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IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P.GARG, SANJIV KHANNA, JJ.
STATE - Appellant
Versus
PUNNU - Respondent
CRL.A. 523/2012
Decided On : 12th September, 2012
ABSENCE - Criminal Law - Indian Penal Code 1860, Immoral Traffic (Prevention) Act 1956 - Section 120B, 376(g), 344, 506, 5(1)(C) - The court discussed the absence of the prosecutrix and the applicability of Section 299 of Cr.P.C and Section 33 of the Evidence Act. The judgment was set aside and remitted to the learned Sessions Judge for re-examination.
Fact of the Case:
The respondent was acquitted for offences under Section 120B/376(g)/344/506 of the Indian Penal code 1860 (IPC) and under Section 5 (1)(C) of the Immoral Traffic (Prevention) Act 1956 due to the absence of the prosecutrix during the trial.
Finding of the Court:
The court found that the absence of the prosecutrix led to the closure of prosecution evidence and subsequent acquittal of the respondent. The court also noted the failure to consider the applicability of Section 299 of Cr.P.C and Section 33 of the Evidence Act.
Issues: The main issue was the absence of the prosecutrix and its impact on the trial proceedings and the subsequent acquittal of the respondent.
Ratio Decidendi: The court emphasized the need to consider the applicability of Section 299 of Cr.P.C and Section 33 of the Evidence Act in cases involving the absence of the prosecutrix, and the requirement for strict interpretation and scrupulous compliance of these provisions.
Final Decision: The judgment was set aside and remitted to the learned Sessions Judge for re-examination, with directions to consider the applicability of Section 299 of Cr.P.C and Section 33 of the Evidence Act, and to allow the prosecution to produce the prosecutrix if possible.
S.P.GARG, SANJIV KHANNA, J.
1. State has preferred this appeal against the judgment dated 16.03.2011 in FIR No.11/2003, police station Delhi Cantt. by which the respondent-Punnu has been acquitted for offences under Section 120B/376 (g)/344/506 of the Indian Penal code 1860 (IPC) and under Section 5 (1)(C) of the Immoral Traffic (Prevention) Act 1956.
2. The case of the prosecution as set out in the charge-sheet is that the prosecutrix a minor was brought up by her father. After the death of her father, she was brought up by her grandmother. The respondent-Punnu and his wife Saroj (co-accused and who has already been convicted while judgment dated 24.02.2006), who are the real chacha and chachi, went to the village and brought the prosecutrix to live with them in their jhuggi at Bapu Dham. After about six months the respondent-Punnu raped her. When she informed the co-accused Saroj, the prosecutrix was scolded. Prosecutrix was used as a prostitute and the accused used to earn money.
3. One day she was made to dance naked after having liquor. After the Jhuggi were demolished, the two accused shifted to quarter No.114, Dhaula Kauan. The prosecutrix then started working as a domestic servant in the house of Dr.Shalini Monga. On 16.12.2002 the prosecutrix complained and informed Dr.Shalini Monga that she was harassed and tormented by the accused. Dr.Shalini Monga took the prosecutrix to the office of the Chairman, National Human rights Commission and made a written complaint. The complaint was marked to ASI Bal Kishan of Police Station Dhaula Kuan for investigation. Statement of the prosecutrix was recorded in the presence of Dr.Rajat Mitra, Director of an NGO and his wife Dr.Nidhi Mitra. The co-accused Saroj was arrested. Prosecutrix’s medical examination was done and her statement was recorded under Section 164 Cr.P.C. The ossification examination revealed that the age of the prosecutrix on 15.01.2003 was between 14-17 years. 4. The respondent Pannu could not be arrested and was declared proclaimed offender. Initially non-bailable warrants for the arrest of the accused were issued and thereafter by order dated 10.02.2003 proceedings under Sections 82 and 83 of the Code of Civil Procedure 1973 were initiated after recording the statement of process server who had tried to serve the process. The respondent-Punnu was declared proclaimed offender on 24.04.2003. 5. As noted above the prosecutrix appeared as PW-1 and her statement in chief was recorded on 16.08.2004. She was cross-examined on 11.10.2004 on behalf of co-accused Saroj. Statements of other witnesses were also recorded. By judgment dated 22.02.2006, co-accused Saroj was convicted and sentenced to life imprisonment for the offence under Section 109 read with Section 376(g) IPC and to pay a fine of `1000/- and in default suffer rigoruous imprisonment for two months.
6. The respondent Punnu had remained a proclaimed officer throughout the proceedings till the judgment was pronounced convicting co-accused Saroj on 22.02.2006. The respondent was arrested by ATS South on 28.04.2010. Thereafter, supplementary charge-sheet was filed on 15.05.2010 and the matter was remitted to Sessions for trial vide order of the Magistrate dated 07.10.2010. Charges were framed against the respondent on 03.02.2011. The respondent pleaded not guilty and claimed trial. The case was put up for prosecution’s evidence on 24.02.2011. On the said date no witness except Inspector Rajinder Mani was present. Inspector Rajender Mani filed list of witnesses in the main case and of supplementary charge sheet. The same were kept on record. SI Ajay Kumar was absent despite service. He was directed to be summoned again. The case was directed for put up prosecution examination on 16th and 18th March, 2011. 7. On 16.03.2011 the following order was passed:-
“State Vs. Punnu FIR No.11/03 16.03.2011 Present: Ms. Satwinder Kaur, Ld. Addl. PP for state. Accused from J/C with Sh. Amit Chaudhan, Adv. No PW prese
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