STATE OF M.P. Vs. ANOOP SINGH

Tags Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 442 of 2010, Judgment Date: Jul 03, 2015

With respect to this finding of the High Court, we are of the  opinion  that
the High Court should have relied firstly on  the  documents  as  stipulated
under Rule 12(3)(b) and only in the  absence,  the  medical  opinion  should
have been sought. We find that the Trial Court  has  also  dealt  with  this
aspect of the ossification test. The Trial Court noted that  the  respondent
had cited Lakhan Lal Vs. State of M.P.,  2004  Cri.L.J.  3962,  wherein  the
High Court of Madhya Pradesh said that where the doctor having examined  the
prosecutrix and found her to be below 18½ years, then keeping  in  mind  the
variation of  two years, the accused should be given the benefit  of  doubt.
Thereafter, the Trial Court rightly  held  that  in  the  present  case  the
ossification test is not the sole criteria for determination of the date  of
birth  of  the  prosecutrix  as  her  certificate  of  birth  and  also  the
certificate of her medical examination had been enclosed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 442 OF 2010

State of Madhya Pradesh … Appellant
:Versus:
Anoop Singh … Respondent

J U D G M E N T
Pinaki Chandra Ghose

1. The present Criminal Appeal has been preferred against the judgment
and order dated 10.07.2008 passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.924 of 2006, whereby the High Court set
aside the judgment of conviction and order of sentence passed by the
learned Trial Court and acquitted the accused from all the charges levelled
against him.

2. The facts of the present matter are that on 03.01.2003, at about
10:30 A.M. the prosecutrix was going to school along with her sister. On
realizing that she had left behind her practical note book, she returned
back and after taking the said note book she once again headed towards the
school. When she reached near Tar Badi (wire fencing) near Hawai Patti,
there was an Ambassador car standing there and as alleged, the accused
respondent came out of the car, pulled the prosecutrix inside the car and
forced her to smell something, as a result of which the prosecutrix became
unconscious. As alleged by the prosecution, the prosecutrix was taken to
some unknown place thereafter.

3. On regaining consciousness, the prosecutrix felt pain in her private
parts. On the same day, she was admitted in the District Hospital, Satna
in an unconscious condition and information about the incident was given to
Laxmikant Sharma (P.W.8), the uncle of the prosecutrix. On 10.01.2003, the
prosecutrix was discharged from the Hospital and sent back to her home
where she narrated the incident and thereafter an F.I.R was lodged. During
the course of investigation, the prosecutrix was sent for medical
examination and her clothes were seized and slides were prepared. After
receipt of the medical report, F.I.R was registered and site map of the
spot was prepared. The Investigating Officer seized various articles which
included the prosecutrix’s birth certificate and certificate of the Middle
School Examination, 2001. Along with that the relevant page (page No. 20)
of the register of the U.S.A Hotel was also seized. After due
investigation a charge-sheet was filed against the respondent for offences
under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (“I.P.C.”)
and the statements of the prosecution witnesses were recorded.

4. On 27.03.2003, the Judicial Magistrate, First Class Satna registered
the Criminal Case No.116/2003 and passed the committal order. Accordingly,
the case was transferred and was received by the Upper District Sessions
Judge-III, Satna for trial.

5. The IIIrd Additional Sessions Judge, Satna, by his order dated
24.04.2006 passed in Special Case No.123/2003, convicted the accused under
Sections 363, 366 and 376 of I.P.C. and held that all the offences against
the respondent were proved beyond reasonable doubt. The respondent was
awarded 7 years’ rigorous imprisonment and fine of Rs.500/- for the crime
under Section 363 I.P.C., 10 years’ rigorous imprisonment and fine of
Rs.1000/- for the crime under Section 366 I.P.C., and 10 years’ rigorous
imprisonment and fine of Rs.1000/- for the crime under Section 376 I.P.C.
with default clauses. All the substantive sentences were directed to run
concurrently.

6. Aggrieved by the aforesaid judgment and order passed by the IIIrd
Additional Sessions Judge, Satna, the respondent preferred an appeal under
Section 374(2) of Cr.P.C. before the High Court of Madhya Pradesh at
Jabalpur, which was numbered as Criminal Appeal No.924 of 2006. The learned
Single Judge of the High Court, by impugned judgment and order dated
10.07.2008, set aside the judgment and order of conviction passed by the
Trial Court against the respondent. The High Court ruled that the decision
of the Trial Court was not sustainable solely on the ground that the
prosecution had failed to prove the fact that the girl was less than 16
years of age at the time of the incident. The reasons that weighed heavily
with the ruling of the High Court were that, either the public prosecutor
or P.W.7 Pramod Kumar Sharma (father of the prosecutrix) tried to file Ext.
P/5 which was not part of the charge-sheet. Such type of evidence could not
be created by any person except the Investigation Officer. It was for the
prosecution to show that a particular document was taken on record during
investigation but could not be filed. The prosecution could not create any
new evidence which was not part of the investigation. Ext. P/5 and Ext. P/6
have variation in the date of birth of the prosecutrix. In certificate
Ext.P/5 the date of birth was disclosed as 29.8.1987, whereas in
certificate Ext.P/6 it has been disclosed as 27.8.1987. The High Court
found this sufficient to disbelieve that the prosecutrix was below 16 years
of age at the time of the incident. The High Court relied on the statement
of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the
basis of the ossification test, came to the conclusion that the age of the
prosecutrix was more than 15 years but less than 18 years. Considering this
the High Court presumed that the girl was more than 18 years of age at the
time of the incident. The last ground taken by the High Court was that the
girl was a consenting party and was more than 18 years of age at the time
of the incident and thus, no offence against the accused has been proved.

7. We have heard the learned counsel appearing for the parties.

8. Before us, learned counsel for the State of Madhya Pradesh has raised
the contention that the High Court gave undue importance to the difference
of two days in the date of birth of the prosecutrix as per the birth
certificate and the certificate of the Middle School Examination 2001, and
erroneously held that this difference is sufficient to disbelieve the age
of the prosecutrix. Further, the High Court ought to have appreciated the
law laid down by this Court that regarding the determination of age, the
birth certificate is the determining evidence.

9. The learned counsel appearing for the respondent, on the other hand,
argued that the prosecution story is concocted as her evidence is not
corroborated by the evidence of P.W.9 Jagdish Gupta, the Manager of the
Hotel. Further, the respondent states that the prosecutrix did not give any
resistance and there were no injury marks, which make it clear that she was
a consenting party. In addition, the learned counsel argued that the
prosecution did not explain as to why the Investigating Officer did not
seize the birth certificate during the course of investigation.

10. We believe that the present case involves only one issue for this
Court to be considered, which is regarding the determination of the age of
the prosecutrix.

11. In the present case, the central question is whether the prosecutrix
was below 16 years of age at the time of the incident. The prosecution in
support of their case adduced two certificates, which were the birth
certificate and the middle school certificate. The date of birth of the
prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext.
P/5), while the date of birth is shown as 27.08.1987 in the Middle School
Examination Certificate. There is a difference of just two days in the
dates mentioned in the abovementioned Exhibits. The Trial Court has rightly
observed that the birth certificate Ext. P/5 clearly shows that the
registration regarding the birth was made on 30.10.1987 and keeping in view
the fact that registration was made within 2 months of the birth, it could
not be guessed that the prosecutrix was shown as under-aged in view of the
possibility of the incident in question. We are of the view that the
discrepancy of two days in the two documents adduced by the prosecution is
immaterial and the High Court was wrong in presuming that the documents
could not be relied upon in determining the age of the prosecutrix.

12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of
Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, is
applicable in determining the age of the victim of rape. Rule 12(3) reads
as under:

“Rule 12(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 –

(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.”

13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske
(supra) as under:

“Under rule 12(3)(b), it is specifically provided that only in the absence
of alternative methods described under Rule 12(3)(a)(i) to (iii), the
medical opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of the juvenile in our considered
opinion, the same yardstick can be rightly followed by the courts for the
purpose of the ascertaining the age of a victim as well.”
(Emphasis supplied)
This Court therefore relied on the certificates issued by the school in
determining the age of the prosecutrix. In paragraph 13, this Court
observed:
“In light of our above reasoning, in the case on hand, there were
certificates issued by the school in which the proseuctrix did her V
standard and in the school leaving certificate issued by the school under
Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this
document was also proved by PW 11. Apart from that the transfer certificate
as well as the admission form maintained by the Primary School, Latur,
where the prosecutrix had her initial education, also confirmed the date of
birth as 20.05.1990. the reliance placed upon the said evidence by the
Courts below to arrive at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at the time of occurrence was
perfectly justified and we do not find any grounds to interfere with the
same.”

14. In the present case, we have before us two documents which support
the case of the prosecutrix that she was below 16 years of age at the time
the incident took place. These documents can be used for ascertaining the
age of the prosecutrix as per Rule 12(3)(b). The difference of two days in
the dates, in our considered view, is immaterial and just on this minor
discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be
discarded. Therefore, the Trial Court was correct in relying on the
documents.

15. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf
who took the X-ray of the prosecutrix and on the basis of the ossification
test, came to the conclusion that the age of the prosecutrix was more than
15 years but less than 18 years. Considering this the High Court presumed
that the girl was more than 18 years of age at the time of the incident.
With respect to this finding of the High Court, we are of the opinion that
the High Court should have relied firstly on the documents as stipulated
under Rule 12(3)(b) and only in the absence, the medical opinion should
have been sought. We find that the Trial Court has also dealt with this
aspect of the ossification test. The Trial Court noted that the respondent
had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the
High Court of Madhya Pradesh said that where the doctor having examined the
prosecutrix and found her to be below 18½ years, then keeping in mind the
variation of two years, the accused should be given the benefit of doubt.
Thereafter, the Trial Court rightly held that in the present case the
ossification test is not the sole criteria for determination of the date of
birth of the prosecutrix as her certificate of birth and also the
certificate of her medical examination had been enclosed.

16. Thus, keeping in view the medical examination reports, the statements
of the prosecution witnesses which inspire confidence and the certificates
proving the age of the prosecutrix to be below 16 years of age on the date
of the incident, we set aside the impugned judgment passed by the High
Court and uphold the judgment and order dated 24.04.2006 passed by the
IIIrd Additional Sessions Judge, Satna in Special Case No.123/2003.

17. Accordingly, this appeal is allowed. We direct that the respondent
shall be taken into custody forthwith to serve out the sentence.

……………………………..J
(Pinaki Chandra Ghose)

……………………………..
J (Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1C COURT NO.11 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 442/2010

STATE OF M.P. Appellant(s)

VERSUS

ANOOP SINGH Respondent(s)

Date : 03/07/2015 This appeal was called on for pronouncement of
judgment today.

For Appellant(s) Mr. Mishra Saurabh, AOR

For Respondent(s) Mr. M.P. Singh, Adv.
Mr. Rajeev Kumar Bansal, AOR

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed and the respondent shall be taken into custody
forthwith to serve out the sentence in terms of the signed reportable
judgment.

(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)

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