STATE OF MADHYA PRADESH versus PREETAM on 29 August 2018

[2018] 10 S.C.R. 627

STATE OF MADHYA PRADESH

v.

PREETAM

(Criminal Appeal No. 2229 of 2011)

AUGUST 29, 2018

[R. BANUMATHI AND VINEET SARAN, JJ.]

Penal Code, 1860 – s.376– Prosecutrix raped by respondent-accused– Trial court convicted the respondent– High Court reversedthe conviction and acquitted the respondent– On appeal, held: Inthe present case evidence of prosecutrix (PW-1) is supported bymedical evidence and also by the evidence of PW-4, who saw theaccused running away from the scene of occurrence– Delay inregistration of F.I.R. was properly explained– This was notconsidered by High Court– Judgment of High Court set aside andthat of trial court convicting the respondent restored– However, inthe instant case, the occurrence was of the year 1993 i.e. about 25years ago– Having regard to the passage of time and discretionvested with the Court as per proviso to s.376(1) (prior to 2013amendment) to impose imprisonment for a term less than seven years,the sentence of imprisonment of seven years imposed on therespondent is reduced to four years– Criminal Law (Amendment)Act, 2013.

Penal Code, 1860 – s.375, Sixthly – Rape – Consent of victim– When not relevant – Held: Under s.375, Sixthly, a man is said tocommit rape with or without the consent of prosecutrix, when she isunder sixteen years of age – Prosecutrix being aged 12 years at thetime of the occurrence, her consent or otherwise was of no relevance.

Evidence – Rape – Age of victim – School documents as prooffor – Appreciation of.

Evidence – Rape – Absence of external injuries on the personof the rape victim – Effect of – Held: Absence of injury on theperson of the rape victim does not lead to an inference that theincident had taken place with the consent of the prosecutrix – Itdepends upon the facts and circumstances of each case – Further,even in the absence of external injury, the oral testimony of theprosecutrix that she was subjected to rape, cannot be ignored.

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AAllowing the appeal, the Court

HELD: 1.1 In the absence of external injury on the personof the prosecutrix, it cannot be concluded that the incident hadtaken place with the consent of the prosecutrix. It depends uponthe facts and circumstances of each case. Absence of injury onBthe person of the victim of rape does not lead to an inference thatthe accused did not commit forcible sexual intercourse. Even inthe absence of external injury, the oral testimony of the prosecutrixthat she was subjected to rape, cannot be ignored. In the presentcase, evidence of prosecutrix (PW-1) is supported by the medicalevidence and also by the evidence of PW-4, who saw the accusedCrunning away from the scene of occurrence. [Paras 9-10][630-G-H; 631-A-B]

1.2 The school registers are the authentic documents beingmaintained in the official course, entitled to credence of muchweight unless proved otherwise. Considering the evidence ofDPW-8, Head master/Head teacher of Primary School and theschool certificate produced by him i.e. Ex.P/13-A, age of the victimhas to be taken as 12 years at the time of occurrence. As perSection 375 IPC, a man is said to commit rape, Sixthly - “With orwithout her consent, when she is under sixteen years of age”.EThe prosecutrix being aged 12 years at the time of the occurrence,her consent or otherwise was of no relevance to bring the offencewithin the meaning of Section 375 IPC. The High Court ignoredthe material evidence adduced by the prosecution and erred inreversing the conviction of the respondent-accused.[Paras 12, 13] [631-G; 632-A-B]F

1.3 The delay in registration of the FIR was properlyexplained, which was not considered by the High Court. Thejudgment of the High Court is set aside and that of the trial courtis restored. [Paras 14, 15] [632-D-E]

G1.4 Prior to the Criminal Law (Amendment) Act, 2013(w.e.f. 3[rd] February, 2013) under Section 376(1) IPC, the sentenceof imprisonment for a term shall not be less than 7 yearsextending for life. However, as per the proviso to Section 376(1)IPC (prior to amendment) discretion is vested with the Court toimpose imprisonment for a term of less than seven years forHadequate and special reasons to be recorded in the judgment. In this case, the occurrence was of the year 1993 i.e. about 25 yearsago. Having regard to the passage of time and other facts andcircumstances of the case, the sentence of imprisonment of sevenyears imposed on the respondent-accused is reduced to a periodof four years. [Para 16] 632-F-G]

B.C Deva @ Dyava v. State of Karnataka (2007) 12SCC 122 : [2007] 8 SCR 509 – relied on.

Case Law Reference

[2007] 8 SCR 509 relied onPara 9

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2229 of 2011.

From the Judgment and Order dated 06.01.2010 of the High Courtof Madhya Pradesh at Jabalpur in Criminal Appeal No. 228 of 1995.

Ms. Swarupama Chaturvedi, B. N. Dubey, Ms. Devika Gulati,Ms. Vaishali Verma, Advs. for the Appellant.

Ms. Nidhi, Adv. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of judgment andorder dated 6[th] January, 2010 passed by the High Court of MadhyaPradesh at Jabalpur in Criminal Appeal No.228 of 1995 in which theHigh Court reversed the verdict of the conviction under Section 376I.P.C. and also the sentence of imprisonment of seven years and acquittedthe respondent-accused.

2. Despite service of notice, the respondent has not chosen toappear and contest this appeal. Accordingly Ms. Nidhi, Advocate, hasbeen appointed by the Supreme Court Legal Services Committee asamicus to contest the appeal on behalf of the respondent.

3. We have heard Ms. Swarupama Chaturvedi, learned counselappearing for the appellant-State and Ms. Nidhi, learned amicus, andalso perused the impugned judgment and the evidence/materials onrecord.

4. The facts of the case in a nutshell are as follows. On6[th] March, 1993 at about 9.00 p.m. the prosecutrix (PW-1) along with A

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Aher two sisters i.e. Hirkanbai (PW-3) and Anitabai had gone outside thevillage to a field to attend nature’s call and while returning back therespondent-accused is alleged to have forcibly taken the prosecutrix tothe field and committed rape on her.

5. Since the Moti Ram (PW-2) who is father of HirkanbaiB(PW-3) and also uncle (chacha) of the prosecutrix was not in the village,on his return a complaint was lodged on 8[th] March, 1993. The prosecutrixwas medically examined on 9[th] March, 1993 by Dr. U.S. Vasnik(PW-6), who has noted that the hymen of prosecutrix was torn; swellingwas present on the edges of torn hymen. Dr. U.S. Vasnik (PW-6) hasopined that though vagina of the prosecutrix was admitted two fingersCeasily, the prosecutrix felt pain and the doctor (PW-6) has opined thatthe prosecutrix was subjected to sexual intercourse within 2-3 days ofexamination.

6. Based upon the evidence of prosecutrix (PW-1) and Mangrulal(PW-4) who went to the place of occurrence after having been told byDAnita and saw the accused running from there and also on the evidenceof Dr. U.S. Vasnik (PW-6), the trial court convicted the respondent-accused under Section 376 I.P.C. and sentenced him to undergoimprisonment for a period of seven years.

7. On appeal, the High Court has reversed the verdict of convictionEon the grounds:- (i) There was no external injury on the person ofprosecutrix (PW-1) which is indicative of her consent for the sexualintercourse and, therefore, the story of forcible rape does not find supportfrom the medical evidence; (ii) There was delay in registration of theFIR.F

8. As pointed out earlier as per PW-6-Dr. Vasnik’s evidence thehymen of the prosecutrix (PW-1) was torn and swelling was present inthe vagina having redness. Doctor has noticed that even though vaginaadmitted of two fingers, the prosecutrix felt pain which is suggestivethat the prosecutrix was subjected to sexual intercourse only in theGoccurrence.

9. It is fairly well-settled that in the absence of external injury onthe person of the prosecutrix, it cannot be concluded that the incidenthad taken place with the consent of the prosecutrix. It depends uponthe facts and circumstances of each case. In B.C. Deva alias Dyava v.

State of Karnataka, (2007) 12 SCC 122, this Court has held that absenceof injury on the person of the victim of rape does not lead to an inferencethat the accused did not commit forcible sexual intercourse. It wasfurther held that even in the absence of external injury, the oral testimonyof the prosecutrix that she was subjected to rape, cannot be ignored.

10. In the present case evidence of prosecutrix (PW-1) is supportedby the medical evidence and also by the evidence of Mangrulal (PW-4)who saw the accused running away from the scene of occurrence.Insofar as the consent of the prosecutrix (PW-1) pointed out by theHigh Court is concerned, we find it difficult to agree with the view takenby the High Court. In her chief examination, Dr. U.S. Vasnik (PW-6)has stated that the age of the victim could be between 13 and 17 years.Of course in her cross-examination, Dr. Vasnik has agreed to thesuggestion that the age of the victim could be 17 years.

11. In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion onthe age of the prosecutrix (PW-1). It is to be relevant to note thatbefore the trial court the prosecution has examined Bhaulal (PW-8),Head master/Head teacher of Primary School Chor Pind Ke Par, DistrictBalaghat. In his evidence, Bhaulal (PW-8) has stated that the date ofbirth of the prosecutrix (PW-1) was 16[th] May, 1981 which means thaton the date of the occurrence i.e. 6[th] March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted uponthe evidence of Bhaulal (PW-8) nor on the school certificate on theground that the person who has admitted the prosecutrix in the schoolwas not examined.

12. In our considered view, the approach of the trial court was notcorrect. In each and every case the prosecution cannot be expected toexamine the person who has admitted a student in the school. Theschool registers are the authentic documents being maintained in theofficial course, entitled to credence of much weight unless provedotherwise. In our view, considering the evidence of head master, Bhaulal(PW-8), and the school certificate produced by him i.e. Ex.P/13-A, ageof the victim has to be taken as 12 years at the time of occurrence.

13. Of course, Dr. U.S. Vasnik (PW-6) in her chief examinationhas stated that the age of the prosecutrix would be between 13 and 17

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Ayears. At the most, adopting the doctor’s evidence, age of the prosecutrixat the relevant point of time can only be around 15 years. As per Section375 I.P.C. a man is said to commit rape, Sixthly - “With or without herconsent, when she is under sixteen years of age”. The prosecutrixbeing aged 12 years at the time of the occurrence, her consent orotherwise was of no relevance to bring the offence within the meaningBof Section 375 I.P.C. In our considered view the High Court ignored thematerial evidence adduced by the prosecution and erred in reversing theconviction of the respondent-accused.

14. So far as the other ground of acquittal – delay in registrationof the F.I.R. is concerned, it has come on the record that the uncle of theCprosecutrix, Moti Ram (PW-2), was not in the village and returned backto the village only on 8[th] March, 1993 and on his return his daughter-Hirkanbai (PW-3), has narrated the whole incident to him as to whathappened to the prosecutrix (PW-1) and a complaint was lodged on thesame day i.e. 8[th] March, 1993. After medical examination of theDprosecutrix (PW-1) on 9[th] March, 1993, F.I.R. was registered on10[th] March, 1993 and the delay in registration of the F.I.R. has beenproperly explained, which has not been considered by the High Court.

15. The impugned judgment of the High Court reversing theconviction of the respondent to acquittal, cannot be sustained and theEsame is liable to be set aside and the judgment of the trial court convictingthe respondent under Section 376 I.P.C. is to be restored. The trialcourt has sentenced the respondent-accused to undergo imprisonmentfor a period of seven years.

16. Prior to the Amendment Act 13 of 2013 (w.e.f. 3[rd] February,F2013) under Section 376(1) I.P.C. the sentence of imprisonment for aterm shall not be less than 7 years extending for life. However, as perthe proviso to 376(1) I.P.C. (prior to amendment) discretion is vestedwith the Court to impose imprisonment for a term of less than sevenyears for adequate and special reasons to be recorded in the judgment.In this case, the occurrence was of the year 1993 i.e. about 25 yearsGago. Having regard to the passage of time and other facts andcircumstances of the case, the sentence of imprisonment of seven yearsimposed on the respondent-accused is reduced to a period of four years.17. Accordingly the appeal preferred by the State is allowed andthe conviction of the respondent-accused under Section 376 I.P.C. asH

STATE OF MADHYA PRADESH v. PREETAM

passed by the trial court is restored. However, the period of sentence ofseven years, as noted above, is reduced to four years.

18. In case the respondent has not already undergone the sentenceof imprisonment of four years, he is to surrender to custody within aperiod of fours weeks from today to serve the remaining sentence failingwhich he shall be taken to custody.

19. A copy of this order be sent to the concerned trial court fornecessary action.

Divya Pandey

Appeal allowed.

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