State of Haryana  INSC 1786 (4 December 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2308
OF 2009 [Arising out of SLP (Criminal) No. 5779 of 2009] Sunil .. Appellant
Versus State of Haryana .. Respondent
This appeal is directed against the judgment and order dated
20.11.2008 delivered by the Punjab & Haryana High Court at Chandigarh in
Criminal Appeal No.48-SB of 1998.
The appellant was convicted by the trial court under sections 363,
366A and 376 of the Indian Penal Code whereas another accused Baldev was
convicted under section 366-A of the Indian Penal Code. The High Court
acquitted Baldev. Therefore, in this appeal we are only concerned with the
Brief facts of this case are as under.
PW8, the father of the prosecutrix lodged a report that on 31st August, 1996
when he returned home, he did not find his daughter, the prosecutrix, Pinki.
When he could not locate her for quite some time, then he reported the matter
to the police and lodged a first information report.
prosecutrix was traced out by the police on 6th September, 1996. Bishan PW8
suspected that the appellant Sunil had abducted his daughter.
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.
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.
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.
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
age verification, she was referred to dental surgeon and radiologist
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.
Dr. Chandrashekhar, PW2 had medico legal examination of the
appellant Sunil and found that he had the ability to perform sexual
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.
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.
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.
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."
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.
According to the appellant, the prosecution has failed to prove
that Pinki was minor at the time of the incident.
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.
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
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
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.
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;
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.
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
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.
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
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.
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...."
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:
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.
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."
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.
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."
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.
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
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.
The prosecution also failed to produce any Admission Form of the
school which would have been primary evidence regarding the age of the
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.
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.
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
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.
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.
appeal is accordingly disposed of.
..............................J. (Dalveer Bhandari)
..............................J. (A. K. Patnaik)
December 4, 2009.