Delhi District Court
State vs . 1. Harsh Khurana, on 10 September, 2009
IN THE COURT OF SMT. PRATIBHA RANI,
DJ-III-CUM-ASJ (WEST), DELHI
***
SC No. 04/06
State Vs. 1. Harsh Khurana,
S/o Sh. Banarsi Dass,
R/o H-111, Shivaji Park,
Ist Floor, Punjabi Bagh,
New Delhi.
2. Harish Pal S/o Sh. Rama Kant
R/o Village Majhara,
PS Waziraganj, District Ghonda,
UP At present at 82, Swaran Park,
Udyog Nagar, Nangloi, N.Delhi
3. M/s Banarsi Dass & Co.
AS-10, 5006, Jaisev Place,
Sirkiwalan, Hauz Quazi,
Delhi. (Discharged).
FIR No. 327/1995
PS Anti Corruption Branch
U/s 7/10/55 of E.C. Act
Date of Institution: 20.03.1996
Date when reserved for orders: 01.09.2009
Date when order pronounced: 10.09.2009
JUDGMENT
Accused Harsh Khurana, Harish Pal M/s Banarsi Dass & Company through its owner have been sent to face trial for commission of offence punishable U/s 7/10/55 of E.C. Act. Accused M/s Banarsi Dass & Company had been discharged vide order dated 27.04.2007 as it was considered to be proprietorship concern of accused Harsh Khurana and had no 1 independent legal identity.
2. Briefly stated the prosecution case is that on 18.5.1995, a secret information was received in the Anti- Hoarding Cell of the Food and Supplies Department of Government of NCT of Delhi that accused Harsh Khurana, owner/occupier of premises No. 82, Swaran Park, Udyog Nagar, Nangloi Delhi was in possession of huge stock of different types of mild steel tubes and these tubes are without ISI Mark and the same were kept for sale. A raiding party was organized under the supervision of Inspector K.K. Kaushik consisting of other staff of Anti-Hoarding Cell including Superintendent vigilance, inspector of Enforcement and Sh. P.K. Batra and Sh. K.C. Verma, Joint Directors of Bureau of Indian Standards (hereinafter referred to as B.I.S) and Sh. S.K. Pushi, Secretary of Akhil Bhartiya Grahak Panchayat, Delhi and two public witnesses namely Ram Kishan and P.S. Manchanda. The raiding party reached the aforesaid premises of accused Harsh Khurana in Nangloi, Delhi at about 11.45 AM where accused No.2 Harish Pal met who introduced himself as Store Keeper of accused accused No.1 Harsh Khurana.
3. On inspection of the business premises of Harsh Khurana, different types of MST were found lying in huge quantity at the said place. In the meanwhile, SI Rajender Kumar and 2 HC Surender Kumar of PS Nangloi reached the above said premises while patrolling and joined the raiding party. Joint Director Sh. P.K. Batra and Mechanical Engineer Sh. K.C. Verma of B.I.S. checked those mild steel tubes (herein after referred to as M.S. Tubes) and found that they did not bear ISI specification and 1262 different type of M.S. Tubes lying there were classified into 13 categories and one M.S. Tube out of each category was picked up as a sample and marked as Sample No.1 to 13 and seized vide memo. Stock Sale Receipt Register and Receipt/Delivery book etc were checked and found that aforesaid M.S. Tubes were being stored and sold to different parties in Delhi. Inspector K.K. Kaushik concluded the raid proceedings by drawing a rukka for registration of FIR against accused Harsh Khurana and accused Harish Pal for contravention of provisions of Mild Steel Tubes (excluding Seamless tubes and tubes according to A.P.I specification) (Quality control) order 1977, issued under Section 3 of Essential Commodities Act, 1955 (hereinafter referred to as E.C. Act) and its contravention is punishable U/s 7 of the E.C. Act. The case property and the relevant documents of this case were seized vide various memos and samples were sent to B.I.S. Laboratory for analysis and after registration of FIR, during investigation, statements of different shopkeepers to whom M.S. Tubes were supplied, were recorded. 3
4. It is further the prosecution case that both the accused had manipulated the copy of the bills by taking them back from their sub-dealers and accused persons managed to supply another set of bills to their sub-dealers which contained a note "Non ISI Marked Mild Steel Tube is not meant for water, gas Airlines steams, structures and water wells. It is only for use in other general purposes" and aforesaid note was not there in the earlier bills which were seized from accused Harish Pal at the business premises of accused Harsh Khurana on the day of raid. As per the analysis report of B.I.S. Laboratory, the 13 samples of tubes analyzed were found to be Mild Steel Tubes but its quality was sub-standard and it did not bear ISI certification mark.
5. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.
6. After hearing on the point of charge, accused persons were charged on 28.04.2007 for the offence punishable under Sec. 7/8 of Essential Commodities Act readwith Section 34 IPC to which they pleaded not guilty and claimed trial.
7. Prosecution has examined 16 witnesses in all in support of its case.
8. PW3 Sh. T.N. Meena, the then Superintendent Vigilance, Food and Supplies Department joined the raid alongwith Sh. Ajay Rathi, Hari Singh, Sanjay Sethi, Inspectors 4 with the Food and Supplies Department, Sh. P.K. Batra, Sh. K.C. Verma from the BIS, Sh. P.S. Manchanda, Sh. Satish Kumar Punshi and Ram Kishan, witnesses from the public besides Sh. Kamal Sapra and K.K. Kaushik, Inspector Anti Hoarding Cell. He has deposed that on inspection 1262 mild steel tubes of 13 types were seized as they were without ISI marking. He has further deposed that stock sale/purchase register were also seized.
9. PW4 Sh. V.S. Malik, the then Inspector Food and Civil Supplies, K-Block, Vikas Bhawan alongwith Sh. R.C. Jain and Sh. Mukesh Sharma Inspectors Food and Civil Supplies, conducted a raid at the premises of M/s Banarsi Das & Co in Jaidev Market, Seekriwalan, Haus Kazi, Delhi and recovered 144 bills/sale invoices in respect of Mild Steel tubes vide recovery memo Ex. PW4/A, in presence of Mr. Harsh Khurana, proprietor of firm, who has refused to sign on the recovery memo and to receive a copy of the same.
10. PW5 Shri R.C. Jain has also deposed on the similar lines.
11. PW8 ASI Jagdish Prasad, on receipt of rukka sent by Inspector K.K. Kaushik through constable Vijender, recorded FIR No. 327/97 U/s 7/10/55 E.C. Act and proved the copy of FIR as Ex. PW8/A. He has further deposed that he handed over 5 the copy of FIR and rukka to constable Vijender after making endorsement Ex. PW8/B on the rukka.
12. PW9 ASI Ram Bhagat was working as MHCM with whom 1262 pipes of different sizes including 13 samples and a sealed parcel sealed with the seal of CFS DELHI were deposited and he made entries to this effect at Sl. No. 1807 in register No.19. He has further deposed that on 16.6.1995, 13 samples were sent to Deputy DG Central LabBureau of Indian Standards, Ghaziabad, UP through constable Dharamveer vide RC No. 175/21. Copies of relevant entries have been proved as Ex. PW9/A and PW9/B.
13. PW12 HC Dharamvir, on 16.06.1995, took 13 samples from MHC (M) PS Nangloi and deposited them with Central Laboratory Bureau of Indian Standards, Sahibabad, UP vide RC No. 175/21.
14. PW13 HC Bijender got registered the FIR of this case on receipt of rukka from Inspector K.K. Kaushik.
15. PW1 Shri Ajay Kumar Rathi, the then Inspector, Enforcement Branch, Food & Supply Department was the member of raiding party. He has deposed that on 18.05.1995, the raiding party consisting of Joint Directors Mr. Batra and Mr. Verma from Bureau of Indian Standards reached plot No. 82, Swaran Park, Udhyog Nagar, Mundka, Delhi and raid was 6 conducted. During the raid, 1262 iron pipe of 13 categories which were not having ISI Mark were seized vide memo Ex. PW1/A as they were not qualifying the standard requirements. One piece from each category was taken out as sample. Accused Harish Pal who was working as Store Keeper, was found present. He produced the relevant record which was seized vide memo Ex. PW1/C. Some stickers of ISI mark were also taken into possession and were seized vide memo Ex. PW1/B. Accused Harsh Khura, owner of the Godown and firm M/s Banarsi Dass & Co also came there. He has identified the five measurement slip books Ex. P-1 to P-5, one inventory control register Ex. P-6, a day book Ex. P-7, challan pad book Ex. P-8, carbon copy of challans Ex. P-9, one challan form of M/s Banarsi Das & Co. Ex. P-10, one challan form of M/s Jindal Industries Ltd Ex. P-11 and one dealerwise address cum telephone directory Ex. P-12.
16, PW2 Sh. P.K. Batra, the then Joint Director in BIS Headquarters has deposed that on 18.5.95, he alongwith Sh. K.C. Verma of his department, Shri K.K. Kaushik and Mr. Kamal Sapra from the Anti-Hoarding Cell of Food and Supply Department, some persons from the public including one Sh. S.K. Punshi, conducted the raid on the business premises in Swaran Park, Mundka, of one Harish Khurana. During the raid, 7 one Sh. Harish Pal, store/godown keeper met them and Mr. Harish Khurana proprietor also reached there after some time. The steel rod lying there were checked and on analysis, it was found that none of the steel tubes carried BIS Standard Mark i.e ISI Mark which was mandatory under the mild steel tubes quality control order issued under Essential Commodities. The steel tubes, registers, receipt books etc were seized vide seizure memos. He has proved certificate Ex. PW2/X issued by him to the effect that he had physically verified the steel tubes and found them to be not carrying ISI Mark.
He has further deposed that on 05.12.1995, He forwarded test reports to the officer incharge of Anti Hoarding and Anti Profiteering Cell, New Delhi vide letter Ex. PW2/Y.
17. PW6 Shri Anil Chawla has deposed that he knew Harsh Khurana who was having a firm M/s Banarsi Dass & Co. in Hauz Qazi, Delhi. Police met him in connection with this case and seized copies of the bills vide memo Ex. PW6/A. He has identified the copies of the bills.
This witness was cross-examined at length by Ld Addl. PP but without any success, he has specifically denied the suggestion that in the original bills, there was no note at point A as appearing in the photo copies of the bill dated 14.05.1995 and 10.04.1995 or that he made statement to this effect before the 8 police.
It is relevant to mention here that on that day, the original bills were not with the witness. Thereafter, he searched for the original bills and after finding the same, moved an application which was allowed by the court and thereafter this witness was re-examined on 03.07.2008. In reply to the court question, this witness has stated that he searched for his record and found the original of the bills. He tendered the original bills Ex. PW6/B and Ex. PW6/C in evidence and proved the original notice U/s 160 Cr.P.C received by him from Inspector K.K. Kaushik as Ex. PW6/D. This witness was further cross-examined by Ld Addl PP wherein he denied the suggestion that Ex. PW6/B and Ex. PW6/C have been supplied to him by accused Harsh Khurana after his statement was recorded in Court on 05.05.2008. He further denied that he has joined hands with the accused in order to save them.
18. PW7 Ram Kishan was a member of the raiding party and identified his signatures at point X on the seizure memo Ex. PW1/A & Ex. PW1/C. However, he was unable to recollect whose premises was raided or how many samples were taken. Ld Addl PP requested the court to put the leading question to the witness which was allowed but even thereafter, he failed to 9 recognize either the accused persons or the samples which were seized vide above memos.
19. PW10 Shri Rakesh Jain is another public witness who was customer of accused No.1 Harsh Khurana. He has stated that about 12-13 years ago, he received a notice and was called to office near ITO with direction to produce some bills. He took the original bills to the said office and handed over the photo copies of the bills to the officer after showing the original bills. He has stated that he was not having original bills but the seizure memo Ex. PW10/A bears his signatures at point A vide which the copies of the bills Ex. PW10/B to Ex. PW10/D were seizued by that officer. He has stated that accused Harsh Khurana used to supply steel tubes to him and for supply of water, he used to supply ISI Mark tubes whereas for other purpose like fabrication, preparing of sheds etc he used to supply steel tubes without ISI Mark and that accused Harsh Khurana was carrying on business under the name of Banarsi Dass & Co. Hauz Qazi, Delhi and this witness also did not support the case of the prosecution. He was also cross-examined at length by Ld Addl. PP. He has denied having stated before the police that on 25.07.1995, accused Harsh Khurana had come to him after his arrest in this case and taken the originals of Ex. PW10/B to Ex. PW10/D and Mark X on which the portion Mark A to A was not 10 printed on the originals. This witness has also denied the suggestion that accused also used to supply pipes meant for supply of water which were ISI marked or that he has also denied even making false statements to support the accused as he was having business relations with him.
During cross-examination by ld defence counse, this witness stated that the portion A to A appearing on the photo copy was also there on the original and the originals were checked by the officer while taking the photo copies.
20. PW11 Sh. R.N. Aggarwal is also another public witness who has stated that in the year 1995, he was running a firm in the name and style of M/s Nath Hardware and his firm used to purchase steel pipes from the firm of Harsh Khurana.
He has further stated that after registration of this case, he has handed over tto an office in ITO the photo copies of the purchase bill Ex. PW11/A to PW11/C which were seized vide memo Ex. PW11/D bearing his signatures at point A. The witness could not recollect whether the originals had been taken away by somebody. He has further stated that police did not record any statement nor made any inquiry from him.
As this witness also did not support the case of the prosecution, he was cross-examined by Ld Addl PP wherein he denied having made any stateent before the police on 23.08.1995 11 to the effect that accused Harsh Khurana has taken the originals of Ex. PW1/A to Ex. PW1/C on the pretext that he required the same to supply in Sales Tax Department and he handed over the photo copies of the originals to him. He admitted as correct that the rubber stamp impression at point A on Ex. PW11/A to Ex. PW11/C werenot there on the originals but again denied that accused Harsh Khurana had taken away the originals of Ex.PW11/A to Ex. PW11/C. During his cross-examination by Ld defence counsel, this witness has stated that he could not recollect whether he had taken the original bills alongwith him to the said office at ITO but admitted that his firm used to enter the purchase in the stock register and entry in respect of Ex. PW11/A to Ex. PW11/C must have been made and that originals of Ex. PW11/A to Ex. PW11/C were not available being old bills. He has further admitted it as correct that his firm used to purchase ISI Mark as well as non ISI Mark steel tubes and that non ISI Mark tubes used to be purchased for manufacture of sheds, structures, swings, railings etc and his shop being situated in a factory area, there was demand for non ISI Mark steel tubes for above purposes.
21. PW14 Shri D.L. Bholla was posted as Deputy Director with BIS at the relevant time. He has stated that on 12 01.08.1995, he received various samples of different sizes from the Sample Cell of the office for mechanical testing as per ISI standards. He has further stated that he carried out mechanical testing of the samples as per ISI specifications and submitted his report Ex. PW14/A-1 to Ex. PW14/A-13. However, in the court he could not identify the samples to be those which were tested by him and in respect of which he submitted report Ex. PW14/A- 1 to A-13.
During cross-examination by Ld Addl PP he has admitted that sample Ex. PX was the same for which he had given his report Ex. PW14/A-5, as Words (V) (S)(T) have been engraved on the sample. He could not identify the other samples.
During cross-examination by ld defence counsel, this Court observed that even though, there was a marking prior to words (S) (T), it was not completely visible. The witness stated that the words might erode after space of time and that the markings were made after every meter of the pipe and it might be that the carbon impression was taken from a different place.
This witness has further stated during cross- examination that he received samples which were cut into small pieces for purpose of testing and the samples produced in the Court were infact remnants (cut manually) and other material 13 was used in testing by the Mechanical Branch. He has further admitted that ISI Standards prescribed variation in thickness and again said, only a minimum thickness standard is prescribed in the ISI Standard. After seeing the report, he has admitted that he has stated about variation by plus minus 10% in the report and that in the sheet the thickness varies from place to place.
22. PW15 Shri J.P. Mehta, the then Director Central Laboratory, BIS Sahibabad had received steel tube drillings having code of Mechanical Section, for chemical analysis from the Mechanical Section, and after giving their own code to the drillings on each sample, tested them on machines chemically and prepared reports for each sample. He has proved his report Ex. PW15/1 to Ex. PW15/13. He retained the drillings as per the procedure of the lab.
23. PW16 Sh. K.K. Kaushik has stated that on 18.05.1995 while he was posted as the Incharge Anti-Hoarding Cell, Food & Supplies Department, on the basis of information at about 10 AM that a person namely Harsh Khurana of M/s Banarsi Dass & Co. was engaged in sale and purchase of non-ISI mild steel tubes at his business premises 82, Swarn Park, Industrial Area Mundka, Nangloi, he organized a raiding party consisting of Inspector Kamal Sapra, HC Dharam Pal, Const Dharamveer, Sh. P.K. Batra and Sh. K.C. Verma Deputy 14 Directors of BIS, Sh. T.N.Meena Superintendent, Sh. A.K. Rathi and Mr. Seth inspectors from Food & Civil Supplies department, three public witnesses namely Sh. S.K. Punshi, Sh. P.S. Manchanda and Sh. Ram Kishan. The raiding party reached the business premises of Harsh Khurana at 12 noon. Accused Harsh Pal was found present there who introduced himself as Store- keeper/Salesman. The raid was conducted and mild steel tubes of 13 different sizes in huge quanity were found which were not having ISI Mark. The tubes, stickers and record were seized vide memo Ex. PW1/A, Ex. PW1/B and Ex. PW1/C. At about 6.30 PM, accused Harsh Khuran who introduced himself as owner of the premises came and informed that accused Harsh Pal was the store keeper-cum-salesman who was maintaining the record. He prepared rukka Ex. PW16/B and sent the same to PS Nangloi for registration of case through Constable Vijender. Both the accused were interrogated and arrested. Their personal search was conducted vide memo Ex. PW16/C and Ex. PW16/D. The samples could not be sealed as it was not possible to seal them.
He has further stated that 140 invoices which did not contain the stamp impression, seized by Inspector V.S. Malik of Food and Supplies Department, from the office premises of M/s Banarsi Dass & Co were handed over to him on the next day and 15 he seized the same vide seizure memo Ex. PW4/A. The 13 samples were sent to Central Laboratory, BIS, Ghaziabad through constable Dharamvir and report Ex. PW14/A1 to A-13 and Ex. PW15/1 to Ex. PW15/13 were received. He recorded statements of public witnesses and seized photo copies of the invoices which bore stamp that mild steel tubes of non-ISI mark are not meant for agricultural/Indian Airlines and Gas purposes. issued to them by M/s Banarsi Dass & Co vide memo Ex. PW11/D and Ex. PW16/E. He identified the remnants of samples Ex. PW16/X-1 to Ex. PW16/X13.
24. In the statement U/s 313 Cr.p.c, accused No.1 Harsh Khurana, proprietor of M/s Banarsi Dass & Co. has denied the case of the prosecution that he was selling non-ISI mark MST for the purpose specified in the order, violating the provisions of quality control order. His version is that he supplied the steel tubes to the shopkeepers only on the requirement. He did not sell in retail or stored the non-ISI steel tubes for the purpose specified in the quality control order and the BIS officials in connivance with the police made out a false case against him. The bills contained specific endorsement with a note printed there which is on the original as well as on the photo copies to the effect that "Non ISI Marked Mild Steel tube is not meant for water, Gas, Airlines, Steams, Structures & Water Wells. It is 16 only for use in other general purposes".
25. Accused No.2 in his statement has also denied the case of the prosecution that he was employed only to look after the store and maintain record of the goods at the store/godown situated at the aforesaid address of Swaran Park, Mundaka, Nangloi and he has been falsely implicated in this case.
26. DW1 Shri Rajender Gupta has stated that he is also doing hardware business in Seekriwalan, Hauz Qazi, Delhi and he is a retailer. They have an Association of Hardware Wholesaler businessman as well as Retailer with the name of Delhi Steel Tools & Hardware Traders Association (Regd.), Hauz Qazi. He was General Secretary of this Association in the year 1994-95 and that even at the time of his examination as DW1, he was General Secretary. He knew accused No.1 Harsh Khurana who is running a firm under the name of Banarsi Dass & Co. and is also member of above Association which filed a Writ in High Court of Delhi regarding ISI Marking on steel tubes and its users. The said petition was signed by him as General Secretary of the Association which was decided by the High Court vide order Ex. DW1/A (certified copy). After the passing of that order copy of which is Ex. DW1/A, members of the association were advised to get printed on their stationary with regard to user of non-ISI tubes. He has also deposed that M/s 17 Banarsi Dass & Co is a wholesale dealer and supply steel tubes to various traders as per their requirement.
27. On behalf of the State, Sh. S.C. Sharma, Ld Addl. PP has contended that from the report Ex. PW14/A-1 to A-13 and Ex. PW15/1 to Ex. PW15/13, it is established that the samples examined by them were not confirming to the ISI standards. It has also been contended that the members of the raiding party namely Sh. P.K. Batra and Sh. K.C. Verma Deputy Directors of BIS, Sh. T.N.Meena Superintendent, Sh. A.K. Rathi and Mr. Seth inspectors from Food & Civil Supplies department have proved on record that accused No.1 Harsh Khurana was in the business of selling of steel tubes and was proprietor of M/s Banarsi Dass & Co and from his godown, at the time of raid, large quantity of steel tubes were recovered which were not confirming to the ISI Standard and thus violated the quality control order. It has also been contended that it has come in the statement of prosecution witnesses that initially when the bills were issued to the customers by the firm of accused No.1, there was no noting on the bills regarding the use of MST sold vide such bills and subsequently accused No.1 contacted those dealers, obtained the bills from them and replaced them with another bills having the noting "Non ISI Marked Mild Steel tube is not meant for water, Gas, Airlines, Steams, Structures & 18 Water Wells. It is only for use in other general purposes." Ld Addl. PP has submitted that the material on record is sufficient to prove the guilt of the accused persons as accused No.1 was also well aware that non-ISI MST were sold for the specified purpose for which only ISI Mark MST could be sold and there is no mention on the photo copies of the bills as to for what purpose these tubes were sold and in such circumstances, the inference that can be drawn is that these tubes were meant for water etc and thus violated the quality control order. Hence prosecution has been able to prove its case beyond reasonable doubt.
28. On behalf of accused No.1 Harsh Khurana, his counsel Sh. S.P. Minocha has submitted that there is no prohibition for selling or storing for sale for general purpose the Mild Steel tubes which are without ISI mark and that ISI Mark and specifications standard apply only in case of sale of Mild Steel Tubes meant for use in water, gas, airline and steam; that Mild Steel Tube have various uses and the sale of Non-ISI tubes effected by accusedNo.1 Harsh Khurana is only for the use other than the specified purposes covered by the Quantity Control Order. He had stocks of ISI marked tubes also in the godown which were meant for sale for the specified purposes. He has further submitted that IO seized only non-ISI marked tubes for which the specifications standard do not apply, that the property 19 produced in court is discrepant than the goods seized and that there is no identity of what was got tested in the BIS Lab; that there is no evidence that the samples of MST that were tested in BIS Lab failed any standard. It is further submitted that accused No.2 Harish Pal is only an employee of accused No.1 at his godown and that he is not responsible for running the business.
29. On the other hand, Shri S.K. Chachra, counsel for accused No.2 Harish Pal has submitted that it is prosecution's own case that accused No.1 Harsh Khurana was running proprietorship concern and accused No.2 was only his employee and being an employee, he was just discharging his duties and had nothing to do with this case. It has also been contended that the non-ISI mark tubes were sold for general purpose and in these circumstances, accused No.2 cannot be said to have committed any of the offence, hence he be acquitted.
30. I have carefully gone through the rival contentions and also considered the testimony of material prosecution witnesses.
31. The order of Hon'ble High Court passed in Writ Petition No. 3711/93 goes to the route of the case. So, it is necessary to first mention the contents of order Ex. DW1/A and to consider in that light as to whether prosecution has been able to prove that accused persons committed any offence so as to 20 make offence U/s 7 & 10 of the E.C. Act.
32. The Civil Writ Petition No. 3711/93 was filed in High Court of Delhi in Extraordinary Civil Original Jurisdiction by Delhi Steel, Tools and Hardware Traders Association, Steel Tube Dealers' Association, Chetan Steel Pvt. Ltd., Modern Tube Co., Bansal Pipe Co and Sh. Jinender Jain against Union of India and Delhi Administration.
33. In order to appreciate the rival contentions, it is necessary to reproduce the relevant portion of the order which reads as under:
C.W. 3711/1993 & C.M. 5936/1993 The alternative prayer made in prayer clause (a) has been conceded by the Union of India in para 5 of its counter affidavit, which is to the following effect:
"In reply to the contents of para 9 of the writ petition it is submitted that the Quality Control Order is applicable only for three categories of tubes as follows:
(a) For use with water,gas, airline & Steam (IS 1239: Part 1973).
(b) For structural pruposes (IS 1161: 1968).
(c) For water wells application (IS 4270:1967).
According to the Quality Control Order only those tubes which are covered by the standards specified in the Order are to be compulsarily ISI marked. While interpreting the Quality Control Order and applicability thereof, and users as specified against respective ISI Marks 21 covered in the Order are to be taken into consideration."
Accordingly, whenever a dealer uses the said three categories of tubes specified in the notification for the purposes indicated therein will have to bear ISI mark and satisfy the requisite standards but not the tubes to be used for purposes other than that indicated in the notification.
With these observations the writ petition stands disposed of."
34. It is admitted case of the prosecution that accused No.1 Harsh Khurana was wholesale dealer in ISI as well as non ISI Mark MST to the traders as per their requirements. It is nowhere the case of the prosecution that accused could not have stored non ISI Mark MST which can be used for general purposes. There is no evidence on record that accused sold the non ISI Mark MST to any trader for the purpose specified in the order i.e for water, gas, airlines, steams, structures & water wells. Rather it has come on record that non ISI Mark MST were sold only for use in other general purposes vide bills containing specified noting on the bills that "Non ISI Marked Mild Steel tube is not meant for water, Gas, Airlines, Steams, Structures & Water Wells. It is only for use in other general purposes."
35. The three traders namely Anil Chawla (PW6), Sh. Rakesh Jain (PW10) and Sh. R.N. Aggarwal (PW11) examined 22 by the prosecution have specifically stated that they purchased the tubes for general purpose and on their bills, there was special note to that effect. Despite lengthy cross-examination, Ld Addl PP could not extract any support to the prosecution to establish that non ISI Mark tubes were sold to them vide bills without any endorsement/noting to the effect that non ISI mark MST is not meant for the specified purpose. Here, it is pertinent to mention that when PW6 Anil Chawla was examined, original bills were not with him at the time of his examination on 05.05.2009 though he stated having purchased MST from accused No.1, and also seizure of the photo copies of such bills by the police vide memo Ex. PW6/A dated 10.04.1995, bill No. 2817 and 2875 dated 14.05.1995. But fortunately, for the accused persons he could trace out the original bills of above photo copies and appeared in the court again on 03.07.2008 with the originals of above two bills which were proved as Ex. PW6/B and Ex. PW6/C. The comparison of the photo copies which were seized by the prosecution in the year 1995 vide memo Ex. PW6/A with the original bills Ex. PW6/B and Ex. PW6/C alongwith the original notice Ex. PW6/D served by the police U/s 160 Cr.p.c proves beyond reasonable doubt that it is not the case where the accused had taken the original bills from him or other traders and replaced them with the bills having noting to the effect "Non ISI 23 Marked Mild Steel tube is not meant for water, Gas, Airlines, Steams, Structures & Water Wells. It is only for use in other general purposes".
36. Surprisingly Ld Addl PP on seeing that original bills alongwith original notice U/s 160 Cr.P.C could be traced out and produced by this witness Anil Chawla, suggested during cross- examination that accused Harsh Khurana had supplied Ex. PW6/B and Ex. PW6/C to him after the statement of this witness was recorded in the court on 05.05.2008. If the prosecution was so apprehensive that after 05.05.2008, another set of original bills have been supplied by accused No.1 to PW6, then nothing prevented the prosecution to send the same to CFSL to ascertain their age and then prosecute accused No.1 as well as the witness for tampering with the evidence. This suggestion could not have been given by the prosecution nor this plea could have been taken for the simple reason that even the photo copies seized in the year 1995 vide seizure memo Ex. PW6/A contained the similar note. So, the entire case of the prosecution that while selling non-ISI Mark MST, the accused did not mention any such note on the bills and added subsequently after his arrest in this case, is falsified from prosecution's own documents and seizure memos. It is not the case of the prosecution that on the judicial record also, the accused has replaced the photo copies with 24 another set of photo copies. Nor IO or anyother prosecution witness stated so before the court rather their evidence is that photo copies Ex. PW6/E and PW6/F were produced by PW Anil Chawla and seized vide memo Ex. PW6/A on 14.08.1995.
37. Once it is established on record that even in the year 1995, the non ISI Mark MST were being sold by accused No.1 by duly mentioning on the bills at portion A that "Non ISI Marked Mild Steel tube is not meant for water, Gas, Airlines, Steams, Structures & Water Wells. It is only for use in other general purposes". The entire case of the prosecution that he was violating the quality control order by selling Non ISI Mark MST for specified purpose like water, gas airlines, steams, structures and water wells and not for general purpose has to be rejected.
38. The statement of DW1 Shri Rajender Gupta the General Secretary of Traders Association and certified copy of order of Delhi High Court Ex. DW1/A clearly proves that only when a dealer is selling MST for the purpose specified in the notification, that the MST has to be ISI Marked and satisfy the requisite standards and not otherwise. The various vouchers regarding sale of MST by accused persons to different traders bear the noting to this effect. There is no evidence on record that Sh. Anil Chawla, Sh. Rakesh Jain and Sh. R.N. Aggarwal 25 purchased non ISI Mark tubes from accused No.1 for the specified purpose which required them to conform to ISI Standards.
39. So far as accused No.1 is concerned, the prosecution has miserably failed to prove its case either against accused No.1 who as proprietor was wholesale trader in MST and so far as accused No.2 is concerned, he being only an employee of accused No.2 was just performing his duties as godown keeper and maintaining the record and the stock of ISI as well as non ISI Mark MST. There is no evidence on record to suggest that the accused persons had been selling non ISI Mark tubes not for the general purpose but for the purpose specified in the quality control order.
40. In view of above discussion as prosecution has not been able to prove its case against any of the accused beyond reasonable doubt, both the accused persons are acquitted of the charges leveled against them. Their bail bonds stand canceled. Their surties are discharged. Case property, if any, be confiscated to State after expiry of period of appeal. File be consigned to Record Room.
Announced in open court 10.09.2009 (PRATIBHA RANI) DJ-III-cum-I/C ASJ (West)/Delhi 26 27 IN THE COURT OF SMT. PRATIBHA RANI, DJ-III-
CUM- I/c ASJ (WEST), DELHI *** GP No.43/08 Mrs. Sunita Chauhan, D/o Mr. Ayodhya Prasad, R/o Flat 58, Henery Brierley House, Walden Street Whitechapel, London, E1 2 RB .... Petitioner Versus Mr. Sudesh Pal Singh Chauhan, S/o Mr. Harpal Singh Chauhan, R/o Village Dhana Devli, Post Office & Police Post, Simbhaowli, Distt. Ghaziabad, UP ..... Respondent Date of institution of petition :02.06.08 Date of arguments : 02.09.09 Date of pronouncement of judgment:
J U D G M E N T:
This is a petition filed U/s 7 of the Guardians and Wards Act, 1890 by Smt. Sunita Chauhan impleading her husband Shri Sudesh Pal Singh Chauhan as respondent praying that she be appointed as guardian of her two minor sons Lushkar and Lovneesh aged about 15 and 11 years respectively for their welfare and interest.
Briefly stating the case of the petitioner is that she married the respondent on 25.01.1992 and marriage was registered on 25.03.1992 at District Court Ghaziabad. Out of 28 the wedlock, two sons Lushmar and Lovneesh were born on 27.02.1993 and 09.01,1997 respectively and are under the care and custody of the petitioner and studying in Delhi Public School, Pinjor. The petitioner is working as Senior Diagnostic Radiographer in London Chest Hospital on monthly salary of 3800 pounds.
The reasons for preferring this petition for being appointed as guardian by the petitioner who is the mother of two minor children is the ill-treatment meted out to her by the respondent and other family members. The respondent was not caring for the needs of the petitioner or her two sons and used abusive and derrogatory language. She tolerated all the insult for about 15 years to save the marriage and in the interest of two minor sons. Various incidents of cruelty and maltreatment are mentioned in the petition which are not so relevant for purpose of disposal of this petition but, only give a background as to why the petitioner started living separately from her husband and got a job in London after getting admitted her two sons at DPS Boarding School.
The petitioner returned to India on 13.04.2007 and applied for new passport for the minors and after obtaining the passports applied for their visa on 28.04.2007 for which appointment for an interview was held on 03.05.2007. The 29 Visa Officer also disclosed that the embassy had received an anonymous e-mail stating that marriage of the parties no more subsisted and visa should not be issued to the children. The petitioner informed the Visa Officer that though there were problems in the marriage but they were not legally separated and for the sake of children's future granted a month's time to petitioner to obtain NOC from her husband as the policy of the embassy was not to issue visa to the minors without the consent of both the parents.
The petitioner returned to London on 06.05.2007 and resumed her office on 08.05,2007. On 08.05.2007, she found the respondent at her house in a drunken state and on 09.05.2007, she left for her office leaving the respondent at her home. In the evening respondent was found missing and on the next date, she was informed by an employee of Gurudwara about the message for her that respondent wanted to return India if she co-operate in clearing his name in all the criminal cases pending with the Metropolitan Police London. In order to have the company of her sons, she acceeded to this demand also and return to Delhi on 17.05.2007 alongwith the respondent to meet the Visa Officer but before the Visa Officer, the respondent again took a summersault that petitioner was married to someone else in UK and he did not 30 want visa to be issued to the children, hence the Visa Officer retained the passport of respondent and the minors for further enquiry and necessary action. The petitioner alongwith their children stayed in a hotel from 18.05.2007 to 25.05.2007 but respondent again went missing on the very first day of checking in that hotel and on 28.05.2007, called the petitioner on Cell Phone for compromise at his parental home but there also, he changed his colour and hit the petitioner with iron rod in front of his family members and other villagers. Matter was reported to the police but again on the advise of the police, was compromised being a family matter. The petitioner returned to London in June, 2007 and again the harassment at the hands of respondent continued and she filed a suit for divorce in Delhi. Since 28.05.2007, the respondent had not made any efforts to meet the two sons and she alone is meeting with all the requirements of the minor and want to take them to UK i.e her work place but on account of hurdles created by the respondent, she is not able to take them along though she is in position to provide them food, education and good environment whereas respondent is person with criminal bend of mind and deeply involved in various criminal activities and then in the interests of minors that the petitioner who is mother is appointed as their guardian.
31
Notice of the petition was issued to the respondents and citation was also affixed on the Notice Board of the Court House. Respondent failed to appear despite service by way of publication in `The Statesman' of its issue dated 23.05.2009 and was proceeded ex-parte on 01.07.2009.
In the ex-parte evidence, the petitioner has filed her own affidavit Ex. PW1/A and also placed on record documents Ex. PW1/1 to Ex. PW1/19.
On behalf of the petitioner, it has been contended that the mother despite natural guardian was compelled to file this petition for the reason that the respondent who is husband of the petitioner and father of two minor children was not giving consent at the time when Visa was applied for two minor children and the reason is that they have been put in a boarding school in Pinjore and all the expenses are being born by the petitioner only. It has also been contended that no doubt father has preferential right to be appointed as guardian of two minor children but welfare of children is paramount consideration of the court while declaring any person as guardian.
It has also been contended that respondent is having criminal bend of mind as is evident from Ex. PW1/8 & PW1/10 and two FIRs have also been registered against the respondent 32 regarding murder and kidnapping. He has not contributed at all in effective upbringing of the minors who have been brought up single handedly by the petitioner and she is capable of providing good education to her children and also to take them to London and got them admitted there in a good school. Reliance has been placed upon judgment reported in 67 (1997) Delhi Law Times 91 Ashok Kumar Dogra Vs. Ashra Dogra & 67 (1997) Delhi Law Times 93 United India Insurance Co. Ltd Vs. Escptrac Finance & Investment Co. Ltd in support of the contention that paramount consideration is welfare of child while appointing guardian and not legal right of the parent.
33
Section 7 of the Guardians & Wards Act provides that for appointment of the guardian, paramount consideration is the welfare of the minor. An application under Section 7 must be decided in the discretion of the court after due consideration of the matters provided under Section 17 of the Act, namely the personal law of the minor, the age, sex and religion of the minor, the character and capacity of the proposed guardian, the wishes if any, of a deceased parent, any existing or previous relations of the proposed guardian with the minor or his property and the wishes of the minor if he is old enough to form an intelligent preference. Section 26 relates to the removal of ward/ minor outside the jurisdiction of the court. Permission to remove the minor outside the jurisdiction of the court may be granted for good and sufficient grounds especially for the welfare of the minor.
10. It is clear from the pleadings and evidence adduced on record that the petitioners were married on 07.7.68 in Leeds, England and from their wedlock, no child was born. Perusal of statement of petitioner no.1 and the documents placed on record shows that minor male child namely Lakhbinder Singh was found abandoned by Mahant Charanjeet Singh, Incharge of 'Bal 34 Berdh Sewa' at the stairs of branch office in Tilak Nagar, New Delhi. Mahant Charanjeet Singh and the workers of Bal Berdh Sewa tried their best to locate the parents of newly born abandoned child, but could not succeed. Since 10.12.96, the said child remained in the custody and care of Bal Berdh Sewa. It is also evident that the petitioners have already adopted the minor on 14.09.01 vide Adoption Deed Ex.PW1/1 which is duly registered and since then they are brining up the child. In view of the provisions of Section 7 (3) of the Guardians & Wards Act, once the petitioners have been appointed as guardian of the minor, there is no necessity for appointment of the petitioners as the guardian of the minor child by the Court. Hence, the prayer of the petitioners for their appointment as guardian of the minor cannot be accepted. As regards the prayer of the petitioners for permission to remove the child outside the jurisdiction of this Court is concerned, it is evident from the record that the petitioners are resident of Canada and are residing there and the child is also under their care and custody since 14.9.01. It will be in the welfare of the minor if he is permitted to live with the petitioners at Canada. Accordingly, I allow the petition of the petitioners u/s 26 of the Guardians & Wards Act and petitioners are permitted to remove the child outside the jurisdiction of this court for the purposes of his eventual adoption according to the 35 local laws of the country to which the petitioners are the subject. The petitioners are directed to execute a surety bond in the sum of Rs.3,50,000/- (Rupees Three Lakhs Fifty thousand only) with an undertaking to produce the said child before this Court as and when required and to send his quarterly progress reports to this court and also to respondent No.1 for a period of two years and half yearly progress reports for the next three years, or until his adoption is complete, according to the laws of their country, whichever is earlier. Necessary certificate be issued in favour of the petitioners. File be consigned to record room. Announced in the open court 20.08.09 (PRATIBHA RANI) DJ-III-cum-I/c ASJ (West)/Delhi 36 IN THE COURT OF SMT. PRATIBHA RANI, DJ-III-CUM-ASJ (WEST), DELHI *** SC No. 168/07 State Vs. 1. Rukmani W/o Arjun, R/o Paker Sangh, PS Latoor (Rural) District Latoor (Maharashtra) (PO)
2. Kamlesh alias Rajo, D/o Sh. Tuka Ram, R/o Kotha No.40, II Floor, Right Side, G.B. Road, Delhi
3. Fatima D/o Khawaja Mina, R/o Kotha No.40, II Floor, Right Side, G.B Road, Delhi FIR No. 609/2006 PS Kamla Market U/s 365/366/368/323/328/120-B, 342, 376, 109,354,396, 357/34 IPC & S. 3,4,5 & 6 of Immoral Traffic Prevention Act Date of Institution: 10.11.2006 Date when reserved for orders:
Date when order pronounced:
JUDGMENT Accused Rukmani, Kamlesh and Fatima have been sent to face trial for committing offence punishable U/s 365/366/368/323/328/120-B/342/376/109/354/396/357/34 IPC & S. 3,4,5 & 6 of Immoral Traffic Prevention Act.
In brief, the case of the prosecution is that on 05.09.2006, the complainant Puja came to the Police station Kamla Market and lodged her report which is to the effect that 37 12 years prior to lodging of FIR, she was got married to one Dinesh and had two children. When she was pregnant second time, she was deserted by her husband and she used to earn her livelihood by working as labourer at Shivaji Chowk, Latoor.
About seven years prior to that date, when she went to fetch some work at Shivaji Chowk, she could not get any work on that day, and she alongwith her two children was sitting in a sad mood. At about 11 AM, one lady whose name was revealed as Rukmani came to her and asked about the reason for her sadness and on coming to know that she could not get work on that date, she took her to a hotel and served her tea. After taking tea, she started feeling giddiness and became unconscious. The lady Rukmani took her to Shivaji Nakka Railway Station and from there, she was made to sit in Railgadi. When she regained consciousness, she asked Rukmani as to where she was taking her to which Rukmani answered that she was being taken for providing good job. After getting down from the train, she came to know that she was brought to Delhi and in Delhi, one night was stayed at Zoo and next day, two other ladies namely Rajo and Shanti came to meet them and subsequently, she came to know that she was on Kotha No.40. Those two ladies talked to Rukmani and then on the pretext of providing some work, she was taken by them. On the way, Rukmani got down and Rajo 38 brought her to Kotha No. 40 where she ultimately came to know that she was brought to a brothel. When she refused to work as prostitute, she was informed that she had been purchased for Rs. 3,000/- from Rukmani and unless that amount is paid, she will not be allowed to move. She was physically tortured and even her two children were treated with cruelty to compel her to indulge into prostitution and what were hear earnings from prostitution was shared by one Shanti and Fatima, and she also became patient of tuberculosis and tested HIV positive. After she stayed in that Kotha for about two years, they started trusting her and one day on finding opportunity, she ran away from there. On 21st August, when the complainant was present at the Railway Station, she saw Rukmani alongwith one girl whose name subsequently was revealed as Pushpa. On suspecting that Rukmani might have brought that girl also by inducing her like the complainant herself was brought, she informed the police and got the accused Rukmani arrested and prayed for legal action against her.
During investigation, accused Kamlesh alias Rajo and Fatima were also arrested. It was also revealed during investigation that accused Shanti who also compelled the complainant Puja to indulge into prostitution had expired due to collapse of roof and her husband namely Fauji who used to 39 torture the complainant during her stay at Kotha No.40 could not be traced out. After completion of investigation, charge sheet was filed against accused Rukmani, Kamlesh and Fatima.
After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.
Accused Rukmani absconded during the trial and as such, she was declared PO.
After hearing on the point of charge, accused Kamlesh and Fatima were charged on 07.04.2008 for the offence punishable under Sec.368/323/376 r/w S. 109 IPC and Section 4 & 6 of ITP Act to which they pleaded not guilty and claimed trial.
Prosecution has examined seven witnesses in support of its case.
PW2 HC Ajay Kumar was working as Duty Officer at the relevant time who on the basis of statement made by complainant Puja @ Chyanderkala Kamle recorded the FIR of this case. He has proved copy of FIR as Ex.PW1/A. After registration of the case, further investigation was marked to Inspector Rakesh Giri to whom he handed over the copy of FIR.
PW3 HC Kamlesh joined the investigation of this case with Inspector Rakesh Giri, SHO, PS Kamla Market and SI K.P. Singh and alongwith them and the complainant Pooja went 40 to kotha No.40, G.B. Road and on the pointing out of complainant Pooja, IO prepared the site plan and also made efforts to trace the accused persons but could not succeed. On the directions of Inspector Rakesh Giri, he alongwith SI K.P. Singh took complainant Pooja to LNJP hospital and got her medically examined there. After medical examination, the doctor handed over the pullanda of vaginal swab which were seized by the SHO vide memo Ex.PW1/C. On 14.9.2006 accused Rukmini (P.O.) was taken on police remand and was interrogated by the SHO in the police station. At that time, one lady came to the PS who was identified by accused Rukmini as Kamlesh @ Rajo who had met her at Chidiya Ghar Park alongwith one Shanti. Complainant Pooja also came to the PS and she had also identified the accused Kamlesh as the person who had taken her away to kotha No.40, G.B. Road and compelled her for prostitution. Accused Kamlesh was arrested vide memo Ex.PW1/D and her personal search was conducted vide memo Ex.PW1/E. Her disclosure statement was recorded.
On 18.10.2006 accused Fatima was arrested at PS Kamla Market vide arrest memo Ex.PW3/A and her personal search was conducted by him vide memo Ex.PW3/B and her disclosure statement Ex.PW3/C was recorded. 41
PW4 SI K.P. Singh has deposed that on 5.9.2006, he joined the investigation of this case and he along with Inspector Rakesh Giri, SHO, PS Kamla Market and Lady HC Kamlesh and complainant Pooja went to kotha No.40, G.B. Road and on the pointing out of complainant Pooja, IO prepared the site plan and also made efforts to trace the accused persons but could not succeed. He alongwith Lady HC Kamlesh took the complainant Pooja to LNJP hospital and got her medically examined there. After medical examination, the doctor handed over the pullanda of vaginal swab to Lady HC Kamlesh which were handed over to the SHO and were seized vide memo Ex.PW1/C. On 13.9.2006 accused Rukmini (PO) was arrested with the permission of the Court as she was produced from J/C, vide arrest memo Ex.PW4/A and one day police custody remand of accused Rukmini was obtained. The accused Rukmini was interrogated by the IO and her disclosure statement Ex.PW4/B was recorded.
On 14.9.2006 accused Rukmini (P.O.) was again interrogated by the SHO in the PS and when IO was interrogating the accused Rukmini, one lady came to the PS who was identified by accused Rukmini as Kamlesh @ Rajo who had met her at Chidiya Ghar Park alongwith one Shanti. Complainant Pooja also came to the PS and she had also 42 identified the accused Kamlesh as the person who had taken her away to kotha No.40, G.B. Road and compelled her for prostitution. Accused Kamlesh was arrested vide memo Ex.PW1/D and her search was taken by Lady HC Kamlesh vide memo Ex.PW1/E. Accused Kamlesh was interrogated and her disclosure statement Ex.PW1/G was recorded. Accused Rukmini and Kamlesh were got medically examined and thereafter they were produced before the Court from where they were sent to J/C. On 18.10.2006, accused Fatima came to the PS alongwith one Ashok. Accused Fatima was interrogated and arrested vide arrest memo Ex.PW3/A and her personal search was conducted by Lady HC Kamlesh vide memo Ex.PW3/B. Her disclosure statement Ex.PW3/C was recorded. Thereafter accused Fatima was released on bail as she was granted anticipatory bail by the Court. Accused Fatima also produced the documents regarding electricity bill Ex. PW4/C2 and documents Ex. PW4/C1 (colly), relating to death of Shanti Devi which were seized by the IO vide memo Ex.PW4/C. PW5 Dr. Rupali Bassi Goyal has proved the MLC Ex. PW1/B bearing No. 7210 of Pooja @ Chander Kala.
PW6 Sh. P.S. Mehta, then then AG-I BSES Yamuna Power Ltd. Division Chandni Chowk has deposed that electricity 43 connection No. K-1110-1646-0334 (old number) was installed at H.N. 40, G.B. Road, Delhi in the name of Smt. Fatima Bee.
PW1 Pooja, the complainant has stated tht she got married to Dinesh about 14-15 years ago and had one son aged about three years when she was deserted by her husband. She had been living separately from her husband for about 8-9 years. She has further stated that one day when she was sitting as she did not get work on that day, one lady came to her and asked about the reason of her sadness. On being told that for not getting the work, she was sad, Rukmani offered her tea and thereafter she started feeling giddiness and was not able to understand what was going on. When she regained her senses and asked from Rukmani as to where she was being taken, Rukmani informed that she would provide her good job and brought her to Delhi. There, Rukmani took her to Chidiya Ghar. Two ladies came to meet Rukmani at Chidiya Ghar. Identity of one of them was revealed as Rajo alias Kamlesh and that of another as Shanti. She was made to sit in TSR by the three ladies and taken to house of Rajo who kept her for a week in her house and then accused Rukmani and Rajo took her in TSR to some place. On the way, Rukmani got down and Rajo brought her to Kotha No.40. On seeing the environment there, she insisted to go back as she did not want to indulge in prostitution 44 but was given beatings by Shanti and Rajo. Even her daughter was given beatings. Thus leaving no option before her but to indulge in prostitution and for five years, she continued indulging into prostitution but thereafter, she fell ill but was not getting any treatment rather she used to be beaten for not assisting the customers. PW1 has further stated that she had come to know that Rukmani sold her for Rs. 3,000/- which she was supposed to pay if she wanted her released but her earning from prostitution used to be shared by Shanti, Fatima and Rajo. One day, when she got the opportunity to run from the Kotha she escaped and met one person namely Rishi Kant who was from some organization. She sought his help. He took her to some hospital where she was tested and found suffering from TB and also tested HIV positive. While under treatment, when she was going to take medicines and was present at New Delhi Railway Station, she happened to see Rukmani with another girl who was speaking Marathi. On fearing that the girl brought by Rukmani would meet the same fate as that of her, she decided to save that girl and informed PCR. The police arrived and she narrated the entire incident to police. The FIR Ex. PW1/A was registered by the police. She was got medically examined vide MLC Ex. PW1/B. Thereafter, she was taken to Kotha No. 40 by the police where site plan was got prepared but accused Fatima, Rajo and 45 Shanti were not there. After sometime accused Rajo was arrested by the police on her identification vide arrest memo Ex. PW1/D and her personal search was conducted vide memo Ex. PW1/E. Accused Fatima was also got identified by her and was arrested in this case.
PW7 Inspr. Rakesh Giri was the IO of the case. He has deposed that on 5.9.2006, complainant Pooja came to the PS and got recorded her statement to the duty officer which was recorded vide FIR No.609/06, copy of which is Ex.PW1/A. He alongwith SI K.P. Singh, Lady HC Kamlesh and complainant Pooja went to kotha No.40, G.B. Road and on the pointing out of complainant Pooja, he prepared the site plan Ex.PW7/A and made efforts to trace the accused persons but could not succeed. SI K.P. Singh and Lady HC Kamlesh took the complainant Pooja to LNJP hospital and got her medically examined there. After medical examination, the doctor handed over the pullanda of vaginal swab to Lady HC Kamlesh which were seized by him vide memo Ex.PW1/C. On 13.9.2006, accused Rukmini (PO) was arrested with the permission of the Court as she was produced from J/C, vide arrest memo Ex.PW4/A and one day police custody remand of accused Rukmini was obtained. She was interrogated and her disclosure statement Ex.PW4/B was recorded. 46
On 14.9.2006, when he was interrogating the accused Rukmini, one lady came to the PS who was identified by accused Rukmini as Kamlesh @ Rajo who met her at Chidiya Ghar (Zoo) Park alongwith one Shanti. Complainant Pooja also came to the PS and she also identified the accused Kamlesh as the person who took her away to kotha No.40, G.B. Road and compelled her for prostitution. Accused Kamlesh was arrested vide memo Ex.PW1/D and her personal search was taken by W/HC Kamlesh vide memo Ex.PW1/E. Her disclosure statement Ex.PW1/G was recorded. Accused Rukmani and Kamlesh were got medically examined.
On 18.10.2006, Accused Fatima came to the PS alongwith one Ashok. Accused Fatima was interrogated and arrested vide arrest memo Ex.PW3/A . Her personal search was conducted by W/HC Kamlesh vide memo Ex.PW3/B and her disclosure statement Ex.PW3/C was also recorded which bears my signature at point-C. Thereafter accused Fatima was released on bail as she was granted anticipatory bail by the Court. Accused Fatima also produced the documents regarding electricity bill and documents relating to death of Shanti Devi which were seized by me vide memo Ex.PW4/C. During investigation the copy of Notification Ex. PW7/B from Home Department regarding the competency of 47 investigation in such cases to be conducted by officer of the level of SHO was collected. After completion of investigation charge sheet was filed.
48
IN THE COURT OF SMT. PRATIBHA RANI, DJ-III-CUM-ASJ (WEST), DELHI *** SC No. 84/08 State Vs. Lala Ram S/o Sh. Babu Ram R/o Jhuggi Basti Riksha Garrage, Near Rama Hotel, Dev Nagar, Delhi FIR No. 207/2008 PS Desh Bandhu Gupta Road U/s 363/366/376 IPC Date of Institution: 10.09.2008 Date when reserved for orders:
Date when order pronounced:
JUDGMENT Accused Lala Ram has been sent to face trial for committing offence punishable U/s 363/366/376 IPC on the basis of complaint made by Shri Mammu, father of the prosecutrix.
As per the complaint Ex. PW1/A, the complainant alongwith his family resided at Jhuggi Basti, near Rama Hotel, Dev Nagar and is having 8 children i.e five sons and three daughters. His eldest daughter (name of the victim withheld to conceal her identity) left home on 11.7.2008 at about 3-4 PM for toilet. At that time, his wife was also not at home as she has gone to the market to purchase some articles and he also left home to buy medicine for him. On return, he found that his eldest daughter was missing. On making enquiry from the neighbourers, no information about his daughter could be 49 gathered. After leaving the description of the prosecutrix, he expressed suspicion on accused Lala Ram, a Thekedar, who was also residing in the adjoining jhuggi and was missing at that time, to be the person who has induced his daughter and taken her away to some unknown place and he prayed for legal action against Lala Ram.
Initially a case U/s 363 IPC was registered by the police after recovery of the prosecutrix and on the basis of her statement made by her, Section 366/376 IPC were also added. During investigation, accused as well as prosecutrix were sent for medical examination and accused Lala Ram was interrogated in this case. After completion of investigation, charge sheet was filed.
After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.
After hearing on the point of charge, accused was charged on 16.12.2008 for the offence punishable under Sec.363/366/376 IPC to which he pleaded not guilty and claimed trial.
5. Prosecution has examined 8 witnesses in all in support of its case. Accused has also been examined under Sec. 313 CrPC to enable him to explain the evidence appearing against him. Accused has stated that he has been falsely implicated in 50 this case at the instance of parents of prosecutrix. He has further stated that prosecutrix was major at that time and wanted to marry him but due to caste difference, her parents did not agree for their marriage.
Out of eight witnesses, PW4 HC Sajni was working as duty officer at the relevant time. She has deposed that at about 9.20 AM, on receipt of rukka from SI Jeewan Singh, she recorded FIR No. 207/2008 computerized copy of which is Ex. PW4/A. She made endorsement Ex. PW4/Bon the rukka regarding registration of the case and handed over the copy of FIR and original rukka to SI Jeewan Singh as further investigation was marked to him.
PW5 Constable Sanjay Singh alongwith SI Jeewan Singh and parents of the prosecutrix went to House No. 123, Block No. A, Sector-4, Bawana where accused Lala Ram and prosecutrix were found present. Accused Lala was apprehended and arrested vide memo Ex. PW1/C. His personal search was taken. The recovery memo of the prosecutrix was also prepared. Both were got medically examined. On 21.8.2008, on the direction of IO, he obtained the sealed pullandas from MHC (M) and deposited the same in the office of FSL, Rohini vide RC No. 33/21 and handed over the receipt to the MHC (M).
PW6 HC Jagdish Prasad was working as MHC (M) at 51 the relevant time with whom 12 pullandas alongwith sample seal and form FSL were deposited by SI Jeevan Singh and he made entry to this effect in register No.19 at S.No. 1494 copy of which has been proved as Ex. PW6/A. He has further deposed that on 21.8.2008, he sent 12 sealed parcels alongwith two samples to FSL Rohini vide RC No. 33/21 through Constable Sanjay regarding which he made endorsement in register No.19. He has also proved photo copy of Road Certificate as Ex. PW6/B. PW7 Lady constable Sanyogita got the prosecutrix medically examined. She has stated that the sealed pullandas and MLC of prosecutrix were handed over to her by the doctor and she handed over the same to IO. She has further stated that the pullandas were seized by the IO vide memo.
PW1 Mammu (Complainant) has deposed that he has eight children i.e. three daughters and five sons. On 11.7.2008 at about 3.00/4.00 PM, his eldest daughter aged about 15 years went to ease herself. He had gone out of the house and his wife was also out of house for purchasing vegetables and household items. At about 4.00 PM when he came to his house, his daughter was not in the house. He searched for her in the neighbourhood but could not succeed and on 12.7.2008 he reported the matter to the police in the PS and got recorded his statement Ex.PW1/A in which he expressed suspicion on the 52 accused Lala Ram regarding missing of his daughter as the Lala Ram was not found present at his jhuggi. Thereafter on 13.7.2008 he along with his wife and the police went in search of accused and his daughter at the site of the accused where he used to do the work of contractor at Bawana, where his daughter and Lala Ram were found present. Police apprehended the accused and recovered his daughter vide recovery memo Ex.PW1/B. Accused Lala Ram was arrested vide arrest memo Ex.PW1/C. His personal search was also conducted vide memo Ex.PW1/D. His daughter and accused were got medically examined at LHMC. The doctor handed over the sealed pullandas which were seized by the police vide memo Ex.PW1/E & Ex.PW1/F. PW2 Smt. Genda Rani, mother of prosecutrix has deposed that on 11.7.2008 in the evening at about 4.00/ 5.00 PM she had gone outside her house to bring household items and at that time her daughter was in the house. When she returned, her daughter was not found present in the house. It was revealed that she had gone to ease herself outside the house but she did not return. Search for her was made by her and her husband in the locality but she could not be traced. They had suspicion on accused Lala Ram as he was not present in his house. Her husband reported the matter to the police, but on the next day her daughter was recovered by the police in their from Bawana 53 who was with the accused Lala Ram.
After putting certain questions to test her understanding, prosecutrix was examined on oath as PW3.
She has deposed that on 11.7.2008 at about 4.00/ 4.30 PM, she had gone outside her house to ease herself and coming back. On the way, accused Lala Ram met her. He was residing near their jhuggi. He asked her to accompany him to meet her maternal uncle who was working with the accused. Thereafter the accused took her to a kothi in Bawana which was unoccupied and her maternal uncle was not there. She asked the accused to leave her at her house but he refused and offered to marry her. She could not understand what answer was to be given so she neither said 'Yes' nor 'No' at that time but subsequently she said 'No'. She remained there as she did not know the way to her house. During night at about 1.00 am or 2.00 am, the accused committed rape twice after removing her clothes. She tried to run away from there but could not succeed. Next day in the morning she again asked the accused to drop her at her house but he remained silent and thereafter she was kept in a bolted room. Police alongwith her parents reached there and recovered her from that kothi and accused Lala Ram was also apprehended from some nearby place. She was got medically examined at LHMC. She was produced in the Court 54 and her statement Ex. PW3/A was got recorded, 55 56