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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

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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

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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

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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

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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.

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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

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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 –

(a) (i)  the  matriculation  or  equivalent  certificates,  if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other

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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

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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

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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

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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.

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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)