Secondary Sex Characteristics Of Prosecutrix Were Well Developed, Bone Ossification Test Not Done: SC Holds Holds Prosecutrix To Be Major & Sex Consensual While Acquitting Man In Rape Case

In an appeal arising out of conviction in a rape case, the Supreme Court has held based on evidence that the prosecutrix is not a minor as the secondary sex characteristics of the prosecutrix were well developed. The Court has also held based on the conduct of the prosecutrix that the sex, if at all, was consensual and not forced. The Court accordingly acquitted the convict, who was a relative of the prosecutrix.

While emphasizing that evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness, and conviction can be made based on the sole testimony of the prosecutrix, the Supreme Court held that the only factor which could have made the consensual aspect immaterial and made it a case of ‘rape’ was the age of the prosecutrix.

The Supreme Court held so while pointing out that the prosecution has a case that initially the proposal of the marriage of prosecutrix with the appellant was accepted by the family of the appellant and only when the appellant refused the offer of marriage that the FIR was finally lodged, and therefore, what was alleged as rape was not rape but could be a consensual act.

A Three Judge Bench of Justice Sanjay Kishan Kaul, Justice C.T Ravikumar and Justice Sudhanshu Dhulia observed that “as regarding the age of the prosecutrix, no definite conclusion could have been made. The prosecution has not successfully proved that the prosecutrix was less than sixteen years of age at the time of the alleged commission of the crime, and therefore the benefit ought to have been given to the appellant”.

“Secondly, as to the factum of rape itself, we are not convinced that an offence of rape is made out in this case as it does not meet the ingredients of Rape as defined under Section 375 of the IPC, as we do not find any evidence which may suggest that the appellant, even though had sexual intercourse with the prosecutrix, it was against her will or without her consent”, added the Bench.

Advocate Jay Kishore Singh appeared for the Appellant, whereas Advocate Samar Vijay Singh appeared for the Respondent.

As per the brief facts of the case, an FIR was lodged by the complainant, who is the father-in-law of appellant’s elder brother Pappu, stating that Pappu requested the complainant to send his younger daughter (present prosecutrix), to his house for taking care of her sister, who had just given birth to a girl child. More than a month later, when the prosecutrix returned to her house, she informed of being raped repeatedly by the appellant (Manak Chand) who is the younger brother of Pappu. Considering the relations between the families, the matter was being settled and the two families had even agreed for the marriage of the prosecutrix with the appellant. However, later the appellant refused for the marriage. After investigation, charge sheet was filed and the matter was committed to sessions where charges were framed against the appellant/accused under Sections 376 and 506 IPC.

The Trial Court observed that even if it is assumed for the sake of argument that the prosecutrix was a consenting party to the sexual intercourse, her consent would be immaterial since she was less than sixteen years of age and therefore the offence of rape stands proved. The High Court in the appeal, however, even discarded the presumption of the prosecutrix being a consenting party and has completely relied upon the testimony of the prosecutrix regarding rape.

After considering the submission, the Bench noted that at the relevant time i.e., in the year 2000 when the alleged offence of rape is said to have been committed, the age of consent was sixteen years and above.

“The school register which was produced in the court shows the date of birth of PW-5 is 04.04.1987, which would make the age of the prosecutrix at the time of the incident to be only 13½ years. However, as per her medical examination and in the doctor’s report, the prosecutrix is sixteen years of age”, added the Bench.

Referring to judgment in case of Sadashiv Ramrao Hadbe v. State of Maharashtra and Another [(2006) 10 SCC 92], the Bench explained that both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence.

The Bench observed that although the first incident of rape is alleged to be on Sep 12, 2000, the prosecutrix does not disclose this to anyone immediately, and she then alleges rape again on two or three different occasions later, though no date and time are disclosed.

The Bench noted that the prosecutrix had only disclosed the other two incidents of rape to her mother after one and half months.

While observing that the Courts must examine each evidence with open mind dispassionately as an accused is to be presumed innocent till proved guilty, the Bench pointed that the evidence, as to the age or even rape has not been examined properly by the Trial Court as well as the High Court.

The Bench went on to observe that the only evidence relied by the court for holding the prosecutrix as a minor (less than sixteen years of age), is the school register of Government Girls High School, which was placed in the Court by the clerk of the school, who deposed thar this date of birth was recorded not on the statement of the parents of the prosecutrix, but by some other person and more importantly, it was based on the transfer certificate of Government Primary School where the date of birth was recorded as Apr 04, 1987.

The Bench therefore explained that the proof submitted by the prosecution regarding the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix.

Thus, the Bench concluded that it was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.

The Bench also observed that the prosecution has not done a bone ossification test for determination of the age of the prosecutrix.

Accordingly, the Apex Court acquitted the appellant of the charges of Section 376 IPC.

Cause Title: Manak Chand v. State of Haryana [Neutral Citation: 2023 INSC 959]

Click here to read/ download the Judgment