In a significant ruling, the Supreme Court of India has held that a birth certificate issued by a competent statutory authority holds greater evidentiary value than a school admission certificate when determining the age of a prosecutrix. The Court further clarified that the presence of smegma on the accused’s penis during a medical examination is not conclusive proof that sexual intercourse did not occur, particularly when the examination takes place days after the alleged incident.
The Division Bench, comprising Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi, dismissed the appeal filed by Kuldip Singh, upholding his conviction under Sections 366 and 376 of the Indian Penal Code (IPC) for kidnapping and rape.
Background of the Case
The case dates back to July 21, 1993, when the prosecutrix went missing after leaving for school. A complaint was lodged on July 25, 1993. She was recovered on August 2, 1993, in the company of the appellant, Kuldip Singh. Following an investigation, a charge-sheet was filed.
The Trial Court, basing its decision on the evidence of the prosecutrix and other material, convicted Singh under Sections 366 and 376 of the IPC. He was sentenced to seven years of rigorous imprisonment for the offence of rape and six months for kidnapping. The High Court of Punjab and Haryana subsequently dismissed his appeal, affirming the conviction and sentence. Singh then approached the Supreme Court challenging these concurrent findings.
Arguments of the Parties
The appellant contended that the prosecutrix was over 16 years of age at the time of the occurrence, citing her School Certificate which recorded her date of birth as April 1, 1977. The defence argued that in view of the “abundance of evidence showing the consent of the prosecutrix,” the conviction under Section 376 IPC was unsustainable.
Furthermore, the appellant relied on the medical evidence of Dr. Subash Chander (PW-2), who examined him on August 3, 1993. The doctor noted the presence of smegma on the appellant’s penis. The defence argued that this raised a presumption that the appellant had not committed sexual intercourse.
Per contra, the learned counsel for the State submitted that the consent of the prosecutrix “pales into insignificance” as the birth certificate proved she was under 16 years of age.
Court’s Analysis: Birth Certificate vs. School Record
The Supreme Court examined the original record of the Trial Court, specifically the birth certificate (Ex.PX) issued by the Additional District Registrar, Birth and Death, Jalandhar. This document recorded the prosecutrix’s date of birth as November 28, 1977, with the registration date being December 10, 1977. The Court noted that the birth was informed to the authority within 12 days.
In contrast, the defence relied on a school admission certificate showing the date of birth as April 1, 1977. The defence examined Vijay Kumar (DW-1), the school headmaster, who signed the certificate. However, the Court observed that the identity of the guardian who submitted the admission form was unknown. Furthermore, there was no record indicating that DW-1 had personal knowledge of the date of birth derived from her parents.
Upholding the lower courts’ reliance on the statutory birth certificate, the Bench observed:
“When the school admission certificate carrying date of birth of the prosecutrix is contrasted with the birth certificate issued by the competent statutory authority, the birth certificate has more evidentiary value and unless there are compelling reasons, the said date of birth mentioned in the birth certificate cannot be ignored.”
The Court cited its previous decision in Birad Mal Singhvi vs. Anand Purohit, reiterating that an entry regarding age in a school register has “not much evidentiary value” in the absence of the material on which the age was recorded.
Medical Evidence: Presence of Smegma
Addressing the argument regarding the presence of smegma, the Court noted that the appellant and the prosecutrix had stayed together for about 12 days, from July 21, 1993, to August 2, 1993. The medical examination took place on August 3, 1993.
The Bench explicitly observed that “there is no evidence on record as to the date on which sexual intercourse was committed for the last time.”
The Court rejected the defence’s contention, citing Modi’s Medical Jurisprudence and Toxicology, which states:
“Nevertheless, the presence of smegma as proof against sexual intercourse is not of any medico-legal value, as legally, if the penis touches the vulva, it is enough to constitute rape… The smegma accumulates if no bath is taken for 24 hours.”
The Court further observed:
“The presence of smegma over the penis of the appellant does not constrain him from committing coitus, and even mere penetration into the vulva also constitutes rape… In these circumstances, discrediting the whole commission of sexual intercourse solely on the basis of presence of smegma on the day of examination, is not warranted.”
Sentencing and Decision
The appellant made a final plea for the reduction of his sentence to the period already undergone, citing that the offence occurred over 32 years ago and that he is now a married man of about 50 years.
The Court rejected this plea, stating:
“As on the date of occurrence, the minimum sentence provided under section 376 of the IPC was seven years, therefore, it is not possible to reduce the sentence to less than minimum sentence provided under the statute.”
The Supreme Court dismissed the appeal and granted the appellant, who is currently on bail, four weeks to surrender, failing which he “shall be taken into custody.”
