Delhi District Court
State vs Hitesh Etc on 7 March, 2024
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE: SOUTH EAST
DISTRICT: SAKET COURTS: NEW DELHI
Presided by: Ms. Shriya Agrawal
State Vs. Hitesh Etc.
FIR No. 784/2005
Police Station: Lajpat Nagar
Under Section: 4/5/8 Immoral Traffic (Prevention) Act, 1956
("ITP Act")
Date of institution : 17.02.2006
Date of reserving : 16.02.2024
Date of pronouncement : 07.03.2024
JUDGMENT
a) Serial number of the case : 93173/2016
b) Date of commission of : 31.07.2005 offence
c) Name of the complainant : ACP Ram Kishan
d) Name, parentage and : (1) Hitesh @ Sanjay @ Nikki, address of the accused S/o Sh. Rajender Kumar, persons Permanent Address- Mohalla Gian, Hapur, Ghaziabad, U.P. Present Address-M-7, Jagat Ram Park, Laxmi Nagar, Delhi (2) Kamlesh Kumar S/o Sh.
Dwarka Singh, R/o Village
Patbandhi, Post Office
Ratanwala, PS Majhauliya,
State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 1 of 24
West Champaran, Bihar
(3) Shaina Khan @ Alisha D/o
Lt. Nishar Khan r/o H.No.
1140, Near Haziara, Chattarpur,
Mehrauli, Delhi.
(declared proclaimed offender
vide Order dated 15.11.2012).
e) Offence complained of : Section 4/5/8 Immoral Traffic
(Prevention) Act, 1956
f) Plea of the accused : Accused persons pleaded not guilty
g) Final order : Accused Hitesh and Kamlesh Kumar
are convicted for the offence
punishable under Section 4 of the
Immoral Traffic (Prevention) Act,
1956
h) Date of final order : 07.03.2024
BRIEF FACTS AND REASONS FOR DECISION OF THE
CASE
1. The present case has arisen out of FIR No. 784/ 05 dated 01.08.2005 registered at PS. Lajpat Nagar for the offence punishable under Sections 4/5/8 Immoral Traffic (Prevention) Act, 1956 (hereafter referred to in short as "ITP Act" ) on the complaint of the first informant, the then ACP Ram Kishan, SIT Section, Amar Colony, New Delhi.
FIR No. 784/2005 PS: Lajpat Nagar Page 2 of 242. The allegations as per the FIR are that on 31.07.2005 at around 10:00 PM at Ring Road, in front of the Haldirams outlet, within jurisdiction of P.S. Lajpat Nagar , both the Accused had met with the Inspector KS Bhatnagar, who as part of a constituted raiding team was posing as a decoy customer and seeking to take services of sexual nature through the Accused Hitesh and Kamlesh Kumar, and had offered the latter the services of the Co-Accused Shaina (declared Proclaimed Offender), who accompanied them. Both the Accused were nabbed by the raiding team from the spot, while the meeting for the deal was underway, upon the signaling of the decoy, Inspector KS Bhatnagar. The FIR was registered against the Accused persons, for the offence punishable under Section 4 of the ITP Act, as they were found to be living on the earnings of prostitution of their co-accused Shaina (declared an absconder).
COURT PROCEEDINGS
3. After completion of investigation, the charge-sheet in this case was filed against the Accused persons for the offence punishable under Sections 4/5/8 of the ITP Act. On the charge- sheet filed in this case, cognizance was taken by the Ld. Predecessor vide Order dated 25.04.2007 and the Accused persons viz. Hitesh and Kamlesh Kumar were summoned.
FIR No. 784/2005 PS: Lajpat Nagar Page 3 of 244. The third Accused Shaina Khan @ Alisha was declared proclaimed offender by the Ld. Predecessor vide Order dated 15.12.2011 and could never be apprehended till date.
5. After compliance with the provision in Section 207 Cr.P.C. , upon finding sufficient material on record against the Accused persons revealing prima facie commission of the offence under Section 4 by Accused Hitesh and Kamlesh Kumar, Notice under Section 251 Cr.P.C. was framed against them vide Order dated 29.11.2012, to which both the Accused persons pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. The Prosecution examined a total of seven witnesses.
7. The first witness to be summoned was PW 1/Retd. ACP Ram Kishan who deposed as PW1. He stated in his examination in chief that on 31.07.05, he was posted at SIT Crime Branch, Amar Colony as ACP and on that day, he had received secret information that the Accused used to get published advertisements in the newspapers in the name of Nicky massage parlor, under which garb a prostitution racket was being run. He collected the newspaper publication (Ex.PW1/A), and found the advertisement published therein. He then deputed Inspector K.S. Bhatnagar to enquire into and verify the matter. Inspector K.S. State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 4 of 24Bhatnagar apprised PW1 that one Accused Hitesh @ Sanjay @ Nicky was running the prostitution racket in the name of the Massage Parlor.
8. On the modus operandi, the witness stated that upon fixing an appointment for supply of girls on a telephonic call with the Accused Hitesh @ Sanjay @ Nicky, Rs. 7,000/- was quoted as the charges for the 'services', out of which Rs. 2,000/- would be demanded in advance and the remainder would be taken later. Upon getting in touch with the Accused through the decoy, Inspector KS Bhatnagar, it was agreed that the meeting point would be a place near Haldirams, where the lady/ sex worker would be brought at about 10 pm and she would then accompany the decoy. He further stated that he prepared the raiding party comprising of himself, Inspector KS Bhatnagar, SI V. K.P.S. Yadav, SI Rambir, HC Hari Om and two constables (including one Lady Constable). He made Inspector KS Bhatnagar a decoy customer and handed over Rs. 2,000/- (in denominations of Rs. 1,000/-) to him. SI Rambir was made a shadow to Inspector KS Bhatnagar. They then reached Haldirams, Lajpat Nagar at about 9.30 PM. Inspector KS Bhatnagar and SI Rambir were standing at Ring-road and they kept themselves at a distance of about 8-10 meters. PW1 also instructed Inspector KS Bhatnagar to give signal by placing his hand on head at relevant time. At about 10.10-10.15 pm, one car bearing No. DL-3CY-5050 Make Tata Indica came and stopped near Inspector Bhatnagar. He saw the State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 5 of 24Accused Hitesh come out of the car. Accused Kamlesh was sitting on the driver's seat, who switched on the light in the car, to show the girl sitting at the rear side of the car. Both the Accused were correctly identified by the witness.
9. There was some conversation that ensued thereafter between Inspector Bhatnagar and the Accused persons. Inspector Bhatnagar also handed over the payment to Accused Hitesh and upon signaling, the remaining members of the raiding team approached the place and apprehended all the Accused. The alleged payment/ consideration amount that had changed hands, was recovered from the possession of the Accused Hitesh vide seizure memo Ex.PW1/B and kept in an envelope. The same was sealed with the seal of R.S. The deponent prepared the tehrir (Ex.PW1/C). He then got the case registered through HC Hari Om. PW1 proved the currency notes recovered and the envelop (Ex.P1). He further deposed that the currency notes were handed over to Inspector K.S. Bhatnagar vide handing over memo (Ex.PW1/D).
10. The second witness to depose was Inspector Shankar Banerjee, who was examined as PW2. He stated that in July 2006, he was handed over the case file and had recorded the statement of Ram Kishan, ACP, then posted at 5th Battalion and thereafter prepared the charge-sheet and submitted it through Inspector R.K. Jha.
FIR No. 784/2005 PS: Lajpat Nagar Page 6 of 2411. The third witness examined by the Prosecution was Retd. SI Rambir Singh who deposed as PW3. He in his examination in chief stated that on 01.08.2005, he was posted as a Sub-Inspector at SIT Section Crime Branch and one secret informer informed the then ACP/SIT that one person namely Hitesh is involved in running a racket of flesh trade working as a pimp, who would get published advertisements of a Massage Parlor, under which cover, he would run the aforesaid racket. He also informed that the said advertisement was also published in the Times of India newspaper of that day at column no.14 and his mobile number was also mentioned therein. The concerned ACP then directed Inspector KS Bhatnagar to verify the information. Inspector KS Bhatnagar contacted the Accused Hitesh on the mobile number provided in the advertisement, whereupon the Accused conveyed the terms assuring to supply girls against payment of Rs.7,000/-. Accused Hitesh then provided an address for meeting i.e. of a place opposite Haldirams, Lajpat Nagar and the time of the meeting was fixed as 10 PM. ACP Ram Kishan formed a raiding team consisting of Inspector KS Bhatnagar, SI VKPS Yadav, PW3 and other subordinate members, who left the office at around 09:18pm and reached the spot at 09:30pm.
12. It was further stated that the ACP had asked some of the public members to join the raiding party and investigation, but none joined citing their own reasons. Women Constable Jitender Kaur also arrived at the spot. The ACP had made Inspector KS State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 7 of 24Bhatnagar as a decoy witness, who had handed over two currency notes of Rs.1,000/- denominations vide handing over memo (Ex. PW1/D). PW3 was deputed as a shadow witness. The members of raiding party spread around the designated place of meeting, and hid at different positions, as directed by the ACP and at around 10.00 pm, a car bearing registration no. DL 3CY 5050 (make Indica) arrived at the spot and stopped. Inspector KS Bhatnagar approached the car and spoke with the Accused Hitesh. The other Accused Kamlesh was sitting on the driver's seat. He switched on the light inside the car to show the girl (Accused Shaina) accompanying them. As the deal was finalized between Inspector KS Bhatnagar and the Accused persons, Inspector KS Bhatnagar handed over two currency notes (of Rs.1,000/- denomination) to the Accused Hitesh. During the whole transaction, PW3 remained with Inspector KS Bhatnagar.
13. As the deal was struck between the Accused persons and Inspector KS Bhatnagar, PW3 signaled to the other members of the raiding party. Members of raiding party immediately rushed towards the spot and apprehended all the Accused red-handed.
14. Thereafter, Accused Hitesh was searched and two currency notes of Rs.1,000/- (each) were recovered from the possession of the Accused Hitesh. The said recovered currency notes were kept in an envelope and sealed with the seal of 'RS', seized vide memo (Ex. PW1/B). Thereafter, ACP prepared a tehrir and sent it State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 8 of 24for registration of FIR. One of the police officials went to the Police Station and got the FIR registered and returned. The investigation was handed over to Inspector VKPS Yadav (IO). The IO interrogated the Accused persons and arrested the three of them. PW3 signed on the arrest memo of the Accused persons Hitesh & Kamlesh (memos Ex. PW3/A & Ex. PW3/B). Personal search of the Accused Hitesh, Kamlesh and Shaina was conducted vide memos Ex. PW3/C, Ex. PW3/D and Ex. PW3/E. The mobile phone recovered from the possession of Accused Hitesh was seized vide memo Ex. PW3/F. The vehicle used by the Accused persons was seized vide memo Ex. PW3/G. He further proved the photographs and negatives (Ex. P1 to P5). He also identified the currency notes (Ex. P1) and mobile (Ex. P2) which were seized vide memos (Ex.PW1/B and Ex.PW3/F).
15. The fourth witness to depose was SI Hari Om who deposed as PW4. He stated that on 31.07.2005, ACP Ram Kishan asked him and Inspector K.S. Bhatnagar, SI V.K.S Yadav, SI Rambir, Ct. Ranbir and Ct. Satender to join the raiding party as having received secret information regarding a prostitution racket. Inspector K. S. Bhatnagar became the decoy witness and SI Rambir turned his shadow. The ACP handed over two notes of Rs. 1,000/- to Inspector K. S. Bhatnagar. At about 10.10 pm an Indica Car came from the side of Moolchand. SI Rambir signaled towards there as they were standing at hidden place. Accused persons tried to flee away from there but were nabbed by the State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 9 of 24team. One lady namely Shaina was sitting in that Indica Car who was escorted by the Accused persons to the spot for the proposed offer for sex service was also apprehended. ACP Ram Kishan prepared the rukka on the basis of statement of SI K.S. Bhatnagar and handed over the same to PW4 for registration of FIR. Post the registration of FIR, PW4 came back to the spot along with copy of FIR and original rukka and handed over to the IO.
16. The fifth witness examined by the State was W/ASI Jitender Kaur (PW5). She stated that on 31.07.2005 at about 09.15 pm ACP Ram Kishan called her to join the raiding party for a raid at Ring Road, near Haldirams Sweets regarding a suspected flesh trade racket. Thereafter, she reached near Haldirams Sweets, where all the members of the raiding party met her and told her about the Indica Car which would come from the side of Moolchand Flyover. After some time Indica Car bearing registration no. DL-3-CY- 5050 approached the spot. The witness proved the Arrest Memo of Accused Shaina as Ex. PW- 5/A, and her personal search memo (already labelled as Ex. PW- 3/E).
17. The sixth witness examined was Retd. ACP K.S. Bhatnagar (then Inspector KS Bhatnagar, the decoy) who deposed as PW6. He too narrated the same facts stating that on 31.07.2005, the then ACP/SIT had received one secret information regarding prostitution racket, being run in guise of a State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 10 of 24massage center by Accused Hitesh @ Nikki. ACP Ram Kishan asked him to collect the complete information and verify the input. Thereafter, PW6 contacted Hitesh on the mobile number given in the newspaper viz. Times of India and after brief talks, he was prepared to supply the girl for prostitution for Rs. 7000/-. The witness was also made a part of the raiding team. He confirmed the fact of the lady Ct. Jitender Kaur from Crime Branch joining the raiding party. Before this ACP Ram Kishan had given two 1,000/- Rupees denomination notes vide a memo which is labelled as Ex PW-1/D. During the talks with the lady, PW6 noticed that Shaina @Alisha also showed her willingness to the decoy for the 'services' offered. PW6 signaled the whole team, which was spread nearby, by rubbing hand over the head. The whole team surrounded the car and apprehended all the three, including the lady. The two notes given to the Accused Hitesh were recovered from the back pocket of his trouser by ACP Ram Kishan. The same were seized vide seizure memo (PW-1/B). The case property was sealed with seal of 'RS' and after sealing the same, it was handed over to SI Ramveer Singh. The rukka was prepared by ACP Ram Kishan and sent to PS Lajpat Nagar for registration of the case through HC Hari Om. The investigation of the case was handed over to SI VKP Singh by ACP Ram Kishan. During investigation, the car bearing no. DL-3C_-5050 was taken in police possession vide seizure memo PW-3/G. Thereafter, IO conducted the personal search of the accused persons viz. Hitesh, Kamlesh and Shaina and arrested State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 11 of 24them. The witness identified two currency notes Ex. P1 and both the Accused viz. Hitesh and Kamlesh in Court.
18. The seventh witness to depose was ACP V.K.P.S. Yadav who was examined as PW7. He stated that it was he who had handed over two currency notes of Rs.1,000/- denominations each to Inspector K.S Bhatnagar, after preparing handing over memo, to strike the deal. SI Rambir was properly instructed to over hear the deal and to give proper signal after the deal was finalized. The other members of the raiding party also took a suitable position at different positions and kept an eye over the decoy customer and the shadow witness. ACP Ram Kishan also asked 4-5 passersby to join the raid/ investigation after apprising them of the background, but none of them agreed due to their personal reasons. Upon arrest and during the search of the Accused, he stated that he had recovered the two currency notes of Rs.1,000/- (each) bearing the same numbers, which were handed over to Inspector K.S Bhatnagar to strike the deal. Both the currency notes (already Ex. P. 1 Colly, along with envelop) were seized vide memo (already labelled Ex. PW-1/B). ACP Shri Ram Kishan handed over the seizure memo of currency notes along-with an envelope and the same were sealed with the seal of 'RS'. The handing over memo of the currency notes was prepared (Ex. PW-1/D). PW7 interrogated the Accused Hitesh, Kamlesh and Shaina, separately. PW7 had also recovered the mobile phone used in the commission of the offence from State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 12 of 24Accused Hitesh. He identified the mobile phone (Ex P2). He further deposed that after getting sufficient evidence against Accused Hitesh, he arrested him vide Arrest Memo Ex.PW3/A. He also arrested accused Kamlesh Kumar vide Arrest Memo Ex.PW3/B. He arrested Accused Shaina Khan vide arrest memo Ex.PW5/A. He proved the seizure of the Indica Car bearing registration No. DL-3CY-5050 (silver/grey color) used in the offence vide seizure memo Ex.PW3/G. Case property was deposited in the Malkhana of the Police Station and the Accused persons were sent to Judicial Custody after their medical examination.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED
19. Statements of the Accused persons were recorded under Section 313 Cr.P.C. wherein they were confronted with all the incriminating evidence, to which their responses were recorded. The Accused persons did not lead any evidence in defence.
FINAL ARGUMENTS
20. Final Arguments have been heard. Record has been carefully perused.
FIR No. 784/2005 PS: Lajpat Nagar Page 13 of 24ANALYSIS AND OBSERVATIONS
21. The present case has arisen out of FIR No. 784 of 2005 dated 1.8.2005 registered at PS Lajpat Nagar on the complaint of the then ACP Ram Kishan on the allegations that one person by the name of Hitesh @ Sanjay @ Nikki under the garb of running a massage parlor, publishing advertisements of it, was actually operating a prostitution racket. There is, for instance, a specific publication dated 31.7.2005 featuring at page number 14 in Times Classifieds column number 3, by the Accused Hitesh, which came to the notice of the team and the information was verified. Thereupon, as per the Prosecution's case, ACP Ram Kishan deputed Inspector KS Bhatnagar, who when contacted the Accused Hitesh on the number in the advertisement, confirmed the information received and a deal for procurement of a girl for sexual services was struck for Rs. 7,000/- (with Rs. 2,000/-, payable in advance and Rs.5,000/- after the 'act'). Thereafter a team was constituted comprising of Inspector KS Bhatnagar, SI VKPS Yadav, SI Rambir, HC Hari Om and two constables including one lady constable and ACP Ram Kishan himself, with Inspector KPS Bhatnagar made a decoy and SI Rambir his shadow.
22. The Prosecution has examined a total of 7 witnesses viz. Retired ACP Ram Kishan (PW1), Inspector Shanker Banerjee (PW2), Retired SI Rambir Singh (PW3), SI Hari Om (PW4), W/ASI Jitender Kumar (PW5), Retired ACP KS Bhatnagar State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 14 of 24(PW6) and ACP VK.PS. Yadav (PW7) to prove the charge against the two Accused persons [Hitesh @Sanjay (Accused no.1) and Kamlesh (Accused no.2)] who faced the trial for the reported commission of offence punishable under Section 4 of the ITP Act.
23. The specific ingredients of the aforesaid offence must be borne in mind before the threadbare appraisal of the evidence gathered during investigation and led during the trial. The provision of Section 4 of the ITP Act reads as under:
Section 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].
(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 State Vs. Hitesh & Ors.FIR No. 784/2005 PS: Lajpat Nagar Page 15 of 24
(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 sub-section (1).
(Emphasis Supplied)
24. The seven witnesses having deposed for the Prosecution particularly PW1 (the Retired ACP/ complainant/ first informant), PW3 (the shadow witness) and PW6 (the decoy cus- tomer), have consistently, in sync, narrated the events as they transpired on the relevant date, with a categorical mention of the way the information about the racket was received and how the raiding party was constituted and the raid was conducted leading to the arrest of the Accused persons. The two currency notes used for the purported deal by the decoy with Accused Hitesh, bearing the particulars JAK449836 and 6AD316784 were also recovered from the Accused Hitesh, the handing over memo of which (Ex PW1/D) and the seizure memo of which (Ex PW1/B) have been duly proved as per law during trial. The arrest of all the three from the spot has been proved as well, which appears to be legal and in proper compliance of all the legal and constitutional man-
FIR No. 784/2005 PS: Lajpat Nagar Page 16 of 24dates guiding arrest, as nothing to the contrary has been sug- gested or proven.
25. Considering the suspects included a woman, who was pro- posed to be offered for sex work, and the arrest, if any, was fore- seen to be effected after sun-set, to ensure compliance with the procedural requirements and legal safeguards, the presence of PW5 W/ASI Jitender Kaur from Crime Branch, as a member of the raiding team, further confirms that the ACP concerned and the team bore all precautions concerning legal compliances in mind, while executing the raid.
26. The principles concerning appreciation of evidence in a criminal trial laid down by Hon'ble Apex Court in State of UP v MK Anthony [(1985) 1 SCC 505] being relevant must be borne in mind and these are as under :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not State Vs. Hitesh & Ors.FIR No. 784/2005 PS: Lajpat Nagar Page 17 of 24
touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis Supplied)
27. In the instant case, it is the assertion of the Ld. Defence Counsel that no such raid as claimed was conducted and that the State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 18 of 24Accused have been falsely implicated. It has been argued that the Prosecution witnesses examined may have parroted the same se- quence of events, they have missed out in disclosing material particulars, leaving gaps in their versions. It is underscored that witness PW1 during his deposition couldn't remember as to whether there were other showrooms near the spot/ location of Haldirams or what position was exactly taken by the members of the raiding team. He could not confirm as to what happened to the seal after it was handed over. Likewise, it is pointed out that the witness PW3 couldn't even disclose the number of girls shown by the Accused/ tout at the time of the reported meeting at the decided spot/ location and he too could not disclose the loca- tion of the other showrooms in the vicinity of the spot. It is fur- ther the argument of the Accused persons towards their plea of innocence, that the witnesses who have deposed, as party to the raiding team, have given varying versions of the presence of public persons and the manner in which the writing work was done after the apprehension et al. It is a matter of record that the Accused were apprehended in the raid conducted at the instance of the ACP, as per the Prosecution on 31.07.2005, while the recording of evidence in this matter commenced from 2013 onwards i.e. after a gap of almost 8 years. It is not unusual for minor variations/ inconsistencies to creep in the depositions of witnesses in narration of events, as in the present case with such passage of time. The witnesses have principally on all the ma- terial particulars echoed the events and the systematic manner State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 19 of 24in which the raid was planned and executed. The inability of the witnesses, who were deployed to conduct the raid, to remember the condition of the showrooms close to the spot or what position each of the members of the raiding team took, just before ap- proaching the Accused persons upon signaling, from the hiding, after a passage of such considerable period of time is not an un- usual lapse, as can render the versions of the witnesses examined by the State doubtful/ lacking in creditworthiness.
28. It has also been argued that no independent public wit- nesses were made to join the raid, despite the spot being a regular market place which generally has public presence even up till late hours in the day. The witnesses examined have stated that de- spite some public persons present near the spot being asked to join the investigation, they citing their reasons refused to partici- pate. It is settled law as held in as held in Girja Prasad v State of MP [(2007) 7 SCC 625] that law does not mandate that testi- monies of police witnesses should not be accepted, unless cor- roborated in material particulars by other independent evidence, as the presumption that every person acts honestly applies equally to a police official and that 'no infirmity attaches to the testimony of police officials merely because they belong to the police force'. It is pertinent to keep in view that the police offi- cials have no axe to grind and cannot be presumptively labelled as 'interested witnesses', unless there is material gathered or set forth to show otherwise. Although all the witnesses who have State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 20 of 24been examined in this case are police officials, there is no sug- gestion/ confrontation by the defence during their cross examina- tion, as to they orchestrating the raid in motivated manner in or- der to falsely implicate the Accused. On the contrary, the Ac- cused persons have been proved to have been arrested upon the raid, caught red-handed, while working out a deal with the decoy for the purpose of prostitution, with the currency notes delivered as advance payment for the 'services', also recovered from the possession of Accused Hitesh. There is a contention raised by the Defence that the witness PW5 in her deposition has mentioned the factum of recovery of a note of Rs. 2,000/- denomination, whereas all through there is a claim of usage and handing over of two notes of Rs. 1,000/- each. It is thus claimed, considering Rs. 2,000/- as a denomination was not available in currency back in the year 2005, the testimony of PW5 to this effect renders the version of the Prosecution entirely doubtful. This argument clearly appears to be on the surface and without any weight, con- sidering the other material witnesses have specifically mentioned about usage of two currency notes of Rs. 1,000/- with the seizure memo and handing memo also proved. The erroneous statement of mention of Rs. 2,000/- as the denomination of the recovered currency ex-facie appears to be a mistake in recording of the deposition, over which nothing turns in aid of the plea of the defence.
FIR No. 784/2005 PS: Lajpat Nagar Page 21 of 2429. The Accused have further claimed in their plea taken in re- sponse to the questioning under Section 313 Cr.P.C. that they had met with an accident and thus, after its occurrence, they were taken to the police station. It is further claimed that since a quar- rel had taken place with the police officials, the latter falsely im- plicated them in this case. Clearly, the said claim in the defence has not been corroborated and the same has remained a specious assertion, devoid of any evidence to substantiate the same. Nei- ther have the Accused confronted the witnesses examined with this version during their cross examination, nor have they led any evidence independently to prove their version. There is no men- tion of any PCR call reported as made of the alleged accident nor any particulars or any witnesses thereof disclosed. The Accused have noticeably not even opted to step in the witness box to prove their aforesaid assertions.
30. Section 4 of the ITP Act as quoted above carries under Sub-Sections (2) (b) and (c) a presumptive clause, as per which if any person above the age of 18 years is found controlling/ influ- encing movements of sex worker in a manner as showing that he is aiding/ abetting or compelling her for prostitution or is acting as a pimp/ tout on her behalf, the said person would be presumed to be knowingly living on the earnings of the prostitute. Knowl- edge is attributed to such a person who is in control of the move- ments of a sex worker to aid/ abet prostitution, as also to the one who acts openly as a pimp/ tout, under the aforesaid deeming State Vs. Hitesh & Ors.
FIR No. 784/2005 PS: Lajpat Nagar Page 22 of 24clause, that the said person is knowingly living off the earnings of the sex worker, which act is punishable under Section 4 (1) of the ITP Act.
31. In the instant case, the Accused Hitesh and Kamlesh were caught red handed, upon producing the Co-Accused Shaina/ an absconder for the purpose of flesh trade, after they solicited the decoy customer over a telephonic call and agreed for the delivery of the 'service provider' to the decoy at the spot/ location close to Haldirams as decided, where they were found escorting the sex worker and also discussing over the deal for provision of the ser- vice and taking advance consideration for the same.
32. The Accused persons have been thus proved to be in con- trol of and influencing the movements of the Co-Accused female/ absconder for the purposes of prostitution, acting openly as her tout/ agent. Accordingly, with this established, by virtue of Sec- tion 4 (2) (b) and (c) of the ITP Act, they are thus presumed to be living on the earnings of the prostitute and having committed the offence as reported. The presumptive clause is indeed rebuttable, but the Accused persons have failed to lead any evidence (either by cross examination or direct independent evidence) to refute/ dislodge the presumption.
FIR No. 784/2005 PS: Lajpat Nagar Page 23 of 24RESULT
33. Accordingly, in the facts and circumstances of this case, the Accused persons Hitesh and Kamlesh have been proved, on the basis of clear, consistent, unflinching and unrebutted evi- dence, to have accompanied the Co-Accused (absconder) for so- liciting the decoy customer, to offer the sex services of the Co- Accused lady for prostitution and to have entered into a deal with the decoy by taking consideration for the same, beyond all rea- sonable doubts. The Prosecution has been able to bring home the charges against both the Accused persons (1) Hitesh and (2) Kamlesh, who are found guilty of the offence punishable under Section 4 of the ITP Act, and are accordingly convicted for the said offence.
34. Copy of this judgment be supplied free of cost.
35. Re-list for hearing on sentence on 03.04.2024.
Dictated and announced in the open Court on 07. 03.2024.
(SHRIYA AGRAWAL) ACMM (SOUTH EAST):
SAKETCOURTS:NEW DELHI State Vs. Hitesh & Ors.FIR No. 784/2005 PS: Lajpat Nagar Page 24 of 24