KAILASH @ TANTI BANJARAversusSTATE OF MADHYA PRADESH

                    [2013] 4 S.C.R. 875


               KAILASH @ TANTI BANJARA                           A
                              v.
           STATE OF MADHYA PRADESH
           (Criminal App~al No. 1962 of 2010)
                      APRIL 10, 2013
                                                                 B
     [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA, JJ.]

     Penal Code, 1860 - ss. 376 and 5068 - Rape - Courts
below though found that the intercourse was with the consent     C
of prosecutrix, but convicted him finding that the prosecutrix
was 14 years of age - On appeal, held: Conviction justified -
In view of the conclusion that the prosecutrix was in the age
group of 13-14 years, consent of the prosecutrix has no
consequence.                                                     D

   Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8
SCC 191 : 2010 (8) SCR 1150 • relied on.

                     Case Law Reference:
                                                                 E
    2010 (8) SCR 1150         relied on              Para 5
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1962 of 2010.

    From the Judgment and Order dated 09.10.2009 of the          F
High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
No. 1395 of 1994.

    Rajeev Kumar Bansal, M.P. Singh, Akshay K. Ghai for the
Appellant.
                                                                 G
    Vibha Datta Makhija for the Respondent.

    The following Order of the Court was delivered

                             875                                 H
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A                               ORDER

         1. This appeal is directed against the impugned judgment
    of the High Court of Madhya Pradesh at Jabalpur in Criminal
    Appeal No.1395/1994 by which the conviction and sentence
    imposed on the appellant under Section 376 IPC to undergo
8
    rigorous imprisonment for seven years apart from a fine amount
    of Rs.500/- and in default of payment of fine, to under one
    months' additional rigorous imprisonment was confirmed.

         2. According to the prosecution on 11.4.1991 the victim
C   P.W.4, an agricultural labourer was in the field of Mali Singh
    Darbar and loading the wheat on the vehicle. After the field
    work, she was proceeding to her village which was 1% miles
    away. The appellant was following P.W.4 who was proceeding
    alongwith minor girl Manju, aged 10 years in his motorcycle.
D   On the way, P.W.4 suffered thorn bite in her foot and while she
    was removing the thorn, Manju left her and proceeded towards
    her home. Taking advantage of the !onliness of P.W.4, the
    appellant stated to have grabbed her hand against her will, took
    her near the bushes at Kauve near the drain and had forcible
E   sexual intercourse for about Y. an hour. According to the victim
    P.W.4, sexual intercourse was carried out by the appellant near
    the drain and again after taking her to his house under the threat
    of knife point and performed the same evil act in the house also.
    Subsequently at about 3.00 in the midnight, he took her in his
F   motorcycle and dropped near the community well and after
    threatening her at knife point that if she reveal any of the act
    committed by him, she would kill her, left that place. P.W.4 felt
    humiliated and having ashamed of loss of modesty, jumped into
    the community well while the appellant stated to have fled away
G   from that place. Though P.W.4 jumped into the well, according
    to her, she was able to grab the rope which was present inside
    the well and she cried for help. On hearing her distress call, the
    villagers stated to have turned up and rescued her. Thereafter,
    her father and grand father stated to have reached that place
    whereafter she was taken to her house and after change of
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KAILASH @ TANTI BANJARA v. STATE OF MADHYA 877
                 PRADESH

cloth she went to the Police Station and lodged the FIR.                  A

     3. The appellant was charged for the offence under Section
376 read with Section 506 B, IPC. The trial Court after a detailed
consideration of the evidence placed before it concluded that
the FSL report, Exhibit P.14 established that in the peticoat of
                                                                          8
P.W.4, in her private parts as well as the vagina, human sperms
was found present and therefore the plea of ignorance pleaded
by the appellant was not true. The trial court however, r.oncluded
that the intercourse was with the consent of P.W.4. Based on
the expert evidence and applying the principles for ascertaining
the age of the victim, the trial court has concluded as under:            C

     "14. For ascertaining the age the position of gums, private
     part and under arms are of great help. According to the
     statement of Dr. Smt. Saluja (P.W.2) 7 teeth in the right
     and 6 teeth in the left total 13 teeth were found in the upper       D
     jaw. In the lower jaw 7-7 teeth in the right and left sides
     were found. Therefore, total 14 teeth were found in the
     lower jaw. It is clear from the position of the teeth that third
     molar in the right upper jaw did come and second and third
      molar in the left side was not present and like this in the         E
      lower jaw third molar was not present in the right and left
     side. It is clear that in this situation that in abssence of third
      molar in the jaw age was below 17 years. Therefore,
     according to the chart given in the Modi's book at page
      No.29 according to the situation of the teeth in the jaw the        F
     age of the girl must be 14 to 15 years.

      4. The conclusion of the trial court was that the victim
P.W.4 was aged 14 years on the date of occurrence and since
sexual intercourse carried out by the appellant though with the
consent fell within the four corners of the offence falling under         G
Section 376 and convicted the appellant for the said act. The
High Court having examined the case of the appellant,
considered the whole gamut of the evidence placed before the
trial Court, as well as, the conclusion reached by the trial court
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A   held that there was no scope to interfere with the conviction and
    sentence imposed on the appellant.

       5. Heard Mr. Rajeev Kumar Bansal, learned counsel for
  the appellant and Ms. Vibha Dutta Makhija, learned counsel for
  the State. Learned counsel appearing for the appellant
8
  strenuously contented that the medical evidence placed before
  the court below did show that the victim was beyond 16 years
  of age, that even going by her own evidence it came out that
  there were serious contradictions as to the nature of offence
C alleged against the appellant; that the trial court has held that
  sexual intercourse was performed with full consent of the victim
  and therefore sentence imposed was liable to be interfered
  with. As against the above submission, learned counsel for the
  State by referring to the decision of this Court in Vijay @
   Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191 in
D para 27, submitted that the trial court having applied the
  principles laid down therein based on the FSL report for the
  purpose of ascertaining the age of the victim having concluded
  that she was 14 years of age on the date of the occurrence, in
  the absence of any other reliable contra evidence to dislodge
E the said conclusion of the trial court as affirmed by the High
  Court, no interference is called for.

       6. Having heard learned counsel for the appellant as well
  as for the respondent, we are also convinced that the
F submission of learned counsel for the State deserves to be
  accepted. The ascertainment of age has been done by the trial
  court concerned, by applying the various principles laid down
  by this Court. In this context, we refer to the decision of this
  Court in Vijay alias Chinee, (supra) and in which one of us
G (Hon'ble Chauhan, J.) was a party. We have held in paragraphs
  27 to 30 as under:

          "Determination of Age

          27. As per Modi's Medical Jurisprudence and Toxicology,
H         23rd Edn., the age of a person can be determined by
KAILASH@ TANTI BANJARA v. STATE OF MADHYA 879
                PRADESH
  examining the teeth (Dental Age), Height, Weight, General      A
  appearance (minor signs) i.e. secondary sex characters,
  ossification of bones and producing the birth and death/
  school registers etc. However, for determining the
  controversy involved in the present case, only a few of them
  are relevant.                                                  B

   Teeth- (Dental - Agel

   28. So far as permanent teeth are concerned, eruption
   generally takes place between 6-8 years. The following
   table shows the average age of eruption of the permanent      C
   teeth:-

   Central incisors           - 6th to 8th year
   Lateral incisors           - 7th to 9th year
   Canines                    - 11th to 12th year                D
   Second Molars              - 12th to 14th year
   Third Molars or Wisdom Teeth - 17th to 25th year In total,
   there are 32 teeth on full eruption of permanent teeth.

   Secondary Sex Characters
                (
                                                                 E
   29. The growth of hair appears first on the pubis and then
   in the axillae (armpits). In the adolescent stage, the
   development of the pubic hair in both sexes follows the
   following stages :-
                                                                 F
   a) One of the first signs of the beginning of puberty is
   chiefly on the base of penis or along labia, when there are
   few long slightly pigmented and curled or straight downy
   hair;

   b) The hair is coarser, darker and more curled, and spread    G
   sparsely over the junction of pubis;

   c) More or less like an adult, but only a smaller area is
   covered, no hair on the medial surface of thighs;
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A         30. The development of the breasts in girls commences
          from 13 to 14 years of age; however, it is liable to be
          affected by loose habits and social environments. During
          adolescence, the hormone flux acts and the breasts
          develop through the following stages:
B
          i) Breasts and papilla are elevated as a small mound, and
          there is enlargement of areolar diameter.

          ii) More elevation and enlargement of breast and areola,
          but their contours are not separate.
c
          iii) Areola and papilla project over the level of the breast.

          iv) Adult stage - only the papilla projects and the areola
          merges with the general contour of the breast.

D   In this case, it will be worthwhile to refer to the version of P.W.2
    Dr. Smt. Jasbit Kaur Saluja, who examined the victim P.W.4
    and in her evidence has stated the physical features of the
    victim and observed as under:

E         "(3) Following was the condition of the girl observed on
          examination:-

          Her height - 5", weight - 43 Kgs., normal build, 13 teeth in
          the upper jaw and 14 in the lower jaw present, hair in armpit
          had not grown, breast was development, slight pubic hair
F         were noticed."

       Ultimately, she has opined in paragraph 14 and 17 that the
  victim appears to be 14 to 16 years. The High Court in
  paragraph 9 again considered the said aspect of evidence of
G P.W.2 and noted as under:

          "9. Accordingly, the margin or error could be± 6 months.
          This apart, the radiological age, being probably, has to be
          verified in the face of age-related other evidence on record
          (State of H.P. V. Mange Ram AIR 2000 SC 2798 referred
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· KAILASH @ TANTI BANJARA v. STATE OF MADHYA 881
                   PRADESH
    to). Viewing from this angle, the following physical features   A
    described by Dr. Jasbeer Kaur Saluja were sufficient to
    fortify her assessment that the prosecutrix was between 14
    to 16 years of age:-

    (i) Auxiliary hair not appeared.
                                                                    B
    (ii) Public hair scanty.

    (iii) Menarche attaned 1 years back.

    (iv) Teeth -                                                    c
           7+6
                                  = 27
           7+7

    Considering these findings of anthropological and dental        D
    examinations, learned trial Judge did not commit any error
    in holding that age of the prosecutrix was about 14 years
    only (See Bishnudaya/ v. State of Bihar AIR 1981 SC
    39)."

     7. In paragraph 30 of the decision in Vijay alias Chinee,      E
(supra), this Court has held by making specific reference to the
growth of breast in a girl between the age group of 13 and 14
and has specifically referred to the extent at which such growth
could be found, while in paragraph 28 based on the eruption
of teeth, the age of a person can be ascertained. Again, in         F
paragraph 29 this Court has noted the ascertainment of age
based on the growth of pubic hair by which the age of the
person can be scientifically arrived.

     8. When we apply the above principles laid down by this
Court with particular reference to the consideration made by        G
the trial court in paragraph 14, the evidence of doctor P.W.2
as well as the conclusion arrived at by the High Court in
paragraph 9, we are convinced with the conclusion that P.W.4
was in the age group of 13/14 years. Once the said conclusion
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A cannot be altered the sexual intercourse indulged in by the
  appellant was with the consent of P .W.4 will be of no
  consequence. Having regard to the above said conclusion, we
  do not find any scope to find fault with the conviction and
  sentence imposed by the trial court as confirmed by the High
B Court in the impugned judgment in this appeal.

          The appeal lacks merit and the same is dismissed.

    K.K.T.                                   Appeal dismissed.