Delhi District Court
Sc No.06-09 (State vs . Narain Bhol & Ors.) on 5 May, 2011
SC No.06-09 (State Vs. Narain Bhol & Ors.)
IN THE COURT OF SHRI DINESH KUMAR SHARMA
ADDL. SESSIONS JUDGE02(SOUTH)
SAKET COURTS : NEW DELHI.
SC NO. 06/09
Unique Case ID No. 02403R0326622008
State Vs. 1. Narayan Bhol @ Nitin
S/o Sh. Mohinder Bhol
R/o 17/17, Rafia Marg, Sangam Vihar
New Delhi.
2. Bacchu Rao @ Rahul
S/o Sh. Late Kapali Rao
R/o A2, Jaya Apartments, Mehrauli
Delhi.
3. Sanjay Mandal
S/o Sh. Chandi Mandal
R/o A2, Jaya Apartments, Mehrauli
Delhi.
4. Sudha
W/o Sh. Subhash
R/o D16, Balramm Nagar, Loni
Distt. Gaziabad, UP.
5. Simran @ Anjali
W/o Sh. Ismail
R/o 16/18, Khanpur
Delhi.
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SC No.06-09 (State Vs. Narain Bhol & Ors.)
6. Rakesh Mathur @ Raj
S/o Sh. Raghubir Singh
R/o E5, Ambedkar Vihar, Johripur
PS Karawal Nagar, Delhi.
FIR No : 86/08
P.S. : Defence Colony
u/Ss. : 372 IPC & Sec. 5 ITP Act
Date of Institution : 17.01.20009
Arguments Concluded on : 03.05.2011
Date of Decision : 03.05.2011
JUDGMENT
Accused persons have been charged for the offence u/S.372 IPC and 5 Immoral Traffic (Prevention) Act [in short "ITP Act"].
1.0 Ms. Roma Deboratta (PW9), president STOP, an NGO, dealing with the menace of illegal human trafficking filed a complaint, Ex.PW9/A with ACP, Crime Branch, R.K. Puram that her organization has received an information through a source that Narayan Bhol @ Rahul with the help of Rakesh Mathur, Bacchu Rao and Sanjay Mandal are involved in illegal human trafficking. The offenders were procuring the girls through some pimps. NGO arranged a meeting with the accused persons under the garb of Page 2 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) birthday party, facilitating them to supply the girls to some foreigners and to finalize the rate and other conditions. On receipt of this complaint, ACP Jasbir Singh Malik (PW18) formed a raiding party in association with Insp. B.S. Jhakar (PW16) and other police officials including SI Sanjeev (PW15), Ct. Narender (PW14), PW13, Tashkeel Khan (PW10) and Jai Nagraj (PW8), W / HC Suman (PW7) and other officers. SI Rajpal and SI Sanjeev were deputed as decoy customers with Tashkeel Khan and Jai Nagraj. SI Rajpal was briefed to give an indication after being satisfied that the accused persons are involved in illegal human trafficking / prostitution. NGO, STOP had planned that the girls would be brought at 2nd Floor, MB Restro Bar, Defence Colony, whereby the girls along with accused persons and NGO officials would meet in the garb of birthday party. At around 4:30 pm, accused persons started reaching to MB Restro Bar along with minor girls and at 6:30 pm, SI Rajpal informed ACP Jasbir Singh Malik. On this, the police party conducted a raid and apprehended the accused persons along with 7 girls with the help of lady Constable and staff. The NGO officials and police officials stated that accused persons had brought 7 minor girls. Out of them 4 were stated to be virgin. Accused persons quoted Rs.1 lakh for Nisha Gupta, Rs.1 lakh for Koyal, Rs.1 lakh thirty thousand for Ashu, Rs.1 lakh twenty five thousand for Sapna, Rs.80,000/ for Sonu Kumar, Rs.50,000/ for Reena and Rs.60,000/ for Roopa for sexual gratification. Accused persons also stated that they can supply 3 more girls and for that, they would charge Page 3 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) Rs.3 lakhs. The girls were to be supplied only during night hours from 9 pm to 5 am. ACP Jasbir Singh Malik made an endorsement Ex.PW18/A and sent Ct. Narender (PW14) for registration of the case. A case FIR No.86/08, Ex.PW16/J was registered. Accused persons were arrested vide arrest memos Ex.PW10/A (Sanjay Mandal), Ex.PW10/B (Bacchu Rao), Ex.PW10/C (Rakesh), Ex.PW10/D (Nitin), Ex.PW10/E (Sudha) and Ex.PW10/F (Simran) and their personal search were conducted vide memos Ex.PW10/G (Sanjay Mandal), Ex.PW10/H (Bacchu Rao), Ex.PW10/I (Rakesh), Ex.PW10/J (Nitin), Ex.PW7/A (Sudha) and Ex.PW7/B (Simran). The rescued girls told that they were brought by the accused persons in the name to attend a birthday party at MB Restro Bar, Defence Colony and they did not know that they were brought to the place for illegal human trafficking for the purpose of prostitution. The girls came to know only when they were being interviewed by the decoy customers and their rates were fixed. All the girls / victims were having some sort of acquaintance with the accused persons. The intimation of rescued girls were given to Child Welfare Committee and rescued girls were sent to Children Home for Girls, and Nirmal Chayya Complex, Tihar Jail. The statement of rescued girls were recorded u/S.164 Cr.P.C. The girls invariably stated that they were brought to the MB Restro Bar in the name of attending a birthday party. However, one of victim, Nisha deposed in the statement u/S.164 Cr.P.C. stated that Nitin was involved in human trafficking for the purpose of prostitution being carried out from his Page 4 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) house and she has been his victim for this purpose. After investigation, the charge sheet u/Ss.4/5/8 ITP Act was filed in the court for trial. 1.1 Ld. MM initially framed the charge u/S.5 ITP Act vide order dated 06.09.08. While the case was at the stage of prosecution evidence, Ld. Trial court vide order dated 03.01.2009 committed the case to the court of sessions inter alia holding that during the evidence of PW2, it is revealed that offence u/S.372 IPC is made out against the accused persons. The prosecution also filed the supplementary charge sheet u/S.372 IPC against the accused persons.
1.2 During investigation, the ossification test of rescued girls were conducted in compliance of the order dated 23.07.08. From the test conducted at DDU Hospital, the age of the rescued girls were opined as follows :
Sl. Name of girl Opinion on Age
No.
1 Koyal @ Koki More than 15 years but less than 16 years
2 Nisha Gupta More than 15 years but less than 16 years
3 Ashu @ Aarti More than 15 years but less than 16 yeras
4 Rupa @ Chutki More than 16 years but less than 17 years
5 Sonu Kumari @ Anjali More than 19 years but less than 20 years
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SC No.06-09 (State Vs. Narain Bhol & Ors.)
6 Sapna More than 19 years but less than 20 years
7 Reena Biswas More than 19 years but less than 20 years
2.0 Pursuant to the filing of the supplementary charge sheet, charge
u/S.5 ITP Act and 372 IPC was framed vide order dated 16.04.09. Accused persons pleaded not guilty and claimed trial.
3.0 Prosecution examined 18 witnesses in support of its case. The rescued girls namely Reena Biswas, Nisha, Rupa and Koel were examined as PW1, PW2, PW3 and PW4. The rescued girls Sapna and Ashu were examined as PW5 and PW6. Sonu was examined as PW19. In their statements, all the rescued girls stated that they had gone to attend a birthday party and their raid was conducted. Reena, Sonu and Nisha stated that they had gone to birthday party with Nitin. Rupa and Ashu stated to have gone with Anjali @ Simran. Koel was taken by Sudha and Sapna was taken by Sanjay.
3.1 PW7 W / HC Suman was a member of the raiding party. She proved the presence of accused persons on the spot and the fact that 7 girls were rescued. PW8 Jai Nagraj is the star witness of the prosecution. He supported the case of the prosecution. He stated that there was an Page 6 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) information that minor girls stated to be virgin were being exploited. A plan was chalked out to rescue the girls. On 18.03.08, a raiding party was organized. SI Rajpal and SI Sanjeev were required to talk to accused persons and to strike a deal and after SI Sanjeev and SI Rajpal got convinced, raiding party was called and accused persons were arrested. Sh. Tashkeel Khan, another material witness from the office of NGO was examined as PW10. He also proved the case of the prosecution and made a consistent and corroborative statement on oath that on 18.03.08 he went to 2nd Floor MB Restro Bar with PW8 Jai Nagraj, PW13 SI Rajpal and PW15 SI Sanjeev. The police officials talked to the accused persons and fixed the rates and after being convinced the raiding party was called and accused persons were arrested and the girls were rescued.
3.2 SI Sanjeev (PW15) and SI Rajpal (PW13), two star witnesses of the police party also fully supported the case of the prosecution. PW13 made a specific statement on oath that he himself with SI Sanjeev were instructed to go to MB Restro Bar with Jai Nagraj (PW8) and Tashkeel Khan (PW10) and to hear th conversation and to behave as decoy customers. Tashkeel Khan and Jai Nagraj introduced the police officials to be the persons who would settle the rates. Similarly, PW15 SI Sanjeev made a consistent and corroborative statement on oath that they were instructed to hear the conversation of Tashkeel Khan and Jai Nagraj and after being Page 7 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) satisfied that the girls have been brought for the purpose of prostitution, ACP was informed and raid was conducted.
3.3 PW9 Ms. Roma Deboratta, President of NGO, STOP, proved her complaint as Ex.PW9/A. She specifically stated on oath that her NGO STOP is working for combating human trafficking for last more than 25 years and have rescued 1000s of girls from difficult exploited situations. She stated that an information was received on 17.03.08 regarding trafficking of minor girls and an operation was planned. A complaint was made to the police and the raid was conducted. Admittedly, PW9 was not part of the raid.
3.4 PW11 Sh. Mukesh Kumar, Cashier in MB Restro Bar had stated that a table was booked for celebrating birthday party between 3 pm to 4 pm. A group of 14 to 15 male / female reached there. After sometime, a raid was conducted. PW11 stated that he came to know from the police officials that the girls were brought for the purpose of prostitution. Bill, Ex.PW15/B1, raised for the party was seized vide memo Ex.PW15/B. PW12 Sh. Chandra Shekhar, the then Ld. MM, proved the statement of girls recorded u/S.164 Cr.P.C. as Ex.PW2/A (Nisha), Ex.PW12/C (Sonu Kumari), Ex.PW12/D (Rupa), Ex.PW12/E (Koel), Ex.PW12/F (Reena Biswas), Ex.PW12/G (Sapna) and Ex.PW12/H (Ashu).
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SC No.06-09 (State Vs. Narain Bhol & Ors.) 3.5 PW14 Ct. Narender was a member of the raiding party. He also took the rukka to PS for registration of the case and got the case registered. PW16 Insp. B.S. Jakhar had formed a raiding party under the instructions of ACP. Insp. B.S. Jhakar formally proved the investigation conducted by him and proved the case of the prosecution. PW18 Sh. Jasbeer Singh Malik, ACP also proved the factum of having received a complaint. He organized the raiding party and as per plan, a raid was conducted and accused persons were arrested.
4.0 In their statements u/S.313 Cr.P.C., accused persons denied all the allegations and submitted that they have been falsely implicated. 5.0 Sh. L.K. Verma, Ld. counsel for accused Narayan Bhol and Bacchu Rao has submitted that even as per the ossification test, all the girls were found to be major. It has been submitted that it is a settled proposition that ossification test is merely an opinion and in such report, there is alway a margin of 2 years and by giving margin of 2 years, all the girls were beyond the age of 18 years. Sh. Verma submitted that the so called rescued girls Nisha, Reena Biswas, Roopa, Koel, Sapna, Ashu and Sonu Kumari have turned hostile and did not support the case of the prosecution. None of them Page 9 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) stated that they were brought by the accused persons for the purpose of prostitution. It has been submitted that therefore, the prosecution has no material to prove the charge against the accused persons. In respect of PW2 Nisha, Ld. counsel has submitted that she is the most unreliable witness. She has been changing her version all together. Statement of Nisha recorded by the Ld. MM cannot be considered and therefore, there is no material on the record to prove the charge u/S.372 IPC. Ld. counsel further submitted that the investigating agency did not join any independent witness despite the fact that it had come in the testimony of prosecution witnesses that the shops were opened near MB Restro Bar and public persons were also available on 1st and 2nd Floor of MB Restro Bar. Even any waiter or Manager of the Hotel was not joined in the investigation. It has further been submitted that evidence of the prosecution witnesses are self contradictory and self defeating. Ld. counsel also pointed out that the case of the prosecution is that no money transaction took place and even nobody had the money to complete the deal. As per Section 13 of ITP Act, only special police officer can investigate the case. However, in the present case, prosecution has not proved that PW16 Insp. B.S. Jhakar and PW18 ACP Jasbir Singh Malik, were appointed as special police officer.
5.1 Sh. Rajiv Jain, Legal Aid counsel for accused Sudha and Sanjay pointed out the contradictions in the testimony of the prosecution Page 10 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) witnesses. Ld. counsel submitted that in complaint itself there are several doubts and the complainant has made a false complaint only to gain popularity in the Media. Sh. Rajiv Jain, Ld. counsel submitted that PW8 Jai Nagraj himself has admitted that he has been in touch with the police officials. PW8 Jai Nagraj and PW10 Tashkeel Khan in fact are stock witnesses of the police and they cannot be relied upon. The story of the prosecution of raid having been conducted itself is doubtful and therefore, cannot be believed.
5.2 Sh. T.N. Tyagi, Ld. counsel for accused Rakesh Mathur and Simran @ Anjali has also argued at length and has submitted that there are several contradictions in the testimony of prosecution witnesses. Ld. counsel submitted that there is huge discrepancy regarding timings. The case of the prosecution is that the raiding party reached at about 4:30 pm and after having received an indication from SI Rajpal (PW13), the raid was conducted at 6:30 pm. Whereas, ACP Jasbir Singh Malik (PW18) himself has stated that he reached at the spot at 4:30 pm itself. Ld. counsel has further submitted that it has come in the testimony of prosecution witnesses that the raid was conducted at 6:30 pm and the distance between spot and PS Defence Colony is only of 15 minutes walking and the rukka was sent at 9:10 pm. There is a delay of about 3 hours in registration of FIR. Ld. counsel also pointed out that one of the prosecution witnesses has stated that they stayed Page 11 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) at the spot for only 6 hours, meaning thereby, that the entire proceedings were completed by 10 pm. It has also come in the prosecution witnesses that they remained on the spot during late night. Ld. counsel also pointed out that there were around 28 members of the raiding party. They all stated to have gone in one Gypsy and 5 private vehicles. After the raid was completed, there were 6 accused persons and 7 rescued girls. It has not been explained by the prosecution that in how and what manner, these persons came back to PS. Ld. counsel for accused persons have stated that there are many contradictions in testimony of prosecution witnesses and therefore, accused persons are liable to be acquitted.
6.0 Per contra, Sh. M.Z. Khan, Ld. Addl. PP for State has submitted that the star witnesses of this case are PW8 Jai Nagraj, PW10 Tashkeel Khan, PW13 SI Rajpal and PW15 SI Sanjeev. All of them have made a consistent and corroborative statement on oath regarding the fact that the accused persons brought the minor girls and they were brought for the purpose of prostitution against monetary consideration. Ld. Addl. PP submitted that consent of the minor girls are immaterial and contradictions which have appeared in the testimony of witnesses are minor in nature and does not go to the root of the case.
7.0 I have heard the submissions of Ld. Counsel for accused persons Page 12 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) as well as Sh. M.Z. Khan, Ld. Addl. PP for State and have also perused the record carefully.
8.0 Human trafficking is a crime against humanity. It involves an an act of recruiting, transporting, transferring, harbouring or receiving a person through a use of force, coercion or other means, for the purpose of exploiting them. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Every country in the World is affected by trafficking, whether as a country of origin, transit or destination for victims. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery servitude or the removal of organs.
Trafficking is a lucrative industry. It has been identified as the fastest growing criminal industry in the world. Globally, it is tied with the illegal arms trade, as the second largest criminal activity, following the drug trade. Human trafficking does not require the physical movement of a person (But must entail the exploitation of the person for labour or commercial sex). Additionally, victims of human trafficking are not permitted to leave upon arrival at their destination. They are held against their will through acts of coercion and forced to work or provide services to the trafficker or others. The work or services may include anything from Page 13 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) bonded or forced labor to commercialized sexual exploitation.
Traffickers, also known as pimps or madams, exploit vulnerabilities and lack of opportunities, while offering promises of marriage, employment, education and or an overall better life. However, in the end, traffickers force the victims to become prostitutes or work in the sex industry. Various work in the sex industry includes prostitution, dancing in the strip clubs, performing in the pornographic films and pronography and other forms of involuntary servitude.
Trafficking victims are also exposed to different psychological problems. They suffer social alienation in the host and home countries. Stigmatization, social exclusion and intolerance make reintegration into local communities difficult. The governments offer little assistance and social services to trafficked victims upon their return. As the victims are also pushed into drug trafficking, many of them face criminal sanctions. In view of this background, the courts are required to be extremely sensitized while appreciating the evidence in such like cases. It has also to be kept in mind that it is very difficult to get direct evidence in such cases. 8.1 Accused persons have been charged for the offence u/S.5 ITP Act. Prostitution has been defined u/S.2(f) of the ITP Act. Section 5 ITP Act reads as under :
"5. Procuring, inducing or taking [person] for the sake of Page 14 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) prostitution - (1) Any person who
(a) procures or attempts to procure a [person] whether with or without [his] consent, for the purpose of prostitution ; or
(b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel ; or
(c) takes or attempts to take a [person] or causes a [person] to be taken, from one place to another with a view of [his] carrying on, or being brought up to carry on prostitution ; or
(d) causes or induces a [person] to carry on prostitution ;
[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years :
Provided that if the person in respect of whom an offence committed under this subsection
(i) is a child, the punishment provided under this sub section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life ; and
(ii) is a minor, the punishment provided under this sub section shall extend to rigorous imprisonment for a term of not less than seven years and not more that fourteen years ;] (2) Omitted (3) An offence under this section shall be triable
(a) in the place from which a [person] is procured, induced to Page 15 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) go, taken or caused to be taken or from which an attempt to procure or take such [person] is made ; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made."
If we go through the section 5 of ITP Act, it is absolutely clear that in order to attribute section 5, the consent of the victim is not material. If a victim has been procured even with his / her consent for the purpose of prostitution, the offender can be convicted for the offence u/S.5 ITP Act. The legislature in its own wisdom has made a consent of the victim irrelevant because many a times on account of poverty and many other compulsions or may be in ignorance, a victim may give his / her consent. It is pertinent to mention here that "consent" shall be considered as "free consent" only if it is given voluntarily and without any force, fear or coercion. If the consent has been obtained by fraud or deception, that has no meaning in the eyes of law. Similarly, section 5(1)(b) and section 5(1)(c) also indicates inducement to go from one place to another with an intention that the subject may be used for the purpose of prostitution or one is taken or attempted to be taken from one place to other with a view to carrying on, or being brought up to carry on prostitution. The punishment has been made severe if such victim is minor or the child.
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SC No.06-09 (State Vs. Narain Bhol & Ors.) 8.2 "Minor" and "child" has been defined u/S.2(aa) & (cb). As per section 2 (cb) "minor" means a person who has completed the age of sixteen years but has not completed the age of eighteen years. As per ITP Act, a person would be major only if he / she has completed the age of 18 years. The act also defines "child" as a person who has not completed the age of sixteen years.
In the present case, as per ossification test reports Ex.PW16/A to Ex.PW16/F, the age of the girls are as under :
Sl. Name of girl Opinion on Age
No.
1 Koyal @ Koki > 15 years and 16 years (Ex.PW16/D)
2 Nisha Gupta >16 years and <17 years (Ex.PW16/A)
3 Ashu @ Aarti > 15 years and < 16 years (Ex.PW16/E)
4 Rupa @ Chutki > 16 years and < 17 years (Ex.PW16/G)
5 Sonu Kumari @ Anjali > 19 years and < 20 years (Ex.PW16/F)
6 Sapna > 19 years and < 20 y ears (Ex.PW16/C)
7 Reena Biswas > 19 years and < 20 years (Ex.PW16/B)
It is a settled proposition that the ossification test is not infallible and accurate test as to indicate the correct number of years and days accused has lived. It is also a settled proposition that normally there is variation of 2 years and this margin is always read in favour of the accused. If we take this Page 17 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) variation of 2 years, the age of the girls comes as under :
Sl. Name of girl Opinion on Age After taking margin No. of 2 years 1 Koyal @ Koki > 15 years and < 16 years Around 18 years 2 Nisha Gupta >16 years and <17 years Around 19 years 3 Ashu @ Aarti > 15 years and < 16 years Around 18 years 4 Rupa @ Chutki > 16 years and < 17 years Around 19 years 5 Sonu Kumari @ > 19 years and < 20 years Around 22 years Anjali 6 Sapna >19 years and < 20 years Around 22 years 7 Reena Biswas > 19 years and < 20 years Around 22 years It is a matter of record that there is no other record regarding the date of birth of the victim. Thus, at the out set, the victims were not minor as on the date of incident.
9.0 The accused persons have also been charged for the offence u/S. 372 IPC. Section 372 IPC reads as under :
"372. Selling minor for purposes of prostitution etc. Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment Page 18 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) of either description for a term which may extend to ten years, and shall also be liable to fine."
9.1 If we peruse this section, this provision has been enacted only for the purpose of prostitution in the case of minor. It is pertinent to mention here that there is no material to substantiate the charge of selling, letting or huring or disposal. In view of the discussions here made in above, this court is of the considered opinion that the rescued girls were more than 18 years of age. Thus, the prosecution has miserably failed to attribute section 372 IPC. 9.2 Now the only question is that whether section 5 ITP Act is made out or not. In order to appreciate this, the testimony of 4 witnesses are very important.
PW8 Jai Nagraj in his testimony has specifically stated that their NGO received an information that minor girls stating to be virgin have been exploited and the information was given to ACP, Crime Branch. A complaint was lodged in this regard and a plan was chalked out to rescue the girls. On 18.03.08, ACP Crime Branch organized a raiding party. SI Rajpal (PW13) and SI Sanjeev (PW15) was required to talk to accused persons and to strike the deal. Accused persons came with the girls and talked to SI Sanjeev and SI Rajpal. PW8 stated that accused Narayan Bhol had brought Asha and quoted Rs. 1 Lakh for her from 9 pm to 5 am. He also stated that accused Bacchu Rao, Sanjay Mandal and Rakesh Mathur brought Roopa and Koel and stated that Page 19 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) charges for one girl as Rs.80,000/ and of other as Rs.60,000/. The girls were stated to be minor. This witness had some confusion about the identification of the accused. But I consider that since accused persons have been identified by other witnesses, this is not fatal for the case of prosecution. 9.3 Ld. Defence counsel have pressed the point that PW8 Jai Nagraj in the cross examination admitted that he is involved in 4 other operations of human trafficking and therefore, he is a stock witness. I consider that this argument of the defence has no basis. The court is required to appreciate the evidence with a pragmatic approach. PW8 Jai Nagraj is an official of NGO. Such type of organizations are actively involved in the prevention of menace of illegal human trafficking. The court has to take judicial notice of the fact that alone investigating agency are not able to curb this menace alone. The NGO and civil society play an important role in curbing this menace. These NGOs have their own network and on the basis of their own source information, they keep on conducting the operations and rescue the victims with the help of police. Simply because, an officer of this NGO has been involved in raids, he / she cannot be branded as a stock witness.
9.4 Ld. Defence counsels have also pressed the point that public persons were not involved despite being available. I consider that in this regard also, the court has to take a practical approach. It is a matter of common knowledge that such like operations are conducted with utmost secrecy. If the Page 20 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) information is leaked, there is a possibility of the entire operation becoming unsuccessful. It is also a matter of common knowledge that public persons are generally reluctant to join such proceedings. The employees of the hotel also cannot be told in advance about such operation again for the same reason that there may be an apprehension of the information being leaked out. There is also a possibility that hotel employees would be reluctant to join the raiding party as it may adversely affect their business.
The case of the prosecution also cannot be thrown out on the ground that no money transaction took place. It is an admitted case of the prosecution that money did not change hands. Raid was conducted immediately after the accused persons produced the girls and the police officials got satisfied that the girls were brought for the purpose of prostitution. The defence has also pointed out that PW8 Jai Nagraj and PW10 Tashkeel Khan in their cross examination have stated that police party has come to their office before conducting the raid. However, the police party denied this fact. The case of the prosecution is that the police party directly went to MB Restro Bar and PW8 and PW10 were picked up on their way. I consider that this is minor contradiction which does not go to the root of the case. 10.0 Now coming to the testimony of PW10 Tashkeel Khan. He also stated that on 18.03.08 he being member of raiding party went to 2 nd floor, MB Restro Bar along with SI Sanjeev and SI Rajpal and Jai Nagraj. Accused Bacchu Rao came with Sudha and Simran with two minor girls. He talked to Bacchu Page 21 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) Rao and introduced SI Sanjeev and SI Rajpal as customers, who required girls for their Boss. Police officials SI Rajpal and SI Sanjeev also talked to Bacchu Rao. In the meanwhile, three more accused persons reached with 5 minor girls. SI Sanjeev and SI Rajpal talked to accused persons and fixed the rates. After both the police officials got convinced, the raid was conducted and accused persons were arrested. Witness was cross examined by Ld. Addl. PP after being permitted by the court. During cross examination by Ld. Addl. PP, PW10 admitted that accused persons introduced him to all 7 girls. In the cross examination this witness also admitted that he has been associated in some of these rescue operations. However, as I have discussed above, on this ground, witness cannot be disbelieved.
10.1 PW13 SI Rajpal also stated on oath that he himself with SI Sanjeev were instructed to go to MB Restro Bar along with Tashkeel Khan and Jai Nagraj that they would hear the conversation and behave as decoy customers. PW13 SI Rajpal stated that accused Bacchu Rao came with two ladies namely Sudha and Simran and brought two girls. He stated that accused Bachhu Rao told the rate of girls as Rs.1,30,000/. In the meanwhile, accused Sanjay Mandal, Rakesh Mathur and Narayan Bhol @ Nitin brought 5 more girls and told their rates between Rs.60,000/ to Rs.1,00,000/ The girls were told to be virgin and were offered for the purpose of prostitution. PW13 SI Rajpal stated that after being satisfied, he informed the ACP and raid was conducted. In the cross examination, PW13 stated that he had conversation for about 2 hours before the Page 22 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) message was given to ACP. Initially, Tashkeel Khan and Jai Nagraj talked to accused persons and girls and then he himself along with SI Sanjeev also talked to accused persons and those girls.
If we go through the testimony of PW13 SI Rajpal it is clear that firstly they satisfied themselves and only thereafter the raid was conducted. It is clear from the testimony of PW13 that the raid was not conducted in hurry. Police officials and NGO officials firstly got themselves satisfied and then only the raid was conducted.
10.2 PW15 SI Sanjeev also made a consistent and corroborative statement and his testimony is also cogent and creditworthy. SI Sanjeev stated that he was instructed to hear the conversation of Tashkeel Khan and Jai Nagraj with the accused persons. PW15 stated that while they were in the 2 nd Floor, accused Narayan Bhol came along with two ladies Sudha and Simran, who were having minor girls. Narayan Bhol told Jai Nagraj and Tashkeel Khan that two girls Ashu and Sonu, were brought for the purpose of prostitution and the rate for one night of Ashu were Rs.1,30,000/ and both the girls are virgin. The timings of the night would start from 9 pm to 5 am and if more time would be consumed, more charges would be paid. PW15 also stated that after sometime 3 more persons brought more 5 girls and they being satisfied, the raid was conducted. PW16 Insp. B.S. Jhakar and PW18 Jasbeer Singh Malik the then ACP also duly proved the investigation conducted by him. Page 23 of 28
SC No.06-09 (State Vs. Narain Bhol & Ors.) 11.0 No doubt, there are certain contradictions in the testimony of prosecution witnesses regarding timings of conducting the raid and the timing of their leaving the spot. There is also a contradiction regarding that who brought whom. The defence has also pointed out some other contradictions regarding the how and in what manner the raiding party reached on the spot and how they came back. Now the question is that whether on such kind of contradictions, the case of the prosecution can be rejected.
Law regarding contradictions is very well settled. It is a settled proposition that the prosecution is duty bound to prove its case against the accused beyond reasonable doubt. However, the question is that to what extent the prosecution can be expected to prove its case. It is pertinent to mention here that prosecution is duty bound to prove its case against the accused beyond reasonable doubt and not required to prove it conclusively. The proposition of reasonable doubt came up for discussion before the Apex Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, AIR 1973 SC 2622, wherein, while discussing about the theory of benefit of doubt, the Apex court inter alia held as under :
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The Page 24 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) judicial instrument has a public accountability. The Cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author* has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a, public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
Therefore, the court is required to have a helicopter view of the entire case and is required to judge the material on the record with a quest for Page 25 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) justice. The trial cannot be allowed to be a mere battle of wits and the judge cannot be a mute spectator. The judge has to appreciate the evidence in it's totality and the final summit should only be the justice.
Similarly, in respect of the contradictions also, the superior courts have held time and again that only the material contradictions which goes to the root of the case can be held fatal for the case of the prosecution. Some minor contradictions are bound to occur in the testimony of prosecution witnesses. The court has to look for the substratum of the witnesses. If the prosecution witnesses are able to prove on record the baseline of the offence on the basis of which, the ingredients of the offence can be proved, the other contradictions which does not hit the centre of the case, cannot be taken into account. 11.1 Now if we analyse the testimony of all the prosecution witnesses, it is clear that accused persons brought some girls and these girls were offered for prostitution to SI Rajpal (PW13) and SI Sanjeev (PW15). It is pertinent to mention here that all the girls have consistently stated that they were brought for the birthday party by the accused persons. Therefore, the presence of these girls on the spot is also proved. The accused persons have also not denied the presence of these girls on the spot. If it was a birthday party then it was within the special knowledge of the accused persons and they were required to place on record the material to discredit the case of the prosecution that it was nothing but a meeting to offer the girls for the purpose of prostitution. If we see the bill, Ex.PW15/B1, it also does not indicate that some birthday party was Page 26 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) organized. PW2 Nisha Gupta has stated that one empty paper box was given to the girls. If we peruse her testimony, it is clear that it was a fake party and accused Narayan Bhol had brought all these girls there along with other co accused persons.
11.2 It is a settled proposition that the testimony of a hostile witness cannot be rejected all together. The duty of the court is to separate the grain from chaff. The consent of the girls for the purpose of the prostitution is immaterial. Section 5 of ITP Act itself makes it clear that the consent of the victim is not relevant. I do not see any reason that why Tashkeel and Jai Nagraj would make a false statement. There is no reason for Ms. Roma Deboratta (PW9) to make a false complaint against the accused persons. The defence has not been able to prove on record any motive against the complainant party to implicate the accused persons falsely.
The curse of illegal human trafficking is on rise. It is a big social problem and all the countries of the World are effected by it. This problem is multiplied in the countries, where there is rampant poverty and illiteracy. Innocent girls and children are being trafficked by the mischievous people only in order to make fast money. The court is required to appreciate the evidence in such case with extreme sensitivity. Normally, an NGO are being run by public spirited persons and this court do not find any reason to disbelieve the testimony of Tashkeel Khan (PW10) and Jai Nagraj (PW8) and also there is no basis to reject the complaint of PW9.
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SC No.06-09 (State Vs. Narain Bhol & Ors.) 12.0 In view of the above findings, I consider that prosecution has successfully proved its case against the accused persons for the offence u/S.5 ITP Act. Hence, accused persons are convicted for the offence u/S. 5 ITP Act in case FIR No.86/08 PS Defence Colony.
Announced in the open court (Dinesh Kumar Sharma) Today on 03.05.2011 ASJ02(South)/03.05.2011 Saket Courts / New Delhi. Page 28 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) IN THE COURT OF SHRI DINESH KUMAR SHARMA ADDL. SESSIONS JUDGE02(SOUTH) SAKET COURTS : NEW DELHI. SC NO. 06/09 Unique Case ID No. 02403R0326622008 State Vs. 1. Narayan Bhol @ Nitin S/o Sh. Mohinder Bhol R/o 17/17, Rafia Marg, Sangam Vihar New Delhi. 2. Bacchu Rao @ Rahul S/o Sh. Late Kapali Rao R/o A2, Jaya Apartments, Mehrauli Delhi. 3. Sanjay Mandal S/o Sh. Chandi Mandal R/o A2, Jaya Apartments, Mehrauli Delhi. 4. Sudha W/o Sh. Subhash R/o D16, Balramm Nagar, Loni Distt. Gaziabad, UP. 5. Simran @ Anjali W/o Sh. Ismail R/o 16/18, Khanpur Delhi. Page 29 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) 6. Rakesh Mathur @ Raj S/o Sh. Raghubir Singh R/o E5, Ambedkar Vihar, Johripur PS Karawal Nagar, Delhi. FIR No : 86/08 P.S. : Defence Colony u/Ss. : Sec. 5 ITP Act Judgment Announced On : 03.05.2011 Date of Order on Sentence : 05.05.2011 ORDER ON SENTENCE Present : Ld. Addl. PP for State Convicts produced from JC
Sh. L.K. Verma, Ld. counsel for convicts Narayan Bhol & Bacchu Rao Sh. T.N. Tyagi, Ld. counsel for convicts Rakesh Mathur & Simran Sh. Rajiv Jain, Legal Aid counsel for convicts Sudha & Sanjay Heard arguments on the point of sentence.
1.0 Convicts have been convicted for the offence u/S 5 ITP Act. Page 30 of 28
SC No.06-09 (State Vs. Narain Bhol & Ors.) 2.0 Section 5 ITP Act provides punishment of rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees. The punishment can be extended to seven years if the offence committed, to have been proved against the will of any person. However, I consider that the prosecution in this case, has not been able to prove that the offence has been committed against the will of any person.
3.0 Sh. LK Verma and Sh. Rajiv Jain, Ld. counsels for the convicts have submitted that their clients have already remained in custody for more than three years. Sh. TN Tyagi, Ld. counsel for convict Simran has submitted that his client Simran has remained in custody for more than three years. The convicts were arrested on 18/3/2008 and since then they are behind bars. It has been submitted that all the convicts are young in age. There is no record of previous criminal record or conviction against the accused persons and therefore, have prayed for a lenient view.
3.1 In respect of convict Rakesh Mathur, it has been submitted that he has remained in custody for around two months. He was initially released on bail and remained in custody only for two months. Ld. counsel for the convict has submitted that convict Rakesh Mathur is a poor man and is the Page 31 of 28 SC No.06-09 (State Vs. Narain Bhol & Ors.) sole bread earner of the family which consists of an old age mother, young wife and an infant daughter. Ld. counsel submits that a lenient view may be taken.
4.0 I have considered the submission of both the sides and perused the record carefully.
5.0 Human trafficking is a very serious offence. Trafficking for sexual exploitation is infact derogatory to the dignity of a woman but it is an unfortunate fact that in may instances females have been found to be traffickers. I consider that at many a times, even the traffickers fall into this trade on account of some compulsions, illguidance or wrong company. The Court has to keep a balance view while awarding sentence. The purpose of sentence is not only punitive. It has also to take into account the reformative aspect also.
I consider that taking into view the entire facts and circumstances i.e., age of the offenders, previous record, a sentence of RI for 03 years and fine of Rs.1,000/ each in default to undergo SI for 02 months in respect of convicts Narayan Bhol, Bachu Rao, Sudha, Simran and Sanjay, shall meet the ends of justice.
Benefit of Sec. 428 Cr.PC be given to the convicts.
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SC No.06-09 (State Vs. Narain Bhol & Ors.) 5.1 In respect of convict Rakesh Mathur, I consider that a distinction can be made in view of the fact that he has remained on bail during the trial and has also attended the trial regularly and during this period also, he did not involve himself in any offence. Therefore, taking into account the entire facts and circumstances, I consider that sentence of RI for 02 years and fine of Rs. 1,000/ in default SI for 02 months, shall meet the ends of justice.
Benefit of Sec. 428 Cr.PC be given to the convict.
6.0 File be consigned to RR.
Announced in the open court (Dinesh Kumar Sharma)
Today on 05.05.2011 ASJ02(South)/05.05.2011
Saket Courts / New Delhi.
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