Delhi District Court
State vs . 1.Alamgir Mistry @ Bura, on 26 October, 2009
IN THE COURT OF SMT. PRATIBHA RANI,
DJIIICUMASJ (WEST), DELHI
***
SC No. 77/08
State Vs. 1.Alamgir Mistry @ Bura,
S/o Sh. Abdul Khayar Mistry
R/o Bhawla Matpura,
PS Basir Hat Distt Uttar 24 Pargana,
(W.B.)
2. Sangita D/o Yadav Sutar,
R/o Vill Nanded Naka,
Distt. Latoor, Maharashtra
At Present: Kotha No. 71,
III Floor Left Side, G.B. Road,
Delhi
3. Sheetal D/o Neo Rati,
R/o Kotha No. 71, III Floor,
Left Side, G.B. Road, Delhi
FIR No. 781/2006
PS Kamla Market
U/s 366A/368/372/373/323/376/109/34
IPC & 3,4,5,6 ITP Act
Date of Institution: 29.03.2008
Date when reserved for orders: 12.10.2009
Date when order pronounced: 21.10.2009
J U D G M E N T
Accused Alamgir, Sangita and Sheetal have been 1 sent to face trial for commission of offence punishable U/s 366 A/368/372/373/323/376/109/34 IPC & 3,4,5,6 of Immoral Traffic Prevention Act (hereinafter referred to as the Act).
In brief, the case of the prosecution is that on 29.11.2006, Inspector Rakesh Giri alongwith other staff was on patrolling duty and present near Kotha No. 54 where at about 3.50 PM, a person namely Mohd Idris Ali Vishwas met him and informed that his sisterinlaw (Sali) Sharifa Khatoon was confined in Kotha No. 71 and requested that she may be rescued from there. The information was conveyed by Inspector Rakesh Giri to NGO Shaktivahini whose Director Nishi Kant assured to reach there within 510 minutes. At about 4.10 PM, Mr. Nishi Kant from NGO Shaktivahini met then near Kotha No. 54 and police party alongwith him and Mohd Idris Ali Vishwas conducted raid at Kotha No. 71, III Floor left side where out of the girls found present there, Mohd Idris identified his sister in law Sharifa Khatoon. Enquiries were made from Sharifa Khatoon alias Mamooni alias Jyoti and other girls. Statement Ex. PW2/A of Sharifa Khatoon was recorded on the basis of which rukka was sent for registration of the case through SI G.S. 2 Sharma. Site plan was prepared at the instance of complainant Sharifa Khatoon. One other girl Manoti was also recovered from that Kotha alongwith Sharifa Khatoon and they were sent for medical examination and ossification test to ascertain their age. Accused Sheetal was apprehended from the kotha, interrogated and arrested. Subsequently on 22.02.2007 accused Sangeeta was arrested in this case.
In respect of accused Alamgir Mistry who was named by Sharifa Khatoon to be the person who kidnapped her and sold her at Kotha of accused Sheetal, it was revealed that he was in custody in case FIR No. 342/06 under Section 20 (B) NDPS Act of PS Basir Hat (West Bengal). His presence was procured through production warrant and after interrogating him, he was formally arrested in this case also. Other person named in the FIR i.e Ganesh could not be traced out as his address was not available, proceedings U/s 82/83 Cr.PC could not be completed against him. After completion of investigation, charge sheet was filed against accused Alamgir Mistry, Sheetal and Sangeeta.
After compliance of the requirements of Section 207 3 CrPC, the case was committed to the Court of Sessions.
After hearing on the point of charge, accused Alamgir @ Bhura was charged on 12.12.2008 for commission of the offence punishable under Section 363/366/372/34 IPC to which he pleaded not guilty and claimed trial.
Accused Sangeeta was charged on 12.12.2008 for commission of the offence punishable U/s 368 IPC and accused Sheetal was charged for commission of offence punishable U/s 373/34, 376 readwith S. 109, 368, 323 IPC and Section 4 & 6 of ITP Act to which she also pleaded not guilty and claimed trial.
Prosecution has examined 12 witnesses in all in support of its case.
Accused persons have also been examined under Sec. 313 CrPC to enable them to explain the evidence appearing against them. Accused persons have pleaded innocence and stated that they have been falsely implicated in this case and they have nothing to do with the offence.
I have heard Shri S.C. Sharma, Addl PP for State and Shri Pradeep Chaudhary, counsel for accused persons and have carefully gone through the entire record.
4
Out of 12 witnesses, PW1 HC Harmukhi took accused Sheetal, complainant Sharifa Khatoon and Manoti @ Meena to JPN Hospital for medical examinations. She has proved the seizure memo Ex. PW1/A vide which the duty HC Akhmal Khan handed over to the IO two sealed envelopes.
PW4 L/Ct. Urmila is a witness to the arrest of accused Sangeeta and she identified her signature on the arrest memo Ex. PW4/A and personal search memo Ex. PW4/B of accused Sangeeta. She has further stated that disclosure statement Ex. PW4/C of accused Sangeeta was recorded in her presence.
PW5 ASI Khazan Singh is also witness to the arrest of accused Sangeeta.
PW8 HC Prabhu Dayal recorded FIR bearing No. 781/06 Ex. PW8/A on receipt of rukka through SI G.S. Sharma sent by Inspector. Rakesh Giri. He has further deposed that he made endorsement Ex.PW8/B on the rukka and sent the same to Inspector. Rakesh Giri through SI G.S. Sharma for further investigation.
PW9 Dr. Pooja examined Ms. Manoti @ Meena D/o 5 late Sh. Atul, aged about 18 years and prepared MLC Ex.PW9/A. She handed over four slides to the police after her medical examination in sealed condition.
On the same day she also examined Sharifa Khatoon @ Mamuni @ Jyoti D/o Tarikul Mandal and prepared MLC Ex.PW9/B. She seized vaginal smear in four pullandas which were handed over to the police in sealed condition.
PW10 Sh. Sandeep Yadav, SCJcumRC, (South District) Patiala House Courts, New Delhi was working as Link MM of the Court of Sh. A.K. Sisodia, MM, Tis Hazari. He has deposed that the application Ex.PW10/A moved by the IO for recording statement u/s 164 CrPC of Manoti @ Meena and Sharifa Khatoon @ Mamuni @ Jyoti was marked to him. He has proved statement of Sharifa Khatoon as Ex.PW2/B and statement of Manoti as Ex.PW10/B. He has further stated that the copies of statements were supplied to the IO on his application vide order Ex.PW10/C. PW11 Dr. Pooja Bhasin, Medical Officer, DDU Hospital, examined the xray plates of Sarifa Khatoon to determine the bony age. She has proved her report Ex.PW11/A 6 as per which the bony age of Sharifa Khatoon at that time was 2022 years.
PW2 Ms. Sharifa Khatoon @ Mamooni @ Jyoti is the complainant who has deposed that when she was about 18 years old, accused Bhura brought her from her native place i.e Village Bagati, PS Basir Hat, PO Bavla, District Uttar 24 Pargana on the pretext that he would take her to the house of her elder sister Muslima who was residing in Bombay alongwith her husband. On this, she accompanied him and at the railway station, one person met them who was introduced to her as Ganesh by accused Bhura. Ganesh also accompanied them in the train. Accused Alamgir @ Bhura told her that they would take her to Delhi where she could be employed to earn money and they brought her to Delhi. At Delhi, Ganesh talked to someone on telephone and after that, accused Sheetal and one other lady reached there. They took her to a house which belonged to accused Sheetal. After sometime, Ganesh and accused Bura also reached that place and met accused Sheetal. She was not permitted to meet accused Bhura and Ganesh. Accused Bura and Ganesh left the said house after taking the 7 money from accused Sheetal. In the night, she realized that the said place was being used for immoral purpose. Accused Sheetal compelled her to have physical relations with the customers coming there, for which she refused but forced and 45 customers had physical relations with her and out of those 45 persons, one was namely Tomar a relation of accused Sheetal who forcibly had physical relations with her twice. Whenever she refused to indulge in such act, she was threatened and also given beatings by the accused Sangeeta. Accused Sheetal used to keep the money received from the customers. She was forced to indulge into prostitution by accused Sheetal. Once she also tried to run away from there but could not succeed. Her `Jija' (brotherinlaw) Idrish came to know about her confinement there. He brought the police and rescued her. One girl Reena, who managed to escape, informed her family about her whereabouts. Police recorded her statement Ex.PW2/A. She was got medically examined by the police. Her statement Ex. PW2/B was recorded before a Magistrate.
She further stated that she remained at that place for about 78 months. During this period, she was sent to Meerut 8 where she was taken by accused Sheetal and Sangeeta. There also she was forced to have physical relations with customers for about two months. However, she could not tell the relationship between accused Sangeeta and Sheetal.
PW3 Idris has deposed that Sharifa Khatoon is sister of his wife. In the year 2005 Sharifa Khatoon got missing from her village and at that time he was living in Mumbai alongwith his wife. His fatherinlaw informed him about missing of Sharifa Khatoon and asked him to search her but she could not be traced in Mumbai. After about 810 months of her missing, when he returned to his village which is near the village of his inlaws, he came to know through a girl who ran away from a kotha in Delhi, that the girl of the description of his sisterinlaw was also at kotha No.71, GB Road.
On 29.11.2006 he came to Delhi. When he was present at GB Road, police officials met him near kotha No.54 and he informed them about his sisterinlaw Sharifa Khatoon being confined at kotha No.71. The police made a telephone call to someone on which one person came there who was from one NGO. Police informed him about the above facts. He alongwith 9 the police and that person went to kotha No.71 at 3rd floor where he identified his sisterinlaw Sharifa Khatoon and on his identification she was rescued and questioned by the police. The police recorded the statement of Sharifa Khatoon wherein she narrated that she was forced to indulge into prostitution by accused Sheetal, the owner of that kotha. Accused Sheetal was also interrogated by the police and arrested vide arrest memo Ex.PW3/A. Out of other girls present there, one was Manoti who also disclosed that she had been brought there by one another person. She was also rescued by the police from there.
PW12 Inspector Rakesh Giri has deposed that on 29.11.2006 while he was posted as SHO PS Kamla Market, he alongwith SI G.S. Sharma and W/ASI Shashi Gupta was on patrolling duty in the area and they were present near Kotha No.54, GB Road. At about 3.50 PM, one person came to him, revealed his identity as Mohd Idris and informed that his sister inlaw (Sali) Sharifa Khatoon was confined at kotha No.71, GB Road. He informed Mr.Nishi Kant, Director of Shakti Vahini, NGO on telephone about this information. Mr. Nishi Kant reached there at about 4.10 PM. Thereafter all the police 10 officials alongwith Mohd Idris and Nishi Kant reached kotha No.71, 3rd floor (left side), GB Road. Mohd Idris pointed out one girl present there as his sisterinlaw. He interrogated Sharifa Khatoon and recorded her statement Ex.PW2/A, made endorsement Ex.PW12/A thereon and handed over the tehrir to SI G.S.Sharma for getting the case registered. He interrogated other girls present at the said kotha. SI G.S. Sharma came back to the spot alongwith copy of FIR and original tehrir and handed over to him. Out of those girls, one girl Manoti @ Meena also made allegation regarding compelling her to indulge in prostitution by the owner of said kotha. Accused Sheetal, present in the Kotha, was interrogated and arrested vide arrest memo Ex.PW3/A. Her personal search was also conducted vide memo Ex.PW6/A. The statement of Manoti was also recorded. He also recorded statement of SI G.S. Sharma, Mohd Idris and ASI Shashi Gupta there. Disclosure statement Ex.PW6/B of accused Sheetal was also recorded. He prepared the site plan Ex.PW12/B. Medical examination of both the victims and accused Sheetal was got conducted in JPN Hospital through SI G.S. Sharma, HC Harmukhi and HC Pradeep. He also got 11 recorded statement U/s 164 Cr.PC of Manoti and Sharifa Khatoon.
He has further stated that on 22.2.07, on the basis of a secret information, accused Sangeeta was arrested when she was standing in varandah of kotha no.71 vide arrest memo Ex.PW4/A. Her personal search was got conducted vide memo Ex.PW4/B. She was interrogated and her disclosure statement Ex.PW4/C was recorded and she was got medically examined.
PW6 SI G.S. Sharma was also a member of raiding party. He has deposed on the similar lines as Inspector Rakesh Giri and corroborated his statement on all material points.
PW7 ASI Shashi Gupta was given up by Ld Addl. PP being repetitive in nature.
On behalf of the State, Shri S.C. Sharma, Ld Addl PP has submitted that in the instant case, after receiving the information through Mohd Idrish, raid was conducted at Kotha No. 71, III Floor leftside, G.B. Road, Delhi and on the identification of Sh. Mohd Idrish, PW2 Sharifa Khatoon was recovered from the Kotha and accused Sheetal who was running that Kotha and forced Sharifa Khatoon to indulge into 12 prostitution, after purchasing her from accused Alamgir, was also arrested from that Kotha and from the statement of Sharifa Khatoon, it stands proved that she was kidnapped by accused Alamgir from her native place and sold her to Sheetal for prostitution and she was compelled to indulge into prostitution and accused Sheetal was living on the earnings of prostitution. It was also contended that so far as accused Sangeeta is concerned, her role has been described by PW2 Sharifa Khatoon and the prosecution has been able to prove its case against all the accused persons beyond reasonable doubt and they be convicted.
On behalf of accused persons, Shri Pradeep Chaudhary, Advocate has filed written submissions to the effect that the prosecution has failed to comply with the mandatory provisions of the Act. As per Section 13 (3)(c) of the Act, the Special Police Officer of the area shall be assisted by such number of subordinate police officers including women police officer where ever practicable as the State Government may think fit. It has been contended that in the instant case, no lady either social worker or police officer was accompanying the police party. Sh. Nishi Kant was a male member and W/ASI 13 Shashi Gupta has been given up by the prosecution. Thus, without the company of any women from either place, the raid has been conducted. It has been further contended that as per Section 15 (2) of the Act, before making a search, the special police officer or the trafficking police officer shall call upon two or more respectable inhabitants out of whom atleast one should be a woman of the locality where the search is to be conducted but, even this has not been done. Even the requirements of Section 15 (6)(a) regarding presence of atleast two women police officers at the time of search or the presence of a lady member of a recognized welfare institution or organization has not been complied with. It has also been contended that only one site plan has been placed on record whereas there had to be three site plans regarding Sheetal's arrest and that of place of accused Sangeeta's arrest and of Merrut . The site plan in respect of Sheetal's arrest does not highlight the floor and exact place of the accused's arrest and it has been prepared in a mechanical manner. It has been further contended that the case of the prosecution is based only on the statement of Mohd Idris and Sharifa Khatoon. Further, in the statement U/s 164 Cr.PC, Sharifa Khatoon did not 14 mention about her rescue by her brotherinlaw Mohd Idrish rather she has referred her sister in Superdarinama. It is not mentioned as to whom the custody of Sharifa Khatoon was given. Ld defence counsel has further contended that signatures of Mohd Idrish do not appear on all the memos and disclosure statements and even signatures of his wife does not appear on any such memos. The prosecutrix is major aged about 22 years and she was not forcibly kept as captive in the Kotha still she did not raise any alarm. It has also not come in the statement of Mohd Idris that any lady accompanied them at the time of raid. Further, signature of lady constable Urmila does not appear on the arrest memo of Sangeeta though she claimed to be present there at that time which is sufficient to falsify the prosecution story.
Ld defence counsel has also referred to the statement of ASI Khazan Singh who did not mention presence of Rakesh Giri at the time of raid and was crossexamined by Ld Addl. PP. SI G.S. Sharma also did not state about presence of any lady officer and the social worker Nishi Kant was a male member, hence mandatory requirements of ITP Act have not been 15 complied with. There is no documentary evidence to prove that accused Sheetal was owner of the Kotha. It has been further contended that PW2 Inspector Rakesh Giri has mentioned only about Idris at whose instance the raid was conducted but this witness has not been mentioned about any lady either social worker or police officer to be present at the time of raid and he stated that he recorded statement of Manoti, SI G.S. Sharma, Mohd Idris and ASI Shashi Gupta at the spot but PW Idris denied having made any statement at the spot but stated that it was recorded at the police station which shows that the mandatory requirements of the Act have not been complied with and the accused persons are to be acquitted of the charge.
I have considered the rival contentions made by ld Addl PP and ld defence counsel and carefully gone through the entire record.
The contention of Ld defence counsel that provisions of Section 13 (3)(a), 15 (2), 15 (6) (a) of the Act have not been complied with, have no adverse effect on the case of the prosecution for the reason that from NGO, Sh. Nishi Kant was joined at the time of recovery of Sharifa Khatoon from Kotha 16 No. 71, III Floor Left Side, G.B. Road, Delhi and Inspector Rakesh Giri was accompanied by W/ASI Shashi Gupta. Even otherwise, real Jija of Sharifa Khatoon was present with the police party who was not only closely related to her but the person who gave the lead to the police that led to the recovery of Sharifa Khatoon from Kotha No. 71, III Floor, Left Side, G.B. Road, Delhi belonging to accused Sheetal from where she was arrested. Evenif it is assumed for the sake of arguments that there was necessity to join atleast two women police officers at the time of search or the presence of a lady member of a recognized welfare institution or organization, even then the accused have failed to show that any prejudice has been caused to them by non joining of police officers or lady member of a recognized welfare institution or organization. It also cannot be ignored that it was not a police raid on the Kotha but search for Sharifa Khatoon on the basis of specific information given by her brotherinlaw i.e PW3 Idris on whose identification she was rescued from Kotha No.71, III Floor, Left Side, G.B. Road, Delhi.
As accused Alamgir is stated to be the person who 17 brought the complainant Sharifa Khatoon to Delhi and sold her at the kotha of accused Sheetal, first, I would consider the testimony of the complainant and her brother in law Mohd Idris to find out as to which offences have been proved by the prosecution against accused Alamgir. In this regard, first of all, this court has to ascertain whether the complainant Sharifa Khatoon was minor i.e under 18 years of age when she was brought to Delhi from her native place Bhawla Matpura PS Bashir Hut, District Uttar 24 Pargana (WB). The complainant Sharifa Khatoon is illiterate which is established on record from the fact that she has put her thumb impression on her statement U/s 164 Cr.PC as well as when she was examined in this court as PW2. Thus, there is no documentary proof regarding her age. She has been medically examined at DDU Hospital to ascertain her age and as per the report dated 05.12.2006, given by Dr. Pooja Bhasin of DDU Hospital, her bony age was between 20 to 22 years at that time. Thus, it is established on record that in the year 2006 when this case was registered the complainant was above 18 years of age and not a minor, hence charge for the offence U/s 372/34 IPC does not stand proved against him. 18
So far as offence U/s 366 IPC is concerned, the complainant Sharifa Khatoon has specifically stated that accused Alamgir Mistry alias Bura brought her from her village on the pretext of taking her to his sister who was residing in Mumbai alongwith her husband to which she agreed. At the railway station, one person introduced by accused Alamgir as Ganesh also met them and accompanied them in the train. On the way, accused Alamgir told her that she was taking her to Delhi to get her a job to earn money and after she was brought to Delhi, accused Ganesh had talked to a lady on phone and then two ladies reached station in a rickshaw and one of them was accused Sheetal, correctly identified by complainant Sharifa Khatoon. Sheetal and her companion brought her to a place where after sometime Ganesh alongwith accused Alamgir also reached there but she was made to sit in a room and not permitted to meet accused Bura and Ganesh and that accused Bura and accused Ganesh left that place after taking money from accused Sheetal but she did not know the purpose of giving money by Sheetal to them. On the night she realized that the said place was used for immoral purpose and she was also asked to have physical 19 relations with the customers coming there. She was compelled to have physical relations with 4/5 persons including one Tomar relation of accused Sheetal and whenever she expressed her unwillingness to indulge in such acts, she was threatened and given beatings by accused Sangita. This part of the statement of the complainant Sharifa Khatoon is sufficient to prove on record that it was accused Alamgir alias Bura who induced Sharifa Khatoon to accompany him on the pretext of taking her to her sister residing in Mumbai but subsequently induced her to stay at Delhi for getting employment and earn money but after coming to the Delhi Railway Station, contacted accused Sheetal, handed over the complainant to her and then collected the money from accused Sheetal which could obviously for selling the complainant to Sheetal knowing fully well that he was selling the complainant to a lady who was running a brothel where the complainant would be compelled to have illicit intercourse with the customers visiting that place. Statement of PW3 Idris who is brotherinlaw (Jija) of the complainant further proves that when he visited his native place at 24 Pargana West Bengal, through a girl who had earlier run away from Kotha No. 71, G.B. Road, 20 Delhi, he came to know that a girl matching the description of Sharifa Khatoon his sisterinlaw was also at Kotha No. 71, G.B. Road, Delhi and then he came to Delhi on 29.11.2006 and contacted the police officers present near Kotha No. 54 and informed about the information available with him. It has also come in the statement of PW3 Mohd Idrish that police made a telephone call to someone on which a person from some NGO reached there and informed about the facts by the police and then the police alongwith him and that person from the NGO reached Kotha No. 71, III Floor where he identified his sisterinlaw Sharifa Khatoon out of the girls present there and she was rescued by the police. Here it is important to note that neither Mohd Idrish nor Sharifa Khatoon had anything adverse against accused Sheetal or Alamgir so as to lodge a false complaint against any of them. It also cannot be ignored that Alamgir was not arrested from Kotha No. 71, G.B. Road, Delhi and either during crossexamination of PW2 & PW3 or while making statement U/s 313 Cr.PC, accused Alamgir has not given any motive for PW2 Sharifa Khatoon and PW3 Mohd Idrish to falsely implicate him in this case when he was already in custody 21 in a case FIR No. 342/06 under Section 20 (B) NDPS Act of PS Bashir Hut in West Bengal. It is a matter of judicial record that presence of Alamgir was obtained through production warrants and even wireless message was sent for seeking his production and appearance in this case. The complainant had absolutely no reason to falsely implicate accused Alamgir in this case had he been not the person who induced her to accompany him initially to Mumbai but instead brought her to Delhi and sold her to accused Sheetal who compelled her to indulge in prostitution. Statement of Mohd Idris is also sufficient to establish that it was only through a girl who managed to run away from Kotha, he came to know about the presence of Sharifa Khatoon at Kotha No. 71 and with the police help, in the presence of one person from NGO, the police recovered her from Kotha No.71 on his identification. As Mohd Idris is also resident of Village Matpada, PS Bashir Hat, PO Bhawala, Distt. North 24 Pargana, West Bengal and was genuinely concerned about the whereabouts of his sister in law and followed the available leads regarding the presence of his sister in law at Kotha No. 71 then contacted the police officers present there and complainant was 22 rescued on his identification, further proves that she was brought from her native place by accused Alamgir and sold to accused Sheetal who was running a brothel, to compel her to indulge into prostitution. Thus, the prosecution has been able to prove its case beyond reasonable doubt against accused Alamgir for commission of offence punishable U/s 366 IPC. He is held guilty and convicted for commission of offence U/s 366 IPC.
Now coming to the charge for commission of offence U/s 363 IPC against accused Alamgir, the prosecutrix was not minor at the time when she accompanied accused Alamgir to meet her sister who was residing in Mumbai but brought to Delhi by accused Alamgir on the pretext of providing her a good job. Section 372 IPC deals with the offence of selling minor for purposes of prostitution but in view of ossification test report Ex. PW11/A, since complainant Sharifa Khatoon was not minor at that time, the offence U/s 372 IPC also cannot be said to have been made out against accused Alamgir. Hence, he is acquitted of the charge for commission of offence U/s 363/372 IPC.
So far as accused Sheetal is concerned, she has been charged for commission of the offences punishable U/s 373, 376 23 readwith S. 109, 368, 323 IPC and Section 4 & 6 of I.T. (P) Act. The complainant has specifically stated that when she alongwith accused Alamgir and one Ganesh reached Delhi Railway Station, a telephone call was made pursuant to which accused Sheetal alongwith one other lady came to the railway station and brought her to Kotha No. 71 where after some time, accused Ganesh and Alamgir alias Bura also reached and she was not allowed to meet them. However, they left after accepting some money from Sheetal. The mere fact that on the same day during night, she was compelled to indulge into prostitution, proves beyond reasonable doubt that she was procured by accused Sheetal for prostitution. It has also come in the statement of PW2 Sharifa Khatoon that it was accused Sheetal who compelled her to indulge into prostitution and whenever she refused, she was threatened and given beatings and that she also tried to run away once but could not succeed. It has also come in the statement of PW2 that she was also taken to Meerut by accused Sheetal and Sangita where also she was compelled to indulge in prostitution and when she was got rescued by her Jija Idris, who reached at Kotha No. 71, G.B. Road alongwith the police, at that time she 24 made her complaint Ex. PW2/A and subsequently also made statement before the Magistrate which is Ex. PW2/B. This witness has been crossexamined at length by Ld defence counsel but the intrinsic worth of her testimony could not be challenged during crossexamination. She has negated all the suggestions put by Ld defence counsel that she was never forced to indulge into prostitution by accused Sheetal or that Sheetal neither brought her from the Railway Station nor she paid any money to Alamgir to procure her. She has also denied the suggestion that accused Alamgir did not induce her to accompany her to Mumbai or brought her to Delhi on the assurance of providing good job. Accused Sheetal has been arrested from Kotha No. 71 in the presence of PW3 Mohd Idris who is stranger to accused Sheetal. He was only there in search of his missing sister in law as he had clue about her presence at that particular Kotha. It was not the concern of Mohd Idrish as to who was running Kotha No. 71, G.B. Road and his only purpose was to depose against the person running Kotha No. 71, G.B. Road, Delhi where his sister in law was compelled to indulge into prostitution. Thus, he had absolutely no grudge against accused Sheetal so as to falsely 25 implicate her in this case. Had it been a case of false implication, he could have deposed against accused Sangeeta also and the fact that though he only deposed against accused Sheetal to be the person who was arrested from that Kotha after the statement was made by his sister in law Sharifa Khatoon and that one another girl Manoti was also recovered from there who was brought by some other person to that Kotha, clearly proves that he is a reliable witness. In the crossexamination, he has denied the suggestion that he had never visited Kotha No.71, G.B. Road Delhi nor Sharifa Khatoon was recovered from there or that accused Sheetal was not arrested from Kotha No. 71, G.B. Road in his presence. The arrest memo of accused Sheetal bears the signatures of Mohd Idris which in itself is sufficient to prove his presence at the time of her arrest. It was for accused Sheetal to explain as to from where she was arrested and in the absence of any suggestion being put to the witness Mohd. Idris about the place from where accused Sheetal was arrested, the arrest memo Ex. PW3/A showing the place of arrest as Kotha No. 71, III Floor, Left Side, G.B. Road, Delhi and intimation being given to coaccused Sangeeta R/o Kotha No. 71, III Floor Left side, G.B. 26 Road, is sufficient to prove that Sharifa Khatoon was recovered from Kotha No.71, being run by accused Sheetal. Statement of PW2 Sharifa Khatoon is sufficient to prove that it was accused Sheetal who used to charge money from the customer and keep the entire money with her which is sufficient to prove that accused Sheetal was living on the earning of prostitution by charging from the customers for having sex with complainant Sharifa Khatoon and retaining that money with her.
There is no material contradiction confronted to PW2 in the two statement i.e. complaint Ex.PW2/A and statement Ex.PW2/B under Sec.164 CrPC of the complainant. The statement of Mohd Idris as to how he reached near Kotha No. 54 and contacted the police to rescue his sisterinlaw from Kotha No. 71, also finds corroboration from the statement of Sharifa Khatoon who deposed that she was rescued by the police who reached there alongwith her Jija i.e PW3 Mohd Idris. Statement of PW2 Sharifa Khatoon and PW3 Mohd Idris corroborate each other on recovery of PW2 from Kotha No. 71 and arrest of accused Sheetal. There is some discrepancy in the testimony of PW2 Sharifa Khatoon regarding the role of accused Sangita but 27 it is well settled that it is not every contradiction the benefit of which can be taken by the accused. In the case State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :
"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
Their Lordships further observed :
"unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Crossexamination is an unequal dual between the rustic and refined lawyer."28
In the instant case, accused Sheetal has been arrested from Kotha No. 71, III Floor, Left Side, G.B. Road, Delhi on the pointing out of complainant and accused Alamgir and Sangita had been arrested subsequently. The statement of the complainant who was a victim also does not require any corroboration. Though the allegation of rape are not against any of the accused in this case but so far as the fact that she was subjected to sexual intercourse against her will by inviting customers and charging from them is sufficient to establish that she was compelled to indulge into prostitution and in such a situation, requiring corroboration to statement of victim would amount to adding insult to injury. If judgment is needed on this point, reliance can be placed on State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, wherein the Hon'ble Supreme Court has observed as under : "The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which has no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are 29 such which are of fatal nature, be allowed to thrown out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amount to adding insult to injury."
The mere fact that the complainant who herself is victim also, named the accused persons in her complaint, and specifically stated that the place was being used as a brothel and accused Sheetal was charging money from customers for having sex with her against her wishes and that accused Sheetal procured her through accused Alamgir alias Bura for prostitution and was living on her earning through prostitution, does not require any corroboration as her statement is not only reliable and trustworthy but also does not suffer from any kind of infirmity.
Accused Sheetal has been charged for wrongfully concealing or keeping in confinement PW2 Sharifa Khatoon 30 knowing that she had been kidnapped or abducted. It has come in the statement of PW2 Sharifa Khatoon that accused Sheetal had come to the Railway Station and brought her to Kotha No. 71, G.B. Road in a rickshaw and at that Kotha, when accused Alamgir alongwith Ganesh arrived, they were paid some money by accused Sheetal who left thereafter without meeting PW2 and that she tried to run away from that place but could not succeed. Thus, from the statement of PW2 Sharifa Khatoon it is established that she was kept confined in Kotha No. 71 by accused Sheetal knowing fully well that she had been kidnapped by accused Alamgir with intent to force her into prostitution by selling her to accused Sheetal and it has also been proved from statement of PW2 Sharifa Khatoon that when she refused to indulge into prostitution, she was threatened and given beatings and that accused Sheetal was charging from the customers, retaining that money and living on the earning of prostitution. The statement of the prosecutrix is sufficient to prove beyond reasonable doubt the offence U/s 368, 376 readwith Section 109 IPC and Section 4 ITP Act against accused Sheetal. She is held guilty and convicted for commission of offence punishable U/s 31 368, 376 readwith Section 109 IPC and Section 4 of the Act.
Accused Sheetal has been charged for commission of offence punishable U/s 373 IPC but as it has already been held that she was not minor at that time when she was brought to Delhi by accused Alamgir on the pretext of taking her to Mumbai to meet her sister but brought to Delhi on the pretext of providing her a good job. Section 373 IPC deals with the offence of buying minor for purposes of prostitution etc. In view of ossification test report Ex. PW11/A, since complainant Sharifa Khatoon was not minor at that time, the offence U/s 373 IPC cannot be said to have been made out against accused Sheetal. Hence, she is acquitted of the charge for commission of offence U/s 373 IPC.
So far as offence U/s 323 IPC is concerned, perusal of MLC Ex. PW9/B of complainant Sharifa Khatoon shows that at the time of medical examination, no injury was found on the body of the complainant. Even otherwise general allegations of beating are made in the complaint as well as before the court rather while deposing before the Court, PW2 Sharifa Khatoon stated that whenever she refused to indulge in such act, she was 32 threatened and also given beatings by accused Sangeeta. In these circumstances, I find that no case U/s 323 IPC is said to have been proved against accused Sheetal. Hence, she is acquitted of the charge for commission of offence U/s 323 IPC.
The evidence on record is not sufficient to prove ingredients of Section 6 of the Act against accused Sheetal. Hence, she is acquitted of the charge for commission of offence punishable U/s 6 of the Act.
So far as accused Sangeeta is concerned, the arrest memo of accused Sheetal shows that when complainant Sharifa Khatoon was recovered from Kotha No. 71, III Floor, Left side, G.B. Road, Delhi. Accused Sheetal was arrested and her intimation of arrest has been given to accused Sangita. No allegation was made against accused Sangita by the complainant at that time. However, while making statement Ex. PW2/B U/s 164 Cr.PC, she only stated that she was taken to Meerut in a taxi but nowhere stated that she was kept confined by accused Sangita in Meerut rather she has stated that accused Sheetal and Sangita took her to a doctor who had given some injection. In these circumstances, I find that the material against accused 33 Sangita is not sufficient to convict her for commission of offence punishable U/s 368 IPC. Hence she is acquitted of the charge for commission of offence punishable U/s 368 IPC.
In view of above discussion, as the prosecution has been able to prove its case beyond reasonable doubt against accused Alamgir for the offence punishable U/s 366/34 IPC, he is held guilty and convicted for commission of offence punishable U/s 366/34 IPC but his offence U/s 363/372/34 IPC is not proved, hence he is acquitted of these charges.
Against accused Sheetal, prosecution has been able to prove its case beyond reasonable doubt for commission of offences U/s 376 readwith Section 109, 368 IPC & Section 4 of Immoral Traffic (Prevention) Act for which she is held guilty and convicted. However, as the offence punishable U/s 373/34 IPC & Section 6 of Immoral Traffic (Prevention) Act have not been proved against her, she is acquitted of these charges.
So far as accused Sangita is concerned, the prosecution has not been able to prove its case beyond reasonable doubt against her for committing offence punishable U/s 368 IPC, she is acquitted of the charge for offence U/s 368 34 IPC. Her bail bond stands canceled. Her surety is discharged. Announced in open court on this 21st day of October, 2009 (PRATIBHA RANI) DJIIIcumI/C ASJ (West)/Delhi 35 IN THE COURT OF SMT. PRATIBHA RANI, DJIIICUMASJ (WEST), DELHI *** SC No. 77/08 State Vs. 1.Alamgir Mistry @ Bura, S/o Sh. Abdul Khayar Mistry R/o Bhawla Matpura, PS Basir Hat Distt Uttar 24 Pargana, (W.B.)
2. Sheetal D/o Neo Rati, R/o Kotha No. 71, III Floor, Left Side, G.B. Road, Delhi FIR No. 781/2006 PS Kamla Market U/s 366/34, 376 r/w 109, 368 IPC and Sec.4 ITP Act Date of arguments : 26.10.2009 Date of order : 26.10.2009 ORDER ON SENTENCE I have heard the convicts Alamgir and Sheetal and their counsel Sh. Pradeep Chaudhary on the point of sentence. I have also heard Sh. S.C. Sharma, addl. PP for the State. On behalf of State, it has been submitted that both the convicts were instrumental in compelling an innocent village girl into flesh trade and they deserve no leniency and maximum punishment 36 may be awarded to them so that it sends signal to the potential offenders.
2. On behalf of convict Alamgir, Sh. Pradeep Chaudhary, advocate has submitted that he is not a previous convict and has already been acquitted in NDPS Act case and he is in J/C since the date of his arrest in this case i.e. 31.1.2008 and a lenient view may be taken in view of the fact that his father is dead and he has to support his aged mother, three brothers.
3. On behalf of convict Sheetal, Sh. Pradeep Chaudhary, advocate has submitted that convict Sheetal is first offender. She has three children with none to look after and the age of her three children is 15 years, 13 years and youngest one is aged less than one year. It has also been contended that in view of the fact that convict is a female having none to support her children, she may be enlarged on probation.
4. I have considered the submissions on behalf of convicts and State. In the instant case convict Alamgir had brought the prosecutrix from her native village to Delhi Railway Station on the pretext of providing her a good job so that she could earn well but from the Railway Station itself he contacted 37 convict Sheetal who came and took the prosecutrix to a brothel and on the same day she was forced to work as prostitute. This connection between the two convicts clearly establishes that they were well known to each other and had full knowledge of the trade of each other and whereas convict Alamgir used to bring the innocent girls on false promises and the convict Sheetal used to purchase such hapless girls and compelled them to indulge in the flesh trade. The mere fact that the convict Sheetal has been arrested from kotha No.71 from where prosecutrix was recovered at the instance of her brotherinlaw by the police, itself shows that the convict Sheetal was running brothel at kotha No.71 where many girls including this prosecutrix and one another girl namely Manoti who remained untraceable during trial, were found to have been brought there forcibly and compelled to indulge in prostitution. In the facts and circumstances of the case, I do not find that any of the convict deserve any leniency or release on probation. Taking into consideration the entire facts and circumstances of the case, I sentenced convict Alamgir to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/ for the offence 38 punishable under Sec.366/34 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict Sheetal is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1000/ for the offence punishable under Sec.376 read with 109 IPC. In default of payment of fine, she shall undergo simple imprisonment for one month. Convict Sheetal is also sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/ for the offence punishable under Sec.368 IPC. In default of payment of fine, she shall undergo simple imprisonment for one month. Convict Sheetal is also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/ for the offence punishable under Sec.4 of ITP Act. In default of payment of fine, she shall undergo simple imprisonment for one month. All the sentences awarded to convict Sheetal shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. File be consigned to Record Room. Announced in open court 26.10.2009 ( PRATIBHA RANI ) DJIIIcumI/C ASJ (West)/Delhi 39 40 41