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NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 658  OF 2011

STATE OF MADHYA PRADESH APPELLANT

VERSUS

MUNNA @ SHAMBHOO NATH RESPONDENT

JUDGMENT

Pinaki Chandra Ghose, J.

1. This  appeal,  by  special  leave,   is  directed  against  the

judgment and order dated 14th August, 2008 passed by the High

Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.776 of

1994, whereby the High Court allowed the criminal appeal filed by

the respondent herein and acquitted him.

2. The brief facts necessary to dispose of this appeal are that the

family of the prosecutrix (PW5) was the tenant of the father of the

accused.  As   per   the   prosecution   story,   on 5th May, 1991, the

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prosecutrix, aged about 13 years, was sleeping in the night with

her mother in the corridor of  her house. At about 4:30 am, the

respondent-accused entered into the house of the prosecutrix, took

her to the adjoining room at the point of knife, bolted the door and

committed rape on her. After committing the offence the accused

and the prosecutrix remained in that room. Thereafter, the mother

and sister of the prosecutrix came to that room in search of the

prosecutrix  and  when  the  door  was  opened,  the

accused-respondent fled away. The prosecutrix lodged the FIR at

Garha Police Station after which the Investigating Officer sent the

prosecutrix  for  medical  examination  wherein  the  report  was

handed over by Dr. Nisha Sahu. The Investigating Officer received

the date of birth of the prosecutrix. The respondent-accused was

arrested on 6th May, 1991. The Ossification Test of the prosecutrix

was conducted and the report was proved in the present case.

3. The charge under Section 376 of the Indian Penal Code was

framed against the respondent. The respondent pleaded not guilty

and claimed trial. After examining the witnesses and after hearing

the counsel for the parties, the Trial Court found that the charge

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was proved beyond reasonable doubt. The Trial Court found the

age of the prosecutrix to be less than 16 years, in which case the

question  of  consent  did  not  arise  and  the  respondent  having

committed rape on a girl of less than 16 years of age, the offence

clearly fell within the parameters of rape under Section 376 of  IPC.

Consequently,  the  respondent  was convicted for  the charge and

was sentenced to seven year rigorous imprisonment by the Trial

Court by its judgment and order dated 30.07.1994.

4. Being aggrieved by the judgment and order dated 30.07.1994,

passed  by  the  Trial  Court,  the  respondent  preferred  Criminal

Appeal No.776 of 1994 before the High Court of Madhya Pradesh.

The High Court found that the school certificate was not proved

without doubt. The medical evidence relied upon by the Trial Court

was  disbelieved by the High Court as the doctor who conducted

the ossification test was not examined. X-ray report containing the

opinion of the doctor was also disbelieved by the High Court as it

was  merely technical opinion and the doctor was not produced for

examination by the Trial Court. The pivotal fact for overturning the

judgment of the Trial Court was the deposition made by PW6 i.e.

Malti Devi, mother of the prosecutrix where she stated that in the

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morning when she saw that the prosecutrix was not lying with her,

she and her elder daughter started searching the prosecutrix and

when  they  opened  the  door  of  the  room,  they  found  that  the

accused was standing with the prosecutrix behind the bags. The

High  Court,  therefore,  allowed  the  said  appeal,  set-aside  the

conviction  of  the  respondent  and  acquitted  him  of  the  charge

under Section 376 IPC.

5. The State is thus before us in appeal against the acquittal of

the respondent. The learned counsel appearing for the State has

attacked  the  judgment  of  acquittal  passed  by  the  High  Court,

mainly on two grounds. First is whether the sexual intercourse was

consensual; and second, whether the age of the prosecutrix was

below 16 years.

6. The High Court while setting aside the Trial Court judgment

rightly appraised the evidence on record and held that the sexual

intercourse  was  consensual.  In  her  statement  the  prosecutrix

(PW5)  states  that  she  was  sleeping  between  her  mother  and

brother and the accused had reached her after hopping over them

and he dragged her  into another  room on the  point  of  a  knife.

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However, sneaking in with such ease is highly doubtful. Even if the

accused made it  through to the prosecutrix,  it seems unnatural

that  the  prosecutrix  was  not  alarmed  by  the  knife  upon  being

awaken from her sleep. It is also to be noted that the prosecution

never recovered any knife. Further examination of the statement of

PW5 that the accused and the prosecutrix remained in the room

for couple of hours and it was only when her mother and elder

sister came searching for her that the prosecutrix was found in the

room  with  the  accused,  hiding  behind  the  bags.  The  above

narration  leads  to  the  inference  that  the  prosecutrix  was  a

consenting party.

7. Section 375 (as it stood before the Criminal Law Amendment

Act, 2013) of the Indian Penal Code, 1860 states –

“A man is said to commit ‘rape’  who, except in the case  hereinafter  excepted,  has  sexual  intercourse with  a  woman under  circumstances  falling  under any of the six following descriptions:- …  … … … …

Sixthly – With or without her consent, when she is under sixteen years of age...”   

In light of the aforementioned provision, the second issue regarding

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the determination of age of the prosecutrix is crucial to establish

whether the respondent is liable for rape or not.

8. To  prove  its  case,  the  prosecution  produced  evidences

including school certificate, opinion of the doctor who conducted

medical examination of the prosecutrix, bone ossification test, but

the High Court held that none of them could bring home the case

of the prosecution. The prosecution produced school certificate of

the prosecutrix and examined the Principal of Babu Manmohandas

Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where

the  prosecutrix  studied  in  her  9th standard.  In  his

cross-examination, PW1 stated that the age of the prosecutrix was

noted at the time of admission but he had no knowledge about the

fact as to what date of birth would have been mentioned in her

letter of declaration. The examination-in-chief of PW8 (Dr. Nisha

Sahu) does not support the prosecution story. In her opinion, the

girl could not have attained the age of 14 years, but further in her

examination-in-chief  and cross-examination, she stated that she

could not opine about the present intercourse. Other findings of

PW8 are mere opinions and cannot be relied upon completely to

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establish the guilt of the accused.  

9. From  the  X-ray  report  of  the  ossification  test,  the  doctor

opined that the age of the prosecutrix could not be more than 14

years. However, since the doctor was never examined, the X-ray

report  is  not  sufficient  to  prove the age of  the prosecutrix.  The

prosecutrix was examined as PW5 but the prosecution failed to

question the  prosecutrix  on her  age,  therefore  no fact  could  be

gathered  from  her  regarding  the  issue  of  age.  PW6  Malti  Devi

mother of the prosecutrix was examined where she stated the age

of prosecutrix to be 13 years. However, in her cross-examination,

she stated that her marriage was performed about 20 years ago

and after two years of her marriage the elder daughter (Sunita) was

born, and 2-3 years thereafter the prosecutrix was born. It means

that the prosecutrix was aged about 15-16 years at the time of the

incident. But this is not sufficient to come to any conclusion about

the exact age of the prosecutrix.  It appears that the Ossification

Test  X-ray  report  is  not  sufficient  to  prove  the  age  of  the  girl.

Further, the mother of the prosecutrix also was not able to give the

exact age of  the prosecutrix.  No question was also asked to the

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prosecutrix by the prosecution about her age. Taking into account

all  these facts,  the High Court correctly came to the conclusion

that the prosecution has totally failed to prove beyond reasonable

doubt that the girl was less than 16 years of age at the time of the

incident.  Therefore,  the  High Court  presumed that  the  girl  was

more than 16 years of age and was competent to give her consent.   

10. This  Court  in  the  case  of  Birad  Mal  Singhvi  v.  Anand

Purohit, (1988) Supp. SCC 604, has held:

“17. ...the entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on  whose  information  the  dates  of  birth  of  the aforesaid candidates were mentioned in the school record was examined.”

Further it was held by this Court in the case of Sunil v. State of

Haryana, (2010) 1 SCC 742 that –

“26. ………… In a criminal  case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be  quite  unsafe  to  base  conviction  on  an approximate date.”

11. In view of  the evidence on record and the rationale  in  the

aforementioned  cases,  we  are  of  a  considered  view  that  the

prosecution has totally  failed to  prove  beyond reasonable  doubt

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that  the  girl  was  less  than  16  years  of  age  at  the  time  of  the

incident. Therefore, it can be held that the girl was more than 16

years of age and she was competent to give her consent as held by

the High Court. Hence, in the present case, the question of rape

does not arise as consensual intercourse has been proved.

12. Thus, in the light of the above discussion, we are of the view

that  the present  appeal  is  devoid of  any merit,  and we find no

ground to interfere with the judgment passed by the High Court.

The appeal is, accordingly, dismissed.

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

…...................................J                                                                (R.K. Agrawal)

New Delhi;  

September 18, 2015.