SRI GANESH versus STATE OF TAMIL NADU AND ANR.
[2017] 1 S.C.R. 278, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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(2017) I S.C.R. 278 
SRI GANESH 
v. 
STATE OF TAMIL NADU AND ANR. 
(Criminal Appeal No. 39 of20l7) 
JANUARY 06, 20 I 7 
(PINAKI CHANDRA GHOSE AND 
UDAY UMESH LALIT, JJ.] 
·' 
Penal Code, 1860: s.376- Sexual intercourse on false promise 
of marriage - Allegation of victim that the appellant-accused 
committed sexual intercourse 5-6 times on false promise of marriage'.... 
In her cross examination, victim gave last date of sexual intercourse 
as August 2009 - Appellant took plea of being juvenile on that 
date - Trial court after considering relevant material on record 
' 
declared the appellant to be juvenile on the last date of incident -
Revision petition of complainant allowed by High Court and matter 
remitted to trial court 011 the ground that the trial court ought to 
have considered the expert opinion obtained from a medical officer 
to determine the age of accused - Held: The question of obtaining 
medical opinion arises only if the documents are not available -
Trial court took into account the documentary evidence as 
contemplated in the statutory provisions - Jn the face of the relevant 
documentary e11ide11ce, there could be no medical examination to 
ascertain the age '!(the appellant and as such the consequential 
directions passed by the High Court were, completely unwarranted -
Trial court was therefore justified in going by the assertions made 
by the l'ictim in her cross examination and then considering whether 
the appellant was
juvenile on that date or not. 
Allowing the appeal, the Court 
HELD: 1. In the present case, the trial court took into 
account the documentary evidence as contemplated in the 
statutory provisions and returned a finding that the date of birth 
of the appellant was 19.10.1991. During tbe course of its 
judgment, the High Court could not find such conclusion to be 
vitiated on any ground. In the face of the relevant documentary 
evidence, there could be no medical examination to ascertain 
the age of the appellant and as such the consequential directions 
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SRI GANESH v. STATE OF 1AMIL NADU AND ANR. 
passed by tbe High Court w.ere completely unwarranted. Further, 
if the allegations of the prosecution are that' the offence under 
Section 376 IPC was committed on more than one occasion, in 
order to see whether the appellant was juvenile or not, it is enongh 
to see if he was juvenile on the date when the last of such incidents 
had occurred. The trial court was therefore justified in going by 
the assertions made by the victim in her cross examination and 
then considering whether the appellant was juvenile on that date 
or not. The approach of the High Court in the present case was· 
incorrect and completely misdirected. Even if the matter is 
remanded back to the High Court for fresh consideration, it would 
be an empty formality in the face of finding of faet rendered by 
the trial court. The view taken by· the trial court is restored. (Paras 
11, 13 J [284-C-E, H; 285'A-Bj' 
Ash~>ani Kunwr Saxe'!ay. S/qte of Madhya Pradesh 
(2012) 9 SCC 750 : [20.12] 10 SCR 540 - relied on . 
. I'-• 
Karthi alias Karthick V. State of Tamil Nadu (2013) 12 
SCC 710 : [20131 8 SCR 1012- distinguished. 
[20121 10 SCR 540 
[20131 8 SCR 1012 
Case Law Reference 
relied on 
distinguished 
Para9 
Para9 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 39 of2017. 
· 
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From the Order dated 13. I 0.2015 by the High Court of Judicature 
at Madras in Criminal Revision No. 383 of2015. 
A. Ramesh, Sr. Adv., R. Anand Padmanabhan, L. Arun, Ms.
Ananya Mukherjee (For Shashi Bhushan Kumar), Advs. fortheAppell;mt. 
Aditya Kumar Choudhary, Velu Murugan, U. S. Dhindsa, Ms. 
Namita Choudhary, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
UDAY UMESH LALIT, J. I. Leave .granted .. 
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2. This appeal by special leave challenges .the Judgment and 
Order dated .13.l 0.2015 passed by the High Co.urtofMadras in Criminal 
Revision Case No.383 of2015. In order to avoid any identification of 
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[2017] 1 S.C.R. 
the victim, we have transposed the original respondent No. I namely, the 
Complainant as respondent No.2 and the State is now shown as 
respondent No. I in the matter. 
3. Pursuant to complaint by the complainant, FIR vi de Crime 
· No.5/2010 was initially registered under Sections 417 and 506(ii) IPC on 
26.03.20 I 0 with Old Washermenpet Police Station, Chennai against the 
appellant, his father, mother and uncle. After carrying out necessary 
investigation, chargecsheet dated 18.11.20 I 0 was filed against the 
appellant under Section 376 IPC and against his parents and unC!e under 
Sections 417 read with 109 IPC and 506{ii) IPC. It was alleged thatthe 
appellant had become friendly with the victim while they had reached 
10+2 standard; that this fact was known to the family of the appellant 
who treated the victim as their daughter-in-law; that the appellant had 
committed sexual intercourse with the victim on 5 to 6 occasions; and 
that the behavior of the family ofappellant later changed and they refused 
to perfonn the marriage. It was alleged that the appellant thus committed 
offence under Section 376 !PC while his family members were guilty of 
·offence under Sections 417 read with I 09 !PC and 506(ii) !PC . 
. 4. Appropriate charges under the aforesaid Sections having been 
framed, Criminal 0.P. No.9823 of 2011 was filed in the High Court 
seeking quashing of those charges. The High Court by its
Order dated 
20.06.2012 quashed the charges as against the parents and uncle of the 
appellant but dismissed the challenge raised by the appellant. 
Consequently the trial proceeded only against the appellant for the 
offence punishable under Section 376 IPC. On 18.09.2012, the victim 
deposed before the trial court as PW-I. In her examination-in-Chief 
she deposed: 
" .................. .! finnly believed that the accused and his 
family will not leave me and our marriage would definitely 
solemnize. After this the accused forced me and had intercourse 
with me 5 to 6 times." 
The victim however in her examination in chief did not give any 
probable period or time when the intercourse had last taken place. In 
her cross-examination conducted on 06. I 0.2012, to a pointed query she 
answered, "We had intercourse finally in August, 2009". 
5. At that juncture, the cross-examination of the victim was stopped 
and a plea ofjuvenility of the appellant was raised. It was submitted that
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 
[UDAY UMESH LAUT, J.] 
going by the assertions of the victim, the appellant was definitely a juvenile 
on the alleged dates of occurrence. Criminal M.P. No.10872 of2012 
under Section 7A of the Juvenile Justice (Care and Protection of Children) 
Act, 2000 (hereinafter referred to "the Act") was also filed praying that 
the age of the appellant be determined in terms of the provisions of the 
Act and the Rules framed thereunder. The complainant was also allowed 
to make her submissions. After hearing the parties, the Court posted the 
application for pronouncement of Orders on 04.12.2012. However, on 
28.11.2012 an application under Section 216 ofCr.P.C. was filed by the 
prosecution for adding charge under Section 41 7 against the appellant. 
The request for addition of the charge was dismissed by the trial court 
which order was affirmed by the High Court by its ·order dated 
15.02.2013. The complainant challenged the orderof the High Court by 
filing SLP(Crl.)No. 1899 of2013 which was dismissed by this Court on 
12.08.2014. 
6. The trial court thereafter postponed the issue ofjuvenility to be 
considered at the stage of final determination of the matter, which order 
was challenged by the appellant by filing petition under.Section 482 of 
. Cr.P.C. The challenge was accepted by the High ,_<::ourt and by Order 
dated 8.12.2014 it directed: 
"The learned Ill Additional Sessions Judge shall "first decide the 
claim of juvenility
raised by the petitioner herein and then to proceed 
with further in accordance with law. At any rate, appropriate 
decision on the claim ofjuvenility shall be made within a period of 
30 days as provided in Rule SB of the Tamil Nadu Juvenile Justice 
(Care and Protection of Children) Rules, 2001 from the date of 
receipt of the records from the trial court." 
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7. The matter was then heard by the trial court which after 
considering the relevant material on record.declared the appellant to. be 
·juvenile in conflict with law under Section 7 A of the Act. The trial court 
found the date of birth of the appellant to be 19 .10.1991. Going by the 
assertions made by the victim that the. sexual intercourse betweel) them 
lastly occurred in the month of August, 2009, the trial court found" that on 
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the date of occurrence, the appellant was a juvenile. Concluding thus, 
the trial court directed: 
"29. Finally, this court allows the above Petition Crl.0.P.No. l 0872/ 
2012 and decides that the offender was a Juvenile on the date of 
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30. As the offender on the date of occurrence of offence was a 
juvenile, the present case can be decided only by the Juvenile 
Board and this court orders transfer of the S.C.130/2011 to the 
Juvenile Board." 
8. The complainant being aggrieved, challenged the aforesaid 
determination by filing Criminal Revision Case No.383 of2015 in the 
High Court of Madras. The High Court by its Judgment and Order 
dated 13.10.2015 allowed said criminal revision and remitted the matter 
back to the trial court for fresh consideration. It was observed: 
"It is evident that the trial court has not determined the correct 
age of the second respondent/accused or the date of occurrence 
in the facts and circumstances of the case. The trial court also 
did not take note of the fact that the offence alleged to have been 
committed was a continuing offence. The trial court also did not 
consider the expert opinion obtained from a Medical Officer to 
determine the age of the second respondent/accused. The trial 
court has also not ascertained correctly the date on which the 
first occurrence took place and the last occurrence committed by 
the accused/second respondent herein. The trial court was carried 
away by an admission made by the complainant during the course 
of cross-examination." 
' 
9. Appearing for the appellant in support of the appeal, Mr. A. 
Ramesh, learned Senior Advocate submitted that
the determination of 
age of a juvenile has to be principally on the basis of documentary 
evidence and only in the absence of such documentary evidence, medical 
opinion could be pressed into service. In his submission the High Court 
was completely in error in setting aside the view taken by the trial court 
and in remitting the matter for fresh consideration. Reliance was placed 
on the judgment of this Court in Ashwani Kumar Saxena v. State of 
Madhya Pradesh'. On the other hand, Mr. Aditya Kumar Choudhary, 
learned Advocate appearing for the complainant relied on decision of 
. 
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this Court in Kartlli alias Karthick v. State of Tamil Nada' and 
submitted that the High Court was justified in remitting the matter for 
fresh consideration. 
1 (2012)9 sec 1so 
'(2013) 12 sec 110
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 
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[UDAY UMESH LAUT, J.] 
I 0. The law on the point is well settled and succinctly stated in 
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Ashwani Kumar's. case (supra) where this Court after taking into 
consideration relevant statutory provisions observed in paragraphs 32 to 
34 as under:-
"32. "Age determination inquiry" contemplated under Section 7-
A of the Act read with Ruic 12 of the 2007 Rules enables the 
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court to seek evidence and in that process, the court can obtain 
the matriculation or equivalent certificates, if available. Only in 
the absence of any matriculation or equivalent certificates, the 
court needs to obtain the date of birth certificate from the school 
first attended other than a play school. Only in the absence of 
matriculation or equivalent certificate or the date of birth certificate 
from the school first attended, the court needs to obtain the birth 
certificate given by-a corporation or a municipal authority or a 
panchayat (not an affidavit but certificates or documents). The 
question of obtaining medical opinion from a duly constituted 
Medical Bo.ard arises only if the abovementioned documents are 
unavailable. In case exact assessment of the age cannot be done, 
then the court, for reasons to be recorded, may, if considered 
necessary, give the benefit to the child or juvenile by considering 
his or her age on lower side within the margin of one year. 
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33. Once the court, following the abovementioned procedures, . E 
passes
an order, that order shall be the conclusive proof of the 
age as regards such child or juvenile in conflict with law. It has 
been made clear in sub-rule (5) of Rule 12 that no further inquiry 
shall be conducted by the court or the Board after examining and 
obtaining the certificate or any other documentary proof after 
referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ 
Act also draws a presumption of the age ofthejuvenility on its 
determination. 
34. Age determination inquiry contemplated under the JJ Act and 
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the 2007 Rules has nothing to do with an enquiry under other 
legislations, like entry in service, retirement, promotion, etc. There 
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may be situations where the entry made in the matriculation or 
equivalent certificates, date of birth certificate from the school 
first attended and even the birth certificate given by a corporation 
or a municipal authority or a panchayat may not be correct. But 
court, Juvenile Justice Board or a committee functioning under 
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the JJ Act is not expected to conduct such a roving enquiry and to 
go behind those certificates to ·examine the correctness of those 
documents, kept during the normal course of business. Only in 
cases where those documents or certificates are found to be 
fabricated or manipulated, the court, the Juvenile Justice Board 
or the committee need to go for medical report for age 
determination." 
IL In the present case the trial court took into account the 
documentary evidence as contemplated in the statutory provisions and 
returned a finding that the date of birth of the appellant was 19. l 0. 1991. 
During the course of its judgment the High Court could not find such 
conclusion to be vitiated on any ground. In the face of the relevant 
documentary evidence, there could be no medical examination to 
ascertain the age of the appellant and as such the consequential directions 
passed by the High Court were completely unwarranted. Further, ifthe 
allegations of the prosecution are that the offence under Section 376 
IPC was committed on more than one occasion, in order to see whether 
the appellant was juvenile or not, it is enough to see if he was juvenile on 
the date when the last of such incidents had occurred. The trial court 
wa~ therefore justified in going by the assertions made by the victim in 
her cross examination and then considering whether the appellant was 
juvenile on that
date or not 
12. The learned counsel for the respondent'l1owever relies on the 
decision of this Court in Kart/ti (supra). In that case the accused had 
·repeatedly engaged in consensual sexual intercourse with prosecutrix 
on different dates on promises of marriage. After having found that the 
promises were false, the prosecutrix had lodged a complaint asserting 
her exploitation on certain previous dates. While considering the delay 
in reporting the matter to the Police, this Court found that it was only 
after the accused had declined to marry the prosecutrix that a different 
dimension came to be attached to their relationship and thus there was 
. no delay in registration of FIR. The decision in Kart/ii (supra) stands on 
a completely different point and cannot be pressed into service to say 
that because the appellant had refused to marry the victim, the date of 
ihe offence under Section 376 would consequently change. The date of 
the incident remaining constant, the principle in Kartl1i (supra) will be of 
assistance only in getting over the aspect of delay in lodging the FIR. 
13. We thus find that'the' approach of the High Court in the
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 
[UDAY UMESH LALIT, J.) 
present case was incorrect and completely misdirected. Even if we 
were to remand the matter back to the High Court for fresh consideration, 
in our view it would be an empty formality in the face of finding of fact 
rendered by the trial court. We, therefore, allow this appeal and set 
aside the Judgment and Order under appeal. The view taken by the trial 
court is restored and the matter stands disposed of in terms of the 
directions issued by the trial court as stated above. 
14. The appeal is allowed in aforesaid terms. 
Devika Gujral 
Appeal allowed. 
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