Delhi District Court
Fir No. 185/05 St vs . Reshma And Mohd. Nizam Ps: Kamla ... on 17 August, 2011
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FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN
MAGISTRATE CENTRAL05, DELHI
STATE VS. Reshma and Mohd. Nizam
FIR NO: 185/05
P. S. Kamla Market
Date of institution of case : 06.04.2005
Date on which case reserved for judgment : 12.08.2011
Date of judgment : 17.08.2011
Advocates appearing in the case :
Sh. Vakil Ahmad, Ld. APP for State
Sh. R.K. Dutta counsel for accused Reshma and Sh. Amresh Kumar, LAC for accused Nizam
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 01.03.2005
b) Offence complained of : U/S 4 & 8 of ITP Act
c) Name of complainant : Sh. Farman Ali
d) Name of accused, his : 1). Reshma
parentage & residence D/o Sh. Zameer
R/o Village SPC Kaurmangla
Banglore, Karnataka
2). Mohd. Nizam @ Raju
S/o Sh. Mohd. Saleem
R/o Bihari Colony, Loni
e) Plea of accused : They are falsely implicated.
f) Final order : They are acquitted.
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FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case of prosecution are that the present case FIR was lodged on complaint of complainant Sh. Farman Ali S/o Sh. Rehmat Ali that he sells juice on a rehri at Lahori Gate Chowk and on 01.03.2005, at about 7:15 pm in the evening, after closing his shop, he was going towards his house and had reached kotha no. 50, G.B. Road veranda when one young lady and a boy met him near the stair case of kotha no. 50 and the lady pointed to him and asked him to go upstairs with her and demanded Rs. 140/ for sex and the boy standing near her also nodded and stated that he will take commission of Rs. 40/ but complainant got embarrassed by such statements and made complaint to the police about this incident and lodged FIR and got both the accused persons arrested. After apprehension of both the accused persons, the IO inquired their names, which were disclosed as Reshma and Nizam and after completion of investigation and recording statements of witnesses, IO filed chargesheet against both the accused persons.
2. Charge u/s 8 of ITP Act was framed against accused Reshma D/o Zamil and charge u/s 4 ITP Act was framed against accused Nizam @ Raju S/o Mohd. Salim, to which they pleaded not guilty and claimed trial.
3. Prosecution has examined five witnesses to prove its case. PW1 is DO HC Mange Ram, who exhibited copy of FIR as Ex.PW1/A. PW2 is W/Ct. Page 3/11
FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market Veerwati who stated that on 01.03.2005, she was on patrolling duty with SHO Inspector Mangal Sain and ASI Rajbir Singh and at about 7:30 pm, they were present near police booth, shop no. 41, G.B. Road, where one Mohammedan person came and met the SHO and told that one girl and boy standing in varandah of kotha no. 50, G.B. Road had tried to seduce him for prostitution and on his complaint, SHO briefed them and organized raiding party and requested passersby to join the raiding party but they declined, so the raiding party proceeded further and at the instance of complainant, arrested the lady and the boy. PW2 stated that she had apprehended accused Reshma on the spot and she correctly identified her in court. However, she failed to identify the other accused i.e. Nizam and stated that she can not identify him since she had not apprehended him and he was apprehended by ASI Rajbir Singh. She exhibited the arrest memos and personal search memos of accused persons from Ex.PW2/A to D. She was crossexamined by Ld. APP on the point of identity of coaccused, with permission of court and in her cross examination, she admitted that the name of coaccused was Nizam @ Raju and she correctly identified accused Nizam in court.
4. In her crossexamination by the defence counsel, PW2 stated that SHO at that time was Ajit Singh but Inspector Mangal Sain was Additional SHO. She stated that her statement was recorded at the spot between 8 pm to 9 pm. She denied the suggestion that accused Nizam was not arrested at the spot and was falsely implicated in this case.
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FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market
5. PW3 ASI Rajbir Singh also deposed on the same lines as PW2. He correctly identified both the accused Reshma and Nizam, present in court and stated that both were apprehended at the instance of complainant Farman Ali. He stated that IO / SHO prepared rukka and sent him to lodge FIR and after his return with copy of FIR, accused persons were arrested in his presence. In his cross examination, PW3 admitted that Inspector Mangal Sain was additional SHO of PS Kamla Market but on that day, SHO was on leave and Inspector Mangal Sain was incharge of police station. He admitted the fact that all the memos bear signatures of Inspector Mangal Sain as Additional SHO and not as officiating SHO. He admitted that he had not heard the conversation between complainant Farman Ali and accused persons. He stated that he had made departure entry in police station before going for patrolling but he did not remember the DD number.
6. PW4 Retired ACP Mangal Sain stated that on 01.03.2005, he was posted as Additional SHO PS Kamla Market and was on patrolling duty with ASI Rajbir Singh and W/Ct. Veerwati when on the complaint of complainant Farman Ali, both the accused persons were apprehended. He stated that 4/5 passersby were requested to join the raiding party but they refused and went away without telling their names. He correctly identified both accused Reshma and Nizam in court. In his crossexamination, he admitted that investigation of the cases under ITP Act can be done only by SHO and ACP as per Notification dated 14.12.1998 (Mark DA). IO PW4 stated that he did not remember in whose hand writing the statement Page 5/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market of public person was recorded. He admitted that statement of witnesses u/s 161 Cr.P.C. were recorded by his operator. He did not even remember in whose hand writing the application for medical examination of accused persons were written. He admitted that he had not prepared any document at the spot in his hand writing and further admitted that documents were prepared by his staff and he put his signatures on the same. He denied the suggestion that he had not gone at the spot where accused persons were arrested.
7. PW5 is the complainant Farman Ali who stated on oath that he did not remember the exact date, month or year of the incident but it may be about 5/6 years back when he was carrying his rehri from Lahori Gate to his house at Shivaji Road via G.B. Road when at about 7 to 7:30 pm at G.B. Road, one lady who was standing near kotha no. 50, pulled his shirt and asked him to go upstairs on the kotha alongwith her. PW5 stated that he did not know the purpose for which she wanted to take him upstairs and he refused to go upstairs due to which she started abusing him, therefore, he went ahead to the police post and met ASI Rajbir and told him the entire fact. PW5 further stated that ASI Rajbir went with him at the spot and on his pointing out, he apprehended the lady and took her to police post and started preparing documents and got his thumb impressions on the documents in the police post itself. PW5 stated that he did not know what documents were prepared by ASI Rajbir since he is an illiterate person and can not read and write any language. He further stated that he did not know the name of accused lady till Page 6/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market date but he identified her correctly in court. He stated that the accused lady was alone at that time and she had not made any demand from him.
8. Ld. APP for State cross examined the PW5 with permission of court and in his crossexamination, PW5 categorically denied that one boy namely Mohd. Nizam was also present with accused Reshma and had demanded Rs. 40/ as commission. PW5 further denied that accused Reshma had demanded Rs. 140/ as consideration for prostitution. He denied the suggestion that police had arrested accused Nizam in his presence. He further denied that accused Reshma had seduced him for prostitution. He stated that police had obtained his thumb impression on the documents without reading over the documents to him.
9. After closure of PE, statement of both accused persons u/s 313 Cr.P.C. were recorded. Accused persons did not lead any defence evidence, hence final arguments were heard on last date and case was kept for order for today. BRIEF REASONS FOR DECISION AND DECISION THEREOF.
10. During final arguments, the counsel Sh. Amresh Kumar, LAC on behalf of accused Nizam has stressed upon the statement of PW5 i.e. Complainant Farman Ali and argued that the complainant who was the only eye witness to the alleged offence has failed to identify the accused Nizam and has categorically Page 7/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market stated in his statement before Court that there was no boy named Nizam present with the lady Reshma on the spot on the date of incident. The counsel Sh. K.K. Dutta on behalf of accused Reshma has argued that the complainant has no where alleged in his statement that accused Reshma demanded any money from him, rather the complainant i.e. PW5 Farman Ali stated that he does know for what purpose the lady wanted to take him upstairs. Hence, the counsel has argued that ingredients of Section 8 ITP Act are not made out against accused Reshma since no allegation of seduction or demand of any consideration for purpose of prostitution, has been made by the complainant / PW5 in his statement.
11. The Ld. APP argued that the very fact that the lady Reshma had been identified in court by complainant and the fact that complainant has stated that the lady pulled him by his shirt and asked him to go upstairs to the kotha alongwith her, itself suggest that she wanted to take the complainant to her kotha for the purpose of prostitution, hence offence u/s 8 ITP Act is made out against accused Reshma.
12. The perusal of statement of the only eye witness i.e. PW5 Sh. Farman Ali reveals that he has only alleged that he was passing by the road at G.B. Road when accused whose name was later revealed as Reshma, pulled him by his shirt and wanted him to go upstairs alongwith her but PW5 has stated that he does not know for what purpose she wanted to take him upstairs and he had refused and went ahead and complained to ASI Rajbir at police post who came back with him Page 8/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market and apprehended the lady at the instance of PW5 and thereafter, prepared the documents at police post. PW5 has not named any other police officer who might have been present with ASI Rajbir at the police post. PW5 has categorically stated that he is an illiterate person and does not know how to read and right and ASI Rajbir had himself prepared the documents and got his thumb impression on the document without explaining what was written in the documents. This falsifies the case of prosecution that raiding party was prepared and W/Ct. Veerwati and Inspector Mangal Sain were also part of raiding party.
13. Ld. APP has cross examined PW5 with permission of court but PW5 has denied the suggestion that there was one boy namely Nizam alongwith accused Reshma. PW5 further denied the suggestion that accused Reshma had demanded Rs.140/ as consideration for prostitution and accused Nizam had demanded Rs. 40/ as commission. PW5 also denied that accused Nizam was arrested in his presence by the police.
14. Perusal of statement of PW4 retired ACP Mangal Sain reveals that PW4 did not even know who had prepared the documents of arrest and who had recorded statements u/s 161 Cr.P.C. during investigation. Even the perusal of cross examination of PW3 ASI Rajbir Singh reveals that he did not know who had written the documents and statements u/s 161 Cr.P.C.
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FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market
15. Perusal of statement and cross examination of PW5 reveals he has not even named PW2 W/Ct. Veerwati to be present at the site with ASI Rajbir. It seems from statement of PW5 i.e. the complainant that at the time when complainant had made complaint to police post, only ASI Rajbir was present at site and he had himself apprehended accused Reshma and the story that raiding party comprising of W/Ct. Veerwati, ASI Rajbir Singh and Inspector Mangal Sain was prepared at the complaint of complainant, is just an after thought and it seems that the signatures of W/Ct. Veerwati and Inspector Mangal Sain were obtained later on after preparation of documents and arrest of accused Reshma. Complainant as PW5 has categorically stated that no boy was arrested alongwith accused Reshma at the spot. Hence, no offence u/s 4 ITP Act is made out against accused Mohd. Nizam @ Raju S/o Mohd. Salim and he is acquitted of offence u/s 4 ITP Act.
16. As far as accused Reshma is concerned, complainant as PW5 has categorically stated that no demand was made by accused from the complainant. He has denied the suggestion of Ld. APP that Rs. 140/ was demanded by accused Reshma from complainant. Perusal of file also reveals that there is no case property of any cash amount and there is no seizure memo of seizure of any case property. Hence, it seems that the claim that accused Reshma demanded Rs. 140/ from complainant is just an after thought of police.
Section 2 (f) of ITP Act defines prostitution as the "sexual exploitation" or abuse of person for commercial purposes and the expression prostitute Page 10/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market shall be construed accordingly.
Section 8 of ITP Act 1956 (Seducing or soliciting for purpose of prostitution) states that whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not
a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endevours to attract the attention of, any person for the purpose of prostitution; or
b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees.
{Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.}
17. Perusal of both the above said sections and the statement of complainant / PW5 reveals that there was no seduction of complainant and no Page 11/11 FIR no. 185/05 St vs. Reshma and Mohd. Nizam PS: Kamla Market demand by accused Reshma which can be covered under commercial purpose. The perusal of statement of PW5 reveals that it was a minor altercation between complainant and accused Reshma which has been made into a case of prostitution and seduction by the police. The ingredients of section 2 (f) and 8 of ITP Act are not made out in present case. Hence, accused Reshma also stands acquitted of offence u/s 8 of ITP Act. Both the accused stands acquitted. PB & SB of both accused stands discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 17th August, 2011 MM05(CENTRAL),DELHI