Delhi District Court
State vs I) Pooja on 31 January, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi
Sessions Case No. : 63/2012
Unique ID No. : 02401R0452512012
State versus i) Pooja
D/o Sh.Shakat
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
ii) Padma
D/o Sh.Vishwanath Giri
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
(Proclaimed Offender since
02.07.2013.)
iii) Raziya
D/o Sh.Daud Khan
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
iv) Chanda
W/o Sh.Anil
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
v) Ishraful @ Raj @ Raju
S/o Sh.Rohoman
Gali No.3, Village Dokhan
Boaosar, Distt. Howrah, W.B.
Case arising out of:
FIR No. : 67/2012
Police Station : Kamla Market
Under Section : 366A/372/376/342/109/363/34 IPC &
Sec. 3/4/5/6 ITP Act.
Judgment reserved on : 08.01.2015
Judgment pronounced on : 31.01.2015
JUDGMENT
1. It is the case of the Prosecution that on 25.06.2012 on receipt of information from the Project Coordinator of Rescue Foundation regarding detention of two girls namely 'M' @ 'S' and 'R.K' [name withheld to protect their identities] at Kotha No.58, G.B.Road, Delhi, who were went missing from West Bengal, IO/Insp.Pramod Joshi constituted a raiding team and reached the spot i.e. Kotha No.58, G.B.Road, Delhi along with the members of the Rescue Foundation. At the spot, the passersby were asked to join the investigation, however, they refused for the same. Upon raiding the Kotha No.58, Ist Floor, Right Side, G.B.Road, Delh, all the girls who were present at the said Kotha were gathered there and out of them the missing girl namely 'M@S' was recovered, who was identified by the staff of Rescue Foundation. Besides the aforesaid girl, nine other girls were also rescued from the said kotha and were later on got medically examined. They all were produced before the Child Welfare Committee, who directed action as per law against the accused persons.
2. Upon direction of Child Welfare Committee, IO recorded the statement of one rescued girl namely 'K.B.', wherein she stated that she belongs to West Bengal and that her parents had expired. She further stated that she was residing along with her grandparents and about 6 months ago while she had went for roaming at Sialda Railway Station, one lady met her who upon assuring her of a job and good salary, took the complainant to Bombay where the stayed for 34 days and thereafter to Delhi at Kotha No.58, Ist Floor, Right Side, G.B.Road, where she sold the complainant to accused Pooja and Meena for a sum of Rs.6000/. Thereafter, that lady left from there. Upon refusal of the complainant to live at the aforesaid kotha, accused Pooja and Meena gave her beatings and told her they had bought her for Rs.6000/ and that she would have to do the work of prostitution and earn money for them at the aforesaid kotha.
3. The complainant further alleged in her complaint that she was forced to do the work of prostitution and the money so earned by her was equally distributed amongst both the accused Meena and Pooja. It was also alleged in the complaint that the owner of the aforesaid kotha was Meena and that other girls at the aforesaid kotha were also made to do the work of prostitution by accused Meena and her other associates. It was lastly alleged that accused Pooja and Meena have forcibly detained complainant at the aforesaid kotha and also forced to do the work of prostitution.
4. On the basis of her aforesaid compliant the present case was registered against the accused. During the course of investigation, statements of all the 10 girls were recorded under Section 161 Cr.PC. Accused Chanda was arrested at the instance of Prosecutrix 'S @ 'P'; accused Padma was arrested at the instance of Prosecutrixes 'S' & 'P' and 'P.G.'; accused Pooja was arrested at the instance of 'Prosecutrix 'K' @'B' and accused Razia was arrested at the instance of Prosecutrix 'M'. During the course of further investigation, disclosure statement of all the four accused were recorded, site plan of the place of incident was prepared and statements of the witnesses were also recorded. Statements of the victims, who were rescued from the aforesaid kotha were also recorded under Section 164 Cr.PC wherein the names of other associates of the aforesaid accused persons viz., Pushpa, Indra @ Indrani, Sobhita, Seema, Sandhya and Pratima and the persons who brought these girls to the aforesaid kotha namely viz., Raju, Pintu, Krishan and Bapi were also mentioned. Search for these coaccused were made but they could not be traced despite efforts. These accused were however, placed in Column No.12 of the charge sheet.
5. Charge sheet further discloses that out of the 10 rescued girls, Age Determination Test of the 9 girls was got conducted. Whereas, Age Determination Test of one Prosecutrix namely 'M.K.' was not conducted as she was being handed over to her parents by the Child Welfare Committee and that her missing report was also lodged at PS Swaroop Nagar, West Bengal vide GD No.897 dated 18.06.2012.
6. During the course of further investigation, Age Determination Report in respect of 7 girls was received and the sealed exhibits were sent for expert opinion at FSL, Rohini and the charge sheet qua accused Pooja, Padma, Razia and Chanda was filed after completion of investigation against them.
7. After committal of the case, ossification test report with respect of the remaining two victims was also filed before the court on 12.12.2012 and the accused namely Pooja, Padma, Raziya and Chanda were charged for the offence under Sections 366A/373/368/34 IPC and under Sections 3/4/5/6 of ITP Act r/w Section 34 IPC vide order dated 15.01.2013. All the aforesaid accused pleaded not guilty and claimed trial. It is relevant to mention that accused Padma was declared as Proclaimed Offender vide order dated 02.07.2013.
8. During the course of trial, supplementary charge sheet qua accused Ishraful @ Raju S/o Rohoman was filed before the court consequent upon his arrest in the court in which he had appeared as an accused in another case FIR No.163/2012 PS Burari and charge under Section 366 IPC was framed against him vide order dated 28.10.2013. He was further charged for the offence under Section 366 IPC by way of an amended charge dated 31.05.2014. Accused pleaded not guilty and claimed trial when the aforesaid charge was read over and explained to him.
9. During the course of trial, accused Padma intentionally evaded her appearance in the court and was consequently declared Proclaimed Offender vide order dated 02.07.2013.
10. In order to prove its case, Prosecution examined 12 witnesses which include 06 victims/Prosecutrixes, 03 doctors and 03 police witnesses.
Testimonies of Prosecutrixes :
11. Prosecutrix 'K.B.' was examined as PW1. She deposed that in the year 2012, she met one lady who assured her that she will find a paying job of 'jharopooncha' for her and she came to Delhi with that lady. PW1 further deposed that she do not know her name, But she came to Delhi upon believing her. They came to Delhi by train but prior to that she was taken to Bombay. After two months, she brought her to Delhi and took her to a park and sold her to Accused Pooja for Rs. 6 lakhs. PW1 was brought to Room No. 58 GB Road. PW1 correctly identified accused Chanda and Padma in the court and further deposed that she was given beatings by Meena as her eyes started watering when Accused Pooja applied Kajal in her eyes. Accused Meena used to tell her to do 'Dhanda' with customers. She also used to take money from them.
12. Upon being questioned by the court as to what is the meaning of doing 'Dhanda with customers', PW1 replied that customers used to remove her clothes and do sexual intercourse with her after using condom and against her wishes.
13. PW1 further deposed that the customers used to give her 'Bakshish' and Accused Pooja used to take away said 'Bakshish' i.e money from her and that Accused Pooja and Meena used to give her beatings whenever she used to refused to do prostitution.
14. PW1 correctly identified accused Pooja in the court and further deposed that she can identify accused Meena, if shown to her. She also deposed that there were ten girls besides her and that she was confined in one room and was not permitted to leave from Kotha by the accused persons. She was given food once during the day and she did not try to escape from there as she was afraid that if she tried to do so, the accused persons would give her beatings.
15. PW1 further deposed that one day, she was rescued by the police when raid was conducted and other girls were also rescued. After rescued, first of all, she was taken to Naari Niketan from there, she was shifted to 'STOP HOME'. She was also taken to hospital for her medical examination and was also produced before one Judge to whom she narrated all the facts and her statement was recorded.
16. PW1 also correctly identified her signatures on the statement made to the police as well as the statement under Section 164 Cr.PC recorded by the learned MM and proved the same as Ex.PW1/A and Ex.PW1/B respectively.
17. PW1 also correctly identified accused Razia in court and further deposed that accused Razia also used to force two other girls into prostitution. She also deposed that the kotha No. 58 was owned by accused Meena.
18. Prosecutrix 'N.K.' was examined as PW3, whose statement was recorded with the help of Translator Sh.Bipul Nath as the witness was only conversant with Bangla Language. She deposed that about two years ago, one boy namely Safulmulla who was residing in their village used to tease her whenever she used to come out of her house and he used to call her. One day when she was going to the house of her sister, Safulmulla met her on the way and he placed one handkerchief on her face due to which she became unconscious. Upon regaining her consciousness, she found herself in one room at Sonarpur where one person whose name she do not remember gave her water to drink and after drinking it, she again became unconscious.
19. She further deposed that Saifulmulla had given her water and took her to Howrah where he handed her over to one Bapi who brought her to Delhi by train by threatening with a knife. On coming to Delhi, he sold her to one lady namely Shandhya at G.B.Road. The said lady Shandhya forced her into prostitution and in case of her refusal, Shandhya used to give her beatings with a thick wire. Besides Sandhya, other ladies namely Seema , Sapna and other ladies also used to force her for prostitution and they were also indulged in prostitution.
20. PW3 correctly identified accused Chanda in the court and further deposed that she was one of the ladies who used to force her to do the work of prostitution and that Chanda is the same lady whom she was referring to as Sandhya. Witness further deposed that Bapi had sold her to the same accused i.e. Chanda. She forced her to do the work of prostitution for about one month and that several customers used to come there every day.
21. PW3 also deposed that she was known as Kajal in the Kotha and that around two years ago, police rescued her from the Kotha and that she was got medically examined and her statement U/s 164 Cr.P.C. was got recorded by one Ld. MM. She also correctly identified her signatures on the same and proved the same as Ex.PW3/A.
22. PW3 upon being crossexamined by learned Addl. PP identified another accused viz., Pooja and Raziya and depose that both of them used to force her to do the work of prostitution and that she was confined in the kotha No.58, Ist Floor and was not allowed to go out of the said kotha.
23. Prosecutrix 'K' was examined as PW4. She deposed that she have studied upto V standard and that sometime ago she came to Delhi with one Raju. She started talking to him on phone after he gave her call one day and she replied that it is wrong number but he continued to call her and talked to her. He assured her that he will marry her and induced her to accompany him to Delhi. She met him on the road, as told by him and thereafter, he brought her to Delhi along with him.
24. It is pertinent to mention here that the Prosecutrix 'K' identified Ishraful @ Raju, who was produced in another case FIR No.163/12 PS Burari during the course of her examinationinchief and deposed that he is the same person who had brought her to Delhi after giving her false assurance of marriage.
25. PW4 further deposed that accused Raju sold her to one Indra @ Indrani who brought her to GB Road to Kotha No. 18 and that 10 girls including 'P, 'M' and 'S' were present at the Kotha. She also deposed that Indra used to force her to do 'galat kaam' i.e. she was forced to establish sexual relations with various customers who used to visit the kotha. Indrani also used to keep all her earnings from prostitution. PW4 was confined in the kotha and was not permitted to leave from there. She was also not given any money.
26. Upon being crossexamined by learned Addl. PP, PW4 it was kotha No.58 where she was confined and forced to do prostitution and that Kotha owner Meena also forced her for prostitution. She further identified accused Pooja, Razia and Chanda present in the court and stated that they also used to be present on Kotha No.58 and forced the other girls to do the work of prostitution.
27. Prosecutrix 'S.L.' was examined as PW7. She deposed that she is an illiterate and used to do the work of stitching clothes in her native village. Sometime in year 2012, one Raju met her in her village and proposed her for marriage and she accepted his proposal. He brought her to Delhi on the pretext that he will marry her after reaching there and upon his assurance, he accompanied him to Delhi.
28. PW7 correctly identified accused Raju and further deposed that he kept her in a room and told her that one Didi will come and take PW7 with her. Two girls came there and took PW7 to Kotha No.58, G.B.Road with them to one Meena, who was Manager of the said Kotha. She forced PW7 to do the work of prostitution. Whenever PW7 used to refuse for the same, she used to beat her with danda and pipe. Besides Meena, there were other ladies who used to force her to do the work of prostitution.
29. PW7 also deposed that she only remember the names of Shobita and Chanda out of those ladies. Meena used to keep all her earnings from prostitution and she was kept confined at said Kotha for about one month. There were about 20 other girls at the said kotha, who were also forced to do the work of prostitution by the above mentioned ladies. PW7 was forced to do the work of prostitution with 10 to 12 customers each day.
30. PW7 also correctly identified her thumb impressions on the statement recorded under Section 164 Cr.PC and proved the same as Ex.PW7/A.
31. PW7 also correctly identified Accused Chanda in the court as also Accused Razia and Pooja and deposed that they used to force her to do the work of Prostitution.
32. Prosecutrix 'P.G.' stepped into the witness box as PW8. She deposed that in the year 2012, one day when she went out of her house for work, one Nepali lady met her and she talked to her and told her that she can arrange a job with good salary for me. In the month of March, 2012, that lady brought her to Delhi by train from Sialda Railway Station. PW8 accompanied her to Delhi after believing on her assurance that she will arrange a job for her. She took PW8 to her house where she lived for about one month.
33. PW8 further deposed that she used to do household work in the house of that lady. However, PW8 was not aware of the address of her house. One day, she took PW8 out stating that she is taking her to a market. She took PW8 to a kotha at G.B.Road. It was on first floor right side. PW8 came to know that number of that kotha was no.58 later on after she was rescued. That lady left her in the said kotha and went away.
34. PW8 also deposed that Meena and Padma, both Managers of the Kotha told her that the said lady has sold her to them. They used to force her to do the work of prostitution and in case of refusal, they used to give her severe beatings. They also used to take away all her earnings from the work of prostitution. They also took away her belongings i.e. her ear rings, mobile phone, nose pin, trolley bag etc which she had brought with her from her native village. Besides her there were 1213 other girls, who were also doing the work of prostitution in the said kotha and that she was forced to establish sexual relations with ten customers each day.
35. PW8 further deposed that she remained in the said kotha for about three months and thereafter one day I was rescued by the police. PW8 also correctly identified her signatures on the statement recorded by the learned MM under Section 164 Cr.PC and proved the same as Ex PW8/A.
36. PW8 upon being crossexamined by learned Addl. PP correctly identified accused Razia, Chanda and Pooja in the court and states that all three of them also used to force her and other girls to do the work of prostitution.
37. Prosecutrix 'M' was examined as PW11. She deposed that about 22 ½ years ago, her father gave her beatings on some small domestic issue and she left her house. She went to Sialda along with one friend Sonali @ Rihana. When they reached Sialda Railway Station, one lady met them and asked where they were going. She told her that she want to go back to her house. She also told PW11 that she will take her back to her house as PW8 was not having any money. She offered us ice cream after purchasing it from nearby shop and upon consuming the same, both of them became unconscious.
38. PW11 further deposed that when she regained consciousness, she found herself at Delhi Railway Station. That lady brought her and 'S' to a house in a TSR. She gave her beatings when she asked her to let PW11 go to her house.
39. PW11 also deposed that that lady sold her to some other ladies who confined her at Kotha No. 58, First Floor, GB Road and that they forced her to do the work of prostitution. PW11 further deposed that she will not be able to identify those ladies, if shown to her due to lapse of time and that she cannot say if the accused present in the court were the same persons who sold her or purchased her or forced her into prostitution. PW11 was rescued by police along with other girls who were also confined in the aforesaid Kotha and were not allowed to go outside the Kotha and forced to do the work of prostitution.
40. PW11 also deposed that she was medically examined and her father had lodged a report at PS Swaroop Nagar regarding her missing and that no further action was taken by the local police after her recovery at the request of her father.
Testimonies of Doctors :
41. PW6 is Dr.Azad, who conducted medical examination of Prosecutrixes/victims viz., 'S', 'N.K', 'K.B.', 'M', 'M' 'P.D.','S.L', 'M.K.','K.G.' 'P.G.' on 25.06.2012 vide separate MLCs and proved the same as Ex.PW6/A to Ex.PW6/G respectively. He also referred all the victims for their gynecological examination.
42. Dr.Shalini was examined as PW2, who conducted gynecological examination of Prosecutrixes/victims viz., 'S', 'N.K', 'K.B.', 'M', 'P.D.', 'M.K.', 'P.G.' on 26.06.2012 vide separate MLCs and proved the same as Ex.PW2/A to Ex.PW2/G respectively.
43. PW12 is Dr.Sunil Kakkar, who deposed regarding having conducted the medical examination regarding assessment of the age by the Medical Board in respect of PWs viz., 'P.D', 'S.L.', 'M', 'S', 'K.G.', 'N.K.', 'K.B.','M' and 'P.G.' and proved the report of the age of each victim after the physical, dental radiological examination as Ex.PW10/P1 to Ex.PW10/P9 respectively.
Police Witnesses :
44. PW5 is Ct.Kanwal Kishore, who deposed regarding taking of 10 sealed exhibits with sample seal from malkhana on 28.02.2012 and deposit of the same in FSL, Rohini vide RC No.91/21 and handing over the copy of its receipt to MHC(M) thereafter.
45. PW9 is ASI Ishwar Singh who deposed regarding recording of the FIR of the case on 26.06.2012 and making of his endorsement on the original rukka. He also proved the same as Ex.PW9/A and Ex.PW9/B respectively.
46. PW10 is Insp.Pramod Joshi, who conducted the investigation of the case. He deposed regarding receiving of the information regarding missing of two girls viz., 'M@S' and 'R.K.' from Swaroop Nagar, West Bengal and their confinement at Kotha No.58, Ist Floor, Right Side, G.B.Road, Delhi from the officials of Rescue Foundation, who came to the PS Kamla Market in the evening of 25.06.2012. He further deposed regarding formation of a raiding party consequent upon receipt of the information and reaching at the aforesaid Kotha and collecting of the girls at the Kotha No.58, Ist Floor, Right Side, G.B, Road, Delhi.
47. PW10 further deposed that they found 2025 girls at the said kotha and out of them one girl viz., 'M@S' was identified by the team of Rescue Foundation and documents photographs Mark PW10/A were also provided to them. She showed her interest for going back to her home. PW10 further deposed that 09 more girls also stated that they wish to go whose names were revealed as 'P.D', 'S.L.', P.G.', 'K.G', 'K.B.', 'M', 'N.K.', 'S' and 'N'. PW10 further deposed regarding conducting of their medical examination at LNJP hospital vide MLC Ex.PW2/F and Ex.PW6/H and recording of one of the rescued girls namely 'K.B.' Ex.PW1/A, preparation of rukka thereon vide Ex.PW10/B and recording of the FIR on the basis thereof.
48. PW10 also deposed regarding inspecting of the spot at the instance of one of the rescued girls 'K.B.', preparation of the site plan (Ex.PW10/C), arrest of the accused viz., Chanda, Padma, Pooja and Raziya vide their arrest memos Ex.PW10/D, Ex.PW10/F, Ex.PW10/H and Ex.PW10/J respectively at the instance of the Prosecutrix 'K.B.'
49. PW10 further deposed regarding conducting of ossification test of 09 rescued girls at DDU Hospital and collection of their reports thereafter vide Ex.PW10/P1 to Ex.PW10/P9. He also deposed that one girl viz., 'M' was handed over to her parents by CWC, so her ossification test could not be conducted. PW10 also sent the exhibits to FSL which were collected by him from the doctor after the medical examination of rescued girls vide Ex.PW10/Q. PW10 thereafter completed the investigation and prepared the charge sheet and filed the same in the court.
50. PW10 also deposed that on 09.10.2013, upon the directions of the court, he came to the court and with the permission of the court arrested the accused Ishraful @ Raju, who was absconding in this case and was identified by the Prosecutrix 'K.G.' during the course of her examination when accused appeared in another case before the court vide arrest memo Ex.PW10/R. PW10 completed the investigation qua accused Ishraful @ Raju, recorded the statements of the witnesses, prepared supplementary charge sheet and filed the same in the court.
STATEMENT OF ALL ACCUSED:
51. In statement of Accused recorded under Section 313 CrPC, all the Accused pleaded not guilty and claimed false implication.
52. Accused Pooja stated that she used to do the work of prostitution voluntarily at the aforesaid Kotha and that there were other several girls present at the Kotha who were indulged in the work of prostitution voluntarily. She never purchased any girl nor forced any girl to do the work of prostitution nor did she give beatings to any of the girls at any point of time at the Kotha.
53. Accused Chanda stated that she used to do the work of cleaning the Kotha. She frequently remain unwell as she is HIV positive. She also have a son aged about 19 years, who is also HIV positive. She further stated that she never purchased any girl nor forced any girl to do the work of prostitution nor did she give beatings to any of the girls at any point of time at the kotha.
54. Accused Raziya stated that she used to do the work of prostitution voluntarily at the aforesaid Kotha and that there were other several girls present at the Kotha who were indulged in the work of prostitution voluntarily. She never purchased any girl nor forced any girl to do the work of prostitution nor did she give beatings to any of the girls at any point of time at the Kotha.
55. Accused Ishraful @ Raju stated that he never brought any girl from West Bengal to Delhi or sold any girl to anyone.
56. All Accused chose not to lead any evidence in their defence. ARGUMENTS, ANALYSIS AND FINDINGS:
57. I have heard arguments advanced by Ld. Defence Counsels for all Accused as well as Ld. Addl. PP for the State and have also gone through the evidence on record.
Case against Accused Pooja, Raziya and Chanda:
58. During the course of trial, Prosecution produced the following victims in the witness box viz., 'K.B.', 'N.K.', 'K', 'S.L.', 'P.G.' & 'M'.
59. It is pertinent to note that accused Pooja, Padma (since absconding), Raziya and Chanda have been facing trial for offences under Sections 366A/373/34 IPC for having procured/purchased the victims namely 'SU', 'K.B.' and 'ME'. Out of the said three alleged victims, Prosecution was able to produce only one in the witness box i.e. PW1 'K.B.'
60. It is also note worthy that though some of the Prosecution witnesses have named the aforesaid accused persons for having committed the aforesaid offences, however, admittedly their testimony to this effect, is an improvement over the case of the Prosecution, since accused Pooja, Padma (since PO), Raziya and Chanda have been charged for only in respect of victims namely 'S.U.', 'K.B.' and 'ME' for offence under Sections 366A/373/34 IPC. Out of the said 03 victims, only PW1 'K.B.' has been examined and thus the court can only look into the testimony of PW1 'K.B.' with respect to the aforesaid charges against the accused Pooja, Chanda and Raziya.
61. Accordingly, it is now relevant to revert to the testimony of PW1 to analyze as to whether she, by way of her deposition, has been able to prove the case of Prosecution qua accused Pooja, Raziya and Chanda and to determine as to whether they have committed the alleged offences.
62. As discussed above, in her testimony, PW1 'K.B.' deposed that she accompanied one lady from her native village in the year 2012 to Delhi as she assured her that she will find a job of doing the domestic work in Delhi. PW1 further deposed that she took her to a park and sold her to accused Pooja for Rs.6 lakhs, who took her to Kotha No.58, G.B.Road. PW1 also identified accused Chanda and Padma in the court and deposed that she was given beatings by one Meena who used to tell her to do the work of prostitution. PW1 further deposed that accused Pooja used to take away the money given to her by the customers and accused Pooja and Meena used to give her beatings whenever she used to refuse to do the work of prostitution. PW1 also correctly identified accused Pooja during the trial. She further deposed that there were 10 other girls at the aforesaid Kotha. She was confined in one room and was not permitted to leave from Kotha by the accused persons. She also deposed that she did not try to escape from there as she was afraid that if she tried to do so, the accused persons would give her beatings.
63. During her examinationinchief, PW1 also identified accused Raziya in the court and deposed that she used to force two other girls to do the work of prostitution. Relying on her aforesaid testimony, the Prosecution strongly argued that this witness has categorically established the case of the Prosecution qua accused Pooja, Raziya and Chanda.
64. On the other hand, learned defence counsel drew my attention to the crossexamination of PW1 and submitted that the testimony of PW1 cannot be relied upon.
65. I have considered the aforesaid submissions. At the outset, it may be noted that though PW1 identified accused Chanda during the trial, however, in her entire deposition she made no allegation whatsoever against accused Chanda. PW1 did not even depose that accused Chanda used to be present in the Kotha No.58. Thus the mere identification of accused Chanda by Prosecutrix/PW1 in court cannot, by any stretch of imagination, be said to prove any of the allegations against accused Chanda.
66. It is also borne out from the crossexamination of PW1 that she deposed that she had been living at Kotha No.58 for about 08 years prior to being rescued by police. The witness was questioned as to how she have been living at Kotha No.58 for 08 years when it is her own deposition that she was taken to Bombay by one lady in the year 2011. The witness was unable to give any answer to this query of the court, thus making her testimony wholly unreliable. To my mind, even though in her examination inchief PW1 claimed that she was sold to accused Pooja for Rs.6 lakhs or that accused Pooja and Meena (since absconding) used to give her beatings, in view of her claim that she had been living at Kotha No.58 for 08 years her entire testimony becomes doubtful.
67. It is also reflected from crossexamination of PW1 that she admittedly did not state before the police or to learned MM that she knew accused Pooja and accused Chanda or that accused Pooja used to take away her earnings from her.
68. Moreover, as per the case of the Prosecution, particularly the testimony of PW12 Dr.Sunil Kakkar, the age of PW1 'K.B.' was opined to be between 1517 years as per ossification report Ex.PW10/P7, yet this claim of the Prosecution becomes questionable in view of the testimony of PW1 that she has studied up to Class 9th in her native village. There is no explanation on record whatsoever as to why the Investigating Agency did not obtain the record pertaining to her date of birth from the school attended by the witness in her native village. The Investigating Agency apparently made no effort to trace the said documents pertaining to her age which would have been available at least in the school records where the victim claims to have studied till Class 9th.
69. Evenotherwise, the testimony of PW1 cannot be said to be reliable and does not establish the case of the Proescution qua accused Pooja, Chanda and Raziya for offences punishable under Section 366A/373/368/34 IPC and Sections 4/5/6 ITP Act. However, it is borne out from the testimony of PW1 that a brothel house was being run in Kotha No.58, Ist Floor, Right Side, G.B.Road, Delhi by accused Pooja, and Raziya. The testimony of PW1 to the effect that accused Raziya used to force her and other girls into prostitution is unrebutted as the witness was not crossexamined on behalf of accused Raziya. Accordingly, accused Pooja and Raziya are hereby convicted for offence punishable under Section 3 ITP Act.
70. It is further the case of the Prosecution that accused Pooja, Padma (since absconding), Chanda and Raziya procured/purchased and confined PW8 'P.G' in the aforesaid premises where brothel house was being run. The above named accused are also facing trial for having committed the offences under Sections 4/5/6 ITP Act besides the aforesaid offences.
71. 'P.G.' was examined as PW8. During the course of trial, she deposed that she was brought to Delhi from her native village by one Nepali lady who took her to Kotha No.58, Ist Floor, Right Side, G.B.Road, Delhi where accused Padma and Meena (both absconding) were Managers and she was sold by the said lady to them. She further deposed that she was forced to do the work of prostitution and in case of refusal Meena (since absconding) used to give her severe beatings and also used to take away her earnings. PW8 further deposed that besides her there were 1213 other girls, who were also doing the work of prostitution in the said Kotha and that she was forced to establish sexual relations with 10 customers each day. The witness deposed that she can identify accused Padma and Meena (both absconding) if shown to her. On the pointing out by learned Addl. PP, PW8 identified accused Raziya, Chanda and Pooja in the court and deposed that they used to force her and other girls to do the work of prostitution.
72. During the course of arguments, learned defence counsel for accused Raziya argued that admittedly PW8 was never given any beatings by accused Raziya. However, learned Addl. PP contended that the witness has voluntarily deposed that accused Raziya used to pressurize her to do the work of prostitution and that she used to remain with accused Meena and Padma and they did not permit her to leave the kotha. The witness further clarified in her crossexamination that she did not state the name of accused Raziya to the police as she did not know her name and names of other inmates of Kotha except Padma and Meena. She further voluntarily deposed in her crossexamination that she has recognized the accused persons upon seeing them in the court as she was not aware of their names. Similarly, the witness candidly admitted in her crossexamination that she did not mention the names of Pooja and Chanda in her statements under Section 164 Cr.PC and under Section 161 Cr.PC.
73. Learned defence counsel for accused Pooja and Chanda argued that the witness deposed in her crossexamination that Chanda and Padma never forced her to indulge in prostitution at any point of time and that both of them only used to ask her 'Karna Parega'. PW8 also admitted in her crossexamination that she did not tell learned MM that besides Padma and Meena who used to force her to do the work of prostitution, there were other ladies who also used to force her to do the work of prostitution or that they used to divide their earnings amongst themselves.
74. Relying on the said admission of the witness, learned defence counsel strongly argued that her deposition wherein she has identified accused Pooja, Chanda and Raziya is a clear improvement over the case of the Prosecution and the testimony of this witness cannot be accepted to this extent.
75. I have carefully analyzed the testimony of PW8. It has clearly emerged from her testimony that accused Padma and Meena (both absconding) purchased her from Nepali lady for Rs.15,000/. It is also a matter of record that PW8 did not name any other accused person at the stage of investigation and it is for the first time during her deposition before the court that she identified accused Pooja, Raziya and Chanda in the course of trial.
76. Though the witness has claimed that she did not tell the name of the accused persons to the learned MM or to the police that she was not aware of their names, however, she has categorically admitted that she did not tell the learned MM that besides accused Padma and Meena (both absconding) there were other ladies also who used to force her to do the work of prostitution or take away her earnings.
77. However, PW8 'PG' in her statement recorded under Section 161 Cr.PC dated 26.06.2012 stated to the police that the other ladies living at the Kotha besides Padma and Meena (both absconding) used to divide her earnings amongst themselves and another girl used to do the work of prostitution and they all used to give her beatings. Thus, to my mind there is no plausible explanation as to why the Investigating Agency did not get the TIP of other accused conducted.
78. It has been held by the Hon'ble Apex Court in the case of Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 while relying upon Dana Yadav vs. State of Bihar, 2002 SCC (Crl.) 1698 as under :
"It is clear that identification of accused persons by a witness in the dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible."
79. In the case of Dana Yadav vs. State of Bihar (supra) also the Hon'ble Apex Court has observed as under :
"(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law."
80. In the light of the above discussion, I am constrained to hold that the identification of accused Pooja, Raziya and Chanda by PW8 'P.G.' for the first time before the court cannot be accepted as reliable evidence. The Investigating Agency for the reasons best known failed to get the TIP proceedings of the above named accused persons conducted despite the fact that PW8 had categorically stated in her statement under Section 161 Cr.PC that there were other ladies at the Kotha besides Padma and Meena (both absconding) who used to force her and other girls to do the work of prostitution and divide their earnings amongst themselves.
81. It may also be necessary to mention that though the other Prosecution Witnesses viz., 'N.K' (PW3), 'K' (PW4) and 'S.L.' (PW7) also identified some of the accused persons when they were produced in the witness box, however, their testimonies to this extent cannot be read in evidence as they are beyond the case the case of the Prosecution, as per the report under Section 173 Cr.PC. However, their depositions do become relevant to the extent that it establishes the factum of running of a brothel house in Kotha No.58, Ist Floor, Right Side, G.B.Road, Delhi. Case against accused Ishraful @ Raj @ Raju :
82. As mentioned hereinabove, accused Ishraful @ Raju was, in a dramatic turn of events, identified by PW4 'KG' during the trial when on 09.10.2013 accused was being produced in custody by the police in another case in which the trial was going on before this court.
83. On the basis of the testimony of PW4 recorded to this effect on 09.10.2013, accused Ishraful @ Raju was arrested in this case and was charge sheeted by way of supplementary charge sheet and on the basis of material on record he was charged for the offence punishable under Section 366 IPC for having abducted Prosecutrix 'KG'.
84. PW4 'KG' correctly identified accused Ishraful @ Raju when her testimony was being recorded in court. She deposed that accused brought her to Delhi after her inducing her from her native village that he wants to marry her. Thereafter, he sold her to Indra @ Indrani, who brought her to Kotha No.58, G.B.Road, where 10 other girls were present. She also deposed that Indra @ Indrani used to force her to do the work of prostitution and she was not permitted to go home. Indra @ Indrani also used to keep all her earnings. The witness was extensively crossexamined by learned Amicus Curiae for accused Ishraful @ Raju. However, despite her lengthy crossexamination, the testimony of PW4 remained unimpeached. She categorically stated before the court that it is accused Ishraful @ Raju, who had brought her along with him from her native village.
85. The arguments of the defence that PW4 did not made any attempt to escape while coming to Delhi with the accused completely looses significance in view of the fact that it is her own claim that he induced her that he will marry her and it is only on the assurance of marriage given by the accused which she believed that she accompanied him to Delhi and hence there is no question of her having made any attempt to escape while coming to Delhi.
86. It has further been established from her evidence that after so inducing her and bringing her to Delhi, accused Ishraful sold her at the brothel house and to my mind, the testimony of PW4 establishes the charge for offence under Section 366 IPC qua accused Ishraful @ Raju beyond any reasonable doubt.
87. In the light of the above discussion and the evidence on record, I find that the Prosecution has been able to prove its case for offence under Section 366 IPC against accused Ishraful @ Raju. Accordingly, accused Ishraful @ Raju S/o Sh.Rohoman is hereby convicted under Section 366 IPC. Further, in the light of above discussion, accused Pooja and Raziya are convicted under Section 3 ITP Act, though they are acquitted for the remaining charges. Accused Chanda is hereby acquitted on all counts, considering the material on record.
88. Let accused Ishraful @ Raju, Pooja and Raziya be heard on the point of sentence.
Announced in the Open Court on 31st January, 2015.
(Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi Sessions Case No. : 63/2012 Unique ID No. : 02401R0452512012 State versus i) Pooja D/o Sh.Shakat R/o Kotha No.58, Ist Floor, Right Side, G.B.Road, Delhi.
ii) Padma
D/o Sh.Vishwanath Giri
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
(Proclaimed Offender since
02.07.2013.)
iii) Raziya
D/o Sh.Daud Khan
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
iv) Chanda
W/o Sh.Anil
R/o Kotha No.58, Ist Floor,
Right Side, G.B.Road, Delhi.
v) Ishraful @ Raj @ Raju
S/o Sh.Rohoman
Gali No.3, Village Dokhan
Boaosar, Distt. Howrah, W.B.
Case arising out of:
FIR No. : 67/2012
Police Station : Kamla Market
Under Section : 366A/372/376/342/109/363/34 IPC &
Sec. 3/4/5/6 ITP Act.
Judgment pronounced on : 31.01.2015
ORDER ON SENTENCE
1. Vide judgment dated 31.01.2015, accused Ishraful @ Raju S/o Sh.Rohoman is convicted under Section 366 IPC. Whereas, accused Pooja and Raziya (since absconding) have been convicted under Section 3 ITP Act, though they are acquitted for the remaining charges, while accused Chanda was acquitted on all counts.
2. Arguments have been advanced on behalf of the above named convicts as well as on behalf of State on the point of sentence. I have also gone through the report received from the SHO PS Kamla Market as regards previous conviction, if any, of the above named convicts under the provisions of ITP Act.
3. It is submitted by learned counsel for convict Pooja that keeping in view the fact there is no previous record of earlier conviction in respect of convict Pooja a lenient view may be taken and she may be convicted for the period already undergone by her in custody in this case.
4. Keeping in view the aforesaid facts and circumstances of the case and in view of the report received from SHO, PS Kamla Market that there is no record of any previous conviction of Convict Pooja with respect to offence punishable under Section 3 ITP Act in any earlier case. Convict Pooja is hereby sentenced to undergo Rigorous Imprisonment for 03 years coupled with payment of fine of Rs. 2,000/ and in the event of non payment of fine, she is directed to undergo Simple Imprisonment for 06 months.
5. As aforesaid, convict Ishraful has been convicted for offence punishable under Section 366 IPC. Convict Ishraful is hereby sentenced to undergo Rigorous Imprisonment for 10 years in addition to payment of fine of Rs. 5000/. In default of payment of fine, he shall undergo Simple Imprisonment for 02 years.
6. The above named sentences with respect to both the above named convicts shall run concurrently. They shall also be entitled to benefit of Section 428 CrPC and the period undergone by them in custody during the investigation, enquiry and trial of this case shall be set off, as per the aforesaid statutory provision.
7. It is also necessary to add at this juncture that no order for closure of Kotha No. 58, First Floor, Right Side, GB Road is being passed in this case under Section 18 ITP Act, in view of the restraint order dated 23.1.2013 passed by Hon'ble High Court in Writ Petition bearing No. WP (C) 421/2013, copy of which has been placed on record by Sh. Mukesh Kalia, Ld. Counsel for Convict Pooja. Ld. Counsel for Convict Pooja further informs that the said interim order is being continued and the next date of hearing in the matter is 26.03.2015.
8. Keeping in view the facts of the case, I recommend payment of adequate compensation to the victims in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DLSA, Central District for necessary action.
9. Copy of this judgment and order of sentence be also supplied to above named convict free of cost.
Announced in the Open Court on 18th February, 2015.
(Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.