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Supreme Court explains the Mode of age determination of Victim in Rape Cases [Read the Judgment]

LIve Law News Network
3 July 2015 3:23 PM GMT
Supreme Court explains the Mode of age determination of Victim in Rape Cases [Read the Judgment]
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Answering with the central question as to the criteria to be adopted and applied to resolve the controversy over the age of a rape victim  in the event of a discrepancy in the  birth certificate and the school certificate, the Supreme Court of India has held (State of M.P. vs. Anoop Singh - Criminal Appeal No :442 OF 2010)  that Rule  12(3)  of  the Juvenile  Justice  (Care  and  Protection  of  Children)  Rules,  2007, is applicable in determining the age of the victim of rape, and that medial opinion can be relied on only in the absence of the documents prescribed in Rule 12(3) of the Juvenile Justice Rules.

This issue arose in a criminal appeal from Madhya Pradesh. The facts of the case were as follows: On  03.01.2003,  at  about 10:30 A.M. the prosecutrix was going to school along  with  her  sister.  On realizing that she had left behind her practical  note  book,  she  returned back and after taking the said note book she once again headed  towards  the school. When she reached near Tar Badi  (wire  fencing)  near  Hawai  Patti, there was an Ambassador car standing  there  and  as  alleged,  the  accused respondent came out of the car, pulled the prosecutrix inside  the  car  and forced her to smell something, as a result of which the  prosecutrix  became unconscious. As alleged by the prosecution, the  prosecutrix  was  taken  to some unknown place thereafter.

On regaining consciousness, the prosecutrix felt pain in  her  private parts.  On the same day, she was admitted in the  District  Hospital,  Satna in an unconscious condition and information about the incident was given  to
Laxmikant Sharma (P.W.8), the uncle of the prosecutrix.  On 10.01.2003,  the prosecutrix was discharged from the Hospital  and  sent  back  to  her  home where she narrated the incident and thereafter an F.I.R was  lodged.  During the  course  of  investigation,  the  prosecutrix  was  sent   for   medicalexamination and her clothes were seized  and  slides  were  prepared.  After receipt of the medical report, F.I.R was registered  and  site  map  of  the spot was prepared. The Investigating Officer seized various  articles  which included the prosecutrix’s birth certificate and certificate of  the  Middle School Examination, 2001.

Along with that the relevant page (page  No.  20) of  the  register  of  the  U.S.A  Hotel  was  also   seized.    After   due investigation a charge-sheet was filed against the respondent  for  offences under Sections 363, 366 and 376 of the Indian Penal  Code,  1860  (“I.P.C.”) and the statements of the prosecution witnesses were recorded.

The case was subsequently committed by the Magistrate to the Sessions Court. The IIIrd  Additional  Sessions  Judge,  Satna,  by  his  order  dated 24.04.2006 passed in Special Case No.123/2003, convicted the  accused  under Sections 363, 366 and 376 of I.P.C. and held that all the  offences  against the respondent were proved  beyond  reasonable  doubt.  The  respondent  was awarded 7 years’ rigorous imprisonment and fine of Rs.500/-  for  the  crime under Section 363 I.P.C.,  10  years’  rigorous  imprisonment  and  fine  of Rs.1000/- for the crime under Section 366 I.P.C.,  and  10  years’  rigorous imprisonment and fine of Rs.1000/- for the crime under  Section  376  I.P.C. with default clauses.All the substantive sentences  were  directed  to  run concurrently.

Ther accused aggrieved by the judgment of conviction and sentence passed by the trial Court carried the matter in appeal to the High Court  of  Madhya  Pradesh  bench at Jabalpur. The High Court ruled that  the  decision of the Trial Court was  not  sustainable  solely  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 which conclusion was reached by the High Court noticing a variation in the date of  birth  of  the  prosecutrix in Ext. P/5 and Ext. P/6 certificates.  In  certificate Ext.P/5 (birth certificate) the  date  of  birth  was  disclosed  as  29.8.1987, whereas   in certificate Ext.P/6 (school certificate) it has been  disclosed  as  27.8.1987.  The  High  Court found this sufficient to disbelieve that the prosecutrix was below 16  years of age at the time of the incident. The High Court relied on  the  statement of PW-11 Dr. A.K. Saraf who took the X-ray of the  prosecutrix  and  on  the basis of the ossification test, came to the conclusion that the age  of  the prosecutrix was more than 15 years but less than 18 years.

Considering  this the High Court presumed that the girl was more than 18 years of age  at  the time of the incident. The High Court thus reached the conclusion was  that  the girl was a consenting party and was more than 18 years of age  at  the  time of the incident and thus, no offence against the accused has been proved.

The said judgment and order of the High Court led to the State prefering a Criminal Appeal before the Apex Court,  contending that the High Court gave undue importance to  the  difference of two days in the date of  birth  of  the  prosecutrix  as  per  the  birth certificate and the certificate of the Middle School Examination  2001,  and erroneously held that this difference is sufficient to  disbelieve  the  age of the prosecutrix. Further, 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.

The counsel appearing for the respondent, on the  other  hand, argued that the prosecution story  is  concocted  as  her  evidence  is  not corroborated by the evidence of P.W.9 Jagdish  Gupta,  the  Manager  of  the Hotel. Further, the respondent states that the prosecutrix did not give  any resistance and there were no injury marks, which make it clear that she  was a consenting party.  In  addition,  the  learned  counsel  argued  that the prosecution did not explain as to why  the  Investigating  Officer  did  not seize the birth certificate during the course of investigation.

The Apex Court found on facts that there was a difference  of  only  two  days  in  the dates mentioned in the abovementioned Exhibits, and further endorsed the finding of the Trial Court 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  thediscrepancy 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" said the Court.

To resolve the issue as to the criteria to be adopted in determing the age of a victim of rape, the Bench referred to and relied on then dictum laid down by the SC in Mahadeo  S/o  Kerba  Maske  Vs.  State  of Maharashtra and Anr., (2013) 14 SCC 637, wherein it was held that  Rule  12(3)  of  the Juvenile  Justice  (Care  and  Protection  of  Children)  Rules,  2007,  is applicable in determining the age of the victim of rape.  Rule  12(3)  reads
as under:

“Rule 12(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 –

(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  playschool) 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.”

The SC Court had further held in paragraph 12 of  Mahadeo  S/o  Kerba  Maske (supra) as under:

“Under rule 12(3)(b), it is specifically provided that only in  the  absence of alternative methods  described  under  Rule  12(3)(a)(i)  to  (iii),  the medical opinion can be sought for. In the light of  such  a  statutory  rule prevailing for ascertainment of the age of the juvenile  in  our  considered opinion, the same yardstick can be rightly followed by the  courts  for  the purpose of the ascertaining the age of a victim as well.” (Emphasis supplied)

Applying the law to the fact situation, the Bench  said, "In the present case, we have before us  two  documents  which  support the case of the prosecutrix that she was below 16 years of age at  the  time the incident took place. These documents can be used  for  ascertaining  the age of the prosecutrix as per Rule 12(3)(b).  The difference of two days  in the dates, in our considered view, is immaterial  and  just  on  this  minor discrepancy, the evidence in the  form  of  Exts.  P/5  and  P/6  cannot  be discarded. Therefore,  the  Trial  Court  was  correct  in  relying  on  the documents."

The Court also said, "we are of the  opinion  that the High Court should have relied firstly on  the  documents  as  stipulated under Rule 12(3)(b) and only in the  absence,  the  medical  opinion  should have been sought. We find that the Trial Court  has  also  dealt  with  this aspect of the ossification test. The Trial Court noted that  the  respondent had cited Lakhan Lal Vs. State of M.P.,  2004  Cri.L.J.  3962,  wherein  the High Court of Madhya Pradesh said that where the doctor having examined  the prosecutrix and found her to be below 18½ years, then keeping  in  mind  the variation of  two years, the accused should be given the benefit  of  doubt.Thereafter, the Trial Court rightly  held  that  in  the  present  case  the ossification test is not the sole criteria 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. "

Keeping in view the medical examination reports, the  statements of the prosecution witnesses which inspire confidence and  the  certificates proving the age of the prosecutrix to be below 16 years of age on  the  date of the incident, the Apex Court set aside the  impugned  judgment  passed  by  the  High Court and upheld the judgment and  order passed  by  the trial Court.

Allowing the appeal, the SC directed  that  the  respondent shall be taken into custody forthwith to serve out the sentence.

Read the Judgment here.

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