In The Supreme Court of India Criminal Appellate Jurisdiction Case No. Criminal Appeal no. 19 of 2017 Appellants State of M.P. Respondent Anoop Singh Date of Judgement Decided on 19 July, 2017 Bench Hon’ble Mr. Justice Pinaki Chandra Ghose and Hon’ble Mr. Justice Uday Umesh Lalit.
Synopsis
The prosecutrix was raped by the accused respondents on 03.01.2003 on her way to school. The FIR was lodged and the charge sheet was filed against the respondent for offences under Sec 363, 366 and 376 of IPC. During the investigation, the prosecutrix was sent for medical examination and certificates including the Birth Certificate and the Certificate of Middle School Examination was obtained. The trial Court convicted the accused and thereafter the accused preferred an appeal before the High Court of Madhya Pradesh. The High Court, set aside the judgment and order of conviction passed by the Trial Court on the ground that the prosecution had failed to prove the fact that the girl was less than 16 years of age at the time of the incident since there was difference in date of birth in the Birth Certificate and the Certificate of the Middle School Examination. Then this Criminal Appeal has been preferred against the judgment passed by the High Court of Madhya Pradesh. Then Supreme Court observed that the age determination of rape victim is to be conducted in accordance with the Rule 12(3) of the Juvenile Justice Rules, 2007. The rule says that the age determination is to be conducted by seeking evidence obtaining (i) the matriculation or equivalent certificate and in the absence thereof (ii) date of birth certificate from the school first attended and in the absence thereof (iii) the birth certificate given by corporation or a municipality or Panchayat and in the absence of all these certificates medical opinion can be sought for. Finally in the present case two documents says that the prosecutrix was below 16 years of age at the time of incident. These documents can be used for ascertaining the age as per Rule 12(3)b. The difference in two days is immaterial and just on a minor discrepancy the evidence of the prosecutrix cannot be discarded. Accordingly the Court allowed the Criminal Appeal and directed that the respondent shall be taken into custody to serve out the sentence.
Facts
The present Criminal Appeal has been preferred against the judgment passed by the HC of M.P whereby the Court set aside the conviction of the accused.
On 03.01.2003 the prosecutrix on her way to school was raped by the accused respondent who forced her to smell something as a result of which she became unconscious and was taken to an unknown place. On the same day she was admitted in the District Hospital, Satna and thereafter an FIR was lodged. During the course of the investigation the prosecutrix was sent for medical examination and the officer obtained various certificates including the Birth Certificate and certificate of Middle School Examination of the Prosecutrix. After investigation the charge sheet was filed against the respondent for offences under Sec. 363, 366 and 376 of IPC. The IIIrd Additional Sessions Judge, Satna by his order dated 24.04.2006 convicted the accused.
The respondent preferred an appeal under Sec 374(2) of CrPC before the High Court of Madhya Pradesh. The learned Single Judge of the High Court, set aside the judgment and order of conviction passed by the Trial Court on the ground that the prosecution had failed to prove the fact that the girl was less than 16 years of age at the time of the incident. The birth certificate shows the date of birth of the prosecutrix as 29.08.1987 whereas the Certificate of Middle School Examination shows date of birth as 27.08.1987. The High Court found this sufficient to disbelieve that the prosecutrix was below 16 years of age at the time of the incident.
Issues
1. Whether the variation in date of birth of the prosecutrix in the Exhibits was sufficient reason to disbelieve the contention about the age of prosecutrix at the time of the incident?
2. Whether medical evidence is to be sought for determining the age of the rape victim in case of variation of date of birth in the Exhibits?
Arguments
Arguments in favour of the appellants
The arguments put forward by the appellants are as follows:
1. High Court gave undue importance to the difference of two days in the date of birth and erroneously held that this difference is sufficient to disbelieve the age of the prosecutrix.
2. The High Court ought to have appreciated the law laid down by this Court that regarding the determination of age, the birth certificate is the determining evidence.
Arguments in favour of respondent
The arguments put forward by the respondent are as follows:
1. The prosecution story is concocted as her evidence is not corroborated by the evidence of the Manager of the Hotel.
2. The prosecutrix did not give any resistance and there were no injury marks, which makes it clear that she was a consenting party.
3. The prosecution did not explain as to why the investigating officer did not seize the birth certificate during the course of investigation.
Judgment
The Court observed that
The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix.
In the case of Mahadeo S/O Kerba Maske v. State of Maharashtra and Anr it has been held that Rule 12(3) of the Juvenile Justice Rules, 2007 is applicable in determining the age of the victim of rape. The Rule says that age determination be conducted by seeking evidence obtaining (i) the matriculation or equivalent certificate and in the absence thereof (ii) date of birth certificate from the school first attended and in the absence thereof (iii) the birth certificate given by corporation or a municipality or panchayat and in the absence of all these certificates medical opinion can be sought for.
The Court also observed that that Trial Court rightly held that in the present case the ossification test is not the sole criteria for the for determination of the date of birth of the prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed.
Finally in the present case two documents says that the prosecutrix was below 16 years of age at the time of incident. These documents can be used for ascertaining the age as per Rule 12(3)b. The difference in two days is immaterial and just on a minor discrepancy the evidence of the prosecutrix cannot be discarded.
Accordingly the Court allowed the Criminal Appeal and directed that the respondent shall be taken into custody to serve out the sentence.
Case comment
The judgment shows strict application of rules of Juvenile Justice Act, 2007 with regard to the provisions of age determination of rape victims. It rules out the possibility of unwanted dilemma and medical examination for determining the age of rape victim when the birth certificate and certificate of middle school examination are submitted before the court.
This can be seen as a very good initiative towards the protection of rape victims. It will lighten the burden of proof on the victim and provide a favorable litigation atmosphere for them.
More of such judgments needs to be given by the courts as this will promote the interpretation and application of laws for the benefits of the rape victims.
Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
