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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s).  2229 OF 2011

STATE OF MADHYA PRADESH                            Appellant(s)

                               VERSUS PREETAM             Respondent(s)

J U D G M E N T

R. BANUMATHI, J.:

(1) This appeal arises out of judgment and order dated 6th

January, 2010 passed by the High Court of Madhya Pradesh at

Jabalpur in Criminal Appeal NO.228 of 1995 in which the High

Court reversed the verdict of the conviction under Section 376

I.P.C. and also the sentence of imprisonment of seven years and

acquitted the respondent-accused.

(2) Despite service of notice, the respondent has not chosen

to appear and contest this appeal.  Accordingly Ms. Nidhi,

Advocate,  has  been  appointed  by  the  Supreme  Court  Legal

Services Committee as amicus to contest the appeal on behalf of

the respondent.

(3) We have heard Ms. Swarupama Chaturvedi, learned counsel

appearing  for  the  appellant-State  and  Ms.  Nidhi,  learned

amicus,  and  also  perused  the  impugned  judgment  and  the

evidence/materials on record.

(4) The facts of the case in a nutshell are as follows.  On 6th

March, 1993 at about 9.00 p.m. the prosecutrix (PW-1) along

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with her two sisters i.e. Hirkanbai (PW-3) and Anitabai had

gone outside the village to a field to attend nature’s call and

while returning back the respondent-accused is alleged to have

forcibly taken the prosecutrix to the field and committed rape

on her.

(5) Since the Moti Ram (PW-2) who is father of Hirkanbai (PW-

3) and also uncle (chacha) of the prosecutrix was not in the

village, on his return a complaint was lodged on 8th March,

1993.  The prosecutrix was medically examined on 9th March, 1993

by Dr. U.S. Vasnik (PW-6), who has noted that the hymen of

prosecutrix was torn; swelling was present on the edges of torn

hymen.  Dr. U.S. Vasnik (PW-6) has opined that though vagina of

the  prosecutrix  was  admitted  two  fingers  easily,  the

prosecutrix felt pain and the doctor (PW-6) has opined that the

prosecutrix was subjected to sexual intercourse within 2-3 days

of examination.

(6) Based  upon  the  evidence  of  prosecutrix  (PW-1)  and

Mangrulal (PW-4) who went to the place of occurrence after

having been told by Anita and saw the accused running from

there and also on the evidence of Dr. U.S. Vasnik (PW-6), the

trial court convicted the respondent-accused under Section 376

I.P.C. and sentenced him to undergo imprisonment for a period

of seven years.

(7) On appeal, the High Court has reversed the verdict of

conviction on the grounds:- (i) There was no external injury on

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the person of prosecutrix (PW-1) which is indicative of her

consent for the sexual intercourse and, therefore, the story of

forcible rape does not find support from the medical evidence;

(ii) There was delay in registration of the FIR.

(8) As pointed out earlier as per PW-6-Dr. Vasnik’s evidence

the hymen of the prosecutrix (PW-1) was torn and swelling was

present in the vagina having redness.  Doctor has noticed that

even though vagina admitted of two fingers, the prosecutrix

felt  pain  which  is  suggestive  that  the  prosecutrix  was

subjected to sexual intercourse only in the occurrence.

(9) It is fairly well-settled that in the absence of external

injury on the person of the prosecutrix, it cannot be concluded

that  the  incident  had  taken  place  with  the  consent  of  the

prosecutrix.  It depends upon the facts and circumstances of

each case.  In B.C. Deva alias Dyava  v. State of Karnataka,

(2007) 12 SCC 122, this Court has held that absence of injury

on  the  person  of  the  victim  of  rape  does  not  lead  to  an

inference  that  the  accused  did  not  commit  forcible  sexual

intercourse.  It was further held that even in the absence of

external injury, the oral testimony of the prosecutrix that she

was subjected to rape, cannot be ignored.

(10) In  the  present  case  evidence  of  prosecutrix  (PW-1)  is

supported by the medical evidence and also by the evidence of

Mangrulal (PW-4) who saw the accused running away from the

scene of occurrence.  Insofar as the consent of the prosecutrix

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(PW-1) pointed out by the High Court is concerned, we find it

difficult to agree with the view taken by the High Court.  In

her chief examination, Dr. U.S. Vasnik (PW-6) has stated that

the age of the victim could be between 13 and 17 years.  Of

course in her cross-examination, Dr. Vasnik has agreed to the

suggestion that the age of the victim could be 17 years.

(11) In  our  considered  view,  the  answer  elucidated  in  the

cross-examination of Dr. Vasnik (PW-6) cannot be taken as a

final opinion on the age of the prosecutrix (PW-1).  It is to

be relevant to note that before the trial court the prosecution

has  examined  Bhaulal  (PW-8),  Head  master/Head  teacher  of

Primary School Chor Pind Ke Par, District Balaghat.  In his

evidence, Bhaulal (PW-8) has stated that the date of birth of

the prosecutrix (PW-1) was 16th May, 1981 which means that on

the date of the occurrence i.e. 6th March, 1993, the prosecutrix

(PW-1) was only aged about 12 years.  The trial court has

neither acted upon the evidence of Bhaulal (PW-8) nor on the

school  certificate  on  the  ground  that  the  person  who  has

admitted the prosecutrix in the school was not examined.

(12) In our considered view, the approach of the trial court

was not correct.  In each and every case the prosecution cannot

be expected to examine the person who has admitted a student in

the school.  The school registers are the authentic documents

being maintained in the official course, entitled to credence

of  much  weight  unless  proved  otherwise.   In  our  view,

considering the evidence of head master, Bhaulal (PW-8), and

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the school certificate produced by him i.e. Ex.P/13-A, age of

the  victim  has  to  be  taken  as  12  years  at  the  time  of

occurrence.

(13) Of course, Dr. U.S. Vasnik (PW-6) in her chief examination

has stated that the age of the prosecutrix would be between 13

and 17 years.  At the most, adopting the doctor’s evidence, age

of the prosecutrix at the relevant point of time can only be

around 15 years.  As per Section 375 I.P.C. a man is said to

commit rape, Sixthly - “With or without her consent, when she

is under sixteen years of age”.  The prosecutrix being aged 12

years at the time of the occurrence, her consent or otherwise

was of no relevance to bring the offence within the meaning of

Section  375  I.P.C.   In  our  considered  view  the  High  Court

ignored the material evidence adduced by the prosecution and

erred in reversing the conviction of the respondent-accused.

(14)   So  far  as  the  other  ground  of  acquittal  –  delay  in

registration of the F.I.R. is concerned, it has come on the

record that the uncle of the prosecutrix, Moti Ram (PW-2), was

not in the village and returned back to the village only on 8th

March, 1993 and on his return his daughter-Hirkanbai (PW-3),

has narrated the whole incident to him as to what happened to

the prosecutrix (PW-1) and a complaint was lodged on the same

day i.e. 8th March, 1993.  After medical examination of the

prosecutrix (PW-1) on 9th March, 1993,  F.I.R. was registered on

10th March, 1993 and the delay in registration of the F.I.R. has

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been properly explained, which has not been considered by the

High Court.

(15) The  impugned  judgment  of  the  High  Court  reversing  the

conviction of the respondent to acquittal, cannot be sustained

and the same is liable to be set aside and the judgment of the

trial court convicting the respondent under Section 376 I.P.C.

is  to  be  restored.   The  trial  court  has  sentenced  the

respondent-accused  to  undergo  imprisonment  for  a  period  of

seven years.

(16)   Prior  to  the  Amendment  Act  13  of  2013  (w.e.f.  3rd

February, 2013) under Section 376(1) I.P.C. the sentence of

imprisonment  for  a  term  shall  not  be  less  than  7  years

extending for life.  However, as per the proviso to 376(1)

I.P.C. (prior to amendment) discretion is vested with the Court

to impose imprisonment for a term of less than seven years for

adequate and special reasons to be recorded in the judgment.

In this case, the occurrence was of the year 1993 i.e. about 25

years ago.  Having regard to the passage of time and other

facts  and  circumstances  of  the  case,  the  sentence  of

imprisonment of seven years imposed on the respondent-accused

is reduced to a period of four years.

(17) Accordingly the appeal preferred by the State is allowed

and the conviction of the respondent-accused under Section 376

I.P.C. as passed by the trial court is restored.  However, the

period of sentence of seven years, as noted above, is reduced

to four years.

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(18) In  case  the  respondent  has  not  already  undergone  the

sentence of imprisonment of four years, he is to surrender to

custody within a period of fours weeks from today to serve the

remaining sentence failing which he shall be taken to custody.

(19) A copy of this order be sent to the concerned trial court

for necessary action.      

..........................J.                 (R. BANUMATHI)

..........................J.         (VINEET SARAN)

NEW DELHI, AUGUST 29, 2018.