9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

Supreme Court explains the Mode of age

determination of Victim in Rape Cases [Read the
Judgment]
BY: LIVE LAW NEWS NETWORK

JULY 3, 2015 8:53 PM

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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
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http://www.livelaw.in/supreme-court-explains-the-mode-of-age-determination-of-victim-in-rape-cases/ 1/7
9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

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 prosecutrixs
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.

Can SC Entertain Order Counting Of Rohingyas Are

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[Read Petition] Sections 363, 366 and 376Rejoinder
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all the offences against the respondent were proved beyond reasonable doubt. The
To Larger Bench [Read
respondent was awarded 7 years rigorous imprisonment and fine of Rs.500/- for the crime
Judgment]
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9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

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 decisionof 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
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The counsel appearing for the respondent, on the other hand, argued that the prosecution
To Larger Bench [Read
story is concocted as her evidence is not corroborated by the evidence of P.W.9 Jagdish
Judgment]
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9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

Gupta, the Manager of theHotel. 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 theprosecution 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

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(iii) the birthOver Arbitral given by[Read
certificate Petition] or a municipal authority
a corporation [Read Rejoinder Affidavit]
or a panchayat;
Proceedings? Question Referred
To Larger Bench [Read
Judgment]
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9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

(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 exactassessment 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 asregards 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 ruleprevailing 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 timethe 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.

Can SC Entertain Order Counting Of Rohingyas Are

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opinion should have been
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[Read Petition] that the Trial Court hasRejoinder
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Proceedings? Question Referred
aspect of the ossification test. The Trial Court noted that the respondent had cited Lakhan
To Larger Bench [Read
Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein theHigh Court of Madhya Pradesh said
Judgment]
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9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

that where the doctor having examined the prosecutrix and found her to be below 18
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 thecertificate 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.

Can SC Entertain Order Counting Of Rohingyas Are

Application For EVM Paper Trails In Refugees, Not
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Award As Rule Of The Court If It Gurudaspur Polls: Plea In SC Immigrants: Rohingyas Tell SC
Retains Seisin Over Arbitral [Read Petition] [Read Rejoinder Affidavit]
Proceedings? Question Referred
To Larger Bench [Read
Judgment]
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9/23/2017 SC explains the Mode of age determination of Victim in Rape Cases

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 442 OF 2010

State of Madhya Pradesh Ae!!a"t

:Versus:
A"oo S#"$h Reso"de"t

%&'(MENT
P#"a)# Cha"dra (hose

1. The present Criminal Appeal has een pre!erre" a#ainst the

$%"#ment an" &r"er "ate" 1'.'(.)''* passe" + the Hi#h C&%rt

&! Ma"h+a Pra"esh at Jaalp%r in Criminal Appeal N&.,)- &!

)''/ 0here+ the Hi#h C&%rt set asi"e the $%"#ment &!

&n2iti&n an" &r"er &! sentene passe" + the learne" Trial

C&%rt an" a3%itte" the a%se" !r&m all the har#es le2elle"

a#ainst him.

). The !ats &! the present matter are that &n '4.'1.)''4/ at

a&%t 1'54' A.M. the pr&se%tri6 0as #&in# t& sh&&l al&n# 0ith

her sister. On reali7in# that she ha" le!t ehin" her pratial

n&te &&8/ she ret%rne" a8 an" a!ter ta8in# the sai" n&te

&&8 she &ne a#ain hea"e" t&0ar"s the sh&&l. 9hen she

reahe" near Tar :a"i ;0ire !enin#< near Ha0ai Patti/ there 0as

an Amassa"&r ar stan"in# there an" as alle#e"/ the a%se"

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Can SC
Topics: Juvenile Entertain
Justice Order Counting
(Care and Protection of Children) RulesOf| prosecutrix | Rape Rohingyas Are
Victims | STATE
OF M.P. Vs.Application
ANOOP SINGH For (2015) | Supreme Court
EVM Judgments
Paper Trails|In Refugees,
Supreme Court of India Not
| Supreme
Making
Court on Rape Cases Arbitral Vengara, Militants Or Illegal
Award As Rule Of The Court If It Gurudaspur Polls: Plea In SC Immigrants: Rohingyas Tell SC
Retains Seisin Over Arbitral [Read Petition] [Read Rejoinder Affidavit]
Proceedings? Question Referred
To Larger Bench [Read
Judgment]
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