Delhi District Court
State vs . Hema And Aruna on 19 September, 2016
IN THE COURT OF Ms. Shilpi Jain
METROPOLITAN MEGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 126/08
PS -Kamla Market
State Vs. Hema and Aruna
U/s 3/5 and 7/8 ITP Act
Unique Case ID No. 02401R0691782009
JUDGMENT
(a) Sr. No. of the Case 02401R0691782009
(b) Date of offence 02.08.2016
(c) Complainant Inspector Girish Kaushik
PS Kamla Market.
(d) Accused Persons 1. Hema, D/o. Virappa Murthy, R/o. Kotha No. 71 IInd Floor, GB Road, Delhi.
2. Aruna, D/o Ram Chander, R/o. Kotha No. 71, Iind Floor, G.B. Road, Delhi
3. Mohd. Ahmed, S/o. Ali Hasan, R/o. House No. 2701, Gali Jamun Wali, Nihariyan, Delhi.
(e) Offence U/s 3/5/7/8 ITP Act (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 04.11.2009 (i) Date when judgment was 19.09.2016 reserved (j) Date of judgment 19.09.2016 FIR No. 126/08 State Vs. Hema and Aruna Page No. 1 to 18 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Kamla Market Nagar against the accused namely Mohd. Ahmed, Hema and Aruna for the offence U/s 3/4/5/8 ITP Act.
2. Accused Mohd. Ahmed expired on 04.05.2010 and proceedings stands abated against said accused by Ld. Predecessor vide order dated 29.01.2011.
3. Briefly stated facts of the case are that on 02.08.2008 at 9:00 pm, in the Branda of Kotha No. 71, GB Road, Delhi within the jurisdiction of PS Kamla Market, accused Hema seduced and solicited the decoy customer namely HC Mahesh Chand for the purpose of prostitution in a public place and thereby committed an offence punishable U/s 7/8 of ITP Act and accused Aruna was found keeping/managing a brothel for which she has procured accused Hema and thereby committed an offence Section 3/5 ITP Act.
4. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to both the accused in compliance of Section 207 CrPC. Thereafter, charge u/s 3/5 ITP Act was framed against the accused namely Aruna and charge U/s 7/8 Act was framed against the accused Hema vide order dated 29.01.2011 by the Ld. Predecessor of this court, to which they pleaded not guilty and claimed trial.
5. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
6. In order to prove the guilt of the accused, prosecution examined as many as 5 witnesses.
FIR No. 126/08 State Vs. Hema and Aruna Page No. 2 to 18
7. PW-1 is HC Kamlesh, who deposed that on 02.08.2008 he was posted at PS Kamla Market as a HC, that he along with Additional SHO/Inspector Girish Kaushal, SI Brijesh Mishra and HC Mahesh were on patrolling duty at G.B. Road, Kamla Market, Delhi as there were complaints regarding seduction to public person by prostitute at G.B. Road after shutter down of market, that Additional SHO prepared a raiding party including him and aforesaid police officials, that Additional SHO directed HC Mahesh to wear civil uniform and Additional SHO handed over him Rs. 250/- in denomination of Rs. 100/- currency notes and Rs. 50/- to HC Mahesh, that Additional SHO put his signatures on currency notes and Rs. 50/- to HC Mahesh, that Additional SHO prepared HC Mahesh as decoy customer, that Additional SHO instructed HC Mahesh to take visit inside the verandah of Kothas at G.B. Road with direction that he would give a signal by falling his handkerchief as and when any prostitute seduce him for the purpose of prostitution, that HC Mahesh reached inside the verandah of Kotha No. 71 at G.B. Road and all raiding party members took their positions near the pillars, that on receiving signals as fixed and at the direction of Additional SHO, at about 9:00 pm, in the verandah of Kotha No. 71, the accused Hema and accused Mohd. Ahmed, that some conversation took place between HC Mahesh and accused persons, that he apprehended the accused Hema and Rs. 200/- were recovered from the possession of accused Hema and Rs. 50/- were recovered from the possession of accused Mohd. Ahmad., that recovered currency notes were the same which were handed over by Additional SHO to HC Mahesh, that IO sealed the recovered currency notes in two separate envelopes with the seal of BM and the same were taken in possession vide memos Ex. PW-1/A and Ex. PW-1/B by sealing with the seal of BM, that IO prepared rukka and handed over the same to HC Mahesh for registration of FIR, that HC Mahesh was sent to PS by IO, that IO inspected the site and prepared site plan, that after some time, HC Mahesh returned back at the spot along with copy of FIR and rukka and the same were handed over to IO by him, that the accused persons Mohd. Ahmad and Hema were arrested vide memos Ex. PW-1/C to Ex. PW-2/F, that FIR No. 126/08 State Vs. Hema and Aruna Page No. 3 to 18 the accused persons were interrogated and they disclosed that they have to pay Rs. 100/- to the accused Aruna as she provided the aforesaid Kotha to them for the purpose of prostitution, that his statement was recorded, that the accused Aruna identified by PW-1 HC Kamlesh, that accused Aruna was arrested vide memos Ex. PW-1/G to PW-1/H, that PW-1/HC Mahesh identified the case property produced by the MHCM in the court.
8. During cross-examination, PW-1 admitted that on 02.08.2008 he was posted at PS Kamla Market, that he do not remember at what time on that day he made his departure from the PS, that he again said, he along with other police official namely SHO Girish Kaushik and HC Mahesh, SI Brijesh Mishra started from the PS on 02.08.2008 at about 6:30 or 7:00 pm, that they started from PS on foot to the Kamla Market area, that SHO came to the place of G.B. Road in his gypsy, that he cannot tell the number of the said gypsy, that he do not remember at what time HC Mahesh came to the spot after the arrival of SHO and others, that they assembled at about 8:00 pm at G.B. Road, Kamla Market, Delhi, that they were all in police uniform, that in his presence, no public person had ever made any complaint regarding any seduction by prostitute to public person in the said area, that many public persons were passing on the road at the time when the raiding party was organised by the SHO, that there were many shops near that place, that heavy traffic or vehicles including cars, rickshaw were passing by that road, that in his presence, the SHO had not requested any passerby to become a member of the raiding party, that he cannot say whether SHO himself gave the currency notes in the denomination of Rs. 250/- either from his pocket or from someone else, that he do not remember on which portion of the currency notes the SHO put his signatures, that he as well as other police officials did not put their signatures on the currency notes, that HC Mahesh was directed to go inside the verandha of G.B. Road, that in his presence the Ct. Mahesh did not change his uniform into civil uniform, that they did not hide behind any pillar or anything else, that HC Mahesh made a signal by shaking his hands to come near him, that after FIR No. 126/08 State Vs. Hema and Aruna Page No. 4 to 18 about 5-7 minutes of receiving the signal they reached near HC Mahesh, that Mohd. Ahmed accused was apprehend by SI Brijesh Mishra and he apprehended accused Hema, that he cannot say what conversation took place between HC Mahesh and the accused persons before they were apprehended by them, that by the time when the accused was apprehended by him and SI Brijesh Mishra no FIR was registered, that Rs. 50/- were recovered from the right pocket of the shirt of accused Mohd. Ahmed, that after taking into possession the currency notes from accused Hema as well as Mohd. Ahmed, the SHO made in writing the rukka of this case and sent HC Mahesh to the PS to register the FIR, that he accepted that he have gone through Ex. PW-1/B and there is no mention that a currency note of Rs. 50/- was recovered from the possession of accused Mohd. Ahmed, that HC Mahesh returned to the spot from the PS at about 10:45 pm, that after the return of HC Mahesh from the PS, the SHO got signatures of HC Mahesh on the memo Ex. PW-1/A and Ex. PW-1/B, that personal search memo was prepared first and thereafter the arrest memos were prepared of the accused, that he cannot said that except him who other police officials became witness of the memos, that he took both the accused Mohd. Ahmed as well as Hema at about 11:30 pm to J.P.N Hospital for their medical examination, that he cannot said that at what time the rest of the police party left from the spot to the PS, that accused Aruna was not arrested in his presence, that he do not remember at what time his statement was recorded by the IO, that in his presence SHO had also recorded the statement of HC Mahesh, the accused persons and SI Brijesh, that SHO got signatures of the accused on their statements which were recorded by the SHO. He denied that he is deposing falsely at the instance of SHO, that the accused Hema was not found while seducing the public persons for the purpose of prostitution on 02.08.2016, that he is deposing falsely.
9. PW-2 HC Mahesh, who deposed that on 02.08.2008, he was posted at PS Kamla Market as HC, that he along with Additional SHO/Inspector Girish Kaushik, SI Brijesh Mishra and WHC Kamlesh were on patrolling duty at G.B. FIR No. 126/08 State Vs. Hema and Aruna Page No. 5 to 18 Road, Kamla Market, Delhi as there were complaints regarding seduction to public person by prostitute at G.B. Road after shutter down of market, that Additional SHO prepared a raiding party including him and aforesaid police officials, that Additional SHO directed him to wear civil uniform and Additional SHO handed over Rs. 250/- in denomination of Rs. 100/- currency notes and RS. 50/- to him, that Additional SHO put his signatures on these currency notes, that he was made decoy customer by Additional SHO, that Additional SHO instructed him to take visit inside the verandah of Kothas at G.B.Road with direction that he would gave a signal by falling his handkerchief as and when any prostitute seduce him for the purpose of prostitution, that he reached inside the verandah of Kotha NO. 71 at G.B. Road in civil uniform and other raiding party members took their position near the pillars, that when he reached in the verandah of Kotha No. 71, G.B. Road, at about 9:00 pm, the accused Hema and Mohd. Ahmad met him, that accused Hema asked him to give RS. 200/- regarding prostitution and accused Mohd. Ahmad asked him to give RS. 50/- as commission for prostitution, that he asked the accused persons that it is enough money, on this the accused persons told that they would have to give Rs. 100/- to accused Aruna, who is the owner and manager of kotha and provide us the premises/kotha for the purpose of prostitution, that accused persons had instigated him for prostitution, that he dealt with the accused persons by giving cash of Rs. 250/- to the accused persons which were given by Additional SHO to him and thereafter, he gave signal by falling his handkerchief as directed by Additional SHO, that accused Hema and Mohd. Ahmad were apprehended by him and other raiding party members, that two currency notes of Rs. 100/- were recovered from the possession of accused Hema and one currency note of RS. 50/- was recovered from the possession of accused Mohd. Ahmad, that the recovered currency notes were the same which were handed over by Additional SHO to him, that IO sealed the recovered currency notes in two separate envelopes with the seal of BM and the same were taken in possession vide memos Ex. PW-1/A & Ex. PW- 1/B by sealing with with seal of B., that IO prepared rukka and handed over the FIR No. 126/08 State Vs. Hema and Aruna Page No. 6 to 18 same to him for registration of FIR, that he was sent to PS by the IO, that IO inspected the site and prepared site plan, that after some time, he returned back at spot along with copy of FIR and rukka and the same were handed over to IO by him, that the accused persons Mohd. Ahmad and Hema were arrested vide memos Ex. PW-1/C to Ex. PW-1/F, that the accused persons were interrogated and they disclosed that they have to pay Rs. 100/- to the accused Aruna as she provided the aforesaid kotha to them for the purpose of prostitution, that his statement was recorded to this effect, that accused Aruna was arrested vide memos Ex. PW-1/G PW-1/H, that he has identified the case property produced by the MHCM in the court.
10. During cross examination, he admitted that he was on a patrolling duty in the area of Kamla Market on that date since 6:00 pm, that the other police party with SHO Girish Kaushik met him at about 07:30 pm, that he as well as other members of the police were in uniform, that all the other police party were in a police gypsy, that he cannot tell the number of that gypsy, that the other police party those who have came in gypsy met him about 200-300 yards away from kotha no. 71, that many public persons were passing the road at that time. He admitted that there are shops on the main road under the kothas, that heavy traffic passes on the road in front of those kothas, that in his presence no public person ever communicated to the SHO as well as the member of the police party regarding seduction for the purpose of prostitution by the accused, that he did not carry his civil dress when he left P.S. Kamla Market for patrolling, that he was asked by the SHO at about 07:45 pm to wear civil uniform, that he do not remember colour of pant and shirt he wore on the asking of SHO, that he went to police booth nearby and from there he wore civil uniform. He further deposed that Rs. 250/- were given by the SHO from his pocket, that the handkerchief which was used in this case belonging to him was white colour, that the handkerchief was not taken into possession by the IO, that he cannot tell on which portion of the currency notes the SHO had put his signatures before handing over to him, that he as well as other police FIR No. 126/08 State Vs. Hema and Aruna Page No. 7 to 18 officials did not put their signatures on the currency notes, that he was directed at about 7:45 pm by the SHO to go inside the verandah of the G.B. Road, that the police party remained at a distance of 25 metre away from the place where he went, that the other police party hide themselves behind the pillars at the place, that he gave the signal by throwing the handkerchief at about 8:00 pm. He admitted that in Ex. PW-1/B there is no mention that which denomination of currency note was recovered from the possession of accused Mohd. Ahmed in his presence nor there is any mention of recovery of currency note of Rs. 50/- denomination from the said accused, that the rukka of this case was handed over to him by the IO at about 10:20 pm and he returned back from the PS at about 11:15 am, that after his return, the IO concerned obtained his signatures on Ex. PW-1/A, Ex. PW-1/B as well as personal search and arrest memo and his statement was recorded. He further deposed that he cannot tell who took both the accused persons for medical examination, that again said SI Brijesh Mishra took the accused persons to the hospital for medical examination, that he do not remember at what time he left the spot nor he remember at what time the rest of the police party left the spot, that he was on partolling duty from 6:00 pm to 10:00 pm on the day of incident, that he failed to remember at what time he made his arrival entry at the PS, that he did not mention in his arrival report in P.S. Kamla Market that he had remained as a witness in this case, that the SHO took back the seal from W/Ct. Kamesh on the next day at the P.S., that he denied that no such seduction was ever made by accused Hema along with accused Mohd. Ahmed (expired) on that day to him, that he denied that he is deposing falsely at the instance of SHO and others.
11. PW-3 is Sh. Yogesh Naryan, who deposed that he is running a business from shop no. 71, G.B. Road, that he is the owner of building no. 71, that he gave on rent the first floor of the building to Aruna Devi, that the certified copy of the Sale Deed establishing the fact that he is the owner of the building of 71 is mark X (Colly), that Aruna Devi still lives there and paying rent regularly to him.
FIR No. 126/08 State Vs. Hema and Aruna Page No. 8 to 18
12. In his cross examination conducted by Ld. APP for the State, he denied that he stated to the police officials that Aruna Devi was running a brothel at the first floor of his building and she was apprehended by the police. That he was confronted with the statement from point A to A mark Y. He denied that he is deposing falsely regarding this fact as he has been won over by the accused.
13. In his cross examination, conducted by Sh. B.B. Sharma, Ld. Counsel for the accused, he said that he does not have any rent agreement with the accused.
14. PW-4 is HC Ajay Kumar, who deposed that on 02.08.2008, he was posted at PS Kamla Market as duty officer, that his duty hours were from 04:00 pm to 12:00 am, that he received a rukka sent by Inspector Girish Kaushik through HC Mahesh at about 10:40 pm and on the basis of which he got FIR No. 126/08 registered, that FIR was registered by using the computer system and specially designed software installed at PS, which does not allow any alteration or deletion subsequent to the feeding of data, that the true print out of the FIR is Ex. PW-4/A, that he handed over the copy of FIR to HC Mahesh and made endorsement Ex. PW-4/B on the tehrir to this effect.
15. PW-5 is Inspector Girish Kaushik, who deposed that on 02.08.2008, he was posted at PS Kamla Market as Inspector, that he was acting as SHO, that many complaints were coming to them regarding a prostitution racket is going on at G.B. Road, that in pursuance of the information, he prepared a raiding party comprising of SI Brijesh Mishra, HC Mahesh, W/Ct. Kamlesh and went to the spot, that on reaching there they asked from the passer by to join the raiding party but no one agreed and left the spot without disclosing their names and addresses, that they made HC Mahesh a decoy customer and sent to the verandah near Kotha No. 70-71, that he gave him two hundred and fifty rupees in total comprising of two currency note of 100 rupees and one 50 rupees note containing his signatures and he also instructed him to give a signal by putting down handkerchief from his pocket on the finality of deal, that the decoy FIR No. 126/08 State Vs. Hema and Aruna Page No. 9 to 18 customer HC Mahesh proceeded towards the spot, that they followed him and they were hiding behind the pillars and big cars, that when the decoy customer HC Mahesh reached near Kotha No. 71, there they saw from a distance that a person and a girl were talking to each other, that decoy customer HC Mahesh also joined them and gave rupees to them, meanwhile he put down the handkerchief from his pocket which gave them the signal of the finality of the deal, that on getting signal, SI Brijesh Mishra apprehended the boy immediately after running him and W/Ct. Kamlesh apprehended the girl, that on investigation from both the accused persons i.e from the girl and boy, they came to know that the boy and the girl stopped the Ct. Mahesh and seduced him, that boy asked for Rs. 50 as a mediator and said that if he want then he can arrange this girl for you on Kotha No. 71, over which the girl namely Hema said that she would take RS. 200/- over which decoy customer Mahesh said that this is huge amount, on which Hema told that she would get only Rs. 100/- out of Rs. 200/- and rest will go to the Kotha Manager namely Aruna, HC Mahesh handed over the signed currency note to the accused persons, that on search above said Rs. 50/- signed currency note was recovered from the upper pocket of the shirt of accused Modh. Ahmed and rest Rs. 200/- on the denomination of RS. 100/- was recovered from the accused Hema, that he seized the currency note vide seizure memo already Ex. PW-1/A and Ex. PW- 1/B, that he sent HC Mahesh to PS with original rukka Ex. PW-5/A for registration of FIR, that FIR got registered and he came back on the spot along with the copy of FIR and original tehrir and handed over to him, that he put his signatures at point C on arrest memos of accused Aruna, Hema and Mohd. Ahmed already Ex. PW-1/B, PW-1/E and PW-1/C, that personal search of accused Aruna, Hema and Mohd. Ahmed got conducted vide personal search memos Ex. PW-1/H, Ex. PW-1/D, and PW-1/E and case property is Ex. as P1 and P2, that accused persons Hema and Aruna were identified by PW- 5/Inspector Girish Kaushik.
16. During his cross examination he admitted that he had made a DD entry in the FIR No. 126/08 State Vs. Hema and Aruna Page No. 10 to 18 PS while making a departure from the PS for patrolling of the area, that he do not remember the DD entry number, that he admitted that he did not enclose a copy of that entry with the challan, that HC Mahesh had accompanied him from the PS Kamla Market itself, that he left the PS in his official jeep, that he did not enclose with the challan the copy of the log book of the government vehicle which he used on that day, that he had only seen accused Hema and accused Mohd. Ahmed while talking in the said verandah with HC Mahesh, that he admitted that he has gone through Ex. PW-1/B, that there is not mentioned that a currency note of Rs. 50/- was recovered from the possession of accused Mohd. Ahmed. He voluntarily stated that the number of that note is mentioned in Ex. PW-1/B. He further deposed that the place of occurrence is crowded place, that there are many shops in the said verandah. He voluntarily deposed that by that time the said shops were closed. He admitted that there was traffic on the road in front of the said verandah, that he did not mention in rukka Ex. PW-5/A, that he had asked number of public persons to become a member of the raiding party, that he did not seize the handkerchief by which a signal was given by the HC Mahesh to the raiding party, that he from his own pocket gave Rs. 250/- to HC Mahesh, that he did not claim that money later on from the department. He denied that he had called the accused at the PS and falsely implicated in this case, that none of the accused ever found while talking with HC Mahesh on the date of occurrence and making a transaction for seduction. He admitted that he did not enclose with the challan copy of any complaint which was received at the PS about prostitution going on in the area of PS Kamla Market. He denied that he is deposing falsely.
17. Thereafter, PE was closed and matter was fixed for SA. Statement of both the accused under Section 313 Cr.PC was recorded by putting entire incriminating evidence to both the accused . Both the accused denied all the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose not to lead DE. Therefore, DE was closed and the matter was fixed for final arguments.
FIR No. 126/08 State Vs. Hema and Aruna Page No. 11 to 18
18. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
19. Perusal of the record reveals that accused Aruna is charged with offence 3/5 ITP Act and accused Hema is charged with the offence U/s 7/8 ITP Act.
20. In the present case, It is the version of the prosecution that on 02.08.2008 at about 09.00 pm, Additional SHO prepared a raiding party and they conducted raid at Verandah in front of Kotha No. 71, G. B. Road, Kamla Market and found that accused Hema was seducing the decoy customer namely HC Kamlesh for the purpose of prostitution in a public place and thereby committed offence punishable U/s 7/8 of ITP Act. They also found that accused Aruna was keeping and managing the brothel at aforesaid Kotha and for that accused Aruna precured/induced accused Hema for the purpose of prostitution and thereby committed offence U/s 3/5 ITP Act.
21. Perusal of the record reveals that Additional SHO had not obtained any document in respect of non taking of search warrants from the competent authority, therefore, admittedly, no search warrant obtained from the competent authority before conducting raid. PW-1 and PW-2 categorically deposed that place of incident was a crowded place and lot of public persons were present over there however, Additional SHO has not requested passer by to join the raiding party. No plausible explanation has been given for not joining independent public witnesses to the investigation which reflect that no sincere efforts were made by the Additional SHO concerned for joining public persons to the investigation despite the fact that lot of public persons were present at the place of incident.
FIR No. 126/08 State Vs. Hema and Aruna Page No. 12 to 18
22. PWs have categorically deposed about the presence of shops, public persons and traffic at the place of incident but IO did not ask any shopkeeper, traveler and passer by to join the search of accused persons, therefore admittedly there is no independent witness to the raid and the proceedings carried on by the police officials.
23. It has been consistently stated by all the prosecution witnesses that no one from the public persons were joined in the investigation.
24. The non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses and no efforts seem to have been made for joining independent witnesses.
25. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual FIR No. 126/08 State Vs. Hema and Aruna Page No. 13 to 18 occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of FIR No. 126/08 State Vs. Hema and Aruna Page No. 14 to 18 rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
FIR No. 126/08 State Vs. Hema and Aruna Page No. 15 to 18 In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
26. Now coming to the alleged fact that the amount of Rs 250/- was handed over by PW-1 HC Mahesh to accused persons in form of two currency notes of Rs 100/- and one currency note of Rs. 50/- each and same were allegedly recovered from the possession of accused Hema and Ahmed, it is pertinent to mention that there is no mention regarding the origin or ownership of the said currency notes and police has not taken the currency notes which are expected to be handed over to the accused in such cases from the Malkhana or such source which could lend authenticity to the version of the prosecution.
27. Moreover, it is also to be noted that all the relevant prosecution witnesses have deposed that PW-1 HC Kamlesh conducted the search of accused and recovered two currency notes of Rs 100/- from accused Hema and one currency note of Rs. 50 from accused Ahmed vide seizure memo Ex PW-1/A and Ex. PW-1/B respectively and that IO thereafter prepared a rukka for registration of FIR in this case but, perusal of the said seizure memo reveals that the same mentions the FIR no. alongwith other material details of the case despite it being apparent that FIR was registered subsequent to the preparation of Ex PW-1/A and Ex. PW-1/B. The said fact apparent on record therefore makes it clear that the documents have been antedated in time and thus serious doubts have been raised on the entire version of the prosecution.
28. Furthermore, PW-3 owner of Shop No. 71, G.B Road categorically deposed that he has given the First Floor of Building to accused Aruna Devi on rent. He categorically denied accused Aruna Devi was running a brothel at the First FIR No. 126/08 State Vs. Hema and Aruna Page No. 16 to 18 Floor.
29. It is pertinent to note that PW-2 HC Mahesh categorically deposed during his testimony that Additional SHO instructed him to give signal by falling his handkerchief as and when any prostitute seduced him for the purpose of prostitution however, as per cross examination of PW-1 ASI Kamlesh, PW-2 made a signal by shaking his hands. and not by falling his handkerchief, thereby contradicting testimony of PW-2 with respect to signal.
30. It is pertinent to note that PWs deposed in their examination in chief that they were receiving complaints regarding seduction to public persons by the prostitute, however, during cross examination they categorically admitted that no public person had ever made any complaint regarding any seduction. Furthermore, admittedly the handkerchief which was used for signal has not been seized by the IO for the reasons best known to him.
31. In view of aforesaid material contradictions in the testimonies of PWs regarding the number of persons in the raiding party at the time of raid and other aforesaid contradictions, possibility of any raid being not conducted cannot be ruled out.
32. Therefore, in view of the abovesaid reasons, appreciation of evidence, material contradictions in the testimonies of PWs and non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused persons beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused Hema is hereby acquitted of the offence u/s 7/8 ITP Act and accused Aruna stands acquitted for the offence U/s 3/5 ITP Act accordingly.
33. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is FIR No. 126/08 State Vs. Hema and Aruna Page No. 17 to 18 accepted for a period of six months from today.
34. File be consigned to the record room after due compliance.
Pronounced and Signed in the Open Court on 19.09.2016 (Shilpi Jain) MM-01(Central)/THC/Delhi 19.09.2016 FIR No. 126/08 State Vs. Hema and Aruna Page No. 18 to 18