Delhi District Court
State vs . Amanpreet & Ors.; Fir No.848/05; ... on 24 August, 2016
State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02, (SOUTH EAST), SAKET COURTS, DELHI. FIR NO.848/05 U/S. : 3/4/5/8 ITP ACT P.S. : Kalkaji State VS. Amanpreet & Ors. JUDGMENT
1. Sl. No of the case : 308/2/05
2. Date of commission of the offence : 18.08.2005
3. Date of institution of the case : 30.09.2005
4. Name of the accused : (i) Amarpreet D/o
Daljeet Singh (already
convicted vide order
dated 05.02.2013)
(ii) Pinky,
D/o Sh. Bimal Sarkar
(iii) Reshma,
W/o Mohd. Naim
(iv) Anju,
D/o Sh. Paras Ram
(already convicted vide
order dated 05.09.2011)
(v) Ranjit Kaur @ Baby,
W/o Sh.Gulshan Kumar
5. Name of the complainant : ACP Vijay Singh
6. Offence complained of : 3/4/5/8 ITP Act
7. Plea of accused : Pleaded not guilty
8. Final order : Accused Pinki,
Resham and Ranjit
Kaur @ Baby are
acquitted
9. Date of such order : 24.08.2016
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State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. All the accused persons have been sent to face trial under section 3/4/5/8 ITP Act by the SHO, PSKalkaji, New Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 18.08.2005, IO/SI Prabhu Dayal, PS Kalkaji received an information through a secret informer regarding prostitution racket being ran at 14/2 Kalkaji, New Delhi and the said information was reduced in writing vide DD No.26A. He conveyed the said information to ACP Vijay Singh. Thereafter, ACP Vijay Singh constituted a raiding party consisting of Insp. Gurcharan Dass, SHO, PS Kalkaji, SI Sanjeev Solanki, SI Prabhu Dayal, HC Shashi Bhushan, HC Bhajani Ram, Ct. Harish, W/Ct. Meena and himself. At around 10:30 pm, they reached near 14/2, Kalkaji, New Delhi in a government vehicle. There, ACP Vijay Singh asked 45 public persons to join the raiding party but none agreed and left the spot without disclosing their names and addresses. Thereafter, ACP deputed SI Sanjeev Solanki as decoy customer to strike a deal of prostitution and handed over four currency notes of Rs.500/ each bearing numbers 3EC773253, JDL390355, 8AP047901 and OBN000497 for the purpose of the said deal. The said currency notes were signed by ACP and they were hand over to SI Sanjeev Solanki after executing a handing over memo. HC Shashi Bhushan was deputed as a shadow witness to observe the deal and instructed him to give indication after completion of the deal. Thereafter, they were insturcted to go to top floor of the said house. At around 10:40 pm, shadow witness HC Shashi Bhushan indicated about the completion of 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
deal in the said premises. On receipt of signal, IO alongwith other members of raiding party, raided the said premises and apprehended four ladies, whose names were revealed as Amanpreet @ Aman, Pinki, Anju and Reshma.
3. SI Sanjeev Solanki told the IO that he struck a deal for prostitution with Amanpreet @ Aman and as per the said deal, Rs.2,000/ was to be paid to Aman on the finalization of deal. He further told that thereafter, accused Aman produced the abovesaid three girls and asked him to select one of them. He told the IO that the said girls tried to solicit him for prostitution by promoting and advertising their skills in prostitution and sexual satisfaction. He further told the IO that he selected one girl namely Anju out of the said three girls and he gave Rs.2,000/ to Aman in the form of said four currency notes. He further told that Aman gave two currency notes of Rs.500/ out of the said four currency notes to Anju and she kept remaining two currency notes in her blouse. Thereafter, IO interrogated the accused persons individually and after satisfying, W/Ct. Meena personally searched the accused Aman. During her personal search, two currency note of Rs.500/ were recovered from her blouse and two other currency note of Rs.500/ were recovered from the right hand of accused Anju. The said currency notes were confirmed to be the same notes that were handed over by ACP to decoy customer. IO seized the said currency notes vide seizure memo. ACP Vijay Singh prepared a rukka/tehrir and got the present FIR No.848/05, under section 3/4/5/8 ITP Act, PS. Kalkaji, registered through Ct. Harish. The investigation of this case was entrusted to SI Prabhu Dayal. He prepared site plan at the instance of ACP Vijay Singh. Accused persons were arrested by IO and their disclosure statements 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
were recorded. During investigation, the accused persons disclosed that accused Ranjeet Kaur was running the said prostitution racket and in her absence it was being run by her sister Amanpreet. Thereafter, accused Ranjeet Kaur was also arrested. After completion of the investigation, charge sheet was prepared and filed in the Court.
4. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to all the accused persons. Prima facie charge under section 3 ITP Act was made out against the accused Ranjeet Kaur, charge under section 4 ITP Act was made out against accused Amanpreet @ Aman and charge under section 5 and 8 ITP Act was made out against remaining three accused persons Pinki, Reshma and Anju. Accordingly, on 21.10.2005, the separate charges were framed against them. Accused persons pleaded not guilty to their respective charges and they claimed trial. Later on 05.09.2011, an amended charge under section 8 of ITP Act was framed against the accused Anju. She pleaded guilty and therefore, she was convicted and sentenced vide order dated 05.09.2011. During trial, the accused Amanpreet @ Aman had pleaded guilty and she was convicted and sentenced vide order dated 05.02.2013. The case proceeded for prosecution evidence in respect of the remaining three accused persons.
5. In order to substantiate its case, the prosecution examined five witnesses.
6. HC Mange Ram (PW2), HC Harish (PW3) and Insp.
Sanjeev Solanki (PW4) (decoy customer) were the members of the raiding party. They have deposed on the lines of the case of the prosecution. Therefore, their respective testimonies are not reproduced 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
herein for the sake of brevity and to avoid prolixity. PW2 and PW3 identified the four currency notes that were produced by MHC(M) in a sealed envelope during their respective testimonies. They are Ex.P1 (colly). They correctly identified all the three accused persons.
7. HC Kalyan Singh (PW1) had registered this FIR. He has proved its copy as Ex.PW1/B. W/Ct. Alka (PW5) was with IO on 19.08.2005 at the time of the arrest of accused Ranjeet Kaur. After examination of PW5, PE was closed.
8. Statements of all the three accused persons u/s. 313/281 Cr.P.C were separately recorded. All the incriminating evidence were put to them. In the said statements they have stated that they have been falsely implicated in the present case and they are innocent. They have further stated that the case property was falsely planted upon them. However, they preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
9. I have heard the Ld. APP for the state and Ld. Counsel for all the accused persons. I have carefully perused the case record.
10. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
11. In order to sustain conviction U/s.3/4/5/8 ITP Act the 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
prosecution is required to prove the following ingredients:
(i) The accused was keeping a brothel or allowing his premises to be used as a brothel (u/s 3 ITP Act);
(ii) He was living on the earnings of prostitution (u/s 4 ITP Act);
(iii)He procured or induced or took any person for the purpose of prostitution (u/s 5 ITP Act); and
(iv) The accused seduced or solicited for purpose of prostitution (u/s 8 ITP Act).
12. The allegations against the accused Ranjeet Kaur are that she was using her premises i.e 14/2, Top Floor, Kalkaji, New Delhi as a brothel. However, the prosecution has failed to place on record any documentary evidence to establish the possession of the said premises with the said accused. It is also not specified whether she was occupying the said premises as its owner or she was in its possession as a tenant. Therefore, no evidence is forthcoming to explain the nature of possession of the said property with the said accused, if any. Further, she was not apprehended at the time of the raid at the said house. She was arrested later on 19.08.2005 on the basis of disclosure statements of coaccused persons. The disclosure statements of the accused persons, in absence of any discovery of fact thereof, is inadmissible in evidence. In these circumstances, the prosecution has miserably failed to establish that the accused Ranjeet Kaur was in possession of the said property and in its absence there exists no ground to assume that the accused was using the said property for the purpose of brothel. Therefore, there is no occasion to convict the accused Ranjeet Kaur for the offence punishable u/s 3 ITP Act and accordingly, she is acquitted for the said offence.
1/10State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
13. The entire case of the prosecution is based upon the testimony of alleged decoy customer PW4 Sanjeev Solanki. The other prosecution witnesses except PW1 and PW5 were the members of the raiding party, who have derived information of the commission of the offence by the accused persons through the said witness. The prosecution has failed to place and prove on record any DD entry to establish that all the members of the raiding party left the PS together for the said purpose. The said departure entry is indispensable for establishing their presence at the spot of alleged raid. Therefore, their presence at the alleged place, time and date of alleged raid is doubtful.
14. Moreover, the prosecution has not examined IO of the case and even MHC (M) has failed to enter witness box to prove register no.19 regarding deposition of sealed envelopes in the malkhana. The said omissions are fatal to the case of prosecution.
15. The alleged prostitution racket is stated to have been busted by the raid conducted on 18.08.2005, at around 10:40 pm, at the top floor of 14/2, Kalkaji, New Delhi. The said place is admittedly a densely crowded residential area. Further, prosecution witnesses have also admitted presence of public persons near and at the said place of raid. The prosecution witnesses have also conceded that the three floors under the top floor were inhabited. Therefore, it is convincingly established that there were many public persons available at the spot of alleged raid. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
16. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness at the time of raid or even at the time of recovery of said two Rs.500/ currency notes. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
17. The reliance can also be placed upon the findings given by Hon'ble Apex Court in case titled as Harjit Singh V. State of Punjab [2002]SUPP1SCR581wherein it is held: ".........50 Apart from the versions of eyewitnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
under memorandum Ext. P19. We have referred to the statement of Investigating Officer Puran Singh (PW9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex.PV and memorandum of recovery Ext. PU1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their firearms/weapons kept all the arms concealed in an open field in a gunny bag under the heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account."
I also find support from case titled as Aslam Parwez V. Govt. of NCT of Delhi 2003 CriLJ 2525 Hon'ble Supreme Court has held:
"10......In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 1 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially when the public and independent witnesses did not at all support the prosecution case on any material particular."
18. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged raid and recovery of the said four currency notes of Rs.500/ each, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused persons. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
19. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
the accused persons namely Pinky, Reshma and Ranjeet Kaur @ Baby and they are acquitted of the charge U/s. 3/4/5/8 ITP Act. They are directed to furnish fresh personal bond in the sum of Rs.15,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. They are furnished and they are accepted for the next six months.
File be consigned to record room after due compliance.
Announced in the open court on 24.08.2016 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI 1/10 State Vs. Amanpreet & Ors.; FIR No.848/05; PSKalkaji; U/s 3/4/5/8 ITP Act.
State Vs. Amanpreet & Ors.
FIR NO.848/05PSOIA U/s. 3/4/5/8 ITP Act.
24.08.2016 Present: Ld. APP for the State.
All the accused persons namely Pinky, Reshma and Ranjeet Kaur @ Baby are on bail with their counsel. Accused persons namely Amanpreet and Anju are already convicted.
Final arguments are heard. Case file is perused.
Vide my separate judgment announced in the open court today, all the three accused persons namely Pinky, Reshma and Ranjeet Kaur @ Baby are acquitted for the offence punishable U/s 3/4/5/8 ITP Act. They are directed to furnish fresh personal bonds in the sum of Rs.15,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. The same are furnished and they are accepted for the next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/South East/Delhi 24.08.2016 1/10