LexSUNIL versus STATE OF HARYANA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 16 (ADDL.) S.C.R. 203
SUNIL
v.
STATE OF HARYANA
(Criminal Appeal No. 2308 of 2009)
DECEMBER 4, 2009
[DALVEER BHANDARI AND A.K. PATNAIK, JJ.]
Penal Code, 1860 -
ss. 363, 366A and 376 -
A
B
• 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]
c
2. PW1, the doctor 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 PW1 is
D
a serious flaw in the prosecution version. In the instant
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
G her brother. The brother was not examined. The alleged
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 c
Singh-v. State of Punjab (1995) 3 SCC 367; Mohinder Singh
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 20Excerpt shown. Read the full judgment & AI analysis in Lexace.