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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1209 OF 2010

Jarnail Singh ... Appellant

Versus

State of Haryana ... Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The factual position on which the prosecution version is founded,  

commences with the passing of information by Savitri Devi (the mother  

of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8,  

on  26.3.1993,  at  about  6  am.   She informed  her  husband,  that  the  

prosecutrix VW - PW6 was missing from their residence.  In this behalf  

it  would be pertinent to mention, that on 25.3.1993 at  about 10 pm,  

Jagdish Chander went to sleep in the “baithak” (drawing room) of their  

residence.  Savitri Devi, the mother of the prosecutrix VW - PW6, along  

with the prosecutrix VW - PW6, and the other children (comprising of  

three sons, the prosecutrix VW – PW6 and one other daughter), went to  

sleep in the other rooms of the house.  Savitri Devi, told her husband,  

that  she  suspected  the  accused-appellant  Jarnail  Singh,  may  be  

responsible for having taken away their daughter.

2. Jagdish Chander-PW8,  commenced to search for his daughter.  

During the course of the aforesaid search, the accused-appellant Jarnail  

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Singh,  who  had  his  residence  in  the  neighbourhood  (of  Jagdish  

Chander-PW8), was also found missing from his residence.  The search  

for the prosecutrix VW - PW6 by her father, proved futile.  It is therefore,  

that Jagdish Chander-PW8, made a complaint Exhibit PO on 27.3.1993  

to the Sub-Inspector Incharge, Police Post, Jathlana.  In his complaint,  

he described VW - PW6, as the elder of his two daughters.  He gave out  

her age as about 16 years.  He also alleged, that his daughter VW -  

PW6 had gone missing from their residence in the night intervening 25th  

and 26th March, 1993.  He also alleged, that an amount of Rs.3,000/-  

was missing from his house, which he assumed may have been taken  

away by  his  daughter  VW  -  PW6,  while  leaving  the  house.   In  the  

complaint  Exhibit  PO,  the  needle  of  suspicion  was  pointed  at  the  

accused-appellant Jarnail Singh.

3. After the registration of the complaint of Jagdish Chander-PW8,  

the  prosecutrix  VW  -  PW6  was  recovered  on  29.3.1983,  from  the  

custody  of  the  accused-appellant  Jarnail  Singh,  from  the  house  of  

Shashi  Bhan at  Raipur  in  district  Haridwar.   The  accused-appellant  

simultaneously came to be arrested, on 29.3.1993.

4. The statement of  the prosecutrix VW - PW6 was got recorded  

under  Section  164  of  the  Code  of  Criminal  Procedure  before  O.P.  

Verma,  Judicial  Magistrate  First  Class,  Jagadhri  on  6.4.1993.   It  is  

necessary in the facts and circumstances of this case to extract herein  

her short statement recorded under Section 164 of the Code of Criminal  

Procedure, which is being reproduced hereunder:

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“Stated that on the night of 25.3.1993 at around 11 pm, I went to a  street near my house to answer nature’s call.   Accused Jarnail  Singh and his three accomplices were hiding there.  When I got  up after answering nature’s call, then they caught hold of me and  inhaled me something by cloth, due to which, I got unconscious.  They took me to some unknown place in U.P. by putting me in  some vehicle.  There they took me to a room.

Jarnail Singh, forcibly committed wrong (intercourse) with me.  I  slapped on his face, then he put cloth in my mouth.  Therefore, I  could not raise noise.  Thereafter, everyone committed forcible  intercourse with me, turn by turn.  Huge blood came out of my  vagina, and I felt a lot of pain.  Thereafter, police caught us and  handed over me to my parents.”

5. On completion of  investigation,  a challan was presented under  

Sections 366, 376 and 120 of the Indian Penal Code.  The matter was  

committed  to  the  Court  of  Sessions,  Jagadhri,  whereupon,  it  was  

marked  to  the Additional  Sessions  Judge,  Jagadhri.   The Additional  

Sessions  Judge,  Jagadhri  framed  charges  on  20.12.1993.   The  

accused-appellant pleaded not guilty, and claimed trial.

6. In order to bring home the charges levelled against the accused-

appellant,  the  prosecution  examined  9  witnesses.   Thereafter,  the  

prosecution  evidence  was  closed.   The  statement  of  the  accused-

appellant Jarnail  Singh, was then recorded under Section 313 of  the  

Code of Criminal Procedure.  He denied the allegations levelled against  

him, and pleaded false implication.  Despite opportunity having been  

afforded to him, the accused-appellant did not lead any evidence, in his  

defence.

7. It is necessary to record, that on the culmination of the trial, the  

Additional Sessions Judge, Jagadhri arrived at the conclusion, that the  

prosecution  had  been  able  to  bring  home the  guilt  of  the  accused-

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appellant beyond any shadow of reasonable doubt, under Sections 366,  

376(g)  and 120-B of  the Indian Penal  Code.   The accused-appellant  

Jarnail Singh was accordingly held guilty of the charges levelled against  

him.  The Additional Sessions Judge, Jagadhri gave an opportunity of  

hearing  to  the  accused-appellant  Jarnail  Singh  on  the  question  of  

sentence.  Thereupon, for the offence under Section 376(g) of the Indian  

Penal Code the accused-appellant was awarded rigorous imprisonment  

for 10 years, he was also required to pay a fine of Rs.200/- (in case of  

default in payment of fine, the accused-appellant was to undergo further  

rigorous imprisonment for 3 months).  For the offence under Section 366  

of the Indian Penal Code, the accused-appellant was awarded rigorous  

imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in  

case of default in payment of fine, the accused-appellant was to undergo  

further rigorous imprisonment for 3 months).  And for the offence under  

Section 120-B of  the Indian Penal  Code,  the accused-appellant  was  

awarded rigorous imprisonment for 7 years, and was required to pay a  

fine of  Rs.150/-  (in  case of  default  in  payment  of  fine,  the accused-

appellant was to undergo further rigorous imprisonment for 3 months).  

The aforesaid sentences were ordered to run concurrently.

8. Dissatisfied with the judgment dated 14.3.1995, rendered by the  

trial  Court,  the  accused-appellant  Jarnail  Singh  preferred  Criminal  

Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at  

Chandigarh (hereinafter referred to as, the High Court).  The High Court  

dismissed the appeal preferred by the accused-appellant on 4.11.2008.  

The judgment of conviction dated 14.3.1995 and the order of sentence  

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dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions  

Judge, Jagadhri) were upheld.

9. Dissatisfied with the judgment of the trial Court dated 14.3.1995  

and that of the appellate Court dated 4.11.2008, the accused-appellant  

Jarnail  Singh approached this Court.  On 7.7.2010, this Court granted  

leave,  in  the Petition for  Special  Leave to Appeal  (Crl.)  no.  7836 of  

2009, filed by the accused-appellant.  Having traversed the aforesaid  

course, the instant criminal appeal has finally been placed before us, for  

adjudication.

10. Before  dealing  with  the issues  canvassed at  the hands of  the  

learned counsel for the accused-appellant Jarnail Singh, it is considered  

expedient  to  have  a  bird’s  eye  view  of  the  relevant  prosecution  

witnesses.   It  is,  therefore,  that we shall  endeavour to deal  with the  

testimony of some of the prosecution witnesses hereunder:

(i) Dr.  Kanta  Dhankar  was  produced by  the  prosecution  as  

PW1.   She had medico-legally  examined the prosecutrix  

VW  -  PW6  on  29.3.1993  at  3  pm.   According  to  her  

testimony,  no  blood  or  seminal  stain  was  visible  to  the  

naked  eye,  during  the  course  of  examination  of  the  

prosecutrix VW - PW6.  Pubic hairs were present.  There  

was no visible  injury  on the external  genitalia  or  vagina.  

The  hymen  of  the  prosecutrix  VW  -  PW6  was  found  

ruptured.   Her  vagina  admitted  2/3  fingers  easily.   The  

clothes of the prosecutrix VW - PW6, a swab taken from  

her vagina and her pubic  hair,  were sent to the forensic  

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science  laboratory  for  examination,  so  as  to  determine  

whether there was any semen or blood thereon.  Along with  

the testimony of Dr. Kanta Dhankar- PW1, it is necessary to  

record,  that  as  per  the  report  of  the  forensic  science  

laboratory (Exhibit PL), human semen was detected on the  

prosecutrix’s “salwar”  (female trouser),  her underwear,  as  

also, on her pubic hair.  The report of the serologist (Exhibit  

PL/1) further revealed medium and small sized blood stains  

on the “salwar”.  The report of the serologist also disclosed,  

that the stains on the “salwar” were of human blood.

(ii) Dr.  Satnam  Singh-PW2,  was  the  second  witness  to  be  

examined  by  the  prosecution.   He  had  medico-legally  

examined the accused-appellant Jarnail Singh.  Dr. Satnam  

Singh-PW2, while deposing before the trial Court affirmed,  

that  the  accused-appellant  was  capable  of  sexual  

intercourse.

(iii) The prosecution then examined Moti  Ram as PW3.  Moti  

Ram testified, that he was present when the prosecutrix VW  

- PW6,  was recovered whilst  in  custody of  the accused-

appellant,  from  the  house  of  Shashi  Bhan at  Raipur,  in  

district Haridwar.  Moti Ram also affirmed the presence of  

Om Prakash,  Jagmal  and Sumer  Chand,  along  with  the  

police party, at the time of recovery of the prosecutrix VW -  

PW6,  on  29.3.1993.   Moti  Ram  had  identified  the  

prosecutrix VW - PW6, at the time of her said recovery.

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(iv) Satpal  was  produced  by  the  prosecution  as  its  fourth  

witness.   Satpal-PW4  was  the  Headmaster  of  the  

Government High School,  Jathlana,  i.e.  the school  which  

the prosecutrix VW - PW6, had first attended.  Satpal-PW4  

proved the certificate Exhibit PG, as having been prepared  

on the basis of the school records.  As per the certificate,  

Exhibit  P4,  the  prosecutrix  VW  -  PW6  was  born  on  

15.5.1977.

(v) The prosecutrix appeared as PW6 before the trial  Court.  

She affirmed the factual  position expressed by her father  

Jagdish  Chander-PW8  in  his  complaint  dated  27.3.1993  

(Exhibit  PO).   She  also  reiterated  the  factual  position  

expressed by her, in her statement, recorded under Section  

164 of the Code of  Criminal  Procedure, on 6.4.1993.  In  

sum and substance she asserted, that she had studied upto  

class  3  at  the  Government  High  School,  Jathlana,  

whereafter, she started to do household work at home.  On  

25.3.1993 at about 11 pm, she had gone out of her house to  

urinate in the street.  The accused-appellant Jarnail Singh  

and three other persons had caught hold of her, and had  

taken her in a tanker towards Raipur side in Uttar Pradesh.  

The  accused-appellant  Jarnail  Singh  and  his  three  

accomplices, had then raped her in a small room.  She also  

testified,  that she had been recovered by the police from  

Raipur, and at the time of her recovery, Moti Ram-PW3 and  

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her uncle Omilal  (Om Prakash) and Jagmal were present  

with the police party. Thereafter, she claims to have been  

brought to police post Jathlana, and was got medico-legally  

examined by a lady doctor at Civil Hospital, Radaur.  Since  

the prosecutrix VW - PW6,  was not disclosing the entire  

factual position, and seemed to be changing the version of  

her statement recorded under Section 164 of the Code of  

Criminal  Procedure,  the  Public  Prosecutor  sought  

permission to cross-examine her.  Consequent upon being  

permitted to cross-examine the prosecutrix VW - PW6, she  

affirmed, that the accused-appellant had been alluring her  

for marriage, with the promise of giving her ornaments and  

clothes, and a further commitment to move her to the city,  

after  their  marriage.   During  these  allurements,  the  

accused-appellant Jarnail Singh used to also impress upon  

her,  that  her  parents  were poor  and would  marry  her  to  

some poor person, who would never be able to provide her  

such facilities.  During her cross-examination, she expressly  

denied  the  suggestion,  that  she  herself  had  allured  the  

accused-appellant Jarnail Singh, to take her away, in order  

to marry him.

(vi) O.P.  Verma,  Judicial  Magistrate  First  Class,  Jagadhri,  

appeared  as  PW7.   He  proved  the  statement,  recorded  

before  him  under  Section  164  of  the  Code  of  Criminal  

Procedure, by the prosecutrix VW - PW6, on 6.4.1993.

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(vii) Jagdish Chander-PW8, the father of the prosecutrix VW -  

PW6  during  the  course  of  his  deposition,  affirmed  the  

factual position depicted in his complaint dated 27.3.1993  

(Exhibit  PO).   He also  corroborated the testimony of  his  

daughter (i.e.,  the prosecutrix VW  - PW6)  in all  material  

particulars.  

The conviction of the accused-appellant at the hands of the trial Court  

(on 14.3.1995)  and by  the  High  Court  (on 4.11.2008)  was  primarily  

based  on  the  statements  of  the  prosecution  witnesses  summarised  

above.   

11. We shall now endeavour to deal with the submissions advanced  

at the hands of the learned counsel for the accused-appellant.   

12. The first and foremost contention advanced at the hands of the  

learned counsel for the accused-appellant was, that the prosecutrix VW  

-  PW6,  had voluntarily  and with  her  free  consent,  accompanied  the  

accused-appellant Jarnail Singh.  It was contended, that in actuality, it  

was the prosecutrix VW - PW6 who had allured the accused-appellant  

to marry her, and had persuaded him to take her away during the night  

intervening  25th and  26th March,  1993.   In  order  to  substantiate  the  

instant submission, it  was pointed out that the prosecutrix VW - PW6  

has remained with the accused Jarnail Singh for four days without any  

protestation.   During  the  course  of  the  aforesaid  four  days  in  the  

company of the accused-appellant Jarnail Singh, they had travelled from  

one place to another, and had finally reached the house of Shashi Bhan  

at Raipur (from where the police recovered her on 29.3.1993).  It was  

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submitted, that there was ample opportunity with her, to raise an alarm  

during the aforestated four days.  The fact that she did not raise any  

alarm  shows,  that  she  had  voluntarily  remained  with  the  accused-

appellant Jarnail Singh.  Therefore, sexual intercourse with the accused-

appellant  Jarnail  Singh,  according  to  learned  counsel,  was  also  

consensual.  Thus viewed, it was asserted, that the accused-appellant  

Jarnail  Singh could  not  be  accused  of  either  having  kidnapped  her,  

and/or having committed rape on her.   

13. On the same issue,  learned counsel  for  the accused-appellant  

also invited our attention to the fact,  that in the complaint  lodged by  

Jagdish Chandra (PW8), dated 27.3.1993, he had expressly mentioned  

that the prosecutrix had taken away a sum of Rs.3,000/-.  In this behalf it  

was submitted that the instant act of the prosecutrix exhibits that she  

had taken money from her father’s house to make good her escape in  

the company of the accused-appellant Jarnail Singh.  It is sought to be  

inferred from the above, that the prosecutrix VW - PW6 had gone with  

the accused-appellant Jarnail Singh, of her own free will.  And, that she  

had  sexual  intercourse  with  him  consensually.   For  the  reasons  

indicated hereinabove, it  was the vehement contention of the learned  

counsel for the accused-appellant Jarnail  Singh, that the courts below  

had  seriously  erred  in  recording  the  appellant’s  conviction  under  

Sections 366, 376 and 120-B of the Indian Penal Code.   

14. We have given our thoughtful consideration to the first contention  

advanced at the hands of the learned counsel for the accused-appellant.  

We  shall  venture  to  determine  the  factual  aspects  taken  into  

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consideration by the learned counsel for the appellant, to substantiate  

the  alleged  free  will  and  consent  of  the  prosecutrix  VW  -  PW6  

individually  ,so  as  to  effectively  determine  the  veracity  of  the  

submissions noticed above.

15. In so far as the issue of having gone with the accused-appellant  

Jarnail Singh of her own free will, and of having had sexual intercourse  

with him consensually, it is necessary only to examine the uncontested  

deposition  of  the prosecutrix  VW  -  PW6.   In  this  behalf,  it  may  be  

pointed out, that in her statement recorded under Section 164 of the  

Code of Criminal Procedure before the Judicial Magistrate, First Class,  

Jagadhari  on  6.4.1993,  the  prosecutrix  VW  –  PW6  had  expressly  

asserted, that she was forcibly taken away on 25.3.1993, when she had  

gone out of her house to urinate in the street, by Jarnail Singh and his  

three accomplices.  She had clearly and categorically testified, that all  

the four had caught hold of her.  They had made her inhale something,  

which  rendered  her  unconscious.   She  had  further  stated,  that  the  

accused-appellant Jarnail  Singh and his accomplices, had then taken  

her to some unknown place in Uttar Pradesh in a vehicle where Jarnail  

Singh  forcibly  attempted  to  commit  intercourse  with  her.   At  that  

juncture,  she had slapped Jarnail  Singh on his  face,  but  in  order  to  

subjugate  her,  he had put  a  cloth  in  her  mouth to  prevent  her from  

raising an alarm.  Thereafter, the accused-appellant Jarnail  Singh and  

his accomplices had committed forcible intercourse with her, one after  

the other.  In her statement before the Trial Court, where she appeared  

as PW6, she had reiterated clearly the position of having been taken  

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away  by  the  accused-appellant  Jarnail  Singh,  and  his  three  

accomplices.  She affirmed, that she was taken away in a tanker to Uttar  

Pradesh and then all the accused had committed rape on her in a small  

room.  On the aforestated aspect of the matter, she was not subjected to  

cross-examination at the behest of the accused.  Only a suggestion was  

put to her, that she had persuaded the accused-appellant Jarnail Singh  

to take her away, in order to perform marriage with her, and for the said  

purpose  had  taken  away  cash,  clothes  and  jewellery  from her  own  

residence.  The aforestated suggestion was denied by the prosecutrix  

VW - PW6.  Keeping in view the statement of the prosecutrix VW - PW6  

under Section 164 of the code of Criminal procedure before the Judicial  

Magistrate, First Class, Jagadhri, as also, the statement made by her  

while appearing before the trial court, and the manner in which she was  

subjected to cross-examination, there is no room for any doubt, that the  

prosecutrix was forcefully taken away, and that, she was subjected to  

rape at the hands of the accused-appellant Jarnail Singh and his three  

accomplices.   It  may still  have been understandable,  if  the case had  

been, that she had consensual sex with the accused-appellant alone.  

But  consensual  sex  with  four  boys  at  the  same  time,  is  just  not  

comprehensible.   Since  the  fact,  that  the  accused-appellate  Jarnail  

Singh  and  the  prosecutrix  VW  –  PW6  had  eloped  together  is  not  

disputed.   And furthermore,  since  the  accused-appellant  having  had  

sexual intercourse with the prosecutrix is also the disputed.  It is just not  

possible to accept the proposition canvassed on behalf of the accused-

appellant.  We, therefore, find no merit in the instant submission.

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16. The contention advanced at the hands of the learned counsel for  

the accused-appellant  Jarnail  Singh, that while  leaving her house on  

25.3.1993,  the  prosecutrix  VW  –  PW6,  had  taken  away  a  sum  of  

Rs.3,000/-,  needs a holistic  examination.  Whilst  it  is  true that in the  

complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW -  

PW6, had categorically mentioned that a sum of Rs.3,000/- was missing  

from  his  residence,  and  the  said  fact  was  duly  mentioned  in  his  

complaint  to  the police  dated 27.3.1993,  yet  he had not  accuse the  

prosecutrix VW - PW6 for having taken it away.  The instant aspect, in  

our  considered  view  pales  into  insignificance,  on  account  of  the  

statement  made  by  Jagdish  Chandra  (PW8)  before  the  Trial  Court.  

During  the  course  of  his  deposition  before  the  Trial  Court,  he  had  

asserted, that he had mentioned that a sum of Rs.3,000/- was missing  

from his residence, but his wife  Savitri  Devi  had found the aforesaid  

money from the residence itself,  a  few days  later.   Accordingly,  the  

assertion  made  by  the  learned  counsel  representing  the  accused-

appellant to the effect that the prosecutrix VW - PW6 had taken away a  

sum of Rs.3,000/-, when she left the house of her father on 25.3.1993,  

cannot be stated to have been duly proved.  Besides the aforesaid, it is  

apparent from the cross-examination of the prosecutrix VW - PW6, that  

a suggestion was put to her that besides cash, she had taken away  

clothes  and  jewellery  at  the  time  of  leaving  her  father’s  house  on  

25.3.1993.  The prosecutrix VW - PW6 expressly denied the suggestion.  

There is no material on the record of the case to substantiate the said  

allegation.  Therefore, it is not possible for us to accept the accusation  

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levelled by the accused-appellant Jarnail Singh against the prosecutrix  

VW  -  PW6,  either  on  the  issue  of  having  taken  away  a  sum  of  

Rs.3,000/-  while  leaving  her  house,  or  that  she  left  her  house  on  

25.3.1993 along with clothes and jewellery.  Accordingly, the inference  

drawn by assuming the said factual  position as true, simply does not  

arise.   

17. The first contention advanced at the hands of the learned counsel  

for  the  appellant  can  be  conveniently  determined  from  another  

perspective.   The  High  Court  in  the  impugned  order  arrived  at  the  

conclusion that the prosecutrix VW - PW6 was a minor at the time of  

occurrence  on  25.3.1993,  and  had  concluded,  that  even  if  she  had  

accompanied the accused-appellant Jarnail Singh on 25.3.1993 of her  

own free consent, and even if she had had sexual intercourse with the  

accused consensually, the same would be immaterial.  For, consent of a  

minor is inconsequential.   

18. During  the  course  of  hearing  of  the  present  appeal,  learned  

counsel for the appellant vehemently contested the determination of the  

High Court in the impugned judgment, wherein it had concluded, that the  

prosecutrix VW - PW6 was a minor.  Insofar as the instant aspect of the  

matter is concerned, it  was pointed out, that the sexual organs of the  

prosecutrix VW - PW6 were found to be fully developed by Dr. Kanta  

Dhankar- PW1.  Her hymen was found to be ruptured.  It was also seen  

during the medico-legal examination of the prosecutrix VW - PW6, that  

the vagina admitted two/three fingers easily.  Learned counsel for the  

appellant-accused Jarnail Singh, also invited our attention to the cross-

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examination of Dr. Kanta Dhankar-(PW1),  wherein she acknowledged  

having mentioned the age of the prosecutrix VW - PW6 as 15 years, on  

the basis of the statement made by the prosecutrix to her.  Dr. Kanta  

Dhankar-PW1  had  also  acknowledged,  that  she  had  not  got  the  

ossification test conducted on the prosecutrix VW - PW6 to scientifically  

determine the age of the prosecutrix.  Based on the aforesaid, it  was  

averred that there was no concrete material on the record of the case,  

on the basis of which it could have been concluded by the High Court,  

that the prosecutrix was a minor on the date of occurrence.

19. In order to support his contention, that the prosecutrix was not a  

minor at the time of occurrence, learned counsel for the appellant placed  

reliance on the judgment rendered in Sunil  vs.  State of Haryana, AIR  

2010 SC 392.  Ordinarily, we would have extracted the observations on  

which reliance was placed, but for reasons that would emerge from our  

conclusion, we consider it inappropriate to do so.   

20. On the issue of determination of age of a minor, one only needs to  

make  a  reference  to  Rule  12  of  the  Juvenile  Justice  (Care  and  

Protection of Children) Rules, 2007 (hereinafter referred to as the 2007  

Rules).  The aforestated 2007 Rules have been framed under Section  

68(1)  of  the  Juvenile  Justice  (Care  and Protection  of  Children)  Act,  

2000.  Rule 12 referred to hereinabove reads as under :

“12. Procedure to be followed in determination of Age.― (1) In  every case concerning a child or a juvenile in conflict with law, the  court or the Board or as the case may be the Committee referred  to  in  rule  19  of  these  rules  shall  determine  the  age  of  such  juvenile or child or a juvenile in conflict with law within a period of  

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thirty  days from the date of  making of   the application for that  purpose.   

(2) The court or the Board or as the case may be  the Committee  shall decide the juvenility or  otherwise of the juvenile or the child  or as the  case may be the juvenile in conflict with law,  prima  facie  on  the  basis  of  physical  appearance  or  documents,  if  available, and send him to the  observation home or in jail.   

(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 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.   

(4) If the age of a juvenile or  child or the juvenile  in conflict with  law is found to be below 18  years on the date of offence, on the  basis of any of the conclusive  proof specified in sub-rule (3),  the  court or the Board or as the case may be the Committee shall in  writing pass an order stating  the age and declaring the status of  juvenility or otherwise, for the purpose of the Act and these  rules  

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and a copy of the order  shall  be given to such juvenile or the  person concerned.   

(5)  Save  and  except  where,  further  inquiry  or  otherwise  is  required, inter alia, in terms of section  7A, section 64 of the Act  and these rules, no further inquiry shall be conducted by the court  or  the Board after examining and obtaining the certificate or any  other documentary proof referred  to in sub-rule (3) of this rule.   

(6) The provisions contained in this rule shall  also apply to those  disposed off cases, where the  status of juvenility has not been  determined  in accordance with the provisions contained in sub-  rule(3) and the Act, requiring dispensation of the sentence under  the  Act   for  passing  appropriate   order  in  the  interest  of  the  juvenile in conflict with law.”    

Even though Rule 12 is strictly applicable only to determine the age of a  

child in conflict with law, we are of the view that the aforesaid statutory  

provision should be the basis for determining age, even for a child who  

is a victim of crime.  For, in our view, there is hardly any difference in so  

far as the issue of minority is concerned, between a child in conflict with  

law, and a child who is a victim of crime.  Therefore, in our considered  

opinion, it would be just and appropriate to apply Rule 12 of the 2007  

Rules, to determine the age of the prosecutrix VW-PW6.  The manner of  

determining  age conclusively,  has been expressed in  sub-rule  (3)  of  

Rule 12 extracted above.  Under the aforesaid provision, the age of a  

child  is  ascertained,  by  adopting  the  first  available  basis,  out  of  a  

number of options postulated in Rule 12(3).  If, in the scheme of options  

under Rule 12(3), an option is expressed in a preceding clause, it has  

overriding effect over an option expressed in a subsequent clause.  The  

highest rated option available, would conclusively determine the age of  

a  minor.   In  the scheme of  Rule  12(3),  matriculation (or  equivalent)  

certificate of the concerned child, is the highest rated option.  In case,  

the said certificate is available, no other evidence can be relied upon.  

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Only  in  the  absence  of  the  said  certificate,  Rule  12(3),  envisages  

consideration of the date of birth entered, in the school first attended by  

the child.  In case such an entry of date of birth is available, the date of  

birth depicted therein is liable to be treated as final and conclusive, and  

no other material  is  to be relied upon.  Only in the absence of  such  

entry, Rule 12(3) postulates reliance on a birth certificate issued by a  

corporation or a municipal authority or a panchayat.  Yet again, if such a  

certificate is available, then no other material whatsoever is to be taken  

into consideration, for determining the age of the child concerned, as the  

said certificate would conclusively determine the age of the child.  It is  

only in the absence of any of the aforesaid, that Rule 12(3) postulates  

the determination of age of the concerned child, on the basis of medical  

opinion.   

21. Following the scheme of Rule 12 of the 2007 Rules, it is apparent  

that the age of the prosecutrix VW - PW6 could not be determined on  

the  basis  of  the  matriculation  (or  equivalent)  certificate  as  she  had  

herself deposed, that she had studied upto class 3 only, and thereafter,  

had  left  her  school  and  had  started  to  do  household  work.   The  

prosecution  in  the  facts  and  circumstances  of  this  case,  had  

endeavoured to establish the age of the prosecutrix VW-PW6, on the  

next available basis, in the sequence of options expressed in Rule 12(3)  

of the 2007 Rules.  The prosecution produced Satpal (PW4), to prove  

the age of the prosecutrix VW – PW6.  Satpal  (PW4) was the Head  

Master of the Government High School, Jathlana, where the prosecutrix  

VW - PW6 had studied upto class 3.  Satpal  (PW4) had proved the  

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certificate Exhibit-PG, as having been made on the basis of the school  

records  indicating,  that  the  prosecutrix  VW  -  PW6,  was  born  on  

15.5.1977.  In the scheme contemplated under Rule 12(3) of the 2007  

Rules, it is not permissible to determine age in any other manner, and  

certainly  not  on  the  basis  of  an  option  mentioned  in  a  subsequent  

clause.  We  are therefore of  the view,  that the High Court  was fully  

justified in relying on the aforesaid basis for establishing the age of the  

prosecutrix VW – PW6.  It would also be relevant to mention, that under  

the scheme of Rule 12 of the 2007 Rules, it would have been improper  

for the High Court to rely on any other material including the ossification  

test,  for  determining  the  age  of  the  prosecutrix  VW-PW6.   The  

deposition of Satpal-PW4 has not been contested.  Therefore, the date  

of  birth  of  the  prosecutrix  VW  -  PW6  (indicated  in  Exhibit  P.G.,  as  

15.7.1977) assumes finality.  Accordingly it is clear, that the prosecutrix  

VW-PW6, was less than 15 years old on the date of occurrence, i.e., on  

25.3.1993.  In the said view of the matter, there is no room for any doubt  

that the prosecutrix VW - PW6 was a minor on the date of occurrence.  

Accordingly, we hereby endorse the conclusions recorded by the High  

Court,  that  even  if  the  prosecutrix  VW-PW6  had  accompanied  the  

accused-appellant  Jarnail  Singh  of  her  own  free  will,  and  had  had  

consensual  sex  with  him,  the  same  would  have  been  clearly  

inconsequential, as she was a minor.

22. Since the judgment relied  upon by the learned counsel  for  the  

appellant  is  distinguishable  on facts.   And since the judgment relied  

upon, had not made any reference to the 2007 Rules, we are of the view  

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that the same would not be relevant for the purposes of determining the  

age of the prosecutrix VW - PW6, specially  in the background of the  

evidence led by the prosecution through Satpal (PW4) to establish.

23. The next contention advanced at the hands of the learned counsel  

for the accused-appellant Jarnail Singh was, that the oral testimony of  

the prosecutrix VW  - PW6 ought not to be accepted as sufficient  to  

return a  finding  of  guilt  against  the accused-appellant  Jarnail  Singh.  

Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is  

pointed that there were a number of discrepancies and contradictions  

therein.  It  was submitted, that such discrepancies can be seen on a  

comparison of her deposition before the trial Court, with the statement of  

the prosecutrix  recorded under  Section 164 of  the Code of  Criminal  

Procedure  on  6.4.1993,  as  also,  the  statement  of  the  prosecutrix  

recorded by the Investigating Officer under Section 161 of the Code of  

Criminal Procedure on 29.3.1993.  

24. We have given our thoughtful consideration to the above noted  

submission,  advanced  at  the  hands  of  the  learned  counsel  for  the  

appellant.   We,  however,  find  no  merit  therein.   It  is  not  as  if  the  

prosecution version is entirely based on the statement of the prosecutrix  

VW - PW6.  It would be relevant to mention, that her recovery from the  

custody of the accused-appellant Jarnail Singh from the house of Shashi  

Bhan, at Raipur, is sought to be established from the statement of Moti  

Ram-PW3.  There can therefore be no room for any doubt, that after she  

was found missing from her father’s residence on 25.3.1993, and after  

her father Jagdish Chandra-PW8 had made a complaint to the police on  

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27.3.1993,  she  was  recovered  from  the  custody  of  the  accused-

appellant  Jarnail  Singh.   Thereafter,  the prosecutrix  VW  -  PW6 was  

subjected to medico-legal  examination by Dr. Kanta Dhankar-PW1 on  

29.3.1993  itself  at  3.00  p.m.   Dr.  Kanta  Dhankar-PW1,  in  her  

independent testimony, affirmed that she had been subjected to sexual  

intercourse, inasmuch as her hymen was found ruptured.  Even though  

the visual examination of the prosecutrix VW – PW6, during the course  

of her medico-legal examination did not reveal the presence of semen or  

blood, yet the report of the forensic science laboratory (Exhibit PL) and  

of the Serologist (Exhibit PL/1) clearly establish the presence of semen  

on her salwar, underwear and pubic hair.  The serologist’s report also  

disclose, medium and small  blood stains on her “salwar”.  In her own  

deposition,  she  had  mentioned  that,  when  she  was  raped  by  the  

accused-appellant  Jarnail  Singh  and  his  accomplices,  bleeding  had  

taken place and she had felt  pain, and her clothes were stained with  

blood.  Her deposition stands scientifically substantiated by Exhibits PL  

and PL/1.   The suggestion put to the prosecutrix VW  – PW6 at  the  

behest of the accused-appellant Jarnail Singh, during the course of her  

cross-examination,  that  she  had  accompanied  the  accused-appellant  

Jarnail Singh, of her own free will and had had sexual intercourse with  

him consensually,  leaves no room for any doubt, that she was in his  

company,  and  that,  he  had  had  sexual  intercourse  with  her.   The  

assertion  that  the  prosecutrix  VW  –  PW6  had  accompanied  the  

accused-appellant Jarnail  Singh, and had had sexual intercourse with  

him  consensually  is  completely  ruled  out,  because  as  per  the  

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substantiated prosecution version, the prosecutrix VW - PW6 was not  

taken away by the accused-appellant Jarnail Singh alone, but also, by  

his three accomplices.  All  the four of them had similarly violated her  

person.  Additionally, in her statement under Section 164 of the Code of  

Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the  

first instance, after having caught hold of her, the accused had made her  

inhale  something  from  a  cloth  which  had  made  her  unconscious.  

Thereafter,  when  the  accused-appellant  Jarnail  Singh  attempted  to  

commit intercourse with her, she had slapped him.  He had then put a  

cloth in her mouth, to stop her from raising an alarm.  Thereafter, each  

one of the accomplices had committed forcible intercourse with her in  

turns.  The factum of commission of forcible intercourse by the accused-

appellant,  as also,  his  accomplices was reiterated by her during her  

testimony before the Trial Court as PW6.  Besides the aforesaid, there  

is a statement of her own father, Jagdish Chandra (PW8) who also in  

material  particulars had corroborated the testimony of the prosecutrix  

VW - PW6.  The prosecutrix VW – PW6, was not subjected to cross-

examination on any of these issues.  Nor was the prosecutrix confronted  

with either the statements made by her under Section 161 or Section  

164 of the Code of Criminal Prosecution, so as to enable her to explain  

discrepancies,  if  any.   Therefore,  we  find  no  merit  at  all,  in  the  

submission advanced by the learned counsel.  In the above view of the  

matter, we are satisfied that there was substantial material corroborating  

the  statement  of  the  prosecutrix  VW  -  PW6,  for  an  unequivocal  

determination of the guilt of the accused-appellant Jarnail Singh.

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25. No other submission besides those dealt with hereinabove, was  

advanced at the hands of the learned counsel for the appellant.  For the  

reasons recorded above, we find no merit in the instant appeal and the  

same is accordingly dismissed.

…………………………….J. (P. Sathasivam)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; July 1, 2013.

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