Delhi District Court
Vs. Puttraj 2004 (1) Scc 475" And "Om ... vs . State Of U.P. 2006, Crlj. on 2 September, 2016
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Sessions Case No. 23/2015
Assigned to Sessions. 07.04.2015
Arguments heard on 20.08.2016
Date of Judgment 29.08.2016
FIR No. 405/2014
State v. 1. Farida Thapa @ Kali w/o. Sh.Kancha,
R/o. Kotha No.59, II nd Floor, Right Side
G.B. Road, Delhi.
Permanent Address: Kalapani,
Kathmandu, Nepal. (In JC)
2. Kanchi Tamang w/o. Sh. Marpev
Tamang, R/o. Kotha No.59 II nd Floor
Right Side, G.B. Road, Delhi and H.
No.68/346, Majnu Ka Tila, Delhi.
Police Station Kamla Market
Under Section 366/370/370A(2)/343/109 r/w 376/34 IPC
and section 3/4/5 ITP Act/34 IPC
JUDGMENT:
1. In the present case Station House Officer of Police Station Kamla Market had filed a challan vide FIR No.405/2014 dated 21.12.2014 u/s 365/368/370/370A/376/342/343/344/109/120B/34 IPC and under section 3/4/5/6/7 of ITP Act for the prosecution of accused persons namely Farida Thapa @ Kali and Kanchi Tamang in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr.P.C. the case was sent to this court being the designated Fast Tract Court for trial of the offences of sexual assault against the woman through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
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2. In nutshell story of prosecution is that a PCR call vide DD No.10A dated 21.12.2014 regarding three girls who escaped from brothel house, G.B. Road are present at Near New Delhi Metro Station, Ajmeri Gate side was received at PS Kamla Martket. Upon receipt of the PCR call, SI Padam Singh reached on the spot and found three girls. Thereafter, SI Padam Singh brought them at PS Kamla Market where their counseling were conducted by one Suman Lata of NGO SWDWA and one of victim got recorded her statement stating therein that she is illiterate and her father used to do agricultural work and her mother is a house wife. She has a younger brother who study in 6th class. It is further stated that her family is very poor and about four months ago, she met one girl namely Sapna aged about 3540 years at Gaudiya Railway Station and they started talking to each other and also exchanged phone numbers. It is further stated that she cannot recall the said mobile numbers now and on one day, Sapna made a call on her mobile phone and told that she has brother namely Sagar and she wants to marry his brother with her. Thereafter, Sapna introduced her brother to her and Sagar started talking to her on phone and Sagar used to say to her that he loves her and wants to marry her. It is further stated that thereafter, they got married in a temple and she has told regarding this to her parents over phone. After the marriage, Sagar brought her to Delhi by train and they reached at New Delhi Railway Station at about 10:30 p.m. and from there, accused Sagar had taken her to the house of one Sarika Didi in the TSR. It takes about half an hour for reaching at the house of Sarika. It is further stated that Sagar has done 'galat kaam' with her various times and prior to this he had done 'galat kaam' with her twice in village. He kept her there in that house for about 10 days and thereafter, Sagar told her that he cannot take her to his house as he does not have money. He also told her that she will have to work with Sarika Didi for about five days and thereafter he will take her to his house with him. It is further stated that she refused for doing 'galat kaam' to Sagar but due to fear of losing Sagar and pressure, she had gone with Sarika Didi to Kotha no.59, GB Road and Sarika handed her over to one lady namely Kali and thereafter Sarika left from there. It is further stated that one lady namely Kali had given her small and fit clothes for wearing and forced her to establish physical relations with customers and Kali used to take away money which those SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 2/41 customers used to give her and Sarika also came to the kotha once in 24 days and taken whole money from the Kali.
3. It is further stated that she became friendly with another girl namely Prosecutrix 'P@R', who was also living in the kotha and who was resident of Bengal, who was also come here by cheating. It is further stated that she remained at the said kotha for about 3 3 ½ months. Thereafter, Kali had taken her and Prosecutrix 'P @ R' to the house of Sarika at Rohini and at the house of Sarika, where they met one girl/prosecutrix namely 'M', who was also resident of Bengal. Prosecutrix 'M' told her that she was also brought to Delhi by Sagar and Sapna by giving her false promise and sold her to Sarika and during this period, she had worked in various kothas at Meerut and Agra. Thereafter, all three of them i.e. herself, prosecutrix 'P' and prosecutrix 'M' planned to escape and when everyone was sleeping in early morning of 21/12/2014, they fled away from the house of Sarika. It is further stated that they reached at New Delhi Railway Station by TSR and they met a taxi driver at Railway Station and narrated all the incident to the said taxi driver and asked him for help and he made a call at 100 number from his mobile number and called the police. On the basis of said statement, FIR No.405/14 u/s 365/368/370/370A/376/342/343/344/109/120B/34 IPC and under section 3/4/5/6/7 of ITP Act was registered at PS Kamla Market against the accused persons.
4. During the course of investigation, accused Farida Thapa @ Kali and Kanchi Tamang were arrested and after completion of investigation, chargesheet was filed in court. Other persons i.e. Sagar, Raju, Sapna and Sarika could not be arrested.
CHARGES:
5. On the basis of material on record, vide order dated 21.04.2015, accused Farida Thapa @ Kali were charged for offences punishable under section 366/370/370A(2)/343/109 r/w 376/34 IPC and section 3/4/5 ITP Act/34 IPC and accused Kanchi Tamang was charged for offence punishable under section 3 ITP Act. Both the accused persons pleaded not guilty and claimed trial when the charges were read over an explained to them.
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PROSECUTION WITNESS:
6. To prove his case prosecution has examined 14 witnesses. PW1 Prosecutrix 'P@R', PW2 Prosecutrix 'M', PW3 HC Vijay Singh, PW4 Satya Prakash, PW5 Prosecutrix 'B'/Complainant, PW6 Ms. Ambika Singh, PW7 Dr. Shailja, PW8 Inspector Veena Kumari, PW9 Sh. Rajiv Kumar Verma, PW10 SI Padam Singh, PW11 Inspector Binod Kumar Singh, PW12 Ct. Vikram, PW13 Ms. Sumanlata, Counsellor and PW14 Dr. Rajinder.
7. PW1 Prosecutrix 'P@R' is a material witness being victim. This witness has deposed that she has studied upto class VI and she is not aware of her date of birth. This witness further deposed that she cannot write or read Hindi, but she can only speak and understand Hindi.
8. PW1 further deposed that in the month of June/July, 2014, one Raju, who was also living in her village, brought her to Delhi and induced her to accompany him to Delhi by giving her assurance that he will find a good job of cleaning, sweeping etc. in Delhi. PW1 further deposed that she was having a mobile phone in her village but Raju took away her mobile phone and also some of her jewellery. This witness further deposed that she was not having cordial relations with her husband Tarun Sarkar.
9. This witness further deposed that after bringing her to Delhi, accused took her to one lady namely Sarika who was living in Kotha No. 40, GB Road, Delhi and Sarika handed her over to one lady namely Kali, who was living at Kotha No. 59 Right Side at Top floor at GB Road, Delhi. This witness has correctly identified the accused Kali @ Farida present in the court.
10. PW1 further deposed that Kali forced her to do the work of prostitution but she refused for the same stating that she is not willing for this work and she has come only for cleaning. PW1 further deposed that Kali gave her beatings when she refused to do the work of prostitution and accused Kali also took away her daughter from her and SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 4/41 gave her to someone else and due to fear of her daughter and due to beatings given to her by accused Kali, she was compelled to do the work of prostitution. PW1 further deposed that about 68 customers used to come to her per day and used to establish physical relations with her and Kali used to charge Rs. 200 to Rs. 300 per customer but she did not give her any money out of those earnings and used to keep the same with herself. PW1 further deposed that she was not doing the work of prostitution willingly but she was compelled to do this work as her daughter had been taken away by accused Kali and she was given beatings by her. 1020 other girls were also doing the work of prostitution in the said Kotha. PW1 further deposed that she only know prosecutrix 'B @ S' amongst those girls and prosecutrix 'B' was brought to the Kotha by one boy namely Subo, who gave her false assurance of marriage and after about 34 months, accused Kali brought her and another girl/prosecutrix namely 'B' to the house of Sarika. This witness further deposed that she does not know the address of house of Sarika where she and prosecutrix 'B@S' were taken by accused Kali. This witness further deposed that one girl/prosecturix namely 'M' met her there. This witness remained at the house of Sarika for about two days and she talked to prosecutrix 'B' and prosecutrix 'M' and they all decided that they will leave the house of Sarika as and when they will get the opportunity and they escaped from her house after two days. This witness further deposed that they reached at NDRS in a TSR and one taxi driver met them at NDRS and they narrated the entire incident to him and the taxi driver called the police at NDRS and police brought them to PS.
11. PW1 further deposed that on the next day, police took her and prosecutrix 'B' to Kotha No.59, Top Floor, Right Side, G.B.Road, Delhi for rescuing her child aged about two years and her child was found outside the Kotha on the road and accused Kali tried to escape in a TSR but was apprehended by the police. This witness has proved arrest memo of accused Kali vide Ex.PW1/A and her personal search memo vide Ex.PW 1/B. PW1 further deposed that police took her to a hospital for her medical examination. This witness has proved her statement u/s 164 Cr.P.C. vide Ex PW1/C. SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 5/41
12. This witness was cross examined by learned Addl. PP on certain facts including relevant dates and identification of accused Farida @ Kali at the time of her arrest. In her cross examination by Ld. Addl. PP for the State, this witness admits that Raju had also assured her that he will marry her before he brought her to Delhi. This witness further deposed that she can identify Raju and Sarika if they are shown to her.
13. This witness further admits that accused Farida @ Kali also did not used to give her food in order to compel her to do the work of prostitution. This witness also admits that the customers who used to visit the kotha to establish physical relations with her forcibly and without her consent. This witness further admits that accused Kali was apprehended on 22.12.2014 on her identification as well as identification of prosecutrix 'B' at the aforesaid Kotha.
14. This witness was cross examined by Sh. Harshit Jain - learned counsel for the accused. In her cross examination, this witness deposed that she got married six years ago and she has two daughters aged about 05 years and 02 years. This witness further deposed that she had stated to the police that Raju brought her to Delhi by saying her that he will find her a good job of cleaning and sweeping etc. (Confronted with statement Ex.PW1/DA where it is not so recorded.) This witness admits that she did not want any action to be taken against any of the accused. (Vol. She stated so because she wanted to go back early to her house.) This witness deposed that she had not informed her parents before she came to Delhi and her parents had reported about her missing to the local police. This witness deposed that Sarika handed her over to accused Kali and she told her that if she do the work of prostitution for one year, they would let her return to her house and her daughter will also be given back to her and Sarika later on i.e. after one month gave her daughter to accused Kali. This witness further deposed that both Sarika and Kali gave her beatings. This witness further deposed that she had not stated to the police that one day she was roaming on the road when Kali took her alongwith her. [Confronted with portion A to A of statement Ex. PW1/DA where it is so recorded.] This witness further deposed that she had stated to the police that Sarika and Kali gave her beatings. [Confronted with statement Ex.
SC No.23/2015State Vs. Farida Thapa @ Kali etc. 6/41 PW1/DA where it is not so recorded.] This witness further deposed that Kali used to give her beatings at the said Kotha.
15. This witness further deposed that Kali took her from house of Sarika to Kotha No. 59 in a TSR and there was no one else in the TSR except Kali at that time and at that time her daughter was with Sarika. She had not asked for help from the TSR driver or from other public persons.
16. Further, in her cross examination, this witness deposed that Raju is a Bengali and his house is far away from her village i.e. 56 railway stations after her village. She met Raju for the first time in a 'Mela' and she had gone there with her daughter. PW1 deposed that when her daughter was crying, he bought an icecream for her and he had not taken money from her for the icecream and they continued to talk on phone for 34 months thereafter. PW1 further deposed that she does not remember the number of her mobile phone now and she also does not remember mobile number of Raju now. PW1 further deposed that her mother had given her the said mobile phone while she was living in the house of her husband. This witness had denied to the suggestion that she had informed her parents before coming to Delhi. This witness deposed that accused snatched away her phone when her mother called on her number during the train journey. Thereafter, he returned her phone to her and finally took it away after reaching Delhi and she tried to make call to her parents after accused returned the phone to her in train. This witness deposed that from the railway station, accused took her to a room in a TSR where 23 girls were present and he took her to Sarika on the next day. PW1 further deposed that Sarika was not living in Kotha no. 40.
17. On Question: On 18.05.2015 you deposed that Sarika was living in Kotha No. 40 whereas you have deposed that Sarika was not living in Kotha No. 40. Which of your two statements is correct? This witness replied that what she has stated today is correct.
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18. This witness further deposed that from the room of Sarika, she was taken to Kotha No. 40 by Sarika in a TSR during night time and Raju did not tell her why he was leaving her with Sarika. This witness further deposed that she does not remember the name of the lady, to whom Sarika handed her over at Kotha No. 40. That lady also compelled her to do the work of prostitution in Kotha No. 40 by giving her inducement that if she do the same, she will allow her to go back to her house after one week. At that time, her daughter had been kept by Sarika. This witness further deposed that the lady at kotha no. 40 took her to the house of Sarika in a TSR in day time and then Sarika took her to Kotha no. 59, she did not try to escape when that lady took her to Sarika in a TSR to Kotha No. 59 because her daughter was with Sarika and she remained in the house of Sarika for 2025 days. [Vol. She had fallen sick.] This witness deposed that Sarika took her to a doctor 23 times and Sarika had not kept her daughter in her house but had given her to someone else and Sarika took her to a private doctor and not to hospital and she used to take her to different doctors and not to same doctor and she had not told anything to any doctor. Sarika used to remain present when the doctor used to examine me.
19. This witness further deposed that when Sarika took her to accused Kali at Kotha No. 59, she again told her that if she do the work of prostitution for one year in the said Kotha, she will be able to return to her house alongwith her child. This witness deposed that Sarika also used to give her beatings while she was living in her house and Sarika used to beat her as she was unable to do the work of prostitution due to her illness. This witness further deposed that she does not remember the date when Sarika left her with accused Kali.
20. This witness further deposed that Sarika had not taken any money from Kali in her presence when she handed her to Kali and Sarika had not taken any money from Kali on any other day thereafter in her presence. This witness further deposed that no one else except Kali gave her beatings while she remained in Kotha No. 59 and Sarika handed over her daughter to Kali after one month, but not in her presence and Kali allowed her daughter to remain with her for 10 days. At that time, her daughter was SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 8/41 suffering from fever. This witness deposed that Kali had taken her daughter to the doctor when she was having fever. This witness had denied to the suggestion that her daughter remained with her all along and was not taken away by anyone. This witness further deposed that she had stated about accused Kali in her statement recorded by Ld. MM under Section 164 CrPC Ex. 1/C [Confronted with statement Ex. PW1/C where name of Kali is not mentioned.]
21. This witness had denied to the suggestion that she came to Delhi voluntarily for doing the work of prostitution or that she was not forced or compelled by anyone to do the work of prostitution. This witness had denied to the suggestion that her daughter was also not taken either by accused Kali or by Sarika or that her earnings from the work of prostitution were not taken away by accused Kali or that Kali never lived at Kotha No. 59 or that Kali never gave her any beatings or that she made this statement at the instance of prosecutrix 'B@S'.
22. PW2: Prosecutrix 'M' is also a material witness being victim. This witness deposed that she is illiterate and about 1011 months ago she met one Sapna at Canning Railway Station when she was going to house of her Bua. Sapna took her mobile phone number and her brother namely Sagar made a call on phone number stating that he wants to be her friend and they started talking to each other. PW2 further deposed that one day, they met at Sunar Pur Railway Station, West Bengal and he took her to Bokhali falsely stating that his mama has expired and he is going there and also asked her to accompany him and took her to a hotel in Bokhali and established physical relationship with her without her consent. PW2 further deposed that on the next day, Sagar brought her to Delhi by train stating that he will marry her there and will also find a job there. In Delhi, Sagar took her to the house of one Sarika whose address she does not remember but she can identify Sarika if shown to her and she remained in the house of Sarika for about 15 days.
23. PW2 further deposed that Sarika's husband and Sagar @ Subo took her to Agra after 15 days and there they kept her in a Kotha at Kabari Bazar and Sagar left the SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 9/41 Kotha stating that he will take her with him after about one month but he did not return. PW2 further deposed that one day, a lady namely Geeta, who used to run the said Kotha at Agra told her that Sagar @ Subo has sold her to her and she was forced to do the work of prostitution there. Sarika also made a call at the said Kotha and told her that she has to do the work of prostitution and thereafter, she will allow her to go to her village and she remained in Kotha at Agra for about 5 months and from Agra, Sarika'a friend namely Prakash took her to a Kotha at Meerut and she remained there for about one month and there also she was forced to do the work of prostitution by Sarika's friend Prakash and she fell ill in Meerut and then she was brought by Prakash to the house of Sarika in Delhi and Sarika got her medically treated.
24. PW2 further deposed that one day, she does not remember the exact date and month, one lady namely Kali accused present in the court today (correctly identified) brought two girls in the house of Sarika and she came to know the name of those girls as prosecutrix 'B@S' and prosecutrix 'P@R'. PW2 further deposed that one day when Sarika was not present in the house and accused Kali was in the washroom, she talked to those girls and they told her how they were brought to Delhi and forced to do the work of prostitution at GB Road. She came to know that prosecutrix 'B' was also brought by the same boy Sagar @ Subo, who had also brought her to Delhi and then they made a plan to escape from the house of Sarika and on the next morning, they fled away from the house of Sarika and went to ND Railway Station.
25. In cross examination by Ld. APP, this witness admits that it was 21.12.2014 when she, prosecutrix 'B' and prosecutrix 'P' managed to escape from the house of Sarika.
26. This witness was cross examined by Sh. Harshit Jain learned counsel for both accused. In her cross examination, this witness had denied to the suggestion that she had not met prosecutrix 'B' and prosecutrix 'P' at any point of time or that Kali ever came to Sarika's house or that she, prosecutrix 'B' and prosecutrix 'P' never ran from the house of Sarika. This witness had denied to the suggestion that they were free to go SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 10/41 anywhere at any point of time or that she is making this statement under the fear and coercion of police officials and prosecutrix 'B'.
27. PW3 HC Vijay Singh is a formal witness being duty officer. This witness has proved DD No.10A vide Ex.PW3/A.
28. PW4 Satya Prakash is a Taxi driver. This witness deposed that on 21.01.2014, he was standing at New Delhi Railway Station at Ajmeri Gate side with his taxi and he saw three girls standing outside the Railway Station and they were crying. PW4 further deposed that upon his enquiry, they informed him that they have escaped from a kotha at GB Road and they also told him that the daughter of one of them has been left behind at the Kotha and they asked for his help so he made a call at 100 number from his mobile no.9717664390 and police reached the spot and took away those girls in Gypsy.
29. In his cross examination by Sh. Harshit Jain- learned counsel for both the accused, this witness deposed that he had not stated to the police that those girls told him that the daughter of one of them has been left behind at the Kotha. [Vol. he only informed the police by making a call at 100 number and those girls might have told the police about the same]. This witness further deposed that police had not conducted any proceedings in his presence at the spot and they only took away those girls in the police gypsy. This witness had denied to the suggestion that he is planted witness or that he was not present at the spot or that he had not made any such call at 100 number.
30. PW5 Prosecutrix 'B' is material witness being victim and complainant. This witness deposed that she can speak and understand Hindi properly. PW5 further deposed that she was living with her parents and younger brother at the aforesaid house. About one year ago, she alongwith her brother had gone to visit Durga, who is daughter of her Chacha and lives at Village Gaudiya and she stayed in her house for ten days and when she was returning, she met one girl namely Sapna at Gaudiya Railway Station and she was also traveling in the same train. They started talking to each other and also exchanged phone numbers. PW5 further deposed that she cannot recall the said mobile SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 11/41 numbers now and on the same day, Sapna made a call on her mobile phone and talked to her and after 23 days, she received a call from one person who told his name as Sagar and introduced himself as brother of Sapna and Sagar started talking to her on phone and Sagar used to say to her that he loves her and wants to marry her. He continued to talk to her on phone for one month. PW5 further deposed that Sagar called her at Cannings and she reached there by an auto and took about 1½ hours to reach there from her village and Sagar met her there.
31. PW5 further deposed that Sagar had taken her to a temple and married her. Sagar told her that he will not take her to his house right now and will take her later on, and Sagar brought her to Delhi by train. This witness had not informed her parents about her marriage with Sagar as he had told her not to inform them. PW5 further deposed that accused had taken her to the house of one Sarika Didi in the TSR and he kept her there in that house for about 10 days and Sagar established physical relations with her during this period and after ten days, Sagar told her that he cannot take her to his house as he does not have money. He also told her that she will have to work with Sarika Didi for about five days and thereafter he will take her to his house with him. Sagar left from there and Sarika Didi took her to Kotha no.59, left side, second floor at GB Road.
32. PW5 further deposed that Sarika handed her over to one lady namely Kali and thereafter Sarika left from there. This witness has correctly identified the accused present in the court today. PW5 further deposed that customers used to visit at the said kotha and accused Kali forced her to establish physical relations with those customers without her consent and Kali used to take away money which those customers used to give her and Sarika also came to the kotha once and told her to do the work properly.
33. PW5 further deposed that she became friendly with another girl/prosecutrix namely 'P@R', who was also living in the kotha and she remained at the said kotha for about 34 months. Thereafter, Kali had taken her and prosecutrix ' P@R' to the house of Sarika and at the house of Sarika, they met one girl/prosecutrix namely 'M', who was SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 12/41 also resident of Bengal. Initially, Kali and Sarika told her not to talk to prosecutrix 'M' but later prosecutrix 'M' told her that she was also brought to Delhi by Sagar by giving her false promise of marriage.
34. PW5 further deposed that they remained in the house of Sarika for two days. Thereafter, all three of them i.e. herself, prosecutrix 'P @ R' and prosecutrix 'M' planned to escape and when everyone was sleeping in early morning of 21/12/2014, they fled away from the house of Sarika. PW5 further deposed that they reached at New Delhi Railway Station by TSR and they met a taxi driver at Railway Station and narrated all the incident to the said taxi driver and asked him for help and he made a call at 100 number from his mobile number and called the police. PW5 further deposed that police reached at the railway station and took all three of them to the PS and from PS, all of them went to Kotha No. 59, GB Road, Delhi alongwith the police in search of daughter of prosecutrix 'P@R' and their belongings, but she could not be found. This witness has proved her statement Ex. PW5/A and they were also taken to hospital for their medical examination.
35. PW5 has proved arrest memo of accused Kali vide Ex.PW1/A and personal search memo of accused Kali vide Ex.PW1/B. This witness has also proved her statement u/s 164 Cr.P.C. vide Ex. PW5/B. PW5 further deposed that about 1314 customers used to come to her at the said Kotha daily and accused Kali used to charge Rs. 750/ from day customers and Rs. 850/ from night customers and Rs. 250/ was paid towards tip.
36. This witness was cross examined by learned Addl. PP for the State on certain points. In her cross examination, this witness deposed that she is illiterate. This witness admits that Sarika also used to come to the Kotha of accused Kali in 24 days to collect money from her. This witness further deposed that when she met prosecutrix 'M', she came to know that she had also been induced by Sagar and Sapna and sold to Sarika. This witness admits that Kotha No. 59, GB Road was on right side and not on the left side. This witness admits that she had earlier wrongly stated that it was on left SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 13/41 side as she was confused between left and right side.
37. In her cross examination by Sh. Harshit Jain - learned counsel for both the Accused, this witness deposed that when she met Sapna at Godia Railway Station, her brother was also with her. This witness further deposed that she did not state to the police that Sagar had called her to Cannings. This witness further deposed that she had gone to Cannings alone and at the time of her marriage with Sagar, no one else was present and Sagar brought me to Delhi on the same day after marriage. This witness further deposed that Sarika did not tell her where she was taking her before she took her to Kotha No. 59.
38. This witness further deposed that there were 1617 rooms on Kotha No. 59, right side, Second Floor, GB Road, Delhi and 1718 other girls were also living in the Kotha besides her and prosecutrix 'P@R' and Kali had threatened her and given beatings to her and she was not taken to any other Kotha except Kotha No. 59, right side, Second Floor, GB Road, Delhi.
39. On Court Question, Yesterday, you had deposed in court that accused Kali was arrested in your presence and you had also signed arrest memo Ex. PW1/A whereas today you deposed that accused Kali was arrested in presence of prosecutrix 'M'. Which of your two statements is correct? In reply, this witness deposed that she had also gone to Kotha No. 59 on the next day when accused Kali was arrested.
40. This witness had denied to the suggestion that she have never stayed at Kotha No. 59 right side, Second Floor, GB Road, Delhi or that the address of the Kotha was told to her by the police. This witness had further denied to the suggestion that accused Kali never threatened, beaten or forced her to do the work of prostitution or that she met accused Kali for the first time in the PS or she never met prosecutrix 'P' and prosecutrix 'M'.
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41. PW6 Ms. Ambika Singh, Ld.MM06 (Central) Room no.247, Tis Hazari Court, Delhi. This witness has proved the statement of prosecutrix 'P@R' is vide Ex.PW1/C, statement of prosecutrix 'B@S' already Ex.PW5/B and statement of prosecutrix 'M' vide Ex.PW6/B. This witness has also appended certificate regarding correctness of the same.
42. PW7 Dr. Shailja has proved MLC of prosecutrix 'P@R' vide Ex.PW7/A, MLC of prosecutrix 'B@S' vide Ex.PW7/B, and the MLC of prosecutrix 'M' vide Ex.PW 7/C. This witness has further deposed that all the three patients have refused for their internal examination.
43. PW8 Inspector Veena Kumari. This witness recorded the FIR Ex. PW8/A and also endorsed the rukka vide Ex. PW8/B and the certificate under Section 65 B Evidence Act in this regard vide Ex. PW8/C. This witness further deposed that on the same day, he had taken the prosecutrix 'P', 'M' and 'B' to LNJP Hospital for her medical examination. This witness has also got recorded their statements under Section 164 CrPC in the court of Ld. MM and collected the copies of the statement.
44. In his cross examination by Sh. Harshit JainLd. counsel for both accused, this witness deposed that he has got done the medical examination of prosecutrix and he knew the prosecutrix. This witness had denied to the suggestion that he had threatened the prosecutrix before their statements under Section 164 Cr. P.C. was got recorded.
45. PW9: Sh. Rajiv Kumar Verma, Field Executive, BSES, Town Hall, Chandni Chowk, Delhi. This witness has deposed that on 01.09.2015, he had visited Kotha No. 59, Second Floor, Right Side of premises bearing No. 5382/89, GB Road, Delhi and the meter No. 11641212 installed at the aforesaid Kotha is in the name of Smt. Kanchi Tamang. This witness has proved the computer generated electricity bill vide Ex. PW9/B attested by him at point A and the photographs vide Mark PW9/A and Mark PW9/B. This witness has also proved the site inspection report vide Ex.
PW9/A.
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46. This witness deposed that he has also generated the electricity bill from computer which is in the name of Smt. Kanchi Tamang and proved the same vide Ex. PW9/C which is not tampered with in any manner and proved his certificate under Section 65 B Evidence Act vide Ex. PW9/D.
47. In his cross examination by Sh. Harshit Jain - Learned Counsel for accused, this witness deposed that he personally visited the site and prepared the report Ex. PW9/A at his own and he was not forced by anyone to prepare the said report. The site inspected by him as mentioned in report Ex. PW9/A is the top floor i.e. second floor and he has made correction in report Ex. PW9/A at point X in Tis Hazari Court. This witness had denied to the suggestion that he had made correction at the instance of police officials or that his report is false.
48. PW10 SI Padam Singh. This witness has joined the investigation with the I.O. This is the witness of arrest of accused Kanchi Tamang. This witness deposed that on 21.12.2014, pursuant to a call vide DD No. 10A Ex. PW3/A, he alongwith Ct. Vikram reached at the place of occurrence i.e. Gate no. 1, Metro Station, New Delhi whereon prosecutrix [s] 'B', 'M' and 'P' were found present. This witness had made cursory enquiry from them and they told him that they managed to escape from Kotha No. 59, Second Floor, GB Road. Since it turned out to be a case of ITP Act, he took all the prosecutrix to PS Kamla Market. This witness briefed the matter to SHO/Insp. Vinod Kumar and produced the prosecutrix before him and the SHO called a counsellor Ms Sumanlata from DCW, who gave counselling to the prosecutrix. SHO recorded the statement of prosecutrix 'B' made endorsement thereon and gave the rukka to DO for registration of case. m brought the FIR and rukka and handed over the same to SHO/IO. This witness has proved arrest memo of accused Kanchi Tamang vide Ex.PW10/A, her personal search memo vide Ex.10/B and recorded her disclosure statement vide Ex.PW10/C. SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 16/41
49. In his cross examination by Sh Harshit Jain learned counsel for both accused, this witness deposed that he has joined investigation in several other cases of PS Kamla Market under ITP Act and he has moved the application for recorded statements of victims under Section 164 CrPC as per the oral direction of IO. This witness admits that he alongwith Ct. Vikram accompanied the victim girls to the PS. This witness had denied to the suggestion that the victims were shown the photograph of accused Farida @ Kali in the PS when the complaint Ex. PW5/A was recorded. This witness had denied to the suggestion that all investigation in the matter was conducted by him and not by Insp. Binod. This witness deposed that he knew accused Kanchi Tamang prior to registration of FIR, but he had not known accused Farida @ Kali.
50. PW11 Inspector Binod Kumar Singh is a material witness being I.O. This witness has deposed that on 21.12.2014 he was posted as Insp. [Investigation] at PS Kamla Market and on that day, SI Padam Singh produced three victims namely Prosecutrix 'B', Prosecutrix 'M' and Prosecutrix 'P @ R' and told him that they had escaped from Kotha No. 59, Second Floor. This witness had called the counsellor from NGO for counselling of victims and enquired the matter from the victims and recorded the statement of victim Prosecutrix 'B'. The statement, Ex. PW5/A was recorded by SI Padam on his narration during the examination of the victim. This witness had made endorsement at point C to C on the said statement bearing his signatures at point A and got the present FIR registered.
51. This witness had taken all the aforesaid three victims to the aforesaid Kotha in search of accused persons, but accused persons could not be located. This witness had got conducted medical examination of aforesaid victims from LNJP Hospital and after their medical examinations, victims were kept at Bapuno Ghar at New Delhi.
52. During the course of investigation, on 22.12.2014, this witness has arrested accused Farida @ Kali at the instance of victim vide arrest memo Ex. PW1/A and his personal search was also got conducted vide memo Ex. PW1/B. This witness has also got recorded her disclosure statement vide Ex. PW11/A. This witness has got SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 17/41 conducted medical examination of the accused Farida and sent her to judicial custody.
53. On 23.12.2014 on his instructions, SI Padam Singh moved an application, Ex. PW6/A for recording statement of victims under Section 164 CrPC, but the matter was posted for next day.
54. During the course of investigation, on 24.12.2014 the statement of victims under Section 164 CrPC were got recorded by W/SI Veena.
55. This witness has proved site plan vide Ex. PW11/B which was site plan was prepared at the instance of complainant/prosecutrix 'B'.
56. During the course of investigation, on 01.03.2015, on a tipoff by secret informer, this witness had arrested the accused Kanchi Tamang, present in the court [correctly identified] from her house at Majnu Ka Teela vide arrest memo Ex. PW10/A. SI Padam Singh and W. SI Pushplata were also present with him at that time. This witness has proved personal search memo of accused Kanchi Tamang vide memo Ex. PW10/B and her disclosure statement vide Ex. PW10/C.
57. During the course of investigation, this witness has obtained certified copy of writ petition Ex. PW11/C filed by accused Kanchi Tamang containing her affidavits with regard to her ownership of Kotha No. 59, Second Floor, Right Side, GB Road, Delhi i.e. premises in question. This witness had also collected electricity bill with regard to electricity connection installed in the name of accused Kanchi Tamang at the given premises vide Ex. PW11/D. In the aforesaid electricity bill the old address of the premises was given as premises No. 5382/89, Second Floor, GB Road, Delhi. This witness had verified the said facts from the concerned office and it was revealed that the occupants of the Kotha had renamed the premises/kotha number in accordance to their convenience. This witness had examined PW Rajiv Kumar Verma, Field Executive of BSES in this regard. This witness had recorded the statement of witnesses who joined proceedings with him in this case, prepared chargesheet and SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 18/41 submitted in court.
58. In his cross examination by Sh. Harshit Jain learned counsel for both accused, this witness deposed that this was his first case which he investigated under ITP Act. This witness admits that as per ITP Act, only special officer appointed by the Central Government is empowered to enquire in the matters pertaining to the ITP Act. This witness deposed that he was the officiating SHO of PS Kamla Market at that time as the main SHO was on leave. This witness further deposed that the building wherein the Kotha No.59 is situated comprised of two floor excluding the ground floor and the said premises was found open and some girls were found at the said premises and kotha No.59 is situated at IInd Floor. This witness had denied to the suggestion that the victim girls were not present at the time of arrest of accused Kali or that accused Kali was not arrested from the premises in question and that she was arrested from somewhere else and was brought to the PS later. This witness had denied to the suggestion that the photographs were not taken intentionally as the entire case is false and fabricated. This witness had denied to the suggestion that no such facts surfaced during investigation and that accused Farida did not have any link with accused Kanchi @ Tamang. No separate case was registered with regard to any other Kotha, as mentioned by victim/prosecutrix 'P'. It is wrong to suggest that he intentionally did not investigate about the other kothas and had falsely implicated the accused persons in this case. This witness had denied to the suggestion that accused Farida Thapa @ Kali was arrested from the Kotha No. 59 that is why he did not make any girl as witness which were present at the Kotha or that victim girls never stayed at Kotha No. 59, GB Road, Delhi and that the minor child of the prosecutrix 'P' was not recovered from Kotha No. 59 or that the photograph of accused Farida Thapa @ Kali was shown to the victim girls to identify her.
59. PW12 Ct. Vikram. This witness deposed that on 21.12.2014, Duty Officer, W.SI Veena Kumari has handed over to him copy of FIR and rukka of this case and he carried the same to Kotha No. 59, Second Floor, Right Side, GB Road and handed them over to Insp. B. K. Singh for investigation.
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60. PW13 Ms Sumanlata, Counsellor, DCW Mobile Helpline, Delhi. This witness on 21.12.2014 pursuant to a request received from PS Kamla Market, reached there and all the three victims namely prosecutrix 'M', prosecturix 'P@R' and prosecutrix 'B@S' were found present in the PS and she gave them counselling and prepared herreport Ex. 13/A, Ex. PW13/B and Ex. PW13/C.
61. PW14 Dr. Rajinder. This witness has proved MLC of three patients viz., 'P @ R', 'V @ S' & 'N' (names withheld in order to protect their identity) vide MLCs Ex.PW 14/A, Ex.PW14/B & Ex.PW14/C respectively and referred the patients for gynecological examination.
STATEMENT OF ACCUSED PERSONS UNDER SECTION 313 CR. PC:
62. After the prosecution evidence, statement of both the accused persons under section 313 Cr. P.C. was recorded. They denied all the incriminating evidence against them and stated that they have been falsely implicated by the prosecutrix. Accused Farida Thapa @ Kali claimed that she has come to Delhi in search of work one day before she was arrested from New Delhi Railway Station for the purpose of enquiry of her stay and address since she belongs to Nepal but she was falsely made party to the present case and was arrested by the police officials. She does not know any of the witnesses produced by the prosecution and she was shown to them for the first time in the police station when she was arrested. She further claimed that her name is Farida Thapa and the police officials had falsely named her Kali as well. She also does not know coaccused Kanchi Tamang and she has seen her for the first time in the court. Accused Kanchi Tamang claimed that one of the investigation officer was already known to her and has falsely implicated her in the present matter because he was hand in gloves with the actual culprits who have not been made accused in the present matter. She is innocent and she does not know the coaccused Farida Thapa @ Kali nor any of the witnesses produced by the prosecution and have seen them for the first time in the court. In statement u/s 313 Cr.P.C. accused persons claimed to lead defence evidence.
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DEFENCE EVIDENCE:
63. Accused Smt. Kanchi Tamang examined herself as DW1. She deposed that her room is situated on the top floor i.e. third floor of Kotha No.59, G.B. Road, Delhi and there are four rooms on the same floor. Her room as well as other rooms bears number i.e. Kotha No.59 and for the purpose of identifying her room, photographs are being tendered on judicial record vide Ex.DW1/A. In her cross examination by Sh. Alok Saxena, Ld. Substitute PP for Sh. A.T. Ansari, Ld. Addl. PP for the State, this admits that she has not brought any negative of photographs Ex.DW1/A. This witness further admits that there is no certificate under section 65B of Indian Evidence Act alongwith the aforesaid photographs.
ARGUMENTS:
64. Sh. Harshit Jain, Ld. counsel for accused persons submitted that the present matter is a sheer misuse of powers given to the police officers for the protection of the citizens and illegally forcing them on innocent people by framing a false case against the innocent persons to save their skin.
65. Ld. counsel for accused further submitted that the Ld. Predecessor of this Hon'ble Court framed charges against the accused persons only under section 366/370/370A (2)/34, 10 r/w section 376 IPC and sections 3 /4/5 of ITP Act since the prosecution could not show enough evidence for framing of charges against the accused persons under other various offences as mentioned in the chargesheet.
66. Ld. counsel for accused further submitted that the present case has been investigated by an officer of Delhi Police of Inspector rank person but the prosecution has not been able to bring any document or evidence which goes to show that the said police officer was a special police officer appointed by the state or the central government as necessarily needed under the provision of section 13 of the ITP act, hence, any investigation done by an incompetent person is illegality and hence the conviction cannot be done of any of the accused under any of the provisions of ITP Act.
SC No.23/2015State Vs. Farida Thapa @ Kali etc. 21/41 That the accused persons are relying upon the notification of the Government of India of the year 1988 wherein the Station House Officers of all the police stations were appointed as special police officer as per section 13 of the ITP Act whereas in the present case the investigating officer was not the SHO at the time of registration of the present FIR neither any time later during the time of conducting investigation which is further not being done by him and had rather conducted by his junior officials which is clear from the statements of various police officers who have deposed before this Hon'ble Court.
67. Ld. counsel for accused further submitted that the present case is an star example of leaving the actual accused and framing the case against innocent persons as the police has not taken any steps for the arresting of the absconding accused persons, infact the police officials have not even tried to move any application for declaring them as proclaimed offenders which goes to show that the police officials are hand in gloves with the actual culprits.
68. Ld. counsel for accused further submitted that from the evidence on record at no point of time the story came up that the victims/prosecutrix were sold by any of the accused persons to anyone which goes to show that the present case is not of human trafficking at all and no statement or evidence of the neighbour of the alleged premises goes to show that the present case is merely a bundle of lies and is full of planted witnesses against the accused persons.
69. Ld. counsel for accused persons further submitted that the statements of the victims i.e. PW1, PW5 and PW2 has given 4 statements i.e. one under section 161 of Cr.P.C. then one before the NGO counselor, then before the Ld. Magistrate under section 164 of Cr.P.C. and the final statement before this Hon'ble Court. It is interesting to note that the statement of all three victims have been different at all statements, none of the victims in their statement before the NGO counselor or before the Ld. Magistrate under section 164 had alleged the name of accused Farida Thapa @Kali and had made material contradictions in regard to the place of alleged offence SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 22/41 that is the address of the premises and had further in their statement before the court had brought out the contradictions of the investigation made by the investigating officer in terms of the arrest, search, seizure etc.
70. Ld. counsel for accused persons further submitted that the statement of the victim PW1 had completely changed the version brought by the investigating Officer as per her statement under section 161 of Cr.P.C. wherein she had mentioned that she was at Kotha No.40 first and then she ran away from there and then met the accused Farida Thapa @ Kali on G.B. road itself who asked her to come with her and she will get her work, on the other hand in the statement before this Hon'ble Court she had stated that accused Sarika (not arrested) handed her to accused Farida Thapa @ Kali at Kotha No.59 at G.B. Road which goes to show that the victim had made various improvements and material contradictions in her statement. Even before the NGO counselor she stated that she was living at G.B. Road by her free will and consent and was doing work of SINGING AND DANCING and further had not mentioned anything about accused Farida Thapa @ Kali hence, making her deposition unworthy and the same cannot be relied upon and further she disclosed about the arrest of the accused Farida Thapa not in her front and not from the Kotha No.59 which goes to show that the accused Farida Thapa @ Kali was arrested by the police from somewhere else and had shown to to have been arrested from the Kotha No.59 and further before deposing before this Hon'ble Court she had not even mentioned the name of Kali and no role has been attributed to accused Farida Thapa.
71. Ld. Counsel for accused persons further submitted that the story of the prosecution becomes doubtful because as per the chargesheet the police control room got a call from a taxi driver who mentioned three girls of different names from the present victims have run away from Kotha No.71 and there is no mentioning in the said DD entry about Kotha No.59 or of any of the accused person. Further, the said caller was examined as PW4 Satya Prakash whereas in his deposition before this Hon'ble Court he had not been able to prove, rather the prosecution have not been able to prove that the call from which number it was made belongs to the said witnesses which goes SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 23/41 to show that the whole story of the prosecution was a pre planned affair tor frame a false case against the present accused persons and there is no investigation to the effect that who were the three girls which were named by the said witness in the DD entry at the time of making call on 100 number.
72. Ld. counsel for accused further submitted that complainant PW5 had made material contradictions as to where the alleged premises is situated, further in her deposition she had mentioned that she had travelled by TSR at many occasion with accused Farida Thapa @ Kali but she admittedly did not make any hue and cry at any point of time which cannot be believed if a person is a victim of such kind of exploitation then he/she is bound to make a scene when brought in a public area, whereas nothing of that sort was done by the said witness. Further, the prosecutrix i.e. PW5 knew the name of only PW1 and no other inmate of the said Kotha No.59 even when as per her own statement there were many other inmates but she did not remember the name of any of the other inmate even when she stayed at the said premises for many months which is not at all believable. Further, PW5 in her statement u/s 164 Cr.P.C. or before the NGO counselor has not mentioned the name of accused Farida Thapa @ Kali which further goes to show material contradictions and improvements in her statement recorded at different stages.
73. Ld. counsel for accused persons further submitted that prosecution had failed to prove any kind of sexual exploitation of the victims since there is no medical evidence or any FSL report of the doctors or the experts showing that the victims were being regularly and frequently sexually harassed or assaulted. The absence of same also create doubts as to the falsity of the present case and the benefit of the same is bound to go in favour of the accused persons since the present case is solely and completely based on circumstantial evidence, since none of the victims had been allegedly recovered during a raid of something and neither the investigating officer had investigated from the other inmates if there were any regarding exploitation of the victims by any of the accused persons.
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74. Ld. counsel for accused persons further submitted that PW8 deposed that the investigating officer was present at the time of recording of the statement under section 164 Cr.P.C. whereas the investigating officer in his deposition had denied to have been present at that time points out the fingers upon the investigating agency as to how the investigation has been carried out in the present case and further points out the falsity of the present which have been framed against the accused persons.
75. Ld. counsel for accused further submitted that the statements of the other police officers who were involved in the investigation of the present case including the investigating officer himself are contradictory to each other on various aspects. It is further visible from their statement that the complete investigation was not even done by the said investigating officer as he had never been present in the court for moving any application and had never even endorsed any of the said application which was moved before the court of Ld. Magistrate at various occasions and the other police officers had shown themselves as the investigating officer of the present case which had prejudiced the investigation in all aspects. That the admission on behalf of the investigating officer of not investigating in relation of other Kotha Nos goes to show the tainted investigation and framing of the present case upon the accused persons.
76. Ld. counsel for accused persons further submitted that there are no photographs of the premises taken by the investigating officer no independent witnesses has been examined from the alleged premises or from the neighbourhood which could substantiate the and support the story of the prosecution and further the statement of the complainant before the NGO Counselor wherein the PW5 is clearly stating that she wants legal action against accused Sagar and Sarika only and not mentioning any other name goes to show that the accused persons have been framed by the investigating agency and further the investigating agency have not been able to show that the accused Farida Thapa @ Kali was living at Kotha No.59 right side, G.B. Road and neither the prosecution have been able to show that there was any brothel house working in the knowledge of the owner or the coaccused Kanchi Tamang had any kind of knowledge SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 25/41 or relation about accused Farida Thapa @ Kali infact in their statement under section 313 Cr.P.C. have denied knowing each other and infact stated that they have seen each other for the first time in the Court. Ld. Counsel for accused persons has relied upon the following judgments :
a. Parichhat Versus State of M.P. (1977) 4 SCC 694 & Chandrakant V. Murgyappa Versus State of M.P. (1996) 10 SCC 508/AIR1999 SC 1557;
b. Badruddin Versus State of U.P. AIR 1998 SC 3243 and Gurdial Singh Versus State of Punjab (2011) 2 SCC 768; c. Maharashtra State Electricity Distribution Co. Versus Datar Switch (2010) 10 SCC 479;
d. Faguna Kantha Nath Vs The State of Assam AIR 1959 SC 673;
e. Goura Venkata Reddy Vs. State of A.P. (2003) 12 SCC 469;
f. Kishori Lal Vs. State of M.P. (2007) 10 SCC 797;
g. Sohan Raj Sharma Vs. State of Haryana (2008) 11 SCC 215;
h. Kishangiri Mangalgiri Goswami Vs. State of Gujrat (2009) 4 SCC
52;
I. Delhi Administration Vs. Ram Singh, AIR 1962 SC 63 Constitution
Bench;
j. Ashok Sharma Vs. State of Jharkhand & Anr. Crl. Misc. No. 8545 of
1999;
k. Shakila Vs. State, Allahabad High Court AIR 1961 All. 633;
l. Kuppammal Vs. unknown, Madras High Court, AIR 1959 Mad 389;
77. Ld. Defence counsel strongly argued that the case of the prosecutrix cannot be believed in view of the aforesaid and the accused persons are liable to be acquitted.
78. On the other hand, describing charge, Ld. Addl. PP for the State submits that there are overwhelming evidence against each and every person qua the charge on which they have been tried. The testimony of victims examined as PW1, PW2 and PW5 are interse corroborative on all material aspects of the case apart from corroboration from PW4 Satya Prakash, Taxi Driver and medical evidence placed on record. From the depositions in the court its stand very well established that accused Farida Thapa @ Kali received prosecutrix from qua coaccused Sarika for the purpose of sexual exploitation and took her to kotha in question on pretext of find her job of cleaning at the Kotha and subjected her for sexual exploitation by the customers visited SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 26/41 the Kotha. The evidence of these victims are required to be appreciated in the light of their background and their educational qualification.
79. Ld. Addl. PP for the State further submitted that the deposition of I.O. Inspector Vinod, PW9 Rajiv Kumar Verma, Field Executive from BSES and answer to the question put to the accused persons u/s 313 Cr.P.C. coupled to the statements of three victims of this case clearly established that accused persons in furtherance of their common intention have been running brothel house for thriving themselves on its income by procuring and inducing prosecutrix to carry prostitution at the Kotha. Ld. Addl. PP for the State further submitted that deposition of PW9 Sh. Rajiv Kumar, Field Executive from BSES and statement of PW11 Inspector Vinod Kumar clearly proved that accused Kanchi Tamang was the owner of Kotha No.59, second floor, Right side, G.B. Road, Delhi. Hence, she had let it out for coaccused persons for running brothel house. Therefore, accused Kanchi Tamang is liable for under section 3 ITP Act.
80. It is further submitted that PW11 Inspector Vinod had obtained certified copy of relevant documents regarding ownership of said Kotha from Hon'ble High Court of Delhi where accused Kanchi Tamang has filed petition relying upon those documents as such prosecution establish that she had been the owner of aforesaid Kotha. The arguments raised by Ld. Defence counsel that the offence u/s ITP Act charged against accused persons cannot be invoked, fallacious and misplaced. Further, SHO of PS have been notified in Delhi special police officer for the purpose of investigation of offence under ITP Act. It is further submitted that PW11 Inspector Vinod has got the FIR registered while he was officiating as SHO at relevant time. As such he was special police officer very well empowered to conduct such investigation. More so sub clause
(e) of section 114 of Evidence Act, there is presumption in the favour of All Public Servant of doing their work diligently under the colour of their duties.
81. It is further submitted that as per section 156 sub clause (2) of Cr.P.C., the investigation conducted by the police officer establish qua in question at any stage on the ground that the case which was investigated by him was one which such officer not SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 27/41 empowered under to investigate. In the light of aforesaid submission, Ld. Addl. PP for the State submits that there is no infirmity qua the investigation on the aspect of offence under section ITP Act in this case.
82. Ld. Addl. PP for the State further relied upon a very recent judgment wherein accused persons were convicted by Ld. Predecessor of this court report as Criminal Appeal No.723/14 and No.724/14 titled as 'Rekha Vs. State and Sheetal Vs. State' respectively decided on 01.06.2016 by Hon'ble High Court of Delhi wherein Hon'ble High Court of Delhi has upheld conviction of both the accused persons on the facts and evidence akin to the present case.
83. Ld. Addl. PP for the State further submits that prosecutrix has brought on record overwhelming evidence to prove the charges levelled against accused persons. Hence, prays for their convictions.
PERUSAL OF RECORD/OPINION:
84. Argument heard. Record perused. On perusal of record it is revealed that on 21.12.2014 pursuant to a call vide DD No.10A Ex.PW3/A, PW10 SI Padam Singh alongwith Ct. Vikram reached the place of occurrence i.e. Gate No.1, Metro Station, New Delhi whereon prosecutrix PW1, PW2 and PW5 were found present; PW10 took them to police station, Kamla Market; PW11 Insp. Vinod Kumar Singh called PW13 Ms. Suman Lata Counselor from DCW and she gave counseling to them and prepared report Ex.PW13/A, Ex.PW13/B & Ex.PW13/C; PW11 got recorded the statement of PW Prosecutrix 'B' by PW10 SI Padam Singh. On the basis of statement of Prosecutrix 'B' Ex.PW5/A qua the incident happened with her, the present FIR No.405/2014 Ex.PW8/A was registered vide endorsement Ex.PW8/B.
85. It is further revealed that statement of PW5 Prosecutrix 'B' u/s 164 Cr.P.C. was recorded by PW6 Ms. Ambika Singh, Ld. MM. PW6 has also recorded the statement Ex.PW1/C of PW1 Prosecutrix and statement Ex.PW6/B of PW2 Prosecutrix 'M' I/s 164 Cr.P.C.
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86. It is further revealed that PW14 Dr. Rajender, LNJP Hospital has conducted medical examination of PW1, PW5 & PW2 vide MLC Ex.PW14/A, Ex.PW14/B & Ex.PW14/C respectively.
87. It is further revealed that on 22.12.2014 PW11 Inspector Vinod Kumar Singh alongwith all the three victims i.e. PW1, PW2 and PW5 went to Kotha No.59, G.B. Road and arrested accused Farida Thapa @ Kali vide arrest memo Ex.PW1/A at their instance and her personal search was conducted vide personal search memo vide Ex.PW1/B and her disclosure statement was recorded vide Ex.PW11/A.
88. It is further revealed that during the course of investigation, PW11 Insp. Vinod Kumar Singh prepared site plan Ex.PW11/B qua the place of occurrence.
89. It is further revealed that PW9 Rajiv Kumar Verma has prepared site inspection report vide Ex.PW9/A and handed over computer generated electricity bill vide Ex.PW9/B qua said electricity connection and photographs Mark PW9/A and Mark PW9/B to the police and as per record the electricity connection vide electricity meter bearing no.11641212 installed at Kotha No.59, Second Floor, Right side of the premises bearing no.5382/89, G.B. Road, Delhi was in the name of accused Kanchi Tamang from 30.09.2011 till date. PW9 Rajiv Kumar Verma has proved electricity bill Ex.PW9/C generated from computer and also proved certificate u/s 65 B of Evidence Act vide Ex.PW9/D.
90. On perusal of record, it is further revealed that on 01.03.2015 pursuant to secret information, PW10 SI Padam Singh along with W/SI Puspa Lata and PW11 Insp. Vinod Kumar Singh went to House No.68/346, Majnu Ka Tila, Delhi and arrested accused Kanchi Tamang, owner of Kotha No.59, Second Floor, G.B. Road, Delhi vide arrest memo Ex.PW10/A; personal search of accused Kanchi Tamang was conducted vide memo Ex.PW10/B. PW11 Inspector Vinod Kumar Singh also recorded the disclosure statement Ex.PW10/C of accused Kanchi Tamang.
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91. Before reaching at any conclusion let the relevant sections i.e. 366/370/370A(2)/343/109 r/w 376/34 IPC and section 3/4/5 ITP Act/34 IPC be re produced, which are as under :
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
370. Trafficking of person. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by First Using threats, or Secondly using force, or any other form of coercion, or Thirdly by abduction, or Fourthly by practising fraud, or deception, or Fifthly By abuse of power, or Sixthly By inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, Commits the offence of trafficking.
Explanation 1. The expression "exploitation" shall include any act of physcial exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2. The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of tafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment forlife, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than on occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 30/41 be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
370A. Exploitation of a trafficked person. (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Sec.34 IPC:
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
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 a term which may extend to five years and also with fine.
(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 being used as a brothel, if,
(a) a report is published in a newspaper having ciculation 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)h SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 31/41 or clause (b) of subsection (2) of any offence under that subsection 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 (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 (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 prostitution; 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.
(5) Procuring, inducing or taking (person) for the sake of
prostitution
(1) Any person who
(a) procures or attempts to procure a (person), whether with or
without (his) consent, for the purpose of prostitution; or
(b) induces a (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 (person), or causes a (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 (person) to carry on prostitution, (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 punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
(i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life;
(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 (person) is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such (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.
92. On perusal of record, it is reveals that present case was registered on the complaint of PW5 Prosecutrix 'B'. In her testimony before this court prosecutrix 'P' SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 32/41 examined as PW1. PW1 Prosecutrix 'P' deposed in her deposition that In the month of June, July'2013 one Raju living in her village brought her to Delhi with assurance that he would find a good job for cleaning, sweeping etc. for her. She was also having mobile phone but that was taken by Raju (since not arrested) and some her jewellery and stated that she was not having cordial relation with her husband Tarun Sarkar. and she accompany Raju to Delhi with one daughter but in her statement this witness has not disclosed any fact about her daughter and also not stated that her child was snatched by accused Kali. Further, this witness has not disclosed that she had gone to Kotha No.59 prior to going to room of Sarika (since not arrested) as per statement u/s 164 Cr.P.C. this witness has simply stated that she had come along with one Raju to Delhi and he had taken her Delhi on pretext of marriage but in Delhi he sold her to one Sarika (since not arrested) and Sarika took her to G.B. Road but in her statement u/s 164 Cr.P.C. is different from deposition in court. From the close scrutiny of her testimony before the court, it appears that it is clear that she had made major improvement in her statement before the court then she had made statement to the police and magistrate u/s 164 Cr.P.C.
93. Further when she stated that she had come along with Raju who is residence of her village. Police had not investigated this fact neither police made enquiry from the husband and mother of prosecutrix in West Bengal.
94. Further, this witness along with prosecutrix 'B' was taken to house of Sarika by accused Kali where one another Prosecutrix 'M' met her and after living two days at house of Sarika she talked to Prosecutrix 'B' and Prosecutrix 'M' and all decided to leave the house of Sarika (since not arrested). Now question again arise in statement u/s 164 Cr.P.C. she stated that she was taken by Raju to the house of Sarika. In deposition she states that she was taken by accused Kali to the house of Sarika . This is also a contradictory statement.
95. Further, this witness stated tht she reached along with prosecutrix 'B' and 'M' at NDRS in TSR. She further stated that one taxi driver met them at NDRS and they SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 33/41 narrated entire incident to him and taxi driver called the police at NDRS and police reached there whereas in statement u/s 164 Cr.P.C. it is stated that all of them reached at NDRS where Taxi driver met them and took them to the police station. This is also contradictory statement.
96. This witness was confronted on the fact that she had stated to the police that one day when she was roaming on the road when Kali took her along with her. This witness was confronted on the fact that she had stated to the police that Sarika and Kali gave her beatings.
97. This fact was confronted with statement Ex.PW1/DA where it is not so recorded. This witness admits that she had not made any complaint to any customer against Kali and that accused Kali never gave her beatings for taking the money from her.
98. This witness in her cross examination by Ld. counsel for accused persons states that Raju was Bengali and his house was far away from the village and he had met her in mela.
99. This witness stated in her cross examination that accused snatched away her mobile when her mother called on her number during the train journey whereas she has stated in her examination in chief that on reaching Delhi accused Raju taken away her mobile and some jewellery. There is some improvement in the testimony of this witness. This witness further stated that thereafter, he returned her mobile and finally taken away her mobile after reaching Delhi.
100. This witness was confronted in some other facts in her cross examination by Ld. Counsel for accused. Moreover, this witness had not stated about her journey ticket either it was lost or taken by accused Raju (since not arrested) or any other reason she had not explained.
SC No.23/2015State Vs. Farida Thapa @ Kali etc. 34/41
101. On question put by Ld. counsel for accused that how do you know that your child was left on road by Kali? In reply to the question this witness stated that one lady who brought her child to the police told the police that Kali had left her child on road whereas in her examination in chief this witness stated that police took her and Prosecutrix 'B' to Kotha No.59, Delhi for rescuing her child aged about two years. Her child was found outside the Kotha on road and accused Kali tried to escape in a TSR but was apprehended by the police but that lady has not been examined neither any fact has been placed on record in this regard. There is also a major contradictions in the testimony of this witness. Hence, testimony of this witness cannot be appreciated.
102. PW5 Prosecutrix 'B' is the complainant, on whose complaint present case was registered. This witness has deposed in her testimony that Sagar (since not arrested) has married her and she had not informed her parents about her marriage with Sagar and Sagar had brought her to Delhi by train and after reaching Delhi, Sagar (since not arrested) had taken her to the house of one Sarika Didi in the TSR and he kept her there in that house for about 10 days. Sagar established physical relations with her during this period. After 10 days, Sagar told her that he cannot take her to his house as he does not have money and told her that she will have to work with Sarika Didi for about five days and thereafter, he will take her to his house with him and Sagar left from there and Sarika had taken her to Kotha No.59, left side, second floor at G.B. Road. This witness further states that Sarika handed her over to one lady namely Kali and thereafter Sarika left from there whereas in her statement u/s 164 Cr.P.C. states that Sagar has sold her to Sarika and no where name of accused Kali has been mentioned.
103. Complaint of prosecutrix 'B' further reflects that Kali had taken her and prosecutrix 'P @ R' to the house of Sarika where other prosecutrix 'M' also met her and one day after finding suitable time all of them ran away from the house of Sarika and they reached at New Delhi Railway Station by TSR where they met with a taxi driver and narrated all the incident to him and asked him for help. He made a call at 100 number from his mobile number and called the police whereas in her statement u/s 164 SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 35/41 Cr.P.C. prosecutrix stated that taxiwala had taken her to police station. There is major contradiction by which statement of prosecutrix 'B' which cannot be appreciated. There is also a major contradictions in the testimony of this witness. Hence, testimony of this witness also cannot be appreciated.
104. Further, statement of prosecutrix 'M' also have major contradictions which cannot be appreciated. In her statement u/s 164 Cr.P.C., she stated that Sagar, his didi Sapna and Sarika be punished.
105. On close scrutiny of testimony of all the three prosecturix made before this court and their statement before police and before magistrate u/s 164 Cr.P.C. are entire different. All the statements are on same track at every stage prosecutrix have made improvement in their statement u/s 164 Cr.P.C. and statement before the court. Hence, testimonies of prosecutrix cannot be relied upon and cannot be appreciated for which benefit goes to the accused. Accused Raju, Sagar, Sapna and Sarika who are main offender of human trafficking as per the testimony of prosecutrix, they have not been arrested. They may tried as and when they produced before the Court.
106. Since no journey ticket has been placed by the victims. Neither police had placed any statement of parents of victims that victims had missed or left the West Bengal or there is no record that victims had reached Delhi or that she was confined by the accused in her house. It has also not come on record that anyone abated her for indulging in rape. Accordingly, accused Farida Thapa @ Kali is acquitted from charges u/s 366/370/370A(2)/343/109 r/w 376/34 IPC.
107. As far as Section 3, 4 and 5 of I.T.P. Act against the accused Farida Thapa @ Kali is concerned, from the entire evidence available on record it has not been proved that house of accused Kanchi Tamang was being used as a brothel. No evidence of neighbouring persons have been taken by the police during the course of investigation and mere submission that house was being used as a brothel is not sufficient to hold any person guilty in that offence. Since it has come on record that prosecution has SC No.23/2015 State Vs. Farida Thapa @ Kali etc. 36/41 failed to prove that victim was procured for prostitution. Again police had not examined any neighbouring persons or independent witness where the premises were being used for prostitution. Police has not produced any documents by which it may be proved that accused Farida Thapa @ Kali was running or keeping or running prostitution or procuring, inducing or taking any person for the sake of prostitution. Hence, accused Farida Thapa @ Kali is acquitted from the charges u/s 3, 4 and 5 of ITP Act/34 IPC.
108. As far as section 3 of ITP Act is concerned with accused Kanchi Tamang. Since it is on record that accused Kanchi Tamang claimed to be owner of Kotha No.59, 2nd floor, left side, G.B. Road, Delhi. Hence, it is proved that she had been the owner, keeping the Kotha to be used as brothel. Hence, prosecution has successfully proved the charge under section 3 of ITP Act against the accused Kanchi Tamang. Accordingly, accused Kanchi Tamang is convicted for offence punishable under section 3 of ITP Act.
PRONOUNCED IN THE OPEN COURT ON 29.08.2016 (RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.23/2015State Vs. Farida Thapa @ Kali etc. 37/41 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL) TIS HAZARI COURTS: DELHI. SC No. 35/2014 FIR No. 17/14 State Vs 1.Farida Thapa @ Kali w/o. Sh.Kancha, R/o. Kotha No.59, II nd Floor, Right Side G.B. Road, Delhi. Permanent Address: Kalapani, Kathmandu, Nepal. ( Since acquitted) 2. Kanchi Tamang w/o. Sh. Marpev Tamang, R/o. Kotha No.59 II nd Floor Right Side, G.B. Road, Delhi and H. No.68/346, Majnu Ka Tila, Delhi. Police Station Kamla Market Convicted under section Under section 3 of ITP Act. ORDER ON SENTENCE: 02.09.2016 Present : None for the State. Convict Kanchi Tamang in person. Sh. Harshit Jain, Ld. counsel for convict. Ms. Neha Jain, Ld. counsel for DCW. Arguments heard on point of sentence.
Ld. Addl. PP for the State seeks maximum sentence of three years on the ground that though charge has been proved against the convict is of the offence under section 3 of ITP Act but fall out of such offences leads to commission of more serious offence i.e. human trafficking. Hence, he has prayed for maximum sentence to the convict.
On the other hand ld. counsel for convict prayed that convict is 36 years old and is facing trial regularly and it is her first offence. Ld. counsel for convict further submits that there is no evidence on record that premises of convict was using for brothel. Ld. counsel for convict submits that convict has two children and she is having responsibility of her family. Ld. counsel for convict has requested for lenient view.
Arguments heard. Record perused. From perusal of record, it is revealed that convict Kanchi Tamang has been convicted under section 3 of ITP Act and she has been remained in JC for seven days.
After considering the fact and circumstances of the present case, perusal of case and considering the age of convict and responsibility of his family, this court comes to the conclusion that ends of justice will be met if the convict Kanchi Tamang is sentenced to undergo Rigorous Imprisonment for 03 years coupled with payment of fine of Rs. 2,000/ and in the event of non payment of fine, she is directed to undergo Simple Imprisonment for 06 months. Since accused has been convicted for offence under section 3 of ITP Act and it is also established that she was having possession of Kotha No.59, 2 nd Floor, G.B. Road, Delhi. Accordingly, in view of section 18 (2) of ITP Act, it is hereby directed that Kotha No.59, 2nd Floor, Right Side, G.B. Road, Delhi be sealed with immediate effect.
Copy of this order be sent to concerned SHO for necessary action and compliance.
Benefit of section 428 Cr. P.C. be also given to the convict. Accordingly, sentence is awarded. Fine paid.
Copy of the judgment along with order on sentence be given to the convict forthwith free of cost.
PRONOUNCED IN THE OPEN COURT ON 02.09.2016 (RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.