Holding

The High Court’s conclusion that the victim was over 16 and had consented was unsustainable; the documentary evidence establishing her date of birth is reliable and the conviction under IPC ss.363, 366 and 376 stands.

Summary

The accused was convicted by the trial court for kidnapping (IPC ss.363, 366) and rape (IPC s.376) of a girl who was 14 years old at the time of the offence, based on school records showing her date of birth as 4‑6‑1976 and medical evidence confirming her age. The High Court set aside the conviction, holding that the girl was over 16 and that the alleged sexual acts were consensual, relying on a medical opinion that placed her age between 14 and 16 with a one‑year margin and discounting the school leaving certificate and register. The State appealed, arguing that the High Court’s conclusion on the victim’s age was presumptuous and that the documentary evidence was reliable. The Supreme Court examined the evidence, found no basis to disregard the school records, noted the absence of any cross‑examination on the date of birth, and held that the High Court’s findings were unsustainable. Consequently, the Supreme Court allowed the appeal, set aside the acquittal, and ordered the respondent to serve the remainder of his sentences.

Issues considered

The correct age of the prosecutrix at the time of the alleged offences and whether she was capable of giving consent.
The weight to be given to documentary evidence (school leaving certificate and register) versus medical evidence in determining the victim's age.
Whether the High Court erred in concluding that the victim consented to the sexual acts.
Whether the High Court's judgment was perverse or unsustainable, warranting reversal.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 363, s. 366, s. 376

Subjects

kidnappingrapeconsentage of consentminordocumentary evidenceschool recordsmedical evidenceIPC sections 363IPC section 366IPC section 376criminal law

Judgment

[2008] 10 S.C.R. 541
~

STATE OF MAHARASHTRA A
II.
GAJANAN @ HEMANT JANARDHAN WANKHEDE
(Criminal Appeal No. 492 of 2001)
-¥ JULY 9, 2008
8,
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860 - ss. 363, 366 and 376 - Conviction
and sentence under- Set aside by High Court in appeal, on
ground that there was consent of the victim girl and she was c
more than 16 years of age - Held: Conclusion of High Court
about the date of birth of the victim was presumptuous - There
was no analysis of the evidence on record and abrupt conclu-
.,. sions, mostly based on surmises, were arrived at by the High
~
Court - Accused directed to serve the remainder sentence.
D
The Trial Court convicted Respondent under ss. 363,
366 and 376 of the IPC and sentenced him to undergo RI
for 5, 4 and 3 years respectively for the three offences.
The victim girl was educated upto 7th standard in a Mu-
nicipal school. In the school leaving certificate, her date E
of birth was indicated as 4-6-1976 and the incident of her
kidnapping by Respondent allegedly took place on 21-4-
1991.
... The High Court, however, acquitted Respondent
i.
holding that there was consent of thp victim girl and she F
was more than 16 years of age. The High Court held that
since the medical evidence showed that the age of the
girl was above 14 years and below 16 years with an error
margin of one year, the school leaving certificate and the
school register were of no consequence. G
~
In appe_al to this Court, it was submitted by the State
that.the conclusion of the High Court about the date of
birth of the victim was presumptuous.
541 H
..

542 SUPREME COURT REPORTS [2008] 10 S.C.R.
}:-

A Allowing the appeal, the Court
HELD:1.1. The High Court held that the correct date
of birth is not recorded and only the school leaving cer-
tificate indicated that the date of birth of the victim was
4.6.1976. The evidence of the witnesses indicated that the 'f
B entry was made on the basis of the horoscope. The High
Court held that since the horoscope was not produced '
,..
the prosecution has failed to establish its case. No rea- ~
r-
son has been indicated by the High Court to discard the
documentary evidence produced i.e. school leaving cer-
c tificate and the school register. The Headmaster of the
school also deposed and produced the records before
the trial Court. The High Court held that the entry in the
school register was not in the handwriting of the Head~
master and he could not have deposed about the date of ,,
D birth. There was no basis for the High Court to conclude t
that the entry cannot be taken to be above suspicion.
[Para 5] [546-G,H; 547-A,B & C]
1.2. On the basis of the evidence of the Headl)"laster
and the original school leaving certificate and the school
E register which were produced, the High Court came to
abrupt conclusion that normalty ·for various reasons the
guardians understate the age of their children at the time
of admission in the school. There was no material or ba-
·~

sis for coming to this conclusion. The High Court in the ).
F absence of any evidence to the contrary should not have
come to hold that the date of birth of the prosecutrix was
not established and the school leaving certificate and the
school register are not conclusive. No question was put
to the victim in cross examination about the date of birth.
G The High Court also noted that no document was pro-
duced at the time of admission and a horoscope was pur- )('
portedly produced. There is no requirement that at the
time of admission documents are to be produced as r.e-
gards the age of the student. Practically, there was no
H analysis of the evidence on record and abrupt conclu-
- STATE OF MAHARASHTRA v. GAJANAN@HEMANT 543
JANARDHAN WANKHEDE [DR. ARIJIT PASAYAT, J.]

sions, mostly based on surmises, were arrived at. The A
inevitable conclusion is that the judgment of the High
Court is unsustainable and deserves to be set aside. The
Respondent shall surrender to c4stody to serve the re-
mainder of the sentences. [Para 5) [547-C,D,E,F & G]

)( CRIMINALAPPELLATE JURISDICTION: Criminal Appeal B
No. 492 of 2001
From the final Judgment and Order dated 30.3.2000 of
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
in Crl. Appeal No. 355 of 1994 c
Ravindra Keshavrao Adsure for the Appellant.
Manish Patale and V.N. Raghupathy for the Respondents.
The Judgment of the Court was delivered by
D
""-~ Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of a learned Single Judge of the Bombay High
Court, Nagpur Bench directing acquittal of the respondent by
setting aside the conviction as recorded by the learned 2nd Ad-
ditional Sessions Judge, Ah1ravati. The respondent was con-
E
victed for offence punishable under Sections 363, 366 and 376
of the Indian Penal Code, 1860 (in short the 'IPC') and was
sentenced to undergo RI for 5 years, 4 years and 3 years re-
spectively for the three offences alongwith fine and default stipu-
lation.
F
"'
~ 2. Background facts in a nutshell are as follows:
Prosecutrix, who is the daughter of complainant
Ambaprasad Mishra, was residing with the family in Mangilal
plots, Amravati. The accused-respondent was also the resident
of the same locality. The prosecutrix was educated upto ]lh stan- G
dard and she had taken her education in Municipal School No.5
'Y at Amravati. Her date of birth recorded in official documents
was 4.6.1976 and the incident of kidnapping her by the accused
took place on 21.4.1991. As such she was aged 14 years, 10
months and 17 days at the time of the incident. On 21.4.1991, H
•
544 SUPREME COURT REPORTS [2008] 10 S.C.R. ~

A the accused sent a message to prosecutrix through one Sachin
.r
and called her to come with a bag at a place near her school.
Accordingly, the prosecutrix went at that place. Then the accused,
prosecutrix and Sachin went by an autorickshaw to Chinchfail
area of Amravati where the grandmother of the accused was
8 residing. They reached there at about 1.00 p.m. The accused
took his suitcase. Then the accused and prosecutrix who were '1-
accompanied by Sachin, arrived by an autorickshaw at Badnera
Railway station. Sachin .went back to Amravati from Badnera
Railway Station and the accused and prosecutrix arrived at
c Nagpur by train. They reached Nagpur at about 5.00 p.m. There-
from they went to Jhansi. They reached Jhansi early in the morn-
ing, i.e. at about 4.00 to 5.00 a.m. At Jhansi, they went to the
house of the sister of the accused namely Lata. They stayed in
one separate room in the house of accused's sister for about 8
to 10 days. During this period, they used to sleep in that room
D )'
~
and the accused practically on every night performed sexual
;..
intercourse with prosecutrix. Then from Jhansi, the accused and
prosecutrix arrived at Bichona and stayed there in the house of
one Raj put for about 3-4 days and the accused performed sexual
intercourse with the prosecutrix twice. Then from Bichona, both
E of them came to Mundai. They resided at Mundai in the house
of one Narmadaprasad for about one and half months. From
Mund~i. the accused and prosecutrix arrived at Chinchkhed
via Nagpur and Amravati and stayed in the house of the sister
of the accused for about 4-5 days. Again from Chinchkhed, they
F went to Nagpur and stayed in the house of one friend of the .,
accused for about 20 days. The accused was working as a. A
labourer during this period. The accused and the prosecutrix
then again came back to Chinchkhed, stayed there for one day
and then went to Katsoor. They stayed at Katsoor at the house
G of maternal aunt of the accused for about 4-5 days. Then they
came to· Paratwada and therefrom went to village Talegaon
where they stayed with the aunt of the accused. Then from 'f'
Talegaon, they went to Delhi. But since the address of the per-
son within whom they were going to stay at that place was not
H available, they returned back to Taleg·aon. During all these days,
•

STATE OF MAHARASHTRA v. GAJANAN @ HEMANT 545
JANARDHAN WANKHEDE [DR. ARIJIT PASAYAT, J.]

the accused performed sexual intercourse with the prosecutrix. A
While at Talegaon, the father of the prosecutrix and Rajapeth
(Amravati) Police arrived there. The statement of the prosecu-
trix was recorded and she was taken back.
Meanwhile, immediately on the next day of the occurrence,
i.e. 22.4 ..1991, the father of the prosecutrix on coming to know ~
the fact about kidnapping his daughter by the accused, had
lodged the report in Police Station Rajapeth, Amravati, on the
strength of which the offence under Sections 363 and 366 IPC
was registered as Crime No.184 of 1991. Then on 28.8.1991,
the prosecutrix and the accused were traced at Talegaon and c
accused was arrested. Prosecutrix was referred to Women's
Hospital, Amravati, for her medical examination. The Medical
Officer concerned examined her and found that her hymen was
ruptured, she was habituated to sexual intercourse and she was
carrying pregnancy of 4 to 6 weeks. On arrest of the accused, D
' '~ he was also referred for medical examination and the Medical
Officer concerned opined that he was capable of committing
sexual intercourse. The ossification test of the girl was also car-
ried out and the opinion of the concerned Medical Officer was
that the girl was aged about 14 to 16 years. The radiological E
examination of the accused was also performed wherein it was
found that he was aged about 20 years. The necessary investi-
gation was conducted and on completion of the same the ac-
cused stood charge sheeted for the offences punishable under
• Sections 363, 366 and 376 IPC. F
;.,
The case was committed to the Court of Session. Since
the respondent pleaded innocence and false implication, the
trial was held.
The defence of the accused as it is revealed from his ex-
G
amination under Section 313 of the Code of Criminal Proce-
dure, 1973 (in short the 'Code') is of total denial. He denied to
')<:
have taken prosecutrix Sharmila and to have committed sexual
intercourse with her. It is the contention of the accused that pros-
ecutrix had love affairs with him and her parents came to know
H
,I
~

546 SUPREME COURT REPORTS (2008] 10 S.C.R.

;..-
A about the same. They .were about to perform her marriage fore-
ibly with somebody else. They did not like the accused as he
belonged to inferior caste, whereas they were belonging to su- ,>
perior caste. So, they involved the accused falsely. Alternatively,
it was pleaded that whatever was done had consent of the pros-
B ecutrix.
'f-
The trial Court found that the prosecutrix was aged about
16 years arid, therefore, the consent of the prosecutrix was of
no consequence. The High Court held that there was consent
and additionally, the girl was more than 16 years of age. With
c reference to the evidence of a doctor (PW-9) it was held that
since the medical evidence shows that the age of the girl was
above 14 years and below 16 years with an error margin of one
year, the school leaving certificate and the school register were
of no consequence. Accordingly, it directed acquittal as noted
D above. .,
>--·
~
3. Learned counsel for the appellant-State submitted that
the conclusions of the High Court are totally erroneous. The
High Court came to presumptuous conclusion about the date of
birth of the victim.
E
4. Learned counsel for the respondent on the other hand
submitted that the medical evidence clearly rules out the au-
thenticity of the documentary evidence and in any event the or-
der of acquittal as has been passed and the view of the learned
F Single Judge cannot be termed as perverse.
•
).
5. Undisputedly, the school records revealed the date of
birth of the victim to be 4.6.1976. This was the position as indi-
cated in the school leaving certificate (Exh.25) and the school
register. The High Court noted that in the school register the
G date of birth was indicated to be 4.6.1976. It also noticed that
the father of the victim stated that the girl was 14 years old. The f
High. Court held that the correct date of birth is not recorded "'('

and o.nly the school leaving certificate indicated that the date of
birth of the victim was 4.6.1976. The evidence of the witnesses
H )
STATE OF MAHARASHTRA v. GAJANAN @ HEMANT 547
JANARDHAN WANKHEDE [DR ARIJIT PASAYAT, J.]

indicated that the entry was made on the basis of the horoscope. A
The High Court held that since the horoscope was not produced
the prosecution has failed to establish its case. No reason has
. been indicated by the High Court to discard the documentary
evidence produced i.e. school leaving certificate and the school
register. The Headmaster of the school also deposed and pro- B
duced the records before the trial Court. The High Court held
that the entry in the school register was not in the handwriting of
the Headmaster and he could_ not have deposed about the date
of birth. There was no basis for the High Court to conclude that
the entry cannot be taken to be above suspicion. On the basis c
of the evidence of the Headmaster and the original school leav-
ing certificate and the school register which were produced the
High Court came to abrupt conclusion that normally for various
reasons the guardians to understate the age of their children at
"(
the time of admission in the school. There was no material or D
1 basis for coming to this conclusion. The High Court in the ab-
sence of any evidence to the contrary should not have come to
hold that the date of birth of the prosecutrix was not established
and the school leaving certificate and the school register are
not conclusive. Interestingly, no question was put to the victim in E
cross examination about the date of birth. The High Court also
noted that no document was produced at the time of admission
and a horoscope was purportedly produced. There is no re-
quirement that at the time of admission documents are to be
;., produced as regards the age of the student. Practically, there F
was no analysis of the evidence on record and abrupt conclu-
sions, mostly based on surmises, were arrived at. The inevi-
table conclusion is that the judgment of the High Court is unsus-
tainable, deserves to be set aside which we direct. The respon-
dent shall surrender to custody to serve the remainder of the G
sentences.
"!"'
6. The appeal is allow~d.

8.8.B. Appeal allowed.
H