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SUPREME COURT OF INDIA
P. Sathasivam and Jagdish Singh Khehar, JJ.
Jarnail Singh — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 1209 of 2010
Decided on : 1-7-2013
(b) Code of Criminal Procedure, 1973-Section 313- Statement of accused under- Not Guilty- Not lead any evidence, in his defence (Para 6)
(c) Cross-examination of witnesses- The suggestion put to the prosecutrix at the behest of the accused-appellant during the course of her cross-examination, that she had accompanied the accused of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. (Para 24)
(d) Juvenile Justice (Care and Protection of Children) Act, 2000- Section 68(1 -Juvenile Justice (Care and Protection of Children) Rules, 2007- Rule 12(3)- Procedure to be followed in determination of Age- Prima facie on the basis of physical appearance or documents- Statutory provision should be the basis for determining age, even for a child who is a victim of crime- The highest rated option available, would conclusively determine the age of a minor. (Para 20)
(e) Juvenile Justice (Care and Protection of Children) Act, 2000- Section 68(1 -Juvenile Justice (Care and Protection of Children) Rules, 2007- Rule 12(3)- Prosecutrix had studied upto class 3- The school records indicating, that the prosecutrix was minor on the date of occurrence- It is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause- It would have been improper to rely on any other material including the Ossification test, for determining the age of the prosecutrix. (Para 21)
(f)Indian Penal Code, 1860- Sections 366, 376(g) and 120-B- Consent of minor- The prosecutrix was a minor at the time of occurrence and even if she had accompanied the accused of her own free consent, and even if she had had sexual intercourse with the accused consensually, the same would be immaterial-For, consent of a minor is inconsequential. (Para 17, 21)
(g)Indian Penal Code, 1860- Sections 366, 376(g) and 120-B- Consent of the prosecutrix- The father of the prosecutrix had categorically mentioned that a sum of Rs.3,000/- was missing from his residence, and the said fact was duly mentioned in his complaint to the police , yet he had not accused the prosecutrix for having taken it away- The instant aspect pales into insignificance on account of the statement made by the father before the Trial Court- During the course of his deposition before the Trial Court, he had asserted, that he had mentioned that a sum of Rs.3,000/- was missing from his residence, but his wife had found the aforesaid money from the residence itself, a few days later-Contention of having taken away a sum of Rs.3,000/- while leaving her house, or that she left her house along with clothes and jewellery not accepted. (Para 16)
Facts of the case:
The prosecutrix was forcibly taken away on 25.3.1993, when she had gone out of her house to urinate in the street, by the accused and his three accomplices. All the four had caught hold of her. They had made her inhale something, which rendered her unconscious. The accused and his accomplices, had then taken her to some unknown place in Uttar Pradesh in a vehicle where the accused forcibly attempted to commit intercourse with her. At that juncture, she had slapped accused on his face, but in order to subjugate her, he had put a cloth in her mouth to prevent her from raising an alarm. Additional Sessions Judge arrived at the conclusion that the prosecution had been able to bring home the guilt of the accused beyond any shadow of reasonable doubt, under Sections 366, 376(g) and 120-B IPC The High Court dismissed the appeal.
Findings of the Court :
The prosecutrix was forcefully taken away, and that, she was subjected to rape at the hands of the accused-appellant Jarnail Singh and his three accomplices. It may still have been understandable, if the case had been, that she had consensual sex with the accused-appellant alone. But consensual sex with four boys at the same time, is just not comprehensible.
Key Points: - The age of the prosecutrix VW-PW6 was concluded to be under 15 on the date of occurrence (25.3.1993) based on school certificate Exhibit PG indicating birth date 15.5.1977, and Rule 12(3) of the 2007 Rules; the hierarchy of proof specifies matriculation certificate, then school first-attended birth entry, then birth certificate; medical opinion only if those are absent. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) - The Court held that consent of a minor is inconsequential for offenses under sections 366, 376(g) and 120-B IPC; minor status makes consent immaterial. (!) (!) - The school record certificate (Exhibit PG) establishing birth date is final and conclusive under Rule 12(3) when available, and no other material should be relied upon to determine age. (!) (!) - The prosecution’s corroboration included medico-legal findings (hymen rupture, semen on clothing) and testimony of the prosecutrix and father corroborating recovery and incident details. (!) (!) (!) (!) - The High Court and Supreme Court affirmed conviction under 366, 376(g), 120-B IPC despite discrepancies in statements, due to substantial corroboration and conclusions on minor status. (!) (!) (!) (!)
JUDGMENT
Jagdish Singh Khehar, J.
1. The factual position on which the prosecution version is founded, commences with the passing of information by Savitri Devi (the mother of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8, on 26.3.1993, at about 6 am. She informed her husband, that the prosecutrix VW - PW6 was missing from their residence. In this behalf it would be pertinent to mention, that on 25.3.1993 at about 10 pm, Jagdish Chander went to sleep in the “baithak” (drawing room) of their residence. Savitri Devi, the mother of the prosecutrix VW - PW6, along with the prosecutrix VW - PW6, and the other children (comprising of three sons, the prosecutrix VW – PW6 and one other daughter), went to sleep in the other rooms of the house. Savitri Devi, told her husband, that she suspected the accused- appellant Jarnail Singh, may be responsible for having taken away their daughter.
2. Jagdish Chander-PW8, commenced to search for his daughter. During the course of the aforesaid search, the accused-appellant Jarnail Singh, who had his residence in the neighbourhood (of Jagdish Chander-PW8), was also found missing from his residence. The search for the prosecutrix VW - PW6 by her father, proved futile. It is therefore, that Jagdish Chander- PW8, made a complaint Exhibit PO on 27.3.1993 to the Sub-Inspector Incharge, Police Post, Jathlana. In his complaint, he described VW - PW6, as the elder of his two daughters. He gave out her age as about 16 years. He also alleged, that his daughter VW - PW6 had gone missing from their residence in the night intervening 25th and 26th March, 1993. He also alleged, that an amount of Rs.3,000/- was missing from his house, which he assumed may have been taken away by his daughter VW - PW6, while leaving the house. In the complaint Exhibit PO, the needle of suspicion was pointed at the accused-appellant Jarnail Singh.
3. After the registration of the complaint of Jagdish Chander-PW8, the prosecutrix VW - PW6 was recovered on 29.3.1983, from the custody of the accused-appellant Jarnail Singh, from the house of Shashi Bhan at Raipur in district Haridwar. The accused-appellant simultaneously came to be arrested, on 29.3.1993.
4. The statement of the prosecutrix VW - PW6 was got recorded under Section 164 of the Code of Criminal Procedure before O.P. Verma, Judicial Magistrate First Class, Jagadhri on 6.4.1993. It is necessary in the facts and circumstances of this case to extract herein her short statement recorded under Section 164 of the Code of Criminal Procedure, which is being reproduced hereunder:
“Stated that on the night of 25.3.1993 at around 11 pm, I went to a street near my house to answer nature’s call. Accused Jarnail Singh and his three accomplices were hiding there. When I got up after answering nature’s call, then they caught hold of me and inhaled me something by cloth, due to which, I got unconscious. They took me to some unknown place in U.P. by putting me in some vehicle. There they took me to a room. Jarnail Singh, forcibly committed wrong (intercourse) with me. I slapped on his face, then he put cloth in my mouth. Therefore, I could not raise noise. Thereafter, everyone committed forcible intercourse with me, turn by turn. Huge blood came out of my vagina, and I felt a lot of pain. Thereafter, police caught us and handed over me to my parents.”
5. On completion of investigation, a challan was presented under Sections 366, 376 and 120 of the Indian Penal Code. The matter was committed to the Court of Sessions, Jagadhri, whereupon, it was marked to the Additional Sessions Judge, Jagadhri. The Additional Sessions Judge, Jagadhri framed charges on 20.12.1993. The accused-appellant pleaded not guilty, and claimed trial.
6. In order to bring home the charges levelled against the accused- appellant, the prosecution examined 9 witnesses. Thereafter, the prosecution evidence was closed. The statement of the accused-appellant Jarnail Singh, was then recorded under Section
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