KAILASH @ TANTI BANJARA Vs STATE OF M.P.
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001962-001962 / 2010
Diary number: 720 / 2010
Advocates: RAJEEV KUMAR BANSAL Vs
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Reportable IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1962 OF 2010
KAILASH @ TANTI BANJARA Appellant (s)
VERSUS
STATE OF MADHYA PRADESH Respondent(s)
O R D E R
This appeal is directed against the impugned
judgment of the High Court of Madhya Pradesh at Jabalpur
in Criminal Appeal No.1395/1994 by which the conviction
and sentence imposed on the appellant under Section 376
IPC to undergo rigorous imprisonment for seven years
apart from a fine amount of Rs.500/- and in default of
payment of fine, to under one months' additional
rigorous imprisonment was confirmed.
2. According to the prosecution on 11.4.1991 the
victim P.W.4, an agricultural labourer was in the field
of Moti Singh Darbar and loading the wheat on the
vehicle. After the field work, she was proceeding to
her village which was 1½ miles away. The appellant was
following P.W.4 who was proceeding alongwith minor girl
Manju, aged 10 years in his motorcycle. On the way,
P.W.4 suffered thorn bite in her foot and while she was
removing the thorn, Manju left her and proceeded towards
her home. Taking advantage of the lonliness of P.W.4,
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the appellant stated to have grabbed her hand against
her will, took her near the bushes at Kauve near the
drain and had forcible sexual intercourse for about ½ an
hour. According to the victim P.W.4, sexual intercourse
was carried out by the appellant near the drain and
again after taking her to his house under the threat of
knife point and performed the same evil act in the house
also. Subsequently at about 3.00 in the midnight, he
took her in his motorcycle and dropped near the
community well and after threatening her at knife point
that if she reveal any of the act committed by him, she
would kill her, left that place. P.W.4 felt humiliated
and having ashamed of loss of modesty, jumped into the
community well while the appellant stated to have fled
away from that place. Though P.W.4 jumped into the
well, according to her, she was able to grab the rope
which was present inside the well and she cried for
help. On hearing her distress call, the villagers
stated to have turned up and rescued her. Thereafter,
her father and grand father stated to have reached that
place whereafter she was taken to her house and after
change of cloth she went to the Police Station and
lodged the FIR.
3. The appellant was charged for the offence under
Section 376 read with Section 506 B,IPC. The trial
Court after a detailed consideration of the evidence
placed before it concluded that the FSL report, Exhibit
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P.14 established that in the peticoat of P.W.4, in her
private parts as well as the vagina, human sperms was
found present and therefore the plea of ignorance
pleaded by the appellant was not true. The trial court
however, concluded that the intercourse was with the
consent of P.W.4. Based on the expert evidence and
applying the principles for ascertaining the age of the
victim, the trial court has concluded as under:
“14. For ascertaining the age the position of
gums, private part and under arms are of
great help. According to the statement of
Dr. Smt. Saluja (P.W.2) 7 teeth in the right
and 6 teeth in the left total 13 teeth were
found in the upper jaw. In the lower jaw 7-
7 teeth in the right and left sides were
found. Therefore, total 14 teeth were found
in the lower jaw. It is clear from the
position of the teeth that third molar in
the right upper jaw did come and second and
third molar in the left side was not present
and like this in the lower jaw third molar
was not present in the right and left side.
It is clear that in this situation that in
abssence of third molar in the jaw age was
below 17 years. Therefore, according to the
chart given in the Modi's book at page No.29
according to the situation of the teeth in
the jaw the age of the girl must be 14 to 15
years.
4. The conclusion of the trial court was that the
victim P.W.4 was aged 14 years on the date of occurrence
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and since sexual intercourse carried out by the
appellant though with the consent fell within the four
corners of the offence falling under Section 376 and
convicted the appellant for the said act. The High
Court having examined the case of the appellant,
considered the whole gamut of the evidence placed before
the trial Court, as well as, the conclusion reached by
the trial court held that there was no scope to
interfere with the conviction and sentence imposed on
the appellant.
5. Heard Mr. Rajeev Kumar Bansal, learned counsel
for the appellant and Ms. Vibha Dutta Makhija, learned
counsel for the State. Learned counsel appearing for
the appellant strenuously contented that the medical
evidence placed before the court below did show that the
victim was beyond 16 years of age, that even going by
her own evidence it came out that there were serious
contradictions as to the nature of offence alleged
against the appellant; that the trial court has held
that sexual intercourse was performed with full consent
of the victim and therefore sentence imposed was liable
to be interfered with. As against the above submission,
learned counsel for the State by referring to the
decision of this Court in Vijay @ Chinee vs. State of
Madhya Pradesh (2010) 8 SCC 191 in para 27, submitted
that the trial court having applied the principles laid
down therein based on the FSL report for the purpose of
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ascertaining the age of the victim having concluded that
she was 14 years of age on the date of the occurrence,
in the absence of any other reliable contra evidence to
dislodge the said conclusion of the trial court as
affirmed by the High Court, no interference is called
for.
6. Having heard learned counsel for the appellant
as well as for the respondent, we are also convinced
that the submission of learned counsel for the State
deserves to be accepted. The ascertainment of age has
been done by the trial court concerned, by applying the
various principles laid down by this Court. In this
context, we refer to the decision of this Court in Vijay
alias Chinee,(supra) and in which one of us (Hon'ble
Chauhan, J.) was a party. We have held in paragraphs 27
to 30 as under:
“ Determination of Age
27. As per Modi’s Medical Jurisprudence and Toxicology, 23rd Edn., the age of a person can be determined by examining the teeth (Dental Age), Height, Weight, General appearance (minor signs) i.e. secondary sex characters, ossification of bones and producing the birth and death/school registers etc. However, for determining the controversy involved in the present case, only a few of them are relevant.
Teeth- (Dental – Age)
28. So far as permanent teeth are concerned, eruption generally takes place between 6-8 years. The following table shows the average age of eruption of the permanent teeth :-
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Central incisors - 6th to 8th year Lateral incisors - 7th to 9th year Canines - 11th to 12th year Second Molars - 12th to 14th year Third Molars or Wisdom Teeth - 17th to 25th year In total, there are 32 teeth on full eruption of permanent teeth.
Secondary Sex Characters
29. The growth of hair appears first on the pubis and then in the axillae (armpits). In the adolescent stage, the development of the pubic hair in both sexes follows the following stages :-
a) One of the first signs of the beginning of puberty is chiefly on the base of penis or along labia, when there are few long slightly pigmented and curled or straight downy hair;
b) The hair is coarser, darker and more curled, and spread sparsely over the junction of pubis;
c) More or less like an adult, but only a smaller area is covered, no hair on the medial surface of thighs;
30. The development of the breasts in girls commences from 13 to 14 years of age; however, it is liable to be affected by loose habits and social environments. During adolescence, the hormone flux acts and the breasts develop through the following stages:
i) Breasts and papilla are elevated as a small mound, and there is enlargement of areolar diameter.
ii) More elevation and enlargement of breast and areola, but their contours are not separate.
iii) Areola and papilla project over the level of the breast.
iv) Adult stage – only the papilla projects and the areola merges with the general contour of the breast.
In this case, it will be worthwhile to refer to the
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version of P.W.2 Dr. Smt. Jasbit Kaur Saluja, who
examined the victim P.W.4 and in her evidence has stated
the physical features of the victim and observed as
under:
“(3) Following was the condition of the
girl observed on examination:-
Her height – 5”, weight – 43 Kgs.,
normal build, 13 teeth in the upper jaw
and 14 in the lower jaw present, hair in
armpit had not grown, breast was
development, slight pubic hair were
noticed.”
Ultimately, she has opined in paragraph 14 and 17 that
the victim appears to be 14 to 16 years. The High Court
in paragraph 9 again considered the said aspect of
evidence of P.W.2 and noted as under:
“9. Accordingly, the margin or error could be ± 6 months. This apart, the radiological age, being
probably, has to be verified in the face of age-
related other evidence on record (State of H.P.
V. Mange Ram AIR 2000 SC 2798 referred to).
Viewing from this angle, the following physical
features described by Dr. Jasbeer Kaur Saluja
were sufficient to fortify her assessment that
the prosecutrix was between 14 to 16 years of
age:-
(i) Auxiliary hair not appeared.
(ii) Public hair scanty.
(iii) Menarche attaned 1 years back.
(iv) Teeth -
7 + 6 ------------------------- = 27
7 + 7
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Considering these findings of anthropological and
dental examinations, learned trial Judge did not
commit any error in holding that age of the
prosecutrix was about 14 years only (See
Bishnudayal v. State of Bihar AIR 1981 SC 39).”
7. In paragraph 30 of the decision in Vijay alias
Chinee,(supra), this Court has held by making specific
reference to the growth of breast in a girl between the age
group of 13 and 14 and has specifically referred to the
extent at which such growth could be found, while in
paragraph 28 based on the eruption of teeth, the age of a
person can be ascertained. Again, in paragraph 29 this
Court has noted the ascertainment of age based on the growth
of pubic hair by which the age of the person can be
scientifically arrived.
8. When we apply the above principles laid down by
this Court with particular reference to the consideration
made by the trial court in paragraph 14, the evidence of
doctor P.W.2 as well as the conclusion arrived at by the
High Court in paragraph 9, we are convinced with the
conclusion that P.W.4 was in the age group of 13/14 years.
Once the said conclusion cannot be altered the sexual
intercourse indulged in by the appellant was with the
consent of P.W.4 will be of no consequence. Having regard
to the above said conclusion, we do not find any scope to
find fault with the conviction and sentence imposed by the
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trial court as confirmed by the High Court in the impugned
judgment in this appeal.
The appeal lacks merit and the same is dismissed.
...............................J. (Dr. B.S. CHAUHAN)
................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI; April 10, 2013.