School Certificate To Be Considered For Age Of Minor Rape’s Victim Over Doctor’s Opinion Under JJ Rules

CASE TITLE:
The State through Grameen Police Station, Gulbarga Versus Sharanu @ Sharanappa @ Sharanabasappa

DATE OF ORDER:
27 October 2022

JUDGES:
Justice Dr. H.B. PrabhakaraSastry and Justice Anil B Katti

PARTIES:
Appellant: The State through Grameen Police Station
Respondent: Sharanu @ Sharanappa @ Sharanabasappa

SUBJECT

The Karnataka High Court has held that for determining the age of a minor rape victim, the certificate issued by the school authorities stands on a higher footing than the medical judgement of a doctor. To determine the age of a victim, suspected to be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 applies.

IMPORTANT PROVISIONS

Juvenile Justice (Care and Protection of Children) Rules 2007

• Rule 12(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.

BRIEF FACTS

• The accused, who was a married man with a wife and two children and a resident of the complainant's/village, victim's was pursuing her and using threats to get her to have sex with him. The accused broke into the complainant's home in December 2011 and grabbed hold of her before using a towel to cover her lips while they abused and raped the girl inside. At the same time, the other family members of the victim's family had gone to their farmland for work that afternoon. In addition, the accused threatened to murder her if she told anyone about the occurrence.
• As a result, the accused repeatedly threatened to kill the complainant while engaging in sexual activity with her. In addition, he used to threaten to take her to Mumbai and sell her to other people if she told anyone about it. The complainant (victim girl) became pregnant as a result of the accused's repeated rapes of her, a fact she kept a secret from everyone. She experienced terrible stomach pain, though, after visiting her aunt's home in the neighbourhood of Honnakiranagi village. After an examination, the doctor informed her that the complainant/victim girl was two and a half months pregnant. Her aunt had brought her to the hospital.
• Later, the doctor medically ended the complainant's pregnancy at her aunt's request. However, the victim girl's parents were informed of both the fact that she became pregnant and the knowledge that her pregnancy was medically terminated. The victim's parents then called a Panchayat in the hamlet. Although the accused did not attend the aforementioned Panchayat, his parents went, and as a result, they were there when the elders of the village consented to execute the victim girl's marriage to their son, the accused - Sharanu @ Sharanappa. Additionally, it was decided that their marriage will be recorded in the Kalaburagi office of the registrar of marriages. The accused, however, did not visit Kalaburagi and did not marry her.
• On the other hand, the accused threatened to burn the victim girl and her family members by setting fire to their home. The complainant/victim girl filed a complaint with the appellant—Police—on the date of 03-04-2012 along these lines. The appellant-Police conducted an investigation and filed a charge sheet against the accused for the offences punishable under Sections 448, 376, and 506 of the IPC after registering the incident in their Station Crime No. 104/2012 for the offences punishable under Sections 448, 376, and 506 of the IPC.

ISSUES RAISED

• Whether the prosecution has proved beyond reasonable doubt that the accused on a day in the month of December 2011, in the afternoon committed the house trespass of the house of the complainant/victim at Keroouru village, within the limits of the complainant Police Station, with an intention to commit rape on the victim which is an offence punishable with imprisonment upto for life and thereby committed the offence punishable under Section 450 of the IPC?
• Whether the prosecution has proved beyond reasonable doubt that, the accused on the date, time and place mentioned above committed rape on the victim girl/complainant and thereby committed an offence punishable under Section 376 of the IPC?
• Whether the prosecution has proved beyond reasonable doubt that, the accused had threatened to the life of the victim girl and her parents i.e. CW-4 - Sri. Subhash and CW-5 - Smt. Siddamma with an intention to cause alarm to them and thereby has committed the offence punishable under Section 506 of the IPC?
• Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

ARGUMENTS ADVANCED BY THE APPELLANT

• Learned Public Prosecutor for the appellant submitted that the victim girl was a minor as of the alleged offence date, thus any consent she may have given, if any, would not have been legally binding. He also argued that the claimed consent letter or consent deed at Ex.P-14, which the accused himself has not challenged, proves that the accused raped the victim girl or complainant. The Sessions Judge's Court made a mistake when it stated that the victim girl was older than the accused and that their sexual activity was voluntary rather than rape because of this.
• It was further submitted by relying on a few judgments of the Supreme Court that the Sessions Judge's Court should not have only relied on the questionable medical evidence when there is a school certificate proving the victim girl's birthdate. With that, he agreed to grant the appeal as requested.

ARGUMENTS ADVANCED BY THE RESPONDENT

• Learned Senior Counsel for the respondent submitted that according to the records in Ex.P-10 and Ex.P-12, the victim was considerably older than average at the time of the claimed incident. The victim girl claimed to be 19 years old before the doctor who examined her, according to the doctor. The age listed in the hospital records is accurate, according to PW-3, who is the purported victim girl. The Sessions Judges Court correctly concluded that the victim girl was of legal age as of the alleged incident's date and that the sexual contact was consenting.
• The learned counsel further argued that the consent document at Ex.P-14 demonstrates that the alleged victim's consent was obtained for the purported consenting sexual act. Section 376 of the IPC is therefore not implicated.
• Additionally, he argued that the prosecution had not shown any evidence to support the accusation that the accused had made a threat. He continued by saying that a fabricated case against the defendants had been brought out of political rivalry.After concluding that the complainant did not provide an explanation for the delay in filing the complaint, learned Senior Counsel supported his argument by citing two decisions of the Hon'ble Supreme Court and argued that the impugned decision does not call for interference from this Court.
• The learned Additional State Public Prosecutor for the appellant-State claimed that the victim girl had categorically stated that she was a minor as of the incident date and that her date of birth confirmation certificate issued by the Head Master of the School also states that the victim girl was 15 years and 4 months old as of the incident date in light of the evidence. Even if it is assumed that she gave her consent for sexual activity, it is still not legal consent, and as a result, the accused should be found guilty of the claimed offences.

JUDGMENT ANALYSIS

• PW-3, the victim's daughter, revealed her name and indicated that she was around 14 years old in her testimony. She claims to have completed up to the eighth grade, but nowhere does she give her birthdate. However, during her cross-examination, she claimed that it had been two years since she finished her education at the School when the incident happened in the month of December 2011. She also confirmed that it is true that she has read the medical records issued by the physician at Goura Maternity Home and that the information provided therein regarding her name, her father's name, and her age is accurate.She also refuted claims made by the accuser that she was older than 18 years old and that her claim that she was 14 years old was untrue. In her cross-examination, nothing further pertaining to her age has been elicited beyond these specifics.
• Even the Government Doctor's (PW-10) assessment is, it must be said, based on the Radiologist's report, who in turn appears to have based his assessment on an X-ray report. It must be emphasised that no ossification test has been performed in this case. The fact that the medical opinion based on the radiologist's opinion does not expressly state that the victim girl was major in her age, i.e. over 18 as of the date of her examination, cannot be overlooked either. He estimates that it could be between 16 and 18 years old.
• The prosecution has examined PW14 (CW-18), Ekadanta, who is without a doubt the Head Master of the School where the victim girl studied, in order to prove the victim girl's age because she was a minor as of the date of the incident, proving that the medical opinion alone cannot be the primary criteria to decide or infer the victim girl's age in the current case. The aforementioned witness claimed that the victim girl was born on May 8, 1996, in accordance with documents kept by their school.In support of this, he also provided a letter confirming his date of birth in accordance with Ex.P-6.
• There is no reason to think that the victim girl's birthdate was misrepresented in the aforementioned certificate at Ex.P-6, which was itself a copy of the records kept by the school administration. According to Rule 12 (3)(ii) of the JJ Rules, the medical opinion of a Doctor has a lower priority than the date of birth confirmation certificate from the School. According to Rule 12(3)(b) of the J.J. Rules, a duly constituted Medical Board, which will declare the age of the juvenile or the child, would only be consulted for a medical opinion in the absence of matriculation or equivalent certificates, the date of birth certificate from the school, a birth certificate provided by a corporation, a municipal authority, or a panchayat.
• The medical opinion of PW-10, which was based on a Radiologist's report and admittedly, when the said Radiologist also was not examined, cannot be relied upon in the present case since the certificate issued by the School as per Ex.P-6, which is based upon the records maintained by it, is placed by the prosecution. The author of Ex.P-6, who is the Head Master of the said School, has also been examined as its witness (PW-14), and as such, the age of the victim.
• The question of the accused having consensual sex with the victim after receiving her consent would not be relevant in the present instance because it has been shown that the victim girl (PW-3) was a minor at the time of the alleged encounter, rendering her consent invalid in the eyes of the law. As a result, the accused's act of engaging in sexual activity with the victim girl in the current instance must be regarded as an act of rape punishable by Section 376 of the IPC.
• Additionally, the learned Sessions Judge's Court chose its own approach to determine the victim girl's age based on her mother's claims regarding the length of her marriage and the victim girl's birth during the aforementioned period. In the facts and circumstances of the current case, the Sessions Judge's Court's attempt to identify a new way of estimating the victim girl's age based on her mother's married time was uncalled for when there was adequate oral and documented evidence to do so, as has been analysed above.
• These arguments made by the Sessions Judge's Court, which have since been shown to be incorrect, are what caused it to issue the impugned decision of acquittal against the accused. The impugned judgement rendered by the Sessions Judge's warrants intervention at the hands of this Court, and the criminal appeal deserves to be allowed. This is because the said finding of the Sessions Judge's Court has now been proven to be incorrect, and because the prosecution has established the alleged guilt of the accused for all of the alleged offences beyond a reasonable doubt.

CONCLUSION

The current criminal appeal, number 200058/2014, is accepted. The Additional Sessions Judge in Gulbarga's decision in Sessions Case dated 18 November 2013, to declare the accused not guilty of the offences covered by Sections 450, 376, and 506 of the Indian Penal Code, 1860, is overturned. The AccusedSharanu @ Sharanappa @ Sharanabasappa found guilty of crimes covered by Sections 450, 376, and 506 of the Indian Penal Code, 1860.

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