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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 39 OF 2017

(Arising out of SLP(Crl.) No.9073 of 2015)

Sri Ganesh ...….. Appellant

Versus

State of Tamil Nadu and Anr. …. Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1.Leave granted.

2.This appeal by special leave challenges the Judgment and Order dated

13.10.2015 passed by the High Court of Madras in Criminal Revision Case

No.383 of 2015. In order to avoid any identification of the victim, we have

transposed the original respondent No.1 namely, the Complainant as

respondent No.2 and the State is now shown as respondent No.1 in the

matter.

3.Pursuant to complaint by the complainant, FIR vide Crime No.5/2010

was initially registered under Sections 417 and 506(ii) IPC on 26.03.2010

with Old Washermenpet Police Station, Chennai against the appellant, his

father, mother and uncle. After carrying out necessary investigation,

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charge-sheet dated 18.11.2010 was filed against the appellant under Section

376 IPC and against his parents and uncle under Sections 417 read with 109

IPC and 506(ii) IPC. It was alleged that the appellant had become friendly

with the victim while they had reached 10+2 standard; that this fact was

known to the family of the appellant who treated the victim as their

daughter-in-law; that the appellant had committed sexual intercourse with

the victim on 5 to 6 occasions; and that the behavior of the family of

appellant later changed and they refused to perform the marriage. It was

alleged that the appellant thus committed offence under Section 376 IPC

while his family members were guilty of offence under Sections 417 read

with 109 IPC and 506(ii) IPC.

4.Appropriate charges under the aforesaid Sections having been framed,

Criminal O.P. No.9823 of 2011 was filed in the High Court seeking quashing

of those charges. The High Court by its Order dated 20.06.2012 quashed the

charges as against the parents and uncle of the appellant but dismissed the

challenge raised by the appellant. Consequently the trial proceeded only

against the appellant for the offence punishable under Section 376 IPC. On

18.09.2012, the victim deposed before the trial court as PW-1. In her

examination-in-Chief she deposed:

“………….......I firmly believed that the accused and his

family will not leave me and our marriage would definitely

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solemnize. After this the accused forced me and had

intercourse with me 5 to 6 times.”

The victim however in her examination in chief did not give any

probable period or time when the intercourse had last taken place. In her

cross-examination conducted on 06.10.2012, to a pointed query she

answered, “We had intercourse finally in August, 2009”.

5.At that juncture, the cross-examination of the victim was stopped and

a plea of juvenility of the appellant was raised. It was submitted that going

by the assertions of the victim, the appellant was definitely a juvenile on the

alleged dates of occurrence. Criminal M.P. No.10872 of 2012 under Section

7A of the Juvenile Justice (Care and Protection of Children) Act, 2000

(hereinafter referred to “the Act”) was also filed praying that the age of the

appellant be determined in terms of the provisions of the Act and the Rules

framed thereunder. The complainant was also allowed to make her

submissions. After hearing the parties, the Court posted the application for

pronouncement of Orders on 04.12.2012. However, on 28.11.2012 an

application under Section 216 of Cr.P.C. was filed by the prosecution for

adding charge under Section 417 against the appellant. The request for

addition of the charge was dismissed by the trial court which order was

affirmed by the High Court by its Order dated 15.02.2013. The complainant

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challenged the order of the High Court by filing SLP(Crl.) No. 1899 of 2013

which was dismissed by this Court on 12.08.2014.

6.The trial court thereafter postponed the issue of juvenility to be

considered at the stage of final determination of the matter, which order was

challenged by the appellant by filing petition under Section 482 of Cr.P.C.

The challenge was accepted by the High Court and by Order dated

8.12.2014 it directed:

“The learned III Additional Sessions Judge shall first

decide the claim of juvenility raised by the petitioner herein and

then to proceed with further in accordance with law. At any

rate, appropriate decision on the claim of juvenility shall be

made within a period of 30 days as provided in Rule 8B of the

Tamil Nadu Juvenile Justice (Care and Protection of Children)

Rules, 2001 from the date of receipt of the records from the trial

court.”

7.The matter was then heard by the trial court which after considering

the relevant material on record declared the appellant to be juvenile in

conflict with law under Section 7A of the Act. The trial court found the date

of birth of the appellant to be 19.10.1991. Going by the assertions made by

the victim that the sexual intercourse between them lastly occurred in the

month of August, 2009, the trial court found that on the date of occurrence,

the appellant was a juvenile. Concluding thus, the trial court directed:

“29. Finally, this court allows the above Petition

Crl.O.P.No.10872/2012 and decides that the offender was a

Juvenile on the date of commission of offence.

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30.As the offender on the date of occurrence of offence was

a juvenile, the present case can be decided only by the Juvenile

Board and this court orders transfer of the S.C.130/2011 to the

Juvenile Board.”

8.The complainant being aggrieved, challenged the aforesaid

determination by filing Criminal Revision Case No.383 of 2015 in the High

Court of Madras. The High Court by its Judgment and Order dated

13.10.2015 allowed said criminal revision and remitted the matter back to

the trial court for fresh consideration. It was observed:

“It is evident that the trial court has not determined the

correct age of the second respondent/accused or the date of

occurrence in the facts and circumstances of the case. The trial

court also did not take note of the fact that the offence alleged

to have been committed was a continuing offence. The trial

court also did not consider the expert opinion obtained from a

Medical Officer to determine the age of the second

respondent/accused. The trial court has also not ascertained

correctly the date on which the first occurrence took place and

the last occurrence committed by the accused/second

respondent herein. The trial court was carried away by an

admission made by the complainant during the course of

cross-examination.”

9.Appearing for the appellant in support of the appeal, Mr. A. Ramesh,

learned Senior Advocate submitted that the determination of age of a

juvenile has to be principally on the basis of documentary evidence and only

in the absence of such documentary evidence, medical opinion could be

pressed into service. In his submission the High Court was completely in

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error in setting aside the view taken by the trial court and in remitting the

matter for fresh consideration. Reliance was placed on the judgment of this

Court in Ashwani Kumar Saxena v. State of Madhya Pradesh

1

. On the

other hand, Mr. Aditya Kumar Choudhary, learned Advocate appearing for

the complainant relied on decision of this Court in Karthi alias Karthick v.

State of Tamil Nadu

2

and submitted that the High Court was justified in

remitting the matter for fresh consideration.

10.The law on the point is well settled and succinctly stated in Ashwani

Kumar’s case (supra) where this Court after taking into consideration

relevant statutory provisions observed in paragraphs 32 to 34 as under:-

“32.“Age determination inquiry” contemplated under Section

7-A of the Act read with Rule 12 of the 2007 Rules enables the

court to seek evidence and in that process, the court can obtain

the matriculation or equivalent certificates, if available. Only in

the absence of any matriculation or equivalent certificates, the

court needs to obtain the date of birth certificate from the

school first attended other than a play school. Only in the

absence of matriculation or equivalent certificate or the date of

birth certificate from the school first attended, the court needs

to obtain the birth certificate given by a corporation or a

municipal authority or a panchayat (not an affidavit but

certificates or documents). The question of obtaining medical

opinion from a duly constituted Medical Board arises only if

the abovementioned documents are unavailable. In case exact

assessment of the age cannot be done, then the court, for

reasons to be recorded, may, if considered necessary, give the

1

(2012) 9 SCC 750

2

(2013) 12 SCC 710

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benefit to the child or juvenile by considering his or her age on

lower side within the margin of one year.

33.Once the court, following the abovementioned

procedures, passes an order, that order shall be the conclusive

proof of the age as regards such child or juvenile in conflict

with law. It has been made clear in sub-rule (5) of Rule 12 that

no further inquiry shall be conducted by the court or the Board

after examining and obtaining the certificate or any other

documentary proof after referring to sub-rule (3) of Rule 12.

Further, Section 49 of the JJ Act also draws a presumption of

the age of the juvenility on its determination.

34.Age determination inquiry contemplated under the JJ Act

and the 2007 Rules has nothing to do with an enquiry under

other legislations, like entry in service, retirement, promotion,

etc. There may be situations where the entry made in the

matriculation or equivalent certificates, date of birth certificate

from the school first attended and even the birth certificate

given by a corporation or a municipal authority or a panchayat

may not be correct. But court, Juvenile Justice Board or a

committee functioning under the JJ Act is not expected to

conduct such a roving enquiry and to go behind those

certificates to examine the correctness of those documents, kept

during the normal course of business. Only in cases where those

documents or certificates are found to be fabricated or

manipulated, the court, the Juvenile Justice Board or the

committee need to go for medical report for age determination.”

11.In the present case the trial court took into account the documentary

evidence as contemplated in the statutory provisions and returned a finding

that the date of birth of the appellant was 19.10.1991. During the course of

its judgment the High Court could not find such conclusion to be vitiated on

any ground. In the face of the relevant documentary evidence, there could

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be no medical examination to ascertain the age of the appellant and as such

the consequential directions passed by the High Court were completely

unwarranted. Further, if the allegations of the prosecution are that the

offence under Section 376 IPC was committed on more than one occasion,

in order to see whether the appellant was juvenile or not, it is enough to see

if he was juvenile on the date when the last of such incidents had occurred.

The trial court was therefore justified in going by the assertions made by the

victim in her cross examination and then considering whether the appellant

was juvenile on that date or not.

12.The learned counsel for the respondent however relies on the decision

of this Court in Karthi (supra). In that case the accused had repeatedly

engaged in consensual sexual intercourse with prosecutrix on different dates

on promises of marriage. After having found that the promises were false,

the prosecutrix had lodged a complaint asserting her exploitation on certain

previous dates. While considering the delay in reporting the matter to the

Police, this Court found that it was only after the accused had declined to

marry the prosecutrix that a different dimension came to be attached to their

relationship and thus there was no delay in registration of FIR. The decision

in Karthi (supra) stands on a completely different point and cannot be

pressed into service to say that because the appellant had refused to marry

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the victim, the date of the offence under Section 376 would consequently

change. The date of the incident remaining constant, the principle in Karthi

(supra) will be of assistance only in getting over the aspect of delay in

lodging the FIR.

13.We thus find that the approach of the High Court in the present case

was incorrect and completely misdirected. Even if we were to remand the

matter back to the High Court for fresh consideration, in our view it would

be an empty formality in the face of finding of fact rendered by the trial

court. We, therefore, allow this appeal and set aside the Judgment and Order

under appeal. The view taken by the trial court is restored and the matter

stands disposed of in terms of the directions issued by the trial court as

stated above.

14.The appeal is allowed in aforesaid terms.

..……..………………..J.

(Pinaki Chandra Ghose)

..………………………J.

(Uday Umesh Lalit)

New Delhi,

January 6, 2017