Rekha Devi @ Babi v. State

1. The present criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed by appellant against the judgment of conviction dated 17.01.2011 and order on sentence dated 20.01.2011 passed by learned Additional Sessions Judge (East) FTC, Karkardooma Court, Delhi in Sessions Case NO. 26/2010 in FIR bearing No. 305/2009, registered at Police Station Gandhi Nagar, Delhi whereby the appellant has been convicted for the offences punishable under Sections 366/34 of the Indian Penal Code, 1860 (‘IPC’) and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs. 1,000/-, and in default of payment of fine, to undergo simple imprisonment for one month.

2. The brief facts of the present case are that on 13.12.2009, a complaint was made by the complainant Smt. Poonam Devi, who is engaged in rag picking, that on 12.12.2009 at about 6:30 PM, she had gone to market and upon her return she found that her daughter aged about 18 years was missing. She also told the police in her complaint that her son-in-law Ramvir who resided in the neighborhood had informed her that she had seen her daughter Sonia with the appellant Rekha at about 6:30 PM going towards Police Booth, Shastri Park. When she had enquired about her from appellant Rekha on telephone, she was told by Rekha that Sonia had been taken by the co-accused Sitara who is like her sister to some place. Thereafter, she had searched for her daughter, however, the daughter could not be traced. She had informed the police that she suspected that her daughter had been kidnapped by appellant Rekha and an FIR was registered on the basis of the complaint under Sections 363/368/34 of IPC. On 15.12.2009, accused Rekha Devi who is the appellant before this Court was arrested on the pointing out by the complainant from her house who had disclosed that she had kidnapped Sonia at the asking of co-accused Sitara (who has passed away & proceedings against her have abated) who is like her sister and she had handed over the custody of the victim to Sitara who wanted to get her trained in dancing and singing and thereby earning through her. It was also told that the co-accused Sitara is transgender and wanted to engage the victim in dancing and singing for the purpose of earning through her. Thereafter, the police remand of present accused appellant was obtained and she had taken them to District Badayun, UP to the house of co-accused Sitara from where the victim child was recovered and the co-accused Sitara was arrested. The statement of the victim was recorded under Section 164 of Cr.P.C. and on the basis of her statement, case under Sections 366A/328/506 of IPC was registered. The ossification test of the victim was got conducted which determined her age as 16-17 years and after completion of investigation, the chargesheet under Sections 363/366A/368/328/506/34 of IPC was filed. During trial, charge under Sections 366/328/34 of IPC were framed against both the accuseds. After the trial, the learned Trial Court was pleased to convict both the accuseds under Sections 366/34 of IPC and sentenced them to undergo rigorous imprisonment for three years and also imposed fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for a period of one month.

3. Aggrieved by the order of conviction, the present appeal was filed. It was argued by the learned counsel for appellant that the learned Trial Court had failed to take note of the contradictions in the statement of the witnesses, and that the prosecution could not prove its case beyond reasonable doubt. It is stated that the learned Trial Court also did not take note of the fact that the girl through whom the victim was called by the appellant has not been examined by the Court. It is also stated that when the victim was allegedly kidnapped and taken to village, she had met one of her friends Jyoti there, however, Jyoti has not been examined. It is stated that the victim was voluntarily sent by her mother with Sitara and the appellant has been falsely implicated in the present case.

4. Learned APP for the State, on the other hand, submits that there is no illegality or infirmity in the orders of learned Trial Court. It is stated that considering the nature of offence committed by the appellant, no case for leniency even qua the order of sentence is made out.

5. The rival contentions raised on behalf of both the parties have been heard and the material on record has been perused.

6. The statement of PW-1 who is the complainant reveals that she has deposed in her statement that PW-7 Ranjeet Kumar, who is her son-in-law, had seen the victim being taken away by the present appellant. The complainant was also told by a girl living in the neighborhood that the present appellant had called the victim through her near the railway line. PW-7 Ranjeet also deposed in his statement that he had seen the present appellant taking the victim with her. Based on that when she had confronted the appellant about whereabouts of her daughter after obtaining her phone number, the appellant had told her that she had handed over the victim to the coaccused Sitara. The prosecutrix was later on recovered from the house of Sitara at the pointing out of the present appellant when she was taken by the police to the house of Sitara in UP. The victim herself was examined as PW-4 who deposed against the present appellant and deposed that she had enticed her on pretext of being given nice things and since she was known to her she had accompanied her. The present appellant had also told her that she will drop her at her house after some time. She has also categorically stated that she had met her brother-in-law Ranjeet Kumar on the way but Rekha had taken her to her house and had offered her tea and apple. Rekha, thereafter, had asked her to sleep. When she was taking tea co-accused Sitara had also come there and had left the house after sometime. Later on when she had woken up, she had found that she had been taken by both the accused persons somewhere. Thereafter, the present appellant had left her in the company of Sitara and had returned back. Co-accused Sitara had told her that she will get her married as her parents are poor but she did not agree. Sitara, thereafter, had given her bangles, earrings, nose pins and cloths. However, it is deposed by the victim that she had insisted to be taken back to her home. However, the co-accused Sitara had told that she will be allowed to go back to her parents home only after her marriage and that too on the occasion of Holi and Diwali. Thereafter, the police had come there with the present appellant Rekha and they were apprehended by the police. The coaccused Sitara had also threatened her not to disclose anything to the police. When they were coming back to Delhi, accused Rekha had also induced her that she will get her whatever she wants, however, she should not depose against her. The statement of PW-4 i.e. the victim has been corroborated by PW-7 Ranjeet Kumar who is the brother-in-law of the victim who had deposed that he had seen the victim going with the present appellant on 12.12.2009 at 6:30 PM near metro bridge Shastri Park. Since Rekha was also known to him as she used to visit house of prosecutrix, he had called prosecutrix but she had ignored him and kept going with accused Rekha. Later he had come to know that she had not returned home, he had informed his brother Randhir that he had seen the victim going with the accused Rekha and thereafter, his younger brother along with his mother-inlaw i.e. the complainant had lodged the complaint with the police.

7. It is thus clear from the statements of the witnesses examined by the prosecution that the prosecutrix i.e. PW-4 has specifically stated that she was taken away by accused Rekha on the inducement of giving her nice things. The statement of PW-4 stands corroborated by the statement of PW-7 who had seen accused Rekha taking away the victim with her. The testimony of PW-3 i.e. the complainant stands corroborated by statement of PW-4 and 7 that she was told by one Randhir and later by her son-in-law PW-7 that they had seen the present appellant taking the prosecutrix with her. PW-7 has mentioned in his statement that he had also informed his brother Randhir that he had seen the victim being taken away by the present appellant and he had told his brother Randhir to convey this to complainant who is his mother-in-law. The complainant had gone to lodge complaint with Randhir as deposed by PW-7. Co-accused Sitara has admitted in her statement that the victim was found with her when the police team had arrived at her house. The complaint was lodged on the basis of information the complainant had received from the girl through whom the appellant had called the victim and her son-in-law who had seen the victim being taken away by the present appellant. Therefore, there cannot be question of false implication or motivated implication in this case as the complaint itself was lodged before the recovery of the victim. Rekha who is the present appellant had disclosed about coaccused Sitara and pursuant to her disclosure statement, the recovery of the victim was made and accused Sitara was arrested. The victim in her statement before the Court as well as under Section 164 of Cr.P.C. also fully supported the case of the prosecution and no major contradictions appeared on record as is also observed by the learned Trial Court. It is clear from the record that the victim was minor at the time of incident. Present appellant Rekha had kidnapped her and had handed her over to co-accused Sitara who wanted to teach the victim dancing and singing for earning. She had also induced victim to get her married and had given her bangles, earrings, nose pins, cloths, etc. to persuade her to stay with her. PW-4 i.e. the victim had also stated in her statement that Sitara had visited the house of Rekha before being taken out of Delhi. The circumstances on record as well as statement of the witnesses thus point out that present appellant along with co-accused shared common intention to take away the prosecutrix from the lawful custody of her mother.

8. It is clear from the record that the mother of the victim is engaged in rag picking and therefore, belong to the poorest strata of the society. Taking advantage of the same, it is evident from the deposition of the complainant that the Sitara and Rekha had told her that since her mother is poor, they will get her married and had promised her nice things as bangles, earrings, nose pins and cloths which were also given to her later on by Sitara. Thus the object also stands established from the statements of the witnesses. It was thus the attraction of money and good things for a very poor girl belonging to poor strata of society, which was used to lure her though the real intention was teaching her dancing and singing to earn from her earnings. The statement of the defence witness was of no assistance to the present appellant. DW-1 Ms. Poonam who had deposed in favour of appellant Rekha is her mother-in-law who had deposed that the mother of the victim was asked to vacate the juggi for non-payment of rent by her and when she had not paid rent, she had thrown her articles out of the juggi one year back. Therefore, after one year her daughter-in-law Rekha was falsely implicated in this case. However, from her cross-examination, it is clear that the present accused appellant was arrested after 3 years of the incident of throwing articles out of juggi of Poonam. No complaint was lodged to the police by Poonam or with any authority regarding any quarrel or any threat being given by Poonam to her. Therefore, an incident which had taken place three years back could not have been the motive for falsely implicating the present accused appellant in the offence in question. Even otherwise, the chain of events and evidence is complete, there is no discrepancy or contradiction on record and in this Court’s opinion the prosecution has succeeded in proving beyond reasonable doubt regarding the offence committed by present appellant and co-accused Sitara. This Court, therefore, finds no infirmity or illegality in the judgment passed by learned Additional Sessions Judge and therefore, the appeal stands dismissed.

9. As far as quantum of sentence is concerned, learned counsel for the appellant stated during the course of arguments that the incident in this case had allegedly taken place on 12.12.2009 which is 13 years ago. It was also stated that the appellant has already remained in judicial custody for 06 months 07 days and therefore, a lenient view be taken and the appellant be let off on the sentence already undergone by her. On the other hand, learned APP for the State argued to the contrary.

10. This Court, after hearing arguments, is of the opinion that the present case is not one where leniency can be extended to the accused/appellant, only because the case could not be heard for last many years. It is to be noted with a sense of sadness that the present appellant had exploited the poverty of the victim and had lured her with nice things, which for the young girl meant bangles, earrings, nose pins and good cloths, and had taken her out of the lawful custody of her mother. The poverty of the mother was exploited as in India, it is a big task for poor family to get the daughter married and this helplessness which arose out of the poverty of the mother of the complainant was exploited by the appellant who told victim that because of poor financial condition of her family, they will not be able to get her married and therefore, she should accompany them so that they will give her nice things and will get her married.

11. This Court, however, considering the present family circumstances of the appellant, her age and the fact that she is not involved in any other case, holds that ends of justice would be met if the appellant is sentenced to the extent of reducing the sentence of three years to one year. Benefit of section 428 Cr.P.C extended to the appellant. However, this Court increases the fine amount from Rs. 1,000/- to Rs.10,000/- which will be deposited with Delhi High Court Legal Services Committee within a period of ten days.

12. In such circumstances, the order on sentence passed by learned Trial Court is modified to such extent.

13. In view thereof, the appellant is directed to surrender before the concerned Trial Court within a period of ten days to serve the remaining portion of the sentence.

14. In view of the above terms, the present appeal stands disposed of.

15. A copy of this judgment be forwarded to the learned Trial Court by the Registry for information and compliance.