SUNILversusSTATE OF HARYANA

                 [2009] 16 (ADDL.) S.C.R. 203

                            SUNIL                                  A
                               v.
                     STATE OF HARYANA
              (Criminal Appeal No. 2308 of 2009)
                      DECEMBER 4, 2009
                                                                   B
       [DALVEER BHANDARI AND A.K. PATNAIK, JJ.]

       Penal Code, 1860 - ss. 363, 366A and 376 -
• Prosecution under - Conviction by courts below - Lo'{e affair
  between the prosecutrix and accused - Accused repeatedly         C
  deflowered the prosecutrix with her consent - Controversy as
  regards age of prosecutrix - Doctor finding secondary sex
  characters of prosecutrix well developed - Reference to
  dental Surgeon and Radiologist - Failure to examine her by
  Dental Surgeon and Radiologist - School Leaving Certificate
                                                                   0
  produced as proof of age - Admission form of the school not
• produced - Father of prosecutrix not able to give correct date
  of birth - Held: In the facts, there were many infirmities,
  lacunae in prosecution version - Prosecution failed to prove
  that prosecutrix was a minor - Accused entitled to benefit of
  doubt - Hence, acquitted.                                        E

       Appellant-accused was convicted u/ss. 363, 366A
   and 376 IPC by courts below. The question for
   consideration before this court was as to whether the
.; prosecutrix was a minor.                                        F

       Allowing the appeal, the Court

      HELD: 1. In the the facts and circumstances of this
  case, it would be unsafe to convict the appellant when
  there are so many infirmities, holes and lacunae in the          G
  prosecution version. The appellant is clearly entitled to
, benefit of doubt. It is clearly borne out from the evidence
  on record that the appellant belonged to the same Caste

                               203                                 H
    204 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.


A 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-accused. In this background, close and careful
B determination of the age of the prosecutrix is imperative.
  P.W.1, who had clinically examined the prosecutrix, found
  that her secondary sex characters were well developed.
  (Paras 28 and 34] (214-A-B; 215-C-D]

        2. PW1, the doctor who examined the prosecutrix
c 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 PW1 is
  a serious flaw in the prosecution version. In the instant
D case, in absence of primary evidence, reports of the
  Dental Surgeon and the Radiologist would have helped
  the Court 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
E been primary evidence regarding the age of the
  prosecutrix. [Paras 29 and 30) (214-D-F]

        3. The School Leaving Certificate produced by the
  prosecution was also procured six days after the incident
F 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
  :-eliable. The prosecutrix was admitted in the school by
  her brother. The brother was not examined. The alleged
G School Leaving Certificate on the basis of which the age
  was entered in the school was not produced. [Paras 31
  and 32] [214-G-H; 215-A]

       4. PW8, the father of the prosecutrix has also not
H
                        SUNIL v. STATE OF HARYANA               205


         been able to give correct date of birth of the prosecutrix.   A
    -I
         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       B
         on an approximate date. [Para 33] [215-B]

             T. S. Murugesan Pillai v. M. D. Gnana Sambandha
         Pandara Sannadhi AIR 1917 PC 6; Gopal Krishnaji Ketkar
         v. Mahomed Haji Latif and Ors. (1968) 3 SCR 862; Sukhwant
         Singh-v. State of Punjab (1995) 3 SCC 367; Mohinder Singh
                                                                       c
         v. The State AIR 1953 SC 415; Birad Mal Singhvi v. Anand
         Purohit AIR 1988 SC 1796, relied on.

              State of MP. v. Surpa (2002) 9 SCC 447; Arvinder Kaur
         v. State of Punjab 2007(3) RCC (Crl) 818, referred to.        D

             Modi's Medical jurisprudence Twenty Second Edition,
         referred to.
                              Case Law Reference:
                                                                       E
             AIR 1917 PC 6           Relied on.           Para 19
             (1968) 3 SCR 862        Relied on.           Para 20
             (19~5) 3    sec 367     Relied on.           Para 22
i
             AIR 1953 SC 415         Relied on.           Para 22      F

             (2002) 9 sec 447        Referred to.         Para 23
             AIR 1988 SC 1796        Relied on.           Para 24
             2007(3) RCC (Crl.) 818 Referred to.         Para 27       G

             CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
         No. 2308 of 2009.

             From the Judgment & Order dated 20.11.2008 of the High
                                                                       H
    206     SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.


A Court of Punjab and Haryana at Chandigarh in Criminal Appeal              ~


  No. 48-SB of 1998.

         Sushil Kumar Jain, Puneet Jain, Eshita Baruah, Pratibha
    Jain for the Appellant.
B         Mohit Sharma, Kamal Mohan Gupta for the Respondent.

          The Judgment of the Court was delivered by

          DALVEER BHANDARI, J. 1. Leave granted.
c       2. 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.

       3. The appellant was convicted by the trial court under
D 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
  appellant, Sunil.
E         4. Brief facts of this case are as under.

       Bishan 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
                                                                        t
F locate her for quite some time, then he reported 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.
G
        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
H
                 SUNIL v. STATE OF HARYANA                         207
                   [DALVEER BHANDARI, J.]
.   deflowered by the appellant.                                           A

          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 anything to the
                                                                           B
    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
                                                                           c
    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.
                                                                           D
         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:-          E
         "Local Examination

         Labia Majora was well developed. Pubic hair were
         present. Carunculae myrinates formis was present. Vagina
         admitting two fingers. Uterus was normal and retroverted,         F
         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.
                                                                           G
         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     H
    208 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.


A 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.
B
         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
c   of the Principal and averred that the date of birth of the
    prosecutrix as recorded in the school leaving certificate is
    13.2.1983.

      11. The appellant submitted before the court that he has
D been falsely implicated. No defence evidence was adduced on
  behalf of the appellant. Admittediy, 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
E 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.
F
        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:-
G       "There can be no dispute with the proposition that the
        prosecutrix was 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
H       was in love with the appellant Sunil. She does not aver that
                         SUNIL v. STATE OF HARYANA                      209
      ...                 [DALVEER BHANDARI, J.]

                 she ever resisted her being repeatedly deflowered by          A
                 appellant Su nil."

                 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       B
            to the conclusion that she was not a minor girl.

                 15. According to the appellant, the pro5{3cution 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        c
            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          D
~
            attendance in the school of 100 days in ex-facie false. There
            is no reason why she was removed from 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    E
            the same was admittedly procured after several days of filing
            of the first information report.

.,.              16. The prosecution examined Cha·ndra Prakash Sharma,
            PW3 with regard to the School Leaving Certificate. The
                                                                               F
            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. Sushi! Kumar Jain, the learned counsel appearing     G
            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      H
    210     SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
                                                                              ~


A ascertaining their opinion regarding the age of the prosecutrix,
  but the prosecutrix was neither 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
B 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
c   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.

D       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
E
          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 the decision. With regard to third parties, this may be
          right enough, they have no responsibility for the conduct
F         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.
G         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
H         or those of them who were heads of the institution, and they
                     SUNIL v. STATE OF HARYANA                      211
                       [DALVEER BHANDARI, J.]
    J
             are not put in evidence. The proposition that these           A
~            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
                                                                           B

             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    c
             this appeal should be allowed, the decree of the High Court
             set aside, the decree of the Court of the Subordinate Judge
             restored."

             20. According to him, this judgment of the Privy Council
        has been approved by this court in a subsequent judgment           D
        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        E
        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
    I   helpful. He also submitted that the estimation of age from teeth
        by noting the number and position of teeth erupted, and with
                                                                           F
        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 G
        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 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 H
    212 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

                                                                         *
A 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 sec 447 in which this court observed as
    under:-                                                                  ~·


B       "........... 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 ... ."

c        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:
D
        "The date of birth mentioned 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 entry
        contained in the admission form or in the scholar register
E       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
F       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
G
    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
H
                     SUNIL v. STATE OF HARYANA                         213
                       [DALVEER BHANDARI, J.]
        the age of the prosecutrix as less than 16 years at the time of        A
        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:-

             "Date of birth in Ex.PF is on the basis of School Leaving         8
             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 C
        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.        o
        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          E
        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
        given by the witness is not reliable. He also stated that PW8          F
        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 mdde
        on approximation. According to him, the conviction of the
        appellant cannot be based on such a quality of evidence where          G
        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.
                                                                               H
    214   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A      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
B 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 clinically examined the prosecutrix,
  found that her secondary sex characters were well developed.         '
c      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
D 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
E 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
F Form  of the school which would have been primary evidence
  regarding the age of the prosecutrix.

       31. The School Leaving Certificate producP".! 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
G 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
H Kumar, her brother. The said Ashok Kumar was not examined.
                       SUNIL v. STATE OF HARYANA                        215
                         [DALVEER BHANDARI, J.]
      ~   The alleged School Leaving Certificate on the basis of which         A
          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
                                                                               8
          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.

               34. On consideration of the totality of the facts and           C
          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       D
          be released forthwith, if not required in any case. The appeal
          is accordingly disposed of.

-.'       K.K.T.                                          Appeal allowed.




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~'