Delhi District Court
State vs (I) Haseena on 5 June, 2013
:1:
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 77/12
UID No.: 02401R0610642012
State versus (i) Haseena
D/o Sh.Kadal Ali
R/o Kotha No.57,
IInd Floor, G.B.Road,
Delhi.
(ii) Rajni Singh
D/o Sh.Man Bahadur
R/o Kotha No.57,
IInd Floor, G.B.Road,
Delhi. (Declared
Proclaimed Offender
vide order dated
16.01.2012).
Case arising out of:
FIR No. : 136/09
Police Station : Kamla Market
Under Section : 363/368/372/373/376/109/506/174A IPC &
3/4/5/6 ITP Act.
Judgment reserved on : 30.05.2013
Judgment pronounced on : 05.06.2013
JUDGMENT
:2:
Case of the Prosecution :
The case of the Prosecution as borne out from the charge sheet is that on 09.11.09 during cheking of the Kothas at GB Road, the prosecutrix 'M' [name withheld to protect the identity] narrated her plight to the police. Her complaint Ex. PW1/A was recorded and the case was registered on the basis of said complaint. Complainant who is a native of West Bengal alleged that her father as well as mother married again and she used to remain unhappy due to the said reason. One day she met one lady who brought her to Delhi on the pretext that she would secure good job for her. She took her to Kotha No.57, 1st Floor, Left Side, G.B.Road, Delhi, where accused Rajni (since PO) told that that she has purchased her and that she would have to do prostitution. Complainant 'M' also alleged that accused Haseena was Incharge of the said Kotha. She further alleged that accused Rajni had forced her to do prostitution against her wishes and that she used to give her beatings in case of her refusal. It was also alleged that accused Rajni confined her at the Kotha 57, 1st Floor, Left Side, G.B.Road and used to take all her earnings. Whenever police raided the Kotha she :3: was made to hide. Prosecutrix 'M' further stated that Haseena, Rajni and the woman who bought her there have forced her into prostitution and that legal action be taken against them.
Pursuant to the registration of the FIR on the basis of the said complaint, prosecutrix was got medically examined. Her bone age test was also conducted to ascertain her age, as per which her age was assessed to be more than 15 years but less than 16 years. The statement of the prosecutrix was also got recorded under Section 164 CrPC and after completion of investigation, charge sheet was submitted before the court.
Charges :
The accused were charged for offence punishable under Section 3/4/5/6 of The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the ITP Act) besides Section 368/373/109 r/w Section 376/506/34 IPC vide order dated 25.11.10 considering the material on record. It is a matter of record that initially accused Rajni appeared before the court. However, during the course of trial she absconded and was declared Proclaimed Offender vide order dated :4: 16.1.12. Further, during the course of trial, accused Haseena was also declared PO vide order dated 25.8.12 and pursuant to her arrest, supplementary chargesheet was filed and she also was charged for offence punishable under Section 174A IPC and the case was thereafter fixed for Prosecution Evidence.
Prosecution Evidence :
In order to prove its case, prosecution examined 12 witnesses.
Prosecutrix 'M' stepped into the witness as PW1. She deposed that she had studied upto class VII and belong to a poor family. She deposed that both her parents had remarried and due to behaviour of her step mother, she used to remain disturbed. She also deposed that one day she went to a nearby marked where one lady met her and asked her to accompany her to Delhi and promised to get her a job in a cloth shop and she came to Delhi with said lady. PW1 deposed that on reaching Delhi, she came to know that she was brought to a place known as GB Road and was taken to Room No. 57, First Floor, Left side GB Road. She met one lady namely Rajni there who told her that :5: she had been sold to her and she had to do prostitution. She further deposed that accused Rajni compelled her to do prostitution against her wishes and whenever she refused to do the same, she used to beat her and whatever money she earned, she used to take it from her and used to torture her a lot.
PW1 further deposed that besides Rajni there was another lady namely Hasina who was the Incharge of all the girls and used to force the girls including her to do prostitution and upon refusal, she used to abuse and torture her. She correctly identified accused Haseena in the court .
Prosecutrix further deposed that on 09.11.09 during a raid by the police, she was rescued and narrated the entire story to the police and police recorded her statement which is Ex. PW1/A. She deposed that she was sent to hospital for her medical examination along with the police and thereafter she was sent to Nirmal Chhaya and her statement was recorded under Section 164 CrPC on the next day. This witness also deposed regarding the arrest of both the accused accused persons and proved their arrest memos vide Ex.PW1/C & Ex.PWD :6: respectively.
In order to prove its case that the Prosecutrix was a minor, the Prosecution relied upon the deposition of PW4 Dr.Uma K. & PW9 Dr.Aruna Singh who deposed regarding the medical examination being conducted regarding assessment of age of the Prosecutrix whereby her age was opined to be between 1516 years.
PW2 SI Deepak was the Duty Officer at PS Kamla Market on 09.11.09 and recorded FIR No. 136/09 Ex. PW2/A. Whereas PW10 Ct.Anju deposed regarding taking of the Prosecutrix to the JPN hospital for her medical examination on 09.11.2009 along with W.HC Kamlesh and collection of the MLC and exhibits from the doctors.
Dr.Annika Jindal stepped into the witness box as PW3, who was deputed by the MS of LNJP hospital to depose on behalf of Dr.Neha Gupta, who had prepared the MLC No.163902 of the Prosecutrix on 10.11.2009. The witness has also identified the signatures of Dr.Neha Gupta on the said MLC and proved the same as Ex.PW3/A. Sh.Deepak Dabas, ld. MM was examined as PW6, who :7: deposed regarding recording of statement of the Prosecutrix under Section 164 Cr.PC on 10.11.2009 (Ex.PW1/B) upon being identified by SI Brijesh Mishra.
PW11 SI Jagdish Prasad deposed regarding arrest of accused Haseena, who was declared as PO in this case, on 24.11.2012 from the stairs in front of Kotha No.56 at the instance of a secret informer vide arrest memo exhibited as Ex.PW7/D and got conducted her jamatalashi vide memo Ex.PW11/A. He also proved the DD Entry No.51B to this effect as Ex.PW11/B and also prepared Kalandra vide Ex.PW11/C. While, HC Mohan Singh who was examined as PW7 deposed regarding execution of process under Section 82 Cr.PC issued against accused Haseena on 03.05.2012 for her appearance in the court on 04.06.2012 and proved his report in this regard as Ex.PW7/A. He further deposed regarding arrest of accused Haseena 24.11.2012 by SI Jagdish Prashad in his presence on receipt of secret information vide arrest memo Ex.PW7/D. PW5 Ct.Tajender stepped into witness box and deposed :8: that on 09.11.2009 during the course of routine checking of Kothas at G.B.Road, he along with SI Brijesh Mishra, W/HC Kamlesh and SHO Insp.Surenderjeet Kaur reached at Kotha No.57, Ist Floor, Left Side. Upon inquiries one girl namely 'M' (Prosecutrix) came there and told that she was confined there illegally and was willing to go home. She narrated the whole incident to the IO as to how she was brought to Delhi from Darjeeling by one lady and she left her at the aforesaid Kotha. This witness further deposed that the Prosecutrix pointed towards the accused Haseena claiming that she was the Incharge of the said kotha and also told about other lady namely Rajni who used to force her for prostitution. He also deposed regarding the preparation of the rukka and taking over the same to the PS for registration of the FIR.
Insp.Brijesh Kumar Mishra was brought into the witness box as PW8, who deposed that during the course of routine checking of Kothas at G.B.Road on 09.11.2009 he along with Ct.Tajender, W/HC Kamlesh and Insp.Surinderjeet Kaur reached Kotha No.57, Ist floor. One girl namely 'M' (Prosecutrix) came forward and informed them that she is forcibly kept there and was involved in prostitution with her :9: will. On further inquiry she told them that she belongs to Darjeeling and was brought here by a lady on the pretext of job and was handed over to one lady Rajni and Rajni told her that she has purchased her and she has to do prostitution. This witness further deposed that they were told by the Prosecutrix 'M' that one lady is the Manager of the Kotha and she used to manage all the girls and whenever there is a raid from local police these ladies used to hide her inside the kotha. This witness more or less corroborated the testimony of Ct.Tajender (PW5) and further deposed that IO/Insp.Surinderjeet Kaur wrote down her statement and prepared a rukka and handed over the same to Ct.Tajender for registration of the FIR. He further deposed regarding arrest of accused Haseena vide arrest memo already exhibited as Ex.PW1/A and sent the Prosecutrix to hospital for her medical examination along with W.HC Kamlesh. PW8 also deposed that on 10.11.2009, he took the Prosecutrix to CWC for counselling and also produced in the court where her statement under Section 164 Cr.PC was recorded.
PW12 Insp.Surenderjeet Kaur also deposed on the similar :10: lines as that of PW8 Insp.Brijesh Mishra, and being a member of the raiding team on 09.11.2009 recorded the statement of the Prosecutrix Ex.PW1/A. This witness deposed regarding preparation of rukka Ex.PW12/A, preparation of site plan Ex.PW12/B at the instance of the complainant, arrest of the accused Haseena vide memo exhibited as Ex.PW1/C, seizure of the sealed pulandas pertaining to the Prosecutrix vide memo Ex.PW12/C, recording of the statements of the witness and deposit of the case property in the malkhana. PW12 further deposed regarding arrest of the coaccused Rajni at the instance of Prosecutrix vide memo Ex.PW1/D and conducted her jamatalashi vide memo Ex.PW12/D. Plea of the Accused & defence evidence :
The evidence on record was put to the Accused in his statement recorded under Section 313 CrPC. In her said statement he pleaded innocence and stated that she has been falsely implicated in this case and she has nothing to do with the present case. The accused sought an opportunity to lead evidence in her defence. However, on 23.05.2013 when one DW Sarla appeared in the witness box, the :11: accused stated that she does not want to examine the witness in her defence. Accordingly, the defence evidence was ordered to be closed.
Arguments : Analysis & Findings:
I have heard arguments of Defence as well as Prosecution in the light of the evidence on record. It may be mentioned at the outset that it was not disputed by the defence that the testimony of Prosecutrix PW1 can be read in evidence qua accused Haseena, despite the fact that PW1 was not crossexamined on behalf of coaccused Rajni, who was declared Proclaimed Offender during the course of trial.
It was argued by learned defence counsel representing accused Haseena that though as per the Prosecutrix PW1, she has studied up to class 7th, yet no documentary proof regarding her age was collected by the Investigating Agency deliberately. It was argued that the Prosecutrix was in fact major and reliance on the report of the ossification test of the Prosecutrix is uncalled for in these circumstances.
I have considered the aforesaid submissions. However, the IO PW12 Insp.Surenderjeet Kaur in her crossexamination clearly :12: stated that she was unable to obtain any documents regarding the school of the Prosecutrix during investigation as the Prosecutrix did not specifically state the name and address of her school during the investigation. It is also noteworthy that PW4 Dr.Uma K. and PW9 Dr.Aruna Singh, who were examined by the Prosecution and who proved the ossification report of the Prosecutrix Ex.PW4/A were not crossexamined by the accused during the course of trial.
Moreover, specific evidence with regard to the age of the Prosecutrix has been led by the Prosecution, by way of report Ex.PW4/A. There certainly cannot be any presumption that the documents, if collected from the school of Prosecutrix, could be contrary to the case of the Prosecution. Substantive evidence with regard to the age of the Prosecutrix 'M' having been brought on record vide report Ex.PW4/A, cannot, under any circumstances, be discarded only on the basis of the presumption that school records could have proved otherwise. It is reiterated, even at the cost of repetition, that the accused did not challenge the ossification test report Ex.PW4/A during trial and the testimony of PW4 and PW9 remained unrebutted. The :13: defence also failed to lead any evidence in defence to disprove the prosecution case that the prosecutrix was not a minor.
However, at the same time, it is borne out from the deposition of the PW1 (Prosecutrix) in her crossexamination she deposed before the court that "My date of birth is 25.12.1992". Looking at the aforesaid evidence in its totality and keeping in view the fact that though there is no documentary evidence regarding the precise date of birth of the Prosecutrix. It is apparent from perusal of report Ex.PW4/A read with the aforesaid deposition of PW1 herself regarding her date of birth, that the age of the Prosecutrix can be estimated to be less than 17 years at the time of commission of the alleged offence. Considering the fact that she had stated her date of birth as 25.12.1992 coupled with her deposition that she was brought to Kotha in March, 2009, it appears that at that relevant time she was more than 16 years but below 17 years of age.
In the light of the aforesaid and keeping in view the unrebutted testimony of the PW4 Dr.Uma K. and PW9 Dr.Aruna Singh, I am of the opinion that the Prosecution has been able to prove :14: that the age of the Prosecutrix at the time of commission of the offence in question was less than 17 years.
As a consequence thereof, it is apparent that the Prosecutrix was a 'Minor' within the meaning of 2(cb) of The Immoral Traffic (Prevention) Act, 1956 at the time of commission of the alleged offences.
The Prosecutrix PW1 deposed before the court that she was taken by a lady who brought her to Delhi to Kotha No.57, 1st Floor, Left Side, G.B.Road where a lot of other girls were also present there. Accused Rajni (since PO) compelled her to do prostitution against her wishes. She also deposed that accused Haseena was the Incharge of all the girls there and used to force the girls including her to do prostitution and upon her refusal, accused Haseena used to abuse and torture them. Accused Haseena has been correctly identified by the Prosecutrix in the court. The Prosecutrix also got exhibited her statement under Section 161 Cr.PC as Ex.PW1/A and her statement recorded under Section 164 Cr.PC as Ex.PW1/B. It was contended by learned defence counsel that as per the :15: complaint Ex.PW1/A the only allegation of the complainant/Prosecutrix against the accused Haseena is that she was the Incharge of the Kotha. It was further contended that the allegations of forcing her into prostitution, taking away of her earnings and her confinement were levelled by the complainant only against accused Rajni (since PO) as per her complaint Ex.PW1/A. It was further pointed out that as per her statement under Section 164 Cr.PC Ex.PW1/B, the Prosecutrix did not even whisper the name of accused Haseena and the case of the Prosecution against the accused Haseena is false. It was also argued that keeping in view the statements Ex.PW1/A and Ex.PW1/B, it is apparent that the Prosecutrix PW1 has improved upon her earlier statements. Her testimony which is full of embellishments and improvements, hence cannot be relied upon.
I have considered the aforesaid arguments. However, a careful reading of the complaint Ex.PW1/A would reveal that in the same complaint she also alleged that accused Haseena, Rajni and one lady, who had brought her there and whose name she does not know, had compelled her to do he prostitution against her wishes. She also :16: stated that legal action be taken against them.
In the light of the aforesaid, it is clear that the allegations against accused Haseena as contained in the complaint Ex.PW1/A are not confined merely to the accused Haseena being the Incharge of Kotha only. Rather, in her complaint Ex.PW1/A the complainant PW1 categorically also stated that she was forced to do the work of prostitution against her wishes by the above named persons. Hence, the deposition of the Prosecutrix PW1 to the effect that she was forced to do the work of prostitution against her wishes by accused Haseena who was the Incharge of Kotha and upon refusal she was abused and tortured, cannot be termed as an improvement or embellishment as argued by the defence.
I am supported in my view by a recent pronouncement of Hon'ble High Court in the case titled as Rajinder @ Lala etc. vs. State reported as 2010 Crl.L.J. 15, wherein it has been held that "It is no longer res integra that it is not the requirement of law that every minute detail of the occurrence needs to be recorded in the FIR. The FIR is not intended to be an encyclopedia of the background scenario :17: of the crime". Relying upon the various decisions of Hon'ble Supreme Court, the Hon'ble High Court further held that "the legal principle which can be culled out is that omission of material facts pertaining to the crime in the FIR is a relevant factor in judging the veracity of the evidence of the maker of the FIR but by itself is not sufficient to throw the evidence of the said witness. If the evidence of the said witness is otherwise found to be credible, the omission in the FIR is of no consequence".
In other words, despite the fact that the statement under Section 164 Cr.PC (Ex.PW1/B) is silent with regard to the accused Haseena, I find that her deposition before the court cannot be treated as an exaggeration or improvement. In her complaint Ex.PW1/A, PW1 clearly stated that the accused Haseena and accused Rajni and one lady who had brought her to Delhi, had forced her into Prostitution. When she stepped into the witness box as PW1, the Prosecutrix clearly deposed that accused Haseena was the Incharge of the Kotha and she used to force the girls, including her, to do prostitution and upon refusal, she used to abuse and torture them. The Prosecutrix also :18: correctly identified the accused Haseena in the court.
It was contended by learned defence counsel during the course of arguments that in her statement Ex.PW1/B, the Prosecutrix PW1 stated that she had voluntarily left her house. She also stated that she was told by the lady who had brought her to Delhi that she would have to do sex with boys and she had gone given her consent for the same. It was argued that the Prosecutrix voluntarily indulged in the prostitution and that the accused cannot convicted for having compelled her or induced her to do so.
I have gone through the record and considered the aforesaid submissions. A careful reading of the statement Ex.PW1/B would reveal that in the said statement where she (PW1) stated that she had given her consent to do sex with boys, in the same breath, she also stated that she did so under compulsion. Accordingly, in view of the aforesaid it cannot be held that the Prosecutrix PW1 indulged in prostitution voluntarily.
During the court of arguments, learned defence counsel also argued that as per the crossexamination of PW8 Insp.Brijesh :19: Kumar Mishra and PW12 IO/Insp.Surenderjeet Kaur, they used to do routine checking of the various kothas at G.B.Road, Delhi. It was argued that despite the said routine checking, the complainant/Prosecutrix did not make any complaint to the police officials and hence it cannot be held that she was being forced into prostitution. Rather, it appears that she was living in the said kotha voluntarily.
On going through the crossexamination of the IO/Insp.Surenderjeet Kaur (PW12), I find that there is no force in this argument. IO (PW12) clearly deposed in her crossexamination that "during my investigation the Prosecutrix told me that she was taken to G.B.Road forcibly and without her consent. If she had told me that she was doing the said work with her consent, I would have not registered the case against the accused on her complaint and would have proceeded under Section 32 JJ Act like in case of other girls, who informed that they were doing the work of prostitution voluntarily".
Moreover, PW1 also deposed on 06.04.2011 that she was rescued during raid by the police on 09.11.2009 and that prior to :20: 09.11.2009 also used to come for raiding there but the accused persons used to hide all the girls including her. The Prosecutrix PW1 also deposed before the court that there were other girls besides her, who were forced to do prostitution by the accused persons. In her cross examination she also named some other girls who were rescued along with her and stated that she never went to the market with any of the said girls. She also deposed that whenever they were taken to the market, accused Rajni used to accompany them to ensure that they do not escape.
In the light of the aforesaid evidence, I am of the considered opinion that the Prosecution has been able to prove that the accused Haseena has committed offence punishable under Section 3 of the ITP Act. It has come on record that she was the Incharge of the Kotha No. 57, First Floor, Left side GB Road, Delhi.
It has also been proved that accused Haseena, along with coaccused, induced the Prosecutrix 'M', who has been proved to be a 'Minor' within the meaning of 2(cb) of The Immoral Traffic (Prevention) Act, 1956, to carry on prostitution and is thus guilty of the :21: offence punishable under Section 5 (1)(d) of the ITP Act.
However, in the absence of any testimony of the Prosecutrix with regard to the allegation that the accused Haseena used to take away the earnings of prostitution of the Prosecutrix, the offence under Section 4 of ITP Act does not stand proved against her.
Insofar as charge under Section 6 ITP Act is concerned, a perusal of Section 6 of the ITP Act shows that it provides punishment for detaining a person in premises where prostitution is carried on. From the deposition of Prosecutrix PW1 it has been brought on record that accused Haseena along with accused Rajni had compelled her and other girls in the aforesaid Kotha to do the work of prostitution. Section 6(2) and (2A) of ITP Act reads as under: "Sec.6(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under subsection (1).
Sec.6(2) Where a child or minor found in a brothel, is on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes."
:22:A combined reading of the aforesaid statutory provisions and the evidence brought on record in the present case thus clearly establish that the Prosecutrix who has been proved to be a 'Minor' was recovered from the brothel i.e. Kotha No.57, Ist Floor, Left Side, G.B.Road, Delhi, where she was compelled to do prostitution by accused Haseena besides other accused. The Prosecutrix PW1 was medically examined vide MLC Ex.PW3/A. Dr.Annika Jindal (PW3) who deposed in place of the examining doctor and proved the said MLC Ex.PW3/A. PW3 was not crossexamined by the accused. The contents of the exhibited document i.e. Ex.PW3/A hence stands proved and clearly establish that the Prosecutrix was sexually assaulted. It is recorded in Ex.PW3/A that the last sexual assault was on 09.11.2009.
Accordingly, in the light of the provisions of Section 6(2) and (2A), I find that since the defence has failed to prove the contrary, it stands proved on record by the evidence led by the Prosecution that accused Haseena detained the Prosecutrix in Kotha No.57, Ist Floor, Left Side, G.B.Road, Delhi and thereby also committed offence punishable under Section 6 of the ITP Act.
:23:
However, insofar as offence punishable under Section 376 read with Section 109 IPC is concerned, I find that the Prosecution has not been able to establish the aforesaid charge. It may be noted that the Prosecutrix in her entire testimony before the court has failed to bring out that she ever expressed her unwillingness to indulge in sexual intercourse with the customers who visited the Kotha in question or that any of those customers established sexual relations with her without her unwillingness having been expressed to them by her. Apparently, no such customer has been cited as a witness nor is there any evidence to establish that she was subjected to sexual intercourse by any such customer who was aware of her unwillingness to do so.
I may also take this opportunity to pen down that the ITP Act does not treat any such customer as an accused under this statute. Ironically, though a prostitute, who may have been forced into prostitution, may be convicted under Section 8 of the Act for soliciting or seducing any person for purpose of prostitution, such man is not considered to be an offender under the Provisions of this Act.
Be that as it may, since in the facts of the case in hand, no :24: such customer could be convicted for having committed offence under Section 376 IPC, I find that the accused Haseena can also not be convicted for the offence of having abetted the commission of offence punishable under Section 376 IPC. Accordingly, accused is acquitted for the offence punishable under Section 376 read with Section 109 IPC.
It may be reiterated at this stage for the purpose of clarification, that the fact that the accused cannot be convicted under Section 376 read with Section 109 IPC, cannot be said to imply that she cannot be convicted for having induced the Prosecutrix to carry on prostitution. The Prosecutrix PW1 has clearly deposed that she was forced to do prostitution against her wishes and was even given beatings in case of her refusal. Accordingly, there is sufficient evidence of convicting the accused for the offence punishable under Section 5 of ITP Act, despite the fact that she cannot be convicted under Section 376 read with Section 109 IPC.
Besides the aforesaid charges accused Haseena has also been charged for the offence punishable under Section 174A IPC since :25: she failed to appear before the court despite proclamation issued under Section 82/83 IPC against her. In order to prove this charge, the Prosecution relied upon the PW 7 HC Mohan Singh and PW11 SI Jagdish Prasad.
PW7 HC Mohan Singh deposed that on 03.05.2012, he had gone to Kotha No.57, G.B.Road to execute process under Section 82 Cr.PC issued against accused Haseena for her appearance in court on 04.06.2012. On reaching there he found that accused Haseena was not present there. He recorded statements of Mumtaz and Radhika and also pasted one copy of process outside Kotha No.57 and one copy of process at the notice board of this court and prepared report to this effect as Ex.PW7/A. Statements of the two witnesses recorded by him have also been exhibited as Ex.PW7/B & Ex.PW7/C respectively. He further deposed that on 24.11.2012 an information was received regarding the presence of accused Haseena at Kotha No.56, G.B.Road. He along with SI Jagdish Prasad reached the said Kotha, from where the accused Haseena was arrested by SI Jagdish Prasad in his presence vide arrest memo Ex.PW7/D. PW11 SI Jagdigh Prasad also :26: corroborated the deposition of PW7 HC Mohan Singh and deposed that accused Haseena was arrested on 24.11.2012 from stairs in front of Kotha No.56, G.B.Road vide her arrest memo Ex.PW7/D. On the said date, he recorded DD entry No.51B Ex.PW11/B and prepared Kalandra Ex.PW11/C. The aforesaid evidence was put to the accused Haseena under Section 313 Cr.PC recorded on 03.06.2013. She stated in response that the visit of PW1 HC Mohan Singh at Kotha No.57, G.B.Road on 03.05.2012, recording the statements of Mumtaz and Radhika and the pasting the copy of the process outside the premises of Kotha No.57 as well as at the notice board of this court is the matter of record. She also did not dispute her arrest from Kotha No.56 on 24.11.2012 and stated that it is a matter of record.
The accused further contended that she was critically ill and since there was no body in Delhi to look after her, she had gone to her native place for her treatment. She did not come to know about the process issued against her due to her nonappearance. Later it was revealed to her that the process has been pasted at wrong address. :27:
It was submitted by learned defence counsel that PW7 HC Mohan Singh did not mention in his report Ex.PW7/A that he had made inquiries from Mumtaz and Radhika . It was further argued that there is no independent public witness regarding the arrest of the accused on 24.11.2012 or recording the fact that the accused was not met on 03.05.2012 when PW7 HC Mohan Singh visited Kotha No.57, G.B.Road for execution of process issued under Section 82 Cr.PC.
I have considered the submissions made. However, a careful reading of the deposition of PW7 HC Mohan Singh would reveal that statements of Mumtaz and Radhika, though do find mention in his report Ex.PW7/A, but they form part of said report and have been annexed therewith and exhibited as Ex.PW7/B and Ex.PW7/C respectively.
I also find no force in the plea of the accused that on account of her illness that she was unable to appear before the court. Apparently, no evidence has been led by her to prove her illness or her claim that she had gone to her native place and for that reasons she was unable to appear in the court.
:28:
Moreover, although, it is a matter of record that the accused Haseena was admitted to bail vide order dated 05.04.2013. However, it cannot be disputed that the considerations for bail are entirely different from proof of a fact. In other words, the accused lead no evidence whatsoever on record to disprove the case of the Prosecution that she failed to appear before the court on the specified time. Rather, from the testimony of PW7 HC Mohan Singh and PW11 SI Jagdish Prasad, it has been borne out that the accused failed to appear before the court after issuance of process under Section 82 Cr.PC against her and thereby committed offence punishable under Section 174A IPC and is accordingly convicted for the said offence.
In the light of the above discussion and upon considering the evidence and the relevant case law, accused Haseena is hereby convicted for the offence punishable under Sections 3, 5(1)(d) & 6 of ITP Act besides Section 174A IPC.
However, for want to cogent evidence to the effect that accused Haseena in furtherance of common intention with coaccused wrongfully concealed the Prosecutrix at Kotha No.57, Ist Floor, :29: G.B.Road, Delhi or brought the said prosecutrix with the intent that she shall be employed for the purpose of prostitution, the accused is hereby acquitted for the offence punishable under Section 368/373/34 IPC. Further, as already discussed above, the accused is also acquitted for the offence punishable under Section 376 read with Section 109 IPC. Similarly, in the absence of any evidence against her for the offence punishable under Section 506/34 IPC, accused Haseena is also acquitted for the said offence.
Let accused Haseena be heard at the point of sentence for offences punishable under Sections 3, 5(1)(d) & 6 ITP Act and under Section 174A IPC.
Announced in the Open Court
on this 5th day of June, 2013 (Kaveri Baweja)
ASJ/Spl. FTC2 (Central)
Tis Hazari Courts: Delhi.
:30:
State Vs. Haseena & Anr.
FIR No.: 136/09
PS : Kamla Market
SC No. : 77/12
05.06.2013
Present : Ms.Neeta Gupta Learned APP for State.
Accused Haseena on bail with counsel Sh.Mukesh Kalia, Advocate.
Vide separate judgment announced today in open court accused Haseena is hereby convicted for the offence punishable under Sections 3, 5(1)(d) & 6 of ITP Act besides Section 174A IPC. Let she be taken into custody.
To come up for arguments on the point of sentence on 06.06.2013.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:31:In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 77/12
UID No.: 02401R0610642012
State versus (i) Haseena
D/o Sh.Kadal Ali
R/o Kotha No.57,
IInd Floor, G.B.Road,
Delhi.
(ii) Rajni Singh
D/o Sh.Man Bahadur
R/o Kotha No.57,
IInd Floor, G.B.Road,
Delhi. (Declared
Proclaimed Offender vide
order dated
16.01.2012).
Case arising out of:
FIR No. : 136/09
Police Station : Kamla Market
Under Section : 363/368/372/373/376/109/506/174A IPC &
3/4/5/6 ITP Act.
Judgment pronounced on : 05.06.2013
Vide judgment dated 05.06.13, Accused Haseena has been convicted for offences punishable under Sections 3, 5(1)(d) & 6 ITP :32: and under Section 174A IPC.
I have heard the submissions on the point of sentence. It is submitted by learned counsel for the convict Haseena that the convict has not been previously convicted in the offence of similar nature. Report of SHO PS Kamla Market to this effect has also been filed in the court today. On the other hand, ld. APP has prayed for maximum punishment prescribed to the convict, keeping in view the nature and gravity of the offence.
Having regard to the facts and circumstances of the case convict Haseena D/o Sh.Kadal is ordered to be sentenced as under:
(i) For offence under Section 3 of Immoral Trafficking (Prevention) Act, 1956, the above named convict is directed to undergo Rigorous Imprisonment for 3 years in addition to payment of fine of Rs.2000/. In default of payment of fine, she shall undergo Simple Imprisonment for 6 months.
(ii)Since the Prosecutrix has been held to be a 'Minor' within the meaning of Section 2(cb) of the Immoral Traffic (Prevention) Act, 1956, and convict Haseena is found guilty of the offence punishable under Section 5 (1) (d) of Immoral Trafficking (Prevention) Act, 1956 read with Proviso (ii) to Section 5(1) of the Act, convict Haseena is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs.2000/. In default of payment of fine, she shall undergo Simple Imprisonment for 2 years.
(iii) For offence punishable under Section 6 of of Immoral :33: Trafficking (Prevention) Act, 1956, the above named convict is directed to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs. 10,000/. In default of payment of fine, she shall undergo Simple Imprisonment for 2 years.
(iv) For offence punishable under Section 174A IPC, above named convict is directed to undergo Rigorous Imprisonment for 3 years in addition to payment of fine of Rs. 6,000/, in default whereof, she shall undergo Simple Imprisonment for 6 months.
Further, having regard to the fact that it has been proved on record that premises in question i.e. Kotha No. 57, Ist Floor, Left Side, G.B. Road, Delhi was being run as a Brothel House, I deem it appropriate to exercise my powers under Section 18 of Immoral Trafficking (Prevention) Act, 1956 and direct closure of the said Brothel House. SHO PS Kamla Market shall, after evicting the occupiers of the said Brothel House, ensure closure of the said premises within a period of 07 days from the date of this order, under intimation to this court.
It may be reiterated that it has been proved on record that the Prosecutrix who was a 'Child' was found in the aforesaid brothel house and the Provisions of Section 18 (1) (b) shall apply.
Copy of this order be sent to SHO PS Kamla Market for necessary compliance.
Further, having regard to the fact that Prosecutrix 'M' has been proved to have been forced into prostitution by convict and has :34: been victim of crime, which is most derogatory for a woman, I deem it appropriate to recommend payment of compensation to her by the appropriate State Government under the provisions of Victim Compensation Scheme, 2011 in accordance with rules.
Copy of the order be sent to Secretary, DLSA (Central) for compliance.
All the sentences shall run concurrently. Needless to add that the convict shall be entitled to benefit of Section 428 CrPC.
Copy of judgment and order on sentence be given to the convicts free of cost.
File be consigned to Record Room with liberty to the State to pursue the matter in the event of arrest of Accused Rajni (since Proclaimed Offender).
Announced in the Open Court
on this 6th day of June, 2013 (Kaveri Baweja)
ASJ/Spl. FTC2
(Central)
Tis Hazari Courts:
Delhi.
:35:
State Vs. Haseena & Anr.
FIR No.: 136/09
PS : Kamla Market
SC No. : 77/12
06.06.2013
Present : Ms.Neeta Gupta Learned APP for State.
Convict Haseena produced from JC.
Sh.Mukesh Kalia, Advocate for the convict Haseena. Vide separate order on sentence announced today in open court convict Haseena D/o Sh.Kadal is ordered to be sentenced as under:
(i) For offence under Section 3 of Immoral Trafficking (Prevention) Act, 1956, the above named convict is directed to undergo Rigorous Imprisonment for 3 years in addition to payment of fine of Rs. 2000/. In default of payment of fine, she shall undergo Simple Imprisonment for 6 months.
(ii) Since the Prosecutrix has been held to be a 'Minor' within the meaning of Section 2(cb) of the Immoral Traffic (Prevention) Act, 1956, convict Haseena is found guilty of the offence punishable under Section 5 (1)
(d) of Immoral Trafficking (Prevention) Act, 1956 read with Proviso (ii) to Section 5(1) of the Act, convict Haseena is sentenced to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs. 2000/. In default of payment of fine, she shall undergo Simple Imprisonment for 2 years.
(iii) For offence punishable under Section 6 of of Immoral Trafficking (Prevention) Act, 1956, the above named convict is directed to undergo Rigorous Imprisonment for a period of 10 years in addition to payment of fine of Rs. 10,000/. In default of payment of fine, she shall :36: undergo Simple Imprisonment for 2 years.
(iv) For offence punishable under Section 174A IPC, above named convict is directed to undergo Rigorous Imprisonment for 3 years in addition to payment of fine of Rs. 6,000/, in default whereof, she shall undergo Simple Imprisonment for 6 months.
Having regard to the fact that it has been proved on record that premises in question i.e. Kotha No. 57, Ist Floor, Left Side, G.B. Road, Delhi was being run as a Brothel House, I deem it appropriate to exercise my powers under Section 18 of Immoral Trafficking (Prevention) Act, 1956 and direct closure of the said Brothel House. SHO PS Kamla Market shall, after evicting the occupiers of the said Brothel House, ensure closure of the said premises within a period of 07 days from the date of this order, under intimation to this court.
Further, having regard to the fact that Prosecutrix 'M' has been proved to have been forced into prostitution by convict and has been victim of crime, which is most derogatory for a woman, I deem it appropriate to recommend payment of compensation to her by the appropriate State Government under the provisions of Victim Compensation Scheme, 2011 in accordance with rules.
Copy of judgment as well as order on sentence be sent to SHO PS Kamla Market as well as Secretary, DLSA (Central) for necessary compliance.
All the sentences shall run concurrently. Needless to add that the convict shall be entitled to benefit of Section 428 CrPC.
Copy of judgment and order on sentence be given to the convicts free of cost.
:37:
File be consigned to Record Room with liberty to the State to pursue the matter in the event of arrest of Accused Rajni (since Proclaimed Offender).
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.