Delhi District Court
State vs . Sayda & Ors. on 24 December, 2019
IN THE COURT OF MS. SNIGDHA SARVARIA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State Vs. Sayda & ors.
FIR No. 300/04
PS: Seemapuri
U/s 3,4,5 & 8 Immoral Traffic (Prevention) Act, 1956
a. Comp. ID No. of the case : 82781/16
b. Date of commission of offence : On 17.07.2004
c. Date of institution of the case : 11.07.2005
d. Name of complainant : Insp. Jai Kishan
e. Name of accused : 1.Sayda
W/o Sh. Mohd. Hanif
R/o E-59/365, Kalandar Colony,
Dilshad Garden, Delhi.
2.Moni
W/o. Sh. Islam
R/o. H.No. E-59/332, Kalandar
Colony, New Seemapuri, Delhi.
3.Kunti
W/o. Sh. Suresh Kumar
R/o. H.No. 808, Tulsi Niketan,
Shahibabad, Ghaziabad, UP.
4.Kamlesh
W/o. Sh. Virender Singh
Chauhan
R/o. H.No. C-82, Gali No.10,
Shiv Vihar, Delhi.
f. Offence complained of : U/s 3, 4, 5 & 8 ITP Act
g. Plea of accused : Pleaded not guilty
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 1 of 17
h. Arguments heard on : 10.12.2019
i. Final order : Accused Moni and Sayda are
convicted under Sections 3/ 4 of
the ITP Act
Accused Kamlesh and Kunti are
Convicted under S. 3 of ITP Act.
j. Date of judgment : 24.12.2019
JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 17.07.2004 at about 9:50 p.m. at Jhuggi No. E-49/330, Kalander Colony, Seema Puri, Welcome, Delhi, all abovesaid accused persons kept managing or assist in keeping or management of a brothel.
Further, it is alleged that accused Sayda and Moni asked for commission of Rs.500/- on the earnings by way of prostitution of Kunti and Kamlesh. Further it is alleged that accused Sayda and Moni induced and procured Kunti and Kamlesh for the purpose of prostitution. Further it is alleged that all abovesaid accused persons endeavored to tempt and to attract Vinod Sharma, the decoy customer for the purpose of prostitution and thus, committed offences punishable U/s 3, 4, 5 & 8 of Immoral Traffic (Prevention) Act.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused persons were summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 3, 4, 5 & 8 ITP Act was framed upon accused persons Sayda, Moni, Kunti and Kamlesh vide order dated 13.04.2006. Accused persons pleaded not guilty and claimed trial.
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 2 of 17
3. In order to prove its case the prosecution examined 14 witnesses. PW-1 is Sh. Vinod Sharma, PW-2 is SI Kiran Pal, PW-3 is Ex. Ct. Vimlesh, PW-4 is Ct. Bachchu Singh, PW-5 is Retd. SI Badloo Singh, PW-6 is Retd. ACP Jai Kishan and PW-7 is Sh. Sanjeev Kumar Yadva and thereafter, PE was closed vide order dated 02.07.2018. Statement U/s 313 Cr.P.C. of accused persons namely Kunti, Kamlesh and Moni were recorded on 29.04.2019 and that of accused Sayda recorded on 29.06.2019. All accused persons want to lead defence evidence and examined Sayda as DW-1, ASI Dalip as DW-2 and Ct. Prahlad as DW-3 and defence evidence was closed vide order dated 28.08.2019.
4. I have heard the arguments of Ld. APP for the State as well as of ld. Counsel for accused persons, perused the record and have gone through the relevant provisions of the law.
5. At this juncture it is relevant to consider the relevant provisions of law, which are as under:
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.--(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who-- (a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 3 of 17 a term which may extend to five years and also with fine. 8[(2A) For the purposes of subsection (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are beig used as a brothel, if,-- (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.] (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of subsection (2) of any offence under that sub section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution.--(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of 1[any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both 2[and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years]. 3[(2) Where any person over the age of eighteen years is proved-- (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of subsection (1).]
5. Procuring, inducing or taking 4[person] for the sake of prostitution.--(1) any person who-- (a) procures or attempts to procure a 4[person], whether with or without his consent, for the purpose of prostitution; or (b) induces a 4[person] to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or (c) takes or attempts to take a 4[person], or causes a 4[person] to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a 4[person] to carry on prostitution; 5[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if any offence under this subsection is committed against the will of any person, the FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 4 of 17 punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub section,-- (i) is a child, the punishment provided under this sub section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] (3) An offence under this section shall be triable-- (a) in the place from which a 1[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 1[person] is made; or (b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
8. Seducing or soliciting for purpose of prostitution.-- 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, wilful exposure of her 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 endeavours 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: 1[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.]
6. The star witness/ decoy customer PW-1 Vinod Sharma has deposed that when he was going to Dilshad Garden and when he reached at Gauri Shanker Mandir, Kalandar Colony, Dilshad Garden then police team met him including SHO who stopped him and requested for help from him by stating that prostitution was being carried out in Dilshad Garden Area and requested PW-1 to join the proceedings and PW-1 agreed to join the proceedings. The secret informer in the raiding party pointed out towards the flat where FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 5 of 17 prostitution was going on. SHO sent Kiran Pal, police official alongwith PW-1 to deal with accused persons after handing five currency notes of denomination Rs. 100/- after making initials. Thereafter they went to the flat pointed out by the secret informer. PW-1 knocked the door and one lady Moni came out and after some talks PW1 demanded one lady for prostitution. Accused Moni called another lady from inside the flat and accused Moni asked PW-1 if he wanted that lady or some other lady. Accused Moni had demanded Rs. 1000/- for one time prostitution. Accused Moni demanded Rs. 500/- as her share/commission and Rs. 500/- for that girl. Two other ladies were also present inside the said jhuggi and PW-1 paid Rs. 500/- to accused Moni and selected accused Munni (Kunti as pointed out by PW-1 in the court). Police officer Kiran Pal was present outside the jhuggi who made signal to the raiding party and raiding party rushed towards the spot. Same time accused Moni handed over currency note to other lady who was standing behind her namely Sayda. Rs. 500/- was recovered from Sayda. IO sealed the said currency with the seal of JK and taken into possession.
7. The shadow witness PW2 SI Kiran Pal deposed that while he was posted in PS Seemapuri a secret information was received by SHO PS Seemapuri at about 08.50 a.m. regarding prostitution work carried out in kalandar colony Area and the said secret information was conveyed by SHO to PW-2 and on the said information SHO prepared a raiding party consisting of PW-2, HC Jai Chand, HC Yash Vir, Ct. Bachu Singh and Lady Ct. Vimlesh including SHO Inspector Jai Kishan Gautam. All the members of raiding party proceeded towards the spot on a government vehicle i.e. Gypsy and PW-2 was in a civil dress. On the way to Gauri Shanker Mandir SHO had requested 4-5 persons to join raiding party and one Vinod Sharma agreed to join raiding party. SHO handed over five currency notes of 100/- denomination bearing initial JK and handing over memo Ex. PW2/A FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 6 of 17 was prepared. Mr. Vinod Sharma was made a decoy customer. In the meantime, ACP Seemapuri also reached there and asked the secret informer about the information. SHO had directed PW-2 to become a shadow witness and PW-2 was asked to see and hear talks between decoy customer and prostitutes. SHO had told PW-2 that deal was stuck with the prostitute then PW-2 should indicate the raiding party by raising his hands over the head. PW-2 went with PW-1 to the jhuggi on the instruction of the informer. Raiding party remained few distance away from the spot. PW-2 deposed on the same lines as PW-1 and identified the lady who opened the door as accused Moni and the second lady called by accused Moni as you (Sayda). You told accused Moni to call other two ladies. You told the decoy customer that each lady would charge Rs. 200/- each for sex. You also stated PW-1 to pay Rs. 500/- for having sex with other two ladies and Rs. 500/- as your commission. You and other co-accused person make obscene gesture and PW-1 picked accused Kunti for prostitution. Money was exchanged between PW-1 and accused Moni who handed over money to you which you kept in your bra. After the deal was stuck PW-2 had indicated the raiding party. PW-2 proved seizure memo Ex. PW1/A, Ex. PW1/B to Ex. PW1/I. He also identified you and other co-accused persons. He deposed that SHO prepared rukka and handed over the same to Ct.Bachu Singh for registration of FIR who went to PS and returned back to the spot after registration of FIR and copy of FIR and original rukka to SHO. SHO recorded statement of all witnesses. PW-2 was directed by IO to get the medical examination of all four accused persons conducted. Thereafter you and other co-accused persons were sent to lady lock-up, Shahdara.
8. PW1 Vinod Sharma proved seizure memo of currency notes as Ex PW1/A; arrest memo of accused persons as Ex. PW1/B, Ex. PW/C, Ex. PW1/D and Ex. PW1/E and personal search memos of FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 7 of 17 accused persons as Ex. PW1/F, Ex. PW1/G,Ex. PW1H and Ex. PW1/I and the currency notes as Ex. P1 (Colly). PW2 SI Kiran Pal proved currency handing over memo Ex. PW2/A; seizure memo Ex. PW1/A, Ex. PW1/B to Ex. PW1/I and currency notes Ex. P1(Colly.). PW3 Ct. Vimlesh proved documents Ex. PW1/A to Ex.PW1/I and Ex. P1 (Colly.). PW4 Ct. Bachchu Singh proved currency notes Ex. P1(Colly.). PW-5 SI Badlu Singh proved endorsement on tehrir Ex.PW5/A and FIR no. 300/04 PS Seemapuri as Ex. PW5/B. PW-6 Retd. ACP Jai Kishan proved documents Ex. PW2/A i.e. handing over memo, seizure memo Ex. PW1/A of the currency notes, rukka Ex. PW6/A, site plan Ex. PW6/B, arrest memos Ex. PW1/B to Ex. PW1/E, personal search memos Ex. PW1/F to PW1/I, currency notes Ex. P1 (Colly.). PW-7 DCP Sanjeev Kumar Special Cell proved currency note Ex.P1 (Colly.).
9. According the section 3 of the Act, any person who keeps or manages or assists in the keeping or management of a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. It further provides that any person who being the tenant, lessee, occupier or person in charge of any premises, uses or knowingly allows any other person to use, such premises as a brothel shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 8 of 17
10. It is obvious that for proving an offence under Section 3 of the Act some specific instances of prosecution must be proved and then it must further be proved that the accused was managing/keeping the place with the knowledge that same is being used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. In all such cases, it will be almost impossible for prosecution to succeed unless some specific instance of prostitution are proved and that is why while organising raids, decoy customer is generally used for the purpose of providing sexual exploitation of girls for monitory gain of another person or for the mutual gain of two or more persons. Owner of the premises is not a condition precedent. Rather any person, who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be liable to be punished.
11. Section 2 (a) of the Immoral Traffic (Prevention) Act, 1956 (for short, the `ITP Act') defines `brothel' to mean any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purpose of sexual exploitation or abuse, for the gain of another person or for the mutual gain of two or more prostitutes. The essential ingredient, therefore, is a place being used for the purpose of sexual exploitation or abuse. The phrase `for the purpose of' indicates that the place being used for the purpose of the prostitution may be a brothel provided a person uses the place and ask for girls, where the person is shown girls to select from and where one does engage or offer her body for promiscuous sexual intercourse for hire. In order to establish prostitution, evidence of more than one customer is not always necessary. All that is essential to prove is that a girl/lad should be a person offering her body for promiscuous sexual intercourse for hire. Sexual intercourse is not an essential ingredient. The inference of prostitution would be drawn from diverse FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 9 of 17 circumstances established in a case. Sexuality has got to be established but that does not require the evidence of more than one customer and no evidence of actual intercourse should be adduced or proved. It is not necessary that there should be repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances may be sufficient to establish that the place is being used as a brothel and the person alleged was so keeping it. The prosecution has to prove only that in a premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. On proof thereof, it becomes a brothel.
12. In the instant case too PW1 decoy customer was used to prove offences under S. 3 of ITP Act. From the testimony of PW1/decoy customer and PW2/shadow witness it is apparent that accused Kunti, Kamlesh, Moni and Sayda used the premises Jhuggi no. E-49/330, kalander Colony, Seemapuri, Welcome, Delhi for the purpose of the prostitution by themselves for their mutual gain. Thus, accused persons Kamlesh, Kunti, Moni and Sayda have committed offences punishable under S. 3 Of ITP Act.
13. The contention of counsel for the accused persons that accused Kamlesh should be given benefit of doubt and acquitted since PW1 deposed that accused Kamlesh was not present at the abovesaid brothel on 17.07.2004 is without any merits as PW2 has categorically deposed about the act and role of accused Kamlesh and accordingly accused Kamlesh was arrested on 17.07.2004 with other accused persons and thus the chain of circumstances point also towards the guilt of accused Kamlesh.
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 10 of 17
14. Evidence of identification has to be considered in the peculiar facts and circumstances of each case. Where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety. Same was held In Lal Singh v. State of Uttar Pradesh :
2004 A.I.R. (SC) 299 : 2004 Cri.L.J. 378 : 2004(1) R.C.R.(Criminal) 209 : 2003(4) Crimes 482 : 2003(12) S.C.C. 554 : 2003(9) Scale 256 :
2003(8) J.T. 488 : it was held as follows :
"43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circum-
stances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportu- nity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilis- ing the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recov- ery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."
15. The contention of counsel for the accused that accused Kunti must be given benefit of doubt as PW1 deposed her name as Munni is without any merits as merely by calling accused by a different name although accused was correctly physically verified coupled with the testimony of PW2 and the entire chain of circumstances accused Kunti does not deserve benefit of doubt.
16. According to section 4 of ITP Act, any person who is above the age of 18 years and who knowingly lives on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend up to two years or with fine which may extend to one thousand rupees or both and if such an earning is related to the prostitution of a minor, then the term may extend to not less seven years and not more than 10 years.
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 11 of 17
17. PW1 and PW2 have deposed that accused Moni and Sayda took Rs. 500/- (5 notes of denomination of Rs. 100/- Ex P1) as commission for prostitution by accused Kunti and Kamlesh from PW1/decoy customer. Thus, accused persons Moni and Sayda have committed offences punishable under S. 4 Of ITP Act.
18. Section 5 of the Act of procuring or attempting to procure or inducing of a person whether with or without his consent for the purpose of prostitution or inducing a person to carry on prostitution is punishable with rigorous imprisonment for a term not less than three years and not more than seven years and fine of two thousand rupees and if the offence is committed without the will of any person than the term may exceed upto 14 years. In case the aforesaid, offence is committed in respect of a child the punishment extends to rigorous imprisonment for a term of not less than seven years but may extend to life and if it is minor, the punishment extends to rigorous imprisonment for a term not less than seven years and not more than 14 years.
19. In the case at hand. none of the witnesses of the prosecution deposed that there was any inducement by the accused persons Sayda and Moni to force or seduce accused Kamlesh and Kunti to illicit/procure prostitution by them. Thus, clearly, the ingredients of offences punishable under Section 5 of the ITP Act have not been proved beyond reasonable doubt by the prosecution. Accordingly, accused persons Sayda, Moni, Kunti and Kamlesh are acquitted for offences punishable under S. 5 of the ITP Act.
20. Attracting the attention of any person by words, gestures, wilful exposure of the person or soliciting or molesting any person so as to offend against public decency for the purpose of prostitution is punishable on first conviction with imprisonment for a term, which may FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 12 of 17 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 according to Section 8.
21. In the present case. none of the witnesses of the prosecution deposed that the accused persons Kamlesh, Kunti, Sayda and Moni attracted the attention of any person including decoy customer and shadow witness by words, gestures, wilful exposure of the person including decoy customer and shadow witness or soliciting or molesting any person including decoy customer and shadow witness so as to offend against public decency for the purpose of prostitution. Thus, clearly, the ingredients of offences punishable under Section 8 of the ITP Act have not been proved beyond reasonable doubt by the prosecution. Accordingly, accused persons Sayda, Moni, Kunti and Kamlesh are acquitted for offences punishable under S.8 of the ITP Act.
22. The defence of the accused persons that decoy customer and shadow witnesses were also offenders in the present case as they had sought for prostitution is without any merits in view of the decision in Chandru S v. State, Crl. Petition No. 5059 of 2017, order dated December 7, 2017 wherein it was held that customers in a brothel are not offenders under ITP Act.
23. The contention of the counsel for the accused persons that the date offence mentioned in the charge dated 13.04.2006 is wrong and thus accused persons must be acquitted is without any merits as same is an irregularity which does not vitiate trial and even otherwise FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 13 of 17 no prejudice has been caused to the accused due to the said irregularity.
24. The contention of the counsel for the accused that PW1 is an unreliable witness and is habitual of deposing in favour of the police of PS Seemapuri is without any merits as merely because a person ap- pears for the police as a witness, it is not enough to dub him as a slock witness and make his evidence altogether unreliable unless some stric- tures are passed against him or he has been disbelieved by a compe- tent Court. Same was observed in a decision of P. D. Sharma, J. in Kharaiti Lal v. The State, 1965 DLT 362 whereas Shri Daljit Singh for fee State has cited a decision by Bedi, J. in Tarsem Lal v. State, (1963) 65 Pun LR 1102 : (AIR 1965 Punjab 27). In the former case, after observing on the facts and circumstances that the witnesses as- sociated with them by the Anti-Corruption raid party could not be con- sidered independent the Court added that the Anti-Corruption Depart- ment in order to avoid such criticism should always make an earnest effort to associate outsiders having some status in life and in case it is not possible for them to do so they should join senior officials working in various departments of the Delhi Administration while conducting raids of the present kind. In the latter case, it was observed that merely because a person appears for the police as a witness, it is not enough to dub him as a slock witness and make his evidence altogether unreli- able unless some strictures are passed against him or he has been dis- believed by a competent Court. In this last reported case, reference has also been made to a decision of the Supreme Court in Aher Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217 in which the presumption of acting honestly has been applied to police of- ficers as well.
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 14 of 17
25. The contention of the counsel for the accused persons that depositions of police witnesses is not reliable is without any merits as testimonies of PW1 and PW2 to PW7 are corroborative of each other and there is no doubt in the testimony of police witnesses.
26. The contention of the counsel for the accused that since no public persons of the locality as per S. 15 of ITP Act were made part of the raid conducted in the abovesaid brothel thus accused persons deserve to be acquitted is without any merits as PW2, PW6 and PW7 have categorically stated that despite the best efforts of the IO the pub- lic persons did not join and it is a well known fact that the public is dis- interested in coming forward as a witness in criminal cases, reasons of the same need not be discussed herein. (See: Kesho Parshad v. State (Delhi) :1967 AIR (Delhi) 51).
27. The contention of the counsel for the accused that since PW6 had deposed that he did not search decoy customer PW1 before sending him as decoy customer to find out how much personal money PW1 was carrying and thus accused persons deserve benefit of doubt is without any merits as the case property Rs. 500/- Ex P1 were 5 currency notes in the denomination of Rs100/- each bearing initial JK and even if PW1 was carrying his own currency notes then also Ex P1 was unique due to the initials of PW6 on them.
28. The contention of the counsel for the accused that there are discrepancies in the testimonies of prosecution witnesses is without any merits as minor variations are bound to occur in testimonies of the witnesses due to lapse of time. On perusal of testimonies of all the prosecution witnesses there are no material contradictions in their depositions. In Sukhdev Yadav v.State of Bihar AIR 2001 SC 3678, it FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 15 of 17 was held that minor variations may be there but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise.
29. Thus, in view of the foregoing discussions, the prosecution has proved its case beyond reasonable doubt against accused persons Moni, Sayda, Kamlesh and Kunti qua offences punishable under S. 3 of ITP Act & under S. 4 of ITP against accused Moni & Sayda.
30. The defence of the accused persons is that they are innocent and the police officials of PS Seemapuri used to regularly visit house of accused Sayda and they threatened and misbehave with her and her younger daughter in the year 2002-2003. In this regard she made complaint to the higher authorities against the police officials of PS Seemapuri and to take the revenge the staff of PS Seemapuri falsely implicated the accused persons in the false and frivolous present case. This defence has not been proved of preponderance of probability by the accused as complaints dated 22.04.2002 Ex DW1/A and Ex DW1/B and that mentioned in diary of correspondence Ex DW2/1 are the same has not been proved as per the Indian Evidence Act by the accused Sayda and even if it is believed that police of PS Seemapuri took revenge from accused Sayda for her complaints against police officials of PS Seemapuri but then why were accused persons Moni, Kunti and Kamlesh implicated and why would PW1 an independent witness depose against the accused persons. Thus, this defence of the accused persons is not believable and is of no assistance to the accused persons.
31. In view of the foregoing discussion, accused Moni and Sayda are convicted for offences punishable under Sections 3/ 4 of the Immoral Traffic Prevention Act and accused Kamlesh and Kunti are FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 16 of 17 convicted for offences punishable under S. 3 of the Immoral Traffic Prevention Act. The accused persons Sayda, Moni, Kunti and Kamlesh are acquitted for offences punishable under S. 5/8 of the ITP Act.
Digitally signed by SNIGDHA SNIGDHA SARVARIA
SARVARIA Date:
2019.12.24
Announced in the open (SNIGDHA SARVARIA) 15:33:15 +0530
Court on 24.12.2019 Metropolitan Magistrate-01
Shahdara District, Karkardooma
Courts, Delhi
Judge Code: 0530
FIR No.300/2004 PS Seemapuri State V. Sayda (24.12.2019) Pg No. 17 of 17