SATPAL SINGHversusSTATE OF HARYANA

                        [2010] 9 S.C.R. 50


A                         SATPAL SINGH
                                 V.
                       STATE OF HARYANA
                (Criminal Appeal No. 763 of 2008)

                          JULY 28, 2010
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

        Penal Code, 1860 - s.376:

c        Rape - Conviction - Challenged on the ground of
    inordinate delay in lodging the FIR - Held: Challenge not
    tenable since the delay was satisfactorily explained - The
    delay occurred because of the intervention of the village
    Panchayat which tried to bring about a compromise between
    the parties - The complainant moved the investigative
0
    machinery only after the Panchayat disagreed to impose fine
    and punishment as suggested by him on the accused.

       Rape - Conviction - Challenged on the ground that
  prosecutrix and the accused were studying in the same school
E and knew each other and it was a case of consent for sexual
  intercourse - Held: Challenge not tenable since the
  prosecution has successfully established that it was not a
  consent case - There was resistance by the prosecutrix and
  thus, it cannot, even by any stretch of imagination, be held
F that she had voluntarily participated in the sexual act - There
  had been no enmity between the two families, and, therefore,
  there could be no reason for the prosecutrix and her family
  to enrope the accused falsely in a case where the honour of
  the family itself remains on stake and the prosecutrix has to
G suffer mental agony throughout her life - Crime against
  Women.

        FIR - Lodged belatedly - Effect of the delay, in cases


H                                50
       SATPAL SINGH v. STATE OF HARYANA                 51


involving sexual offences and in cases involving other A
offences - Explained.

     Evidence Act, 1872 - s.35 - Admissibility of a document
- Not same as its probative value - Held: Entry made in the
official record by an official or person authorised in B
performance of an official duty is admissible u/s. 35 but the
authenticity of the entry would depend on whose instruction!
information such entry stood recorded and what was his
source of information.

    Words and Phrases - "consent" - Meaning of - In the       C
context of s.375 rlw s.90 /PC.

     According to the prosecution, the appellant raped
PW15, the minor daughter of PW11, when she had gone
to the fields for collecting cattle folder. Pursuant to the   0
alleged incident, the Village Panchayat intervened to
bring about a compromise between the parties and
ultimately imposed a fine of Rs.1100/- on the appellant.

    But PW11 was dissatisfied with the diktat of the
Panchayat, and at his instance, an FIR was lodged             E
against the appellant under Sections 376, 201 and 217
IPC, about 4 months after the date of the incident.

    Subsequently, the trial court convicted the appellant
under s.376 IPC and sentenced him to seven years              F
rigorous imprisonment. The High Court upheld the
conviction of the appellant, however, reduced his
sentence to 5 years.

    The appellant challenged his conviction on the
grounds (1) that there was inordinate delay in lodging the G
FIR and the prosecution could not furnish any
explanation for the same; (2) that PW15 was major, and
not minor as recorded by the Courts below, and 3) that
PW15 and the appellant were studying in the same
                                                              H
    52      SUPREME COURT REPORTS              [2010] 9 S.C.R.

A   school and knew each other and it was a case of consent
    for sexual intercourse. The appellant contended that he
    had been falsely enroped in the crime just to extract
    certain amount of money from him.

         Dismissing the appeal, the Court
B
       HELD:1.1. Delay in lodging FIR more often than not,
  results in embellishment and exaggeration, which is a
  creature of an afterthought. A delayed report not only gets
  bereft of the advantage of spontaneity, the danger of the
C introduction of a coloured version, an exaggerated
  account of the incident or a concocted story as a result
  of deliberations and consultations, also creep in, casting
  a serious doubt on its veracity. Thus, the FIR is to be filed
  more promptly and if there is any delay, the prosecution
D must furnish a satisfactory explanation for the same for
  the reason that in case the substratum of the evidence
  given by the complainant/informant is found to be
  unreliable, the prosecution case has to be rejected in its
  entirety. [Para 14] [62-E-G]
E
       1.2. However, no straight jacket formula can be laid
  down in this regard. In case of sexual offences, the criteria
  may be different altogether. The delay in lodging the FIR
  in sexual offences has to be considered with a different
  yardstick. As honour of the family is involved, its
F members have to decide whether to take the matter to the
  court or not. In such a fact-situation, near relations of the
  prosecutrix may take time as to what course of action
  should be adopted. Thus, some delay may occur. [Paras
  15, 17] [62-G-H; 63-A-B; E-F]
G
       1.3. In the instant case, the FIR was lodged after
  about four months of the commission of offence and that
  was done on the instructions of the Superintendent of
  Police. There is ample evidence on record to show that
H the Panchayat had intervened on the next day of the
        SATPAL SINGH v. STATE OF HARYANA                    53


incident and it pressurized PW11, the complainant, to            A
compromise the case and settle it outside the Court. The
Panchayat met several times and ultimately imposed a
fine of Rs.1100/- on the appellant, out of which the
appellant deposited/donated Rs.600/- and Rs. 500/- in
Gurudwara and Temple respectively, and obtained                  B
receipts also. The receipts had been produced before the
trial Court. However, since the demand of PW 11 that "the
appellant be fined to the tune of Rs.5000/- and be taken
in the procession after blackening his face and be
paraded in the village" was not accepted by the                  c
Panchayat, he had raised the grievance before the
Superintendent of Police. The delay in lodging the FIR
has been thus satisfactorily explained. [Paras 9, 18) [60-
D-G; 63-F]

     Kamel Singh v. State of M.P. AIR 1995 SC 2472; State        D
of Punjab v. Gurmeet Singh & Ors. AIR 1996 SC 1393; State
of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC
582; Satyapal v. State of Haryana AIR 2009 SC 2190 and
State of Himacha/ Pradesh v. Prem Singh AIR 2009 SC 1010
- relied on.                                                     E

     2.1. The entry made in the official record by an official
or person authorised in performance of an official duty
is admissible under Section 35 of the Evidence Act, 1872
but the party may still ask the Court/Authority to examine       F
its probative value. The authenticity of the entry would
depend as on whose instruction/information such entry
stood recorded and what was his source of information.
Thus, entry in school register/certificate requires to be
proved in accordance with law. Standard of proof for the         G
same remains as in any other civil and criminal case.
[Para 27] [67 -D-F]

    2.2. In the present case, there is nothing on record
to corroborate the date of birth of PW15. It is not possible
to ascertain as to who was the person who had given the          H
   54      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A date of birth of PW15 as 13.02.1975 at the time of initial
  admission in the primary school. More so, it cannot be
  ascertained as to who was the person who had recorded
  her date of birth in the Primary School Register. More so,
  the entry in respect of the date of birth of the prosacutrix
B in the Primary School Register has not been produced
  and proved before the trial court. Thus, i'< cannot be held
  with certainty that the prosecutrix was a major. However,
  the issue of majority becomes irrelevant since the
  prosecution has successfully established that it was not
c a consent case. [Para 28] [67-F-H; 68-A-B]
      State of Bihar & Ors. v. Radha Krishna Singh & Ors. AIR
  1983 SC 684; Ram Prasad Sharma v. State of Bihar AIR
  1970 SC 326; Ram Murti v. State of Haryana AIR 1970 SC
  1029; Oayaram & Ors. v. Oawalatshah & Anr. AIR 1971 SC
D 681; Harpal Singh & Anr. v. State of Himachal Pradesh AIR
  1981 SC 361; Ravinder Singh Gorkhi v. State of UP. (2006)
  5 SCC 584; Babloo Pasi v. State of Jharkhand & Anr. (2008)
  13 SCC 133; Oesh Raj v. Bodh Raj AIR 2008 SC 632; Ram
  Suresh Singh v. Prabhat Singh @Chhotu Singh & Anr. (2009)
E 6 SCC 681; Mohd. lkram Hussain v. The State of UP. & Ors.
  AIR 1964 SC 1625; Santenu Mitra v. State of West Bengal
  AIR 1999 SC 1587; Shri Raja Ourga Singh of Solon v. Tho/u
  & Ors. AIR 1963 SC 361; Birad Mal Singhvi v. Anand Purohit
  AIR 1988 SC 1796; Brij Mohan Singh v. Priya Brat Narain
F Sinha & Ors. AIR 1965 SC 282 and Vishnu Vs. State of
  Maharashtra (2006) 1 SCC 283 - relied on.
       3.1. A woman can be said to have given consent only
  if she has freely agreed to submit herself, while in free
  and unconstrained possession of her physical and moral
G power to act in a manner she wanted. Consent implies
  the exercise of a free and untrammeled right to forbid or
  withhold what is being consented to, it always is a
  voluntary and conscious acceptance by one of what is
  proposed to be done by another and concurred in by the
H
       SATPAL SINGH v. STATE OF HARYANA               55


former. An act of helplessness on the face of inevitable A
compulsions is not coi1sent in law. Moreso, it is not
necessary that there should be actual use of force. A
threat of use of force is sufficient. [Para 29] [68-C-D]
    3.2. The concept ?if 'consent' in the context of
                                                         8
Section 375 IPC has to be understood keeping in mind
the provision of Section 90 IPC, according to which a
consent given under fear/coercion or misconception/
mistake of fact is not a consent at all. The scheme of
Section 90 IPC is couched in .negative terminology.
Consent is different from submission. [Para 30] [68-E-F] C
     3.3. In the instant case, PW15 has deposed that the
sickle in her hand had fallen down out of fear when the
appellant caught hold of her. She had given teeth bites
and broken the buttons of the shirt of the appellant in 0
order to rescue herself from his clutches. She raised a
hue and cry and her brother PW16, who was working in
another field at some distance, came to the spot. The
prosecutrix has also been examined under Section 164
of CrPC, wherein she had deposed in respect of the E
resistance also. She stood the test of cross-examination
with reasonable certainty. Her version also got support
from the medical evidence of the Doctor (PW 2), who had
opined that possibility of rape with the prosecutrix could
not be ruled out. In such a fact-situation, the question of F
drawing an inference that it could be a case of consent
does not arise at all. There was resistance by the
prosecutrix and thus, it cannot, even by any stretch of
imagination, be held that she had voluntarily participated
in the sexual act. There had been no enmity between the
two families, and, therefore, there could be no reason for G
the prosecutrix and her family to enrope the appellant
falsely in a case where the honour of the family itself
remains on stake and the prosecutrix has to suffer mental
agony throughout her life. [Paras 32, 35] [69-B-D; 70-D-
~                                                          H
    56      SUPREME COURT REPORTS            [2010] 9 S.C.R

A       Uday Vs. State of Kamataka AIR 2003 SC 1639; Dee/ip
    Singh @ Oilip Kumar Vs. State of Bihar AIR 2005 SC 203;
    Yed/a Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615
    and State of H.P. Vs. Mange Ram AIR 2000 SC 2798 - relied
    on.
B
                       Case Law Reference:
         AIR 1995 SC 2472      relied on           Para 13
         AIR 1996 SC 1393      relied on           Para 13

c        (2008) 15 sec 582     relied on           Para 14
         AIR 2009 SC 2190      relied on           Para 15
         AIR 2009 SC 1010      relied on           Para 16
         AIR 1983 SC 684       relied on           Para 21
D
         AIR 1970 SC 326       relied on           Para 22
         AIR 1970 SC 1029      relied on           Para 22
         AIR 1971 SC 681       relied on           Para 22
E        AIR 1981 SC 361       relied on           Para 22
         (2006) 5 sec 584      relied on           Para 22
         (2008) 13 sec 133     relied on           Para 22
         AIR 2008 SC 632       relied on           Para 22
F
         (2009) 6 sec 681      relied on           Para 22
         AIR 1964 SC 1625      relied on           Para 22
         AIR 1999 SC 1587      relied on           Para 22
G        AIR 1963 SC 361       relied on           Para 23
         AIR 1988 SC 1796      relied on           Para 24
         AIR 1965 SC 282       relied on           Para 25
         (2006) 1 sec 283      relied on           Para 26
H
       SATPAL SINGH v. STATE OF HARYANA                      57


    AIR 2003 SC 1639           relied on             Para 30       A

    AIR 2005 SC 203            relied on             Para 30

    (2006) 11 sec 615          relied on             Para 30

    AIR 2000 SC 2798           relied on             Para 31
                                                                   B
    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 763 of 2008.

    From the Judgment & Order dated Oi'.03.2007 of the High
Court of Punjab & Haryana at \.handigarh in Criminal Appeal        c
No. 337-SB of 1994.

    Abhinav Ramakrishna, Prashant Shukla, Ajay Pal for the
Appellant.

   . Rajeev Gaur 'NASEEM', Arunabh Chowdhry, Nazid K. Hye,         D
Gainilung Panmei, Anupam Lal Das for the Respondent.

    The Judgment of the Court was delivered by

    DR. 8.5. CHAUHAN, J. 1. This appeal has been
preferred against the Judgment and Order dated 7.03.2007           E
passed by the High Court of Punjab and Haryana at Chandigarh
in Crl. Appeal No. 337-SB of 1994, by which the High Court
has upheld the conviction Order of the Trial Court dated 20th/
21st July, 1994 passed in Sessions Trial No. 21 of 1993,
however, the High Court reduced the sentence from seven            F
years to five years for the offence punishable under Section 376
of the Indian Penal Code (hereinafter called as, "IPC").

      2. The facts and circumstances giving rise to the present
case are that the alleged occurrence of rape took place on G
11.03.1993. Rajinder Kaur (PW 15), the prosecutrix, and her
brother Rajinder Singh (PW 16) had gone to fields for collecting
cattle fodder. Rajinder Singh had gone on a cycle and settled
in a field at some distance from the field where Rajinder Kaur,
the prosecutrix, had reached to cut/collect the grass. The H
    58      SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A appellant, Satpal Singh, caught hold of her and out of fear, the
  sickie in her hand fell down. The appellant took her to the nearby
  wheat field and raped her. She raised an alarm and upon
  hearing the same, her brother, Rajinder Singh (PW 16), came
  running to the place of occurrence. But by then, the appellant
B escaped from the scene. The prosecutrix came to her house
  along with her brother and told her mother Smt. Balwant Kaur
  that she was raped by the appellant. The father of the
  prosecutrix, Balbir Singh (Complainant) (PW 11), was not
  present at home and he was informed about the incident when
c he returned home in the evening. Balbir Singh (PW 11 ), after
  having consultation with his brother Kulwant Singh, went to
  Police Station, Shahbad. However, the police officials on duty
  asked him to come on next day. When Balbir Singh (PW 11)
  reached the Police Station on next day, he found that a Village
  Panchayat had already assembled there and efforts were made
0
  to compromise the matter. However, Balbir Singh (PW 11 ),
  agreed not to launch criminal proceedings in case, the appellant
  was fined to the tune of Rs. 5000/- and "be taken in procession
  after blackening his face and be paraded in the village".
E Ultimately, the Panchayat imposed fine of Rs. 1100/- only on
  the appellant, out of which Rs. 600/- were donated in the
  Gurudwara and Rs. 500/- in the temple. Being dissatisfied with
  the dictate of the Panchayat and running from pillar to post to
  convince the Panchayat members to come to a justifiable
  solution, Balbir Singh (PW 11 ), complainant, approached the
F Superintendent of Police, Kurukshetra on 16.07.1993 i.e. after
  about four months of the date of incident. On the instructions
  of the Superintendent of Police, Kurukshetra, an FIR was
   lodged against the appellant and one ASI Ram Kumar on
   16.07.1993 under Sections 376, 201 and 217 IPC. ASI Ram
G Kumar was arrayed as an accused for the reason that there
   had been allegations against him that he forced the matter to
   be compromised in order to screen the appellant from the
   crime.

H        3. Dr. Geeta Suri (PW 2), the Medical Officer, examined
       SATPAL SINGH v. STATE OF HARYANA                       59
             [DR. B.S. CHAUHAN, J.]
the prosecutrix on 17 .07 .1993. According to her, as the alleged   A
rape had taken place long ago, the vaginal swap could not be
taken and, therefore, there was no possibility to prove the
alleged act of rape by way of medical report. However, she
opined that possibility of rape could not be ruled out.
                                                                 B
     4. The charges were framed against the appellant and ASI
Ram Kumar on 14.09.1993 under Sections 376, 201 and 217
IPC. Both the accused pleaded not guilty and claimed trial.
Thus, the trial was conducted and after recording the statements
and considering the case in totality, the Trial Court convicted C
the appellant under Section 376 IPC and sentenced to seven
years' Rigorous Imprisonment and imposed fine to the tune of
Rs.5000/-. In default of payment of fine, he was directed to
undergo Rigorous Imprisonment of six months more. However,
ASI Ram Kumar stood acquitted.
                                                                 D
     5. Being aggrieved, the appellant preferred the appeal
before the High Court of Punjab and Haryana and the High
Court, vide impugned Judgment and Order dated 7.03.2007,
upheld the conviction of the appellant, but considering the
mitigating circumstances, reduced the sentence from seven E
years to five years. Hence, this appeal.

     6. Sh. Abhinav Ramakrishna, learned counsel for the
appellant, has raised only two issues namely; (a) that there has
been inordinate delay in lodging the FIR and the prosecution F
could not furnish any explanation for the same and; (b) that the
prosecutrix was major and the Courts below have recorded a
wrong finding of fact that she was a minor. The prosecutix and
the appellant had been studying in the same school. They knew
each other and it was a case of consent. The appellant has
falsely been enroped in the crime just to extract certain amount G
of money from him. The appeal deserves to be allowed.

    7. On the other hand, Sh. Rajeev Gaur 'Naseem', learned
counsel for the respondent-State, has vehemently opposed the
appeal contending that the prosecutrix was a minor at the time      H
    60      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   of the incident and even if, she was a major, there was no
    consent of the prosecutrix for sexual intercourse. More so, there
    had been no demand of money by the prosecutrix or her father,
    Balbir Singh (PW 11 ). The delay occurred because of the
    intervention of the Village Panchayat and non-cooperation of
B   the Police officials. The Panchayat did not agree to the
    suggestion of Balbir Singh (PW 11 ), that the appellant "be taken
    in procession after blackening his face and paraded in the
    village." The complainant approached the Superintendent of
    Police, Kurukshetra. Thus, no fault can be found with the
c   prosecution case as delay in lodging FIR stood explained.
    Appeal lacks merit and is liable to be dismissed.

         8. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.

D      9. In the instant case, admittedly, the FIR was lodged after
  about four months of the commission of offence and that was
  done on the instructions of the Superintendent of Police,
  Kurukshetra. There is ample evidence on record to show that
  the Panchayat had intervened on the next day of the incident
E and it pressurised the complainant to compromise the case
  and settle it outside the Court. The Panchayat met several times
  and ultimately imposed a fine of Rs.1100/- on the appellant, out
  of which the appellant deposited/donated Rs.600/- and Rs.
  500/- in Gurudwara and Temple respectively, and obtained
F receipts also. The receipts had been produced before the trial
  Court by Piara Singh (PW 6). However, Balbir Singh (PW 11 ),
  complainant, had been demanding that "the appellant be fined
  to the tune of Rs. 50001- and be taken in the procession after
  blackening his face and be paraded in the village". It was not
  accepted by the Panchayat, therefore, the complainant had
G raised the grievance before the Superintendent of Police,
  Kurukshetra.

        10. Maya Ram, Sarpanch, Village Dhantori, was examined
    as PW8 and was declared hostile. However, in the
H   examination-in-chief, he stated as under :-
       SATPAL SINGH v. STATE OF HARYANA                      61
             [DR. B.S. CHAUHAN, J.]

    "A Panchayat was convened to settle this issue. Members        A
    of Panchayat assembled from four-five villages including
    the relatives of both the parties. This dispute/issue was
    settled by the Panchayat by imposing the fine of Rs.1100/
    - on Satpal Singh."
                                                                   B
     11. Balbir Singh (PW 11) has stated that he went to the
Police Station on the same day. His statement was recorded
there and was asked by the Munshi to come on the next day.
When on the next day, he went to the Police Station at about
8.00-8.30 a.m. along with his daughter Rajinder Kaur, the          C
prosecutrix, and brother, he noticed 15-20 persons from
different villages, including a few from his village, who had
advised him to settle the matter for the reason that he had to
marry his daughter. They had also advised not to get his
daughter medically examined as it would be a hurdle for him
in arranging her marriage. But the complainant did not accept      D
their suggestion and approached the higher authorities.

     12. Both the courts below have considered this <1spect at
length and reached the conclusion that delay occurred because
of the intervention of the Panchayat, as the Panchayat had         E
insisted to compromise the case, rather than moving the
investigating machinery. The High Court observed as under:-

    "It was a case where the life of a young child of the
    complainant was at stake. A tendency on the part of the
    villagers or the parents of a young child; who is ravished,    F
    would normally be to save the honour of the child as first
    priority. The respectables in the village could be expected
    to intervene in this matter to seek compromise, so as to
    avoid the stigma for a young girl. An innocent complainant,
    even admitted that he would not have got the case              G
    registered in case the panchayat had agreed to impose
    fine as suggested by him and if the panchayat had
    paraded the appellant with blacken face as proposed by
    him. This would rather reflect that the witness was truthful
                                                                   H
    62      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A        besides being innocent villager, who despite being
         subjected to intricacies of the court proceedings, did not
         resile from the true accounts of events that had taken
         place."

          13. In a rape case the prosecutrix remains worried about
B
    her future. She remains in traumatic state of mind. The family
    of the victim generally shows reluctance to go to the police
    station because of society's attitude towards such a woman. It
    casts doubts and shame upon her rather than comfort and
    sympathise with her. Family remains concern about its honour
C   and reputation of the prosecutrix. After only having a cool
    thought it is possible for the family to lodge a complaint in
    sexual offences. (Vide Kamel Singh Vs. State of M.P. AIR
    1995 SC 2472; and State of Punjab Vs. Gurmeet Singh &
    Ors. AIR 1996 SC 1393).
D
         14. This Court has consistently highlighted the reasons,
    objects and means of prompt lodging of FIR. Delay in lodging
    FIR more often than not, results in embellishment and
    exaggeration, which is a creature of an afterthought. A delayed
E   report not only gets bereft of the advantage of spontaneity, the
    danger of the introduction of a coloured version, an
    exaggerated account of the incident or a concocted story as a
    result of deliberations and consultations, also creeps in, casting
    a serious doubt on its veracity. Thus, FIR is to be filed more
F   promptly and if there is any delay, the prosecution must furnish
    a satisfactory explanation for the same for the reason that in
    case the substratum of the evidence given by the complainanU
    informant is found to be unreliable, the prosecution case has
    to be rejected in its entirety. [vide State of Andhra Pradesh
    Vs. M. Madhusudhan Rao (2008) 15 SCC 582].
G
          15. However, no straight jacket formula can be laid down
    in this regard. In case of sexual offences, the criteria may be
    different altogether. As honour of the family is involved, its
    members have to decide whether to take the matter to the
H
       SATPAL SINGH v. STATE OF HARYANA                         63
             [DR. B.S. CHAUHAN, J.]
court or not. In such a fact-situation, near relations of the          A
prosecutrix may take time as to what course of action should
be adopted. Thus, delay is bound to occur. This Court has
always taken judicial notice of the fact that "ordinarily the family
of the victim would not intend to get a stigma attached to the
victim. Delay in lodging the First Information Report in a case        B
of this nature is a normal phenomenon" [vide Satyapal Vs.
State of Haryana AIR 2009 SC 2190].

    16. In State of Himacha/ Pradesh Vs. Prem Singh AIR
2009 SC 1010, this Court considered the issue at length and            C
observed as under :-

     "So far as the delay in lodging the FIR is concerned, the
     delay in a case of sexual assault, cannot be equated with
     the case involving other offences. There are several factors
     which weigh in the mind of the prosecutrix and her family D
     members before coming to the police station to lodge a
     complaint. In a tradition bound society prevalent in India,
     more particularly, rural areas, it would be quite unsafe to
     throw out the prosecution case merely on the ground that
     there is some delay in lodging the FIR."                     E

    17. Thus, in view of the above, the delay in lodging FIR in
sexual offences has to be considered with a different yardstick.

     18. If the instant case is examined in the light of the
aforesaid settled legal proposition, we are of the considered          F
opinion that the delay in lodging the FIR has been satisfactorily
explained.

     19. So far as the issue as to whether the prosecutrix was
a major or minor, it has also been elaborately considered by G
the courts below. In fact, the School Register has been
produced and proved by the Head Master, Mohinder Singh
(PW 3). According to him, Rajinder Kaur (PW 15), the
prosecutrix, was admitted in Government School, Sharifgarh,
Dist. Kurukshetra on 2.05.1990 on the basis of School Leaving H
    64      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   Certificate issued by Government Primary School, Dhantori. In
    the School Register, her date of birth has been recorded as
    13.02.1975. The question does arise as to whether the date
    of birth recorded in the School Register is admissible in
    evidence and can be relied upon without any corroboration. This
B   question becomes relevant for the reason that in cross-
    examination, Sh. Mohinder Singh, Head Master (PW 3), has
    stated that the date of birth is registered in the school register
    as per the information furnished by the person/guardian
    accompanying the students, who comes to the school for
C   admission and the school authorities do not verify the date of
    birth by any other means.

          20. A document is admissible under Section 35 of the
    Indian Evidence Act, 1872 (hereinafter called as 'Evidence Act')
    being a public document if prepared by a government official
D   in the exercise of his official duty. However, the question does
    arise as what is the authenticity of the said entry for the reason
    that admissibility of a document is one thing and probity of it is
    different.

E        21. In State of Bihar & Ors. Vs. Radha Krishna Singh &
    Ors. AIR 1983 SC 684, this Court dealt with a similar contention
    and held as under:-

         "Admissibility of a document is one thing and its probative
         value quite another - these two aspects cannot be
F        combined. A document may be admissible and yet may
         not carry any conviction and weight of its probative value
         may be nil ......

         Where a report is given by a responsible officer, which is
G        based on evidence of witnesses and documents and has
         "a statutory flavour in that it is given not merely by an
         administrative officer but under the authority of a Statute,
         its probative value would indeed be very high so as to be
         entitled to great weight.
H
        SATPAL SINGH v. STATE OF HARYANA                       65
             . [DR. B.S. CHAUHAN, J.]
    The probative value of documents which, however ancient          A
    they may be, do not disclose sources of their information
    or have not achieved sufficient notoriety is precious little."

       22. Therefore, a document may be admissible, but as to
whether the entry contained therein has any probative value may      8
still be required to be examined in the facts and circumstances
of a particular case. The aforesaid legal proposition stands
fortified by the judgments of this Court in Ram Prasad Sharma
Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of
Haryana AIR 1970 SC 1029; Daya ram & Ors. Vs.
Dawalatshah & Anr. Al R 1971 SC 681 ; Harpal Singh & Anr.            C
Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder
Singh Gorkhi Vs. State of UP. (2006) 5 SCC 584; Bab/oo
Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh
Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh
Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681.             D
In these cases, it has been held that even if the entry was made
in an official record by the concerned official in the discharge
of his official duty, it may have weight but still may require
con-ouoration by the person on whose information the entry has
been made and as to whether the entry so made has been               E
exhibited and proved. The standard of proof required herein is
the same as in other civil and criminal cases.

     Such entries may be in any public document, i.e. school
register, voter list or family register prepared under the Rules     F
and Regulations etc. in force, and may be admissible under
Section 35 of the Evidence Act as held in Mohd. lkram Hussain
Vs. The State of UP. & Ors. AIR 1964 SC 1625; and Santenu
Mitra Vs. State of West Bengal AIR 1999 SC 1587.

    23. There may be conflicting entries in the official document    G
and in such a situation, the entry made at a later stage has to
be accepted and relied upon. (Vide Shri Raja Durga Singh of
Solon Vs. Tholu & Ors. AIR 1963 SC 361 ).

                                                                     H
    66       SUPREME COURT REPORTS                     (2010] 9 S.C.R.


A       24. While dealing with a similar issue in Birad Mal Singhvi
    Vs. Anand Purohit AIR 1988 SC 1796, this Court held as
    under:-

                'To render a document admissible under Section 35,
         three conditions must be satisfied, firstly, entry that is relied
B
         on must be one in a public or other official book, register
         or record, secondly, it must be an entry stating a fact in
         issue or relevant fact, and thirdly, it must be made by a
         public servant in discharge of his official duty, or any other
         person in performance of a duty specially enjoined by law.
c        An entry relating to date of birth made in the school register
         is relevant and admissible under Section 35 of the Act, but
         entry regarding to the age of a person in a school register
         is of not much evidentiary value to prove the age of the
         person in the absence of the material on which the age was
D        recorded."

         25. A Constitution Bench of this Court, while dealing with
    a similar issue in Brij Mohan Singh Vs. Priya Brat Narain Sinha
    & Ors. AIR 1965 SC 282, observed as under:-
E
         "The reason why an entry made by a public servant in a
         public or other official book, register, or record stating a
         fact in issue or a relevant fact has been made relevant is
         that when a public servant makes it himself in the discharge
         of his official duty, the probability of its being truly and
F        correctly recorded is high. That probability is reduced to a
         minimum when the public servant himself is illiterate and
         has to depend on somebody else to make the entry. We
         have therefore come to the conclusion that the High Court
         is right in holding that the entry made in an official record
G        maintained by the illiterate Chowkidar, by somebody else
         at his request does not come within Section 35 of the
         Evidence Act."

       26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283,
H while dealing with a similar issue, this Court observed that very
       SATPAL SINGH v. STATE OF HARYANA                         67
             [DR. B.S. CHAUHAN, J.]
often parents furnish incorrect date of birth to the school           A
authorities to make up the age in order to secure admission
for their children. For determining the age of the child, the best
evidence is of his/her parents, if it is supported by un-
impeccable documents. In case the date of birth depicted in
the school register/certificate stands belied by the un-              B
impeccable evidence of reliable persons and
contemporaneous documents like the date of birth register of
the Municipal Corporation, Government Hospital/Nursing Home
etc, the entry in the school register is to be discarded.

     Thus, the entry in respect of age of the child seeking           C
admission, made in the school register by semi-literate
chowkidar at the instance of a person who came along with the
child having no personal knowledge of the correct date of birth,
cannot be relied upon.
                                                                      D
     27. Thus, the law on the issue can be summerised that the
entry made in the official record by an official or person
authorised in performance of an official duty is admissible under
Section 35 of the Evidence Act but the party may still ask the
Court/Authority to examine its probative value. The authenticity      E
of the entry would depend as on whose instruction/information
such entry stood recorded and what was his source of
information. Thus, entry in school register/certificate requires to
be proved in accordance with law. Standard of proof for the
same remains as in any other civil and criminal case.                 F

     28. In case, the issue is examined in the light of the
aforesaid settled legal proposition, there is nothi11g on record
to corroborate the date of birth of the prosecutrix recorded in
the School Register. It is not possible to ascertain as to who
was the person who had given her date of birth as 13.02.1975          G
at the time of initial admission in the primary school. More so,
it cannot be ascertained as who was the person who had
recorded her date of birth in the Primary School Register. More
so, the entry in respect of the date of birth of the prosecutrix in
                                                                      H
    68      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A the Primary School Register has not been produced and proved
  before the Trial Court. Thus, in view of the above, it cannot be
  held with certainty that the prosecutrix was a major.

          Be that as it may, the issue of majority becomes irrelevant
    if the prosecution successfully establishes that it was not a
8
    consent case.

        29. It can be held that a woman has given consent only if
  she has freely agreed to submit herself, while in free and
  unconstrained possession of her physical and moral power to
C act in a manner she wanted. Consent implies the exercise of
  a free and untrammeled right to forbid or withhold what is being
  consented to, it always is a voluntary and conscious acceptance
  of what is proposed to be done by another and concurred in
  by the former. An act of helplessness on the face of inevitable
D compulsions is not consent in law. More so, it is not necessary
  that there should be actual use of force. A threat or use of force
  is sufficient.

       30. The concept of 'Consent' in the context of Section 375
E IPC has to be understood differently, keeping in mind the
  provision of Section 90 IPC, according to which a consent given
  under fear/coercion or misconception/mistake of fact is not a
  consent at all. Scheme of Section 90 IPC is couched in
  negative terminology. Consent is different from submission.
  [Vide Uday Vs. State of Karnataka AIR 2003 SC 1639; Deelip
F Singh @ Dilip Kumar Vs. State of Bihar AIR 2005 SC 203;
  and Yed/a Srinivasa Rao Vs. State of A.P. (2006) 11 SCC
  615.)

      31. In the State of H.P. Vs. Mange Ram AIR 2000 SC
G 2798, this Court, while considering the same issue, held as
  under:-

         "Submission of the body under the fear of terror cannot be
         construed as a consented sexual act. Consent for the
         purpose of Section 375 requires voluntary participation not
H
        SATPAL SINGH v. STATE OF HARYANA                        69
              [DR. B.S. CHAUHAN, J.]

     only after the exercise of intelligence based on the             A
     knowledge of the significance and moral quality of the act
     but after having fully exercised the choice between the
     resistance and assent."

      32. Rajinder Kaur (PW 15), the prosecutrix, has deposed
                                                                      8
that the sickle in her hand had fallen down out of fear when the
appellant caught hold of her. She had given teeth bites and
broken the buttons of the shirt of the appellant in order to rescue
herself from his clutches. She raised a hue and cry and her
brother, Rajinder Singh (PW 16), who was working in another           C
field at some distance, came to the spot. The prosecutrix has
also been examined under Section 164 of Code of Criminal
Procedure, 1973, wherein she had deposed in respect of the
resistance also. She stood the test of cross-examination with
reasonable certainty. Her version also got support from the
medical evidence of Dr. Geeta Suri (PW 2), who had opined             D
that possibility of rape with the prosecutrix could not be ruled
out.

     33. The Trial Court considered the issue of consent at
length and recorded the following findings :-                         E

     'There is positive and cogent evidence in the statement
     of Mst. Rajinder Kaur (PW15) as also in her statement
     Ex.PS/2 that resistance was offered by her. She even
     makes out a case that she could have even used sickle in
     offering resistance but it had fallen away from her hands        F
     on the doll.

     34. The High Court dealt with the issue and made the
following observations :-
                                                                      G
     "The aspect of consent introduced by the appellant's
     counsel as an alternative plea would also not stand the test
     of judicial scrutiny. When analysed in the light of evidence
     given by prosecutrix and other PWs, it would show that
     prosecutrix had offered resistance, so much as that she          H
    70       SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A        had pulled the buttons of the shirt of the appellant and had
         given him teeth bites. She had also raised alarm, which
         had attracted her brother, who was present in the nearby
         fields. The aspect of consent introduced by taking
         advantage of the appellant being a student of the same
B        school where the prosecutrix was studying, was rightly
         discarded by the trial court ...... it may also need a notice
         that such a plea was only raised in the alternative as
         otherwise plea of denial alone was earlier raised. Defence
         has, without success, tried to encash the aspect of
c        settlement, which was negotiated during the panchayat
         meetings."

         35. Thus, in view of the above, we are of the considered
  opinion that in such a fact-situation, the question of drawing an
  inference that it could be a case of consent does not arise at
D all. There was resistance· by the prosecutrix and thus, it cannot,.
  even by a stretch of imagination, be held that she had voluntarily
  participated in the sexual act. There had been no enmity
  between the two families, and, therefore, there could be no
  reason for the prosecutrix and her family to enrope the appellant
E falsely in a case where the honour of the family itself remains
  on stake and the prosecutrix has to suffer mental agony
  throughout her life. We should be alive to the fact that rape not
  only distracts the personality of the victim but degrades her very
  soul. Prosecutrix generally faces humiliation and is being
F harassed by the defence in her cross-examination during the
  trial. Any kind of unwarranted suggestion can be put to her. In
  the instant case, the appellant in his statement under Article 313
  Cr.P.C. did not hesitate to label the prosecutrix as "Vagabond".
  He further stated that he had falsely been enroped in the case
G "with the connivance of police in order to extort money".

         36. In the totality of the circumstances, we do not find any
    force in the appeal. It lacks merit and is accordingly dismissed.

    B.B.B.                                       Appeal dismissed.
H