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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1156 of 2010

Dilip                                                                 …Appellant

Versus

State of Madhya Pradesh                                               …Respondent

O R D E R  

1. This appeal has been preferred against the impugned judgment  

and order dated 4.11.2006 in Criminal Appeal No.1228 of 1992 of the  

High  Court  of  Madhya  Pradesh  at  Jabalpur,  by  way  of  which  it  

reversed  the  judgment  and  order  of  the  Sessions  Judge,  Seoni,  

Madhya Pradesh dated 16.7.1992 in Sessions Trial No.82 of 1990, by  

which the appellant stood acquitted of the charges punishable under  

Sections 376 and 450  of the Indian Penal Code, 1860 (hereinafter  

referred to as ‘IPC’).

2. Facts and circumstances giving rise to this appeal are that :-

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A. The appellant is younger brother of the brother-in-law of the  

prosecutrix-Diplesh.  The  appellant  came  to  the  house  of  the  

prosecutrix on 13.6.1990. Her parents and elder brother left for the  

market leaving the prosecutrix and her younger brother in the house.  

The appellant found the prosecutrix alone as her brother was merely a  

child and raped her.  The prosecutrix fainted and on regaining her  

consciousness, the prosecutrix narrated the incident to her father who  

lodged the FIR with the police on the same day.

B. The appellant was arrested on 15.6.1990 and after investigation,  

the prosecution filed chargesheet against the appellant under Sections  

376 and 450 IPC.   

C. The Sessions Court in Sessions Trial No. 82 of 1990 acquitted  

the appellant vide judgment dated 16.7.1992, on the ground that the  

prosecution failed to prove that prosecutrix was below 16 years of  

age,  and  secondly  that  she  had  consented  for  having  sexual  

intercourse with the appellant.

D. Aggrieved,  the  State  preferred  Criminal  Appeal  No.1228  of  

1992, before the High Court. The High Court reversed the judgment  

of the Sessions Court, convicted the appellant for the said offences  

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and awarded punishment of 7 years on both counts. The State appeal  

has been allowed.  

Hence, this appeal.  

3. Shri  Ashok  Mahajan  and  Shri  B.  Sridhar,  learned  Amicus  

Curiae have submitted that there is nothing on record to show that at  

the relevant time, the prosecutrix was below 16 years of age. The trial  

Court had rightly came to conclusion that it was a case of consent and  

such  a  finding  was  based  on  evidence  on  record.   There  was  no  

occasion for the High Court to reverse the said finding as there was no  

perversity in it.  Hence, the appeal deserves to be allowed.

4. Per contra, Ms. Vibha  Datta Makhija, learned Standing counsel  

for the State has submitted that the trial Court erred in understanding  

the  meaning  of  consent  and  reached  a  wrong  conclusion  that  the  

prosecutrix  was  not  below 16  years  of  age.   The  High  Court  has  

considered  the  case  in  correct  perspective  and  reached  the  correct  

conclusion that the prosecutrix was below 16 years of age.  Thus, the  

consent, even if it was so, looses its significance.  Thus, the appeal is  

liable to be dismissed.

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5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.

6. Sawan Lal (PW-2), father of the prosecutrix while lodging an  

FIR stated that the prosecutrix was 15 years of age.  The Investigating  

Officer inspected the place of occurrence and found bangles and also  

recovered  blood  stained  underwear,  saree  and  petikot  of  the  

prosecutrix and also the blood stained earth and plain earth.  Dr. Kiran  

Katre (PW-8) examined the prosecutrix medically and opined that the  

prosecutrix was about 14-15 years of age.  According to Dr. Katre, it  

was  difficult  even  to  put  the  little  finger  in  the  vagina  of  the  

prosecutrix.  She was referred to the Radiologist, however, no such  

report  was  made  available.   The  prosecutrix  was  examined  in  the  

Court on 12.11.1991 as PW-1 and the learned Sessions Judge assessed  

her age on the basis of her appearance as about 14 years.  In addition  

thereto, one Kabir Das (PW-4) who was a Teacher in the night school  

where  the prosecutrix  was  studying,  deposed that  according to  the  

school register, her date of  birth was 7.3.1975 and thus, her age was  

about 14 years. The said date of birth had been recorded several years  

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prior to the incident. It was in view thereof that Kabir Das (PW-4) had  

issued a Certificate, Exh.P/5, and he proved the said Certificate in  the  

Court.

7. The trial Court came to the conclusion that the prosecutrix was  

not  less than 16 years at  the relevant time, on the ground that  Dr.  

Katre (PW-8) had referred her for Radiologist test and she had not  

been examined by the Radiologist.   Withholding such an evidence  

would give rise to draw an adverse inference against the prosecution.  

Secondly, the school certificate could not be relied upon as it was not  

a  strong and material  evidence.   More so,  such an entry had been  

made in the school register on the basis of the information furnished  

by Sawan Lal (PW-2), father of the prosecutrix who deposed in the  

court that such an entry was based on an entry made in her horoscope  

which stood destroyed in the fire.

8. In view of the above, the trial Court examined the second issue  

in  respect  of  consent.  The  court  found  certain  discrepancies  and  

contradictions in the statement of the  prosecutrix made under Section  

161 of the Code of Criminal Procedure, 1973 (hereinafter referred to  

as ‘Cr.P.C.’), and her deposition recorded in court.  In her statement  

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before the police she had told that the appellant had threatened to kill  

her if she shouted.  In court, she deposed that the appellant had filled  

the cloth in her mouth, thus, it was not possible for her to shout.   

The trial Court  further observed that  when her saree,  petikot  

and even her panty were removed, she did not resist with full force as  

it was not possible for the accused to remove her panty unless she  

extended her cooperation.  In case she had not given the consent she  

could have resisted the same with her full power.  But, she has not  

deposed in court that she resisted with full power when her panty was  

being removed.  The prosecutrix was supposed to attack the appellant  

like  a  wild  animal,  but  she  did not  even resist.  Thus,  her  conduct  

suggested only and only, her consent and will.  

The court further held that as per the medical evidence even a  

single finger went inside her vagina with difficulty then it was bound  

to be some injury in her vagina by forcible intercourse, but the Doctor  

did not find any injury on the person of the prosecutrix apart from  

certain  injuries  mentioned  in  the  medical  report.   Therefore,  there  

could not be any question of forcible intercourse.     

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9. The trial Court while recording such finding had taken note of  

the fact that because of the sexual intercourse lot of blood oozed  out  

of her vagina and as a result of the same she became unconscious.

10. The High Court  re-appreciated the entire  evidence on record  

and particularly,  the  medical  report  which contained the  following  

features:-

 (a) Her gait was painful.  

(b) There was also blood clot near her vagina.  

(c) Her forcet had a tear of 1/2cm x 1/2cm.  

(d) There was also an abrasion of 1/2cm above urethra.  

(e) Her hymen tear was in 3-9 'o' clock position.  

(f) Even small finger could not be admitted in her vagina without  

pain to her.  

(g) Her posterior fornix also had a tear of 1cm and blood clot was  

also present.

11. Medical report as well as Dr. Katre (PW-8) opined that it could  

be a case of rape. The FSL report Exh.P/12 revealed that underwear,  

petikot and saree of the prosecutrix were having blood stained and  

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human  spermatozoa.   Similarly,  in  the  slides  as  well  as  in  the  

underwear  of  accused-appellant,  the  blood  stains  and  human  

spermatozoa were found.  The said clothes had been seized from the  

prosecutrix and the appellant soon after the occurrence.  So far as the  

issue of determining the age is concerned, in the instant case Doctor  

has found that prosecutrix was having only 28 teeths, 14 in each jaw.  

Such an issue was considered by this Court  in  Bishnudayal v. State  

of  Bihar,  AIR  1981  SC  39, wherein  the  court  appreciated  the  

evidence as under:  

“8. The evidence with regard to the age of the girl  was  given  by  the  prosecutrix  (P.W.9),  and  her  father. Jagarnath (P.W.4) and Dr. Asha Prasad (P.W.  14).  P.W.9  and  P.W.4  both  stated  that  Sumitra  (P.W.9)  was  13-14  years  of  age  at  the  time  of  occurrence. Dr. Asha Prasad opined that the girl was  only 13 or 14 years of age on July 6, 1967 when the  witness  examined  her.  The  Doctor  based  this  opinion on physical facts, namely, that the examinee  (P.W.9) had 28 teeth, 14 in each jaw, smooth pubic  hair  and  axillary  hair,  which  means  the  hair,  according  to  the  opinion  of  the  Doctor,  had  just  started appearing at the age of 14.”

(Emphasis added)

Similar  view  has  been  reiterated  by  this  Court  while  deciding  

Criminal  Appeal  No.1962  of  2010,  Kailash  @  Tanti  Banjara  v.  

State  of  M.P.,  vide  judgment  and order  dated  10.4.2013,  wherein  

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relying upon several other factors for determining the age, this very  

Bench has taken a view that as the prosecutrix therein had only 28  

teethes considering the other sexual character, she was only 14 years  

of age. Therefore, in view of the above, we do not find any fault with  

the finding recorded by the High Court so far as the issue of age is  

concerned.  

12/13.In  case,  the  prosecutrix  was  below  16  years  of  age  at  the  

relevant time, the issue of consent becomes totally irrelevant.  Even  

the issue of consent is no more res integra even in a case where the  

prosecutrix was above 16 years of age.

In  State  of  H.P.  v.  Mange  Ram,  AIR  2000  SC 2798,  this  

Court, while dealing with the issue held:

"Submission  of  the  body  under  the  fear  or  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." (Emphasis added)

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14. In Uday  v. State of Karnataka, AIR 2003 SC 1639, a similar  

view has been reiterated by this Court observing :

“……We are inclined to  agree  with this  view that  there  is  no  strait  jacket  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 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.”

15. In  Pradeep Kumar Verma v. State of Bihar  & Anr, AIR  

2007 SC 3059, this Court held as under:

“9.The  crucial  expression  in  Section  375  which  defines rape as against her will. It seems to connote  that  the  offending  act  was  despite  resistance  and  opposition of the woman. IPC does not define consent  in  positive  terms.  But  what  cannot  be  regarded  as  consent  is  explained  by  Section  90  which  reads  as  follows:

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"consent given firstly under fear of injury and  secondly under a misconception of fact is not  consent at all."

That is what is explained in first part of Section 90.  There are two grounds specified in Section 90 which  are analogous to coercion and mistake of fact which  are the familiar grounds that can vitiate a transaction  under the jurisprudence of our country as well as other  countries. The factors set out in first part of Section 90  are from the point of view of the victim and second  part of Section 90 enacts the corresponding provision  from the point  of  view of the accused.  It  envisages  that  the  accused  has  knowledge  or  has  reason  to  believe that the consent was given by the victim in  consequence  of  fear  of  injury  or  misconception  of  fact.  Thus  the  second  part  lays  emphasis  on  the  knowledge  or  reasonable  belief  of  the  person  who  obtains the tainted consent. The requirements of both  the  parts  should  be  cumulatively  satisfied.  In  other  words, the Court has to see whether the person giving  the consent has given it under fear or misconception  of fact and the court should also be satisfied that the  person  doing  the  act  i.e.  the  alleged  offender  is  conscious of the fact or should have reason to think  that  but  for  the  fear  or  misconception,  the  consent  would  not  have  been  given.  This  is  the  scheme  of  Section 90 which is couched in negative terminology.  As observed by this Court in  Deelip Singh @ Dilip  Kumar v. State of Bihar (2005 (1) SCC 88), Section  90 cannot be considered as an exhaustive definition of  consent  for  the  purposes  of  IPC.  The  normal  connotation and concept of consent is not intended to  be excluded.  

10. In most of the decisions in which the meaning of  the expression consent under the IPC was discussed,  reference  was  made  to  the  passages  occurring  in  Strouds  Judicial  Dictionary,  Jowitts  Dictionary  on  English Law, Words and Phrases, Permanent Edn. and  

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other legal dictionaries. Stroud defines consent "as an  act  of  reason,  accompanied  with  deliberation,  the  mind weighing, as in a balance, the good and evil on  each  side".  Jowitt,  while  employing  the  same  language added the following:

"Consent  supposes  three  things  a  physical  power, a mental power and a free and serious  use  of  them.  Hence  it  is  that  if  consent  be  obtained  by  intimidation,  force,  meditated  imposition,  circumvention,  surprise,  or  undue  influence, it is to be treated as a delusion, and  not as a deliberate and free act of the mind."

11. In Words and Phrases, Permanent Edn., Vol. 8-A,  the  following  passages  culled  out  from  certain  old  decisions of the American courts are found:

"...adult  females  understanding  of  nature  and  consequences of sexual act must be intelligent  understanding to constitute consent."

Consent  within  penal  law,  defining  rape,  requires  exercise  of  intelligence  based  on  knowledge  of  its  significance  and moral  quality  and there must  be  a  choice between resistance and assent..."

16. In view of the above, we do not find fault with the impugned  

judgment  and  order.   The  appeal  is  liable  to  be  dismissed  and  is  

accordingly dismissed.

17. Before  parting  with  the  case,  we  would  like  to  express  our  

anguish that the prosecution could have been more careful  and the  

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trial  Court  could  have  shown  more  sensitivity  towards  the  case  

considering its facts and circumstances.

In  Delhi  Domestic  Working Women’s Forum v.  Union of  

India & Ors., (1995) 1 SCC 14, this Court found that in the cases of  

rape, the investigating agency as well as the Subordinate courts some  

times adopt totally a indifferent attitude towards the prosecutrix and  

therefore,  this  court  issued  following  directions  in  order  to  render  

assistance to the victims of rape:

“(1) The complainants of sexual assault cases should  be provided with legal representation. It is important  to  have  someone  who  is  well-acquainted  with  the  criminal  justice  system.  The  role  of  the  victim's  advocate would not only be to explain to the victim  the nature of the proceedings, to prepare her for the  case and to assist her in the police station and in court  but to provide her with guidance as to how she might  obtain help of a different nature from other agencies,  for example, mind counselling or medical assistance.  It  is  important to secure continuity of assistance by  ensuring that the same person who looked after the  complainant's interests in the police station represent  her till the end of the case.

(2) Legal assistance will  have to be provided at the  police station since the victim of sexual assault might  very well be in a distressed state upon arrival at the  police station, the guidance and support of a lawyer at  this stage and whilst she was being questioned would  be of great assistance to her.

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(3) The police should be under a duty to inform the  victim  of  her  right  to  representation  before  any  questions were asked of her and that the police report  should state that the victim was so informed.

(4) A list  of advocates willing to act in these cases  should be kept at the police station for victims who  did  not  have  a  particular  lawyer  in  mind or  whose  own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon  application  by  the  police  at  the  earliest  convenient  moment,  but  in  order  to  ensure  that  victims  were  questioned without undue delay, advocates would be  authorised to act at the police station before leave of  the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be  maintained, as far as necessary.

(7)  It  is  necessary,  having  regard  to  the  Directive  Principles  contained  under  Article  38(1)  of  the  Constitution  of  India  to  set  up  Criminal  Injuries  Compensation  Board.  Rape victims frequently incur  substantial financial loss. Some, for example, are too  traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the  court  on  conviction  of  the  offender  and  by  the  Criminal Injuries Compensation Board whether or not  a conviction has taken place. The Board will take into  account pain, suffering and shock as well as loss of  earnings due to pregnancy and the expenses of child  birth if this occurred as a result of the rape.”

18. Undoubtedly, any direction issued by this Court is binding on  

all the courts and all civil authorities within the territory of India.

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In addition thereto, it is an obligation on the part of the State  

authorities and particularly, the Director General of Police and Home  

Ministry of the State to issue proper guidelines and instructions to the  

other  authorities  as  how to deal  with such cases and what kind of  

treatment  is  to  be  given  to  the  prosecutrix,  as  a  victim  of  sexual  

assault requires a totally different kind of treatment not only from the  

society but  also from the State  authorities.   Certain care has to be  

taken by the Doctor who medically examine the victim of rape.  The  

victim  of  rape  should  generally  be  examined  by  a  female  doctor.  

Simultaneously, she should be provided the help of some psychiatric.  

The medical report should be prepared expeditiously and the Doctor  

should examine the victim of rape thoroughly and give his/her opinion  

with  all  possible  angle  e.g.  opinion  regarding  the  age  taking  into  

consideration  the  number  of  teeths,  secondary  sex  characters,  and  

radiological test, etc.  The Investigating Officer must ensure that the  

victim  of  rape  should  be  handled  carefully  by  lady  police  

official/officer,  depending  upon  the  availability  of  such  

official/officer.  The victim should be sent for medical examination at  

the earliest and her statement should be recorded by the I.O. in the  

presence  of  her  family  members  making  the  victim  comfortable  

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except  in  incest  cases.   Investigation  should  be  completed  at  the  

earliest to avoid the bail to the accused on technicalities as provided  

under Section 167 Cr.P.C. and final report should be submitted under  

Section 173 Cr.P.C., at the earliest.

We request the learned Chief Secretary of the State of M.P. to  

examine  the  aforesaid  observations  made  by  us  and  issue  

comprehensive guidelines in these regards, at the earliest.

A copy of this judgment  be sent to the learned Chief Secretary,  

M.P. through Ms. Vibha Datta Makhija, learned Standing counsel for  

the State.   

……………………………………........................J.  (DR. B.S. CHAUHAN)  

                                                                ………………………………................................. J.                                     (FAKKIR MOHAMED IBRAHIM KALIFULLA)  

NEW DELHI;  APRIL 16,  2013         

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