IMPORTANT POINT
In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record.

JUDGMENT

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 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 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 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 tria