IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 19/2001 Date of decision: 10.12. 2010 State of H.P. …..Appellant Versus Phurva and others ……Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondents : Mr. Surinder Thakur, Amicus Curiae. Surinder Singh, J. (Oral) Respondents were charge-sheeted, tried and acquitted for the offences punishable under Sections 363,366 and 120-B Indian Penal Code, in addition respondent Phurva was also charged for the offence punishable under Section 376 Indian Penal Code, as such the State made a challenge to their acquittal in the instant appeal. 2. Respondents were served and Shri C.B Singh, Advocate, had put in appearance for them. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Since he was appointed as Additional District & Sessions Judge, in the State Judicial Service, as such notices were ordered to be sent to the respondents for their presence. They stood served. Thereafter Shri V. S. Kanwar and Sh. Raman Prashar, Advocates filed their power of attorney for them but they are not present today. 3. Thus, we have examined the record and appointed Shri Surinder Thakur, Advocate, present in the Court, as amicus curiae to assist the Court. Copies of the paper’s book were supplied to him. 4. Heard and gone through the record. 5. In short, prosecution story can be stated thus. Prosecutrix, a resident of Lahaul was learning tailoring at Manali. She was residing with her maternal Aunt (PW3). On 3.1.1997 prosecutrix went to the market with her maternal aunt (PW3). Around about 6.30 p.m. it had become dark, they were returning to the place of their residence. When they reached near the Saw mill, suddenly, electricity went-off. A white Gypsy was found parked on the side of the road, out of which respondent Phurva and Smt. Pakki to whom she knew, came out, along with some other boys. She was made to sit in the Gypsy - 3 - leaving behind her maternal aunt and taken towards village Nagar side. It is alleged that respondent Pakki caught hold of her arms and Phurva and Palma gagged her mouth. She was taken to the house of respondent Bala resident of Udaipur, who at that time was residing in village Karjan. Prosecutrix alleged that she was locked in a room in the company of respondent Phurva. Both of them remained together inside for the whole night. It is alleged that during this time, he committed sexual intercourse thrice with her. Next day, she was taken in a Van towards Patlikuhal by respondents Palma, Phurva and Smt. Pakki. Prosecutrix complained to the driver of the van about her forcible taking away. On this, he took the Van back from Patlikuhal bridge to village Karjan. Wife of respondents Bala provided her with Sweater, Shawl and shoes to wear. Thereafter respondent Bala, Palma and Smt. Pakki told her to go, wherever she would like to go. She came on foot to Manali and reached in the house of her maternal Aunt Tashi Yangjam (PW3). PW3 aforesaid disclosed the entire incident to her brother Sunder (PW6). Parents of the prosecutrix were telephonically informed but due to blockade of roads, they could not come from Lahaul. Thus, she - 4 - along with her brother and maternal aunt went to Police Station and lodged the report in terms of FIR Ext. PW1/A. 6. Prosecutrix was medically examined in District Hospital Kullu by Dr. Shashi Thakur (PW9). Her medico legal certificate is Ext. PW9/B. She was also referred to the Radiologist for ascertaining her skeletal age. In the opinion of the doctor, she was between 16-17 years. 7. The wearing apparels of the Prosecutrix were sent for forensic examination, Report is Ext. PW9/C. Police visited the site of the alleged incident and prepared the site plan Ext. PW12/B. 8. Respondents were arrested and Phurva respondent was got medically examined. He was found fit to perform sexual intercourse. To this, Medico-Legal certificate is Ext. PW13/B. 9. Police recorded the statements of witnesses and found the involvement of the respondents in the alleged episode, hence presented the challan in the court for their trial. 10. Finding a prima facie case against the respondents, they were charge sheeted to which they pleaded not guilty and claimed trial. - 5 - 11. To prove its case, prosecution examined Prosecutrix and her maternal aunt Smt. Tashi Yangjam (PW3) besides examining doctors, Investigating Officer and their formal witnesses. 12. Respondents were also examined under Section 313 of the Code of Criminal Procedure. Respondent Phurva setup the defence of consent and custom prevailing in the area that before marriage the girl is taken away with her consent by the proposed husband and as per custom the marriage is solemnized thereafter by giving a feast in the community, whereas other respondents denied the allegations and circumstances appearing against them. 13. No evidence in defence was led when called upon to do so. 14. The learned trial Court acquitted the respondents on the ground of delay in lodging the FIR and held that the circumstances on record show that the Prosecutrix was a consenting party to the sexual act by respondent Phurva. Further the learned trial Court found that wife of Bala respondent gifted a Sweater, Shawl and shoes to the prosecutrix which were accepted by her and it could be gathered that there was a tacit consent of the - 6 - Prosecutrix, qua others the learned trial Court found no complicity. 15. Shri R.K. Sharma, learned Senior Additional Advocate General vehemently argued that the alleged custom is illegal, having no force of law. Further though prosecutrix was not proved to be minor, yet from the evidence on record she could not be said to be a consenting party. He further ventilated that if the evidence of the prosecution is weighed in its right perspective, there are grounds to convert the acquittal into conviction. 16. Shri Surinder Thakur, learned Amicus curiae supported the impugned judgment of acquittal and forcefully argued that even the learned trial Court did not hold that the alleged custom was also legal but the circumstances existing on the record point out towards the tacit consent of the prosecutrix, coupled with the fact that during this period, she never resisted or raised any hue and cry while even passing through the crowded areas. Therefore, the findings of acquittal recorded by the learned trial court are borne out from the record which require no interference. - 7 - 17. To appreciate the rival contentions raised, we have cautiously, closely and carefully examined the evidence on record. 18. In the instant case, consent has been pleaded by respondent Phurva whereas other respondents have denied the allegations in toto and alleged false implication. 19. In present like cases, age of the Prosecutrix is of utmost importance. Prosecutrix though at the time of her examination has stated that she was 17 years of age, yet there is no document with respect to the date of birth obtained by the police during investigation of the case, from the concerned Panchayat or from any School or Institution where she was admitted and studied. However, the prosecution has put its reliance only on the ossification report Ext. PW10/C showing her between 16-17 years on the basis of the epiphysis of bones. To prove this report PW10 Dr. G. D. Gaur was examined. His opinion is based upon the study of Dr. M.L. Aggarwal and I.C. Pathak in Punjab Region which has no hilly terrace. He also admitted that the development of bone depends on hereditary, dietary, harmonious factors, climatic condition and it varies from place to place. He also admitted that - 8 - assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have conducted in Punjab region. Admittedly, both the parties, in this case belong to tribal area of Lahaul where development of the bones differs considerably from the subject which is in the plain and warmer areas. The pubic signs appear early in warmer and lower parts of India whereas physical development, fusion of bones and also puberty is always delayed in the hilly areas. Thus giving the benefit of +2 years on both sides, as per the Modi’s Jurisprudence, the age of the prosecutrix comes to 18-19 years at the relevant time and in any case above the age of discretion, she cannot be said to be a girl of immature understanding but a girl who could use her discretion. 20. Once we have come to the above conclusion, her testimony is required to be appreciated in that light. During trial, she initially corroborated the story in examination-in-chief, as set out in the FIR, but in cross examination, she admitted certain important facts. Firstly that PW3 her maternal - 9 - aunt Tashi Yangjam was accompanying her when alleged incident took place. Surprisingly, PW3 aforesaid also did not raise hue and cry at that time, particularly when the incident took place in an inhabited area. She did not report the matter to police or any respectable person of her vicinity. Prosecutrix also specifically admitted that there were houses around the place. Although she stated that her maternal aunt was pushed aside and she raised hue and cry but this fact has not been corroborated by PW3 aforesaid. Further, she stated that her maternal aunt knew the accused persons and even respondent Rawal was from her village brother- hood. She also stated that she was taken from crowded bazaar of Manali to village Karjan from the place of alleged incident. Secondly, even from Karjan, next day she was taken to Patlikuhal then back to village Karjan. During this period she also did not raise any hue and cry though she stated that she had tried to raise hue and cry at village Karjan but her mouth was gagged by respondents Phurva and Palma which fact appears to be incorrect being improved version. Thirdly, she also did not say as to who had opened the door next morning. Fourthly, there is no allegation that from the place of - 10 - abduction till village Karjan, she was incapacitated to raise any alarm. PW2 her brother stated that village Karjan is 20-25 km. away from the said place and many villages are located between the above places. Fifthly, she did not say that on reaching Manali she had made any complaint to her maternal aunt (PW3). Further she stated in her examination-in- chief that she did not know any of the respondents but in cross-examination, she admitted that she knew respondent Phurva even earlier to the said incident and he was a resident from a nearby village, whereas Rawal respondent was from village brother-hood. Further she also did not say in her entire statement that she had tried to resist the sexual assault by respondent Phurva, rather she stated that she had sound sleep thereafter. 21. The prosecution has sought corroboration from the statement of PW3 Tashi Yangjam, her maternal aunt. In her endeavour to support the prosecution case, she introduced a new story that when Prosecutrix was pushed in the Gypsy, she became unconscious, later she raised alarm by shouting “Bachao Bachao” and many people gathered on the spot but did not say that she made any complaint to them and what action was taken - 11 - by her. Although, she stated that prosecutrix had narrated the entire story to her, but prosecutrix did not state so. Further, she deposed that she forgot the place where prosecutrix was stated to have been taken. Surprisingly, she admitted that if the girl was taken forcibly, the marriage could be solemnized, if she was willing. She in so many words admitted the existence of this type of custom in tribal. PW2 brother of the prosecutrix also admitted this type of custom. Since this custom is against law and public policy and no judicial notice can be taken with respect to tribal or non-tribal subject but if the case is proved and the testimony of the prosecutrix is found reliable, the accused can be convicted. 22. The above facts lead us to the conclusion had the prosecutrix been abducted, as alleged and raped by Phurva, she could have definitely raised hue and cry. Further while passing through the inhibited areas and Bazar people would have noticed and reported the matter to the police. Further PW5 Pradhan Singh, who was driver of the taxi initially, did not support the case of the prosecution. He stated that the prosecutrix was residing in the village Karjan for the last about 2-3 days. She herself boarded his taxi and in cross-examination by the - 12 - learned Public Prosecutor though he stated that she told him having been taken forcibly when he took his vehicle back to village Karjan, she herself alighted along with some other people (not the accused) from taxi and did not raise any alarm while going and returning back while traveling. He disowned portion A to A of his statement Ext. PW5/A and denied that all the respondents were in the taxi when the Prosecutrix had boarded his vehicle. 23. On the scrutiny of the aforesaid evidence, we do find that after about 5 days of her return to the place of her residence in Manali, she as well as PW3 her maternal aunt did not report the matter to the police or any one. It appears that finding that when her parents would come to know and would doubt her absence, the FIR was manipulated after due deliberation to wriggle out from the blame that prosecutrix had consented to accompany respondent Phurva and have sex with him. The consensual inter-course is also evident from the report of medical examination, as no mark of resistance was found on her body at the time of her medical examination. Further the shawl, Sweater and shoes taken by the prosecutrix is another circumstance which shows her consent. - 13 - 24. The existence of aforesaid circumstances makes us to believe that the Prosecutrix had tacit consent and she was later motivated to foist a case against the respondents for the aforesaid reasons. 25. In view of the above, we do concur with the findings of acquittal arrived at by the learned trial Court as such no interference is called for in the impugned judgment. The appeal sans merit as such dismissed. 26. We record our appreciation, the labour put and assistance rendered by Shri Surinder Thakur, Advocate the learned Amicus Curiae in this case. (R.B Misra), Judge December 9, 2010 (Surinder Singh), (cm) Judge.