` IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 188 of 1996 Date of decision: 22.4.2010. State of H.P. …. Appellant. Vs. Bhago Devi and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondents No. 1 & 2: Mr. Hoshiar Kaushal vice Mr. Karan Singh Kanwar, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 1.3.1995 of the learned Sessions Judge, Sirmaur District at Nahan, in Sessions trial No. 31-N/7 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 366,372 and 373 of the Indian Penal Code. The prosecution story, in brief, is that prosecutrix is the daughter of accused No.1 Bhago Devi. According to the prosecution Bhago Devi was married to one Shanti Ram resident of village Salwala and from this wedlock the prosecutrix was born. When the prosecutrix was only five months old the mother left the prosecutrix at her husband’s place in village Salwala and started living with a man in Haryana. She stayed in Haryana with this person for a few years. Then Bhago Devi joined service in the PWD office at Rajban. She again started visiting her 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 husband and meeting her daughter the prosecutrix who by that time had grown into a young girl. Further the prosecution case is that on 21.4.1989 the mother Bhago Devi enticed the prosecutrix by tempting her to take her to a cinema hall at Paonta Sahib to see a movie. She alongwith accused No.2 took the prosecutrix to Paonta Sahib via Bangran. At Paonta Sahib there was a white ambassador car standing outside the cinema hall. Three men and a woman were already sitting in the car. Bhago Devi told her daughter, the prosecutrix, to sit in the car and went off to talk to accused No.2 Sunder Singh. In the meanwhile, the car was started and the prosecutrix was abducted and forcibly taken to Dehradun by the three men and a woman, who were already sitting in the car. From Dehradun the prosecutrix was taken to Roorki and from there to Delhi. She was sold to one Dr. Ashok of Delhi, who kept her as his concubine for about two months and raped her during this period. Thereafter Dr. Ashok Kumar passed her on to his brother-in-law Surinder Goel, who also sexually abused the prosecutrix for some days and then sold her off to a prostitution centre. The unfortunate prosecutrix managed to escape with the help of a young boy employed in the brothel and succeeded in going to Faridabad through a jungle. There she was spotted by a gentleman, who took her to a police post at Faridabad. Her statement was recorded by the incharge of the police post who then arranged to send her to her father’s place in the company of two constables. After the prosecutrix went to her father’s place 3 she visited the police post Rajban in the company of her father and made a statement implicating her mother and accused Sunder Singh as the persons who initiated her into prostitution. Later another statement of her was recorded in which she implicated accused Parvesh Kumar also. According to the latest statement Parvesh Kumar was one of the three male persons sitting in the ambassador car at Paonta Sahib. It would be pertinent to mention that the statement as well as the supplementary statement of the prosecutrix recorded under Section 161 Cr.P.C. were recorded in the case which was lodged at the instance of accused Bhago Devi with the police post on 20/21 May, 1989 in which she had complained that her daughter was missing. The first statement of the prosecutrix under Section 161 was recorded on 22nd April, 1991 Ext.DA, which shows that the mother had lodged a missing person report almost 8 months prior thereto. It would also be pertinent to mention that during the course of investigation the statements of the prosecutrix were recorded by the Judicial Magistrate Paonta Sahib and by Sub Divisional Magistrate on 23.4.1990. Both are exhibited as Ext.DB and Ext.PA, respectively. After investigation the case was filed against three accused and the learned trial Court has acquitted all of them. Hence, the present appeal. The learned trial Court acquitted the accused on account of various inconsistencies and contradictions in the statements of the prosecutrix herself. 4 The main contradiction is that even the prosecutrix admitted that accused Parvesh Kumar was known to her for more than one year prior to the abduction. Whereas in her initial statements Ext.PA and Ext.DB though she had stated that three male persons and one woman were sitting in the car, she had not named Parvesh Kumar though he was known to her for one year. It is only in Court, that for the first time, she named Parvesh Kumar as one of the persons sitting in the car. She has been confronted with her statement recorded under Section 161 Ext.DB as well as statement recorded by the Sub Divisional Magistrate Ext.PA. She has not given any plausible explanation as to why she did not name Parvesh Kumar in the initial statement made by her. It would also be important to note that the prosecution has withheld the first statement made by the prosecutrix. Admittedly, her first statement about the entire occurrence was made to the police at Faridabad. No attempt has been made to obtain the said statement and prove the same. Who were the persons named in that statement is not known? The statements now made are after the prosecutrix has stayed with her father and therefore, the possibility of her making a statement at the instance of her father cannot be ruled out. According to the prosecution it was Bhago Devi and Sunder Singh who took the prosecutrix from Rajban to Paonta Sahib via Bangran. However, PW-10 Shyam Lal, stated on oath that on 21.4.1989, the date on which the prosecutrix had been allegedly kidnapped, he and his friend Suresh Kumar saw the prosecutrix 5 going towards a place called Bangran in the company of the accused Parvesh Kumar. This totally belies the prosecution story that it was Bhago Devi and Sunder Singh who took the prosecutrix to Paonta Sahib. There are other material contradictions in the statement made before the Magistrate. The prosecutrix had stated that she was taken from Paonta Sahib to Dehradun. From Dehradun she was taken to Roorki, from Roorki to Saharanpur and from Saharanpur to Ludhiana. From Ludhiana she was taken to Karnal and then to Panipat and finally to Delhi. In Court she stated that from Dehradun she was taken to Roorki where she was kept for one night and then taken to Delhi where she remained for a number of days. Then she was taken to Karnal, then to Ludhiana and from Ludhiana again back to Delhi. The prosecutrix was confronted with the two different versions given by her and she denied having made this relevant portion of the statement before the Magistrate. She came up with a new story that when she was kidnapped she was administered an intoxicant in the form of tablets and therefore, she became unconscious and did not know the full details. For the aforesaid reasons, we are of the opinion that the learned trial Court was fully justified in acquitting the accused. The appeal is dismissed qua respondents No.1 and 2. The bail bonds furnished by the accused are discharged. As far as accused No.3 is concerned, he could not be served and was declared a proclaimed offender vide order dated 6 4th August, 1999. Despite his being declared as proclaimed offender the State has been unable to find out the whereabouts of the respondent No.3 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 No.3 is dead or alive. The State has been unable to find out any information with regard to the said respondent. In such a situation, no purpose shall be served to keep the appeal pending. The appeal is accordingly 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 No.3. 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. (Deepak Gupta) Judge. 22nd April, 2010. (Rajiv Sharma) ™ Judge.