Reyaz Ahmad @ Chunnu vs The State Of Bihar on 25 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1521 of 2017
Arising Out of PS.Case No. -41 Year- 2011 Thana -MADHEPUR District- MADHUBANI

1. Reyaz Ahmad @ Chunnu Son of Md. Doud, Resident of Pachhi, P.S.-
Madhepur, District- Madhubani.

… …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Dr. Rajesh Kumar Singh, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

5 25-08-2017 Sole appellant, Reyaz Ahmad @ Chunnu has been

found guilty for an offence punishable under Section 376 IPC and

sentenced to undergo RI for 4 years as well as to pay fine

appertaining to Rs. 10,000/ in default thereof, to undergo RI for 6

months additionally, is under custody on account thereof, a prayer

for bail has been made suspending the sentence till pendency of

instant appeal in accordance with Section 389(1) CrPC.

2. Victim (PW5) shown herself to be aged about 17

years alleged that she along with appellant being co-villager

known to each other and were on visiting terms and during said

course, appellant had offered a proposal to marry and giving full

assurance thereto, developed physical relationship as a result of

which, she became pregnant. Just after coming to know about her

status, she disclosed to the appellant and further requested to
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marry which, the appellant/accused declined as well as an assault

was also inflicted upon her.

3. Learned counsel for the appellant has submitted

that the victim was at the verge of majority and so, would have

been fully aware with the event of physical relationship and in

likewise manner, the ultimate result, pregnancy. The narration of

incident speaks a lot, that of consenting party, which she being

major, was competent to endorse, hence no offence under Section

376 IPC is made out nor such kind of prospect did visualize.

Furthermore, it has also been submitted that evidence of doctor

(PW 6) indicating age of victim to be 16-17 years carries variance

of plus minus two years whereunder, the status of the victim

happens to be major and being a consenting party, the judgment in

its present form would not prevail. To substantiate such plea,

learned counsel for the appellant also referred order dated

23.09.2010 passed in CrWJC No. 991/2010 which is based upon

the case of Jaimala V. Home Secretary, Govt. of Jammu and

Kashmir reported in AIR 1982 SC 1297.

4. Learned APP opposed the prayer and submitted

that the female folk, residing at remote places being illiterate,

simpleton, is always found subject to sexually exploitation by

cunning lecherous fellow on one pretext or other and that being so,
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the appellant does not deserve bail.

5. The mode of ascertainment of age of victim

initially taken up by way of medical examination has been

deprecated by the Hon’ble Apex Court and during course thereof,

the earlier judgment passed by the Hon’ble Apex Court in Jaimala

V. Home Secretary, Govt. of Jammu and Kashmir reported in

AIR 1982 SC 1297 has also been taken note of in the case of

Jernail Singh v. Haryana 2013 Cr.L.J. 3976 and have directed

under para-20 that the age of victim should also be determined by

exercising the same process whereunder the age of juvenile in

conflict with law is determined. For better appreciation paragraph-

20 is quoted herein below:-

“20. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12
of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as the
2007 Rules). The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile Justice
(Care and Protection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under :

12. Procedure to be followed in determination
of Age.? (1) In every case concerning a child or a
juvenile in conflict with law, the court or the Board
or as the case may be the Committee referred to in
rule 19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making
of the application for that purpose.

(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case
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may be the juvenile in conflict with law, prima facie
on the basis of physical appearance or documents, if
available, and send him to the observation home or in
jail.

(3) In every case concerning a child or juvenile
in conflict with law, the age determination inquiry
shall be conducted by the court or the Board or, as
the case may be, the Committee by seeking evidence
by obtaining .

(a) (i) the matriculation or equivalent
certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which
will declare the age of the juvenile or child. In case
exact assessment of the age cannot be done, the Court
or the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year.

and, while passing orders in such case shall,
after taking into consideration such evidence as may
be available, or the medical opinion, as the case may
be, record a finding in respect of his age and either of
the evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
the juvenile in conflict with law.

(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of
the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the
Committee shall in writing pass an order stating the
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age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules
and a copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of section
7A, section 64 of the Act and these rules, no further
inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of
this rule.

(6) The provisions contained in this rule shall
also apply to those disposed off cases, where the
status of juvenility has not been determined in
accordance with the provisions contained in sub-
rule(3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.

Even though Rule 12 is strictly applicable only
to determine the age of a child in conflict with law,
we are of the view that the aforesaid statutory
provision should be the basis for determining age,
even for a child who is a victim of crime. For, in our
view, there is hardly any difference in so far as the
issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it would
be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW-
PW6. The manner of determining age conclusively,
has been expressed in sub-rule (3) of Rule 12
extracted above. Under the aforesaid provision, the
age of a child is ascertained, by adopting the first
available basis, out of a number of options postulated
in Rule 12(3). If, in the scheme of options under Rule
12(3), an option is expressed in a preceding clause, it
has overriding effect over an option expressed in a
subsequent clause. The highest rated option available,
would conclusively determine the age of a minor. In
the scheme of Rule 12(3), matriculation (or
equivalent) certificate of the concerned child, is the
highest rated option. In case, the said certificate is
available, no other evidence can be relied upon. Only
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in the absence of the said certificate, Rule 12(3),
envisages consideration of the date of birth entered,
in the school first attended by the child. In case such
an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
Yet again, if such a certificate is available, then no
other material whatsoever is to be taken into
consideration, for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the concerned
child, on the basis of medical opinion.

6. In the case of Mahadeo v. State of Maharashtra

as reported in (2013) 14 SCC 637 wherein it has been held as

follows:-

11. Though the learned counsel for the
appellant attempted to find fault with the said
conclusion by making reference to the evidence of
PW 8, the doctor, who examined the prosecutrix and
who in her evidence stated that on her examination
she could state that the age of the prosecutrix could
have been between 17 to 25 years, it will have to be
held that the rejection of the said submission even by
the trial court was perfectly in order and justified. The
trial court has found that to rely upon the said version
of PW 8, the doctor, scientific examination of the
prosecutrix such as ossification test to ascertain the
exact age should have been conducted which was not
done in the present case, therefore, merely based on
the opinion of PW 8, the age of the prosecutrix could
not be acted upon.

12. We can also in this connection make
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reference to a statutory provision contained in the
Juvenile Justice (Care and Protection of Children)
Rules, 2007, where under Rule 12, the procedure to
be followed in determining the age of a juvenile has
been set out. We can usefully refer to the said
provision in this context, inasmuch as under Rule
12(3) of the said Rules, it is stated that:

“12. (3) In every case concerning a
child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the court
or the Board or, as the case may be, by the committee
by seeking evidence by obtaining–

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;”

Under Rule 12 (3) (b), it is specifically provided that
only in the absence of alternative methods described
under Rules 12 (3) (a) (i) to (iii), the medical opinion
can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile,
in our considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
ascertaining the age of a victim as well.

13. In the light of our above reasoning , in the case
on hand, there were certificates issued by the school
in which the prosecutrix did her Vth standard and in
the school leaving certificate issued by the said
school under Exhibit 54, the date of birth of the
prosecutrix has been clearly noted as 20.05.1990, and
this document was also proved by PW 11. Apart
from that the transfer certificate as well as the
admission form maintained by the Primary School,
Latur, where the prosecutrix had her initial
education, also confirmed the date of birth as
20.05.1990. The reliance placed upon the said
evidence by the courts below to arrive at the age of
the prosecutrix to hold that the prosecutrix was below
18 years of age at the time of the occurrence was
perfectly justified and we do not find any good
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grounds to interfere with the same.

7. In State of Madhya Pradesh v. Anoop Singh as

reported in (2015) 7 SCC 773, the same principle has also been

followed by the Hon’ble Apex court as held in the case of

Mahadeo v. State of Maharashtra (supra).

8. Though that chapter is found reached at its

finality, therefore, for the present purpose, it could be said that the

evidence of victim is to be taken cared of as she had not been

challenged over her status, being major as well as consenting

party. Wherever there happens to be indulgence in physical

relationship amongst two opposite sex being consensual then in

that event, the intention of the party is to be taken note of along

with status. If the appellant/accused had affirmation in his

undertaking, then in that event, some sort of relaxation is found

that too, when the female is properly identified as major.

Otherwise, when the offer is found soaked with deceitful activity

exposing the intention of the accused that he was not at all

inclined to marry rather projecting himself procured consent

developed physical intimacy then in that event, certainly, he would

be liable for rape. Consent on that very pretext would not be a

valid consent, more particularly, when the victim happens to be
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minor.

9. That being so, prayer for bail is rejected.

10. In case, appeal is not taken up for hearing within

one year, then in that event, the appellant would be at liberty to

renew his prayer for bail.

(Aditya Kumar Trivedi, J)
perwez

U T

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