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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 983 OF 2015

Parhlad and Anr. ... Appellant

Versus

State of Haryana                ... Respondent

J U D G M E N T

Dipak Misra, J.

The  present  appeal  depicts  a  sordid  situation  and

sketches a morbid scenario, for the sad story commences with

total trust, as it has to be, inasmuch as the first appellant,

the uncle of the prosecutrix, being the cousin of her father,

takes her with him but does not return and thus betrays the

trust, definitely inconceivable, for the young girl, PW 7, who

had  remotely  no  idea  about  his  dubious  design  when  she

accompanied him to  the  house  of  the  appellant  No.  2,  the

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maternal  uncle  of  the  first  appellant,  that  she  would  be

sexually assaulted first by the appellant No. 1 and thereafter

by the appellant No.2 who also succeeded in  his threats to

the uncle – and at the end, they, after being sent up for trial

for the offences punishable under Sections 363, 366A/376/34

of the Indian Penal Code, 1860 (IPC) in order to escape the

charge and in justification of their carnal desire and perverted

acts, pleaded consent.   

2. As the  factual  score would uncurtain,  the case of  the

prosecution from the very beginning was that the prosecutrix

was below sixteen years of age.  The trial court believed the

prosecution  as  regards  the  age  of  the  prosecutrix  as  a

consequence of which the plea of the defence had to collapse

like a pack of cards which entailed conviction for the charged

offences as per judgment dated March 10, 2003 which led to

the  sentence  of  rigorous  imprisonment  of  ten  years  under

Section 376(2)(g)  IPC with separate  sentence  under  Section

363 IPC with the stipulation that all the sentences shall be

concurrent.  

3. The judgment of conviction and order of sentence passed

by the learned Additional Sessions Judge, Sirsa in Sessions

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Case No. 55 of 2002 were assailed before the High Court in

Criminal  Appeal  No.  914  of  2003  and  the  learned  Single

Judge  referred  to  the  evidence  of  Manohar  Lal,  PW-1,

Principal of the Govt.  Primary School,  Rupana Khurd, Dist.

Sirsa,  Bhajan Lal,  PW-9,  the  father  of  the  prosecutrix,  Dr.

Santosh  Bishnoi,  who  had  examined  the  accused  and  the

prosecutrix and took note of the ossification test report, Ext.

DA, and upon due appreciation of ocular and documentary

evidence brought on record concurred with the view expressed

by the trial court that the prosecutrix was below 16 years of

age.   Be  it  stated   that  the  High  Court  did  not  think  it

appropriate to rely on the ossification test report as it found a

number of flaws with it and opined that it was not worthy of

credence.  Additionally, the High Court has opined that the

prosecutrix  had  no  idea  about  the  evil  design  of  accused

Parhlad, her uncle and she had proceeded with him in good

faith and under compulsive circumstances she was raped by

the  accused  persons  and,  therefore,  there  was  really  no

consent.   On the basis of the said analysis, it affirmed the

judgment of conviction and order of sentence passed by the

trial court.  Hence, this appeal by special leave.    

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4. We  have  heard  Mr.  Harinder  Mohan  Singh,  learned

counsel  for  the  appellant  and  Mr.  Shekhar  Raj  Sharma,

learned counsel for the respondent-State.  

5. The  core  issues  that  arise  for  consideration  in  this

appeal  are  whether  the  finding  as  regards  the  age  of  the

prosecutrix is based on the proper appreciation of evidence on

record or it is so perverse that it deserves to be dislodged in

exercise of jurisdiction under Article 136 of the Constitution,

and further whether the opinion of the High Court relating to

consent withstands scrutiny.   On a perusal  of  the findings

returned by the learned trial  Judge as well  as by the High

Court,  it  is  noticed that  the  learned trial  Judge has  relied

upon the  testimony of  the  prosecutrix,  her  father,  and the

school leaving certificate, which has been brought on record

and  tendered  in  evidence;  and  the  High  Court,  on

re-appreciation of  the testimony of  the prosecutrix and her

father coupled with the testimony of PW-1, the Head Master of

the  concerned  school  has  found  that  the  version  of  the

prosecution is truthful.  As is perceptible, the prosecutrix has

deposed that she was about 14 years of age at the time she

went  with  her  uncle  and  made  a  prey  of  the  uncontrolled

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debased  conduct  of  the  appellants.  The  father  of  the

prosecutrix has testified in a categorical  manner about  the

factum of age of the prosecutrix.  The Principal, PW-1, who

has proved the school leaving certificate has stood embedded

in  his  testimony  and  not  paved  the  path  of  tergiversation

despite  the  roving  cross-examination.  Nothing  has  been

elicited to create on iota of doubt in his testimony.  On the

said premises, as we find, the conclusion has been arrived at

that the prosecutrix was below 16 years of age.  

6.  It is requisite to state here that the radiologist who had

conducted the ossification test had opined that the age of the

prosecutrix  might  be  16-17  years.   The  High  Court  in  its

analysis has recorded that the said piece of evidence was not

beyond reproach inasmuch as it  had not  depicted the true

situation as the eruption of teeth, number of teeth and many

other aspects were not observed by the doctor conducting the

ossification test.  In this context reference to the decision in

Ramdeo Chauhan alias Raj Nath v. State of Assam1 would

be  apposite.   In  this  case,  Sethi,  J  while  considering  the

evidentiary value of radiological examination  opined that:-  

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(2001) 5 SCC 714

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“The statement of the doctor is no more than an  opinion,  the  court  has  to  base  its conclusions  upon  all  the  facts  and circumstances disclosed on examining of the physical features of the person whose age is in question,  in conjunction with such oral testimony  as  may  be  available.  An  X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person  concerned.  Too  much  of  reliance cannot  be  placed  upon  textbooks,  on medical  jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment,  vegetation  and  nutrition,  the height and weight cannot be expected to be uniform.”

Be it noted, Phukan, J. concurred with the view expressed by

Sethi, J.  

7. In this regard, we may, with profit, refer to the decision

in  Vishnu   alias  Undrya  vs.  State  of  Maharashtra2

wherein a contention was raised that the age of a prosecutrix

by conducting ossification test was scientifically proved, and

that  it  deserved  acceptance.   The  court  rejected  the  said

submission by stating that:-

“We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The

2 (2006) 1 SCC 283

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opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence  given  by  the  Medical  Officer  is really  of  an  advisory  character  and  not binding on the witness of fact.”

Similar view has been expressed in Arjun Singh v. State of

Himachal Pradesh3.  

8. Tested on the touchstone of aforesaid legal premises,  we

do  not  find  any  perversity  of  approach  as  regards  the

determination of age of the prosecutrix.   

9. The next facet relates to the facet of consent.  It needs

no  special  emphasis  to  state  that  once  it  is  held  that  the

prosecutrix  is  below 16  years  of  age  consent  is  absolutely

irrelevant  and  totally  meaningless.   However,  as  has  been

stated earlier the High Court has addressed itself with regard

to the plea of consent advanced by the accused persons.  The

material brought on record clearly reveal that Parhlad, first

cousin of the father of the prosecutrix in the absence of her

parents at home had asked her to go with him for harvesting

wheat crop to village Rupana Ganja and accordingly she had

accompanied him to the residence of the appellant No. 2, who

is  the  maternal  uncle  of  Parhlad.   The  prosecutrix  has

3 (2009) 4 SCC 18

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deposed  that  she  was  in  a  totally  helpless  situation  and

despite her resistance she was sexually abused.   The mental

and physical condition of a young girl under the dominion of

two grown up males who had become slaves of their prurient

attitude can be well imagined.  The consent, apart from legal

impermissibility,  cannot  be  conceived  of.   In  this  context

reference  to  certain  authorities  would  be  appropriate.    In

State  of  H.P.  v.  Mango  Ram4 a  three-Judge  Bench  while

dealing with the consent has stated thus:-

“13. … Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge  of  the  significance  and  moral quality  of  the  act  but  after  having  fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”

10. In  Uday  v.  State  of  Karnataka5 while  reiterating  a

similar view the Court observed:-

“21.  … We  are  inclined  to  agree  with  this view … that there is no straitjacket formula for determining whether consent given by the prosecutrix  to  sexual  intercourse  is voluntary,  or  whether  it  is  given  under  a misconception  of  fact.  In  the  ultimate

4 (2000) 7 SCC 224 5 (2003) 4 SCC 46

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analysis,  the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must,  in each case, consider the evidence  before  it  and  the  surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether  the consent was voluntary,  or  was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove  each  and  every  ingredient  of  the offence,  absence  of  consent  being  one  of them.”

Similar view has been echoed in  Deelip Singh v. State of

Bihar6,  Pradeep Kumar alias Pradeep Kumar Verma v.

State of Bihar and another7 and Dilp v. State of Madhya

Pradesh8.   

Viewed  on  this  prismatic  reasoning,  the  conclusion

arrived at by the High Court on the obtaining factual score

cannot be faulted.  

11.  Learned counsel for the appellant has submitted that

the appellant are in custody for more than 8 years.  Needless

to say, it is an alternative submission pertaining to quantum

of  sentence.   The  learned  trial  Judge  has  sentenced  the

appellants to suffer rigorous imprisonment for a term of 10

6 (2005) 1 SCC 88 7 (2007) 7 SCC 413 8 (2013) 14 SCC 331

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years each for the offence under section 376 (g) of IPC apart

from other offences.  Sentence in respect of the offence of rape

has to be in consonance with the law.  The concept of special

reasons as engrafted in IPC prior to the amendment brought

in force by Act 13 of 2013 with effect from 3.02.2013 is not to

be invoked for the asking.  We need not enumerate anything

in  that  regard,  for  there  is  no  justification  or  warrant  for

thinking of reduction of sentence in this case.  The appellants,

to  say  the  least,  had  taken  advantage  of  their  social

relationship with the prosecutrix.  She had innocently trusted

the  first  appellant  and,  in  fact,  there  was  no  reason  to

harbour  any  kind  of  doubt.   The  devilish  design  of  the

appellant No. 1 and the crafty manipulation of the appellant

No. 2 is manifest.  It has to be borne in mind that an offence

of  rape  is  basically  an  assault  on  the  human  rights  of  a

victim.   It  is  an attack on her  individuality.   It  creates an

incurable  dent  in  her  right  and  free  will  and  personal

sovereignty over the physical frame.  Everyone in any civilised

society has to show respect for the other individual and no

individual  has  any  right  to  invade  on  physical  frame  of

another in any manner.  It is not only an offence but such an

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act creates a scar in the marrows of the mind of the victim.

Anyone who indulges in a crime of such nature not only does

he  violate  the  penal  provision  of  the  IPC but  also  right  of

equality,  right  of  individual  identity  and  in  the  ultimate

eventuality  an  important  aspect  of  rule  of  law  which  is  a

constitutional  commitment.   The  Constitution  of  India,  an

organic document, confers rights.  It does not condescend or

confer any allowance or grant.  It recognises rights and the

rights  are  strongly  entrenched  in  the  constitutional

framework,  its  ethos  and  philosophy,  subject  to  certain

limitation. Dignity of every citizen flows from the fundamental

precepts  of  the  equality  clause  engrafted  under  Articles  14

and right to life under Article 21 of the Constitution, for they

are the “fon juris” of our Constitution.  The said rights are

constitutionally secured.  Therefore, regard being had to the

gravity  of  the  offence,  reduction of  sentence  indicating  any

imaginary special reason would be an anathema to the very

concept of rule of law.  The perpetrators of the crime must

realize that when they indulge in such an offence, the really

create  a concavity  in the dignity  and bodily  integrity  of  an

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individual which is recognized, assured and affirmed by the

very essence of Article 21 of the Constitution.  

12. Consequently,  the  appeal  being,  sans  stratum,  stands

dismissed.  

........................................J.     [DIPAK MISRA]

........................................J.                     [PRAFULLA C. PANT]

NEW DELHI AUGUST 03, 2015.

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