MANAK CHAND @ MANIversusTHE STATE OF HARYANA

                  [2023] 14 S.C.R. 74 : 2023 INSC 959



                            CASE DETAILS

                      MANAK CHAND @ MANI
                                     v.
                      THE STATE OF HARYANA
                   (Criminal Appeal No. 2276 of 2014 )
                           OCTOBER 30, 2023
       [SANJAY KISHAN KAUL, C. T. RAVIKUMAR AND
                SUDHANSHU DHULIA, JJ.]

                             HEADNOTES

     Issue for consideration: Whether the courts below were justified in
convicting and sentencing the appellant for offence of rape u/s. 376 IPC.
     Penal Code, 1860 – s. 376 – Rape - Allegation of the prosecutrix
aged less than 16 years, against her sister’s brother-in-law-appellant
that she was raped two three times when she had gone to her sister’s
matrimonial home – Considering the family relations, initially the
matter was sought to be settled by the marriage of the two – However,
the offer was turned down, and the prosecutrix’s father lodged an FIR –
Order of conviction and sentence of the appellant u/s. 376 by the courts
below – Correctness:
      Held: Testimony of the prosecutrix does not inspire confidence – She
did not disclose the incident immediately, rather there were allegations of
rape on two three occasions but no date or time disclosed – She disclosed
about the incident to her mother after one and a half months – The date
the prosecutrix alleged the first incident of rape, was the same date, the
prosecution led evidence that she had attended a school located at a separate
place – This seems improbable, if not impossible – Also FIR was ultimately
filed as the initial proposal of marriage was turned down – All these facts
cast a doubt on the prosecution case – Evidence, as to the age or even rape
not examined properly by the courts below – No definite conclusion could
have been made regarding the age of the prosecutrix – Prosecution did
not successfully prove that the prosecutrix was less than sixteen years of

                                     74
   MANAK CHAND @ MANI v. THE STATE OF HARYANA                             75


age at the time of the alleged commission of the crime – Furthermore, the
prosecution failed to do the bone ossification test for determination of the
age of the prosecutrix – Thus, the appellant to be given benefit – As to the
factum of rape itself, the offence of rape not made out as it did not meet
the ingredients of rape as defined u/s. 375, as no evidence found which
may suggest that the appellant, even though had sexual intercourse with
the prosecutrix, it was against her will or without her consent – Thus, the
order of the courts below set aside and appellant acquitted of the charges.
[Paras 6, 9, 11 and 12]
    Evidence – Offence of rape – Testimony of the prosecutrix –
Evidentiary value:
      Held: Conviction can be made on the basis of the sole testimony of
the prosecutrix – Courts have to be extremely careful while examining this
sole testimony – Furthermore, both the prosecutrix as well as the accused
have a right for a fair trial – Thus, when the statement of the prosecutrix
does not inspire confidence and creates a doubt, the court must look for
corroborative evidence. [Para 5]
     Evidence – Rape case – Bone ossification test – Requirement:
     Held: In such cases, a bone ossification test is required to be done, in
order to come to some reliable conclusion as to the age of the prosecutrix.
[Para 9]
     Criminal jurisprudence – Guiding principle:
      Held: Courts must examine each evidence with open mind
dispassionately as an accused is to be presumed innocent till proved guilty –
Guiding principle shall always be the Blackstone ratio which holds that it is
better that ten guilty persons escape than one innocent be punished. [Para 7]

       LIST OF CITATIONS AND OTHER REFERENCES

      State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: [1996] 1 SCR
532; Sadashiv Ramrao Hadbe v. State of Maharashtra and Another (2006)
10 SCC 92; Raju and others v. State of Madhya Pradesh (2008) 15 SCC
133: [2008] 16 SCR 1078; Birad Mal Singhvi v. Anand Purohit (1988) Supp
SCC 604 – referred to.
76            SUPREME COURT REPORTS                         [2023] 14 S.C.R.



       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.2276 of 2014.
     From the Judgment and Order dated 19.02.2014 of the High Court of
Punjab & Haryana at Chandigarh in CRAS No.1051 of 2001.
     Appearances:
     Jay Kishor Singh, Mohit Raj, Hemant Sharma, Advs. for the Appellant.
   Samar Vijay Singh, Sanjay Kumar Tyagi, Keshav Mittal, Sabarni Som,
Aman Dev Sharma, Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     SUDHANSHU DHULIA, J.
      1. The appellant before this Court has been convicted under Section
376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and has
been sentenced for seven years of R.I. and Rs.1000/- as fine, with default
stipulations. The order of the Trial Court dated 03.09.2001 has been upheld
by the High Court of Punjab and Haryana as per judgment dated 19.02.2014
in appeal.
      2. A First Information Report was lodged on 23.10.2000 by Gian
Chand (complainant), who is the father-in-law of appellant’s elder brother
Pappu. It states that on 02.09.2000, Pappu requested the complainant to send
his younger daughter (who is the present prosecutrix), to his house for taking
care of her sister, who had just given birth to a girl child. It is alleged that
the prosecutrix at the relevant time was 15 years of age. The prosecutrix was
sent by her father to live for some time at her sister’s matrimonial house.
More than a month later, the prosecutrix returned to her house, tells her
mother that while she was in the house of her sister, the present appellant
Manak Chand @ Mani who is the younger brother of Pappu, raped her and
thereafter repeated the same offence two to three times. Initially, considering
    MANAK CHAND @ MANI v. THE STATE OF HARYANA                              77
             [SUDHANSHU DHULIA, J.]

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 Manak Chand @ Mani. But it is alleged that the family of the
appellant later turned down the offer on 23.10.2000, which led to the lodging
of an FIR at Police Station City Dabwali under Sections 376, 342 and 506
of IPC. This in short is the case of the prosecution.
     3. After investigation, charge sheet was filed on 02.11.2000 and
the matter was committed to sessions where charges were framed against
the appellant/accused under Sections 376 and 506 IPC. The prosecution
examined 7 witnesses, including PW-5, who was the prosecutrix.
       The prosecution’s case is that the prosecutrix was a minor on the date
of the incident. In order to prove this the prosecution relied upon the date of
birth of the prosecutrix recorded as 04.04.1987 in the school register. PW-5
i.e., the prosecutrix in her examination-in-chief before the Trial Court on
17.04.2001 states that she had gone to live with her sister, when a request
was made by her “Jija” (Brother-in-law) to send her to their house for help.
On 12.09.2000, when her sister was away from the house and the prosecutrix
was alone, the appellant came to her room and closed the door from inside,
showed a knife to her and threatened to kill her if she did not succumb
to his carnal desires; and then raped her. She further states that after that
incident, the appellant committed the same act on the prosecutrix on two or
three different occasions. She then returns to her maternal house and tells
her mother Sita Devi/Sito Bai about the incident, which is admittedly after
more than a month from the incident of rape. Her father Gian Chand (PW-6),
also supported her version. He states that on receiving this information he
visited the house of his son-in-law Pappu and narrated the entire incident to
him, as narrated to him by his daughter. He then gave a proposal before the
parents of the appellant for marriage of the prosecutrix with the appellant
Manak Chand @ Mani, but as no positive reply was given to him, he lodged
the FIR on 23.10.2000.
      The prosecutrix was medically examined by PW-1 Dr. Kulwinder Kaur
on 28.10.2000 at 11.30 AM. PW-1 states that the age of the prosecutrix, as
told to her by the mother of the prosecutrix, was 16 years and the details of
the medical examination of the prosecutrix were as follows:
78             SUPREME COURT REPORTS                             [2023] 14 S.C.R.


      “GENERAL EXAMINATION: Well-built adult female, fully
      conscious, moderately nourished. There was no external mark of injury
      over breast, neck, face, abdomen & thigh.
      LOCAL EXAMINATION: She had well-developed public hairs;
      external genitalia were fully developed & normal. There was no
      external mark of injury.
      PER VAGINAL EXAMINATION: Labia minora was hypertrophied,
      hymen was ruptured admitted 2 fingers. There was no sign of acute
      inflammation in & around vulva. There was discharge. Uterus non
      gravid, firm and mobile and fornix fox free.
      Her Vaginal swab not taken because pt had menstruated 5 days back
      & the history of assault is 1 ½ two months before. Ex.PB in the true
      copy of the MLR. Firstly, the age of the prosecutrix was recorded as
      15 on the information of her mother which was later on corrected to
      16 years. That was also done on the information of the mother of the
      prosecutrix.
      At the time of medical examination of the patient, no force seems to
      have been used against her. I cannot opine about the age of the patient
      on the basis of development of her public hairs and genitalia etc. The
      patient was habitual to sexual intercourse because her labia minora
      was hypertrophied and hymen admitted two fingers.”
      4. At this stage, we must mention 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. It was only vide an
amendment made in the year 20131 that this has been increased to eighteen
years. 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. Moreover, the version of the mother of the prosecutrix herself is that
the prosecutrix was sixteen years of age.



1    Criminal Law (Amendment) Act No.13 of 2013 dated 03 rd February, 2013.
    MANAK CHAND @ MANI v. THE STATE OF HARYANA                              79
             [SUDHANSHU DHULIA, J.]

      5. The evidence of a prosecutrix in a case of rape is of the same value
as that of an injured witness. It is again true that conviction can be made
on the basis of the sole testimony of the prosecutrix. All the same, when a
conviction can be based on the sole testimony of the prosecutrix, the courts
also have to be extremely careful while examining this sole testimony as
cautioned in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:
     “If evidence of the prosecutrix inspires confidence, it must be relied
     upon without seeking corroboration of her statement in material
     particulars. If for some reason the court finds it difficult to place
     implicit reliance on her testimony, it may look for evidence which may
     lend assurance to her testimony, short of corroboration required in
     the case of an accomplice. The testimony of the prosecutrix must be
     appreciated in the background of the entire case and the trial court
     must be alive to its responsibility and be sensitive while dealing with
     cases involving sexual molestations.”
    This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State
of Maharashtra and Another (2006) 10 SCC 92:
     “It is true that in a rape case the accused could be convicted on the
     sole testimony of the prosecutrix, if it is capable of inspiring confidence
     in the mind of the court. If the version given by the prosecutrix is
     unsupported by any medical evidence or the whole surrounding
     circumstances are highly improbable and belie the case set up by
     the prosecutrix, the court shall not act on the solitary evidence of the
     prosecutrix.”
       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. Relying upon the case of Gurmit Singh (supra) this court in Raju
and others v. State of Madhya Pradesh (2008) 15 SCC 133 held as under:
     “10. The aforesaid judgments lay down the basic principle that
     ordinarily the evidence of a prosecutrix should not be suspected and
     should be believed, more so as her statement has to be evaluated on a
     par with that of an injured witness and if the evidence is reliable, no
     corroboration is necessary. Undoubtedly, the aforesaid observations
80           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


     must carry the greatest weight and we respectfully agree with them, but
     at the same time they cannot be universally and mechanically applied to
     the facts of every case of sexual assault which comes before the court.
     11. It cannot be lost sight of that rape causes the greatest distress and
     humiliation to the victim but at the same time a false allegation of
     rape can cause equal distress, humiliation and damage to the accused
     as well. The accused must also be protected against the possibility of
     false implication, particularly where a large number of accused are
     involved. It must, further, be borne in mind that the broad principle
     is that an injured witness was present at the time when the incident
     happened and that ordinarily such a witness would not tell a lie as
     to the actual assailants, but there is no presumption or any basis for
     assuming that the statement of such a witness is always correct or
     without any embellishment or exaggeration.”
       6. Does the testimony of the prosecutrix in the present case inspire
confidence? We are afraid it does not. Let us appreciate the facts once
again. Although, the first incident of rape is alleged to be of 12.09.2000, the
prosecutrix does not disclose this to anyone immediately. She then alleges
rape again on two or three different occasions later, though no date and time
are disclosed. She only discloses it to her mother after one and half months.
It has then come in the evidence led by none other but the prosecution (in
the school register submitted in the court by PW-2 i.e., Ram Sahay), that the
prosecutrix had attended her classes in the school on 12.09.2000 at Dabwali,
where she resides with her parents. We must note that she has alleged rape on
the same day at village Sanwat Khera, where she was staying at the relevant
time with her sister in her matrimonial house. This seems improbable, if
not impossible. The other aspect is the admitted position of the prosecution
itself that the FIR was ultimately filed as the initial proposal of marriage
was then turned down. All these facts do cast a doubt on the story of the
prosecution.
      7. The prosecution then has also relied upon the medical report of
the prosecutrix given by Dr. Kulwinder Kaur as PW-1 which states that the
hymen of the prosecutrix was ruptured, and therefore she was raped. To
the contrary when we examine the same medical report in detail an entirely
different picture emerges. The Trial Court, however relied upon the evidence
    MANAK CHAND @ MANI v. THE STATE OF HARYANA                              81
             [SUDHANSHU DHULIA, J.]

placed by the prosecution regarding the date of birth of the prosecutrix,
which was recorded in the school register as 04.04.1987 and therefore at
the time of the alleged offence she was only thirteen and half years of age
and thus the finding of the Trial Court is 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 discards the presumption of the prosecutrix
being a consenting party and has completely relied upon the testimony of
the prosecutrix regarding rape and has dismissed the appeal.
      The evidence, as to the age or even rape has not been examined
properly by the Trial Court as well as the High Court. Courts must examine
each evidence with open mind dispassionately as an accused is to be
presumed innocent till proved guilty. In our adversarial system of criminal
jurisprudence, the guiding principle shall always be the Blackstone ratio
which holds that it is better that ten guilty persons escape than one innocent
be punished.
      8. There are two aspects which ought to have been considered by the
Trial Court and the High Court in greater detail than what has been done.
The first is the age of the prosecutrix. The age of the prosecutrix has an
extremely crucial bearing in the case. 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, Ram Sahay (PW-2). Undoubtedly, the date
of birth in the school register is 04.04.1987 which makes the prosecutrix less
than sixteen years of age at the time of the incident. But it has also come in
the evidence of Ram Sahay (PW-2) that 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 04.04.1987. All
the same, this transfer certificate, on the basis of which the date of birth
was recorded, was never produced in the Court. Yet, both the Trial Court
and the High Court have relied upon the veracity of the school register. It
is the same school register which marks the presence of the prosecutrix on
12.09.2000 in the school. This is also the date when the prosecutrix was
82           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


allegedly raped for the first time, in the house of the appellant in village
Sanwat Khera, whereas the school is at another place called Dabwali Mandi.
The Trial Court discards the evidence in the same school register, as not
being authentic, when the defence had raised the apparent contradictions
on the prosecutrix being in school and at the Sanwat Khera village at the
same time. This is not a fair appreciation of evidence, to say the least, as
same school register is the only basis for the determination of the age of
the prosecutrix!
      9. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp
SCC 604 had observed that the date of birth in the register of a school would
not have any evidentiary value without the testimony of the person making
the entry or the person who gave the date of birth.
     “14. …The date of birth mentioned in the scholar’s register has no
     evidentiary value unless the person who made the entry or who gave
     the date of birth is examined. The entry contained in the admission
     form or in the scholar’s register must be shown to be made on the
     basis of information given by the parents or a person having special
     knowledge about the date of birth of the person concerned. If the entry
     in the scholar’s register regarding date of birth is made on the basis of
     information given by parents, the entry would have evidentiary value
     but if it is given by a stranger or by someone else who had no special
     means of knowledge of the date of birth, such an entry will have no
     evidentiary value.”
      In our opinion, the proof submitted by the prosecution with regard to
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. 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.
     Secondly, we cannot lose sight of the fact that since age was such a
crucial factor in the present case, the prosecution should have done a bone
ossification test for determination of the age of the prosecutrix. This has
not been done in the present case. On the other hand, as per the clinical
    MANAK CHAND @ MANI v. THE STATE OF HARYANA                             83
             [SUDHANSHU DHULIA, J.]

examination of the prosecutrix which was done by PW-1, Dr. Kulwinder Kaur
on 28.10.2000 and which has also been referred to in the preceding paragraph
of the present judgment, we find that the secondary sex characteristics of
the prosecutrix were well developed. The doctor in her report mentions that
the prosecutrix is a “well built adult female”. At another place it mentions
“well developed pubic hair” and “external genitalia were fully developed
and normal”. It then records her age as sixteen years as told to her by the
mother of the prosecutrix. The report records that there were no external
marks of injury over her breast, neck, face, abdomen and thigh. The report
then concludes, inter alia, about her age as under:
           “At the time of medical examination of the patient, no force seems
     to have been used against her. I cannot opine about the age of the
     patient on the basis of development of her pubic hairs and genitalia
     etc. The patient was habitual to sexual intercourse because her labia
     minora was hypertrophied and hymen admitted two fingers.”
      The doctor has refrained from giving an opinion herself as to the age,
but in the same report the age is recorded as sixteen years. Under the facts
and circumstances of the case, what was required to be done was a bone
ossification test in order to come to some reliable conclusion as to the age
of the prosecutrix. This has evidently not been done. Moreover, it has also
come in evidence that the mother of the prosecutrix too had said that her
daughter was sixteen years of age.
      10. We must also keep another relevant factor into consideration. This
would be the relative age of the prosecutrix and the accused. The accused
at the relevant time was less than 20 years of age, or about 20 years of age,
as his age is mentioned as 20 years at the time of recording of his statement
under Section 313, which is months later to the alleged incident. The fact
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. All these factors point out towards the fact that what was
alleged as rape was not rape but could be a consensual act. 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 medical evidence, however,
84             SUPREME COURT REPORTS                     [2023] 14 S.C.R.


points out that she is more than 16 years of age. The only evidence placed
by the prosecution for establishing the DOB as 04.04.1987 i.e., the school
register has not been conclusively proved.
      11. Under these facts, and on the weight of the evidence placed before
the Trial Court, we are of the considered opinion 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.
     12. Consequently, we allow this appeal and set aside the order dated
19.02.2014 of the High Court and the order dated 03.09.2001 of the Trial
Court. Accordingly, the appellant is acquitted of the charges of Section
376 IPC. The appellant, who is on bail, need not surrender. His bail bonds
stand discharged.


Headnotes prepared by:                                         Appeal allowed.
Nidhi Jain