Delhi High Court
State vs Punnu on 12 September, 2012
Author: Sanjiv Khanna
Bench: Sanjiv Khanna, S.P.Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 12th September, 2012
CRL.A. 523/2012
STATE ..... Appellant
Through : Mr.Sanjay Lao, APP for the State.
Versus
PUNNU ..... Respondent
Through : Mr.Sameer Chander, Amicus Curiae.
CORAM:
MR. JUSTICE SANJIV KHANNA
MR. JUSTICE S.P.GARG
SANJIV KHANNA, J. (OPEN COURT)
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
Crl.A.523/2012 Page 1 of 16
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
Crl.A.523/2012 Page 2 of 16
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
Crl.A.523/2012 Page 3 of 16
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 present.
Inspt. Rajender Meena, IO of the case is present.
He has submitted that the prosecutrix Ms. Ritu Devi is not
traceable and has been searched for at various addresses. To
this effect his detailed statement has been recorded on oath.
In view of his statement, the prosecutrix being not
traceable, is dropped.
Crl.A.523/2012 Page 4 of 16
IO as well as Ld. Addl. PP for State have been asked to
point out if there is any other incriminating evidence available
on record from which the accused can be connected with the
alleged commission of offence in the absence of the
examination of the prosecutrix.
IO has gone through the file and has pointed out that
there is no such evidence which can be led by the prosecution
other than the prosecutrix to prove that the accused is guilty of
the offence he is charged with.
In these circumstances, the prosecution evidence is
closed. No witness has been examined by the prosecution. As
such, the statement of the accused is dispensed with.
Vide separate judgment dictated and announced,
accused Punnu is acquitted of the charges u/s 120-
B/376(g)/344/506 IPC and 5(1) (c) of the Immoral Traffic
(Prevention) Act, 1956.
File be consigned to the Record Room."
8. In his statement Inspector Rajender Mani on 16.03.2011 had stated as
under:
"FIR No.11/03
PS Delhi Cantt.
16.03.2011
Statement of Inspector Rajender Meena, No-D3058, Inspector
Investigatin, PS Delhi Cantt.
On S.A.
I am IO of this case. The summons of the prosecutrix
Ms. Ritu Devi, d/o Late Harparsad Kashyap, r/o village
Crl.A.523/2012 Page 5 of 16
Tilokpur, P.O. Alipur, P.S. Bara Sagver, Distt. Unnao, U.P.
were given to me for here service. I had sent Ct. Sheoraj to the
said aforesaid address for effecting the service of summons.
Ct. Sheoraj had met with Rajkumar s/o Sh. Ayodhaya, Sh.
Suresh s/o Sh. Gangaram, Gram Pradhan Ms. Gudiya Devi
and inquired about the prosecutrix from them however she
could not be traced. The statements of Rajkumar s/o Sh.
Ayodhaya, Gram Pradhan Ms. Gudiya Devi Ex. PX to PX2
bearing my signatures at point A and that of Ct. Tejpal Singh
at point A1 were recorded by him.
On 04.03.2011, Ct. Sheoraj Singh on my directions had
gone to H.No.1261, Block A, Phase-II, Holambikala where
accused Punnu was residing to find out any clue about the
prosecutrix from the said address or nearby places to trace
her out however we could not succeed. DD No.66 B was
recorded to this effect on his return true copy of which is
Ex.PX3 bearing my signatures at point and the signatures of
Ct. Sheoraj Singh at point A1.
On 25.02.2011 and 01.03.2011, I had gone to Balika
Greh Pratham, Mahila avam bal vikas Vibhagh, after care
home for women, Department of Women and Child Dev,
Nirmal Chhaya Complex, Jail Road, N. Delhi-64 in search of
the prosecutrix. However, it was reported by the
Superintendent of Balika Greh Pratham that she remained
there from 25.10.2004 to 03.09.2006 and thereafter went from
there of her own will to H.No.46, Gali No.4, Sagarpur, Gandhi
Market, Delhi. The reports given by the Superintendent,
Balika Greh Pratham are Ex.PX4 and PX5 which were duly
attested by me at point A. Thereafter I went to East West and
Main Sagarpur, Delhi in search of the address of the
prosecutrix given by the Superintendent, Balika Greh Pratham
and met there with Sh. Bhishan Das, Umesh Kumar, Ishwar
Das and Sh. Panna Lal and interrogated them about the
prosecutrix and H.No.46, Gali No.4, Sagarpur, Gandhi
Market, Delhi, however, this address was found to be
incorrect as it was not in existence. I recorded the statements
of Sh. Bhishan Das, Umesh Kumar, Ishwar Das and Sh. Panna
Crl.A.523/2012 Page 6 of 16
Lal Ex.PX6 to PX9 all bearing my signatures at point A.
Despite my best efforts the prosecutrix could not be traced out.
My detailed report to this effect is Ex.PX10 bearing my
signatures at point A."
9. In the impugned judgment acquitting the respondent, the Trial
court recorded as under:
"5. Today the matter is fixed for recording the testimony of the
prosecutrix. Inspt. Rajender Meena, IO of the case is present.
He has submitted that the prosecutrix is not traceable and has
been searched for at various addresses. To this effect his
detailed statement has been recorded on oath. In view of his
statement, the prosecutrix being not traceable, is dropped.
6. IO as well as the Ld. Addl. PP for State have been asked to
point out if there is any other incriminating evidence available
on record from which the accused can be connected with the
alleged commission of offence in the absence of the
examination of the prosecutrix.
7. IO has gone through the file and has pointed out that there
is no such evidence which can be led by the prosecution other
than the prosecutrix to prove that the accused is guilty of the
offence he is charged with.
8. In these circumstances, the prosecution evidence is closed.
No witness has been examined by the prosecution, as such
there is no incriminating evidence on record against accused
Punnu, hence his statement u/s 313 Cr.P.C. is dispensed with.
Accused Punnu is acquitted of the charges u/s 120-
B/376(g)/344/506 IPC and 5(1) (c) of the Immoral Traffic
(Prevention) Act 1956.
9. .Direction be issued to the Superintendent Jail to release
accused Punnu in case he is not wanted in any other case.
Crl.A.523/2012 Page 7 of 16
10. File be consigned to Record Room."
10. Additional Public Prosecutor has relied upon Section 299 of
Cr.P.C and Section 33 of the Evidence Act, 1872 and has submitted that the
impugned judgment and the reasoning given therein cannot be sustained.
The said provisions have not been examined. The statement of PW-1
recorded on 16.08.2003 and 11.10.2003 in the proceedings against co-
accused Saroj-wife of the respondent can be read in evidence.
11. We have heard the learned counsel for the respondent who has
drawn our attention to the decision of Supreme Court in Jayendra Vishnu
Thakur v. State of Maharashtra and Anr. (2009) 7 SCC 104.
12. Section 299 of Cr.P.C. and Section 33 of the Evidence Act read
as under:
Section 229 (1) If it is proved that an accused person has
absconded, and that there is no immediate prospect of
arresting him, the court competent to try (or commit for trial),
such person for the offence complained of may, in his absence,
examine the witnesses (if any) produced on behalf of the
prosecution, and record their depositions and any such
deposition may, on the arrest of such person, be given in
evidence against him on the inquiry into, or trial for, the
offence with which he is charged, if the deponent is dead or
incapable of giving evidence or cannot be found or his
presence cannot be procured without an amount of delay,
expense, or inconvenience which, under the circumstances of
the case, would be reasonable
Crl.A.523/2012 Page 8 of 16
(2) If it appears that an offence punishable with death or
imprisonment for life has been committed by some person or
persons unknown, the High Court or the Sessions Judge may
direct that any Magistrate of the first class shall hold an
inquiry and examine any witnesses who can give evidence
concerning the offence and any depositions so taken may be
given in evidence against any person who is subsequently
accused of the offence, if the deponent is dead or incapable of
giving evidence or beyond the limits of India.
Section 33
33. Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated.- Evidence given
by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later
stage of the same judicial proceeding, the truth of the facts
which it states, when the witness is dead or cannot be found,
or is incapable of giving evidence, or is kept out of the way by
the adverse party, or if his presence cannot be obtained
without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable;
Provided--
that the proceeding was between the same parties or their
representatives in interest;
that the adverse party in the first proceeding had the right and
opportunity to cross- examine;
that the questions in issue were substantially the same in the
first as in the second proceeding."
13. Referring to the said provisions, Supreme Court in the case of
Nirmal Singh vs.State of Haryan, 2000(4) SCC 41 has held:-
Crl.A.523/2012 Page 9 of 16
In view of the rival stand of the parties, the sole question
that arises for consideration is under what circumstances and
by what method, the statements of five persons could have
been tendered in the case for being admissible under
Section 33 of the Evidence Act and whether it can form the
basis of conviction. Section 299 of the Code of Criminal
procedure consists of two parts. The first part speaks of the
circumstances under which witnesses produced by the
prosecution could be examined in the absence of the accused
and the second part speaks of the circumstances,
when such deposition can be given in evidence against the
accused in any inquiry or trial for the offence with which he is
charged. This procedure contemplated under Section 299
of the Code of Criminal Procedure is thus an exception to
the principle embodied in Section 33 of the Evidence Act
inasmuch as under Section 33, the evidence of a witness,
which a party has no right or opportunity to cross-
examine is not legally admissible. Being an
exception, it is necessary, therefore, that all the
conditions prescribed, must be strictly complied with. In
other words, beforerecording the statement of the
witnesses, produced by the prosecution, the Court must be
satisfied that the accused has absconded or that there is no
immediate prospect of arresting him, as provided under first
part of Section 299(1) of the Code of Criminal Procedure.
In the case in hand, there is no grievance about non-
compliance of any of the requirements of the first part of sub-
section (1) of Section 299 Cr.P.C. When the accused is
arrested and put up for trial, if any, such deposition of any
witness is intended to be used as an evidence against the
accused in any trial, then the Court must be satisfied that
either the deponent is dead or incapable of giving evidence
or cannot be found or his presence cannot be procured
without an amount of delay, expense or
inconvenience, which would be unreasonable. The entire
arguments of Mr. Gopal Subramanium, appearing for the
appellant is that any one of these circumstances, which
permits the prosecution to use the statements ofsuch
Crl.A.523/2012 Page 10 of 16
witnesses, recorded under Section 299(1) must be proved and
the Court concerned must be satisfied and record a
conclusion thereon. In other words, like any other fact, it must
first be proved by the prosecution that either the
deponent is dead or is incapable ofgiving evidence or
cannot be found or his presence cannot be procured
without an amount of delay, expense or inconvenience which,
under the circumstances would be unreasonable. In the case
in hand, there is no order of the learned trial Judge,
recording a conclusion that on the materials, he
was satisfied that the persons who are examined by the
Magistrate under Sec.299(1) are dead, though according to
the prosecution case, it is only after summons being issued
and the process server having reported those persons to be
dead, their former statements were tendered as evidence in
trial and were marked as Exhibits PW48/A to PW48/E. As
has been stated earlier, since the law empowers the Court
to utilise such statements of persons whose
statementswere recorded in the absence of the accused as an
exception to the normal principles embodied in Section 33 of
the Evidence Act, inasmuch as the accused has
been denied of the opportunity of cross-examining the
witnesses, it is, therefore, necessary that the pre-conditions
for utilising such statements in evidence during trial must be
established and proved like any other fact. There possibly
cannot be any dispute with the proposition of law that for
taking the benefits of Section 299 of the Code of Criminal
Procedure, the conditions precedent therein must be
duly established and the prosecution, which proposes
to utilise the said statement as evidence in trial, must,
therefore, prove about the existence of the pre- conditions
before tendering the
evidence. The Privy Council, in fact in the case of
Chainchal Singh vs. Emperor, AIR (33) 1946 PC, Page 1, in
analysing the applicability of Section 33 of the Evidence
Act, did come to the conclusion that when the evidence given
by the prosecution witness before the Committing Magistrate
is sought to be admitted before the Sessions Court under
Crl.A.523/2012 Page 11 of 16
Section 33 on the ground that the witness was incapable of
giving evidence, then that fact must be strictly proved and this
may be more so in those cases where the witness was not
cross-examined in the Committing Magistrates Court by
reason of the accused not having been represented by
a counsel. In that particular case the process server had
been examined, who stated that he found the witness ill and
unable to move from his house, but that was not treated
to be sufficient to hold that the prosecution has
discharged its burden of proving that the witness is not
available. But having said so, Their Lordships did not
interfere with the conviction on the ground that the Court
can interfere only if, it is satisfied that grave and
substantial injustice has been caused by mis-reception of the
evidence in the case. On a mere perusal of Section 299 of the
Code of Criminal Procedure as well as Section 33 of the
Evidence Act, we have no hesitation to come to the
conclusion that the pre- conditions in both the Sections must
be established by the prosecution and it is only then, the
statements of witnesses recorded under Section 299 Cr.P.C.
before the arrest of the accused can be utilised in evidence
in trial after the arrest of such accused only if thepersons
are dead or would not be available or any other
condition enumerated in the second part of Section 299(1) of
the Code of Criminal Procedure is established. In the case
in hand, after the process server reported the fact of death of
the concerned persons, who were summoned as witnesses and
whose statements had already been recorded under
section 299 Cr.P.C on the application of the prosecution,
the said statements were tendered as evidence and have
been exhibited as Exhibits PW48/A to PW48/E. The learned
Sessions Judge as well as the High Court relied upon the said
statements for basing the conviction of the appellant.
So far as the compliance of the first part of
Section 299 (1) is concerned, the same is established
through the evidence of PW28, who at the relevant time was
working in Army as well as the S.H.O., Safidon also
submitted before the Magistrate that the arrest of the accused
Crl.A.523/2012 Page 12 of 16
could not be procured, as he was absconding and in
fact there was an order from the Magistrate for issuance
of proclamation under Section 82 of the Code of Criminal
Procedure. The High Court in fact, on consideration of the
entire materials did record a finding that the requirements of
first part of Section 299 of the Code of Criminal
Procedure must be held to have been established
and there was no illegality in recording the statements of
the five persons as the accused had been absconding and
there was no immediate prospect of the arrest of the said
accused. So far as the requirements of second part of
Section 299 of the Code of Criminal Procedure is concerned,
the impugned Judgment of the High Court indicates that the
Court looked into the original records and it was found that
the summons had been sent by the learned trial Judge,
summoning the witnesses repeatedly to appear before
the trial Court and on every occasion, the summons were
received back with the report that the persons have already
died. The High Court has also indicated as to how on each
occasion, summons issued to the five witnesses have been
returned back with the report that the persons are dead."
14. In Jayendra Vishnu Thakur v. State of Maharashtra and Anr.
(supra) the two provisions were again examined by the Supreme Court and
reference was made to the case law on the subject. It has been held that
Section 299(1) is in two parts and can be applied when there is proof that the
jurisdictional facts are satisfied. First, it must be proved that the accused had
absconded and secondly there was no immediate prospect to arrest him. If
these two conditions are satisfied, then the deposition of witness taken in the
absence of the accused can be used against him, if the deponent is dead or
Crl.A.523/2012 Page 13 of 16
incapable of giving evidence or cannot be found or his presence cannot be
procured without an amount of delay, expense or inconvenience which,
under the circumstances of the case, would be unreasonable. It has been
also observed that Section 299 must receive strict interpretation and
scrupulous compliance. It is obligatory on the part of the court to verify the
pre-requisite facts on the basis of material brought on record by cogent
evidence that the aforesaid facts exist so as to enable the court to pass an
appropriate order.
15. In the present case the trial, after the charges were framed
against the appellant, has proceeded in haste and hurry. Only one
opportunity was granted to the State to produce the prosecutrix. On failure,
the prosecution evidence was closed. It is noticeable that as per the
prosecution version and court record the respondent Punnu was a
proclaimed offender who was arrested after seven years in 2010. The
prosecutrix had changed her residence/address in the meantime. It is also
apparent that Section 299 Cr.P.C. and Section 33 of the Evidence Act have
escaped notice and were not considered and examined. This is inspite of the
fact that statement of Inspector Rajender Mani was recorded on 16.03.2011.
On the same day itself for reasons given in the judgment the order of
Crl.A.523/2012 Page 14 of 16
acquittal was passed. No opportunity or chance was given to the
prosecution to move any application or decide or make any further attempt
to prove and establish the case. We do not think the aforesaid order should
have been passed without examining and considering, whether conditions
stipulated in Section 299 of Cr.P.C. and Section 33 of the Evidence Act
were satisfied in the present case. This has resulted in miscarriage of
justice.
16. In these circumstances, the impugned order dated 16.03.2011
and the judgment dated 16.03.2011 are set aside and the matter is remitted to
the learned Sessions Judge to examine the said matter afresh keeping in
mind Section 299 Cr.P.C. and Section 33 of the Evidence Act. Trial Court
will examine whether the conditions of Section 299 of Cr.P.C. and Section
33 of the Evidence Act are satisfied and the statement of the prosecutrix
recorded on earlier occasion in the same proceedings on 16.08.2003 and
11.10.2003 can be taken into consideration. Of course, it will be also open
to the prosecution to produce the prosecutrix if possible. The Trial Court
will also record evidence of other witnesses if deemed necessary and
appropriate.
18. The appeal is accordingly disposed of.
Crl.A.523/2012 Page 15 of 16
19. To cut short the delay we direct that the respondent will appear
before the District Judge, Dwarka on 20th September, 2012 and before the
Additional Sessions Judge when the date of hearing will be fixed.
SANJIV KHANNA, J.
S.P.GARG, J. SEPTEMBER 12, 2012 sa Crl.A.523/2012 Page 16 of 16