Uday Umesh Lalit, J.

Leave granted.

This appeal by special leave challenges the Judgment and Order dated 13.10.2015 passed by the High Court of Madras in Criminal Revision Case No.383 of 2015. In order to avoid any identification of the victim, we have transposed the original respondent No.1 namely, the Complainant as respondent No.2 and the State is now shown as respondent No.1 in the matter.

Pursuant to complaint by the complainant, FIR vide Crime No.5/2010 was initially registered under Sections 417 and 506(ii) IPC on 26.03.2010 with Old Washermenpet Police Station, Chennai against the appellant, his father, mother and uncle. After carrying out necessary investigation, charge- sheet dated 18.11.2010 was filed against the appellant under Section 376 IPC and against his parents and uncle under Sections 417 read with 109 IPC and 506(ii) IPC . It was alleged that the 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 of appellant later changed and they refused to perform the marriage. It was alleged that the appellant thus committed offence under Section 376 IPC while his family members were guilty of offence under Sections 417 read with 109 IPC and 506(ii) IPC .

Appropriate charges under the aforesaid Sections having been framed, Criminal O.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-1. In her examination-in-Chief she deposed:

The trial court thereafter postponed the issue of juvenility 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 Court and by Order dated 8.12.2014 it directed:

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:

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 [1]. On the other hand, Mr. Aditya Kumar Choudhary, learned Advocate appearing for the complainant relied on decision of this Court in Karthi alias Karthick v. State of Tamil Nadu [2] and submitted that the High Court was justified in remitting the matter for fresh consideration.

10. The law on the point is well settled and succinctly stated in Ashwani Kumar’s case (supra) where this Court after taking into consideration relevant statutory provisions observed in paragraphs 32 to 34 as under:-

11. 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 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, 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 enough 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.

12. The learned counsel for the respondent however relies on the decision of this Court in Karthi (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 Karthi (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 the offence under Section 376 would consequently change. The date of the incident remaining constant, the principle in Karthi (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 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.

..……..………………..J. (Pinaki Chandra Ghose) ..………………………J. (Uday Umesh Lalit) New Delhi, January 6, 2017

-----------------------