Page 1

1

Reportable IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 1962 OF 2010

KAILASH @ TANTI BANJARA                           Appellant (s)

                VERSUS

STATE OF MADHYA PRADESH                           Respondent(s)

O R D E R

This appeal is directed against the impugned  

judgment of the High Court of Madhya Pradesh at Jabalpur  

in Criminal Appeal No.1395/1994 by which the conviction  

and sentence imposed on the appellant under Section 376  

IPC  to  undergo  rigorous  imprisonment  for  seven  years  

apart from a fine amount of Rs.500/- and in default of  

payment  of  fine,  to  under  one  months'  additional  

rigorous imprisonment was confirmed.

2. According to the prosecution on 11.4.1991 the  

victim P.W.4, an agricultural labourer  was in the field  

of  Moti  Singh  Darbar  and  loading  the  wheat  on  the  

vehicle.  After the field work, she was proceeding to  

her village which was 1½ miles away.  The appellant was  

following P.W.4 who was proceeding alongwith minor girl  

Manju, aged 10 years in his motorcycle.  On the way,  

P.W.4 suffered thorn bite in her foot and while she was  

removing the thorn, Manju left her and proceeded towards  

her home.  Taking advantage of the lonliness of P.W.4,

Page 2

2

the appellant stated to have grabbed her hand against  

her will, took her near the bushes at Kauve near the  

drain and had forcible sexual intercourse for about ½ an  

hour.  According to the victim P.W.4, sexual intercourse  

was  carried  out  by  the  appellant  near  the  drain  and  

again after taking her to his house under the threat of  

knife point and performed the same evil act in the house  

also.  Subsequently at about 3.00 in the midnight, he  

took  her  in  his  motorcycle  and  dropped  near  the  

community well and after threatening her at knife point  

that if she reveal any of the act committed by him, she  

would kill her, left that place.  P.W.4 felt humiliated  

and having ashamed of loss of modesty, jumped into the  

community well while the appellant stated to have fled  

away  from  that  place.   Though  P.W.4  jumped  into  the  

well, according to her, she was able to grab the rope  

which  was  present  inside  the  well  and  she  cried  for  

help.   On  hearing  her  distress  call,  the  villagers  

stated to have turned up and rescued her.  Thereafter,  

her father and grand father stated to have reached that  

place whereafter she was taken to her house and after  

change  of  cloth  she  went  to  the  Police  Station  and  

lodged the FIR.

3. The appellant was charged for the offence under  

Section  376  read  with  Section  506  B,IPC.   The  trial  

Court  after  a  detailed  consideration  of  the  evidence  

placed before it concluded that the FSL report, Exhibit

Page 3

3

P.14 established that in the peticoat of P.W.4, in her  

private parts as well as the vagina, human sperms was  

found  present  and  therefore  the  plea  of  ignorance  

pleaded by the appellant was not true.  The trial court  

however,  concluded  that  the  intercourse  was  with  the  

consent  of  P.W.4.   Based  on  the  expert  evidence  and  

applying the principles for ascertaining the age of the  

victim, the trial court has concluded as under:

“14. For ascertaining the age the position of  

gums,  private  part  and  under  arms  are  of  

great help.  According to the statement of  

Dr. Smt. Saluja (P.W.2) 7 teeth in the right  

and 6 teeth in the left total 13 teeth were  

found in the upper jaw.  In the lower jaw 7-

7 teeth in the right and left sides were  

found.  Therefore, total 14 teeth were found  

in  the  lower  jaw.   It  is  clear  from  the  

position of the teeth that third molar in  

the right upper jaw did come and second and  

third molar in the left side was not present  

and like this in the lower jaw third molar  

was not present in the right and left side.  

It is clear that in this situation that in  

abssence of third molar in the jaw age was  

below 17 years.  Therefore, according to the  

chart given in the Modi's book at page No.29  

according to the situation of the teeth in  

the jaw the age of the girl must be 14 to 15  

years.

4. The conclusion of the trial court was that the  

victim P.W.4 was aged 14 years on the date of occurrence

Page 4

4

and  since  sexual  intercourse  carried  out  by  the  

appellant though with the consent fell within the four  

corners  of  the  offence  falling  under  Section  376  and  

convicted  the  appellant  for  the  said  act.   The  High  

Court  having  examined  the  case  of  the  appellant,  

considered the whole gamut of the evidence placed before  

the trial Court, as well as, the conclusion reached by  

the  trial  court  held  that  there  was  no  scope  to  

interfere with the conviction and sentence imposed on  

the appellant.

5. Heard Mr. Rajeev Kumar Bansal, learned counsel  

for the appellant and Ms. Vibha Dutta Makhija, learned  

counsel for the State.  Learned counsel appearing for  

the  appellant  strenuously  contented  that  the  medical  

evidence placed before the court below did show that the  

victim was beyond 16 years of age, that even going by  

her own evidence it came out that there were serious  

contradictions  as  to  the  nature  of  offence  alleged  

against  the  appellant;  that  the  trial  court  has  held  

that sexual intercourse was performed with full consent  

of the victim and therefore sentence imposed was liable  

to be interfered with.  As against the above submission,  

learned  counsel  for  the  State  by  referring  to  the  

decision of this Court in  Vijay @ Chinee vs. State of  

Madhya Pradesh (2010) 8 SCC 191 in para 27, submitted  

that the trial court having applied the principles laid  

down therein based on the FSL report for the purpose of

Page 5

5

ascertaining the age of the victim having concluded that  

she was 14 years of age on the date of the occurrence,  

in the absence of any other reliable contra evidence to  

dislodge  the  said  conclusion  of  the  trial  court  as  

affirmed  by the High Court, no interference is called  

for.

6. Having heard learned counsel for the appellant  

as well as for the respondent, we are also convinced  

that  the  submission  of  learned  counsel  for  the  State  

deserves to be accepted.  The ascertainment of age has  

been done by the trial court concerned, by applying the  

various principles laid down by this Court.   In this  

context, we refer to the decision of this Court in Vijay  

alias  Chinee,(supra)  and  in  which  one  of  us  (Hon'ble  

Chauhan, J.) was a party.  We have held in paragraphs 27  

to 30 as under:

“  Determination of Age   

27.  As  per  Modi’s  Medical  Jurisprudence  and  Toxicology, 23rd Edn., the age of a person can  be  determined  by  examining  the  teeth  (Dental  Age), Height, Weight, General appearance (minor  signs)  i.e.  secondary  sex  characters,  ossification of bones and producing the birth  and  death/school  registers  etc.  However,  for  determining  the  controversy  involved  in  the  present case, only a few of them are relevant.

Teeth- (Dental – Age)

28.  So  far  as  permanent  teeth  are  concerned,  eruption  generally  takes  place  between  6-8  years. The following table shows the average age  of eruption of the permanent teeth :-

Page 6

6

Central incisors - 6th to 8th year Lateral incisors - 7th to 9th year Canines - 11th to 12th year Second Molars - 12th to 14th year Third Molars or Wisdom Teeth - 17th to 25th year In total, there are 32 teeth on full eruption of permanent teeth.

Secondary Sex Characters

29.  The  growth  of  hair  appears  first  on  the  pubis and then in the axillae (armpits). In the  adolescent stage, the development of the pubic  hair  in  both  sexes  follows  the  following  stages :-

a) One of the first signs of the beginning of  puberty is chiefly on the base of penis or along  labia,  when  there  are  few  long  slightly  pigmented and curled or straight downy hair;

b) The hair is coarser, darker and more curled, and spread sparsely over the junction of pubis;

c)  More  or  less  like  an  adult,  but  only  a  smaller area is covered, no hair on the medial  surface of thighs;

30. The  development  of  the  breasts  in  girls  commences from 13 to 14 years of age; however,  it is liable to be affected by loose habits and  social  environments.  During  adolescence,  the  hormone  flux  acts  and  the  breasts  develop  through the following stages:

i) Breasts and papilla are elevated as a small mound, and there is enlargement of areolar diameter.

ii) More elevation and enlargement of breast and  areola, but their contours are not separate.

iii) Areola and papilla project over the level  of the breast.

iv) Adult stage – only the papilla projects and the areola merges with the general contour of  the breast.

In this case, it will be worthwhile to refer to the

Page 7

7

version  of  P.W.2  Dr.  Smt.  Jasbit  Kaur  Saluja,  who  

examined the victim P.W.4 and in her evidence has stated  

the  physical  features  of  the  victim  and  observed  as  

under:

“(3) Following was the condition of the  

girl observed on examination:-

Her  height  –  5”,  weight  –  43  Kgs.,  

normal build, 13 teeth in the upper jaw  

and 14 in the lower jaw present, hair in  

armpit  had  not  grown,  breast  was  

development,  slight  pubic  hair  were  

noticed.”

Ultimately, she has opined in paragraph 14 and 17 that  

the victim appears to be 14 to 16 years.  The High Court  

in  paragraph  9  again  considered  the  said  aspect  of  

evidence of P.W.2 and noted as under:

“9. Accordingly, the margin or error could be ± 6  months.  This apart, the radiological age, being  

probably, has to be verified in the face of age-

related other evidence on record (State of H.P.  

V.  Mange  Ram  AIR  2000  SC  2798  referred  to).  

Viewing from this angle, the following physical  

features  described  by  Dr.  Jasbeer  Kaur  Saluja  

were  sufficient  to  fortify  her  assessment  that  

the  prosecutrix was  between 14  to 16  years of  

age:-

(i)  Auxiliary hair not appeared.

(ii) Public hair scanty.

(iii) Menarche attaned 1 years back.

(iv)  Teeth -

7  +  6 ------------------------- = 27

7  +  7

Page 8

8

Considering these findings of anthropological and  

dental examinations, learned trial Judge did not  

commit  any  error  in  holding  that  age  of  the  

prosecutrix  was  about  14  years  only  (See  

Bishnudayal v. State of Bihar AIR 1981 SC 39).”

7.  In paragraph 30 of the decision in  Vijay alias  

Chinee,(supra),  this  Court  has  held  by  making  specific  

reference to the growth of breast in a girl between the age  

group of 13 and 14 and has specifically referred to the  

extent  at  which  such  growth  could  be  found,  while  in  

paragraph 28 based on the eruption of teeth, the age of a  

person  can  be  ascertained.   Again,  in  paragraph  29  this  

Court has noted the ascertainment of age based on the growth  

of  pubic  hair  by  which  the  age  of  the  person  can  be  

scientifically arrived.

8. When we apply the above principles laid down by  

this Court with particular reference to the consideration  

made by the trial court in paragraph 14, the evidence of  

doctor P.W.2 as well as the conclusion arrived at by the  

High  Court  in  paragraph  9,  we  are  convinced  with  the  

conclusion that P.W.4 was in the age group of 13/14 years.  

Once  the  said  conclusion  cannot  be  altered  the  sexual  

intercourse  indulged  in  by  the  appellant  was  with  the  

consent of P.W.4 will be of no consequence.  Having regard  

to the above said conclusion, we do not find any scope to  

find fault with the conviction and sentence imposed by the

Page 9

9

trial court as confirmed by the High Court in the impugned  

judgment in this appeal.  

The appeal lacks merit and the same is dismissed.

...............................J.                     (Dr. B.S. CHAUHAN)

................................J.  (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; April 10, 2013.