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1 Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

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

Sri Ganesh      ...….. Appellant

Versus

State of Tamil Nadu and Anr.     …. Respondents   

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal by special leave challenges the Judgment and Order dated

13.10.2015 passed by the High Court of Madras in Criminal Revision Case

No.383 of 2015.  In order to avoid any identification of the victim, we have

transposed  the  original  respondent  No.1  namely,  the  Complainant  as

respondent  No.2  and the  State  is  now shown as  respondent  No.1  in  the

matter.   

3. Pursuant to complaint by the complainant, FIR vide Crime No.5/2010

was initially registered under Sections 417 and 506(ii) IPC on 26.03.2010

with Old Washermenpet Police Station, Chennai against the appellant, his

father,  mother  and  uncle.   After  carrying  out  necessary  investigation,

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2 charge-sheet dated 18.11.2010 was filed against the appellant under Section

376 IPC and against his parents and uncle under Sections 417 read with 109

IPC and 506(ii) IPC.  It was alleged that the appellant had become friendly

with the victim while they had reached 10+2 standard; that this fact was

known  to  the  family  of  the  appellant  who  treated  the  victim  as  their

daughter-in-law; that the appellant had committed sexual intercourse with

the  victim  on  5  to  6  occasions;  and  that  the  behavior  of  the  family  of

appellant later changed and they refused to perform the marriage.    It was

alleged that  the appellant  thus committed offence under Section 376 IPC

while his family members were guilty of offence under Sections 417 read

with 109 IPC and 506(ii) IPC.

4. Appropriate charges under the aforesaid Sections having been framed,

Criminal O.P. No.9823 of 2011 was filed in the High Court seeking quashing

of those charges.  The High Court by its Order dated 20.06.2012 quashed the

charges as against the parents and uncle of the appellant but dismissed the

challenge  raised  by  the  appellant.  Consequently  the  trial  proceeded  only

against the appellant for the offence punishable under Section 376 IPC. On

18.09.2012,  the  victim  deposed  before  the  trial  court  as  PW-1.   In  her

examination-in-Chief she deposed:

“………….......I firmly believed that the accused and his family  will  not  leave  me  and our  marriage  would  definitely

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3 solemnize.   After  this  the  accused  forced  me  and  had intercourse with me 5 to 6 times.”

The victim however  in  her  examination  in  chief  did  not  give  any

probable period or time when the intercourse had last taken place.  In her

cross-examination  conducted  on  06.10.2012,  to  a  pointed  query  she

answered, “We had intercourse finally in August, 2009”.

5. At that juncture, the cross-examination of the victim was stopped and

a plea of juvenility of the appellant was raised. It was submitted that going

by the assertions of the victim, the appellant was definitely a juvenile on the

alleged dates of occurrence.  Criminal M.P. No.10872 of 2012 under Section

7A of  the  Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  2000

(hereinafter referred to “the Act”) was also filed praying that the age of the

appellant be determined in terms of the provisions of the Act and the Rules

framed  thereunder.   The  complainant  was  also  allowed  to  make  her

submissions.  After hearing the parties, the Court posted the application for

pronouncement  of  Orders  on  04.12.2012.   However,  on  28.11.2012  an

application under Section 216 of Cr.P.C. was filed by the prosecution for

adding charge  under  Section  417 against  the  appellant.   The  request  for

addition of  the charge  was dismissed by the trial  court  which order was

affirmed by the High Court by its Order dated 15.02.2013.  The complainant

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4 challenged the order of the High Court by filing SLP(Crl.) No. 1899 of 2013

which was dismissed by this Court on  12.08.2014.   

6. The  trial  court  thereafter  postponed  the  issue  of  juvenility  to  be

considered at the stage of final determination of the matter,  which order was

challenged by the appellant by filing petition under Section 482 of Cr.P.C.

The  challenge  was  accepted  by  the  High  Court  and  by  Order  dated

8.12.2014 it directed: “The  learned  III  Additional  Sessions  Judge  shall  first

decide the claim of juvenility raised by the petitioner herein and then to proceed with further in accordance with law.  At any rate,  appropriate  decision  on the  claim of  juvenility  shall  be made within a period of 30 days as provided in Rule 8B of the Tamil Nadu Juvenile Justice (Care and Protection of Children) Rules, 2001 from the date of receipt of the records from the trial court.”

7. The matter was then heard by the trial court which after considering

the  relevant  material  on  record  declared  the  appellant  to  be  juvenile  in

conflict with law under Section 7A of the Act.  The trial court found the date

of birth of the appellant to be 19.10.1991.  Going by the assertions made by

the victim that the sexual intercourse between them lastly occurred in the

month of August, 2009, the trial court found that on the date of occurrence,

the appellant was a juvenile.  Concluding thus, the trial court directed: “29. Finally,  this  court  allows  the  above  Petition Crl.O.P.No.10872/2012  and  decides  that  the  offender  was  a Juvenile on the date of commission of offence.

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

8. The  complainant  being  aggrieved,  challenged  the  aforesaid

determination by filing Criminal Revision Case No.383 of 2015 in the High

Court  of  Madras.   The  High  Court  by  its  Judgment  and  Order  dated

13.10.2015 allowed said criminal revision and remitted the matter back to

the trial court for fresh consideration.   It was observed: “It is evident that the trial court has not determined the

correct  age  of  the  second  respondent/accused  or  the  date  of occurrence in the facts and circumstances of the case.  The trial court also did not take note of the fact that the offence alleged to have been committed was a continuing offence.   The trial court also did not consider the expert opinion obtained from a Medical  Officer  to  determine  the  age  of  the  second respondent/accused.   The  trial  court  has  also  not  ascertained correctly the date on which the first occurrence took place and the  last  occurrence  committed  by  the  accused/second respondent  herein.   The  trial  court  was  carried  away  by  an admission  made  by  the  complainant  during  the  course  of cross-examination.”

9. Appearing for the appellant in support of the appeal, Mr. A. Ramesh,

learned  Senior  Advocate  submitted  that  the  determination  of  age  of  a

juvenile has to be principally on the basis of documentary evidence and only

in  the absence  of  such documentary  evidence,  medical  opinion could be

pressed into service.  In his submission the High Court was completely in

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6 error in setting aside the view taken by the trial court and in remitting the

matter for fresh consideration.  Reliance was placed on the judgment of this

Court in  Ashwani Kumar Saxena  v. State of Madhya Pradesh1.   On the

other hand, Mr. Aditya Kumar Choudhary, learned Advocate appearing for

the complainant relied on decision of this Court in Karthi alias Karthick v.

State of Tamil Nadu2 and submitted that the High Court was justified in

remitting the matter for fresh consideration.   

10. The law on the point is well settled and succinctly stated in Ashwani

Kumar’s  case  (supra)  where  this  Court  after  taking  into  consideration

relevant statutory provisions observed in paragraphs 32 to 34 as under:-

“32. “Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court  needs  to  obtain  the  date  of  birth  certificate  from  the school  first  attended  other  than  a  play  school.  Only  in  the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to  obtain  the  birth  certificate  given  by  a  corporation  or  a municipal  authority  or  a  panchayat  (not  an  affidavit  but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment  of  the  age  cannot  be  done,  then  the  court,  for reasons to be recorded, may, if considered necessary, give the

1 (2012) 9 SCC 750 2 (2013) 12 SCC 710

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7 benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

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

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

11. In the present case the trial court took into account the documentary

evidence as contemplated in the statutory provisions and returned a finding

that the date of birth of the appellant was 19.10.1991.  During the course of

its judgment the High Court could not find such conclusion to be vitiated on

any ground.  In the face of the relevant documentary evidence, there could

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8 be no medical examination to ascertain the age of the appellant and as such

the  consequential  directions  passed  by  the  High  Court  were  completely

unwarranted.   Further,  if  the  allegations  of  the  prosecution  are  that  the

offence under Section 376 IPC was committed on more than one occasion,

in order to see whether the appellant was juvenile or not, it is enough to see

if he was juvenile on the date when the last of such incidents had occurred.

The trial court was therefore justified in going by the assertions made by the

victim in her cross examination and then considering whether the appellant

was juvenile on that date or not.   

12. The learned counsel for the respondent however relies on the decision

of this  Court  in  Karthi (supra).   In that  case the accused had repeatedly

engaged in consensual sexual intercourse with prosecutrix on different dates

on  promises of marriage.  After having found that the promises were false,

the prosecutrix had lodged a complaint asserting her exploitation on certain

previous dates.  While considering the delay in reporting the matter to the

Police, this Court found that it was only after the accused had declined to

marry the prosecutrix that a different dimension came to be attached to their

relationship and thus there was no delay in registration of FIR.  The decision

in  Karthi  (supra)  stands  on  a  completely  different  point  and  cannot  be

pressed into service to say that because the appellant had refused to marry

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9 the victim, the date of the offence under Section 376 would consequently

change.  The date of the incident remaining constant, the principle in Karthi

(supra)  will  be  of  assistance  only  in  getting  over  the  aspect  of  delay  in

lodging the FIR.   

13. We thus find that the approach of the High Court in the present case

was incorrect and completely misdirected.  Even if we were to remand the

matter back to the High Court for fresh consideration, in our view it would

be an empty formality in the face of finding of fact rendered by the trial

court.  We, therefore, allow this appeal and set aside the Judgment and Order

under appeal.  The view taken by the trial court is restored and the matter

stands  disposed of  in  terms of  the directions issued by the trial  court  as

stated above.

14. The appeal is allowed in aforesaid terms.

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

..………………………J. (Uday Umesh Lalit)

New Delhi, January 6, 2017