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 toLaxmikant 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) readsas 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.