Sunil vs State Of Haryana

the matter to the police and lodged a first information report.

The prosecutrix was traced out by the police on 6th

September, 1996. Bishan PW8 suspected that the appellant

Sunil had abducted his daughter.

5. The appellant, Sunil belonged to the same Caste and

Gotra of the prosecutrix and he was visiting the house of the

prosecutrix frequently. The finding of the High Court is that

the prosecutrix fell in love with the appellant. The High

Court also found that she did not ever resist her being

repeatedly deflowered by the appellant.

6. It is the case of the prosecution that on the relevant

date the appellant asked the prosecutrix to accompany him

but she declined to oblige. Thereafter, the appellant held out

a threat that if she resisted his request, he could do

2 anything to the prosecutrix. Thereafter, the prosecutrix

accompanied the appellant to Kalka Madlya. The appellant

left her there for some time and went elsewhere. He

returned to the house at night. At that time, she was asleep

on the roof of the house. It was then the appellant Sunil

raped her. He left the house in the morning along with the

prosecutrix on a cycle. When they reached a particular

place, the appellant Baldev and one Jhangi took the

prosecutrix to a village where they stayed for the night to

return to Rewari the following day. Baldev left the

prosecutrix in village Kalka Madlya where the appellant

raped her in the morning.

7. The prosecutrix on 6.9.1996 was examined by Dr.

Sadhna Verma, PW1. She opined that in view of the clinical

examination, she found no mark of injury on her body. She

found that her secondary sex characters were well-

developed. She carried out a local examination and her

opinion is as under:-

"Local Examination

Labia Majora was well developed. Pubic hair were present. Carunculae

3 myrinates formis was present. Vagina admitting two fingers. Uterus was normal and retroverted, furnaces free. Two vaginal swabs were taken and were sent for chemical analysis for semen detection. Two vaginal smears were prepared and were sent for chemical examination for semen detection.

For her age verification, she was referred to dental surgeon and radiologist opinion."

8. Dr. Verma, after clinical examination of the

prosecutrix, categorically observed that possibility cannot be

ruled out that the prosecutrix Pinki was habitual to sex. In

her report, she also stated that keeping in view the clinical

examination, the possibility of rape cannot be ruled out.

9. Dr. Chandrashekhar, PW2 had medico legal

examination of the appellant Sunil and found that he had

the ability to perform sexual intercourse.

10. Chander Parkash Sharma, Office Superintendent, PW3,

Satish Public Senior Secondary School, Rewari made a

record-based statement and proved school leaving certificate

pertaining to the prosecutrix. He also identified the

signature of the Principal and averred that the date of birth

4 of the prosecutrix as recorded in the school leaving

certificate is 13.2.1983.

11. The appellant submitted before the court that he has

been falsely implicated. No defence evidence was adduced

on behalf of the appellant. Admittedly, no test identification

parade was conducted in this case.

12. The trial court on the basis of evidence on record came

to the conclusion that the appellant kidnapped a minor girl

and induced her to go to village Kalka Madlya and

committed rape on her and convicted the appellant. The

High Court also found that offences under section 363, 366A

and 376 IPC are proved against the appellant. The appellant

aggrieved by the impugned judgment has preferred this

appeal on various grounds.

13. The appellant placed reliance on the following findings

of the High Court and submitted that no offence whatsoever

can be attributed to the appellant. The said findings in the

impugned judgment are quoted as under:-

"There can be no dispute with the proposition that the prosecutrix was

5 otherwise a consenting party to her being taken away and also the violation of her person by Sunil. It is evident from her statement under Section 164 Cr.P.C. in the course whereof, she categorically averred that she was in love with the appellant Sunil. She does not aver that she ever resisted her being repeatedly deflowered by appellant Sunil."

14. The appellant submitted that on medical examination

Dr. Sadhna Verma, PW1 had found that the secondary sex

characters of the prosecutrix were well-developed which lead

to the conclusion that she was not a minor girl.

15. According to the appellant, the prosecution has failed

to prove that Pinki was minor at the time of the incident.

The prosecution did not produce any Admission Form of the

School. The School Leaving Certificate was obtained from

the school after the incident. As per the prosecution, the

prosecutrix was admitted in the school few months before,

i.e., on 12.4.1996 and remained in school upto 12.9.1996

(inclusive of summer vacation). As per prosecution version,

she joined in the middle of the session and left in the middle

of the session. The attendance in the school of 100 days in

ex-facie false. There is no reason why she was removed from

6 the school and was forced to do household work in other

houses. The appellant urged that all these facts create some

suspicion regarding genuineness of the School Leaving

Certificate particularly when the same was admittedly

procured after several days of filing of the first information

report.

16. The prosecution examined Chandra Prakash Sharma,

PW3 with regard to the School Leaving Certificate. The

prosecutrix was admitted in the school by Ashok Kumar, her

brother. The said Ashok Kumar was not examined by the

prosecution. According to the prosecution, this is again a

serious lapse in the prosecution version.

17. Mr. Sushil Kumar Jain, the learned counsel appearing

for the appellant vehemently asserted that the prosecution

has deliberately withheld and suppressed the material

evidence from the court. He also submitted that Dr. Sadhna

Verma PW1's, who had examined the prosecutrix,

specifically referred the prosecutrix to the Dental Surgeon

and the Radiologist for ascertaining their opinion regarding

the age of the prosecutrix, but the prosecutrix was neither

7 referred to the Dental Surgeon nor to the Radiologist or both

these opinions were withheld from the court. According to

the appellant, this is a serious lacuna in the prosecution

version and it castes suspicion on the prosecution version.

18. Mr. Jain also submitted that the municipal record

regarding the age of the prosecutrix was also suppressed

from the court. According to him, the primary evidence in

this case was the municipal record, where the date of birth

of the prosecutrix was recorded, but this has been

suppressed from the court. The entry regarding the date of

birth of the prosecutrix Pinki would have revealed her

correct age which has not been produced.

19. He placed reliance on a Privy Council judgment in T.S.

Murugesan Pillai v. M. D. Gnana Sambandha Pandara

Sannadhi AIR 1917 PC 6 at page 8 wherein it was held as

under:-

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing according to furnish to the Courts the best material for

8 the decision. With regard to third parties, this may be right enough, they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the case by the first witness that "the mutt has regular fair day-books; they are not now before the Court; ledgers are also maintained in the mutt." These ledgers and day-books were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The proposition that these defendants challenged was that the expenses incurred had been incurred for the mutt and were necessary for its purposes. The best assistance to a Court of Justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view the defendants would have brought them into Court. This part of the case, which in their Lordships' view is of considerable importance, is not referred to in the High Court. Their Lordships will humbly advise His Majesty that this appeal should be allowed, the decree of the High Court set aside, the decree of the Court of the Subordinate Judge restored."

9 20. According to him, this judgment of the Privy Council

has been approved by this court in a subsequent judgment

which is reported in Gopal Krishnaji Ketkar v. Mahomed

Haji Latif & Ors. (1968) 3 SCR 862.

21. Mr. Jain placed reliance on the standard textbook of

Modi's Medical jurisprudence and he has specially drawn

our attention to page 49 of the Twenty Second Edition that

to determine the age of an individual (especially in earlier

years) are teeth, height and weight, ossification of bones can

be very helpful. He also submitted that the estimation of age

from teeth by noting the number and position of teeth

erupted, and with X-ray examination with some amount as

certainty. According to him, as per Modi's Medical

jurisprudence, the test pertaining to ossification of bones is

helpful for determining age.

22. Mr. Jain also placed reliance on the judgment of this

court in Sukhwant Singh v. State of Punjab (1995) 3 SCC

367 in which this court has laid down that failure to

produce the expert opinion before the trial court in such

cases affects the creditworthiness of the prosecution case to

10 a great extent. He also placed reliance on the judgment of

this court in Mohinder Singh v. The State AIR 1953 SC

415 in which this court has laid down that non-examination

of the ballistic expert is fatal.

23. Mr. Jain further placed reliance on State of M.P. v.

Surpa (2002) 9 SCC 447 in which this court observed as

under:-

"...........a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses...."

24. The learned counsel for the appellant placed reliance

on the judgment of this court in Birad Mal Singhvi v.

Anand Purohit AIR 1988 SC 1796. In that case, the court

observed that date of birth in the scholar's register has no

evidentiary value unless the person who made the entry or

who gave the date of birth is examined. The court observed

as under:

"The date of birth mentioned in the scholar's register has no evidentiary value

11 unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value."

25. The learned counsel for the appellant further submitted

that in pursuance of the complaint of her father she was

recovered on 6.9.1996. The alleged school leaving certificate

is dated 12.9.1996, i.e. just after 6 days of recovery and

three days after the appellant's arrest on 9.9.1996. It was

submitted by Mr. Jain that the said document was created

just to show the age of the prosecutrix as less than 16 years

at the time of the incident. According to him, the document

is not at all reliable.

26. The School Leaving Certificate is proved by Chandra

Prakash Sharma, PW3 who had clearly stated as under:-

12

"Date of birth in Ex.PF is on the basis of School Leaving Certificate of 5th class which was given to us at the time of admission of Pinki in 6th class."

27. Mr. Jain placed reliance on Arvinder Kaur v. State of

Punjab 2007(3) RCC (Crl) 818 to strengthen his submission

that the School Leaving Certificate would be no proof of age,

without production of admission register. He also submitted

that the statement of Bishan, PW8, the father of the

prosecutrix also cannot be relied upon. As per his

statement, he was married in the year 1972. The incident

took place on 30th August, 1996. This shows that the

marriage took place about 24 years back. This witness has

stated the date approximately, without any basis or any

record. He mentioned that his eldest daughter's age is 20

years and thereafter he by imagination and approximation

has given the age of other children and showing Pinki as the

youngest one. He could not give the exact date and gap

between the age of the children but stated - "All my children

are having a gap of one year or two years age

approximately." According to Mr. Jain the approximate age

13 given by the witness is not reliable. He also stated that PW8

also tried to show that he had 7 children, 2 among them are

not alive. He has not given their age and when they were

born. PW8 has given the age of Pinki as having completed

14 years and running 15 years and the said statement has

been made on approximation. According to him, the

conviction of the appellant cannot be based on such a

quality of evidence where on the basis of approximation, the

age has been indicated. According to the learned counsel for

the appellant, even Pinki's statement in this regard is a

hearsay evidence and is not at all reliable.

28. We have heard the learned counsel for the parties at

length. It is clearly borne out from the evidence on record

that the appellant belonged to the same Caste and Gotra of

the prosecutrix and was a frequent visitor to the house of

the prosecutrix. There was a love affair between them and

the court also observed that she did not ever resist her being

repeatedly deflowered by the appellant Sunil. In this

background, close and careful determination of the age of

the prosecutrix is imperative. Dr. Verma P.W.1, who had

14 clinically examined the prosecutrix, found that her

secondary sex characters were well developed.

29. The short question in the facts and circumstances of

this case remains to be determined is whether the

prosecutrix was a minor? Dr. Sadhna Verma, PW1 who

examined the prosecutrix referred her for verification to the

Dental Surgeon and the Radiologist. The failure of getting

the prosecutrix examined from the Dental Surgeon or the

Radiologist despite the fact that she was referred to them by

Dr. Sadhna Verma, PW1 is a serious flaw in the prosecution

version. We are not laying down as a rule that all these tests

must be performed in all cases, but in the instant case, in

absence of primary evidence, reports of the Dental Surgeon

and the Radiologist would have helped us in arriving at the

conclusion regarding the age of the prosecutrix.

30. The prosecution also failed to produce any Admission

Form of the school which would have been primary evidence

regarding the age of the prosecutrix.

15

31. The School Leaving Certificate produced by the

prosecution was also procured on 12.9.1996, six days after

the incident and three days after the arrest of the appellant.

As per that certificate also, she joined the school in the

middle of the session and left the school in the middle of the

session. The attendance in the school of 100 days is also

not reliable.

32. The prosecutrix was admitted in the school by Ashok

Kumar, her brother. The said Ashok Kumar was not

examined. The alleged School Leaving Certificate on the

basis of which the age was entered in the school was not

produced.

33. Bishan, PW8, the father of the prosecutrix has also not

been able to give correct date of birth of the prosecutrix. In

his statement he clearly stated that he is giving an

approximate date without any basis or record. In a criminal

case, the conviction of the appellant cannot be based on an

approximate date which is not supported by any record. It

would be quite unsafe to base conviction on an approximate

date.

16

34. On consideration of the totality of the facts and

circumstances of this case, it would be unsafe to convict the

appellant when there are so many infirmities, holes and

lacunas in the prosecution version. The appellant is clearly

entitled to benefit of doubt and consequently the appeal filed

by the appellant deserves to be allowed. The appellant is

directed to be released forthwith, if not required in any case.

The appeal is accordingly disposed of.

..............................J. (Dalveer Bhandari)

..............................J. (A. K. Patnaik)

New Delhi;

December 4, 2009.

17