Delhi District Court
State vs . Palvanova Dilfuza Page No. 1/22 on 31 October, 2017
IN THE COURT OF SHRI SANJIV JAIN
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK COURT
SOUTHEAST : SOUTH EAST SAKET COURTS: NEW DELHI.
SC No. : 1355/16
FIR No. : 172/2013
U/s. : 120B/366/328/344/323/370/506376D/376 IPC
& u/s 3/45 of ITP Act & U/s 7/14 of the Foreigner Act.
PS : Lajpat Nagar, New Delhi.
State (Govt. of NCT of Delhi) ............ Complainant
Versus
Palvanova Dilfuza
D/o Mr. Allvar
R/o House No. A4, Dhobi Basti,
Siddharth Nagar, Hari Nagar
Ashram, New Delhi.
Also at: C67, 2nd floor
East of Kailash,
New Delhi .................. Accused persons
Date of Institution : 21.08.2013
Judgment reserved for orders on : 31.10.2017
Date of pronouncement : 31.10.2017
J U D G M E N T
FACTS :
1. On 17.06.2013, at 12.05 p.m, an information vide DD no. 19A was received at the police station Lajpat Nagar, New Delhi from Safdurjung Hospital that two prosecutrix(es) ( name withheld to protect their identity) aged 24 and 26 years have been brought in the hospital. SI Ranjan alongwith Ct. Randhir and Ct. Mamta went to the hospital where he met SI Sushil Kumar and the prosecutrix(es). They were inhabitants of Uzbekistan. They FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 1/22 could not understand Hindi or English. Two persons had brought the prosecutrix(es) in the hospital. They knew the language of the prosecutrix (es). According to them, both the prosecutrix(es) came to Delhi as tourists. They met the accused Palvanova Dilfuza who also belonged to Uzbekistan. Both of them went with her to live. For 4/5 months, Palvanova Dilfuza forcibly kept them in her house against their will. She snatched their passports. They were raped by different persons almost everyday. They were given beatings by 4/5 persons. They managed to escape somehow and met those two persons at INA market, New Delhi. One of the prosecutrix(es) complained severe pain in her lower abdomen and two months amenorrhea. INVESTIGATION:
2. SI Ranjan Kumar made endorsement on the DD and got the case registered u/s 323/341/342/376D/506 IPC and Section 5 ITP Act. WSI Manisha took over the investigation. She collected the exhibits of the prosecutrix 'X'. She took both the prosecutrix(es) to Uzbekistan Embassy for getting their statements recorded through Interpreter. Mr Sarvar Kamilov, Second Secretary interpreted and translated their statements which inter alia revealed that both of them had come to India on 17.01.2013 on Tourist Visas. During their stay at Paharganj, they met the accused Dilfuza an Uzbek lady, who called them on dinner at D6 Vasant Kunj, New Delhi. She served them juice laced with alcohol. Both of them became unconscious. In the night, accused Dilfuza sent some persons in their rooms to have sex. When they objected, she snatched their passports and air tickets. She threatened them with dire consequences. After 4/5 days, they were forcibly sent in a hotel at Mahipal Pur where they were confined and forced to have sex with different persons. They were also kept and confined in other places and hotels.
FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 2/22 They identified the flat No. 6058/1, Ground Floor at D6 Vasant Kunj where both of them were confined by the accused Dilfuza. Their clothes were seized. On 18.06.2013, accused Dilfuza was apprehended at their instance from near I25 Lajpat NagarIII New Delhi. She disclosed that she had come to India on a Tourist Visa in May, 2010 and married to Ajay Kumar. After few months, their relations broke up and she started living alone. To meet her daily expenses, she got involved in flesh trade. She disclosed that she had shifted the prosecutrix(es) in Rainbow Hotel at Mahipal Pur for prostitution after conniving with the hotel owner. She used to pay Rs.1500/ extra per day to the hotel owner Ravinder Yadav for accommodation. After one and a half months, she handed over the prosecutrix(es) to the broker Kamal Mahajan @ Rohan on payment and thereafter to another broker Shambhu on payment. Since the accused Dilfuza was not having visa regarding her stay in India, Section 14 of Foreigners Act was added. Both the prosecutrix identified Room No 202 of Rainbow Hotel at Mahipal Pur where they were confined and assaulted. Their statements through the Interpreter Subhash Thakur u/s 164 CrPC were got recorded. On 19.06.2013, Kamal Mahajan @ Rohan was apprehended from near Max Hospital Patparganj at the instance of accused Dilfuza and on the identification of the prosecutrix(es).
During investigation, Mr Sarvar Kamilov came in the police station and stated that the passports of the prosecutrix(es) were given by the accused Dilfuza to the guard on duty at the Uzbekistan Embassy on the night of 17.06.2013. He handed over passports to the IO. Insp. Ramesh Kumar took over the investigation. He apprehended Ravinder Yadav on 22.06.2013. Ravinder Yadav also disclosed his involvement in this case. He stated that he did not intimate the FRRO regarding the stay of the prosecutrix in his hotel.
FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 3/22 He handed over documents of the hotel. Section 7 of the Foreigners Act was invoked against him. The exhibits were sent to the FSL. Section 328 IPC was added. Coaccused Shambhu could not be arrested for want of address. Sections 370/120B IPC were added as it was found that the accused persons had conspired to sexually exploit the prosecutrix(es) and they trafficked the prosecutrix(es) from one place to other place to have sex with different persons. Sections 109/107 IPC were also added alongwith Section 366 IPC. Since the accused persons were found living on the earnings of the prostitution, Sections 3/4/5 ITP Act were added. After the investigation, accused Palvanova Dilfuza was sent for trial for the offences punishable u/s 323/328/341/342/370/120B/506/366/109/ 376D IPC, u/s 3/4/5/6 of ITP Act and u/s 14 Foreigners Act. Other accused persons were sent for trial for the offences punishable u/s 341/342/366/370/120B/109 IPC r.w 376D IPC and u/s 3/4/5/6 ITP Act and under Section 7 of Foreigners Act.
3. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court.
CHARGE :
4. Prima facie case was made out vide order dated 07.11.2013 and the charge was framed against the accused persons for the offences punishable under section u/s 120B IPC, 366 r.w Section 120B IPC, 328 r.w Section 120B IPC, 370/506 r.w Section 120B IPC, 376D/376 r.w 109/120B IPC and u/s 3/4/5 of ITP Act. Accused Palvanova Dilfuza was additionally charged u/s 344 r.w. Section 120B IPC, 323 r.w Section 109 IPC and Section 14 of the Foreigners Act, 1956 r.w Section 120B IPC. Accused Ravinder Yadav was additionally charged u/s 7 of the Foreigners Act, 1956 r. w. section 120B IPC. All the accused persons pleaded not guilty and claimed trial.
FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 4/22
5. During trial, accused Kamal Mahajan and Palvanova Dilfuza absconded and they were declared Proclaimed Offenders vide orders dated 20.09.2016 and 24.03.2017. Vide separate order/judgment dated 24.03.2017, accused Ravinder Yadav was acquitted of the offences punishable u/s 120B IPC, 366 r.w Section 120B IPC, 328 r.w Section 120B IPC, 370/506 r.w Section 120B IPC, 376D/376 r.w 109/120B IPC, u/s 3/4/5 of ITP Act and u/s 7 of the Foreigners Act, 1956 r.w. section 120B IPC.
6. Accused Palvanova Dilfuza was arrested on 23.10.2017. Additional charge u/s 174A IPC was framed against the accused vide order dated 27.10.2017. She pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
7. To substantiate its allegations against the accused persons, the prosecution examined as many as twenty six witnesses.
PW1 Arun Sakia was the Manager of the Rainbow Hotel, Mahipal Pur, New Delhi. He used to make entries in the guest register. He stated that the accused Ravinder Yadav was the owner of the hotel. He denied that in January 2013, two foreigner ladies / prosecutrix(es) had stayed in the hotel for about 3035 days. He denied that he did not make entry in the guest register regarding their stay nor he took their ID proofs at the instance of the accused Ravinder. He denied that during their stay, many persons used to visit the room or later, he came to know that both the ladies / prosecutrix(es) were forcibly dragged into prostitution. He denied that on FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 5/22 18.06.2013, the prosecutrix(es) came there with the police and he identified both of them.
On being crossexamined, he stated that CCTV cameras were installed in the hotel. Accused Ravinder Yadav used to visit the hotel after a gap of 25 to 30 days for half an hour. He stated that he (PW1) used to look after the entire work of the hotel. PW2 Shailender Kumar Yadav had been working as sweeper / waiter in Hotel Rainbow. He stated that no foreign ladies stayed in the hotel during his tenure nor any lady was brought by the police in the hotel in his presence. He was declared hostile by the prosecution but nothing favouring the prosecution came from his mouth.
PW3 Dr Dominic Mardi was the landlord of flat No. 6058/1, GF, SectorD, Pocket 6, Vasant Kunj which he had rented out to the accused Palvanova Dilfuza for the period from 07.04.2011 to 06.06.2013. He proved the copy of Lease Agreements Ex.PW3/A to Ex.PW3/C. He also proved the notice Ex. PW 3/D given to the accused to vacate the premises before the expiry of the Lease Agreement.
PW4 Virender Sehrawat was the landlord of house No. E552, near Metro Hotel, Mahipal Pur, New Delhi. He stated that he had rented out the premises FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 6/22 to the accused Ravinder Yadav for the period from 26.11.2010 to 14.11.2013 on a monthly rent of Rs. 85,000/.He proved the Rent Agreement Ex. PW4/A. He stated that the accused Ravinder Yadav had been running a hotel in the name of Rainbow Hotel.
PW5 Ramesh was the Security Guard in Uzbekistan Embassy. He stated that on 17.06.2013 some Uzbebic Nationals handed over him their passports which he handed over to the Counselor. He does not remember their names. He denied that on 17.06.2013 at about 8.00 p.m, accused Palvanova Dilfuza handed over him two passports of the prosecutrix(es) which he handed over to the Second Secretary of Uzbekistan Embassy.
PW6 Ms Saumya Chauhan, Ld. MM recorded the statements of both the prosecutrix(es) u/s 164 CrPC Ex. PW6/B and Ex.PW6/C. PW7 Dr Kavita Aggarwal did the medical examination of the prosecutrix vide MLC Ex. PW 7/A and found her pregnant. She stated that both the prosecutrix(es) had come in the hospital with two persons. They were communicating through them as they could not understand Hindi or English. She stated that as per the history narrated by those persons, it was a case of rape. She also examined the other prosecutrix vide MLC Ex. PW 7/B and stated FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 7/22 that she refused for her gynecological examination. PW8 Subhash Kumar Thakur was graduate in Russian language and pursuing his MA Final year. He was called in the police station Lajpat Nagar, New Delhi to translate the statements of both the prosecutrix of Uzbekistan. He also translated their statements recorded u/s 164 Cr.P.C.
PW9 SI Rajveer Singh recorded DD 19A Ex. PW 9/A regarding the admission of both the prosecutrix(es) in Safdarjung Hospital on 16.06.2013. He also recorded the FIR Ex. PW 9/B. PW10 SI Bharat Singh was with the IO. He witnessed the arrest of the accused Ravinder Yadav and seizure of documents Ex. PW 10/D1 to D6 from him vide memo Ex. PW 10/D. PW11 SI Rohit Kumar was with the IO, both the prosecutrix and the accused Palvanova Dilfuza on 19.06.2013. He witnessed the arrest of accused Kamal Mahajan @ Rohan. He stated that on 22.06.2013, he was with the IO when the accused Ravinder Yadav was arrested. He stated that one register containing entries of the period from 01.04.2012 to 02.04.2013 was seized vide memo Ex. PW 11/C. PW12 HC Satish recorded DD 46A on 16.06.2013 Ex. PW 12/A regarding admission of the FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 8/22 prosecutrix(es) in Safdarjung Hospital.
PW13 HC Mahender Singh brought Form C Ex.PW13/B qua the stay of the foreign nationals in Hotel Rainbow, Mahipal Pur, New Delhi. He stated that there was no intimation regarding the stay of the prosecutrix(es) in Hotel Rainbow to the office of FRRO through Form C. He stated that the owner of hotel is required to submit Form C online with regard to stay of any foreigner in the hotel within 24 hours.
PW14 HC Surender Singh proved the letter Ex.
PW 14/A issued by Licensing Unit, Delhi Police as per which on 03.03.2011, accused Ravinder Yadav had applied for license of the hotel comprising of 12 rooms proposed to be run under the name and style of Rainbow Guest House. He stated that the accused was not granted license. His application was under
progress which fact was informed to the accused and the authorities. He stated that till date, the accused has not been granted license.
PW15 Mohan Chand proved the copy of registration certificate of Hotel Rainbow Ex. PW 15/A issued by the Office of Excise, Entertainment qua the luxury tax paid by the proprietor of hotel. He stated that the hotel was registered with the department for luxury tax vide Registration No. FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 9/22 V/LT/11/SW/1264 dated 05.12.2011. PW16 SI Sushil Kumar on receipt of DD 46A Ex. PW 12/A reached the Safdarjung Hopsital where he met both the prosecutrix. He collected their MLCs and exhibits of one of the prosecutrix. He stated that the prosecutrix(es) was not able to understand and speak Hindi or English. He informed at the police station Lajpat Nagar from where SI Ranjan Kumar came with Ct. Randhir and Ct. Mamta. He handed over their MLCs to SI Ranjan Kumar. He stated that he handed over the exhibits vide memo Ex. PW 16/A to SI Manisha.
PW17 Ct Anand Kumar deposited the exhibits in FSL, Rohini vide Road Certificate No. 65/21/12. He stated that so long the exhibits remained in his possession, no one tampered it.
PW18 SI Ranjan Kumar on receipt of DD 19A Ex. PW 9/A reached the Safdarjung Hospital where he met both the prosecutrix(es). He collected their MLCs. He stated that both the prosecutrix(es) were from Uzbekistan and were not able to speak Hindi or English. He prepared the rukka, got the case registered and handed over further investigation to SI Manisha. He alongwith the IO and both the prosecutrix(es) also went to Uzbekistan Embassy where with the help of the Translator Mr. Sarvar, he FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 10/22 recorded the statements of both the prosecutrix in English. He stated that the prosecutrix pointed out House No. 6058/1, D6 block, Vasant Kunj where they were kept by accused Palvanova Dilfuza. PW19 HC Om Prakash was the MHC(M). He proved the relevant entries in Register No. 19 and 21 Ex. PW 19/A to Ex. PW 19/C. PW20 Ct Randhir deposed on the lines of PW18 SI Ranjan Kumar. He also witnessed the arrest of accused Palvanova Dilfuza and Kamal Mahajan @ Rohan, pointing out memos prepared in respect of D6/6058/1, Vasant Kunj, I25 Lajpat NagarIII and Room No. 202, Rainbow Hotel.
PW21 Ct Mamta deposed on the lines of PW18 and PW20.
PW22 Insp. Ramesh Kumar deposed on the lines of the investigation. He arrested the accused Ravinder Yadav, recorded his disclosure statement and seized the documents Ex. PW10/D1 to Ex.PW10/D6 vide memo Ex.PW10/B. He also collected the copy of the rent agreements Ex. PW3/B and Ex.PW3/C vide memo Ex. PW22/A in respect of premises taken on rent by the accused Palvanova Dilfuza and accused Ravinder Kumar Yadav vide memo Ex. PW 22/B. He also sent letters to DCP (FRRO) and DCP (Licensing) to take action FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 11/22 against the accused. He stated that as per the report of FRRO Ex. PW13/A, no Form C was received in the office. He sent the exhibits to FSL. PW23 Jagdish Chand was the Ahlmad in the office of Labour Commissioner. He proved the copy of Form C, Registration Certificate of Establishment issued by the department Ex PW10/D1. PW24 SI Manisha deposed on the lines of PW18 SI Ranjan Kumar, PW20 Ct. Randhir and PW21 Ct. Mamta. She arrested the accused Kamal Mahajan and collected the passports of both the prosecutrix from Uzbekistan Embassy.
As per the FSL report, blood was detected on exhibit A8a(blood sample of victim), A8b(blood sample of victim and A9a(urine and oxalate blood vial. Semen was not detected on exhibit A1( in between fingers swab), A2(nail scrappings), A3(breast swab), A4(combing of pubic hair), A5(pubic hair clipping), A6a(vaginal secretion swab), A6b(microslides of vaginal secretion), A6c(microslides of vaginal secretion), A7(washing from vagina), A10(underwear), B1(one jeans pant), B2(One top), C1(top) and C2(one pyjami).
PW25 HC Sanjay executed the process u/s 83 CrPC against the accused Palvanova Dilfuza and gave report Ex. CW 1/A. As per the report, accused FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 12/22 Palvanova Dilfuza was not traceable and no immovable or movable property was found in her name. His testimony remained unassailed.
PW26 WSI Suruchi Sah proved the report of Ct.
Naseem on the process u/s 82 CrPC Ex. CW 2/A. As per the report, on 03.01.2017, he had gone to the house of the accused at 6058, Vasant Kunj Extension, New Delhi. There he came to know that the accused had left the tenanted premises in 2013. He pasted the copy of the process at the aforesaid address and on the Notice Board. PW26 stated that the accused was declared as Proclaimed Offender on 24.03.2017. She further stated that on 23.10.2017, at about 3.45 p.m on a secret information that the accused was present at Hari Nagar, Ashram, she constituted a raiding party, reached House No. A4, Dhobi Basti, Siddharth Nagar, Hari Nagar Ashram, apprehended the accused at the instance of informer and arrested her vide arrest memo Ex. PW 26/A. She stated that she prepared a Kalandra Ex. PW 26/C and recorded DD No. 32 Ex. PW 26/D. Her testimony remained unrebutted.
8. In the instant case, the star / material witnesses were both the prosecutrix(es) and Mr. Sarvar Komilov, Second Secretary of Uzbekistan Embassy. At their instance, the whole prosecution machinery came in motion. Proceedings reveal that both the prosecutrix(es) were Uzbekistan FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 13/22 nationals. They had come in India on tourist visas. They left India without intimation to this Court. They were directed to be served through the Ministry of Home Affairs. They could not be served. Vide proceedings dated 14.08.2014, Ministry of Home Affairs was directed to issue a letter of request to the Consulate General of India at Embassy of India in Uzbekistan to coordinate with Uzbekistan Government to make necessary arrangement at their end for recording of the evidence of the prosecutrix(es) through video conferencing. DCP was also directed to coordinate with the Embassy of Uzbekistan in India, Ministry of Home Home Affairs, Govt. of India and Consulate of India in Uzbekistan. Vide proceeding dated 12.01.2015, a reply was received from the Internal Security, Ministry of Home Affairs, Govt. of India whereby both the prosecutrix(es) had requested to consider their case without their participation. Ministry of Home affairs was again directed to issue a letter of request for making arrangement for recording the statement of prosecutrix(es) through video conferencing. The summons were forwarded to the prosecutrix(es) through the Ministry of External Affairs but no response was received. Vide proceeding dated 05.08.2015, DCP (Head Quarter) submitted a report inter alia as under: "As per the report, the Ministry of Home Affairs vide MHA's Letter No. 25012/02/2015Legal Cell (115116) dated 28.07.2015 (copy annexed as AnnexureVIII) has conveyed "this Ministry is unable to forward the service of summons upon the prosecutrix(es) and obtaining the willingness to make statement through Video conferencing unless a fresh request of summons with fresh address and Date of Birth, Passport number of prosecutrix(es) at Uzbekistan is received". The Ministry of Foreign Affairs of the Republic of Uzbekistan vide Note No. 0422/7494 dated 14.05.2015 has informed "According to the report of the competent authorities of the Republic of Uzbekistan handling the summons to prosecutrix(es) is impossible, as the information about the place of their stay is FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 14/22 unknown". Further, the GNCTD vide its Letter No. F.11/3/02/2014/HPII/7155 dated 05.09.2014 had enclosed the reply of MHA vide MHA's Letter No. 25012/02/2014Legal Cell (6162) dated 26.08.2014 intimating that Embassy of India that Uzbekistan has enclosed reply from prosecutrix(es) together with its unofficial translation through Ministry of Foreign Affairs of Uzbekistan. In the consent of prosecutrix(es), they have requested to consider the case without their participation.
9. Vide said proceeding, this Court observed as under: "After going through the report, I find that the competent authorities of the Republic of Uzbekistan handling the summons could not serve the summons on the prosecutrix(es) since their place of stay is not known. Further, both the prosecutrix(es) have requested to consider the case without their participation."
10. Summons of Mr. Sarvar Komilov were also sent to the Ministry of External Affairs but as per the proceedings dated 09.02.2016, no report was received. Vide proceeding dated 18.02.2016, it was ordered as under: "Since the prosecutrix(es) whereabouts could not be known despite sincere efforts made by the Embassy and the fact that the Second Secretary made the complaint on the information supplied by the prosecutrix(es) and that the prosecutrix(es) in one of the proceedings had requested to proceed the case without their participation, looking into the fact that the offences with which the accused persons have been charged and the fact that the prosecutrix are foreign nationals, before taking any further action, let DCP SouthEast in person be called for further action."
11. On 20.09.2016, it was observed that Mr. Sarvar Komilov has been transferred to Uzbekistan. Since, all the witnesses except the above witness had been examined, vide order dated 20.09.2016, the prosecution evidence was closed. On 22.03.2017, the investigating officer, Sh. Ramesh Kakkar was FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 15/22 called and his statement to the effect was also recorded: "Both the prosecutrix(es) in the instant case are the foreign nationals i.e nationals of Uzbekistan. Their summons were directed to be served through Ministry of External Affairs. A letter was received from the Under Secretary to the Government of India dated 27.08.2014 addressed to Deputy Secretary, Home with the reply of the Embassy vide which both the prosecutrix(es) had requested to consider the case without their participation. The letter and the emails in this respect are Ex. CW1/A collectively. Their translated statements to that effect are Ex. CW 1/B and C. As per the directions of the Court, the Embassy was requested to arrange the recording of evidence of the prosecutrix(es) through video conferencing and a report was received from the Ministry of Home Affairs vide letter No. 25012/02/2015Legal Cell (115116) dated 28.07.2015 whereby it was conveyed that the Ministry is unable to forward the service of summons upon the prosecutrix(es) and obtaining the willingness to make statement through video conferencing unless a fresh request of summons with fresh address and date of birth, Passport Number of both the prosecutrix(es) is received. The Ministry of Foreign Affairs of the Republic of Uzbekistan vide letter dated 14.05.2015 has informed that handing the summons to both the prosecutrix(es) is impossible as the information about their place of stay is not known. Both the letters are Ex. CW 1/D and E."
12. Vide order dated 31.10.2017, the Prosecution Evidence was closed. The Statement of the Accused Palvanova Dilfuza u/s 313 CrPC was recorded wherein she denied all the incriminating evidence against her except the fact that she was medically examined, she had taken the premises on rent, executed the rent agreements Ex. PW 3/B and Ex. PW 3/C, she absented from the proceedings and was declared Proclaimed Offender on 24.03.2017 after the execution of the processes u/s 82 and 83 CrPC vide report Ex. CW 2/A and Ex. CW 1/A. She also admitted that on 23.10.2017, she was apprehended from A4, Dhobi Basti, Siddharth Nagar, Hari Nagar Ashram FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 16/22 vide arrest memo Ex. PW 26/A and a Kalandra Ex. PW 26/C was prepared in this respect after recording the DD Ex. PW 26/D. She stated that she was arrested in the case FIR No. 24/11 PS Crime Branch under ITP Act on 03.02.2011 which case is pending trial in the court of Ld MM and is fixed for evidence on 30.11.2017. She stated that when she was arrested, she was having a valid Passport and Visa. On the directions of the court, her Visa was renewed twice but thereafter the authorities informed her that they would take action after the disposal of the case FIR No. 24/11 PS Crime Branch. She stated that she has been holding a valid Passport.
13. She did not examine any witness in her defence.
14. I have heard the arguments advanced by Sh. Zubair Hashmi, Ld counsel for the accused and Sh. Mohd. Iqrar, Ld . Addl. PP for the State and perused the material placed on record.
15. In the instant case, both the prosecutrix(es) and Mr. Sarvar Komilov have not been examined. Thus, the allegations made by the prosecutrix(es) in their statements could not be proved. From the testimonies of the prosecutrix(es) only, it could be known that they had come to India on 17.01.2013 on tourist visas; during their stay at Paharganj, they had met the accused Dilfuza who invited them for a dinner at her flat at D6, Vasant Kunj where she served them juice laced with alcohol as a result, they became unconscious and in the night, she called some persons in their rooms who had sex with her or that when they objected, she snatched their passports and air tickets and threatened them with dire consequences or that after 4 - 5 days, both the prosecutrix(es) were forcibly sent in Rainbow hotel, Mahipalpur belonging to the accused Ravinder Yadav where they were confined and forced to have sex with some persons or that they were also FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 17/22 confined at other places and hotels or for 1½ months, the accused Palvanova handed over the prosecutrix(es) to the accused Kamal Mahajan @ Rohan for prostitution after taking money as alleged in the complaints and their statements recorded during investigation through the interpretor Mr. Sarvar Komilov and PW8 Subhash Kumar Thakur. Although in the instant case, statements of both the prosecutrix(es) u/s 164 Cr.P.C. Ex.PW6/B and Ex.PW6/C were proved by PW6 but since the prosecutrix(es) have not been examined, the said statements can not be considered as the substantiative piece of evidence as to the facts. It is settled proposition of law that the statements recorded u/s 164 Cr.P.C. can only be used either for contradiction or for corroboration purposes.
16. PW1 has stated that accused Ravinder Yadav used to run Rainbow Hotel at Mahipalpur but he used to visit the hotel after gap of 25 to 30 days for half an hour. He (PW1) used to look after the entire work of the hotel. He denied that in January 2013, the prosecutrix(es) had stayed in the hotel for about 30 to 35 days and he did not make their entry in the register regarding their stay nor took their ID at the instance of the accused Ravinder Yadav. PW2 has stated that no foreign ladies stayed in the hotel during his tenure.
17. As per the case of the prosecution, accused Dilfuza had given the passports of both the prosecutrix(es) to the security guard posted in the Embassy of Uzbekistan. PW5, the security guard has stated that on 17.09.2013, some Uzbekistan nationals had handed over him their passports which he handed over to the Counselor. He has categorically denied that on 17.06.2013 at about 8 p.m., accused Dilfuza handed over him the passports of both the prosecutrix(es).
18. In the instant case, one register being maintained in the hotel was FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 18/22 seized by the police containing the entries of the period from 01.04.2012 to 02.04.2013. In the said register, there is no entry as to the stay of the prosecutrix(es) in the hotel. PW13 has produced the form C Ex.PW13/A which used to be maintained in the hotel for giving online information with regard to stay of any foreigner in the hotel within 24 hours. Perusal of it would show that there was no entry in C form Ex.PW13/B as to the stay of the prosecutrix(es) in the hotel. Although, PW14 has stated that the accused Ravinder Yadav was not granted licence to run the hotel but he has admitted that his application for licence was under process. It was not the case that his application for licence was rejected. Testimony of PW15 shows that the hotel was registered for luxury tax and the registration certificate to this effect was issued vide Ex.PW15/A.
19. The MLCs Ex.PW7/A and Ex.PW7/B of the prosecutrix(es) do not show any injury mark. Nothing favouring the prosecution came in the FSL report.
20. In the instant case, there is no evidence to show that the accused Palvanova Dilfuza was party to the criminal conspiracy with coaccused Ravinder Yadav and Kamal Mahajan @ Rohan to abduct the prosecutrix(es) to force / compel them to illicit intercourse by clients or to intentionally cause them to take stupefying substance to facilitate the commission of gang rape or traffick them for the purpose of sexual exploitation to wrongfully restrain and confine them for more than 10 days or allow the premises to be used as brothel house by keeping both the prosecutrix(es) of foreign origins and not informing their stay to the competent authority or to procure them for the purpose of prostitution or to cause them to be taken from one place to another place to earn livelihood or to be beaten by the clients or to harbour FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 19/22 the prosecutrix(es) by giving them shelter and food in his hotel for one and half months and traffick them from his hotel to other places and force them for illicit intercourse by clients or aid or facilitate the commission of rape upon the prosecutrix(es) by different persons during their wrongful confinement or to procure the prosecutrix(es) without their consent and force them for the purpose of prostitution allowing the premises to be used for the same and to earn the livelihood from prostitution of both the prosecutrix(es) and to live on their earnings or not to maintain the record of the stay of the prosecutrix(es) in the hotel and not to send the information to the competent authority. There is also no evidence on record that on 18.01.2013, the accused Palvanova Dilfuza abducted the prosecutrix(s) from outside the hotel at Pahar Ganj, induced them to come to her rented accommodation at Vasant Kunj or forced or compelled them to illicit intercourse or she served them some drink containing stupefying and intoxicating substance at her house with intent to facilitate the commission of gang rape upon them or she wrongfully confined them for more than 10 days at different places including at her house at Vasant Kunj, Rainbow Hotel or she caused them to be beaten by the clients or she abducted them for the purpose of sexual exploitation, transported them from her house at Vasant Kunj to Rainbow Hotel and from there to a room at Sarita Vihar by using threats and coercion or forced them to illicit intercourse by her clients or she facilitated and aided the commission of gang rape upon the prosecutrix (s) at her premises at Vasant Kunj or caused them to be raped by more than one person or procured them without their consent and forced them for the purpose of prostitution, allowed her premises to be used for the same, earned her livelihood from prostitution of both the prosecutrix and lived on their earnings or on 18.06.2013 or she was found staying in India FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 20/22 without any valid travelling documents issued by the competent authority which are sine qua non for the offences punishable punishable u/s 120B IPC, 366 r.w Section 120B IPC, 328 r.w Section 120B IPC, 344 r.w Section 120B IPC, 323 r.w Section 109 IPC, 370/506 r.w Section 120B IPC, 376D/376 r.w 109/120B IPC, u/s 3/4/5 of ITP Act and u/s 14 of the Foreigners Act, 1956 r.w. section 120B IPC with which the accused Palvanova Dilfuza has been charged.
21. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
22. From the unrebutted testimony of PW25 and PW26, it is however proved that the accused absented from the proceedings during the trial and also left the given address. She was declared Proclaimed Offender on 24.03.2017. It is also proved that on 23.10.2017, she was arrested from the house at A4, Dhobi Basti, Siddharth Nagar, Hari Nagar, Ashram, New Delhi vide arrest memo Ex. PW 26/A. The accused in her statement has also admitted this fact. Prosecution has thus proved that the accused Palvanova dilfuza failed to appear in this court despite the issuance of Non Bailable Warrants against her on 25.11.2016 and proclamation u/s 82 CrPC on 22.12.2016 whereby she was declared as Proclaimed Offender. I am of the FIR No. : 172/13 PS : Lajpat Nagar State Vs. Palvanova Dilfuza Page No. 21/22 view that necessary ingredients of the offence punishable under Section 174A IPC are proved against the accused Palvanova Dilfuza beyond reasonable doubt.
CONCLUSION:
23. In the light of what has been stated above, I acquit the accused Palvanova Dilfuza of the offences punishable u/s 120B IPC, 366 r.w Section 120B IPC, 328 r.w Section 120B IPC, 344 r.w Section 120B IPC, 323 r.w Section 109 IPC, 370/506 r.w Section 120B IPC, 376D/376 r.w 109/120B IPC, u/s 3/4/5 of ITP Act and u/s 14 of the Foreigners Act, 1956 r.w. section 120B IPC. She is however convicted of the offence punishable u/s 174A IPC.
24. Let the convict be heard on the point of sentence.
Announced in the open
court today i.e. 31.10.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts: ND
FIR No. : 172/13
PS : Lajpat Nagar
State Vs. Palvanova Dilfuza Page No. 22/22