PADMA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) Challenge in this appeal is a judgment dated 25.09.2013 of learned Addl. Sessions Judge in Sessions Case No.16/2012 arising out of FIR No. 94/10 PS Kamla Market by which the appellant ­ Padma was held guilty for committing offences punishable under Section 368 IPC and Sections 5 & 6 Immoral Traffic (Prevention Act), 1956 (in short 'ITP Act'). By an order dated 27.09.2013, she was sentenced to undergo RI for seven years with fine Rs.5,000/ - under Section 368 IPC; RI for ten years with fine Rs.2,000/ - under Section 5(d) of ITP Act; and, RI for seven years with fine Rs.3,000/ - under Section 6 of the ITP Act. The sentences were to operate concurrently.

(2.) Briefly stated, the prosecution case as set up in the charge -sheet was that on 06.08.2010, PW -9 (Insp. Surenderjeet Kaur) along with Insp.Brijesh Mishra was on patrolling duty in the area. When they reached at Police Booth Division No.IV at around 03.30 p.m. Smt.Meera Naidu ­ victim's mother and Bapi Mondal, her maternal uncle met her and produced a missing report (Ex.PW -9/A) lodged by them at Police Station Sonarput, West Bengal about 'X' (assumed name). PW -3 (SI Jaswant Singh) also reached the spot. Kotha No.5211 GB Road was raided. The victim 'X' was recovered from the said kotha. After recording her statement (Ex.PW -1/A), the Investigating Officer lodged First Information Report. 'X' was medically examined; she recorded her 164 Cr.P.C. statement. Statements of the witnesses conversant with the facts were recorded. On 09.08.2010, the appellant was arrested from the said 'kotha'. Upon completion of investigation, a charge -sheet was filed against the appellant for committing offences punishable under Sections 363/366/368/373 IPC; under Section 109 IPC read with Section 376 IPC and Sections 3, 4, 5 and 6 of ITP Act. In order to establish its case, the prosecution examined ten witnesses. In 313 Cr.P.C. statement, the appellant pleaded false implication and denied her complicity in the crime. After considering the rival contentions of the parties and on appreciation of the evidence, the Trial Court, convicted the appellant for committing the offences under Section 368 IPC and Sections 5(d) and 6 of ITP Act and acquitted her under Sections 363/366/373 IPC, Section 109 IPC read with Section 376 IPC and Sections 3 and 4 of ITP Act. It is pertinent to note that the State did not challenge her acquittal under the said Sections.

(3.) I have heard the learned counsel for the parties and have examined the file. At the outset, it may be mentioned that the prosecution was unable to establish the exact age of the victim on the day of incident. The Trial Court in the impugned judgment was of the view that the prosecution was unable to prove if 'X' was minor. The prosecution had only produced Transfer Certificate (Ex.PW -9/H) to establish the victim's age. However, it could not produced or examine any witness to prove its authenticity. No ossification test to ascertain her approximate age was conducted. The plea that the victim was of 16 years of age was not accepted by the Trial Court.