Age of Victim - School Registers entitled to Credence of much Weight unless Proved otherwise [SC JUDGMENT]
Penal Code, 1860 - S.376 - Rape - Age of the Victim - School Register -
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.
AIR 2018 SC 4212 : 2018 (4) JLJR 24 :
2018 (4) PLJR 62 : 2018 (11) Scale 120
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(R. BANUMATHI) AND (VINEET SARAN) JJ.
AUGUST 29, 2018
CRIMINAL APPEAL No(s). 2229 OF 2011
STATE OF MADHYA PRADESH Appellant(s)
VERSUS
PREETAM Respondent(s)
J U D G M E N T
R. BANUMATHI, J.
(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) alongwith 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 onthe 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(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), andthe 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. hasbeen 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.