Page 1 “ REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1209 OF 2010

Jarnail Singh ... Appellant

Versus

State of Haryana ... Respondent

J U D G M E N T

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

1

Page 2 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 25

th

and 26

th

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:

2

Page 3 “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 313 of the

Code of Criminal Procedure. He denied the allegations levelled against

him, and pleaded false implication. Despite opportunity having been

afforded to him, the accused-appellant did not lead any evidence, in his

defence.

7.It is necessary to record, that on the culmination of the trial, the

Additional Sessions Judge, Jagadhri arrived at the conclusion, that the

prosecution had been able to bring home the guilt of the accused-

3

Page 4 appellant beyond any shadow of reasonable doubt, under Sections 366,

376(g) and 120-B of the Indian Penal Code. The accused-appellant

Jarnail Singh was accordingly held guilty of the charges levelled against

him. The Additional Sessions Judge, Jagadhri gave an opportunity of

hearing to the accused-appellant Jarnail Singh on the question of

sentence. Thereupon, for the offence under Section 376(g) of the Indian

Penal Code the accused-appellant was awarded rigorous imprisonment

for 10 years, he was also required to pay a fine of Rs.200/- (in case of

default in payment of fine, the accused-appellant was to undergo further

rigorous imprisonment for 3 months). For the offence under Section 366

of the Indian Penal Code, the accused-appellant was awarded rigorous

imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in

case of default in payment of fine, the accused-appellant was to undergo

further rigorous imprisonment for 3 months). And for the offence under

Section 120-B of the Indian Penal Code, the accused-appellant was

awarded rigorous imprisonment for 7 years, and was required to pay a

fine of Rs.150/- (in case of default in payment of fine, the accused-

appellant was to undergo further rigorous imprisonment for 3 months).

The aforesaid sentences were ordered to run concurrently.

8.Dissatisfied with the judgment dated 14.3.1995, rendered by the

trial Court, the accused-appellant Jarnail Singh preferred Criminal

Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at

Chandigarh (hereinafter referred to as, the High Court). The High Court

dismissed the appeal preferred by the accused-appellant on 4.11.2008.

The judgment of conviction dated 14.3.1995 and the order of sentence

4

Page 5 dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions

Judge, Jagadhri) were upheld.

9.Dissatisfied with the judgment of the trial Court dated 14.3.1995

and that of the appellate Court dated 4.11.2008, the accused-appellant

Jarnail Singh approached this Court. On 7.7.2010, this Court granted

leave, in the Petition for Special Leave to Appeal (Crl.) no. 7836 of

2009, filed by the accused-appellant. Having traversed the aforesaid

course, the instant criminal appeal has finally been placed before us, for

adjudication.

10.Before dealing with the issues canvassed at the hands of the

learned counsel for the accused-appellant Jarnail Singh, it is considered

expedient to have a bird’s eye view of the relevant prosecution

witnesses. It is, therefore, that we shall endeavour to deal with the

testimony of some of the prosecution witnesses hereunder:

(i)Dr. Kanta Dhankar was produced by the prosecution as

PW1. She had medico-legally examined the prosecutrix

VW - PW6 on 29.3.1993 at 3 pm. According to her

testimony, no blood or seminal stain was visible to the

naked eye, during the course of examination of the

prosecutrix VW - PW6. Pubic hairs were present. There

was no visible injury on the external genitalia or vagina.

The hymen of the prosecutrix VW - PW6 was found

ruptured. Her vagina admitted 2/3 fingers easily. The

clothes of the prosecutrix VW - PW6, a swab taken from

her vagina and her pubic hair, were sent to the forensic

5

Page 6 science laboratory for examination, so as to determine

whether there was any semen or blood thereon. Along with

the testimony of Dr. Kanta Dhankar- PW1, it is necessary to

record, that as per the report of the forensic science

laboratory (Exhibit PL), human semen was detected on the

prosecutrix’s “salwar” (female trouser), her underwear, as

also, on her pubic hair. The report of the serologist (Exhibit

PL/1) further revealed medium and small sized blood stains

on the “salwar”. The report of the serologist also disclosed,

that the stains on the “salwar” were of human blood.

(ii)Dr. Satnam Singh-PW2, was the second witness to be

examined by the prosecution. He had medico-legally

examined the accused-appellant Jarnail Singh. Dr. Satnam

Singh-PW2, while deposing before the trial Court affirmed,

that the accused-appellant was capable of sexual

intercourse.

(iii)The prosecution then examined Moti Ram as PW3. Moti

Ram testified, that he was present when the prosecutrix VW

- PW6, was recovered whilst in custody of the accused-

appellant, from the house of Shashi Bhan at Raipur, in

district Haridwar. Moti Ram also affirmed the presence of

Om Prakash, Jagmal and Sumer Chand, along with the

police party, at the time of recovery of the prosecutrix VW -

PW6, on 29.3.1993. Moti Ram had identified the

prosecutrix VW - PW6, at the time of her said recovery.

6

Page 7 (iv)Satpal was produced by the prosecution as its fourth

witness. Satpal-PW4 was the Headmaster of the

Government High School, Jathlana, i.e. the school which

the prosecutrix VW - PW6, had first attended. Satpal-PW4

proved the certificate Exhibit PG, as having been prepared

on the basis of the school records. As per the certificate,

Exhibit P4, the prosecutrix VW - PW6 was born on

15.5.1977.

(v)The prosecutrix appeared as PW6 before the trial Court.

She affirmed the factual position expressed by her father

Jagdish Chander-PW8 in his complaint dated 27.3.1993

(Exhibit PO). She also reiterated the factual position

expressed by her, in her statement, recorded under Section

164 of the Code of Criminal Procedure, on 6.4.1993. In

sum and substance she asserted, that she had studied upto

class 3 at the Government High School, Jathlana,

whereafter, she started to do household work at home. On

25.3.1993 at about 11 pm, she had gone out of her house to

urinate in the street. The accused-appellant Jarnail Singh

and three other persons had caught hold of her, and had

taken her in a tanker towards Raipur side in Uttar Pradesh.

The accused-appellant Jarnail Singh and his three

accomplices, had then raped her in a small room. She also

testified, that she had been recovered by the police from

Raipur, and at the time of her recovery, Moti Ram-PW3 and

7

Page 8 her uncle Omilal (Om Prakash) and Jagmal were present

with the police party. Thereafter, she claims to have been

brought to police post Jathlana, and was got medico-legally

examined by a lady doctor at Civil Hospital, Radaur. Since

the prosecutrix VW - PW6, was not disclosing the entire

factual position, and seemed to be changing the version of

her statement recorded under Section 164 of the Code of

Criminal Procedure, the Public Prosecutor sought

permission to cross-examine her. Consequent upon being

permitted to cross-examine the prosecutrix VW - PW6, she

affirmed, that the accused-appellant had been alluring her

for marriage, with the promise of giving her ornaments and

clothes, and a further commitment to move her to the city,

after their marriage. During these allurements, the

accused-appellant Jarnail Singh used to also impress upon

her, that her parents were poor and would marry her to

some poor person, who would never be able to provide her

such facilities. During her cross-examination, she expressly

denied the suggestion, that she herself had allured the

accused-appellant Jarnail Singh, to take her away, in order

to marry him.

(vi)O.P. Verma, Judicial Magistrate First Class, Jagadhri,

appeared as PW7. He proved the statement, recorded

before him under Section 164 of the Code of Criminal

Procedure, by the prosecutrix VW - PW6, on 6.4.1993.

8

Page 9 (vii)Jagdish Chander-PW8, the father of the prosecutrix VW -

PW6 during the course of his deposition, affirmed the

factual position depicted in his complaint dated 27.3.1993

(Exhibit PO). He also corroborated the testimony of his

daughter (i.e., the prosecutrix VW - PW6) in all material

particulars.

The conviction of the accused-appellant at the hands of the trial Court

(on 14.3.1995) and by the High Court (on 4.11.2008) was primarily

based on the statements of the prosecution witnesses summarised

above.

11.We shall now endeavour to deal with the submissions advanced

at the hands of the learned counsel for the accused-appellant.

12.The first and foremost contention advanced at the hands of the

learned counsel for the accused-appellant was, that the prosecutrix VW

- PW6, had voluntarily and with her free consent, accompanied the

accused-appellant Jarnail Singh. It was contended, that in actuality, it

was the prosecutrix VW - PW6 who had allured the accused-appellant

to marry her, and had persuaded him to take her away during the night

intervening 25

th

and 26

th

March, 1993. In order to substantiate the

instant submission, it was pointed out that the prosecutrix VW - PW6

has remained with the accused Jarnail Singh for four days without any

protestation. During the course of the aforesaid four days in the

company of the accused-appellant Jarnail Singh, they had travelled from

one place to another, and had finally reached the house of Shashi Bhan

at Raipur (from where the police recovered her on 29.3.1993). It was

9

Page 10 submitted, that there was ample opportunity with her, to raise an alarm

during the aforestated four days. The fact that she did not raise any

alarm shows, that she had voluntarily remained with the accused-

appellant Jarnail Singh. Therefore, sexual intercourse with the accused-

appellant Jarnail Singh, according to learned counsel, was also

consensual. Thus viewed, it was asserted, that the accused-appellant

Jarnail Singh could not be accused of either having kidnapped her,

and/or having committed rape on her.

13.On the same issue, learned counsel for the accused-appellant

also invited our attention to the fact, that in the complaint lodged by

Jagdish Chandra (PW8), dated 27.3.1993, he had expressly mentioned

that the prosecutrix had taken away a sum of Rs.3,000/-. In this behalf it

was submitted that the instant act of the prosecutrix exhibits that she

had taken money from her father’s house to make good her escape in

the company of the accused-appellant Jarnail Singh. It is sought to be

inferred from the above, that the prosecutrix VW - PW6 had gone with

the accused-appellant Jarnail Singh, of her own free will. And, that she

had sexual intercourse with him consensually. For the reasons

indicated hereinabove, it was the vehement contention of the learned

counsel for the accused-appellant Jarnail Singh, that the courts below

had seriously erred in recording the appellant’s conviction under

Sections 366, 376 and 120-B of the Indian Penal Code.

14.We have given our thoughtful consideration to the first contention

advanced at the hands of the learned counsel for the accused-appellant.

We shall venture to determine the factual aspects taken into

10

Page 11 consideration by the learned counsel for the appellant, to substantiate

the alleged free will and consent of the prosecutrix VW - PW6

individually ,so as to effectively determine the veracity of the

submissions noticed above.

15.In so far as the issue of having gone with the accused-appellant

Jarnail Singh of her own free will, and of having had sexual intercourse

with him consensually, it is necessary only to examine the uncontested

deposition of the prosecutrix VW - PW6. In this behalf, it may be

pointed out, that in her statement recorded under Section 164 of the

Code of Criminal Procedure before the Judicial Magistrate, First Class,

Jagadhari on 6.4.1993, the prosecutrix VW – PW6 had expressly

asserted, that she was forcibly taken away on 25.3.1993, when she had

gone out of her house to urinate in the street, by Jarnail Singh and his

three accomplices. She had clearly and categorically testified, that all

the four had caught hold of her. They had made her inhale something,

which rendered her unconscious. She had further stated, that the

accused-appellant Jarnail Singh and his accomplices, had then taken

her to some unknown place in Uttar Pradesh in a vehicle where Jarnail

Singh forcibly attempted to commit intercourse with her. At that

juncture, she had slapped Jarnail Singh on his face, but in order to

subjugate her, he had put a cloth in her mouth to prevent her from

raising an alarm. Thereafter, the accused-appellant Jarnail Singh and

his accomplices had committed forcible intercourse with her, one after

the other. In her statement before the Trial Court, where she appeared

as PW6, she had reiterated clearly the position of having been taken

11

Page 12 away by the accused-appellant Jarnail Singh, and his three

accomplices. She affirmed, that she was taken away in a tanker to Uttar

Pradesh and then all the accused had committed rape on her in a small

room. On the aforestated aspect of the matter, she was not subjected to

cross-examination at the behest of the accused. Only a suggestion was

put to her, that she had persuaded the accused-appellant Jarnail Singh

to take her away, in order to perform marriage with her, and for the said

purpose had taken away cash, clothes and jewellery from her own

residence. The aforestated suggestion was denied by the prosecutrix

VW - PW6. Keeping in view the statement of the prosecutrix VW - PW6

under Section 164 of the code of Criminal procedure before the Judicial

Magistrate, First Class, Jagadhri, as also, the statement made by her

while appearing before the trial court, and the manner in which she was

subjected to cross-examination, there is no room for any doubt, that 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. Since the fact, that the accused-appellate Jarnail

Singh and the prosecutrix VW – PW6 had eloped together is not

disputed. And furthermore, since the accused-appellant having had

sexual intercourse with the prosecutrix is also the disputed. It is just not

possible to accept the proposition canvassed on behalf of the accused-

appellant. We, therefore, find no merit in the instant submission.

12

Page 13 16.The contention advanced at the hands of the learned counsel for

the accused-appellant Jarnail Singh, that while leaving her house on

25.3.1993, the prosecutrix VW – PW6, had taken away a sum of

Rs.3,000/-, needs a holistic examination. Whilst it is true that in the

complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW -

PW6, 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 dated 27.3.1993, yet he had not accuse the

prosecutrix VW - PW6 for having taken it away. The instant aspect, in

our considered view pales into insignificance, on account of the

statement made by Jagdish Chandra (PW8) 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 Savitri Devi had found the aforesaid

money from the residence itself, a few days later. Accordingly, the

assertion made by the learned counsel representing the accused-

appellant to the effect that the prosecutrix VW - PW6 had taken away a

sum of Rs.3,000/-, when she left the house of her father on 25.3.1993,

cannot be stated to have been duly proved. Besides the aforesaid, it is

apparent from the cross-examination of the prosecutrix VW - PW6, that

a suggestion was put to her that besides cash, she had taken away

clothes and jewellery at the time of leaving her father’s house on

25.3.1993. The prosecutrix VW - PW6 expressly denied the suggestion.

There is no material on the record of the case to substantiate the said

allegation. Therefore, it is not possible for us to accept the accusation

13

Page 14 levelled by the accused-appellant Jarnail Singh against the prosecutrix

VW - PW6, either on the issue of having taken away a sum of

Rs.3,000/- while leaving her house, or that she left her house on

25.3.1993 along with clothes and jewellery. Accordingly, the inference

drawn by assuming the said factual position as true, simply does not

arise.

17.The first contention advanced at the hands of the learned counsel

for the appellant can be conveniently determined from another

perspective. The High Court in the impugned order arrived at the

conclusion that the prosecutrix VW - PW6 was a minor at the time of

occurrence on 25.3.1993, and had concluded, that even if she had

accompanied the accused-appellant Jarnail Singh on 25.3.1993 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.

18.During the course of hearing of the present appeal, learned

counsel for the appellant vehemently contested the determination of the

High Court in the impugned judgment, wherein it had concluded, that the

prosecutrix VW - PW6 was a minor. Insofar as the instant aspect of the

matter is concerned, it was pointed out, that the sexual organs of the

prosecutrix VW - PW6 were found to be fully developed by Dr. Kanta

Dhankar- PW1. Her hymen was found to be ruptured. It was also seen

during the medico-legal examination of the prosecutrix VW - PW6, that

the vagina admitted two/three fingers easily. Learned counsel for the

appellant-accused Jarnail Singh, also invited our attention to the cross-

14

Page 15 examination of Dr. Kanta Dhankar-(PW1), wherein she acknowledged

having mentioned the age of the prosecutrix VW - PW6 as 15 years, on

the basis of the statement made by the prosecutrix to her. Dr. Kanta

Dhankar-PW1 had also acknowledged, that she had not got the

ossification test conducted on the prosecutrix VW - PW6 to scientifically

determine the age of the prosecutrix. Based on the aforesaid, it was

averred that there was no concrete material on the record of the case,

on the basis of which it could have been concluded by the High Court,

that the prosecutrix was a minor on the date of occurrence.

19.In order to support his contention, that the prosecutrix was not a

minor at the time of occurrence, learned counsel for the appellant placed

reliance on the judgment rendered in Sunil vs. State of Haryana, AIR

2010 SC 392. Ordinarily, we would have extracted the observations on

which reliance was placed, but for reasons that would emerge from our

conclusion, we consider it inappropriate to do so.

20.On the issue of determination of age of a minor, one only needs to

make a reference to Rule 12 of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 (hereinafter referred to as the 2007

Rules). The aforestated 2007 Rules have been framed under Section

68(1) of the Juvenile Justice (Care and Protection of Children) Act,

2000. Rule 12 referred to hereinabove reads as under :

“12. Procedure to be followed in determination of Age.― (1) In

every case concerning a child or a juvenile in conflict with law, the

court or the Board or as the case may be the Committee referred

to in rule 19 of these rules shall determine the age of such

juvenile or child or a juvenile in conflict with law within a period of

15

Page 16 thirty days from the date of making of the application for that

purpose.

(2) The court or the Board or as the case may be the Committee

shall decide the juvenility or otherwise of the juvenile or the child

or as the case may be the juvenile in conflict with law, prima

facie on the basis of physical appearance or documents, if

available, and send him to the observation home or in jail.

(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 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 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;

(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 assessment of the 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 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 finding in respect of his

age and either of the evidence 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.

(4) If the age of a juvenile or child or the juvenile in conflict with

law is found to be below 18 years on the date of offence, on the

basis of any of the conclusive proof specified in sub-rule (3), the

court or the Board or as the case may be the Committee shall in

writing pass an order stating the age and declaring the status of

juvenility or otherwise, for the purpose of the Act and these rules

16

Page 17 and a copy of the order shall be given to such juvenile or the

person concerned.

(5) Save and except where, further inquiry or otherwise is

required, inter alia, in terms of section 7A, section 64 of the Act

and these rules, no further inquiry shall be conducted by the court

or the Board after examining and obtaining the certificate or any

other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those

disposed off cases, where the status of juvenility has not been

determined in accordance with the provisions contained in sub-

rule(3) and the Act, requiring dispensation of the sentence under

the Act for passing appropriate order in the interest of the

juvenile in conflict with law.”

Even though Rule 12 is strictly applicable only to determine the age of a

child in conflict with law, we are of the view that the aforesaid statutory

provision should be the basis for determining age, even for a child who

is a victim of crime. For, in our view, there is hardly any difference in so

far as the issue of minority is concerned, between a child in conflict with

law, and a child who is a victim of crime. Therefore, in our considered

opinion, it would be just and appropriate to apply Rule 12 of the 2007

Rules, to determine the age of the prosecutrix VW-PW6. The manner of

determining age conclusively, has been expressed in sub-rule (3) of

Rule 12 extracted above. Under the aforesaid provision, the age of a

child is ascertained, by adopting the first available basis, out of a

number of options postulated in Rule 12(3). If, in the scheme of options

under Rule 12(3), an option is expressed in a preceding clause, it has

overriding effect over an option expressed in a subsequent clause. The

highest rated option available, would conclusively determine the age of

a minor. In the scheme of Rule 12(3), matriculation (or equivalent)

certificate of the concerned child, is the highest rated option. In case,

the said certificate is available, no other evidence can be relied upon.

17

Page 18 Only in the absence of the said certificate, Rule 12(3), envisages

consideration of the date of birth entered, in the school first attended by

the child. In case such an entry of date of birth is available, the date of

birth depicted therein is liable to be treated as final and conclusive, and

no other material is to be relied upon. Only in the absence of such

entry, Rule 12(3) postulates reliance on a birth certificate issued by a

corporation or a municipal authority or a panchayat. Yet again, if such a

certificate is available, then no other material whatsoever is to be taken

into consideration, for determining the age of the child concerned, as the

said certificate would conclusively determine the age of the child. It is

only in the absence of any of the aforesaid, that Rule 12(3) postulates

the determination of age of the concerned child, on the basis of medical

opinion.

21.Following the scheme of Rule 12 of the 2007 Rules, it is apparent

that the age of the prosecutrix VW - PW6 could not be determined on

the basis of the matriculation (or equivalent) certificate as she had

herself deposed, that she had studied upto class 3 only, and thereafter,

had left her school and had started to do household work. The

prosecution in the facts and circumstances of this case, had

endeavoured to establish the age of the prosecutrix VW-PW6, on the

next available basis, in the sequence of options expressed in Rule 12(3)

of the 2007 Rules. The prosecution produced Satpal (PW4), to prove

the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head

Master of the Government High School, Jathlana, where the prosecutrix

VW - PW6 had studied upto class 3. Satpal (PW4) had proved the

18

Page 19 certificate Exhibit-PG, as having been made on the basis of the school

records indicating, that the prosecutrix VW - PW6, was born on

15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007

Rules, 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. We are therefore of the view, that the High Court was fully

justified in relying on the aforesaid basis for establishing the age of the

prosecutrix VW – PW6. It would also be relevant to mention, that under

the scheme of Rule 12 of the 2007 Rules, it would have been improper

for the High Court to rely on any other material including the ossification

test, for determining the age of the prosecutrix VW-PW6. The

deposition of Satpal-PW4 has not been contested. Therefore, the date

of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as

15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix

VW-PW6, was less than 15 years old on the date of occurrence, i.e., on

25.3.1993. In the said view of the matter, there is no room for any doubt

that the prosecutrix VW - PW6 was a minor on the date of occurrence.

Accordingly, we hereby endorse the conclusions recorded by the High

Court, that even if the prosecutrix VW-PW6 had accompanied the

accused-appellant Jarnail Singh of her own free will, and had had

consensual sex with him, the same would have been clearly

inconsequential, as she was a minor.

22.Since the judgment relied upon by the learned counsel for the

appellant is distinguishable on facts. And since the judgment relied

upon, had not made any reference to the 2007 Rules, we are of the view

19

Page 20 that the same would not be relevant for the purposes of determining the

age of the prosecutrix VW - PW6, specially in the background of the

evidence led by the prosecution through Satpal (PW4) to establish.

23.The next contention advanced at the hands of the learned counsel

for the accused-appellant Jarnail Singh was, that the oral testimony of

the prosecutrix VW - PW6 ought not to be accepted as sufficient to

return a finding of guilt against the accused-appellant Jarnail Singh.

Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is

pointed that there were a number of discrepancies and contradictions

therein. It was submitted, that such discrepancies can be seen on a

comparison of her deposition before the trial Court, with the statement of

the prosecutrix recorded under Section 164 of the Code of Criminal

Procedure on 6.4.1993, as also, the statement of the prosecutrix

recorded by the Investigating Officer under Section 161 of the Code of

Criminal Procedure on 29.3.1993.

24.We have given our thoughtful consideration to the above noted

submission, advanced at the hands of the learned counsel for the

appellant. We, however, find no merit therein. It is not as if the

prosecution version is entirely based on the statement of the prosecutrix

VW - PW6. It would be relevant to mention, that her recovery from the

custody of the accused-appellant Jarnail Singh from the house of Shashi

Bhan, at Raipur, is sought to be established from the statement of Moti

Ram-PW3. There can therefore be no room for any doubt, that after she

was found missing from her father’s residence on 25.3.1993, and after

her father Jagdish Chandra-PW8 had made a complaint to the police on

20

Page 21 27.3.1993, she was recovered from the custody of the accused-

appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was

subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on

29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her

independent testimony, affirmed that she had been subjected to sexual

intercourse, inasmuch as her hymen was found ruptured. Even though

the visual examination of the prosecutrix VW – PW6, during the course

of her medico-legal examination did not reveal the presence of semen or

blood, yet the report of the forensic science laboratory (Exhibit PL) and

of the Serologist (Exhibit PL/1) clearly establish the presence of semen

on her salwar, underwear and pubic hair. The serologist’s report also

disclose, medium and small blood stains on her “salwar”. In her own

deposition, she had mentioned that, when she was raped by the

accused-appellant Jarnail Singh and his accomplices, bleeding had

taken place and she had felt pain, and her clothes were stained with

blood. Her deposition stands scientifically substantiated by Exhibits PL

and PL/1. The suggestion put to the prosecutrix VW – PW6 at the

behest of the accused-appellant Jarnail Singh, during the course of her

cross-examination, that she had accompanied the accused-appellant

Jarnail Singh, 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. The

assertion that the prosecutrix VW – PW6 had accompanied the

accused-appellant Jarnail Singh, and had had sexual intercourse with

him consensually is completely ruled out, because as per the

21

Page 22 substantiated prosecution version, the prosecutrix VW - PW6 was not

taken away by the accused-appellant Jarnail Singh alone, but also, by

his three accomplices. All the four of them had similarly violated her

person. Additionally, in her statement under Section 164 of the Code of

Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the

first instance, after having caught hold of her, the accused had made her

inhale something from a cloth which had made her unconscious.

Thereafter, when the accused-appellant Jarnail Singh attempted to

commit intercourse with her, she had slapped him. He had then put a

cloth in her mouth, to stop her from raising an alarm. Thereafter, each

one of the accomplices had committed forcible intercourse with her in

turns. The factum of commission of forcible intercourse by the accused-

appellant, as also, his accomplices was reiterated by her during her

testimony before the Trial Court as PW6. Besides the aforesaid, there

is a statement of her own father, Jagdish Chandra (PW8) who also in

material particulars had corroborated the testimony of the prosecutrix

VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-

examination on any of these issues. Nor was the prosecutrix confronted

with either the statements made by her under Section 161 or Section

164 of the Code of Criminal Prosecution, so as to enable her to explain

discrepancies, if any. Therefore, we find no merit at all, in the

submission advanced by the learned counsel. In the above view of the

matter, we are satisfied that there was substantial material corroborating

the statement of the prosecutrix VW - PW6, for an unequivocal

determination of the guilt of the accused-appellant Jarnail Singh.

22

Page 23 25.No other submission besides those dealt with hereinabove, was

advanced at the hands of the learned counsel for the appellant. For the

reasons recorded above, we find no merit in the instant appeal and the

same is accordingly dismissed.

…………………………… .J.

(P. Sathasivam)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

July 1, 2013.

23