Supreme Court of India
STATE OF KARNATAKAversusBANTARA SUDHAKARA @ SUDHA & ANR.
- Citation
- 2008 INSC 842
- Decided
- 18 July 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
The victims were under 16 years, no consent was pleaded, and the conviction under Section 376 IPC stands.
Summary
The State of Karnataka appealed the Karnataka High Court’s acquittal of two tailors accused of raping two girls. The trial court had convicted them under Section 376 of the Indian Penal Code, relying on school certificates and the headmaster’s testimony that the victims were under 16 years of age. The High Court reversed the conviction, holding the girls were over 16 and that the act was consensual, despite no consent being pleaded by the accused. The Supreme Court examined the evidence, rejected the High Court’s reasoning, affirmed that the school certificates reliably established the victims’ ages as below 16, and reiterated that the burden of proving consent lies on the accused. Consequently, the Supreme Court set aside the High Court’s judgment, restored the trial court’s conviction, and ordered the respondents to surrender for sentencing.
Issues considered
- Whether the victims were minors under 16 years for the purpose of Section 376 IPC.
- Whether the High Court correctly inferred consent in the absence of any plea by the accused.
- Whether the headmaster’s school certificates are admissible and sufficient evidence to determine the victims' ages.
- Whether the burden of proving consent rests on the accused in rape cases.
Legislation cited
Subjects
rapeminorconsentburden of proofevidenceschool certificateIPC 376criminal lawappellate jurisdiction
Judgment
[2008] 10 S.C.R. 1161
STATE OF KARNATAKA A
V.
BANTARA SUDHAKARA @ SUDHA & ANR.
(Criminal Appeal No. 288 of 2001)
JULY 18, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.]
Penal Code, 1860; s. 376:
Rape of minor girls - Certificates produced by Headmas- C
ter of School showing age of the prosecutrix less than 16 years1
- Trial Court found the accused guilty of committing offence
of rape and sentenced them accordingly - Acquitted by High
Court holding the age of the prosecutrix more than 16 years
and that there was consent - Correctness of - Held: Incorrect D
-Accused persons did not plead that there was consent- High
Court erred in taking the age of victims more than 16 years
and in discarding the evidence of Head master showing the 1
age of the victim less than 16 years - Conclusions arrived at
by the High Court are not only fallacious but contrary to the E
evidence on record - Hence, judgment of the High Court not
sustainable.
According to the prosecution, accused persons-tai-
lors by profession had taken the victim-sisters to their
residence on the pretext of giving delivery of the blouses F1
which were given by them for stitching. Accused alleg-
edly committed rape on the victims and threatened them
of dire consequences if they disclose the incident. When
the victims did not return home, PW-17, elder brother of :
victims, went to the house of the relatives and found both G
of them. He brought them back and then filed a complaint
.» against both the accused persons. Police investigated the 1
matter and submitted the charge-sheet against them. Trial
Court found them guilty of committing the offence of rape
1161 H
1162 SUPREME COURT REPORTS [2008] 10 S.C.R.
A and sentenced them accordingly. On appeal, the High
Court acquitted them holding that the age of the victims
was more than 16 years and that there was consent.
Hence the present appeal.
Appellant-State contended that the High Court erred
8 in holding that the age of each of the victims was more
than 16 years; and that there was no plea regarding con-
sent and therefore the High Court on its own could not
have made out a case of consent.
c Respondents submitted that the factual scenario
clearly shows consent and the High Court's conclusion
about the age and consent cannot be faulted.
Allowing the appeal, the Court
HELD: 1. PW 16-the teacher referred to the certifi-
0
cates, which indicated that the date of birth of PW 1 was
5.3.1974 and the date of birth of PW2 was 1.2.1974. The
High Court referred to the evidence of the lady doctor PW
24 with reference to the X-Ray report which indicated that
the age of PWs. 1 & 2 fell between 14 to 16 years. The
E High Court observed that there was possibility of two
years variation and therefore it was to be taken that the
victims were more than 16 years of age. So far as the
reasonings of the High Court are concerned they border
on a~surdity. All types of surmises and conjectures have
F been arrived at. Strangely, it was observed by the High
Court that PW16 the Head Master's evidence was to be
discarded on the ground that the date of birth may not
have been recorded on the basis of any medical certifi-
cate or other documentary evidence to show that these
G two girls, the victims, were born on the date as mentioned.
The High Court's conclusions in this regard are not only
fallacious but contrary to the evidence on record. The High
Court recorded a further finding that the two certificates
may not relate to the victims though it specifically re-
H corded that there was no such challenge raised by the
STATE OF KARNATAKA v. BANTARA SUDHAKARA 1163
; @ SUDHA & ANR. [DR ARIJIT PASAYAT, J.]
accused. Additionally, merely because the doctor's evi- A
dence showed that the victims belong to the age group
of 14 and 16, to conclude that two years age has to be
added to the upper age limit is without any foundation.
There was no basis for coming to such a conclusion. In
...; any event, the accused persons did not take the stand that B
there was any consent. (Para 7) [1166-C,D,E,F, 1167-A,B]
State of H.P vs. Shree Kant Shekari (2004) 8 SCC 153 -
relied on.
2. In the facts and circumstances of the case, judg- c
ment of the High Court is clearly unsustainable and set
aside. The judgment of the trial Court is restored. (Para -
8) [1168-E,F]
Case Law Reference
D
(2004) 8 sec 153 relied on. Para 7
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
1
No. 288 of 2001
From the Judgment and final Order dated 7.9.2000 of the
High Court of karnataka at Bangalore in Criminal Appeal No. E
202 or 1995
Sanjay R. Hegde, Amit Kr. Chawla and A. Rohan Singh for
the Appellant.
D.K. Singh and Rajesh Mahale for the Respondents. F
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. State of Karnataka is in ap-
peal against the judgment of the learned Single Judge of the
Karnataka High Court directing acquittal of the respondents who G
were charged for commission of offence punishable under Sec-
tion 376 of the Indian Penal Code (in short the 'IPC').
2. Background facts as projected by prosecution in a nut-
shell are as follows:
H
1164 SUPREME COURT REPORTS [2008] 10 S.C.R.
A P.W.1 and PW2 were residing alongwith their respective
parents at Madenadu and they were working as coolies in the
coffee estate of Pudiyenda Palangappa, Appellant No.2 -(ac-
cused no. 2): is a tailor by profession having his tailoring shop at
Aatekere, On 16-9-1989 at about 9.00 a.m., PWs, 1 & 2 went
B to-the tailoring shop of A-:-2 and requested him to stitch their .,,.
blouses.At that time they gave two blouses of theirs for the pur-
pose of measurement along with new clothes. It is alleged that
A-2 asked them to come on the following day to take delivery of
the blouses if they were stitched. Accordingly, on 17.9.1989
c they both went to the tailoring shop to take delivery of the clothes
when A-2 informed them that the stitching was not over, upon
which both of them asked him to return the blouses given for
measurement. In response to that, A-2 asked them to go to his
house as the blouses were left in his house. Accordingly, both
of them accompanied by A-1 & A-2 went to the house which
0
was nearby. A-1 & A-2 went inside the house and as they did ~
not come out of the house for about 15 minutes, both PWs. 1 &
2 who were waiting outside entered the house. As soon as they
entered the house, A-2 bolted the door and held P. W.2 and A-1
also held PW-I. They were taken to separate rooms and A-1
E committ~d rape on P.W.1 and A-2 committed rape on PW2,
Thereafter, they threatened both of them that they would be
murdered ifthe incident was revealed to anyone, Therefore, they
kept quiet, On18-9-1989 they went to Madikeri to the house of
Chandrakala (P.W.14). Having stayed in tile house of
F Chandrakala on that night, they went to Sulia to the house of the .~
uncle of P.W.2. As the PWs 1 & 2 were not found in their houses,
parents of PWs. 1 & 2 sent Seshappa (PW17) who is the elder
brother of PW 2 to his maternal uncle's house at Sulia. Accord-
ingly, he went to the house at Sulia and found both of them and
G brought them back to Madenadu, Thereafter, they went to
Madikeri Rural Police Station on 21-9-1989 and presented a
written complaint Ex-P-1 signed by P.W.1 which was received _r:..
by P.W.26 at 6.45 p.m. On that day, PW 26 registered a case in
Madikeri Rural Police Station in Cr, No.233/89 and submitted
H FIR as per Ex-P.33. On the next day he sent them for medical
STATE OF KARNATAKA v. BANTARA SUDHAKARA 1165
, @ SUDHA & ANR. [DR ARIJIT PASAYAT, J.]
examination to the District Hospital, Madikeri. PWs. 1 & 2 also A
produced clothes which they were wearing at the time of inci-
dent which were seized. P.W.26 went to the scene of occur-
rence which is the house of A-2 where the alleged rape was
committed on PWs. 1 & 2, He drew up mahazar Ex-P4 in the
_,,
house of PW2 in the presence of panchas and seized broken B
bangles MOs. 8 & 9, He also drew mahazar in the shop of A-2
as per Ex-P3 and seized the clothes given for stitching by PWs.
1 & 2. On 23-9-1989 A-1 was arrested, PW-26 recorded the
statement of A-1 who led them to his house where he drew a
mahazar as per Ex-P.33. Thereafter, further investigation was c
taken up by P.W.24, the Circle Inspector of Police. On 13-11-
1989 A-2 appeared before him with order of anticipatory bail.
His statement was recorded after arresting him. He also pro-
duced clothes that he was wearing at the time of incident from
his house which were seized as per Ex-P.29. Both A-1 & A-2
_,_ D I
were subjected to medical examination, Dr. G. Marulasiddappa
(P.W 25) issued certificate of A-1 as per Ex-P.27 and Dr.
Suryakumar (PW-3) issued certificate of A-2 as per Ex P.6. Af-
ter receipt of the FSL report, he filed a charge sheet. Thereat-
ter, the case was committed to the Court of Sessions, as the
offence alleged against these accused persons is in respect of E
offence punishable under Section 376 exclusively triable by the
Court of Sessions. On receipt of this committal order, the Court
of Sessions, Kodagu District, registered a case (S.C. No.45/
90) and framed charges against the accused for the offence
A punishable under Sec. 376 IPC, and both the appellants de- F
nied the charges and claimed to be tried. To substantiate the
case of the prosecution, it examined 27 witnesses and got
marked Exs-P1 to P.34 and also MOs. 1 to 24.
-( 3. The case of the respondents was that in view of some
G
property dispute, PWs. I & 2 filed a false case against them
_,. and they are innocent.
4. The trial Court found with reference to the evidence on
record, more particularly the documents exhibited by the teacher
of the school (PW 16) that the age of the victims in each case H
1166 SUPREME COURT REPORTS [2008] 10 S.C.R.
A was less than 16 years. Therefore the trial Court held that the
question of consent was irrelevant and immaterial. In appeal,
the High Court held that the age was more than 16 years and
there was consent and accordingly directed acquittal.
5. Learned counsel for the appellant-State submitted that ...
B the High Court has fallen into grave error by holding that the age
of each of the victims was more than 16 years. Further there
was no plea regarding consent and therefore the High Court on
its own could not have made out a case of consent.
c 6. Learned counsel for the respondents on the other hand
submitted that the factual scenario clearly shows consent and
the High Court's conclusion about the age and consent cannot
be faulted.
7. It is to be noted that the teacher-PW 16 referred to the
D certificates which indicated that the date of birth of PW 1 was ....
5.3.1974 and the date of birth of PW2 was 1.2.1974. Exhibits
P.16 & P.17 are the certificates. The High Court referred to the
evidence of the lady doctor PW 24 with reference to the X-Ray
report which indicated that the age of PWs. 1 & 2 fell between
E 14 to 16 years. The High Court observed that there was possi-
bility of two years variation and therefore it w~s to be taken that
the victims were more than 16 years of age. The High Court
accepted that there was sexual intercourse and rejected the
plea of false implication. Thereafter it went on to examine the
F question of consent. So far as the reasonings of the High Court
are concerned they border on absurdity. All types of surmises >
and conjectures have been arrived at. Strangely, it was observed
that PW16 the Head Master's evidence was to be discarded
on the ground that the date of birth may not have been recorded
on the basis of any medical certificate or other documentary
G
evidence to show that these two girls were born on the date as
mentioned. The High Court's conclusions in this regard are not
only fallacious but contrary to the evidence on record. The High
Court recorded a further finding that the two certificates may
not relate to the victims though it specifically recorded that there
H
STATE OF KARNATAKA v. BANTARA SUDHAKARA 1167
i @ SUDHA & ANR. [DR. ARIJIT PASAYAT, J.]
was no such challenge raised by the accused. Additionally, A
merely because the doctor's evidence showed that the victims
belong to the age group of 14 and 16, to conclude that the two
years age has to be added to the upper age limit is without any
foundation. There was no basis for coming to such a conclu-
sion. In any event, the accused persons did not take the stand B
that there was any consent. On the contrary, they pleaded that
they were falsely implicated. In State of H.P v. Shree Kant
Shekari [2004 (8) SCC 153] it was observed as follows:
"The factors which seem to have weighed with the High
Court are (i) the age of the victim, which according to the c
High Court was more than 16 years; (ii) no evidence has
been placed by the prosecution to show that the victim
had not consented to the act; and (iii) the time of alleged
rape as given by the victim and her mother was
+ improbabilised by the medical evidence. A particular D
reference was made to the fact that a child was born on
10.4.1979 and if the alleged rape has been committed
during the period indicated by the victim and her mother
the same would have been altogether different periods.
The delay in lodging the first information report was also E
highlighted to attach vulnerability to the prosecution case.
We shall first deal with the question of age. The radiological
test indicated age of the victim between 1-5 to 16% years.
The school records were produced to establish that her
A
date of birth was 10.4.1979. The relevant documents are F
Ex.PW6/A to PW6/C. The High Court was of the view that
these documents were not sufficient to establish age of
the victim because there was another document Ex. PW?I
A which according to the High Court did not relate to the
victim. Merely because one document which was G
produced by the prosecution did not, according to the
High Court relate to the victim that was not sufficient to
ignore the evidentiary value of Ex.PW6/A to Ex.PW6/C.
These were records regarding admission of the victim to
the school and her period of study. These documents H
1168 SUPREME COURT REPORTS [2008) 10 S.C.R.
A unerringly prove that the date of birth of the victim as per
official records was 10.4.1979. Therefore, on the date of
occurrence and even when the FIR was lodged on
20.11.1993she was about 14 years of age. Therefore,
the question of consent was really of no consequence.
B Even otherwise the High Court seems to have fallen in
grave error in corning to the conclusion that the victim has
not shown that the act was not done with her consent. It
was not for the victim to show that there was no consent.
Factually also the conclusion is erroneous right from the
C beginning that is from the stagewhen the FIR was lodged
and in her evidence there was a categorical statement
that the rape was forcibly done notwithstanding protest by
the victim. The High Court was therefore wrong in putting
burden on the victim to show that there was no consent.
D The question of consent is really a matter of defence by +
the accused and it was for him to place materials to show
.that there was consent. It is significant to note that during
cross examination and the statement recorded under
Section 313 of the Code of Criminal Procedure, 1973 (in
E short the 'Code') plea of consent was not taken or pleaded.
In fact in the statement under Section 313 of the Code the
plea was complete denial and false implication."
8. Above being the position, judgment of the High Court is
clearly unsustainable and set aside. The judgment of the trial
F Court is restored. The respondents shall surrender to custody
to suffer remainder of sentence, if any.
9. Appeal ·is allowed.
S.K.S. Appeal allowed.
-"-
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