REKHA DEVI Vs. REKHA DEVI

JUDGEMENT

(1.) The present criminal appeal under Sec. 374 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by appellant against the judgment of conviction dtd. 17/1/2011 and order on sentence dtd. 20/1/2011 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 Ss. 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.1,000.00, 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 Ss. 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 and 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 Sec. 164 of Cr.P.C. and on the basis of her statement, case under Ss. 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 Ss. 363/366A/368/328/506/34 of IPC was filed. During trial, charge under Ss. 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 Ss. 366/34 of IPC and sentenced them to undergo rigorous imprisonment for three years and also imposed fine of Rs.1000.00 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.