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.A.523/2012 Page 1 of 16One 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.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.A.523/2012 Page 2 of 16The respondent Pannu could not be arrested and was declared proclaimed offender.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.The respondent was arrested by ATS South on Crl.The respondent pleaded not guilty and claimed trial.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.As such, the statement of the accused is dispensed with.File be consigned to the Record Room."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.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.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.Through : Mr.Sameer Chander, Amicus Curiae.MR. JUSTICE SANJIV KHANNA MR. JUSTICE S.P.GARG SANJIV KHANNA, J. (OPEN COURT)State has preferred this appeal against the judgment dated 16.03.2011 in FIR No.11/2003, police station Delhi Cantt.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.She was cross-examined on 11.10.2004 on behalf of co-accused Saroj.He was directed to be summoned again.A.523/2012 Page 3 of 16On 16.03.2011 the following order was passed:-"State Vs.Punnu FIR No.11/03 16.03.2011 Present: Ms. Satwinder Kaur, Ld.PP for state.Accused from J/C with Sh.Amit Chaudhan, Adv.No PW 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.A.523/2012 Page 4 of 16IO 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.I had sent Ct.Sheoraj to the said aforesaid address for effecting the service of summons.Sheoraj had met with Rajkumar s/o Sh.Tejpal Singh at point A1 were recorded by him.A.523/2012 Page 5 of 16On 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.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.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.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."A.523/2012 Page 6 of 16In the impugned judgment acquitting the respondent, the Trial court recorded as under:To this effect his detailed statement has been recorded on oath.In view of his statement, the prosecutrix being not traceable, is dropped.IO as well as the Ld. Addl.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.A.523/2012 Page 7 of 16File be consigned to Record Room."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.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.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.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.SANJIV KHANNA, J.

Relevant sections: Section 5 in The Indian Penal Code; Section 376 in The Indian Penal Code