Sunil vs State Of Haryana

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.

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:-

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.

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.

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.

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.

December 4, 2009.