Sunday, 23 December 2018

Whether court should rely on school certificate of age even if prosecution has not examined a person has admitted child in school?

 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

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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 2229 OF 2011

STATE OF MADHYA PRADESH  Vs  PREETAM 

R. BANUMATHI, J.:
Citation: AIR 2018 SC 4212 : 2018 (4) JLJR 24 : 2018 (4) PLJR 62 : 2018 (11) Scale 120

(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
2
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
3
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
4
(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

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

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.

(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.
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