Delhi District Court
State vs 1. Sheela D/O Pandu on 6 July, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 32/2010
FIR No. : 616/2006
U/s : 368/373/376/109/34 IPC &
U/s : 3/4/5/6 ITP Act
PS : Kamla Market
State Versus 1. Sheela D/o Pandu
Present Address : Kotha No. 58,
st
1 Floor, Right Side, G. B. Road, Delhi.
Permanent Address : Dadar Kabutar
Khana, Mumbai.
2. Reshma D/o Wamen
st
R/o Kotha No. 58, 1 Floor, Right Side,
G. B. Road, Delhi.
Date of filing of Charge Sheet : 10.08.2010
Date of taking up matter for the first time : 10.08.2010
Date of conclusion of arguments : 06.07.2011
Date of Judgment : 06.07.2011
Mr. Rajiv Mohan, Ld. Addl. PP for the State
Mr. Mr. B. S. Sharma & Mr. R. K. Saini, defence counsels for both
the accused persons
FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 1 of 11
JUDGMENT:
Accused Sheela and Reshma were chargesheeted to face trial for committing the offences punishable under Section 368/373/376/109/34 of the Indian Penal Code (hereinafter referred as "IPC") & under Section 3/4/5/6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as "ITP Act").
2. As per the prosecution story on 11.09.2006 at about 07.15 pm Inspector Rakesh Giri, SHO PS Kamla Market received an information while patrolling in the area that a minor girl is being forced into prostitution at Kotha No. 58 on the first floor. He conveyed the information to his senior officers and on their instruction constituted a raiding party of police officers including SI G. S. Sharma, W/SI Sashi Gupta and Ct. Tahir Hussain. As per the chargesheet one NGO was informed.
3. The police party reached at the spot and rescued one Varsha @ Sonia D/o Pandu Ranga, who appeared minor, under Section 13 & 32 of the Juvenile Justice (Care & Protection of Children) Act (hereinafter referred as "J. J. Act").
4. The rescued victim girl Varsha @ Sonia revealed in her statement that she was a resident of Maharashta and was married to one Surender, who deserted her after about 08 days of the FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 2 of 11 marriage. She came to Delhi with a couple by train on pretext of sight seeing. The couple took her to a lady, whose identity was later on revealed as Suman, and left her there. After few days Suman handed over the victim girl Varsha to accused Reshma, owner of the Kotha No. 58, who alongwith accused Sheela physically assaulted her and forced her into prostitution against her wishes telling her that she was sold by Suman to them for prostitution. It was revealed by the victim girl that due to fear of beatings she was compelled to indulge in prostitution and the entire money received by her from prostitution was taken by accused Reshma. She was compelled to disclose her age as 23 years and a mother of two children, whereas she is 17 years old with no child.
5. On the basis of statement of the rescued victim girl Varsha @ Sonia, FIR was registered at PS Kamla Market vide No. 616/2006, under Section 368/373/376/109/34 of IPC & under Section 3/4/5/6 of ITP Act. During investigation, the victim girl was medically examined and accused Sheela was arrested on her pointing out. Efforts were made to search Reshma and Suman. Accused Reshma surrendered in the Court on 04.04.2007 and was arrested. However, Suman could not be arrested due to non FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 3 of 11 availability of her complete address. Statement of the victim girl Varsha @ Sonia was recorded under Section 164 Cr. P. C. She was examined by the Doctor to determine age and as per report of the Doctor on record her bone age on the date of her examination was more than 16 years and less than 17 years. After completion of investigation, chargesheet was filed in the Court of Metropolitan Magistrate.
6. Copies were supplied to the accused by the Metropolitan Magistrate and since the offences alleged in the chargesheet were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court.
7. Primafacie offences punishable under Section 6 of ITP Act and Sections 368/34 and 109/376/34 of IPC were made out against both the accused. In addition, offences punishable under Section 3/4/5 of ITP Act and under Section 373 of IPC were made out against accused Reshma. Charges were framed accordingly, to which both accused pleaded not guilty and claimed trial.
8. Prosecution has examined PW1 Dr. Tripti Arora, who examined the victim girl Varsha @ Sonia vide MLC Ex. PW1/A and PW2 Mrs. Nirja Bhatia, PO, MACT, Saket who had recorded FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 4 of 11 the statement of Varsha @ Sonia during investigation under Section 164 Cr. P. C. vide Ex. PW2/2.
9. Summons repeatedly issued to the complainant/victim girl Varsha @ Sonia were returned unserved with the reports that she was not residing at the given address. There is no other witness to depose about the charges against the accused persons. Ld. Addl. PP submitted that prosecution cannot produce the victim girl Varsha @ Sonia, as a witness in the Court. He accepted and conceded that without the testimony of the victim girl, prosecution cannot succeed in proving the charges against the accused persons.
10. In the above circumstances, no purpose would have been served by examining the remaining prosecution witnesses, who are police witnesses. Prosecution evidence was thus closed.
11. There being no incriminating evidence against the accused persons, their examination under Section 313 Cr. P. C. was dispensed with.
12. I have heard Mr. Rajiv Mohan, Addl. PP for the State and Mr. B. S. Sharma & Mr. R. K. Saini, defence counsels for both the accused persons. I have carefully perused the record.
13. Prosecution has not been able to bring on record even FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 5 of 11 an iota of evidence against the accused persons. It could not produce its star witness, the minor girl, victim of sexual offences. Prosecution has thus miserably failed to prove its case and the charges against the accused. In these circumstances, both the accused namely Sheela and Reshma are acquitted in this case.
14. The circumstances in which the accused charged with serious offences have been acquitted raises concern about the manner in which the investigation was done, inability of the prosecution to produce the victim of sexual offences in the Court during trial and the impact of acquittal on the society.
15. FIR was registered about various offences under the IPC and ITP Act including the offence of buying minor for the purpose of prostitution (Section 373 IPC), sexual exploitation of the minor girl (Section 109/376/34 IPC), procuring a minor for the purpose of prostitution (Section 5 ITP Act) and using a minor girl for prostitution (Section 6 ITP Act). Statement of the victim girl, which is the basis of FIR is very specific and finds narration of circumstances in which she was brought from Maharashtra to Delhi by a couple known to her, who handed her over to one Suman, who sold her to accused Reshma, who was running a FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 6 of 11 Brothel House at Kotha No. 58. It has clearly come in the statement of the victim girl that she was beaten and forced into prostitution by accused Sheela and Reshma.
16. The victim girl in her statement recorded under Section 164 Cr. P. C. by the Metropolitan Magistrate (PW2) revealed spine chilling details about the manner she was physically and sexually abused by and at the behest of the two accused. It is noteworthy that while making the statement under Section 164 Cr. P. C., the victim girl showed blue marks of injury on her body to PW2, who has made observation to this effect in the proceedings. PW1 Dr. Tripti Arora has mentioned in the MLC of the victim (Ex. PW1/A) that as told by the victim girl, she was brought to Delhi from Maharashtra by one couple staying in her neighbourhood on the pretext of taking her for sight seeing and was forced into prostitution.
17. It is disturbing to notice that no investigation has been done by the police to trace the couple, who brought the minor victim girl to Delhi and handed over her for prostitution to one lady Suman. Similarly, no efforts seems to have been made to trace and apprehend Suman, who allegedly sold the victim girl to accused Reshma. Further, at no stage of the rescue operation, FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 7 of 11 any genuine effort seems to have been made to join any independent witness. Though, as per chargesheet some NGO was informed to join the rescue operation, which did not join. There is nothing on record to support this claim. Even the name of NGO informed is not mentioned which creates doubt about the claim. It is noteworthy that as per statement of victim girl to the police, accused Reshma was making many other girls indulge in prostitution at Kotha No. 58. IO has not bothered to examine any other girl and investigate to rule out forced prostitution and sexual abuse and exploitation of minor girls.
18. Record reveals that after the rescue, the minor victim girl was directed to be produced before the Child Welfare Committee by the Duty Magistrate vide order dated 12.09.2006 observing that being a minor and victim of abuse & exploitation, with no fit person to take care of her, she was a child in need of care and protection. Later on an application was moved before the Metropolitan Magistrate for custody of the minor girl by one Suryavanshi Pandurang claiming to be the father and the Metropolitan Magistrate vide order dated 09.10.2006 released the custody of the victim girl to the applicant without considering the consequences on the proceedings before the Child Welfare FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 8 of 11 Committee, the competent authority to deal with the matter. The state also did not bother to properly assist the Metropolitan Magistrate in disposal of the application for custody of the minor girl. As per reported by IO and SHO, the father has died recently. It is noteworthy that application for release of the victim was moved before the Metropolitan Magistrate through advocates Mr. B. S. Sharma and Mr. R. K. Saini, who represented the accused persons as defence counsels during trial before this Court.
19. Though, the minor girl was released in the custody of her father by a judicial order, the prosecution remains responsible to ensure production of the witness in the Court during trial, which it failed miserably in this case. It is difficult to comprehend and believe that a young girl, victim of sexual abuse, released in the custody of father by the Court, would just vanish and the family will not know about her whereabouts. Possibility of the victim girl and the family being influenced or threatened cannot be ruled out.
20. Acquittal of the accused due to nonappearance of victim girl besides giving an impression about inability and failure of the State to provide protection to the victim/witness, weakens faith of the society in the criminal justice system and raises question about its purpose.
FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 9 of 11
21. Trafficking of minor girls for abuse and exploitation is not only a deep rooted menace in the society, it is the worst kind of human right violation. Despite the fact that various laws have been enacted to check child trafficking, fight against sexual abuse and exploitation of minor girls, seems to be a lost battle because not all instances of sexual abuse of minor girls are reported and many criminal prosecutions end in acquittal because victims do not appear to depose during trials. While sexual abuse and exploitation of minor girls is on the alarming high, perpetrators of crime find ways to wriggle out of the criminal justice system. It is high time that the various statutory authorities constituted to protect the rights of minor girls and children against sexual exploitation do a reality check about the success rate of criminal prosecutions for sexual abuse and exploitation of minor girls, identify causes for failure of prosecution and take effective steps within their jurisdiction.
22. It is directed that copy of the judgment be sent to the Chairperson, Delhi Commission for Women and the Chairperson, Delhi Commission for Protection of Child Rights for information and indulgence.
23. Copy of the judgment be sent to Commissioner of FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 10 of 11 Delhi Police for information and necessary action about lapses in the investigation and failure of the police to produce the child victim of sexual assault as witness in the Court during trial.
Announced in the open Court (Santosh Snehi Mann) on 06th July, 2011 Additional Sessions Judge (Central) Tis Hazari Courts, Delhi FIR No. 616/2006; PS Kamla Market; State V/s. Sheela & Another Page No. 11 of 11