It must be noted that in a most significant development pertaining to conviction in consensual sex with a major, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Manak Chand @ Mani vs The State of Haryana in Criminal Appeal No. 2276 of 2014 and cited in Neutral Citation No.: 2023 INSC 959 that was pronounced as recently as on October 30, 2023 has held that based on the conduct of the prosecutrix that the sex, if at all, was consensual and not forced. The Court also held based on evidence that the prosecutrix is not a minor as the secondary sex characteristics of the prosecutrix were well developed. We thus see that the Apex Court most commendably acquitted the convict, who was a relative of the prosecutrix. Speaking for myself, I most strongly feel that sex with any female of any age with her full consent not out of coercion or at gun point unless she is so small or not of sane mind as not to understand anything cannot be ever termed as “rape”!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sudhanshu Dhulia for a Bench of the Apex Court comprising of Hon’ble Mr Justice Sanjay Kishan Kaul, Hon’ble Mr Justice CT Ravi Kumar and himself sets the ball in motion by first and foremost putting forth in para 1 that, “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.”
To put things in perspective, the Bench envisages in para 2 that, “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 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.”
It is worth noting that the Bench notes in para 6 that, “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.”
Be it noted, the Bench notes in para 7 that, “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 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.”
Do note, the Bench notes in para 8 that, “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 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!”
Most significantly, the Bench then propounds in para 11 that, “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.”
Finally and as a corollary, the Bench concludes by holding in para 12 that, “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.”
All told, we thus see that Apex Court rightly acquitted the rape accused and explained in great detail the reasons for doing so. In fairness and in the interest of justice, the Bench sagaciously concluded that 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. The Bench also very rightly pointed out that the prosecution had not done a bone ossification test for the determination of the age of the prosecutrix. So it was but quite natural that the Apex Court had to acquit the accused! No denying it!
Sanjeev Sirohi
