DILIPversusSTATE OF MADHYA PRADESH

                  [2013) 2 S.C.R. 957


                            DILIP                                  A
                               v.
             . STATE OF MADHYA PRADESH
            (Criminal Appeal No. 1156 of 2010)
                       APRIL 16, 2013
                                                                   B
     [DR. B.S.CHAUHAN AND FAKKIR MOHAMED
              IBRAHIM KALIFULLA, JJ.]

     PENAL CODE, 1860:
                                                                   c
     ss. 376 and 450 - Rape of a minor girl - Acquittal by trial
court holding that prosecutrix was not below 16 years of age
and it was a case of consent- Conviction by High Court with
7 years RI - Held: Evidence of father of prosecutrix, doctor who
medically examined and teacher of night school and school          D
register clearly establish the age of prosecutrix to be 14 years
at the time of occurrence - Besides, doctor found that
prosecutrix had only 28 teeth, 14 in each jaw, which further
indicates that she was 14 years of age - Therefore, question
of consent becomes totally irrelevant- There is no reason to       E
interfere with judgment of High Court - Sexual assault - Age
of prosecutrix - Relevancy of number of teeth.

     CRIMES AGAINST WOMEN:

     Sexual assault cases - Sensitivity to be shown by F
prosecution and trial court - Directions given by Supreme
Court in Delhi Domestic Working Women's Forum's case,
reiterated - Further directions given - Director General of
Police and Home Ministry of the State to issue proper
guidelines and instructions to authorities as to how to deal with G
such cases and the kind of treatment to be given to
prosecutrix.

    Bishnudayal v. State of Bihar AIR 1981 SC 39j Kai/ash
                              957                                  H
    958       SUPREME COURT REPORTS                     [2013] 2 S.C.R.


A @ Tanti Banjara v, State of M.P. 2013 (6) SCALE 1; State of
  H.P. v. Mange Ram, 2000 (2) Suppl. SCR 626 AIR 2000       =
  SC 2798; Uday v. State of Kamataka, 2003 (2) SCR 231                  =
  AIR 2003 SC 1639; Pradeep Kumar Verma v. State of Bihar
  & Anr., 2007 (9) SCR 58            =
                                  AIR 2007 SC 3059; Delhi
B Domestic Working Women's Forum v. Union of India & Ors.,·
                                 =
  1994 (4) Suppl. SCR 528 (1995) 1 SCC 14 - referred to.

                           Case Law Reference:
     AIR 1981 SC 39                       referred to         para 11
c    2013 (6) SCALE 1                     referred to         para 11
     2000 (2) Suppl. SCR 626              referred to         para 12
     2003 (2) SCR 231                     referred to         para 14
D    2007 (9) SCR 58                      referred to         para 15
     1994 (4) Suppl. SCR 528 referred to                     para 17
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1156 of 2010.
E
        From the Judgment and Order dated 04.11.2006 of the
    High Court of M.P. at Jabalpur in Crl. Appeal No. 1228of1992.

          B. Sridhar for the Appellant.

F       Vibha Datta Makhija, Ashok K. Mahajan for the
    Respondent.

          The following order of the Court was delivered by

                                 ORDER
G
       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
H of the Sessions Judge, Seoni, Madhya Pradesh dated
        DILIP v. STATE OF MADHYA PRADESH                     959


16.7.1992 in Sessions Trial No.82 of 1990, by which the             A
appellant stood acquitted of the charges punishable under
Sections 376 and 450 of the Indian Penal Code, 1860
(hereinafter referred to as 'I PC').

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

      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      C
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.                                             D

    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        E
 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.
                                                                    F
     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 and awarded punishment of 7
years on both counts. The State appeal· has been allowed.           G

     Hence, this appeal.

    3. Shri Ashok Mahajan and Shri B. Sridhar, learned
Amicus Curiae have sut>mitted that there is nothing on record
                                                                    H
    960      SUPREME COURT REPORTS                r20131 2 s.c.R.·


A 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.
B 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.
C 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.
D
         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
E 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
F 14-15 years of age. According to Dr. Katre, it was difficult even
  to putthe 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
G 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
H years. The said date of birth had been recorded several years .
       DILIP v. STATE OF MADHYA PRADESH                       961


prior to the incident. It was in view thereof that Kabir Das (PW- A
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       8
the ground .that Dr. Katre (PW-8) had referred her for
Radiologist test and she had not been examined by the
Radiologist. Withholding such ah 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       C
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.
                                                                      D
      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       E
deposition recorded in court. In her statement 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         F
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       G
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
                                                                      H
    962       SUPREME COURT REPORTS                [2013) 2 S.C.R.


A 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.
B
         9. The trial Court while recording such finding had taken
    1note 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.
c        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.
D
          (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
          (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.

F        (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
  itcould be a case of rape. The FSL report Exh.P/12 revealed
  that underwear, petikot and saree of the prosecutrix were
G having blood stained·and 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
H the age is concerned, in the instant case Doctor has found that
       DILIP v. STATE OF MADHYA PRADESH                       963


prosecutrix was having only 28 teeths, 14 in each jaw. Such an       A
issue was considered by this Court in Bishnudayalv. 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
                                                                     8
    given by the proseclitrix (P.W.9), and her father. Jagamath
    (P.W.4) and Dr. Asha Prasad (P.W. 14). P.W.9 and P.W.4
    both stated thatSumitra (P.W.9) was 13-14 years of age
    at the time of occurrence. Dr. Asha Prasad opined that the
    girl was only 13or14years of age on July 6, 1967 when
    the witness examined her. The Doctor based this opinion          C
    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."
                                                                     D
                                              (Emphasis added)

Similar view has been reiterated by this Court while deciding
Criminal Appeal No, 1962 of 2010, Kai/ash @ Tanti Banjara
v. State of M.P., vide judgment and order dated 10.4.2013,           E
wherein 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.              F

     · 12113.ln case, the prosecutrix wasbelow 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 yea..S of age.          G

    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
                                                                     H
    964       SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A         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
B         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)

       14. In Uday v. State of Kamataka, AIR 2003 SC 1639, a
C 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
D         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
E         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
F         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
G         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:
H
   DILiP v. STATE OF MADHYA PRADESH                      965


        "consent given firstly under fear of injury and         A
        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
                                                                 8
  analogous to coercion and mistake of factwhich 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 C
  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 D
  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 E
  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 F
  v. State of Bihar (2005 (1) sec 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.
                                                                 G
. 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 other legal H
    966       SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A         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,
B
                 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
c                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:
D
                 " ... 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
E         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
F   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 trial Court could have shown more sensitivity towards
G   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
H Subordinate courts some times adopt totally a indifferent
       DIUP v. STATE OF MADHYA PRADESH                       967

attitude towards the prosecutrix and therefore, this court issued   A
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
                                                                    8
     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 guidan~ as to     C
     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.                        D

    (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          E
    whilst she was being questioned would be of great
    assistance to her.

    (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       F
    the victim was so informed.

    (4) A list of advocates willing to act in these cases should
    be kept at ttie police station for victims who did not have
    a particular lawyer in mind or whose own lawyer was             G
    unavailable.

    (~) 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     H
    968       SUPREME COURT REPORTS                    [2013) 2 S.C.R.


A         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.
B
          (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
c         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
D         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
E binding on all the courts and all civil authorities within the territory
  of India.

        In addition thereto, it is an obligation on the part of the
  State authorities and particularly, the Director General of Police
F 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
G 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
H expeditiously and the Doctor should examine the victim of rape
       DILIP v. STATE OF MADHYA PRADESH                     969


thoroughly and give his/her opinion with all possible angle e.g.   A
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      B
victim should be sent for medical examination at the earliest
and her statement should be recorded by the 1.0. in the
presence of her family members making the victim comfortable
except in incest cases. Investigation should be completed at
the earliest to avoid the bail to the accused on technicalities    c
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            D
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.                                    E

R.P.                                       Appeal dismissed.