Ruksana Begum vs State
2015 Latest Caselaw 6081 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : JULY 29, 2015
                                  DECIDED ON : AUGUST 19, 2015

+                            CRL.A. 1224/2011
       RUKSANA BEGUM                                       ..... Appellant
                             Through :   Mr.Joginder Tuli, Advocate with
                                         Ms.Pooja Arora & Mr.Ashu
                                         K.Sharma, Advocates.

                             VERSUS

       STATE                                              ..... Respondent
                             Through :   Mr.Amit Ahlawat, APP.

+                            CRL.A. 116/2012
       URMILA                                              ..... Appellant
                             Through :   Ms.Anu Narula, Advocate.

                             versus

       STATE GOVT OF NCT OF DELHI              ..... Respondent
                    Through : Mr.Amit Ahlawat, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 06.08.2011 of learned

Additional Sessions Judge in Sessions Case No.48/09 arising out of FIR

No.999/06 registered at Police Station Sultan Puri by which the appellants

were convicted under Sections 366A IPC and Section 109 read with

Section 376 (2) (g) IPC, they have preferred the instant appeals. By an

order dated 20.08.2011, the appellants were sentenced to undergo RI for

five years with fine `5,000/- each under Section 366 A IPC and RI for ten

years with fine `5,000/- each under Section 109 read with Section 376

(2) (g) IPC. Both the sentences were to operate concurrently.

2. Briefly stated the prosecution case as reflected in the charge-

sheet was that on 09.06.2006 at 8.30 a.m. the appellants kidnapped the

prosecutrix 'X' (assumed name), aged around 14 years from the lawful

guardianship of her parents with intent that she was likely to be seduced to

illicit intercourse with another person. During the period from 10.06.2006

to 27.06.2006, 'X' was subjected to gang-rape by three individuals during

her stay at Ruksana Begum's house in the presence of the appellant-

Urmila. Kamal Singh (PW-8), victim's father, after lodging FIR on

27.06.2006 informed the police that her daughter 'X' who was missing

from the house since 09.06.2006 was kidnapped by a woman. Vide DD

No.85B (Ex.PW-6/A) recorded at on 09.05 p.m., information was

recorded that a lady who had abducted 'X' has been apprehended near B-

Block, House No.480, Jalebi Chowk. 'X' was recovered from Ruksana's

house. She got arrested Urmila. 'X' was medically examined; she

recorded her statement under Section 164 Cr.P.C. Statements of

witnesses conversant with the facts were recorded. Upon completion of

investigation, a charge-sheet was filed against the appellants in the court.

To bring home the guilt, the prosecution examined twenty witnesses. In

313 statements, the appellants denied their involvement in the crime and

pleaded false implication. The trial resulted in their conviction as

mentioned previously. Being aggrieved and dissatisfied, the instant

appeals have been filed.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. Vital

infirmities and discrepancies in 'X's statement were overlooked without

any cogent reasons. Her statement cannot be taken on its face value as

she has given divergent and conflicting versions. She was more than 16

years of age on the day of incident and was a consenting and willing party

throughout. She had left her parents' home on her own and there are no

allegations of kidnapping whatsoever. The actual rapists with whom

physical relations were established, were not apprehended; their identity

remained undisclosed. Inordinate delay in lodging the FIR has remained

unexplained. No visible injuries were found on 'X' body at the time of

her medical examination. PW-10 (Sukhbir Singh Guliya) and PW-14

(Reshma) have turned hostile. Neither Sonia nor her mother who

allegedly introduced 'X' to the appellants were examined. Learned APP

urged that no sound reasons exist to disbelieve the prosecutrix who was

around 14 years on the day of occurrence.

4. At the outset it may be mentioned that the prosecutrix was

aged below 16 years on the day of incident. In the FIR (Ex.PW-2/A);

MLC (Ex.PW-1/A) and statement under Section 164 Cr.P.C. (Ex.PW-3/J)

age of the prosecutrix has been described as 14 years. In her Court

statement recorded on 28.04.2008, 'X' disclosed her age 15 years. The

appellants never challenged her age in the cross-examination. Nothing

was suggested if she was more than 16 years on the date of incident. The

prosecution relied on and produced on record certificate (Ex.PW-20/C)

issued by the M.C.Pry.Model School (Co.Ed.), Rohini Extension, Sector-

20, Delhi where her date of birth recorded at the time of admission vide

diary No.3107/8.7.97 was 2nd May, 1991. The authenticity and

genuineness of this document was never under challenge. There are no

reasons to disbelieve the date of birth recorded in Ex.PW-20/C as at that

time, the victim's parents had not predicted any such unfortunate incident

to happen in future to manipulate her age. The appellants did not produce

any document to show the prosecutrix to be 'major' on the day of

incident.

5. 'X' was recovered from Ruksana's house on 27.06.2006. In

her Court statement, she affirmatively deposed that she remained in

Ruksana's house for about a month. One day when her father and many

others including her cousin Mukesh (Bua's son) came at Ruksana's house,

she locked and confined her in the toilet on the second floor. She was

taken out of the toilet after an hour and then she came to know about visit

of her father and many others there. In the evening, again her father and

cousin accompanied by ten or twelve persons came and freed her. Police

was called and Ruksana was taken to police station, Sultan Puri whereas

Urmila succeeded to flee. DD No.85/B (Ex.PW-6/A) recorded at 9.05

p.m. records that a 'lady' who had kidnapped a girl has been caught. The

investigation was assigned to HC Bajrang Lal who along with Ct.Bhim

Sain reached the spot and apprehended Ruksana. He informed the duty

officer. On that SI Sanjeeta (PW-20) reached there and interrogated her.

In Court statement, she deposed that thereafter she along with Ruksana

and Ct.Biri Singh went to Ruksana's house at T 783, Mangol Puri. From

there, she recovered 'X' aged around 14 years. 'X' was sent for medical

examination to Sanjay Gandhi Memorial hospital. Bag containing 'X's

clothes was also recovered from Ruksana's house. PW-20 had no ulterior

motive to allege false recovery of the prosecutrix from Ruksana's house.

In her 164 statement recorded on 10.07.2006 (Ex.PW-3/J),

'X' implicated both the appellants for forcing her to have physical

relations with various persons for consideration. She informed that on

08.06.2006, she had gone to her friend Sonia's house where Urmila met

her. She took her along with her to marriage venues. After two days,

Urmila sent her at Ruksana's house. Next day, Ruksana called three men

in her house and at about 1.00 p.m. they committed rape upon her turn by

turn. Urmila, Ruksana and three other girls were present that time in the

house. After about an hour, the said individuals left after taking tea. In

her Court statement as PW-3, she deposed that one day she accompanied

Sonia to her house in Mangol Puri where both Ruksana and Urmila met

her. Sonia told that both of them were her mother's friends and were

employed in a factory. She also worked in a factory along with Sonia for

two days. Thereafter, both the appellants met her in the area of Mangol

Puri and promised that they would get her employed somewhere else. She

was promised the job of 'welcoming the marriage parties'. She did that

job for two days and stayed at Ruksana's house. Urmila visited Ruksana

during those days. One day, she was sent by Ruksana with an old man for

welcoming of a marriage party in a hotel. The old man committed 'wrong

act' with her. When she objected to that, he told that he had paid `3,000/-

to Ruksana. She further deposed that thereafter she was subjected to

'wrong act' at Ruksana's house thrice. On her objecting to it, she was

given beatings. The 'wrong act' was committed at Ruksana's house

thrice by four persons one of whom was old and other three were young.

They paid money to Urmila. The 'wrong act' was done on different dates

and by different persons. In the cross-examination by learned Additional

Public Prosecutor, she informed that on 08.06.2006, she had gone to

Sonia's house where Urmila met her. At the instance of the appellants,

she was subjected to 'wrong act' by three/four persons in Ruksana's house

for money consideration. In the cross-examination on behalf of the

appellants, she revealed that her father was 'Beldar' and her mother was a

house wife. Sonia had introduced her to accused Urmila. On first

occasion, Urmila had deputed her to welcome a marriage party in Kiradi.

She admitted that wherever she had gone for a job, it was with her own

will without any pressure. She further admitted that she used to return to

her house in the night. She further admitted that she voluntarily went to

Ruksana's house without any pressure. She denied the suggestion that she

remained in Ruksana's house voluntarily without any pressure or threat.

She denied that she had full opportunity to go back to her house or raise

alarm for help but she did not do so voluntarily. She further denied that

since she was in urgent need of money and could not get regular job, she

had gone to Ruksana and for that reason did not continue her job of

welcoming marriage parties or in the factory. She denied that she was

never pressurized to do any 'wrong act' by accused Ruksana.

On scanning the statement of the prosecutrix in its entirety, it

emerges that 'X' was initially studying in a school. One day she went at

her friend Sonia's residence. She was inclined to have some job to earn

money. For two days, she worked in a factory where Sonia also used to

go. Thereafter, she came into contact with the appellant Urmila who took

her along to provide job to welcome the marriage parties and she did it for

two days. During this period, she used to return to her parents' house in

the night. Subsequently, the appellants allured her to earn income by

having physical relations with various individuals/customers. Urmila sent

her to Ruksana's house. 'X' remained in Ruksana's house thereafter

where she was sexually exploited and pushed into prostitution with the

active connivance of Urmila who was a regular visitor there. 'X' has

categorically and specifically deposed that during her stay in Ruksana's

house physical relations were established with her by various persons on

different occasions for consideration. No sound reasons exist to

disbelieve 'X's statement in this regard. 'X' was an innocent immature

girl aged about 14 years. She did not know the consequences of the act

for which she was allured to get money. During her stay at Ruksana's

house, she was repeatedly sexually abused by outsiders/strangers for

consideration. Even her consent to have sexual intercourse with

'strangers' was of no relevance she being below 16 years of age. She has

given specific instances of her sexual abuse by old and young men. Both

the appellants were not acquainted with the victim before 09.06.2006. 'X'

or her family members did not nurture any ill-will or enmity against any

of them to falsely implicate them in this horrendous act. Both of them

were identified without any hesitation by the prosecutrix in the court. She

attributed and assigned specific and definite role to each of them in her

164 Cr.P.C. statement as well as Court Statement. It is true that certain

discrepancies have emerged in her two versions one given under Section

164 Cr.P.C. and the other before the Court. Nevertheless, the crux

remains unchanged that during 'X's stay at Ruksana's house, she was

physically abused by men for consideration in connivance with Urmila.

By putting various suggestions in the cross-examination, appellants

attempted to claim that 'X' was a willing party. There is no denial about

'X's stay for about one month in Ruksana's house where Urmila was a

frequent visitor. Appellants' only plea is that whatever was done, it was

with the free consent of the prosecutrix and she was a willing and

consenting party. The appellants who were quite old and mature ladies

had no plausible reasons to allow a girl aged around 14 years to stay at

their house for long one month without even informing her parents. The

appellants did not offer any explanation or reason as to why the child was

kept, may be with her consent, in their house. Nothing has come on

record to infer as to where else 'X' used to go to earn her livelihood. The

appellants did not disclose if during this period 'X' used to go to attend

marriage parties for welcoming guests. They did not produce on record

any document, whatsoever, to show that it was their profession/business to

provide girls at the marriage venues to welcome the marriage parties.

They did not give any instance where on any particular date during the

relevant period, they got any such contract or assignment and deputed 'X'

there. It is unclear as to how many other girls were victims in similar

circumstances.

6. The appellants did not produce any document to show that

they were gainfully employed in some legal business. In Ruksana

Begum's personal search vide memo Ex.PW-3/G, one mobile phone make

nokia with sim No.9810794270 was recovered. Another mobile make

Tata with sim 9213683243 was recovered from Urmila in her personal

search. Call Details Records of both these mobile phones have not been

proved. Photocopy of the call detail records of mobile No. 9213683243

belonging to Urmila for the period from 09.06.2006 to 23.07.2006 on

record demonstrates that she used to be in regular touch with number of

individuals who generally made calls to her. Urmila herself rarely made

calls to outsiders from her mobile. Nothing was explained by appellant

Urmila as to who were those persons from whom she used to get regular

calls at frequent interval. The call detail chart runs into 39 pages for this

period. It shows how busy the appellant-Urmila used to remain. It was

within the special knowledge of the appellants to divulge as to what legal

business or profession was being carried out by them. However, they did

not furnish any details of their activities. It has come on record that

appellant Ruksana shifted her rented accommodation frequently at short

intervals. In a short span of time, she stayed at different locations i.e. T-

170 Mangol Puri; T-783 Mangol Puri and T-163 Mangol Puri. No

reasons have been offered as to what had forced Ruksana to shift her

accommodation so frequently.

7. Delay in lodging the FIR is not fatal in such cases. PW-8

(Kamal Singh), 'X's father, did not lodge 'missing person report' for

considerable time. However, he has explained that he tried his best to

locate 'X' for fifteen days at various places Many times, parents are

reluctant to rush to police to report the incident to protect their reputation

and honour in the society. In the instant case, 'X' had earnest desire to

earn livelihood on her own and worked in a factory for two days with her

friend Sonia and she returned to her home on both days. Subsequently she

was trapped by the appellants and they seduced her to indulge in sexual

intercourse for money. In any case, cogent testimony of the prosecutrix

cannot be discredited simply because her parents did not lodge FIR

promptly.

8. The investigation conducted in this case is not upto the mark.

As discussed above, no call detail records of the mobile phones recovered

from the appellants was proved to unearth prostitution racket. The

investigating agency was unable to find out the individuals who had

established physical relations with the prosecutrix. The investigating

officer did not collect any materials to ascertain if in similar

circumstances other girls were misused. Sonia and her mother were also

not examined. No evidence was collected as to at whose factory 'X' had

worked for two days initially. All these lapses, however, are not relevant

to disbelieve the prosecutrix.

9. Medical evidence corroborates 'X's version as hymen was

found torn in MLC (Ex.PW-1/A). In 313 statements, the appellants did

not offer any plausible explanation to the incriminating circumstances

proved against them. They did not examine any witness in defence to

prove that they were engaged in some legal business or profession. The

Trial Court has discussed elaborately all the relevant aspects. A reasoned

judgment based upon fair appreciation of the evidence on conviction

deserves not intervention; the conviction is upheld.

10. The appellants have been sentenced to undergo RI for ten

years each with fine `5,000/- each under Section 109 read with Section

376 (2) (g) IPC. Appellant Ruksana's nominal roll dated 14.10.2014

reveals that she has already undergone three years, six months and one

day incarceration besides remission for ten months and twenty three days

as on 14.10.2014. She is aged around 43 years and is not a previous

convict; her overall conduct in jail is satisfactory. She is not involved in

any other criminal activity. Sentence order reveals that she was living

separate from her husband for the last about ten years in a rented

accommodation and has the responsibility to look after three children, one

of whom is handicap. Urmila's nominal roll dated 06.11.2013 reveals

that she has suffered incarceration for two years, six months and ten days

besides remission for eight months and two days as on 6.11.2013. She is

also a first time offender and is not involved in any other criminal case;

her conduct in jail is satisfactory. The individuals who established

physical relations with the prosecutrix could not be booked. The

appellants have suffered ordeal of trial/appeal for about ten years.

Considering the facts and circumstances of the case, the sentence order is

modified to the extent that the sentence under Section 109 read with

Section 376 (2) (g) IPC shall be RI for eight years each instead of ten

years with fine `5,000/- each and default sentence for non-payment of fine

shall be SI for one month in all. Other terms and conditions of the

sentence order shall remain the same.

11. The appeals stand disposed of in the above terms. Trial Court

record (if any) along with a copy of this order be sent back forthwith. A

copy of the order be sent to Jail Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE AUGUST 19, 2015/sa