LexSTATE OF KARNATAKA versus BANTARA SUDHAKARA @ SUDHA & ANR.
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[2008] 10 S.C.R. 1161 STATE OF KARNATAKA V. BANTARA SUDHAKARA @ SUDHA & ANR. (Criminal Appeal No. 288 of 2001) JULY 18, 2008 [DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ.] Penal Code, 1860; s. 376: A B Rape of minor girls - Certificates produced by Headmas- C ter of School showing age of the prosecutrix less than 16 years 1 - 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 1 F 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 0 HELD: 1. PW 16-the teacher referred to the certifi- 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 (2004) 8 sec 153 relied on. Para 7 CRIMINALAPPELLATE JURISDICTION: Crimin
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