STATE OF MADHYA PRADESHversusANOOP SINGH

                          (2015] 6 S.C.R. 960


A                  STATE OF MADHYA PRADESH
                                    v.
                            ANOOP SINGH
                   Criminal Appeal No. 442 of 2010
B
                             JULY 03, 2015
                  [PINAKI CHANDRA GHOSE AND
                      UDAY UMESH LAUT, JJ]

c         F vnal Code, 1860- ss. 363, 366 and 376- Offence of
    kidnapping and rape - Age of prosecutrix, determination of
    - Conviction of respondent u/ss. 363, 366 and 376 for
    commission of rape and sentenced accordingly - However,
     acquittal by High Court holding that decision of the trial court
D    not sustainable since the prosecution failed to prove that
    the girl was less than 16 years of age at the time of the
    incident - On appeal, held: Discrepancy of two days in the
     two documents-Birth Certificate and Middle School
    Examination Certificate adduced by the prosecution is
E   immaterial - These documents which support the case of
    the prosecutrix that she was below 16 years of age at the
    time the incident took place and can be used for ascertaining
    the age of the prosecutrix as per r. 12(3)(b) - High Court
    should have relied firstly on the documents as stipulated ul
F   r. 12(3)(b) and only in the absence, the medical opinion
    should have been sought - Trial court rightly held that the
    ossification test is not the sole criteria for determination of
    the date of birth of the prosecutrix as her certific::ite of birt: 1
    and also the certificate of her medical examination had been
G
    enclosed - Thus, in view the medical examination reports,
    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
H   incident, order of acquittal passed by the High Court is set
                                   960
    STATE OF MADHYA PRADESH v. ANOOP SINGH                  961


aside and the judgment and order by the trial court is upheld A
- Juvenile Justice (Care and Protection of Children) Rules,
2007 - r. 12(3).

  Mahadeo Slo Kerba Maske vs. State of Maharashtra
  and Anr. (2013) 14 SCC 637; Lakhan Lal vs. State of        B
  M.P. 2004 Cri.L.J. 3962 - referred to.

                  Case Law Reference

(2013) 14 sec 637          referred to.        Para 12
2004 Cri.L.J. 3962         referred to.        Para 15
                                                             c
    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 442 of 2010.

     From the Judgment and Order dated 10.07.2008 in D
CriminalAppeal No. 924 of2006 of the High Court of Madhya
Pradesh at Jabalpur.

     Naveen Sharma, Mishra Saurabh for the Appellant.
                                                             E
     Rajeev Kumar Bansal, M.P. Singh, Akshay K. Ghai for
the Respondent.

     The Judgme.nt of the Court was delivered by

     PINAKI CHANDRA GHOSE, J. 1. The present Criminal F
Appeal has been preferred against the judgment and order
dated 10.07.2008 passed by the High Court of Madhya
Pradesh at Jabalpur in Criminal Appeal No.924 of 2006,
whereby the High Court set aside the judgment of conviction
and order of sentence passed by the learned Trial Court G
and acquitted the accused from all the charges levelled
against him.

     2. The facts of the present matter are that o·n
03.01.2003, at about 10:30 A.M. the prosecutrix was going    H
962         SUPREME COURT REPORTS                    [2015) 6 S.C.R.


A to school along with her sister. On real.izing 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
B 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.
c
            3. 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
D     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.l.R was lodged. During the course of
      investigation, the prosecutrix was sent for medical
E     examination and her clothes were seized and slides were
      prepared. After receipt of the medical report, F.l.R was
      registered and site map of the spot was prepared. The
      Investigating Officer seized various articles which included
F     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 Y"as also
      seized. After due investigation a charge-sheet was filed
      againstthe respondentfor offences under Sections 363, 366
G     and 376 of the Indian Penal Code, 1860 ("l.P.C.") and the
      statements of the prosecution witnesses were recorded.

       4. On 27.03.2003, the Judicial Magistrate, First Class
  Satna registered the Criminal Case No.116/2003 and passed
H the committal order. Accordingly, the case was transferred
    STATE OF MADHYA PRADESH v. ANOOP SINGH                    963
           [PINAKI CHANDRA GHOSE, J.]

and was received by the Upper District Sessions Judge-Ill,      A
Satna for trial.

       5. The lllrd 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 B
 376 of l.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 l.P.C., 10
 years' rigorous imprisonment and fine of Rs.1000/- for the C
 crime under Section 366 l.P.C., and 10 years' rigorous
 imprisonment and fine of Rs.10001- for the crime under
 Section 376 l.P.C. with default clauses. All the substantive
 sentences were directed to run concurrently.
                                                                 D
       6. Aggrieved by the aforesaid judgment and order
 passed by the lllrd Additional Sessions Judge, Satna, the
 respondent preferred an appeal under Section 374(2) of
 Cr.PC. before the High Court of Madhya Pradesh at Jabalpur,
 which was numbered as Criminal Appeal No.924 of 2006. E
 The learned Single Judge of the High Court, by impugned
 judgment and order dated 10.07.2008, set aside the
 judgment and order of conviction passed by the Trial Court
 against the respondent. The High Court ruled that the
 decision of the Trial Court was not sustainable solely on the F
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. The reasons that weighed heavily with the ruling of
the High Court were that, either the public prosecutor or P.W. 7
Pramod Kumar Sharma (father of the prosecutrix) tried to G
file Ext. P/5 which was not part of the charge-sheet. Such
type of evidence could not be created by any person except
the Investigation Officer. It was for the prosecution to show
that a particular document was taken on record during H
964        SUPREME COURT REPORTS                 [2015] 6 S.C.R.


A investigation but could not be filed. The prosecution could
  not create any new evidence which was not part of the
  investigation. Ext. P/5 and Ext. P/6 have variation in the date
  of birth of the prosecutrix. In certificate Ext.P/5 the date of
  birth was disclosed as 29.8.1987, whereas in certificate
B Ext.P/6 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
C 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
  last ground taken by the High Court was that the girl was a
0
  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.

       7. We have heard the learned counsel appearing for
E the parties.

         8. Before us, learned counsel for the State of Madhya
  Pradesh has raised the contention that the High Court gave
  undue importance to the difference of two days in the date
F 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
G regarding the determination of age, the birth certificate is
  the determining evidence.

           9. The learned counsel appearing for the respondent,
      on the other hand, argued that the prosecution story is
H
    STATE OF MADHYA PRADESH v. ANOOP SINGH                           965
           [PINAKI CHANDRA GHOSE, J.]

concocted as her evidence is not corroborated by the A
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 B
explain as to why the Investigating Officer did not seize the
birth certificate during the course of investigation.

     10. We believe that the present case involves only one
issue for this Court to be considered, which is regarding the C
determination of the age of the prosecutrix.

       11. In the present case, the central question is whether
 the prosecutrix was below 16 years of age at the time of the
 incident. The prosecution in support of their case adduced          D
 two certificates, which were the birth certificate and the middle
 school certificate. The date of birth of the prosecutrix has
 been shown as 29.08.1987 in the Birth Certificate (Ext. P/
 5), while the date of birth is shown as 27.08.1987 in the
Middle School Examination Certificate. There is a difference         E
of just two days in the dates mentioned in the
abovementioned Exhibits. The Trial Court has rightly
observed 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        F
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 the discrepancy of two days in the two documents
adduced by the prosecution is immaterial and the High Court          G
was wrong in presuming that the documents could not be
relied upon in determining the age of the prosecutrix.

      12.      This Court in the case of Mahadeo S/o Kerba
                                                                     H
966      SUPREME COURT REPORTS                   [2015] 6 S.C.R.


A Maske Vs. State of Maharashtra andAnr., (2013) 14 SCC
  637, has 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:
B
     "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
C    obtaining -

      (a) (i) the matriculation or equivalent certificates, if
      available; and in the absence whereof;

      (ii) the date of birth certificate from the school (other
D
      than a play school) first attended; and in the absence
      whereof;

      (iii) the birth certificate given by a corporation or a
      municipal authority or a panchayat;
 E
      (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
 F    assessment of t~e 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
G     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
H
    STATE OF MADHYA PRADESH v. ANOOP SINGH                        967
           [PINAKI CHANDRA GHOSE, J.]

  finding in respect of his age and either of the evidence         A
  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."
                                                                   B
     13. This Court further held in paragraph 12 of Mahadeo
Slo Kerba Maske (supra) as under:
  "Under rule 12(3)(b), it is specifically provided that only
  in the absence of alternative methods described under            c
  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                    D
  ascertaining the age of a victim as well."

                                     (Emphasis supplied)

     This Court therefore relied on the certificates issued
by the school in determining the age of the prosecutrix. In        E
paragraph 13, this Court observed:

  "In light of our above reasoning, in the case on hand,
  there were certificates issued by the school in which
  the proseuctrix did her V standard and in the school             F
  leaving certificate issued by the school under Exhibit
  54, the date of birth has been clearly noted as
  20.05.1990 and this document was also proved by PW
  11. Apart from that the transfer certificate as well as
  the admission form maintained by the Primary School,             G
  Latur, where the prosecutrix had her initial education,
  also confirmed the date of birth as 20.05.1990. the
  reliance placed upon the said evidence by the Courts
  below to arrive at the age of the prosecutrix to hold
                                                                  H
968         SUPREME COURT REPORTS                     [2015] 6 S.C.R.


A        that the prosecutrix was below 18 years of age at the
         time of occurrence was perfectly justified and we do
         not find any grounds to interfere with the same."

        14. In the present case, we have before us two
B 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
C 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.

             15. The High Court also relied on the statement of PW-
D     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
E     incident. With respect to this finding of the High Court, 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
F     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 18% years, then
G     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
H     birth of the prosecutrix as her certificate of birth and ai<::: the
     STATE OF MADHYA PRADESH v. ANOOP SINGH                       969
            [PINAKI CHANDRA GHOSE, J.)

certificate of her medical examination had been enclosed.          A

      16. Thus, 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 B
the incident, we set aside the impugned judgment passed
by the High Court and uphold the judgment and order dated
24.04.2006 passed by the lllrd Additional Sessions Judge,
Satna in Special Case No.123/2003.
                                                                   c
      17. Accordingly, this appeal is allowed. We direct that
the respondent shall be taken into custody forthwith to serve
out the sentence.

Nidhi Jain                                      Appeal allowed.    D