REPORTABLE

IN THE 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

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

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  

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.

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 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.   

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.”

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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  

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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  

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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:-

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“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  

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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  

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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.   

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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.   

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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.

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