PARHLAD AND ANR.versusSTATE OF HARYANA

                     [2015] 8 S.C.R. 673


                    PARHLADANDANR.                               A
                               v.
                    STATE OF HARYANA
              (Criminal Appeal No. 983 of2015)
                      AUGUST 03, 2015                            B

       [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

        Penal Code, 1860: ss. 363, 366A, 376134 - Rape -
  Prosecution case was that appellant no. 1, cousin of C
  prosecutrix's father took her to the house of his uncle
  appellant no. 2 and sexually assaulted her- Conviction by
  trial court - High Court concurring wit~ the view of trial court
  that the prosecutrix was below 16 years of age affirmed the
  conviction - Oh appeal, Held: The testimony of the             o
  prosecutrix, her father; and the school leaving certificate were
  found to be truthful- Prosecutrix also deposed that she was
  about 14 years of age atthe time ofincident- There was no
  perversity of approach as regards the determination of age
  of prosecutrix - Once it is held that the prosecutrix was below E
  16 years of age, consent becomes meaningless - Even.
  otherwise, prosecutrix was in a totally helpless situation under
  the dominion of two grown up males and her submission
  cannot be construed as a consented sexual act- Interference
· with the conviction and sentence not called for - .Crime F
  against women.

       Sentence/Sentencing: Rape case·- Plea of reduction of
  sentence - Held: An offence of rape is an assault on human
  rights of a victim - Perpetrators of crime must realize that G
  when they indulge in such an offence, that really create a
· concavity in the dignity and bodily integrity of an individual
  which is recognized, assured and affirmed by very essence

                             673                                 H
674        SUPREME COURT REPORTS               [2015] 8 S.C.R.


A ofArticle 21 of the Constitution - Penal Code, 1860: ss. 363,
      366A, 376134 - Human Rights - Constitution of India, 1950
      -Art.21.

          Dismissing the appeal, the Court
B
         HELD: 1. The High Court, on re-appreciation of the
    testimony of the prosecutrix and her father coupled with
    the testimony of PW-1, the Head Master of the concerned
    school found that the version of the prosecution was
C truthful. The prosecutrix had deposed that she was
    about 14 years of age at the time she went with her uncle
    and was made a prey of the uncontrolled debased
    conduct of the appellants. The father of the prosecutrix
    had testified in a c~tegorical manner· about the factum
o of age of the prosecutrix. The Principal, PW-1, who had
    proved the school leaving certificate had stood
    embedded in his testimony and not paved the path of
    tergiversation despite the roving cross-examination.
    Nothing was elicited to create on iota of doubt in his
E testimony. On the said premises, the conclusion was
  · arrived at that the prosecutrix was below 16 years of age.
    The radiologist who had conducted the ossification test
    had op.ined that the age of the prosecutrix might be 16-
    17 years. The High Court in its analysis had recorded
F that the said piece of evidence was not beyond reproach
    inasmuch as it had not depicted the ·true situation as the
    eruption of teeth, number of teeth and many other aspects
    were not observed by the doctor conducting the
    ossification test. There was no perversity of approach
G as regards the determination of age of the prosecutrix.
    [Paras 5, 6, 8] [679-B-F; 681-B]

      2. Once it is held that the prosecutrix was below 16
  years of age, consent is absolutely irrelevant and totally
H meaningless. However, the High Court had addressed
       PARHLADANDANR. v. STATE OF HARYANA                    675


  itself with regard to the plea of consent advanced by the A
  accused persons. The material brought on record clearly
  reveal that first cousin of the father of the prosecutrix in
  the absence of her parents at home had asked her to go
  with him for harvesting wheat crop and accordingly she
  had accompanied him to the residence of the appellant B
. No. 2, the maternal uncle of appellant no.1. The
  prosecutrix had deposed that she was in a totally
  helpless situation and despite her resistance she was
  sexually abused. The mental and physical condition of
  a young girl under the .dominion of two grown up males C
  who had become slaves of their prurient attitude can be
  well imagined. The consent, apart from legal
  impermissibility, cannot be conceived of. ,[Para 9) (681-
  B-F]
                                               ....             D
       3. There is no justification or warrantfor thinking of
  reduction of sentence in this case. The appellants had
  taken advantage of their social relationship with the
  prosecutrix. She had innocently trusted the first
  appellant and, in fact, there was no reason to harbour E
 any kind of doubt. The devilish design of the appellant
  No. 1 and the crafty manipulation of the appellant No. 2
  is manifest An offence of rape is basically an assault on
 the human rights of a victim. It is an attack on her F
 individuality. It creates an incurable dent in her right and .
 free will and personal sovereignty over the physical
 frame. Anyone who indulges in a crime of such nature
 not only does he violate the penal provision of the IPC
 but also right of equality, right of individual identity and G
 in the ultimate eventuality an impo$nt aspect of rule of
 law which is a constitutional commitment. Dignity of
 every citizen flows from the fundamental precepts of.the
 equality clause engrafted under Articles 14 and right to
 life under Article 21 of the Constitution, for they are the H
 "fon juris" of our Constitution. Th.e said rights are
676        SUPREME COURT REPORTS               [2015) 8 S.C.R.


A     constitutionally secu.red. Therefore, regard being had to
      the gravity of the offence, reduction of sentence
      indicating any imaginary special reason would be an
      anathema to the very concept of rule of law. [Para 11]
      [683-D-F, G-H; 684-A-C]
B
       Ramdeo Chauhan alias Raj Nath v. State of Assam
  (2001) 5 SCC 714: 2001 (3) SCR 669; Vishnu alias Undrya
  vs. State of Maharashtra (2009) 4 SCC 18: 2009 (1) SCR
  983 ; Arjun Singh v. State of Hfmachal Pradesh (2009) 4
C SCC 18; State of H.P. v. Mango Ram (2000) 7 SCC 224:
  2000 (2) Suppl. SCR 626; Uday v. State of Kamataka (2003)
  4 SCC 46: 2003 (2) SCR 231; Deelip Singh v. State of Bihar
  (2005) 1 SCC 88: 2004 (5) Suppl. SCR 909; Pradeep
  Kumar alias Pradeep Kumar Verma v. State of Bihar and
D Anr. (2007) 7.SCC 413: 2007 (9) SCR 58; Dilp v. State of
  Madhya Pradesh (2013) 14 SCC 331: 2013 (2) SCR 957-
  relied on. ·L

                         Case Law Reference
E
          2001 (3) SCR 669            relied on.   Para 6

          2009 (1) SCR 983            relied on.   Para 7

          (2009) 4 sec 18             relied on.   Para 7
F
          2000 (2) Suppl. SCR 626     relied on.   Para 9

          2003 (2) SCR 231            relied on.   Para 10

          2004 (5) Suppl. SCR 909     relied on.   Para 10
G
          2007 (9) SCR 58             relied on.   Para 10

          2013 (2) SCR 957            relied on.   Para 10

          CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
H
      No. 983 of 2015.
                                                i-;.


       PARHLADANDANR. v. STATE OF HARYANA                      677


    From the Judgment and Order dated 20.09.2011 of.the A
High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 914-SB of 2003.

    Harinder Mohan Singh for the Appellants.
                                                                 B
   Shekhar Raj Sharma, Sanjay Kumar Visen for the
Respondent.

    The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. The present appeal depicts a sordid C
situation and sketches a morbid scenario, for the sad story
commences with total trust, as it has to be, inasmuch as the
first appellant, the uncle of the prosecutrix, being the cousin of
her father, takes her with him but does not return and thus
betrays the trust, definitely inconceivable, for the young girl, D
PW 7, who had remotely no idea about his dubious design
when she accompanied him to the house of the appellant No.
2, the maternal uncle of the first appellant, that she would be
sexually assaulted first by the appellant No. 1 i;ind thereafter
by the appellant No.2 who also succeeded in 'tifs threats to E
the uncle - and at the end, they, after being sent Op for trial for
the offences punishable under Sections 363, 366A/376/34 of
the Indian Penal Code, 1860 (IPC) in order to escape the
charge and in justification of their carnal desire and perverted F
acts, pleaded consent.                               ··
                                        ~




     2. As the factual score would uncurtain, the case of the
prosecution from the very beginning was that the prosecutrix
was below sixteen years of age. The trial court believed the
prosecution as regards the age of the prosecutrix as a G
consequence of which the plea of the defence had to collapse
like a pack of cards which entailed conviction for the charged
offences as per judgment dated March 10, 2003 which led to
the sentence of rigorous imprisonment of ten years under H
678         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A     Section 376(2)(g) IPC with separate sentence under Section
      363 IPC with. the stipulation that all the sentences shall be
      concurrent.

       3. The judgment of conviction and order of sentence
B passed by the learned Additional Sessions Judge, Sirsa in
  Sessions Case No. 55 of 2002 were assailed before the High
  Court in Criminal Appeal No. 914 of 2003 and the learned
  Single Judge referred to the evidence of Manohar Lal, PW-1,
   Principal of the Govt. Primary School, Rupana Khu rd, Dist.
C Sirsa, Bhajan Lal, PW-9, the father of the prosecutrix, Dr.
  Santosh Bishnoi, who had examined the accused and the
  prosecutrix and took note of the ossification test report, Ext.
  DA, and upon due appreciation of ocular and documentary
  evidence brought on record concurred with the view expressed
D by the trial court that the prosecutrix was below 16 years of
  age. Be it stated that the High Court did not think it appropriate
  to rely on the ossification test report as it found a number of
  flaws with it and opined that it was not worthy of credence.
  Additionally, the High Court has opined that the prosecutrix
E had no idea about the evil design of accused Parhlad, her
  uncle and she had proceeded with him in good faith and under
  compulsive circumstances she was raped by the accused
  persons and, therefore, there was really no consent. On the
F basis of the said analysis, it affirmed the judgment of conviction
  and order of sentence passed by the trial court. Hence, this
  appeal by special leave.

      4. We have heard Mr. Harinder Mohan Singh, learned
  counsel for the appellant and Mr. Shekhar Raj Sharma, learned
G counsel for the respondent-State.

      5. The core issues that arise for consideration in this
  appeal are whether the finding as regards the age of the
  prosecutrix is based on the proper appreciation of evidence
H on record or it is so perverse that it deserves to be dislodged
          PARHLADANDANR. v. STATE OF HARYANA                           679
                    [DIPAK MISRA, J.]

  in exercise of jurisdiction under Article 136 of the Constitution,    A
 and further.whether the opinion of the High Court relating to
  consent withstands scrutiny. On a perusal of the findings
  returned by the learned trial Judge as well as by the High Court,
  it is noticed that the learned trial Judge has relied upon the
  testimony of the prosecutrix, her father, and the school leaving      B
  certificate, which has been brought on record and tendered in
  evidence; and the High Court, on re-appreciation of the
  testimony of the prosecutrix and her father coupled with the
  testimony of PW-1, the Head Master of the concerned school
  has found that the version of the prosecution is truthful. As is      C
  perceptible, the prosecutrix has deposed that she was about
  14 years of age atthe time she went with her uncle and made
  a prey of the uncontrolled debased conduct of the appellants.
, The father of the prosecutrix has testified ih. a categorical
                                                                        0
  manner about the factum of age of the prosecutrix. The
  Principal, PW-1, who has proved the school leaving certificate
  has stood embedded in his testimony and not paved the path
  of tergiversation despite the roving cross-examination. Nothing
  has been elicited to create on iota of doubt in his testimony.        E
                                                                             •
  On the said premises, as we find, the conclusion has been
  arrived at that the prosecutrix was below 16 years of age.

     6. It is requisite to state here that the radiologist who had
conducted the ossification test had opined that the age of the F
prosecutrix might be 16-17 years. The High Court in its analysis
has recorded that the said piece of evidence was not beyond
reproach inasmuch as it had not depicted the true situation as
the eruption of teeth, number of teeth and many other aspects
were not observed by the doctor conducting the ossification G
test. In this context reference to the decision in Ramdeo
Chauhan alias Raj Nath v. State of Assam 1 would be
apposite. In this case, Sethi, J while considering the evidentiary

1
    (2001) 5 sec 114                                                    H
680             SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     value of radiological examination opined that:-

               "The statement of the doctor is no more than ·an opinion,
              the court has to base its conclusions upon all the facts
               and circumstances disclosed on examining of the
B              physical features of the person whose age is in question,
               in conjunction with such oral testimony as may be
               available. An X-ray ossification test may provide a surer
              basis for determining the age of an individual than the
              opinion of a medical expert but it can by no means be so
C             infallible and accurate a test as to indicate the exact date
              of birth of the person concerned. Too much of reliance
              cannot .be placed upon textbooks, on medical
              jurisprudence and toxicology while determining the age
              of an accused. In this vast country with varied latitudes,
D             heights, environment, vegetation and nutrition, the height
              and weight cannot be expected to be uniform."

          Be it noted, Phukan, J. concurred with the view expressed
      by Sethi, J.
E
           7. In this regard, we may, with profit, refer to the decision
      in Vishnu alias Undrya vs. State of Maharashtra2 wherein
      a contention was raised that the age of a prosecutrix by
      conducting ossification test was scientifically proved, and that
F     it deserved acceptance. The court rejected the said
      submission by stating that:-

              "We are unable to accept this contention for the reasons
              that the expert medical evidence is not binding on the
              ocular evidence. The opinion of the Medical Officer is to
G
              assist the court as he is not a witness of fact and the
              evidence given by the Medical Officer is really of an
              advisory character and not binding on the witness offact."

H     2
          c2ooe) 1 sec 2a3
        PARHLADANDANR. v. STATE OF HARYANA                     681
                  [DIPAK MISRA, J.]

     Similar vie~ has been expressed in Arjun Singh v. State A
     of Himachal Pradesh3.

    8. Tested on the touchstone of aforesaid legal premises,
we do not. find any perversity of approach as regards the
determination of age of the prosecutrix.                        B

     9. The next facet relates to the facet of consent. It needs
no special emphasis to state that once it is held that the
prosecutrix is below 16 years of age consent is absolutely
irrelevant and totally meaningless. However, as has been c
stated earlier the High Court has addressed itself with regard
to the plea of consent advanced by the accused persons. The
material brought on record clearly reveal that Parhlad, first
cousin of the father of the prosecutrix .in the absence of her
parents at home had asked her to go with him for harvesting D
wheat crop to village Rupana Ganja and accordingly she had
accompanied him to the residence of the appellant No. 2, who
is the maternal uncle of Parhla(l. The prosecutrix has deposed
that she was in a totally helpless situation and despite her
resistance she was sexually abused. The mental and physical E
conditioo of a young girl under the dominion of two grown up
males who had become slaves of their prurient attitude can
be well imagined. The consent, apart from legal
impermissibility, cannot be conceived of. In this context
reference to certain authorities would be appropriate. In State F
of H.P. v. Mango Ram' a three-Judge Bench while dealing
with the consent has stated thus:-

      "13 .... Submission of the body under the fear of terror
      cannot be coristrued as a consented sexual act. Consent G
      for the purpose of Section 375 requires voluntary
      participation not only after the exercise of intelligence

'c2009J 4 sec 1a
• c2000) 1 sec 224                                              H
682          SUPREME COURT REPORTS                     [2015) 8 S.C.R.


A           based on the knowledge of the signific~nce and moral
            quality of the act but after having fully exercised the choice
            between resistance and assent. Whether there was
            consent or not, is to be ascertained only on a careful study
            of all relevant circumstances."
B
           10. In Uday v. State of Karnataka 5 white reiterating a
      similar view the Court observed:-

            "21 .... We are inclined to agree with this view ... that
c           there is no straitjacket formula for determining whether
            consent given by the prosecutrix to sexual intercourse is
            voluntary, or whether it is given under a misconception of
            fact. In the ultimate analysis, the tests laid down by the
            courts provide at best guidance to the judicial mind while
o           considering a question of consent, but th.e Court must, in
            each case, consider the evidence before it and the
            surrounding circumstances, before reaching a
            conclusion, because each case has its own peculiar facts
            which may have a bearing on the question whether the
E           consent was voluntary, or was given under a
            misconception of fact. It must also weigh the evidence
            keeping in view the fact that the burden is on the
            prosecution to prove each and every ingredient of the
            offence, absence of consent being one of them."
F
          Similar view has been echoed in Deelip Singh v. State
      of Bihat6, Pradeep Kumar alias Pradeep Kumar Verma v.
      State of Bihar and another7 and Dilp v. State of Madhya
      Pradesh 8•
G
          Viewed on this prismatic reasoning, the conclusion arrived

      • c2003) 4 sec 46
      • (2005) 1 sec 88
      1
        c2001i 1 sec 413
H     'c2013J 14 sec 331
        PARHLADANDANR. v. STATE OF HARYANA                        683
                  [DIPAK MISRA, J.]

at by the High Court on the obtaining factual score cannot be       A
faulted.

        11. Learned counsel for the appellant has submitted that
  the appellant are in custody for more than 8 years. Needless
  to say, it is an alternative submission pertaining to quantum of B
  sentence. The learned trial Judge has sentenced the appellants
  to suffer rigorous imprisonment for a term of 10 years e.ach for
  the offence under section 376 (g) of IPC apart from other
  offences. Sentence in respect of the offence of rape has to be
  in consonance with the law. The concept of special reasons C
  as engrafted in IPC prior to the amendment brought in fore~
  by Act 1·3 of 2013 with effect from 3.02.2013 is not to be
  invoked for the asking. We need not enumerate anything in
  that regard, for there is no justification or warrant for thinking
  of reduction of sentence in this case. The appellants, to say D
 the least, had taken advantage of their social relationship with
. the prosecutrix. She had innocently trusted the first appellant
  and, in fact, there was no reason to harbour any kind of doubt.
  The devilish design of the appellant No. 1 and the crafty
  manipulation of the appellant No. 2 is manifest. It has to be E
  borne in mind that an offence of rape is basically an assault on
  the human rights of a victim. It is an attack on her individuality.
  It creates an incurable dent in her right and free will and personal
  sovereignty over the physical frame. Everyone in any civilis~d F
  society has to show respect for th~ other individual and no
  individual has any right to invade on physical frame of another
  in any manner. It is not only an offence but such an act creates
  a scar in the marrows of the mind of the victim. Anyone wncr
  indulges in a crime of such nature not only does he violate the G
  penal provision of the IPC but also right of equality, right of
  individual identity and in the ultimate eventuality an important·
  aspect of rule of law which is a constitutional commitment. The
  Constitution of India, an organic document, confers rights .. It
 does not condescend or confer any allowance or grant. \t H
684          SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A · recognises rights and the rights are strongly entrenched in the
    constitutional framework, its ethos and philosophy, subject to
    certain limitation. Dignity of every citizen flows from the
    fundamental precepts of the equality clause engrafted under
    Articles 14 and- right to life under Article 21 of the Constitution,
B for they are the "fon juris" of our Constitution. The said rights
    are constitutionally secured. Therefore, regard being had to
    the gravity of the offence, reduction of sentence indicating any
    imaginary special reason would be an anathema to the very
    concept of rule of law. The perpetrators of the crime must realize
C that when they indulge in such an offence, the really create a
    concavity in the dignity and bodily integrity of an individual which
    is recognized, assured and affirmed by the very essence of
    Article 21 of the Constitution.

D          12. Consequently, the appeal being, sans stratum, stands
      dismissed.

      Devika Gujral                                   Appeal dismissed.