Delhi District Court
Smt. Meena D/O Sh. Gopal vs The State (Govt. Of Nct Of Delhi) on 10 August, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Appeal No. 06/2011
Smt. Meena D/o Sh. Gopal
R/o : Kotha No. 54, First Floor,
Right Side, G. B. Road,
Delhi. ...... Appellant/Accused
VERSUS
The State (Govt. of NCT of Delhi)
Through its Chief Secretary,
New Secretariat, New Delhi. ...... Respondent
Date of filing of Criminal Appeal : 20.01.2011
Date of conclusion of arguments : 10.08.2011
Date of judgment : 10.08.2011
Application on behalf of the appellant/
applicant under Section 389 Cr. P. C. for
suspension of sentence and grant of bail
JUDGMENT :
This appeal arises from the judgment dated 22.12.2010 and order on sentence dated 24.12.2010 passed by the Metropolitan Magistrate in case FIR No. 08/2006, registered at PS Criminal Appeal No. 06/2011; Meena V/s State Page No. 1 of 9 Kamla Market, under Section 3/4/5/8 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as "ITP Act") holding the appellant (hereinafter referred as "accused") guilty for committing the offence punishable under Section 8 of the ITP Act and has been sentenced to Simple Imprisonment for 03 months with fine of Rs. 500/, in default to undergo further Simple Imprisonment for 10 days.
2. Prosecution story, as per the chargesheet in brief is that on 04.01.2006 in the evening at about 07.55 pm Inspector Rakesh Giri, SHO PS Kamla Market while patrolling with the staff reached at G. B. Road in front of Kotha No. 42 and received a secret information that a young woman and a young boy were seducing people for prostitution near stairs of Kotha No. 54 at G. B. Road. SHO constituted a raiding party and sent Ct. Khursheed Ahmed, No. 2017C, in civil clothes, as a decoy customer after giving him necessary instructions and Rs. 250/ (two currency notes of denomination of Rs. 100/ and one currency note of denomination of Rs. 50/, all signed by the SHO). SHO alongwith the accompanying staff & W/Ct. Veerwati took the position. Ct. Khursheed Ahmed as a decoy customer, went near the stair case of Kotha No. 54, where accused and coaccused Dharamvir Criminal Appeal No. 06/2011; Meena V/s State Page No. 2 of 9 were allegedly standing. Ct. Khursheed Ahmed spoke to them and gave a signal to the police party, which immediately responded and apprehended both the accused. The trap money bearing the signatures of the SHO was allegedly recovered from the possession of both the accused. FIR was registered on the basis of rukka prepared by Inspector Rakesh Giri. During investigation, one Meera, alleged to be the owner of Kotha was arrested on the basis of disclosure of the accused, and all the three accused were chargesheeted to face trial before the Court of Metropolitan Magistrate under Section 3/4/5/8 of ITP Act.
3. Accused Meera was discharged by the Trial Court vide order dated 24.03.2006, whereas accused Meena (appellant) was charged for the offence punishable under Section 8 of ITP Act and accused Dharamvir was charged for the offence punishable under Section 4 of ITP Act. They both pleaded not guilty and claimed trial. However, accused Dharamvir pleaded guilty during trial and vide judgment and order dated 04.07.2006 he was convicted for committing the offence punishable under Section 4 of ITP Act and was sentenced to Simple Imprisonment for a period of 06 months with fine of Rs.500/, and in default to further undergo Simple Imprisonment for 02 days.
Criminal Appeal No. 06/2011; Meena V/s State Page No. 3 of 9
4. Prosecution examined 07 witnesses in all. PW1 Arti and PW2 Bala Devi, the public witnesses turned hostile and did not support the prosecution case. They were thus crossexamined by Ld. Addl. PP for the State. PW3 Ct. Khursheed Ahmed is the decoy customer, PW4 HC Prabhu Dayal is the Duty Officer, who had registered the FIR (copy Ex. PW4/A) on the basis of rukka (Ex. PW4/B) sent by PW7 Inspector Rakesh Giri. PW6 Anil Kapoor from Home Department, Delhi Secretariat produced the original Notification No. F.5/67/88Home (P)/Estb. dated 14.12.1988 (copy Ex. PW6/A). PW5 Lady Ct. Veerwati and PW7 Inspector Rakesh Giri are the police witnesses of the raiding party. PW7 Inspector Rakesh Giri is also the Investigating Officer (hereinafter referred as "IO") of the case.
5. Accused denied the incriminating evidence against her and claimed to be falsely implicated. However, she did not lead any evidence in defence.
6. I have heard Mr. Om Pal Singh, counsel for the appellant/accused and Mr. Rajiv Mohan, Addl. PP for the State/ respondent. I have carefully perused the Trial Court Record.
7. The impugned judgment of conviction and order of Criminal Appeal No. 06/2011; Meena V/s State Page No. 4 of 9 sentence is assailed on the grounds that the two public witnesses i.e. PW1 Arti and PW2 Bala Devi have turned hostile; there is no independent witness to support the prosecution case; the recovery has not been established and there are contradictions in the testimony of the police witnesses.
8. As per evidence on record, after a secret information was received by PW7 IO Inspector Rakesh Giri that prostitution was going on in front of Kotha No. 54, he constituted a raiding party including himself, PW3 Ct. Khursheed Ahmed, PW5 Lady Ct. Veerwati and one SI K. P. Singh, who has not been examined during trial. According to the testimony of the above witnesses, time of incident was about 07.55 pm on 04.01.2006 and the place where the secret information was received and from where the accused alongwith coaccused were allegedly arrested was a public place. In the given circumstances, the incident must have been witnessed by many public persons when it has come in the testimony of witnesses that there were permanent shops and establishments at and around the place of incident.
9. It is a settled legal position that testimony of police witnesses cannot be discarded merely for the reason that there is no corroboration from independent public witness. Nevertheless, it Criminal Appeal No. 06/2011; Meena V/s State Page No. 5 of 9 is expected that when an incident happens at a public place, in an open view and is witnessed by public persons, police should make efforts to join independent witnesses. Though, according to PW7 Inspector Rakesh Giri and PW3 Ct. Khursheed Ahmed efforts were made to join the public witnesses, but their versions are not consistent with each other. PW7 Inspector Rakesh Giri stated that when he requested public persons to join the investigation, they refused and went away. Meaning thereby that he had asked the public persons passingby. On the same fact PW3 Ct. Khursheed Ahmed though remained conspicuously silent in the examination inchief, but stated in the crossexamination that IO had asked shopkeepers to join the raiding party, who declined as they were busy in their shops. PW5 Lady Ct. Veerwati who remained totally silent about PW7 making efforts to join public witnesses, stated that she did not remember if any public witness was present. Different versions given by the three police witnesses create doubt not only about any effort made by PW7 to join the public witnesses, but also whether the witnesses were present at the spot. Thus it becomes essential to closely scrutinize their deposition.
10. All the three witnesses have deposed that police action Criminal Appeal No. 06/2011; Meena V/s State Page No. 6 of 9 was taken on secret information, but they have deposed differently about the circumstances. While PW7 Inspector Rakesh Giri nowhere said that the secret information was recorded in writing, PW3 Ct. Khursheed Ahmed has stated in the crossexamination that IO (PW7 Inspector Rakesh Giri) had reduced the secret information into writing. Inconsistency in the testimony of these two witnesses create doubt about the foundation circumstances of the prosecution case. If there was a secret information, which was reduced into writing, PW7 Inspector Rakesh Giri would have definitely stated so in his deposition. It is a matter of record that no document about recording of secret information is on record and if the secret information was recorded, it would have been the part of the judicial record. In these circumstances, when PW3 Ct. Khursheet Ahmed makes an affirmative statement that secret information was reduced into writing by the IO, which is not consistent with record and not corroborated by IO, creates doubt about the prosecution story.
11. As per the prosecution story, the police raiding party, headed by PW7 Inspector Rakesh Giri had apprehended the accused on a signal given by PW3 Ct. Khursheed Ahmed, after he was seen by the raiding party talking to the accused persons. Criminal Appeal No. 06/2011; Meena V/s State Page No. 7 of 9 However, none of the witnesses i.e. PW7 and PW5 have stated in the Court that they saw PW3, a decoy customer, talking to the accused. According to PW7, accused were apprehended at the instance of of PW3 pursuant to the signal given by the later. It is noteworthy that PW7 has nowhere stated in his deposition that he saw PW3 talking to the accused persons. On the same fact, PW5 Lady Ct. Veerwati has stated that she ran and apprehended the accused on the instructions of the SHO. It is noteworthy that this witness has also not stated in her entire testimony that she saw PW3 talking to the accused persons.
12. In view of above, the only positive evidence against the accused is deposition of PW3 Ct. Khursheed Ahmed, a decoy customer, who has not been corroborated by other prosecution witnesses i.e. PW5 Lady Ct. Veerwati and PW7 Inspector Rakesh Giri on the fact that he was seen by them talking to the accused. In the given circumstances, it would be highly unsafe to rely on the uncorroborated testimony of PW3, a decoy customer and interested witness, to record finding of guilt against the accused in the absence of corroboration by independent witnesses.
13. Moreover, the two public witnesses examined by the prosecution to prove the circumstantial evidence as PW1 Arti and Criminal Appeal No. 06/2011; Meena V/s State Page No. 8 of 9 PW2 Bala Devi have totally turned hostile and have not supported the prosecution case.
14. In view of above observation and discussion, the prosecution case is not proved beyond all reasonable doubts against the accused. Therefore, the impugned judgment of conviction dated 22.12.2010 and order on sentence dated 24.12.2010 cannot sustain and thus are setaside. Appeal is allowed and appellant/accused is acquitted . Her bail bond is cancelled and surety is discharged.
15. Trial Court Record be returned alongwith a copy of this judgment.
16. Appeal file be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) th on 10 August, 2011 Additional Sessions Judge (Central) Tis Hazari Courts, Delhi Criminal Appeal No. 06/2011; Meena V/s State Page No. 9 of 9