Punjab-Haryana High Court
Mamta vs State Of Haryana on 1 October, 2012
Author: K. C. Puri
Bench: K. C. Puri
Criminal Appeal No.S.942 SB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRA NO. S-942-SB OF 2010 (O & M)
DECIDED ON : .10.2012
Mamta
...... Appellant.
versus
State of Haryana
...... Respondent.
AND
CRA NO. S-1472-SB OF 2010 (O & M )
Kusum @ Suman
...... Appellant.
versus
State of Haryana
...... Respondent.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM :- HON'BLE MR. JUSTICE K. C. PURI.
Present :- Mr. Gorakh Nath, Advocate,
for the appellants.
Mr. Amandeep Singh, AAG, Haryana.
Criminal Appeal No.S.942 SB of 2010 2
K. C. PURI, J.
Vide this common judgment, I intend to dispose of two appeals bearing Criminal Appeal No. S-942-SB of 2010 titled as " Mamta versus State of Haryana" and Criminal Appeal No. S-1472-SB of 2010 titled as "Kusum @ Suman versus State of Haryana" as both these appeals have arisen out of the same judgment and order. For convenience, facts are being taken from Criminal Appeal No. S-942-SB of 2010.
Appellants - Mamta and Kusum @ Suman have directed the present two appeals against the judgment dated 08.03.2010 and order dated 09.03.2010 passed by Shri V. P. Sirohi, learned Additional Sessions Judge, (FTC), Karnal vide which accused/appellants have been convicted under Sections 363/365/366-A and 368 of the Indian Penal Code ( in short - the IPC ) and sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/- each and in default, to further undergo rigorous imprisonment for a period of one month under Section 363 of the IPC; to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/- each and in default, to further undergo rigorous imprisonment for a period of one month under Section 365 of the IPC ; to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 3,000/- each and in default, to further undergo rigorous imprisonment for a period of one and half months under Section 366-A of the IPC and to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/- each and in default to further undergo Criminal Appeal No.S.942 SB of 2010 3 rigorous imprisonment for a period of one month under Section 368 of the IPC, whereas acquitted them from the charges levelled against them under Section 328 and 355 of the IPC. However, all the sentences were ordered to run concurrently.
2. The factual matrix of the prosecution case is that on 01.08.2008, Saini Dass-complainant met ASI Balbir Singh, Incharge, Police Post, Sector-6, Karnal near Sai Baba Temple turn, Sector-7, Karnal and got his statement recorded to the effect that he hails from Tarwara, Bihar and presently residing in Jhuggies at Green Belt, Sector-7, Karnal along with his family. He has two sons namely Sanjay and Santosh and three daughters namely Reena aged 14 years, Rinku aged 13 years and Pooja 2-1/2 years. On 29.07.2008, he left his jhuggi on cycle rickshaw and his wife also left for her routine job. When he returned home for lunch, his daughter-in-law Jai Mala told that about 11:30 a.m, one unknown lady came to their Jhuggi in a cycle rickshaw and stated that she is to serve food to the children near Gurudwara, Sector-7, Karnal. The said lady also called Rubi daughter of Tilak Paswan from the nearby Jhuggi. Thereafter, Rubi asked Rinku and Pooja daughters of the complainant to accompany them. The said lady enticed his both daughters and Rubi and took them away on the pretext of serving them food. He waited for the girls till evening but they did not return home. He searched for them at several places but no clue was found. His daughter-in-law had seen the said lady and she can identify the accused if she be brought before her.
Criminal Appeal No.S.942 SB of 2010 4
3. On the basis of the statement made, ruqa was sent to the Police Station through Constable Surinder Kumar and a case under Section 363 IPC was registered at Police Station, Civil Lines, Karnal. Investigation commenced. Statements of the witnesses under Section 161 of the Code of Criminal Procedure were recorded. During investigation of the case, on 02.08.2008, Inspector Alok Singh SHO, Police Station Jahangirabad (UP) informed on telephone that the kidnapped girls have been recovered and the lady who kidnapped them has also been arrested. On the said information, police party headed by ASI Sube Singh went to Police Station, Jahangirabad (UP) and brought the kidnapped girls and the accused to Police Station, Civil Lines, Karnal. The statements of Rinku d/o Saini Dass and Rubi d/o Tilak Paswan under Section 164 Cr.P.C were also recorded by Shri Viayant Sehgal, Judicial Magistrate Ist Class, Karnal. Rinku d/o Saini Dass disclosed that a woman named Kusum had come to their house and had asked them to accompany her as she possess a lot of marbles. They had gone with her in a rickshaw and tempo to her house in Model Town, Karnal. She had administered them some medicine. She had taken the children to Panipat in the evening from where they went Bulandshehar by train, where they remained for 2-3 days. She used to take them to a forest where she used to get dirty things done from them. She used to ask them to remove their clothes in the presence of the boys and were forced to dance naked. They had managed to escape by jumping over a wall. Their cries for help attracted the attention of the crowd. A woman saved them and gave them food. Kusum never gave them food and she used to threaten to sell them. Criminal Appeal No.S.942 SB of 2010 5 She had collected a number of girls for selling them. The villagers had called the police who brought them back home. Rubi also disclosed that she has been induced to accompany the lady (Aunti) as she told her that she had a lot of marbles. Pooja and Rinku had also accompanied her. She threatened to sell them. Aunti had inquired about the money for sale of two girls for which Kusum demanded ` 1,00,000/-. They managed to escape but some one called the police. Kusum asked them that both the girls would be killed. On the basis of the statements made by Rubi and Rinku, the offences under Section 366-A and 368 Indian Penal Code were added.
4. After completion of investigation, the accused were sent up to face trial as mentioned above and the case was committed to the court of learned Sessions Judge, Karnal, who retained the case in his court for disposal in accordance with law.
5. The trial Court framed charges under Sections 328, 355, 363, 365, 366-A and 368 of the IPC. The accused pleaded not guilty thereto and claimed trial.
6. In order to substantiate its case, the prosecution examined PW1 Constable Virender Singh No.1140, PCR 12, Police Station Gharaunda, PW2 ASI Sukhinder Kumar, In-charge Police Post, Model Town, Karnal, PW3 Inspector Harbans Lal, SHO, Police Station, Indri, PW4, Saini Dass PW5. Jai Mala PW6, Ms.Ritu Y. K. Behl, Addl. Chief Judicial Magistrate, Karnal PW7, Rubi daughter of Tilak Paswan, PW8 Rinku daughter of Saini Dass PW-9, SI Santosh Kumari, In-charge, Citizen Cell, Karnal, PW- 10, Udey Bhan, PW-11, Sub Inspector Sube Singh, Police Station City Criminal Appeal No.S.942 SB of 2010 6 Karnal, PW-12 Inspector Alok Singh, and PW-13 ASI Balbir Singh, Incharge Police Post, Sitamai and thereafter, closed the prosecution evidence.
7. The accused were examined under Section 313 Cr.P.C, they denied all the incriminating material and all the allegations levelled against them and claimed innocence. The accused were afforded opportunity to lead any evidence in defence but they did not lead any evidence in their defence.
8. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused under Sections 363, 365 and 366-A of the IPC, whereas acquitted them from the charges levelled under Section 328 and 355 of the IPC, vide judgment dated 08.03.2010 and order dated 09.03.2010, as aforesaid.
9. Feeling dissatisfied with the aforesaid judgment and order, the appellant -accused have preferred their sperate appeals.
10. Learned counsel for the appellant-Mamta has submitted that Mamta has been convicted under Section 366-A IPC and sentenced to undergo rigorous imprisonment for seven years and to pay fine of `3000/-. In default, to further undergo imprisonment for one month, besides her conviction under Section 368 IPC.
11. Learned counsel for the appellants has not challenged the conviction of Kusum under Section 363/365/366/368 IPC,but has submitted that if the prosecution story is taken as it is, in that case, ingredients of offence under Section 366-A IPC are not made out against appellant Mamta. Criminal Appeal No.S.942 SB of 2010 7 It is further submitted that according to provisions of Section 366-A IPC, whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. It is further submitted that according to the testimony of three minor girls, it is Kusum who has taken away them from Karnal to U.P. There is no allegation against the appellant Mamta that she has taken part in the kidnapping of three minor girls. So, it is submitted that appellant Mamta be acquitted under Section 366-A IPC.
12. However, learned counsel for the appellant Mamta is fair enough to concede that so far as offences under Sections 363/ 366/ 366-A/ 368 IPC against Kusum are concerned, the same have been proved. The conviction of appellant Mamta under Section 368 IPC has also not been challenged. However, it is argued that appellants are ladies and lenient view be taken regarding the quantum of sentence.
13. Learned State counsel has supported the judgment of conviction and order of sentence passed by the learned trial Court and has submitted that both the appellants have rightly been convicted. The offence of kidnapping under Section 366-A IPC is also proved against Mamta.
14. I have considered submissions made by learned counsel for the parties and have gone through the records of the case. Criminal Appeal No.S.942 SB of 2010 8
15. No doubt, learned counsel for the appellants has not challenged the conviction of Kusum under Sections 363/ 365/ 366-A/ 368 IPC and offence under Section 368 IPC in respect of appellant Mamta, but since this is the first appeal, I have myself satisfied about the conviction of both the appellants under those provisions of law.
16. The three minor girls have been taken away from the lawful custody of their parents by Kusum and she has further removed the said minor girls to U.P at the house of Mamta. The object of their kidnapping was clear that the said girls may be or likely to be forced or seduced to illicit intercourse with another person. The minor girls have stated, during the course of trial, that all of them were made naked and were directed to dance in naked condition. The very fact that these minor girls have been removed from Karnal to U.P is not disputed. These minor girls were recovered by PW-9 Santosh Kumar from Jahangirabad (U.P). So, the conviction of appellant Kusum under Sections 363/365/366/366-A/368 IPC and conviction of Mamta under Section 368 IPC stands affirmed.
17. Now the question arises as to whether the ingredient of offence under Section 366-A IPC against Mamta is made out? In this regard, the evidence has to be re-appreciated. The provisions of Section 368 IPC is relevant in this context which is reproduced as under :
" Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement".Criminal Appeal No.S.942 SB of 2010 9
18. From the bare reading of Section 368 IPC, it is revealed that whoever knowingly has kidnapped or abducted or wrongfully concealed or confined such person, that person shall be punished in the same manner as if he has kidnapped or abducted such person with same intention or knowledge.
19. So, in view of bare perusal of Section 368 IPC, the appellant Mamta is also guilty for an offence punishable under Section 366-A IPC as she has kept the three minor girls, concealing their identity and it would be presumed that she has kidnapped those three girls.
20. Now another question arises as to whether any case is made out for reduction in sentence? The answer to that is in negative. Both the appellants have indulged in a heinous crime of inducing three minor girls and have taken them from Karnal to U.P with an intention to force or seduce them for illicit intercourse. Those three girls are daughters of rickshaw pullers-the lower strata of life. These girls were taken under pretext of providing Kanjak (meal) and customary offering. So, the gravity of offence does not make out a case for reduction in the sentence of the appellants.
21. Consequently, both the appeals are without any merit and the same stand dismissed.
OCTOBER , 2012 (K. C. PURI) shalini JUDGE