REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1156 of 2010

Dilip …Appellant

Versus

State of Madhya Pradesh …Respondent

ORDER

1. This appeal has been preferred against the impugned judgment

and order dated 4.11.2006 in Criminal Appeal No.1228 of 1992 of the

High Court of Madhya Pradesh at Jabalpur, by way of which it

reversed the judgment and order of the Sessions Judge, Seoni,

Madhya Pradesh dated 16.7.1992 in Sessions Trial No.82 of 1990, by

which the appellant stood acquitted of the charges punishable under

Sections 376 and 450 of the Indian Penal Code, 1860 (hereinafter

referred to as ‘IPC’).

2. Facts and circumstances giving rise to this appeal are that :-

Page 1
A. The appellant is younger brother of the brother-in-law of the

prosecutrix-Diplesh. The appellant came to the house of the

prosecutrix on 13.6.1990. Her parents and elder brother left for the

market leaving the prosecutrix and her younger brother in the house.

The appellant found the prosecutrix alone as her brother was merely a

child and raped her. The prosecutrix fainted and on regaining her

consciousness, the prosecutrix narrated the incident to her father who

lodged the FIR with the police on the same day.

B. The appellant was arrested on 15.6.1990 and after investigation,

the prosecution filed chargesheet against the appellant under Sections

376 and 450 IPC.

C. The Sessions Court in Sessions Trial No. 82 of 1990 acquitted

the appellant vide judgment dated 16.7.1992, on the ground that the

prosecution failed to prove that prosecutrix was below 16 years of

age, and secondly that she had consented for having sexual

intercourse with the appellant.

D. Aggrieved, the State preferred Criminal Appeal No.1228 of

1992, before the High Court. The High Court reversed the judgment

of the Sessions Court, convicted the appellant for the said offences

2
Page 2
and awarded punishment of 7 years on both counts. The State appeal

has been allowed.

Hence, this appeal.

3. Shri Ashok Mahajan and Shri B. Sridhar, learned Amicus

Curiae have submitted that there is nothing on record to show that at

the relevant time, the prosecutrix was below 16 years of age. The trial

Court had rightly came to conclusion that it was a case of consent and

such a finding was based on evidence on record. There was no

occasion for the High Court to reverse the said finding as there was no

perversity in it. Hence, the appeal deserves to be allowed.

4. Per contra, Ms. Vibha Datta Makhija, learned Standing counsel

for the State has submitted that the trial Court erred in understanding

the meaning of consent and reached a wrong conclusion that the

prosecutrix was not below 16 years of age. The High Court has

considered the case in correct perspective and reached the correct

conclusion that the prosecutrix was below 16 years of age. Thus, the

consent, even if it was so, looses its significance. Thus, the appeal is

liable to be dismissed.

3
Page 3
5. We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

6. Sawan Lal (PW-2), father of the prosecutrix while lodging an

FIR stated that the prosecutrix was 15 years of age. The Investigating

Officer inspected the place of occurrence and found bangles and also

recovered blood stained underwear, saree and petikot of the

prosecutrix and also the blood stained earth and plain earth. Dr. Kiran

Katre (PW-8) examined the prosecutrix medically and opined that the

prosecutrix was about 14-15 years of age. According to Dr. Katre, it

was difficult even to put the little finger in the vagina of the

prosecutrix. She was referred to the Radiologist, however, no such

report was made available. The prosecutrix was examined in the

Court on 12.11.1991 as PW-1 and the learned Sessions Judge assessed

her age on the basis of her appearance as about 14 years. In addition

thereto, one Kabir Das (PW-4) who was a Teacher in the night school

where the prosecutrix was studying, deposed that according to the

school register, her date of birth was 7.3.1975 and thus, her age was

about 14 years. The said date of birth had been recorded several years

4
Page 4
prior to the incident. It was in view thereof that Kabir Das (PW-4) had

issued a Certificate, Exh.P/5, and he proved the said Certificate in the

Court.

7. The trial Court came to the conclusion that the prosecutrix was

not less than 16 years at the relevant time, on the ground that Dr.

Katre (PW-8) had referred her for Radiologist test and she had not

been examined by the Radiologist. Withholding such an evidence

would give rise to draw an adverse inference against the prosecution.

Secondly, the school certificate could not be relied upon as it was not

a strong and material evidence. More so, such an entry had been

made in the school register on the basis of the information furnished

by Sawan Lal (PW-2), father of the prosecutrix who deposed in the

court that such an entry was based on an entry made in her horoscope

which stood destroyed in the fire.

8. In view of the above, the trial Court examined the second issue

in respect of consent. The court found certain discrepancies and

contradictions in the statement of the prosecutrix made under Section

161 of the Code of Criminal Procedure, 1973 (hereinafter referred to

as ‘Cr.P.C.’), and her deposition recorded in court. In her statement

5
Page 5
before the police she had told that the appellant had threatened to kill

her if she shouted. In court, she deposed that the appellant had filled

the cloth in her mouth, thus, it was not possible for her to shout.

The trial Court further observed that when her saree, petikot

and even her panty were removed, she did not resist with full force as

it was not possible for the accused to remove her panty unless she

extended her cooperation. In case she had not given the consent she

could have resisted the same with her full power. But, she has not

deposed in court that she resisted with full power when her panty was

being removed. The prosecutrix was supposed to attack the appellant

like a wild animal, but she did not even resist. Thus, her conduct

suggested only and only, her consent and will.

The court further held that as per the medical evidence even a

single finger went inside her vagina with difficulty then it was bound

to be some injury in her vagina by forcible intercourse, but the Doctor

did not find any injury on the person of the prosecutrix apart from

certain injuries mentioned in the medical report. Therefore, there

could not be any question of forcible intercourse.

6
Page 6
9. The trial Court while recording such finding had taken note of

the fact that because of the sexual intercourse lot of blood oozed out

of her vagina and as a result of the same she became unconscious.

10. The High Court re-appreciated the entire evidence on record

and particularly, the medical report which contained the following

features:-

(a) Her gait was painful.

(b) There was also blood clot near her vagina.

(c) Her forcet had a tear of 1/2cm x 1/2cm.

(d) There was also an abrasion of 1/2cm above urethra.

(e) Her hymen tear was in 3-9 'o' clock position.

(f) Even small finger could not be admitted in her vagina without

pain to her.

(g) Her posterior fornix also had a tear of 1cm and blood clot was

also present.

11. Medical report as well as Dr. Katre (PW-8) opined that it could

be a case of rape. The FSL report Exh.P/12 revealed that underwear,

petikot and saree of the prosecutrix were having blood stained and

7
Page 7
human spermatozoa. Similarly, in the slides as well as in the

underwear of accused-appellant, the blood stains and human

spermatozoa were found. The said clothes had been seized from the

prosecutrix and the appellant soon after the occurrence. So far as the

issue of determining the age is concerned, in the instant case Doctor

has found that prosecutrix was having only 28 teeths, 14 in each jaw.

Such an issue was considered by this Court in Bishnudayal v. State

of Bihar, AIR 1981 SC 39, wherein the court appreciated the

evidence as under:

“8. The evidence with regard to the age of the girl

was given by the prosecutrix (P.W.9), and her
father. Jagarnath (P.W.4) and Dr. Asha Prasad (P.W.
14). P.W.9 and P.W.4 both stated that Sumitra
(P.W.9) was 13-14 years of age at the time of
occurrence. Dr. Asha Prasad opined that the girl was
only 13 or 14 years of age on July 6, 1967 when the
witness examined her. The Doctor based this
opinion on physical facts, namely, that the examinee
(P.W.9) had 28 teeth, 14 in each jaw, smooth pubic
hair and axillary hair, which means the hair,
according to the opinion of the Doctor, had just
started appearing at the age of 14.”
(Emphasis added)

Similar view has been reiterated by this Court while deciding

Criminal Appeal No.1962 of 2010, Kailash @ Tanti Banjara v.

State of M.P., vide judgment and order dated 10.4.2013, wherein

8
Page 8
relying upon several other factors for determining the age, this very

Bench has taken a view that as the prosecutrix therein had only 28

teethes considering the other sexual character, she was only 14 years

of age. Therefore, in view of the above, we do not find any fault with

the finding recorded by the High Court so far as the issue of age is

concerned.

12/13.In case, the prosecutrix was below 16 years of age at the

relevant time, the issue of consent becomes totally irrelevant. Even

the issue of consent is no more res integra even in a case where the

prosecutrix was above 16 years of age.

In State of H.P. v. Mange Ram, AIR 2000 SC 2798, this

Court, while dealing with the issue held:

"Submission of the body under the fear or terror

cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the
significance and moral quality of the act but after
having fully exercised the choice between
resistance and assent. Whether there was consent or
not, is to be ascertained only on a careful study of all
relevant circumstances." (Emphasis added)

9
Page 9
14. In Uday v. State of Karnataka, AIR 2003 SC 1639, a similar

view has been reiterated by this Court observing :

“……We are inclined to agree with this view that

there is no strait jacket formula for determining
whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under
a misconception of fact. In the ultimate analysis, the
tests laid down by the Courts provide at best
guidance to the judicial mind while considering a
question of consent, but the Court must, in each case,
consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because
each case has its own peculiar facts which may have
a bearing on the question whether the consent was
voluntary, or was given under a misconception of
fact. It must also weigh the evidence keeping in view
the fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of
consent being one of them.”

15. In Pradeep Kumar Verma v. State of Bihar & Anr, AIR

2007 SC 3059, this Court held as under:

“9.The crucial expression in Section 375 which

defines rape as against her will. It seems to connote
that the offending act was despite resistance and
opposition of the woman. IPC does not define consent
in positive terms. But what cannot be regarded as
consent is explained by Section 90 which reads as
follows:

10
Page 10
 "consent given firstly under fear of injury and
secondly under a misconception of fact is not
consent at all."

That is what is explained in first part of Section 90.

There are two grounds specified in Section 90 which
are analogous to coercion and mistake of fact which
are the familiar grounds that can vitiate a transaction
under the jurisprudence of our country as well as other
countries. The factors set out in first part of Section 90
are from the point of view of the victim and second
part of Section 90 enacts the corresponding provision
from the point of view of the accused. It envisages
that the accused has knowledge or has reason to
believe that the consent was given by the victim in
consequence of fear of injury or misconception of
fact. Thus the second part lays emphasis on the
knowledge or reasonable belief of the person who
obtains the tainted consent. The requirements of both
the parts should be cumulatively satisfied. In other
words, the Court has to see whether the person giving
the consent has given it under fear or misconception
of fact and the court should also be satisfied that the
person doing the act i.e. the alleged offender is
conscious of the fact or should have reason to think
that but for the fear or misconception, the consent
would not have been given. This is the scheme of
Section 90 which is couched in negative terminology.
As observed by this Court in Deelip Singh @ Dilip
Kumar v. State of Bihar (2005 (1) SCC 88), Section
90 cannot be considered as an exhaustive definition of
consent for the purposes of IPC. The normal
connotation and concept of consent is not intended to
be excluded.

10. In most of the decisions in which the meaning of

the expression consent under the IPC was discussed,
reference was made to the passages occurring in
Strouds Judicial Dictionary, Jowitts Dictionary on
English Law, Words and Phrases, Permanent Edn. and

11
Page 11
 other legal dictionaries. Stroud defines consent "as an
act of reason, accompanied with deliberation, the
mind weighing, as in a balance, the good and evil on
each side". Jowitt, while employing the same
language added the following:

"Consent supposes three things a physical

power, a mental power and a free and serious
use of them. Hence it is that if consent be
obtained by intimidation, force, meditated
imposition, circumvention, surprise, or undue
influence, it is to be treated as a delusion, and
not as a deliberate and free act of the mind."

11. In Words and Phrases, Permanent Edn., Vol. 8-A,

the following passages culled out from certain old
decisions of the American courts are found:

"...adult females understanding of nature and

consequences of sexual act must be intelligent
understanding to constitute consent."

Consent within penal law, defining rape, requires

exercise of intelligence based on knowledge of its
significance and moral quality and there must be a
choice between resistance and assent..."

16. In view of the above, we do not find fault with the impugned

judgment and order. The appeal is liable to be dismissed and is

accordingly dismissed.

17. Before parting with the case, we would like to express our

anguish that the prosecution could have been more careful and the

12
Page 12
trial Court could have shown more sensitivity towards the case

considering its facts and circumstances.

In Delhi Domestic Working Women’s Forum v. Union of

India & Ors., (1995) 1 SCC 14, this Court found that in the cases of

rape, the investigating agency as well as the Subordinate courts some

times adopt totally a indifferent attitude towards the prosecutrix and

therefore, this court issued following directions in order to render

assistance to the victims of rape:

“(1) The complainants of sexual assault cases should

be provided with legal representation. It is important
to have someone who is well-acquainted with the
criminal justice system. The role of the victim's
advocate would not only be to explain to the victim
the nature of the proceedings, to prepare her for the
case and to assist her in the police station and in court
but to provide her with guidance as to how she might
obtain help of a different nature from other agencies,
for example, mind counselling or medical assistance.
It is important to secure continuity of assistance by
ensuring that the same person who looked after the
complainant's interests in the police station represent
her till the end of the case.

(2) Legal assistance will have to be provided at the

police station since the victim of sexual assault might
very well be in a distressed state upon arrival at the
police station, the guidance and support of a lawyer at
this stage and whilst she was being questioned would
be of great assistance to her.

13
Page 13
 (3) The police should be under a duty to inform the
victim of her right to representation before any
questions were asked of her and that the police report
should state that the victim was so informed.

(4) A list of advocates willing to act in these cases

should be kept at the police station for victims who
did not have a particular lawyer in mind or whose
own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon

application by the police at the earliest convenient
moment, but in order to ensure that victims were
questioned without undue delay, advocates would be
authorised to act at the police station before leave of
the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be

maintained, as far as necessary.

(7) It is necessary, having regard to the Directive

Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries
Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too
traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the

court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not
a conviction has taken place. The Board will take into
account pain, suffering and shock as well as loss of
earnings due to pregnancy and the expenses of child
birth if this occurred as a result of the rape.”

18. Undoubtedly, any direction issued by this Court is binding on

all the courts and all civil authorities within the territory of India.

14
Page 14
 In addition thereto, it is an obligation on the part of the State

authorities and particularly, the Director General of Police and Home

Ministry of the State to issue proper guidelines and instructions to the

other authorities as how to deal with such cases and what kind of

treatment is to be given to the prosecutrix, as a victim of sexual

assault requires a totally different kind of treatment not only from the

society but also from the State authorities. Certain care has to be

taken by the Doctor who medically examine the victim of rape. The

victim of rape should generally be examined by a female doctor.

Simultaneously, she should be provided the help of some psychiatric.

The medical report should be prepared expeditiously and the Doctor

should examine the victim of rape thoroughly and give his/her opinion

with all possible angle e.g. opinion regarding the age taking into

consideration the number of teeths, secondary sex characters, and

radiological test, etc. The Investigating Officer must ensure that the

victim of rape should be handled carefully by lady police

official/officer, depending upon the availability of such

official/officer. The victim should be sent for medical examination at

the earliest and her statement should be recorded by the I.O. in the

presence of her family members making the victim comfortable

15
Page 15
except in incest cases. Investigation should be completed at the

earliest to avoid the bail to the accused on technicalities as provided

under Section 167 Cr.P.C. and final report should be submitted under

Section 173 Cr.P.C., at the earliest.

We request the learned Chief Secretary of the State of M.P. to

examine the aforesaid observations made by us and issue

comprehensive guidelines in these regards, at the earliest.

A copy of this judgment be sent to the learned Chief Secretary,

M.P. through Ms. Vibha Datta Makhija, learned Standing counsel for

the State.

……………………………………........................J.
(DR. B.S. CHAUHAN)

………………………………................................. J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI;
APRIL 16, 2013

16
Page 16