IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 238 of 1996 Date of decision: 3.3.2010 State of H.P. …. Appellant. Vs. Hariman and another ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Ram Murti Bisht, Dy. Advocate General For the respondent No.2: Mr. Deepak Kaushal, Advocate. Per Deepak Gupta, J.(oral) This appeal is directed against the judgement of the learned Sessions Judge, Mandi in Sessions trial No. 29 of 1994 dated 18th April, 1995 whereby he acquitted the accused of having committed offences punishable under Sections 366, 368 and 376 of the Indian Penal Code. The prosecution story in brief is that accused Hariman had kidnapped the prosecutrix from the house of her father. He then took her to village Kateru. From there he took her to the house of co-accused Piara Singh. According to the prosecution, both Hariman and Piara Singh raped the prosecutrix. Further the case of the prosecution is that Piara Singh sold the prosecutrix to one Joga Singh and he also raped the prosecutrix. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Joga Singh was declared to be a proclaimed offender by the trial Court and trial proceeded against accused Hariman and Piara Singh only. Even Hariman could not be served in this Court and was declared to be a proclaimed offender and therefore, this appeal is being heard qua Piara Singh only. The first issue which arises for consideration is – what is the age of the prosecutrix. The prosecution itself has produced on record and got proved from PW-3 Man Singh, teacher Primary School Hataun, Tehsil Sundernagar, the birth certificate of the prosecutrix, according to which her date of birth is 17.11.1969. The incident is stated to have taken place on 26.6.1988. Therefore, the prosecutrix was more than 18 years old and was not a minor at the time of the incident. Coming to the facts of the case, we may make reference to the statement of the prosecutrix herself. According to her, accused Hariman came to the house of her father and asked her to accompany him as he wanted to marry her. She voluntarily accompanied Hariman. In cross-examination she states that before going with Hariman she did not talk to her father. In her evidence it has come that from her father’s house she was taken to village Kateru. In examination-in-chief she states that at Kateru Hariman told her that he would take her to Shimla but instead took her to Punjab to the house of Piara Singh. In cross- 3 examination she states that in fact from Kateru they first went to Mandi by bus. Then they caught a bus to the village of Piara Singh in Punjab. The only statement made by the prosecutrix against accused Piara Singh in examination-in-chief is that accused Piara Singh behaved with her as a man would with his wife. According to her Piara Singh also told her that she was to be further sold to someone. She remained in the house of Piara Singh for 20 days and then Piara Singh sold her to Joga Singh In cross-examination she has resiled from her statement totally. She states that the house of Piara Singh is a hut consisting of two rooms and that the mother, wife and children of Piara Singh were also living in the house. She further states that she does not recollect whether the children of Piara Singh were aged 20 to 22 years. She also states that the mother, wife and children of Piara Singh and she alongwith Piara Singh all used to sleep in the courtyard. Even Hariman accused used to sleep in the courtyard. In fact the prosecutrix has nowhere alleged that she was subjected to any forcible intercourse. Her vague statement is that she was treated like a wife. This by itself is not sufficient to constitute any offence. In cross-examination she states that when she was subjected to sexual intercourse the wife, mother and children of Piara Singh were always present. It is thus obvious that such sexual intercourse could not have taken place 4 without her consent. A suggestion has been put to her that she was in fact married to Joga Singh. She has denied the suggestion but admits that some photographs were taken at the spot. Though in examination she stated that Piara Singh had told her that she was to be sold but in cross-examination she states that Piara Singh never told this to her but she learnt about this fact subsequently and then goes on to say that it was the police who told her about this fact. In fact this witness further goes on to state that Piara Singh did not sexually assault her. There is no other evidence against Piara Singh. In view of the testimony of the prosecutrix herself no case whatsoever is made out against Piara Singh. The appeal qua Piara Singh is dismissed on merits. Bail bonds are discharged. In so far as the appeal against Hariman is concerned this appeal was admitted as far back as on 13th December, 1995. The whereabouts of the respondent-Hariman could not be traced and finally a proclamation under Section 82 of the Code of Criminal Procedure was issued. Despite the publication of the proclamation, the accused did not put in appearance. It is apparent that the whereabouts of the respondent- Hariman are not known to the State and therefore, it is virtually not possible to take any coercive steps to procure the presence of the acquitted person. It is not known whether the respondent 5 is dead or alive. The State has been unable to find out any information with regard to the respondent. In such a situation, no purpose shall be served to keep the appeal pending. The appeal against accused Hariman is disposed of with liberty reserved to the State to apply for revival of the appeal in case they can procure the presence of the accused. The appeal is ordered to be consigned. However, the record shall not be destroyed without specific order from the Court since we have given liberty to the State to apply for revival of the appeal. While disposing of the appeal, we are following the orders passed by the Apex Court on 31st August, 2001 in Cr. Appeal No. 917 of 1997 titled State of H.P. vs. Satish Kumar. In view of the above discussion, the appeal qua accused No.2 Piara Singh is dismissed and the appeal qua accused No.1 Hariman is disposed of by consigning the file to the record room. (Deepak Gupta) Judge. 3rd March, 2010 (Sanjay Karol) ™ Judge.