Delhi District Court
State vs Manoj Kumar Others on 3 June, 2024
IN THE COURT OF SH. APOORV GUPTA, MM-02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. VIKRAM SETH & ORS.
FIR No. 344 / 2006
POLICE STATION CIVIL LINES
U/S 4 / 5 / 8 ITP ACT
Date of institution of the case : 08.12.2007
Date of judgment reserved : 06.05.2024
CNR : DLCT020002272007
Name of the complainant : ACP Swatantra Kumar
Name and address of accused : (1) VIKRAM SETH
S/o Sh. Kamal Seth
R/o 58, Guru Nanak Vihar,
Chandan Vihar, Nilothi Extention,
Delhi.
Also at :- H. No.302, A-Wing,
Kamakrshi Dham Building,
Plot No.213-216, Sector 19,
Kopar Khera, New Bombay,
Maharashtra.
(2) MANOJ KUMAR
S/o Sh. Shiv Shankar
R/o RZ-34, Indra Park Extention,
Uttam Nagar, Delhi.
(proceedings abated vide order dated
16.09.2019)
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 1 / 14
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.06.03
13:13:26 +0530
(3) NAGMA KHAN @ ARIBA
D/o Sh. Naseem Khan.
R/o 303-A, 2nd Floor, Sant Nagar,
East of Kailash, New Delhi.
(declared proclaimed person vide order
dated 16.09.2019)
(4) SHIKHA @ KOMAL @ SONI
D/o Sh. K K Malhotra
R/o GH-14/389, Paschim Vihar, Delhi.
(declared proclaimed person vide order
dated 17.02.2011)
Offence complained of : 4/5/8 ITP ACT
Plea of the accused : Pleaded not guilty
Date of Judgment : 03.06.2024
Final order : Convicted qua offence U/s 4 of ITP Act
Acquitted qua offence U/s 5 of ITP Act.
JUDGMENT
CASE OF THE PROSECUTION:
1. The prosecution case, in nutshell, is that on 07.12.2006, at around 05.35 PM at Metro Station Civil Lines, Delhi within the jurisdiction of PS Civil Lines accused Manoj Kumar and Vikram Seth were acting as touts on behalf of prostitutes Nagma and Shikha. The allegations against the accused Manoj Kumar and Vikram Seth are that they were living on the earnings of prostitution. The allegations against the accused Nagma and Shikha are that they were found seducing and soliciting persons for the purpose of prostitution.
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 2 / 14 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.06.03 13:13:43 +0530 COURT PROCEEDINGS :
2. Investigation was completed and police report u/s 173 Cr.P.C was filed for offences under Sections 4/5/8 The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as ITP Act). Cognizance was taken and accused persons were summoned. Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused persons.
CHARGE :
3. Accused Shikha and Nagma absented themselves and NBWs were issued against them vide order dated 19.09.2009 and 16.02.2009 respectively.
However, NBWs were received as unexecuted and process u/s 82 Cr.P.C were issued and vide order dated 17.02.2011 they were declared as proclaimed persons. Thereafter accused Nagma was arrested in some other case and she was taken in custody in this case and later, released on bail.
4. After hearing arguments on point of charge, charge for the offences under Sections 4 and 8 of ITP Act were framed against accused Nagma while charges for the offences under Section 4 and 5 ITP Act were framed against accused Manoj Kumar and Vikram Seth. Accused Nagma, Manoj Kumar and Vikram Seth pleaded not guilty and claimed trial.
5. Again accused Nagma remained absent during the trial and she was declared proclaimed person vide order dated 16.09.2019 passed by the Ld. Predecessor. During the course of trial, accused Manoj Kumar expired and proceedings qua him were abated vide order dated 16.09.2019.
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 3 / 14
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.06.03
13:13:50 +0530
EVIDENCE OF THE PROSECUTION :
6. In order to substantiate its case, prosecution has examined seven witnesses.
7. PW-1 ASI Surender Kumar produced register no.19 as per which on 07.12.2006 Inspector Anand Singh deposited the case property i.e. Hyundai Accent Car bearing registration no. DL-2CW-0229, two small envelopes sealed with the seal of RK and articles found in the personal search of accused Manoj and accused Vikram vide entry no. 487/3344 Ex. PW-1/A.
8. PW-2 Inspector Ritesh Kumar acted as a decoy customer. He joined the raiding party constituted by ACP Swatantra Kumar and is a witness to proceedings conducted by him.
9. PW-3 SI Shiv Kumar was working as duty officer and on receiving rukka sent by ACP Swantar Kumar he registered FIR Ex. PW-3/A. He also made endorsement on the rukka.
10. PW-4 ACP Swatantra Kumar has deposed that on 07.12.2006 at about 04.00 PM he received secret information that a person namely Vicky who indulge in supplying girls at various hotels of Delhi may be apprehended at about 05.30 PM at Civil Lines Metro Station when he will come with two girls for aforesaid purpose. A raiding party comprising himself, Inspector Anand Singh, Inspector Ritesh Singh, ASI Govinder Singh, WSI Radha Rani and other staff was constituted. At around 04.30 PM, they along with secret informer left the office on a Govt. Vehicle and at around 05.00 PM, they reached near Civil Lines metro station. He requested some public persons to join the raiding party but none of them agreed and went away STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 4 / 14 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:00 +0530 without disclosing their names and addresses. He briefed the members of raiding party and handed over Inspector Ritesh Kumar two 500 rupees notes and directed him to act as a decoy customer. ASI Govinder was instructed to act as a shadow witness for him. At around 05.30 PM, one black colored Hyundai Accent car bearing registration no. DL-2CW-0229 came from the side of Kashmere Gate and stopped near Civil Lines metro station. Two boys were on the front seats and two girls were on the back seats. Inspector Ritesh Kumar went towards the aforesaid car and ASI Govinder followed him at a little distance. One person namely Manoj came out from the car and Inspector Ritesh Kumar started talking to Manoj. Manoj informed him that two girls were available in the car for sexual intercourse and demanded one thousand rupees for this purpose. Inspector Ritesh Kumar handed over the aforesaid two 500 rupees notes to Manoj. Manoj handed over one 500 rupees note to the person who was sitting on the driver seat of the car whose name they later on came to know as Vicky. Inspector Ritesh Kumar made conversation with aforesaid girls who were sitting inside the car and they had given their acceptance for sexual intercourse and also describing the enjoyment during the sexual intercourse and demanded Rs.10,000/- each for the aforesaid purpose. Inspector Ritesh Kumar gave a signal to the team and rest of the team members including himself immediately reached near by the aforesaid car and apprehended all aforesaid four persons. During the search of accused Manoj and Vicky, the aforesaid 500 rupees number notes each were recovered from the possession of accused Manoj and Vicky. He kept the aforesaid notes in different white envelopes and sealed the same with the seal of RK and also prepared separate seizure memos Ex. PW-2/A and Ex. PW-2/B. Hyundai Accent car was also seized vide seizure memo Ex. PW-2/C. Rukka Ex. PW-4/A was prepared and same was handed over to ASI Govinder for registration of FIR. ASI Govinder went to police station and after some time returned back on the spot with copy of FIR and original rukka and handed over the same to ACP Anand Singh.
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 5 / 14 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:06 +0530
11. PW-5 W/SI Radha Rani joined the raiding party constituted by ACP Swatantra Kumar and is a witness to proceedings conducted by him. She has deposed on lines of ACP Swatantra Kumar.
12. PW-6 ACP Anand Singh joined the raiding party constituted by ACP Swatantra Kumar and is a witness to proceedings conducted by him. He has deposed on lines of ACP Swatantra Kumar. He arrested accused Nagma, Shikha, Manoj and Vikram Seth vide arrest memos Ex.PW-5/A, Ex. PW-5/B, Ex. PW-6/A and Ex. PW- 6/B. Personal search of accused Manoj and Vikram were conducted vide memos Ex. PW-6/C and Ex. PW-6/D. All the accused persons were taken to Crime Branch Office at Prashant Vihar. The case property was deposited into Malkhana. Medical examination of accused Manoj and Vikram Seth were conducted and they were produced before the concerned Court and they were sent to JC. After completion of all the formalities he filed the charge-sheet.
13. PW-7 ASI Govinder Singh also joined the raiding party constituted by ACP Swatantra Kumar. He acted as a shadow witness to SI Ritesh Kumar who was directed to act as a decoy customer. He took rukka to the police station for registration of FIR. He has deposed on lines of ACP Swatantra Kumar.
STATEMENT / DEFENCE OF THE ACCUSED :
14. After conclusion of this evidence, the prosecution evidence was closed and statement of accused Vikram Seth under Section 313 Cr.P.C. was recorded wherein he admitted that he and his associate Manoj (since expired) were taken for medical examination. He pleaded innocence and stated that he has been falsely implicated in the present matter at the behest of investigating officers. He chose not to lead evidence in his defence.
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 6 / 14 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:12 +0530 ANALYSIS AND FINDINGS :
15. I have heard the contention of both the parties and carefully perused the record.
16. In the present case, all the witnesses are police officials and regarding absence of public witnesses, it has been argued on behalf of the accused that non- joining of public witness render the case of prosecution doubtful and it is further argued that the mandate of Section 15 of ITP Act has also not been complied with. Ld. APP for the State has argued that the prosecution witnesses have categorically deposed that public persons were requested to join the raiding party but none agreed and left the spot. Thus, no fault can be attributed on the part of investigating agency for non-joining of independent public witnesses. Moreover, there is no reason for the police officials to falsely depose against the accused or to implicate the accused.
17. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the accused for non-joining of independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
18. Hon'ble Supreme Court in the case Ambika Prasad & Anr vs. State 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 7 / 14 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.06.03 13:14:18 +0530 under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses. Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 SC 1998; Dr Krishna Pal and another vs. State of U. P. 1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696, it was held that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
19. Moreover, it is well settled law that the testimonies of police officials should not always be looked with suspicion when they have otherwise proved the prosecution story by deposing consistently and corroborating each other on material points. Still if any authority is required then reference with advantage can be made to the judgment reported in State Vs. Sunil (2001) 1 SCC 652, wherein it was observed as under :-
"We feel that it is an archaic notion that action of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the action and the STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 8 / 14 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.06.03 13:14:25 +0530 documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court would certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
20. In A. R. Khimma Vs. State of Saurashtra AIR 1956 SC 217, it was observed as:-
"The presumption that a person acts honestly applies so much in favour of a police officer as of other persons and it is not STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 9 / 14 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:31 +0530 judicial approach to distrust and suspect him without good grounds therefore, such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
21. In Ashraf Ali Vs. State (Delhi) 1991 SCC 203, it has been observed as under :-
"The testimony of a witness is not to be disbelieved or discarded on the ground that the he happens to be an official witness but it is an equally well recognized rule of caution that Court should look for independent corroboration to the testimony of official witness in such cases. Relevant, of course, in the context are the time and opportunity available to the police party to associate with such an independent witness. It is a matter of common knowledge that no public person would like to involve himself by becoming a witness of recovery. Minor contradictions are bound to occur if a witness is examined after a considerable time."
22. Further, in case of Bai Radha Vs. State of Gujrat, AIR 1970 SC 1396 it has been held by the Hon'ble Apex Court that"
"In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in subsections (1) and (2) of Section 15 of the Act. The Legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 10 / 14 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:38 +0530 privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the nonobservance of or noncompliance with the directions contained in the aforesaid provisions. The Court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside."
23. Therefore, the argument that all the witnesses are police officials and therefore, testimonies are not reliable, does not hold water. A witness does not become unreliable by the fact that he is a police official. His testimony may be proved to be unreliable if, on behalf of accused it could be shown by cross examination that whatever witnesses are stating is not correct or that, in general the witness is such who cannot be relied upon. In the present case all the witnesses were thoroughly cross-examined but their testimonies could not be rebutted by the accused or it could be shown that they are unreliable.
24. As regards the submission that mandate of S.15 of the Act has not been complied with, same is without merit. This section provides for search in a "premises". However, in the instant case, there was no house search so as to comply with the provisions of this section. Rather, it was a case where accused persons were travelling in a car.
STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 11 / 14
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.06.03
13:14:44 +0530
25. In the backdrop of this observation that it is not the case that witnesses are unreliable, the testimonies of the witnesses and the evidence adduced is evaluated to see whether the guilt of the accused has been proved to not.
26. Accused Vikram Seth and Manoj Kumar (since expired) have been put to trial on the charges that they have committed offences punishable under Section 4 and 5 of ITP Act, 1956.
27. Section 4 of the Act provides punishment to a person, who knowingly lives, wholly or in part, on the earnings of prostitution of any other persons. Section 4 (2) provides that where any person over the age of 18 years is proved (a) to be living with, or to be habitually in the company of, a prostitute or (b) to have exercise control or influence over the movements of a prostitute, in such a manner as to show that such person is aiding, abeting or compelling her for prostitution or (c) to be acting as a tout or pimp on behalf of a prostitute, then, it shall be presumed, until the contrary is proved, that such person is living on the earning of prostitution of another within the meaning of sub section (1) of Section 4 of the Act.
28. In the present case also it is not disputed that accused Vikram Seth is more than 18 years old. Living on earnings of prostitution means that the earnings of prostitution of another person are being taken as source of income by the accused and the said source may be the only source of income for said person or a part of his / her earnings. Living on the earnings of another person connotes living parasitically. In the present case also by the evidence prosecution has proved that it was the accused Vikram Seth who has received and collected the money purportedly the charges for prostitution by another girl. This would imply that, unless otherwise has been proved by the accused, he is living on the earning of prostitution of another for the reason STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 12 / 14 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.06.03 13:14:50 +0530 that it has not been claimed by the accused that he has any other source of income to support himself. Receiving the money as stated above and keeping it to oneself prima-facie shows that it is on this money one is living though may be in part only. Nothing has come, even by way of suggestion, on record that accused was not living on the earnings of the prostitution of the other girls.
29. It stands proved beyond reasonable doubt that accused Vikram Seth was exercising control over the movements of Nagma and Shikha in such a manner that demonstrates that he was aiding them for prostitution. The decoy customer and the shadow witness have mentioned that accused Manoj and Vikram Seth produced two girls and offered them for prostitution. The fact that deal was struck for a sum of Rs 1,000/- with decoy customer further suggests that they were acting as tout on behalf of the prostitutes. These facts, which have been proved on record, gives rise to presumption provided under sub Section 2 (b) & (c) of Section 4 of the Act. The record shows that accused Vikram Seth has adopted a mode of complete denial in his statement recorded under Section 313 Cr.P.C. He has denied the incident as well as his presence at the spot. The said denial does not come to his rescue. There is overwhelming evidence to conclude that accused Vikram Seth was living on the earnings of prostitution. The charge under Section 4 of ITP Act, 1956 stands established against him.
30. As far as, the offence u/Sec. 5 ITP Act is concerned, it must be proved by the prosecution that the accused has procured a person or induced her to go from a place or take or attempt to take a person from one place to another with a view to his / her carrying on the prostitution or induces a person to carry on the prostitution. The evidence in the present case in brief is that on secret information PW-2 Inspector Ritesh Kumar became decoy customer and approached accused Manoj Kumar and STATE VS. VIKRAM SETH & ORS FIR NO. 344 / 2006 PS CIVIL LINES PAGE NO. 13 / 14 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.06.03 13:14:57 +0530 Vikram Seth who offered girl for sex and paid marked currency notes for same. The evidence so brought by the prosecution does not show anywhere that the girls were procured by the accused or have been induced by the accused or taken by accused from one place to another for prostitution or they have been induced to carry on the prostitution. For inducement there must be some positive act by the accused on the basis of which the other person feels allured or feels fearless or is tempted in to an act, which prompts her in to carrying on the act desired by the accused. But, there is no evidence to this effect that accused had ever allured the girls shown by him or had threatened them or used any other means to induce them to carry on the prostitution. There is no clinching evidence to conclude that these girls were induced by the accused for the purpose of prostitution. The charge under Section 5 of ITP Act, 1956 has not been established.
31. Hence, the above discussion shows that the prosecution has proved the case against the accused in respect of offence u/s 4 of ITP Act, whereas prosecution could not prove its case in respect of offence punishable u/s 5 ITP Act. Accordingly, accused Vikram Seth is convicted for the offence under Section 4 of ITP Act and is acquitted for the offence under Section 5 of ITP Act.
Digitally signed
APOORV by APOORV
GUPTA
GUPTA Date: 2024.06.03
ANNOUNCED IN OPEN COURT (Apoorv Gupta)
13:15:04 +0530
ON 3rd JUNE, 2024 MM-02, Central District
Tis Hazari Courts/03.06.2024
This judgment consists of 14 pages and each page of this judgment is digitally signed by me.
Digitally signed APOORV by APOORV
GUPTA
GUPTA Date: 2024.06.03
(Apoorv Gupta)
13:15:09 +0530
MM-02, Central District
Tis Hazari Courts/03.06.2024
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