IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 301 of 1999 Date of Decision: 6.7.2010 State of H.P. …Appellant. Versus. Biru Deen and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents: Mr. Virender Rathore, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 27.3.1998 delivered by the learned Additional Sessions Judge-I, Kangra at Dharmshala in Sessions Case No. 20-G/97 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 and 376(g) read with Section 34 of the Indian Penal Code. 2. The prosecution story, in brief, is that the prosecutrix was aged about 14 years at the time of the incident. According to the prosecution on 6.3.1996 the prosecutrix had gone to sell the milk at Nagrota Surian bazaar. 2 There she met both the accused. Accused Biru Deen accused is a local resident whereas accused Hussain had come from Punjab. Admittedly, they were both related to the prosecutrix. The prosecution story is that these two accused kidnapped the prosecutrix and took her to Hoshiarpur where she was raped by both of them. Thereafter, she was forcibly married to one Dilu Deen, brother of Biru Deen. In the meantime, Mam Hussain, father of the prosecutrix, lodged a complaint in the police post Nagrota Surian and on 12.3.1996 i.e. about six days after the kidnapping, the police officials handed over the prosecutrix to her parents. Since the police was not willing to take any action against the accused, the father was compelled to approach Major Vijay Singh Mankotia, the then Law Minister of the State of Himachal Pradesh and filed a written complaint with him. This complaint was marked to the Deputy Commissioner, Kangra, who in turn sent the same to the Superintendent of Police for further action. Thereafter, on the basis of this complaint Ext. PW-8/A, F.I.R. Ext.PW-8/B was registered. The prosecutrix was then got medically examined by PW-1 Dr. Sunita. The accused was arrested. Other investigation was completed and thereafter the accused was challaned for having committed the offences aforesaid. The accused 3 have been acquitted giving rise to this appeal by the State. 3. The first question which arises is what is the age of the prosecutrix? According to the prosecutrix, she was aged about 14 years at the time when she made her statement in Court on 3.11.1997. This would mean that she was less than 12 years old when the incident in question took place. However, other than the oral statement there is nothing else to support her version. She also admitted that she is totally illiterate. Malka Bibi PW-4 is the mother of the prosecutrix. According to her, she has three children and the eldest is Bashir and the second is the prosecutrix. She further stated that the prosecutrix is two years younger to Bashir. In cross- examination she admitted that she does not remember the date, month and year of the birth of any of her children. Mam Hussain, PW-10, is the father of the prosecutrix. He is totally silent about the age of the prosecutrix. 4. The prosecutrix was also examined radiologically for assessing her age and according to the doctor she was aged about 14 to 16 years. The doctor who actually conducted the examination was not examined. However, it is a well settled law that assessment of age on the basis 4 of radiological examination is not certain and can vary from two to three years on either side. The estimation of age on the basis of the skiagram will depend on many aspects. People from different communities, from different areas have different attributes. Similarly, the bony age of a person will also depend on the diet being consumed. If the diet is healthy and nutritious then a person’s bones will develop faster whereas if the diet is not so nutritious the growth of the bones can be retarded. Without examination of the experts these matters could not have to be gone into. 5. Another important aspect is that according to the mother PW-4 all her children, including the prosecutrix, were born in the zonal hospital, Dharamshala. If the children were born in the zonal hospital, Dharamshala, we see no reason why the record from the hospital could not be produced to prove the date of birth of all the three children of PW-4 Malka Bibi. This could have settled any dispute regarding the age. When the prosecution fails to lead such evidence then adverse inference has to be drawn against the prosecution. Therefore, we are of the opinion that the prosecution has miserably failed to prove that the age of the prosecutrix was below 16 years. 5 6. The doctor has found that the sexual attributes of the prosecutrix were well developed. Her vagina easily admitted two fingers. The hymen was absent. All these factors would go to show that she was habitual to sexual intercourse. 7. The prosecutrix appeared in the witness box as PW-3. According to her, when she came to the bazaar, Biru Deen and Hussain Ali the two accused, one Baru and Khakhu another girl who had come to sell milk, gathered at one place. A religious function was being held in the house of Yusuf, a neighbour of the prosecutrix and all the aforesaid persons wanted to attend the function. According to the prosecutrix, they were all sitting at the shop of Genthu. The accused brought a taxi there and she alongwith the two accused and Baru and Khakhu got into the taxi. At Dehra Chowk the driver stopped the taxi, Khakhu and Baru got down from the taxi. Though the prosecutrix also wanted to get down she was not permitted to do so by the accused and they forcibly made her sit between them on the back seat of the taxi. She cried but to no avail. Accused Biru gagged her mouth. Thereafter she was taken in the taxi to Dehra bus stand where the accused persons forced her to get down from the taxi and then boarded a bus at Dehra for Hoshiarpur. 6 8. At Hoshiarpur she was taken to the house of accused Hussain Ali where his wife Chhina was present. Chhina in fact questioned Hussain Ali from where he had brought this girl. According to the prosecutrix at night Chhina, wife of Hussain Ali and the two accused slept in one room and that night Biru accused raped her. When she started crying he threatened to kill her. Next day, Hussain Ali raped her. The prosecutrix complained to Chhina, who questioned her husband Hussain Ali and then Hussain Ali beat Chhina also. 9. The prosecutrix further stated that on the second day at about 5.00 p.m her mother’s sister husband (Mohammad Ali) and her maternal uncle (Sainu) came to the house of Hussain Ali. She cried and complained to them about what had happened to her. They told her that they would take her back to her house the next morning. However, on the next morning Mohammad Ali and Sainu, confined her and Biru, inside one room and locked them from outside. She was then kept in the house of Hussain Ali by Biru for two days and two nights. During this total period of four days and nights she was raped both by Biru and Hussain Ali. Then she was taken to the house of Mohammad Ali aforesaid who wanted to get her married to Dilu Deen, younger brother of Biru 7 Deen. Despite her protest, she was forcibly got married to Dilu Deen. She was then taken to the house of her maternal grand mother (Nani). She was kept locked there for four days and then the police came to the spot and handed over the prosecutrix to her mother. 10. The statement of the prosecutrix itself does not inspire confidence. As stated in the original complaint she was kidnapped on 6th March, 1996 and handed over to the parents after six days on 12th March, 1996 but the prosecutrix stated that for four days she was kept in the house of Hussain Ali and thereafter she was kept in the house of Mohammad Ali and thereafter for four days in the house of her Nani. This does not tally with the prosecution version. 11. It is difficult to believe the version of the prosecutrix that she was forcibly abducted. If that had been true Khakhu and Baru would have raised an alarm. They have neither been made co-accused in the case nor have been examined in Court. The investigation of the case has been extremely unfair and biased. The first witness who should have been examined was Genthu, in whose shop all of them sat together. He was not examined. Neither Khakhu nor Baru were examined in Court. No effort was made to find out who was the taxi driver. If the 8 prosecutrix had raised an alarm and had wept and objected to being taken away, we find no reason why the taxi driver would not have reported the matter to the police or some other authority immediately. All these factors go to show that the prosecutrix voluntarily accompanied the accused. 12. Coming to the second part of the story, it is extremely difficult to believe that this young woman could be raped in a room where three other people including another lady Chhina was sleeping. No effort has been made to examine Chhina. According to the prosecutrix her uncle Mohammad Ali and Sainu came to know about the incident, but they, instead of protecting her joined hands with the accused. If that was true then these two persons Mohammad Ali and Sainu should have also been arrayed as co-accused. The prosecutrix in fact goes on to state that her maternal grand mother had also connived with the accused. These statements of the prosecutrix cannot be believed in view of the fact that she in cross- examination has admitted that she was in love with Biru Deen accused and wanted to marry him. 13. The prosecutrix had made a number of improvements in her statement in Court. In her initial statement she had not stated that they were sitting at the shop of 9 Genthu which fact has been stated for the first time in Court. In Court she stated that both the accused and Khakhu had asked her to sit in the taxi but this fact is also not mentioned in the original statement. In fact there is no mention of any taxi being hired or any amount being paid by her to hire the taxi. If we compare her statement in Court with the statement made before the police the two cannot co-exist together. 14. Keeping in view the aforesaid inconsistencies and contradictions in the statement of the prosecutrix, the learned trial Court was fully justified in acquitting the accused. We find no merit in the appeal. The same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 6th July, 2010 ( Sanjay Karol ) ™ Judge.