum of Rs.3,000/- was missing
from his residence, and the said fact was duly mentioned in his
complaint to the police dated 27.3.1993, yet he had not accuse the
prosecutrix VW - PW6 for having taken it away. The instant aspect, in
our considered view pales into insignificance, on account of the
statement made by Jagdish Chandra (PW8) before the Trial Court.
During the course of his deposition before the Trial Court, he had
asserted, that he had mentioned that a sum of Rs.3,000/- was missing
from his residence, but his wife Savitri Devi had found the aforesaid
money from the residence itself, a few days later. Accordingly, the
assertion made by the learned counsel representing the accusedappellant to the effect that the prosecutrix VW - PW6 had taken away a
sum of Rs.3,000/-, when she left the house of her father on 25.3.1993,
cannot be stated to have been duly proved. Besides the aforesaid, it is
apparent from the cross-examination of the prosecutrix VW - PW6, that
a suggestion was put to her that besides cash, she had taken away
clothes and jewellery at the time of leaving her father’s house on
25.3.1993. The prosecutrix VW - PW6 expressly denied the suggestion.
There is no material on the record of the case to substantiate the said
allegation. Therefore, it is not possible for us to accept the accusation
13Page 14
levelled by the accused-appellant Jarnail Singh against the prosecutrix
VW - PW6, either on the issue of having taken away a sum of
Rs.3,000/- while leaving her house, or that she left her house on
25.3.1993 along with clothes and jewellery. Accordingly, the inference
drawn by assuming the said factual position as true, simply does not
arise.
17. The first contention advanced at the hands of the learned counsel
for the appellant can be conveniently determined from another
perspective. The High Court in the impugned order arrived at the
conclusion that the prosecutrix VW - PW6 was a minor at the time of
occurrence on 25.3.1993, and had concluded, that even if she had
accompanied the accused-appellant Jarnail Singh on 25.3.1993 of her
own free consent, and even if she had had sexual intercourse with the
accused consensually, the same would be immaterial. For, consent of a
minor is inconsequential.
18. During the course of hearing of the present appeal, learned
counsel for the appellant vehemently contested the determination of the
High Court in the impugned judgment, wherein it had concluded, that the
prosecutrix VW - PW6 was a minor. Insofar as the instant aspect of the
matter is concerned, it was pointed out, that the sexual organs of the
prosecutrix VW - PW6 were found to be fully developed by Dr. Kanta
Dhankar- PW1. Her hymen was found to be ruptured. It was also seen
during the medico-legal examination of the prosecutrix VW - PW6, that
the vagina admitted two/three fingers easily. Learned counsel for the
appellant-accused Jarnail Singh, also invited our attention to the cross-
14Page 15
examination of Dr. Kanta Dhankar-(PW1), wherein she acknowledged
having mentioned the age of the prosecutrix VW - PW6 as 15 years, on
the basis of the statement made by the prosecutrix to her. Dr. Kanta
Dhankar-PW1 had also acknowledged, that she had not got the
ossification test conducted on the prosecutrix VW - PW6 to scientifically
determine the age of the prosecutrix. Based on the aforesaid, it was
averred that there was no concrete material on the record of the case,
on the basis of which it could have been concluded by the High Court,
that the prosecutrix was a minor on the date of occurrence.
19. In order to support his contention, that the prosecutrix was not a
minor at the time of occurrence, learned counsel for the appellant placed
reliance on the judgment rendered in Sunil vs. State of Haryana, AIR
2010 SC 392. Ordinarily, we would have extracted the observations on
which reliance was placed, but for reasons that would emerge from our
conclusion, we consider it inappropriate to do so.
20. On the issue of determination of age of a minor, one only needs to
make a reference to Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to as the 2007
Rules). The aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of Children) Act,
2000. Rule 12 referred to hereinabove reads as under :
“12. Procedure to be followed in determination of Age.― (1) In
every case concerning a child or a juvenile in conflict with law, the
court or the Board or as the case may be the Committee referred
to in rule 19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law within a period of
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thirty days from the date of making of the application for that
purpose.
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child
or as the case may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or documents, if
available, and send him to the observation home or in jail.
(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 –
(a) (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.
(4) If the age of a juvenile or child or the juvenile in conflict with
law is found to be below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and these rules
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and a copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the Act
and these rules, no further inquiry shall be conducted by the court
or the Board after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed off cases, where the status of juvenility has not been
determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under
the Act for passing appropriate order in the interest of the
juvenile in conflict with law.”
Even though Rule 12 is strictly applicable only to determine the age of a
child in conflict with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even for a child who
is a victim of crime. For, in our view, there is hardly any difference in so
far as the issue of minority is concerned, between a child in conflict with
law, and a child who is a victim of crime. Therefore, in our considered
opinion, it would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW-PW6. The manner of
determining age conclusively, has been expressed in sub-rule (3) of
Rule 12 extracted above. Under the aforesaid provision, the age of a
child is ascertained, by adopting the first available basis, out of a
number of options postulated in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a subsequent clause. The
highest rated option available, would conclusively determine the age of
a minor. In the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated option. In case,
the said certificate is available, no other evidence can be relied upon.
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Only in the absence of the said certificate, Rule 12(3), envisages
consideration of the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and conclusive, and
no other material is to be relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to be taken
into consideration, for determining the age of the child concerned, as the
said certificate would conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the concerned child, on the basis of medical
opinion.
21. Following the scheme of Rule 12 of the 2007 Rules, it is apparent
that the age of the prosecutrix VW - PW6 could not be determined on
the basis of the matriculation (or equivalent) certificate as she had
herself deposed, that she had studied upto class 3 only, and thereafter,
had left her school and had started to do household work. The
prosecution in the facts and circumstances of this case, had
endeavoured to establish the age of the prosecutrix VW-PW6, on the
next available basis, in the sequence of options expressed in Rule 12(3)
of the 2007 Rules. The prosecution produced Satpal (PW4), to prove
the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head
Master of the Government High School, Jathlana, where the prosecutrix
VW - PW6 had studied upto class 3. Satpal (PW4) had proved the
18Page 19
certificate Exhibit-PG, as having been made on the basis of the school
records indicating, that the prosecutrix VW - PW6, was born on
15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007
Rules, it is not permissible to determine age in any other manner, and
certainly not on the basis of an option mentioned in a subsequent
clause. We are therefore of the view, that the High Court was fully
justified in relying on the aforesaid basis for establishing the age of the
prosecutrix VW – PW6. It would also be relevant to mention, that under
the scheme of Rule 12 of the 2007 Rules, it would have been improper
for the High Court to rely on any other material including the ossification
test, for determining the age of the prosecutrix VW-PW6. The
deposition of Satpal-PW4 has not been contested. Therefore, the date
of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as
15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix
VW-PW6, was less than 15 years old on the date of occurrence, i.e., on
25.3.1993. In the said view of the matter, there is no room for any doubt
that the prosecutrix VW - PW6 was a minor on the date of occurrence.
Accordingly, we hereby endorse the conclusions recorded by the High
Court, that even if the prosecutrix VW-PW6 had accompanied the
accused-appellant Jarnail Singh of her own free will, and had had
consensual sex with him, the same would have been clearly
inconsequential, as she was a minor.
22. Since the judgment relied upon by the learned counsel for the
appellant is distinguishable on facts. And since the judgment relied
upon, had not made any reference to the 2007 Rules, we are of the view
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that the same would not be relevant for the purposes of determining the
age of the prosecutrix VW - PW6, specially in the background of the
evidence led by the prosecution through Satpal (PW4) to establish.
23. The next contention advanced at the hands of the learned counsel
for the accused-appellant Jarnail Singh was, that the oral testimony of
the prosecutrix VW - PW6 ought not to be accepted as sufficient to
return a finding of guilt against the accused-appellant Jarnail Singh.
Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is
pointed that there were a number of discrepancies and contradictions
therein. It was submitted, that such discrepancies can be seen on a
comparison of her deposition before the trial Court, with the statement of
the prosecutrix recorded under Section 164 of the Code of Criminal
Procedure on 6.4.1993, as also, the statement of the prosecutrix
recorded by the Investigating Officer under Section 161 of the Code of
Criminal Procedure on 29.3.1993.
24. We have given our thoughtful consideration to the above noted
submission, advanced at the hands of the learned counsel for the
appellant. We, however, find no merit therein. It is not as if the
prosecution version is entirely based on the statement of the prosecutrix
VW - PW6. It would be relevant to mention, that her recovery from the
custody of the accused-appellant Jarnail Singh from the house of Shashi
Bhan, at Raipur, is sought to be established from the statement of Moti
Ram-PW3. There can therefore be no room for any doubt, that after she
was found missing from her father’s residence on 25.3.1993, and after
her father Jagdish Chandra-PW8 had made a complaint to the police on
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27.3.1993, she was recovered from the custody of the accusedappellant Jarnail Singh.
Thereafter, the prosecutrix VW - PW6 was
subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on
29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her
independent testimony, affirmed that she had been subjected to sexual
intercourse, inasmuch as her hymen was found ruptured. Even though
the visual examination of the prosecutrix VW – PW6, during the course
of her medico-legal examination did not reveal the presence of semen or
blood, yet the report of the forensic science laboratory (Exhibit PL) and
of the Serologist (Exhibit PL/1) clearly establish the presence of semen
on her salwar, underwear and pubic hair. The serologist’s report also
disclose, medium and small blood stains on her “salwar”. In her own
deposition, she had mentioned that, when she was raped by the
accused-appellant Jarnail Singh and his accomplices, bleeding had
taken place and she had felt pain, and her clothes were stained with
blood. Her deposition stands scientifically substantiated by Exhibits PL
and PL/1. The suggestion put to the prosecutrix VW – PW6 at the
behest of the accused-appellant Jarnail Singh, during the course of her
cross-examination, that she had accompanied the accused-appellant
Jarnail Singh, of her own free will and had had sexual intercourse with
him consensually, leaves no room for any doubt, that she was in his
company, and that, he had had sexual intercourse with her. The
assertion that the prosecutrix VW – PW6 had accompanied the
accused-appellant Jarnail Singh, and had had sexual intercourse with
him consensually is completely ruled out, because as per the
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substantiated prosecution version, the prosecutrix VW - PW6 was not
taken away by the accused-appellant Jarnail Singh alone, but also, by
his three accomplices. All the four of them had similarly violated her
person.
Additionally, in her statement under Section 164 of the Code of
Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the
first instance, after having caught hold of her, the accused had made her
inhale something from a cloth which had made her unconscious.
Thereafter, when the accused-appellant Jarnail Singh attempted to
commit intercourse with her, she had slapped him. He had then put a
cloth in her mouth, to stop her from raising an alarm. Thereafter, each
one of the accomplices had committed forcible intercourse with her in
turns.
The factum of commission of forcible intercourse by the accusedappellant, as also, his accomplices was reiterated by her during her
testimony before the Trial Court as PW6. Besides the aforesaid, there
is a statement of her own father, Jagdish Chandra (PW8) who also in
material particulars had corroborated the testimony of the prosecutrix
VW - PW6.
The prosecutrix VW – PW6, was not subjected to crossexamination on any of these issues.
Nor was the prosecutrix confronted
with either the statements made by her under Section 161 or Section
164 of the Code of Criminal Prosecution, so as to enable her to explain
discrepancies, if any. Therefore, we find no merit at all, in the
submission advanced by the learned counsel. In the above view of the
matter, we are satisfied that there was substantial material corroborating
the statement of the prosecutrix VW - PW6, for an unequivocal
determination of the guilt of the accused-appellant Jarnail Singh.
22Page 23
25. No other submission besides those dealt with hereinabove, was
advanced at the hands of the learned counsel for the appellant. For the
reasons recorded above, we find no merit in the instant appeal and the
same is accordingly dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
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