Delhi District Court
State vs . Intezar Ahmed & Ors. on 14 January, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.88/12
PS Chandni Mahal
State Vs. Intezar Ahmed & Ors.
U/s 5/8 ITP Act
CNR No.DLCT-02-000234/16
CIS No.287427/16
JUDGMENT
(a) Sr. No. of the Case 287427/16 (b) Date of offence 13.06.2012 (c) Complainant Inspector Satish Malik
(d) Accused Persons 1. Intezar Ahmed S/o. Ashfaq Ahmed, R/o. 2514, Chowk Lajpat Rai, Gali Shankar Wali, Sita Ram Bazar, Turkman Gate, Delhi.
2. Mumtaz W/o. Intezar Ahmed, R/o. 2514, Chowk Lajpat Rai, Gali Shankar Wali, Sita Ram Bazar, Turkman Gate, Delhi.
3. Radha @ Rekha W/o. Tehar Singh, R/o. 2514, Chowk Lajpat Rai, Gali Shankar Wali, Sita Ram Bazar, Turkman Gate, Delhi.
(e) Offence U/s 5/8 ITP Act. (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 17.01.2013 (i) Date when judgment was 14.01.2020 reserved (j) Date of judgment 14.01.2020 FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 1 to 23 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Chandni Mahal against the accused persons namely Radha @ Rekha, Intizar Ahmed and Mumtaz for the offence U/s 5/8 ITP Act.
2. Briefly stated facts of the case are that on 13.06.2012, at about 10:55 am, at DDA Park, Near Vardhman Plaza, Turkman Gate, Delhi, accused Radha @ Rekha by words, gestures, willful exposure of her body tempted or attracted the attention of decoy customer for the purpose of prostitution and found soliciting for prostitution and thus she committed an offence u/s 8 of ITP Act. That on the above-said date, time and place, accused persons Intizar Ahmed and Mumtaz procured accused Radha with or without her consent for the purpose of prostitution and thereby they committed an offence u/s 5 of ITP Act.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Radha @ Rekha, Intizar Ahmed and Mumtaz.
4. Thereafter, charge under Section 8 ITP Act was framed against the accused Radha @ Rekha and charge under Section 5 ITP Act was framed against the accused Intizar Ahmed and Mumtaz vide order dated 12.04.2013 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
5. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
6. In order to prove the guilt of the accused, prosecution examined as many as 7 FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 2 to 23 witnesses.
7. PW-1 is HC Ram Kumar, who deposed that on 13.06.2012, he got registered the FIR which is Ex. PW-1/A, made endorsement on the rukka Ex. PW-1/B.
8. In the cross examination, PW-1 admitted that the FIR No. 87/12 & 89/12 were not written in his handwriting but it was written by some other officer. He denied that he was not on duty on that day.
9. PW-2 is Ct. Jai Singh, who deposed that on 13.06.2012, he was posted as Ct.
in PP Turkman Gate PS Chandni Mahal and he was in the PS for briefing, that on that day at about 9:45 am a secret informer met with acting SHO Inspector Satish Malik and give information to the Inspector Satish Malik regarding the prostitution near Verdhanman Plaza, DDA Park Turkman Gate, that inspector Satish Malik informed/conveyed the information to ACP Darya Ganj and on his instructions a raiding party including me and SHO Satish Malik, SI Mohit Yadav, HC Mahender Singh, Ct. Ravinder, Wct. Neetu was prepared, that the secret information was also entered into DD register vide DD No. 24B and after that we left the PS in government gypsy for the place of secret information, that the raiding party reached at PP Turkman Gate and on reaching there IO instructed to SI Mohit Yadav and HC Mahinder for changing their uniform to civil dress and instructed them for acting as a bogus customer and IO conducted personal search of the SI Mohit Yadav and nothing was recovered from his possession, that after that, IO handed over 2,000/- to the SI Mohit Yadav with denomination of Rs 1,000/- and two notes of Rs 500/- after writing separately the number of notes, that they went near the Vardhman Plaza in government vehicle along with secret informer, that the vehicle was parked near Vardhman Plaza & secret informer gave signal, that they took position behind the bamboo railing and on the instructions of IO, SI Mohit FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 3 to 23 Yadav bogus customer and HC Mahender went inside the DDA Park where one lady and one gents were standing, that SI Mohit Yadav, bogus customer and HC Mahender reached near them and they talk about 10 minutes and after that gents left the spot and went outside the DDA Park, that he again returned after 10 minutes along with one young lady, that both SI Mohit Yadav bogus customer and HC Mahender again talk with them for about 10 minutes and SI Mohit Yadav bogus customer gave signal by moving his hand over his head and all the remaining party suddenly went there and all the three persons were apprehended, that SI Mohit Yadav apprehended the male whose name afterwards disclosed as Intizar Ahmad and both the ladies were apprehended by WCt. Neetu whose name afterwards disclosed as Mumtaz and Radha @ Rekha, that on the direction of IO, Ct. Ravinder conducted formal search of accused Intizar in which 2 notes of Rs 500/-each was recovered from the right pocket of the pant of the accused and Wct. Neetu took the formal search of accused Rekha @ Radha in which Rs 1000/- note was recovered from the right hand fist of the accused Rekha @ Radha, that SI Mohit Yadav disclosed to the IO that accused Intizar Ahmad stated to them that they have one young girl for prostitution and asked for Rs 3,000/- for the same and after talks the deal was confirmed for Rs 2,000/-, that IO prepared a Rukka and handed over to him and he went to the PS & handed over rukka to HC Ram Kr. D.O. and D.O. registered the case and again handed over copy of FIR & Rukka to him with the instructions to hand over to IO, that he went to place of incident and handed over the copy of FIR and original rukka to the IO, that his statement was recorded by the IO.
10. In the cross examination, PW-2 deposed that IO had instructed to the SI Mohit Yadav regarding the mode of signal, that they reached at Vardhman Plaza at about 10.45 am but he cannot remember exactly at what time they entered into park, that they left the PS at about 10:00 am, that the distance between FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 4 to 23 Vardhman Plaza and PS is about 1 km, that he cannot say anything about the directions of the gate of DDA Park, that when they reached initially near the park only two persons Intizar Ahmad and Mumtaz were present and no one else was present at that time, that he cannot say whether IO inquired about the gate keeper of the park, that he do not remember whether there are shops near the park, that the park situates at the back side of Vardhman Plaza, that the Delhi Police Bhawan is adjacent to Vardhman Plaza, that the site plan which is shown to him from case file is correct, that he do not remember exactly at what time he left the place of incident along with rukka for PS and he returned from PS at about 1:30 pm after registration of PS and reached at the place of incident within 10 to 20 minutes, that on that day, SI Mohit was acting as a bogus customer and HC Mahinder was acting as shadow witness, that he do not remember the number of notes today, that he do not remember whether the case property was seized in his presence, that the notes were kept after seizing the same by the IO, that the documents were prepared at the place of incident. He denied that no such incident has happened and accused persons were arrested from their house, that no such secret information was either received by the IO nor was disclosed to us & whole police story is false, that case property is planted one. He further deposed that he do not remember the exact time of arrest of both the ladies and gents. He denied that he is deposing falsely. He further deposed that no mark was put on the recovered notes after recovering the same from the accused persons. He admitted that no public persons was joined in the investigation. He denied that no recovery was effected from the accused persons and case property is planted one & whole police story is false.
11. PW-3 is WCt. Neetu, who deposed that on 13.06.2012 she was posted as Ct.
in PS Chandni Mahal and she was in the PS for briefing, that on that day at about 9:45 am a secret informer met with acting SHO Inspector Satish Malik FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 5 to 23 and give information to the Inspector Satish Malik regarding the prostitution near Verdhanman Plaza, DDA Park Turkman Gate. Inspector Satish Malik informed/conveyed the information to ACP Darya Gunj and on his instructions a raiding party including her and SHO Satish Malik, SI Mohit Yadav, HC Mahender Singh, Ct. Ravinder, Ct. Jai Singh was prepared, that the secret information was also entered into DD register vide DD No. 24B and after that they left the PS in government gypsy for the place of secret information, that the raiding party reached at PP Turkman Gate and on reaching there IO instructed to SI Mohit Yadav and HC Mahinder for changing their uniform to civil dress and instructed them for acting as a bogus customer and IO conducted personal search of the SI Mohit Yadav and nothing was recovered from his possession, that IO handed over 2,000/- to the SI Mohit Yadav with denomination of Rs 1,000/- and two notes of Rs 500/- after writing separately the number of notes, that they went near the Vardhman Plaza in government vehicle along with secret informer, that the vehicle was parked near Vardhman Plaza & secret informer gave signal, that they took position behind the bamboo railing and on the instructions of IO, SI Mohit Yadav bogus customer and HC Mahender went inside the DDA Park where one lady and one gents were standing, that SI Mohit Yadav bogus customer and HC Mahender reached near them and they talk about 10 minutes and after that gents left the spot and went outside the DDA Park and again returned after 10 minutes along with one young lady, that both SI Mohit Yadav bogus customer and HC Mahender again talk with them for about 10 minutes and SI Mohit Yadav bogus customer gave signal by moving his hand over his head and all the remaining party suddenly went there and all the three persons were apprehended, that SI Mohit Yadav apprehended the male whose name afterwards disclosed as Intizar Ahmad and both the ladies were apprehended by her whose name afterwards disclosed as Mumtaz and Radha @ Rekha, that on the direction of IO, Ct. Ravinder conducted formal search of accused Intizar in which 2 notes FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 6 to 23 of Rs 500/-each was recovered from the right pocket of the pant of the accused and she took the formal search of accused Rekha @ Radha in which Rs 1000/- note was recovered from the right hand fist of the accused Rekha @ Radha, that arrest memo of accused Radha and Mumtaz Begum are Ex. PW3/A & Ex. PW-3/B, that personal search accused Radha and Mumtaz Begum are Ex. PW3/C & Ex. PW-3/D, that seizure memo of Rs 1,000/- is Ex. PW-3/E, that SI Mohit Yadav disclosed to the IO that accused Intizar Ahmad stated to them that they have one young girl for prostitution and asked for Rs 3,000/- for the same and after talks the deal was confirmed for Rs 2,000/-, that IO prepared a rukka and handed over to her and she went to the PS & handed over rukka to HC Ram Kr. D.O. and D.O. registered the case and again handed over copy of FIR & Rukka to Ct. Jai Singh with the instructions to again hand over to IO and again Ct. Jai Singh went to place of incident and handed over the copy of FIR and original rukka to the IO, that her statement was recorded by the IO.
12. In the cross examination, PW-3 deposed that they left the PS at about 10:00 am, that she made her departure entry when she left the P.S, that they left the PS in a white colour gypsy for the spot & reached at PP within 15 minutes & remained there for about 15-20 minutes, that SI Mohit Yadav was chowki Incharge at that time & he was present at Police Post Turkman Gate & he alongwith HC Mahinder Singh was joined in the raiding party, that from the police post she along with HC Mahinder Singh & Ct. Jai Singh & two other police officials from PP Turkman Gate went to spot on foot & reached there within 10 minutes, that ATO of police party went to spot in gypsy, that she cannot say about the distance between PP Turkman Gate and spot, that they reached at Vardhman Plaza at about 11.00 am to 11:15 am, that she did not went inside the park and remained outside the park, that she cannot say anything about the directions of the gate of DDA Park, that only few shops FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 7 to 23 were open at that time in Verdhaman Plaza when they reached there. She admitted that there were several tea stalls and Pan shops on the pavement in front of Vardhaman Plaza. She further deposed that she cannot tell whether ATO had asked the public persons/shopkeepers to join the investigation or not, that she do not remember whether ATO had noted down the name and addresses of public persons/shopkeepers, that HC Mahinder & SI Mohit were in civil uniform i.e. trouser and shirt but she do not remember their colors, that ATO had given Rs 2,000/- to SI Mohit Yadav outside the park & handing over memo was prepared, that she was confronted with EXPW3/DA where it is not so recorded. She further deposed documents were prepared by the IO at PS, PP Turkman Gate & outside the park, that 5-6 police persons were present with her outside the park including Ct. Jai singh, HC Mahinder and name of other police officials she do not remember, that SI Mohit Yadav was visible to her from where she was standing at about 150 steps, that no police personal was present with SI Mohit Yadav at that time. She admitted that she has not heard the conversation between the SI Mohit Yadav & accused persons. She further deposed that ATO Inspector Satish Malik was also present with them when they were standing outside the park, that the personal search of SI Mohit Yadav was conducted by some police official but she do not remember his name, that she cannot tell for the how much time she remained at the spot on that. She denied that she is deposing falsely.
13. PW-4 is SI Mohit, who deposed that on 13.04.2012, he was posted at PS Chandni Mahal, that on that day, Inspector Satish Malik called him at PS at about 9:15 am and when he reached there, he met with Inspector Satish Malik, HC Mahinder, Ct. Ravinder , Ct. Jai Singh, WCT Neetu and one secret informer, that inspector Satish Malik shared a information regarding act of prostitution by one female and one male who were as per information present at DDA Park, behind Police Bhawan, that inspector Satish Malik instructed him FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 8 to 23 & HC Mahinder for changing the uniform to civil dress, that they changed accordingly, that inspector Satish Malik constituted a raiding party of the above mentioned police officials including him and secret informer was also with them and they departed from the PS at about 10:00 am, that when they reached at Turkman gate, inspector Satish Malik shared the information with 4- 5 public persons and they were asked to join the raiding party but all of them went away after expressing their inability and did not disclose their names and addresses, that inspector Satish Malik instructed him to become decoy customer and HC Mahinder was instructed to become shadow witness, that when they reached at Police Bhawan they parked the vehicle near Police Bhawan, that inspector Satish Malik handed over to him Rs 2,000/- consisting of three currency notes one note of Rs 1,000/- and two currency notes of Rs 500/- each and handing over memo of notes were prepared by Inspector Satish Malik which is Ex.PW3/DA, that Inspector Satish Malik instructed him & HC Mahinder to go DDA Park and if he find any lady and boy who called him for prostitution and to make a deal with them and if the deal is struck, then he has to put his left hand on his head to give signal, that after that he and HC Mahinder went inside the park and the rest of police party followed them by hiding themselves behind the grills of the DDA Park, that at about 11:15 am in the park they saw that one lady and man & secret informer indicated upon them & he went near them & asked for prostitution with them, that the man and lady told him that they would arrange a girl for prostitution but they will charge sum of Rs 3,000/- for the same, that finally they agreed to receive sum of Rs 2,000/-, that the man went outside the park & returned after about 10 minutes along with one girl & the man and that lady informed him that this is the girl for prostitution, that he handed over sum of Rs 2,000/- to that man, that that man had handed over sum of Rs 1,000/- to that girl, that the girl also agreed for prostitution, thereafter he signaled police party by putting his left hand on his head & Inspector Satish Malik raiding party reached at spot, that inspector FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 9 to 23 Satish Malik along with had apprehended that man and Lady Ct. had apprehended those two ladies, that inspector Satish Malik had inquired from him and he informed him accordingly, that after that Inspector Satish Malik had conducted personal search of that man & Lady Ct. Neetu had conducted personal search of two ladies, that two notes of Rs 500/- were recovered from the possession of that man and one note of Rs 1,000/- were recovered from the possession of girl, that on interrogation, the girl's name was revealed as Radha @ Rekha and the name of the man was revealed as Intizar Ahmad and name of the lady as Mumtaz Begum, that the currency notes were recovered by the police were seized and seizure memo Ex. PW4/A and Ex. PW3/E in this regard were prepared, that inspector Satish Malik prepared a Tehrir and handed over the same to Ct. Jai Singh who went to PS for registration of the case and got the case registered, that in the mean time Inspector Satish Malik interrogated all the three accused persons and also prepared site plan, that Ct. Jai Singh returned to spot and handed over original tehrir and copy of FIR to the Inspector Satish Malik, that he formally arrested the accused persons and arrest memos Ex PW3/A & B and arrest memo Ex. PW 4/B was prepared, that the personal search of accused persons were also conducted and memo in this regard was also prepared, that his statement was also recorded at the spot by IO, that he was discharged from the spot. Thereafter, MHC(M) from PS Chandni Mahal has produced the two envelopes which are stapled but not sealed bearing particulars of the present case, that with the court permission, one envelope is opened and the same found containing two currency notes of Rs 500/- each bearing Sl. No. 4KB 19282J & JBC 934559 the same is shown to the witness, witness correctly identified the same as recovered from the accused Radha, that another envelope is opened and the same found containing one currency note of Rs 1,000/- bearing Sl. No. SES 9850J4 the same is shown to the witness, witness correctly identified the same as recovered from the accused Intizar Ahmad.
FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 10 to 23
14. PW-5 is Inspector Satender Mohan, who deposed that on 28.06.2012, he was posted as Inspector/SHO at PS Chandni Mahal, that he collected the case file from MHC(M) and done necessary investigation and after completion of investigation filed the chargesheet.
15. PW-6 is Inspector Satish Malik, who deposed that on 13.06.2012, he was posted as an Inspector, ATO, at PS Chandni Mahal, that he was working as SHO at PS Chandni Mahal, that at about 9.45 am, he received a secret information through one secret informer regarding a racket of prostitution being operated by a man and a woman near Vardhman Plaza, DDA Park, Turkman Gate, that he shared this information with ACP and he instructed him to take a strict action as per law, that he got lodged a DD entry regarding the incident vide DD no. 24B at PS. Chandni Mahal, that he along with SI Mohit Yadav, HC Mahender, Ct. Ravinder, Ct. Jai Singh and W/Ct. Neetu left for Turkman Gate in Govt. gypsy as he already shared the information to above said staff, that they reached at Turkman Gate at 10.20 am, that he requested 4-5 public persons to join the investigation as he shared the information with them but none of them agreed and left the place without disclosing their names and addresses, that he constituted one raiding team from which SI Mohit Yadav and HC Mahender were in Civil Dress, that he conducted the personal search of SI Mohit Yadav, that he handed over a currency of sum of Rs. 2000 in denomination of 1000x1 and 500x2 and prepared handing over memo which is Ex.PW3/DA, that it was about 10.45 am and he along with raiding party and secret informer reached at Vardhman Plaza, that on his instruction, SI Mohit Yadav became a decoy customer and HC Mahender became his shadow witness and he also instructed them along with secret informer to fix a deal with above said man and woman and whenever the deal will be fix, to give a desired signal i.e. to put left hand on head, that secret informer pointed FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 11 to 23 towards the place and persons and left the spot, that at about 10.55 am, SI Mohit Yadav and HC Mahender went inside the DDA park and after some time, SI Mohit Yadav gave them the desired signal as he notice that both the officials were talking to one man and two ladies and thereafter, immediately they all went inside the DDA park and apprehended the accused persons red handed, that on interrogation and information from SI Mohit Yadav, he recovered above said currency notes from the accused persons from which 1000 rupee note was recovered from accused Radha @ Rekha and 1000 ie. 500x2 Rupee notes were recovered from Imitiaz Ahmad, that he seized the above said currency notes with separate seizure memos Ex.PW3/E and Ex.PW4/A, that he prepared a rukka Ex.PW6/A and handed over the same to Ct. Jai Singh for registration of FIR, that after some time, Ct. Jai Singh came back along with copy of FIR and original rukka and handed over the same to him, that he arrested the accused persons and prepared memos Ex.PW4/B, Ex.PW3/A & Ex.PW3/B, that he conducted the personal search of accused Imitiaz Ahmad vide Ex.PW6/B, that he got conducted the personal search of both the accused Mumtaz and Rekha through W/Ct. Neetu and prepared memo Ex.PW3/C and Ex.PW3/D, that they took all the accused persons along with case property and came back to the PS Chandi Mahal and deposited the case property in malkhana, that he got conducted the medical examination of all the accused persons and kept them in lockup, that he recorded the statement of witnesses. Thereafter, MHCM has produced one transparent polythene containing two envelopes bearing particulars of the present case, that one envelope is opened from which Rs.1000/- (one note of Rs.1000/-) is taken out and same is shown to the witness and witness has correctly identified the same on the basis of the currency note number mentioned in the seizure memo Ex.PW3/DA,that another envelope is opened from which Rs.1000/- (two currency notes of Rs.500/-each) is taken out and same is shown to the witness and witness has correctly identified the same on the basis of the currency note FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 12 to 23 number mentioned in the seizure memo Ex.PW4/A. He further deposed that he handed over the currency notes to SI Mohit Yadav.
16. In the cross examination, PW-6 deposed that he has recorded the DD entry no. 24B at about 10 am on that day, that he did not issue any notice against the public persons who refused to join the investigation, that he entered in the park from the gate which is in front of Vardhman Plaza. He admitted that he has not depicted in the site plan the gate of park wherein he entered firstly. He denied that there is no gate from the side of Vardhman Plaza. He admitted that in the site plan there is no signature of any witness, that he has not put any identification mark on the recovered note. He voluntarily deposed that he did not affix any mark as it is a violation as per RBI guidelines. He further deposed that they reached at the park at about 10.45 am, that he asked public persons to join investigation at the time of search of SI Mohit Yadav, that he recorded the statement of witnesses on the same day on the spot. He denied that he did not receive the secret information regarding a racket of prostitution, that no incident ever took place as stated by him, that he did not conduct the investigation fairly and properly, that no recovery of the case property was effected from the possession of accused persons, that case property was planted upon the accused persons, that accused persons have been falsely implicated in the present case. He further deposed that there was no temporary shops near the gate of park from which he entered, that it took 10- 12 minutes for him to reach spot from PS, that there were no other public persons present in the park except accused persons and police officials. He denied that 8-10 public persons were present at the time of incident, that there were temporary shops near the gate of the park, that accused persons were arrested from their houses and not from the spot.
17. PW-7 is ASI Mahender Singh, who deposed that on 13.06.2012, he was FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 13 to 23 posted at PP Turkman Gate PS Chandni Mahal as HC, that he attended briefing at PS in the morning, that at about 9:45 am one secret informer came and informed IO Inspector Satish Malik regarding act of prostitution by one female and one male, who were as per information present at DDA Park, behind Police Bhawan, that IO passed over this information to ACP, that IO called him, SI Mohit, WCt. Neetu, Ct. Ravinder, Ct. Jai Singh and constituted a raiding team, that they all along with secret informer went to aforesaid spot in government gypsy, that inspector Satish Malik instructed him and SI Mohit for changing the uniform to civil dress, that they changed accordingly, that they departed the PS at about 10:00 am, that when they reached at Turkman gate at about 10:20 am, Inspector Satish Malik shared the information with 4-5 public persons and they were asked to join the raiding party but all of them went away after expressing their inability and did not disclose their names and addresses, that inspector Satish Malik instructed SI Mohit to become decoy customer and asked him to become shadow witness, that when they reached at Police Bhawan they parked the vehicle near Police Bhawan, that IO Inspector Satish Malik handed over to SI Mohit Rs 2,000/- consisting of three currency notes one note of Rs 1,000/- and two currency notes of Rs 500/- each and handing over memo of notes were prepared by IO Inspector Satish Malik which is Ex. PW3/DA, that IO Inspector Satish Malik instructed SI Mohit and him to go DDA Park and if he find any lady and boy who calls SI Mohit for prostitution and to make a deal with them and if the deal is struck, then SI Mohit have to put his left hand on his head to give signal, that he and SI Mohit went inside the park and the rest of police party followed them by hiding themselves behind the grills of the DDA Park, that in the park they saw that one lady and man & secret informer indicated upon them and SI Mohit went near them & asked for prostitution with them, that he remained 5-10 steps behind SI Mohit, that the man and lady told him that they would arrange a girl for prostitution but they will charge sum of Rs 3,000/- for the same, that FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 14 to 23 finally, they agreed to receive sum of Rs 2,000/-, that the man went outside the park & returned after about 10 minutes along with one girl & the man and that lady informed SI Mohit that this is the girl for prostitution, that upon this, SI Mohit handed over sum of Rs 2,000/- to that man, that man had handed over sum of Rs 1,000/- to that girl, that the girl also agreed for prostitution, that after that, SI Mohit signaled police party by putting his left hand on his head & Inspector Satish Malik along with raiding party reached at spot, that inspector Satish Malik alongwith had apprehended that man and Lady Constable had apprehended those two ladies, that inspector Satish Malik had inquired from SI Mohit and he informed him accordingly, that after that Inspector Satish Malik had conducted personal search of that man & Lady Ct. Neetu had conducted personal search of that two ladies, that two notes of Rs. 500/- were recovered from the possession of that man and one note of Rs 1,000/- were recovered from the possession of that girl, that on interrogation, the girl's name was revealed as Radha @ Rekha and the name of the man was revealed as Intizar Ahmad and name of the lady as Mumtaz Begum, that the currency notes were recovered by the police were seized and seizure memo Ex. PW4/A and Ex. PW3/E in this regard were prepared, that inspector Satish Malik prepared a Tehrir and handed over the same to Ct. Jai Singh who went to PS for registration of the case and got the case registered, that in the meantime Inspector Satish Malik interrogated all the three accused persons and also prepared site plan, that when Ct. Jai Singh returned to spot and handed over original tehrir and copy of FIR to the Inspector Satish Malik, that he formally arrested the accused persons and arrest memos Ex. PW3/A and Ex. PW3/B and arrest memo Ex. PW4/B was prepared, that the personal search of accused persons were also conducted and memo in this regard was also prepared, that his statement was also recorded at the spot by IO.
18. In the cross examination, PW-7 deposed that his statement was recorded only FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 15 to 23 once at spot, that he was at distance of about 5-7 steps when SI Mohit Yadav was talking to accused persons. He denied that he could not hear the talks between them, that no identification mark put on the currency notes in his presence, that he did not give any notice under section 160 Cr.P.C to any public person in his presence, that there is only one way for entering into the park. He admitted that public person was present outside the park. He further deposed that site plan was prepared in his presence but his signature was not obtained. He denied that he did not participate in the investigation of the present case and that is why he did not sign on any of the aforesaid documents stated by him, that no recovery was effected in his presence nor accused persons were arrested before him, that accused persons have been falsely implicated in the present case or the case property was planted upon them. He further deposed that there is no shop near park.
19. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
20. Statement of the accused persons Radha, Intezar Ahmed and Mumtaz under Section 313 Cr.PC were recorded vide order dated 08.11.2019 by Ld. Predecessor by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they has been falsely implicated in the present case. Accused persons chose to lead DE, accordingly, matter was fixed for Defence evidence. However, they did not lead any DE and vide separate statement dated 08.11.2019, accused persons chose to close their defence evidence and accordingly, matter was fixed for final arguments.
FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 16 to 23
21. Final argument heard on behalf of defence counsel as well as State and record perused.
22. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
23. Perusal of the record reveals that accused Radha @ Rekha was charged with offence 8 ITP Act and accused persons Intizar Ahmed and Mumtaz were charged with the offence U/s 5 ITP Act.
24. In the present case, It is the version of the prosecution that on 13.06.2012, at about 10:55 am, at DDA Park, Near Vardhman Plaza, Turkman Gate, Delhi, accused Radha @ Rekha by words, gestures, willful exposure of her body tempted or attracted the attention of decoy customer for the purpose of prostitution and found soliciting for prostitution and thus she committed an offence u/s 8 of ITP Act. That on the above-said date, time and place, accused persons Intizar Ahmed and Mumtaz procured accused Radha with or without her consent for the purpose of prostitution and thereby they committed an offence u/s 5 of ITP Act.
25. PW-2 categorically admitted in this cross examination that no public persons was joined in the investigation. Other PWs have also deposed that no public person was joined to the investigation. Furthermore, PW-3 also admitted in his cross examination that there are several tea stalls as well as Pan shops on the pavement in front of Vardhman Plaza. No plausible explanation has been given for not joining independent public witnesses to the investigation which reflect that no sincere efforts were made by the IO for joining public persons to FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 17 to 23 the investigation despite the fact that lot of public persons were present at the place of incident. Therefore admittedly there is no independent witness to the raid and the proceedings carried on by the police officials.
26. The non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses and no efforts seem to have been made for joining independent witnesses.
27. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 18 to 23 has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 19 to 23 of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 20 to 23 In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
28. As per the testimony of PW-2 and PW-3, PW-4 gave signal by moving his hand over his head, however, as the testimony of PW-4 and other prosecution witnesses, he gave signal by putting his left hand on his head, thereby contradicting testimony of each other regarding the mode and manner in which signal was given by the PW-4.
29. PW-2 further deposed that he do not remember the number of notes and he also do not remember whether case property was seized in his presence. He further deposed that he do not remember the exact time of arrest of both the ladies and gents. By way of aforesaid testimony he failed to disclose the material facts by showing his ignorance. PW-2 further deposed in his cross examination that no mark was put on the recovered notes, thereby reflecting bad investigation.
30. PW-3 deposed that ATO had given Rs. 2000/- to SI Mohit Yadav outside the park and handing over memo was prepared bearing her signature whereupon she was confronted with Ex. PW-3/DA wherein it was not so recorded and it is a material contradiction. PW-3 also deposed that she has not heard the conversation between the SI Mohit Yadav and accused persons, thereby she failed to prove the guilt of the accused persons beyond reasonable doubt.
31. PW-6 who is the IO of the present case, categorically deposed in this cross examination that he has not depicted in the site plan the gate of the park wherein he entered firstly, thereby raising doubt about the correctness of the FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 21 to 23 site plan. He has also admitted that he has not put any identification mark on the recovery note, thereby reflecting bad investigation by the police officials.
32. Now coming to the alleged fact that the amount of Rs 2000/- was handed over by PW-6 to decoy customer PW-4 to accused persons in form of 3 currency notes i.e. one of denomination of Rs 1000/- and two of denomination of Rs. 500/- and same were allegedly recovered from the possession of accused persons, it is pertinent to mention that there is no mention regarding the origin or ownership of the said currency notes and police has not taken the currency notes which are expected to be handed over to the accused in such cases from the Malkhana or such source which could lend authenticity to the version of the prosecution.
33. Moreover, it is also to be noted that all the relevant prosecution witnesses have deposed that Ct. Ravinder conducted the search of accused Intizar and recovered two currency notes of Rs. 500/- each and Ct. Neetu conducted the search of accused Rekha @ Radha and recovered RS. 1000/- from the right hand fist of the accused Radha and same was seized vide seizure memo Ex. PW-3/E, accused persons Radha and Mumtaz were arrested vide arrest memo Ex. PW-3/A and Ex. PW-3/B and their personal search was conducted vide memo Ex. PW-3/C and Ex. PW-3/D. Thereafter, IO prepared a rukka for registration of FIR in this case but, perusal of the said seizure memo and arrest/personal search memos reveals that the same mentions the FIR no. alongwith other material details of the case despite it being apparent that FIR was registered subsequent to the preparation of aforesaid memos. The said fact apparent on record therefore makes it clear that the documents have been antedated in time and thus serious doubts have been raised on the entire version of the prosecution.
FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 22 to 23
34. Perusal of the testimonies of PWs reveals that information about the prostitution was given by secret informer and said secret informer reached at the spot along with them. This deposition makes it clear that said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution.
35. In view of aforesaid material contradictions in the testimonies of PWs, possibility of any raid being not conducted cannot be ruled out.
36. Therefore, in view of the abovesaid reasons, appreciation of evidence, material contradictions in the testimonies of PWs and non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused persons beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused Radha @ Rekha is hereby acquitted of the offence u/s 8 ITP Act and accused persons Intizar Ahmed and Mumtaz stands acquitted for the offence U/s 5 ITP Act accordingly.
37. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
38. File be consigned to the record room after due compliance. Digitally signed by SHILPI JAIN SHILPI Pronounced and Signed JAIN Date:
2020.01.14 in the Open Court on 14.01.2020.
16:06:20 +0530 (Shilpi Jain) MM-02(Central)/THC/Delhi 14.01.2020 FIR No. 88/12 PS Chandni Mahal State Vs. Intezar Ahmed & Ors. Page No. 23 to 23