Delhi District Court
State vs . (1) Pooja on 17 September, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 17/2012
Unique Case ID: 02404R0042362012
State Vs. (1) Pooja
D/o Gauran Sarkar
R/o B7/114, J.J. Colony,
Bhalaswa Dairy, Delhi
(Acquitted)
(2) Tahira
W/o Shorabh
R/o House No. 275, F Block
JJ Colony, Shahbad Dairy, Delhi.
(Acquitted)
FIR No. : 396/2011
Police Station : Shahbad Dairy
Under Section : 363/366A/34 I.P.C.
3/4/5 I.T.P. Act.
23 Juvenile Justice Act.
Date of committal to Sessions Court : 06.03.2012
Date on which orders were reserved : 10.09.2012
Date on which judgment pronounced : 17.09.2012
JUDGMENT
Brief Facts:
(1) As per the allegations on or before 13.12.2011 at Jhuggi Shahbad Dairy, the accused Pooja and Tahira in furtherance of their State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 1 of 58 common intention, kidnapped the prosecutrix 'S' (name of the girl is withheld being the case under Section 363/366A IPC and Section 3/4/5 ITP Act), aged about 15 years (minor) from her lawful guardianship and kept her in a house at Shahbad Dairy for the purposes of the prostitution. It is further alleged that during this period, both the accused Pooja and Tahira having actual control over the prosecutrix 'S' (a juvenile) assaulted, abandoned, exposed and willfully neglected her and also caused mentally and physical sufferings to her.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 1.8.2011 DD No. 30A was recorded in the police station Shahbad Dairy regarding a person compelling a 15 years old girl into prostitution near Maharana Pratap Chowk, Shahbad Diary, and the life of the said girl was in danger. Another DD bearing No. 31A was recorded which was regarding rape upon a 15 years old girl by a boy at B222, F Block, Maharana Pratap Chowk Shahbad Diary and the said boy had been apprehended. Both the DDs (DD No. 30A and 31A) were marked to ASI Ishwar Singh and on inquiry he came to know that the girl 'P' (name of the girl is withheld being the case under Section 363/366A IPC and Section 3/4/5 ITP Act), aged 15 years had appeared before an NGO and stated that nothing had happened with State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 2 of 58 her and refused for her internal medical examination. He further came to know that Tahira W/o Shorabh stated that she did not want any action against anybody. On 2.8.2011 the girl 'P' was sent to Children Home by the order of Child Welfare Committee. (3) Thereafter, on 23.8.2011 the prosecutrix 'S' (name of the girl is withheld being the case under Section 363/366A IPC and Section 3/4/5 ITP Act) made her statement to SI Mahender Pratap of Police Station Shahbad Dairy in the presence of Welfare Officer. The prosecutrix 'S' in her statement to the police has stated that she was residing at House No. TS7/257, JJ Colony, Bhalaswa Dairy along with her parents and brothers and sisters. She further told the police that about four years back she met Pooja who was residing in the same gali and used to visit one Tahira at Shahbad Dairy. The prosecutrix further informed the police that she came to know that Pooja and Tahira were doing galat kaam and on the asking of Pooja and Tahira she (prosecutrix) also started doing galat kaam at the house of Tahira for last three years. She further told the police that on an average she was attending about 56 client a day and she was being paid Rs.300/ by Tahira and Pooja. On the basis of this statement of the prosecutrix, the present FIR was registered and on the pointing out of the prosecutrix, the accused Pooja and Tahira were arrested. After completing the investigations, the charge sheet was filed in the court.
State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 3 of 58
CHARGE:
(4) Charges under Section 363/366A Indian Penal Code, under Section 3/4/5 of I.T.P. Act and Under Section 23 of Juvenile Justice (Care and Protection of Children) Act, were settled against the accused Pooja and Tahira to which they pleaded not guilty and claim trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as fourteen witnesses:
Public Witnesses:
(6) PW5 Sweta has deposed that on 23.08.2011, she was posted as Welfare Officer at Children Home for Girls No. 1 and on that day she received information from the Child Welfare Committee asking her to accompany the Investigating Officer SI Mahender Kumar who had come to the CWC to interrogate the prosecutrix.
According to the witness, in her presence the Investigating Officer SI Mahender Kumar interrogated the prosecutrix and recorded her statement which is Ex.PW5/A. The witness has deposed that the child in her presence told the Investigating Officer that she stays at Bhalswa dairy and had become friendly one lady by the name of Pooja, also reside in the same gali / area and the said Pooja State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 4 of 58 introduced her to one Tahira, a resident of Shahbad Dairy and she became friendly to Tahira and started visiting her house. According to the witness, the child also told the Investigating Officer that there she came to know that prostitution was being done in the house of Tahira and she/child also got involved in the said work/prostitution. The witness has also deposed that the child further informed the Investigating Officer that 56 customers used to come per day and Tahira used to pay her Rs 300/.
(7) In her cross examination by Ld. Defence Counsels, the witness has deposed that she was posted at Children Home for girls on contractual basis and on the date i.e. 23.08.2011, she was on duty at Children Home for girls No. 1. According to the witness, In her statement, the prosecutrix gave her age as 18 years but when she (prosecutrix) was sent to her, her age was mentioned in the documents as 15 years. She has denied the suggestion that no statement of the prosecutrix was recorded in her presence or that she only signed the same on the asking of the investigating officer. (8) PW6 Karuna Suri has proved the admission record of prosecutrix 'S' who was admitted in the school on 21.04.2008 in class 6th on the basis of transfer certificate issued by MCD school, JJ colony, Bhalswa Dairy in the sessions 20082009. According to the witness, the date of birth mentioned in the school record on the basis of the information provided in the transfer certificate is 10.04.1997 State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 5 of 58 which certificate is Ex.PW6/A and student detail is Ex.PW6/B. (9) In her cross examination by Ld. Defence Counsel, the witness has admitted that at the time of the admission the entry of the date of birth of the child was made on the basis of the information given in the transfer certificate issued by the previous school i.e. MCD JJ colony, Bhalswa Dairy.
(10) PW13 is the Prosecutrix 'S'. She has deposed that she was residing with her family comprising of her parents, five brothers three of whom are married, two sisters both of whom are married and they were doing the business of scraps / rags (kabari). According to the witness, about three to four years ago, the accused Pooja (correctly identified) was residing in the same gali where she (witness) was residing, befriended her and came to on speaking terms with she after which she introduced her with accused Tahira (correctly identified) who was resident of Shahbad Dairy. The witness has deposed that the accused Tahira had asked Pooja about her and Pooja told her that she (witness) was residing in the same gali and Pooja also told Tahira that she (witness) was her friend. According to the witness, on seeing Tahira, she became conscious but Tahira told her that she should not be scared and asked her (witness) to wash face and change the clothes on which she (witness) told Tahira that she wanted to go back home but she (Tahira) refused and she insists that she should change her clothes since they had State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 6 of 58 become dirty. According to the witness, she started crying and wanted to go back home but Tahira consoled her and told her that she should not be scared and insisted that she should change her clothes. The prosecutrix has deposed that thereafter Tahira caught hold of her hand and took her to the bathroom where she changed her clothes and also told Tahira that she wanted to go back home. The witness has deposed that she was offered a cold drink after which she started feeling nausea (chakar aa gay) and became unconscious and after 23 days when she regained consciousness, she found blood all around her, on the bed and the bed sheet and she found Tahira and Pooja in the room and she asked them Didi what had happened, on which they told her it was nothing. According to the witness, the accused Tahira changed the bed sheet whereas Pooja gave her 23 slaps stating where was need to ask, Tahira what had happened but Tahira stopped her saying "she is a child, Don't beat her" (bache hai mat maar) and thereafter she was asked to take her bath and given clothes which she changed. The witness has further deposed that she was also given food after which Pooja went back home but left her at Tahira's house, thereafter Pooja came only after one month while she remained at Tahira's house. According to the witness, she told Tahira she wanted to go back home but Tahira told her that she should speak to Pooja in this regard and thereafter neither Tahira spoke to her on the subject nor Pooja came there. The witness has deposed that after one month State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 7 of 58 when Pooja came there, she (witness) told her that she wanted to go back home and started crying but she (Pooja) told her that now this was her house and during this period galat kaam was done with her (witness) repeatedly for three years.
(11) On Court question as to what does she mean by galat Kam, the witness has explained that 'Dhanda', by removing her clothes, she was subjected to sexual intercourse. She has further deposed that on an average about five customers used to come daily except on Tuesdays when no customer / client came. According to the prosecutrix, one customer used to pay Rs 500/, out of which she was given Rs 300/ and Rs 200/ Tahira used to keep. She has deposed that after some time when she was not being sent home, she herself started doing this work of prostitution and customers were called by Tahira on telephone while Pooja used to come and meet her sometimes and also bring customers on some of the occasions. (12) The prosecutrix has deposed that on one occasion one of the neighbours namely Zubeda saw her being detained by Tahira and asked her what was the matter on which she disclosed to Zubeda that Tahira and Pooja are not permitting her to go back home. According to the witness, Zubeda told her that she could assist her and help her by calling the police if so she (witness) wanted on which she requested Zubeda to call the police on which Zubeda made a call to the police informing them that she (witness) was being pressurized State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 8 of 58 into prostitution by these women and after police came to the spot, she informed them about the whole incident. Witness has deposed that thereafter she was brought to the police station where she was interrogated at length and she told them the entire details of the incident and her statement Ex.PW5/A by the police in the presence of Zubeda. According to the witness, she also pointed out to the police the accused Tahira and Pooja and took them to the house of Tahira and got Tahira arrested first and thereafter she was taken for her medical examination after which she was brought to Rohini courts where her statement was recorded by the Ld. MM vide Ex.PW13/A after which she was sent to Nirmal Chaya. The prosecutrix has deposed that after she was handed over to her parents by the court, she joined the investigations with the police after the warrants was issued against Pooja and pointed out to the Investigating Officer the house of Pooja where she was apprehended and thereafter both Tahira and Pooja were arrested and personally searched vide memos Ex.PW9/C, Ex.PW9/D, Ex.PW2/A and Ex.PW2/B. (13) In her cross examination by Ld. Defence Counsel, the witness has deposed that on the previous date, she had appeared in the court of her own from Laxmi Nagar where she was staying with Mosin with Laxmi Nagar. She admits that she she is married and has voluntarily added that on the asking of her Jija (brother in law) State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 9 of 58 she was married when she was in Class 6th. According to the witness, she was married prior to her meeting Pooja and Tahira and the name of her husband was Shamsher Singh who was living at Khajoori and since he used to take gutka, therefore she did not like him. She has deposed that till the time, she remained with Shamsher Singh, he used to provide her food. According to the witness, she is a Muslim but she is unable to tell whether Shamsher was a Hindu or Muslim but the name of his father was Nawab. She has deposed that her mother Afiza Bibi is her real mother and not a step mother and her brother elder to her is now 2021 years. She is unable to tell the age of the brother who is elder to him nor can she tell the age of her other brothers and sisters. According to the witness, she used to go to school but is unable to tell on what basis her age was entered in the school record. She has deposed that at the time of incident, she was studying in Girls Senior Secondary School, prior to that she was in the MCD school. She has denied the suggestion that her mother used to physically abuse and beat here and has voluntarily added that her mother never raised her hand on her and all her brothers and sisters loved her and took care of her. The witness has admitted that prior to this incident she used to go out frequently with many boys and her mother was never annoyed with her on this account. The witness has voluntarily explained that her mother got annoyed when she walked out from the house of her husband. She has denied the suggestion State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 10 of 58 that thereafter she got married to the person of her choice and stayed at her house only. She has denied the suggestion that the photograph now shown to her Ec.PW13/DX1 belongs to Pooja who treated her like a daughter and with whom she used to stay and has voluntarily added that the lady present in the court is Pooja (accused). (14) On court question, the witness has stated that she does not know the lady in the photograph EX PW 13/DX1. She has deposed that when the Investigating Officer interrogated her, she informed him about all the details and also informed the Investigating Officer that on seeing Tahira, she had become conscious and Tahira told her that she should not be scared and asked her to wash her face and change clothes after which she (witness) told Tahira that she wanted to go back home but she (Tahira) refused and insisted that since the clothes had become dirty after which she should change the same on which she (witness) started crying and wanted to go back home but Tahira consoled her and told her that she should not be scared. The witness has been confronted with her statement Ex.PW13/DX2 wherein the facts are recorded in different manner. The witness has deposed that she also told the Investigating Officer that thereafter Tahira caught hold of her hand and took her to the bathroom where she changed her clothes and told Tahira that she wanted to go back home after which she was offered a cold drink and thereafter she started feeling nausea (chakar aa gay) and became State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 11 of 58 unconscious. According to the prosecutrix, she also told the Investigating Officer that after 23 days when she regained consciousness, she found blood all around her, on the bed and the bed sheet and only found Tahira and Pooja in the room and asked them Didi what had happened, on which they told her it was nothing and thereafter Tahira changed the bed sheet whereas Pooja gave her 23 slaps stating where was need to ask, Tahira what had happened but Tahira stopped her saying "bache hai mat maar". The prosecutrix has further deposed that she had also told the Investigating Officer that thereafter she was asked to take bath and was given clothes and food after which Pooja went back home but left her at Tahira's house, thereafter Pooja came only after one month while she remained at Tahira's house. The witness has been confronted with her statement Ex.PW13/DX2 and Ex.PW13/D3 wherein these facts are not so recorded in the manner in which the witness has deposed in the court. According to the witness, she also told the Investigating Officer that she told Tahira that she wanted to go back home but Tahira told her that she speak to Pooja in this regard and thereafter neither Tahira talk to her on the subject nor Pooja came there and after one month when Pooja came she told her that she wanted to go back home and started crying but she told her (witness) that now this was her house. The prosecutrix was confronted with statement Ex.PW13/DX2 and Ex.PW13/DX3 State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 12 of 58 wherein these facts are not so recorded in the same manner. (15) According to the prosecutrix 'S', she had told the Investigating Officer that one customer used to pay Rs 500/ out of which she was given Rs 300/ and Rs 200/ Tahira used to keep and after some time when she was not being sent home, she herself started doing this work of prostitution and that customers were called by Tahira on telephone and Pooja used to come and meet her sometimes and also bring customers on some of the occasions. However, when she was confronted with statement Ex.PW13/DX2 and Ex.PW13/DX3 wherein these facts are mentioned in a different manner. The witness has further deposed that she had also told the Investigating Officer that one of our neighbours Zubeda saw her on one occasion, as she had come out of the house and Zubeda saw that she (witness) was being detained by Tahira and she asked her (witness) what was the matter on which she disclosed to her that Tahira and Pooja were not permitting her to go back home on which Zubeda told her that she could assist her and help by calling the police on which she requested Zubeda to call the police and there Zubeda made a call to the police informing them that she was being pressurized into prostitution by these women, after police came to the spot and she informed them about the whole incident. The witness has been confronted with the statement Ex.PW13/DX2 and Ex.PW13/DX3 wherein these facts are not so mentioned. The State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 13 of 58 witness has deposed that she also told the Investigating Officer that when her statement was recorded in the police station, Zubeda aunty was with her. When the witness was confronted with the statement Ex.PW13/DX2 and Ex.PW13/DX3, this fact is not so mentioned. (16) The witness has admitted that she was arrested by the police on 01.08.2011 but has denied that she was apprehended along with one boy. She has denied that the information sent by her to the police station was that one boy had raped her and the culprit had been apprehended. She has further denied that thereafter she had made the statement to the SHO that there was no such incident and nothing had happened with her and has voluntarily added that she had told the SHO all what was being done with her. According to the witness, accused Pooja must be around 2022 years as per her estimate and she resides in the back gali of her gali but she does not know the house number of Pooja. The witness has deposed that she does not know which date, month and year Pooja met her for the first time. According to the witness, the accused Pooja is married but she never visited the house of Pooja on contrary Pooja used to visit her house. The witness has deposed that Pooja was residing with her parents and two brothers and the name of brother's of Pooja is Manoj and Beenu and they both are major but unmarried. According to the witness, Pooja used to fetch water from her house as tap is fixed only in her house. She has deposed that all the persons from the locality fetch State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 14 of 58 the water from their (witness) tap due to which reason persons used to remain present whole day near by her house.
(17) According to the witness, she does not know when she met Tahira. She does not know how much time they took to reach the house of Tahira from her house. According to the witness, she left for the house of Tahira at about 6 PM in the evening. The witness has deposed that the house of Tahira is double storied house and there is only one room on the ground floor and one room on the first floor. She has deposed that Tahira has two sons, two daughters and her husband is also residing with Tahira and the elder daughter of Tahira is elder to her (witness) and the other is of her age. The witness has further deposed that the sons of Tahira is also elder to her (witness) and all the children of Tahira were school going but she does not know school timing of the children. According to the witness, the bathroom and toilet is situated on the roof where she used to take bath and ease herself. She states that Tahira used to provide her food and she resided as a tenant of Tahira along with Pooja for three months. According to the witness, there are many other houses nearby surrounding of the house of Tahira. She admits that she stated in her statement that she had done galat kam for three years. She has denied that she is more than 18 years of age. She states that she never failed during her studies. According to the witness, she only twice or thrice went outside from the house of State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 15 of 58 Tahira. She has denied that Pooja shown in photograph Ex.PW13/DX1 is the same lady who was residing as a tenant in the house of Tahira.
(18) The statement of the prosecutrix recorded by the Ld. MM U/s 164 Cr. P.C. which is Ex.PW13/A has been read out to her which she admits and thereafter, the witness was asked, which of her statement is correct, whether she has deposed in the court or what she had told earlier in the court of Ld. MM and she has responded that whatever she had told to the court is true and correct and not what she had told to the MM because at that time she had become perplexed and scared (ghabra gaye thi). She has deposed that she had mentioned to the Hon'ble judge that she was scared and could not make statement. She has denied the suggestion that she had not told the Ld. MM that she was scared at that time. (Court observations :
this aspect is not mentioned in the proceedings conducted by Ld. MM U/s 164 Cr. P.C.) The witness has admitted that in her first statement to the IO, she had given her age as 18 years in the presence of social worker and has voluntarily added that she had got scared at that time.
(19) According to the witness, she had met Zubeda for the first time and did not know her previously. The witness has deposed that she did not raise any alarm at any point of time nor she informed any neighbours that she was forcibly detained by the accused Tahira. State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 16 of 58
She has denied that she does not wish to reside with her mother. She has also denied that she had eloped with some other boy from her house and has voluntarily added that she had told her mother that she was going away. According to the witness, her mother has not come to take her from Children home for girls / Nirmal Chaya since the previous date of hearing (i.e. since the date when she was sent to Nirmal Chhaya).
(20) The prosecutrix has deposed that on the previous date when she appeared from Laxmi Nagar, she was staying with Mosin who is her friend and she want to marry him. She has denied that Mosin is her client at the house of Tahira and used to come there and has voluntarily added that her chacha / uncle Salim resides at Laxmi Nagar and Mosin resides in the same area. She has deposed that her uncle resides in gali No. 10 whereas Mosin resides in the same gali. According to the witness, Salim is not her real uncle and has voluntarily added that he is friend of her uncle and the name of her real uncle is Chottu who is now residing at Kolkatta. The prosecutrix has admitted that her parents are Bangladeshi. She has denied that Salim used to come to the house of Tahira and has voluntarily added that he used to visit her house.
(21) The prosecutrix has deposed that she cannot tell the date when she had gone to the house of Tahira, nor can she tell the date or the year. According to the witness, when she went to the house of State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 17 of 58 Tahira, the IO, one didi (Court has observed that witness means the Lady Constable) were with her and she only pointed out the house of Tahira while sitting in the vehicle itself but did not enter her house. The witness has denied that no documentation was conducted at the spot regarding the arrest of Tahira and they remained there for five minutes only. According to the witness, after three days of 08.01.2012, she went to the house of Pooja along with one police officer and she only pointed out the house of Pooja and returned back to her house. The witness has deposed that she does not know whether the Investigating Officer recorded the statement of Zubeda. According to the witness, she did not tell the names of her customers to the police officers / IO. The prosecutrix has deposed that she had stated the name of Tahira to the doctor at the time of her medical examination. When she was confronted with Ex.PW7/A it is not found so recorded. She has deposed that she does not know any lady by the name of Preeti and she herself was known as Preeti Malhotra in Nirmal Chaya. She admits that when the PCR call was made she gave her name as Preeti Malhotra and also when the police came to the spot she gave her name as Preeti. According to the witness, for the first time she gave her correct name as 'S' when she was being sent to Nirmal Chhaya and uncle (IO) recorded her statement. The witness has denied the suggestion that she was residing as a tenant on the ground floor along with the lady whose photograph is State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 18 of 58 Ex.PW13/DX1 and when Tahira objected to her activities there was a quarrel on which she has falsely implicated her and had not even paid her rental dues. The witness has denied the suggestion that she is a major and a habitual sex worker. She has denied that she had voluntarily left her family and was involved in prostitution without the accused Tahira and Pooja having anything to do with the same. The prosecutrix has further denied that she has deposed falsely only to seek revenge from Tahira whom she has falsely implicated in the present case.
Medical / Forensic Evidence:
(22) PW7 Dr. Vandana Mittal has deposed on behalf of the Dr. Sweta Aggarwal being well conversant with her handwriting and signatures having seen her while writing and signing in course of her official duties. According to the witness, on 14.12.2011 at about 1:25 PM, the prosecutrix 'S', aged 15 years, female was brought by her mother for medical examination with alleged history of sexual assault as told by patient herself and was examined by Dr. Sweta.
The witness has deposed that on local examination, Dr. Sweta found multiple old healed leninor scar mark present on left forearm and no sign of external injury on any other body parts were seen. The witness has further deposed that on per vaginal examination, external genitalia were normal, hymen was torn and old tear present State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 19 of 58 posteriorly. The witness has deposed that as per the MLC, no fresh tear / bleeding / ulceration, no rectal injury present. The witness has identified the signatures of Dr. Sweeta Aggarwal at point A on MLC Ex.PW7/A. The witness has further deposed that the samples were taken as per list from point X to X and sealed with the seal of SD and handed over to L/Ct. Sudesh. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(23) PW8 Anita Chhari has deposed that on 15.12.2011, she was posted as senior scientific assistant Biology and on that day, one sealed cartoon board box was assigned to her for biological and serological examination. The witness has deposed that the seals were intact as per forwarding letter and the same is opened by breaking the seal and it found contain envelope marked as 1a,1b, 1c, 1d,1e,1f, 1g, 1h, 1i, 1j, 1k, 1l, 1m, 1n, 1o, 1p, 1q and 1r. The witness has further deposed that the envelopes were opened and given Ex 1b, 1C1 and 1C2, E. 1d, Ex. 1g, Ex. 1i, Ex. 1j, Ex. 1k1, Ex. 1k2, Ex. 1k3, Ex. 1L, Ex. 1n, Ex. 1o(1), Ex. 1o(2), Ex.1o(3), Ex.1P1, Ex.1P2, Ex.1P3, Ex. 1Q(1), Ex.1Q(2), Ex.1Q(3), Ex.1R(1), Ex.1R(2). According to the witness, she has examined the exhibits serologically and prepared a detailed report which is Ex.PW8/A. The witness has further deposed that she also examined the exhibits biologically and prepared a detailed report, same is Ex.PW8/B. This witness has not been cross State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 20 of 58 examined on behalf of the accused and the entire testimony has gone uncontroverted.
Police Witnesses:
(24) PW1 HC Mahesh Kumar has been examined in chief by way of affidavit which is Ex.PW1/A. He was working as duty officer and has proved registration of the FIR copy of which is Ex.PW1/A and also the endorsement made by him on rukka which is Ex.PW1/B. He has not been cross examined on behalf of the accused and hence the evidence has gone uncontroverted. (25) PW2 SI Sat Narain has been examined by way of affidavit which is Ex.PW2/A. He has relied upon the arrest memo of accused Pooja which is Ex.PW2/A and also her personal search memo which is Ex.PW2/B. He has not been cross examined on behalf of the accused and hence the evidence has gone uncontroverted.
(26) PW3 HC Anand Kumar has been examined by way of affidavit which is Ex.PW3/A. He was working as MHC (M) and has proved the entry in register no. 19 at S.No. No. 1337/11 copy of which is Ex.PW3/A and entry in register no. 21 vide RC No. 140/21/11 copy of which is Ex.PW3/B and copy of receipt / acknowledgment is Ex.PW3/C. He has not been cross examined on State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 21 of 58 behalf of the accused and hence the evidence has gone uncontroverted.
(27) PW4 Ct Brijesh Kumar has also been examined by way of affidavit being a formal witnesses which affidavit is Ex.PW4/A bearing his signatures at points A and B. He was not cross examined on behalf of accused.
(28) PW9 Lady Ct. Sudesh, (No. 1835) has deposed that on 14.12.2011 she along with SI Sukhpal and ATO Jai Prakash went to Nirmal Chhaya Comple and brought the prosecutrix to BSA hospital for her medical examination and mother of the prosecutrix also met them there. The witness has deposed that after medical examination, the doctor handed over one sealed parcel which was taken into possession vide Ex.PW9/A. According to the witness, the prosecutrix pointed out the house of the accused Tahira and Investigating Officer prepared the pointing out memo and identification of Tahira which is Ex.PW9/B and which Tahira was arrested vide memo Ex.PW9/C and her personal search was conducted vide memo Ex.PW2/B and was medically examined.
(29) In her cross examination by Ld. Defence Counsel, the witness has deposed that they left the hospital at 3.00 PM, for going to the house of Tahira. According to the witness, the distance between hospital & house of Tahira is about 3045 minutes by the State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 22 of 58 vehicle and there are offices, residential area, factories and other building in the midway journey. The witness has deposed that the Investigating Officer did not ask any person from the public from residential area to join the investigation. She has deposed that they reached to the house of accused Tahira at about 3.30 or 3.45 pm which house was double storied building and accused Tahira was residing at the ground floor. According to the witness she did not enter the house of accused Tahira and remained present at the gate outside the house and the documents relating to the arrest of the accused Tahira were prepared by the Investigating Officer inside of the house. The witness has deposed that she did not notice any resident at the first floor and has voluntarily added that the prosecutrix told that she was residing at the first floor of the said premises for about 3/4 months. The witness has admitted that there are many houses adjoining and surrounding of the house of Tahira but Investigating Officer did not ask any public persons from the neighbourhood to join the investigation. According to the witness, the pointing out memo Ex.PW9/B was prepared by Investigating Officer in the police at about 5.00 pm but she foes not know the contents of the same. According to the witness, the mother of the prosecutrix met them at Nirmal Chhaya at about 10.30 AM who accompanied them at hospital for medical examination of prosecutrix and the Investigating Officer recorded statement of mother of the State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 23 of 58 prosecutrix after medical of prosecutrix. The witness has deposed that permission was sought by the Investigating Officer while making a written request at Nirmal Chhaya. She does not know the registration number of the Gypsy in which they went to Nirmal Chhaya. The witness has denied the suggestion that she did not join the investigation or no document was prepared by Investigating Officer in her presence or she never visited the house of the accused Tahira or that Tahira was not arrested in the manner as narrated by her.
(30) PW10 Lady Ct. Sudesh (No. 3284 OD) has deposed that on 14.01.2012, she was posted at police station Shahbad Dairy and on that day she along with SI Sat Narain and ATO went to Bhalaswa Dairy at B07/114, J.J. Colony. The witness has deposed that first of all they went to the house of prosecutrix and she also accompanied them to the house of accused Pooja where at the instance of prosecutrix, the accused Pooja was arrested vide memo Ex.PW2/A and her personal search was conducted vide memo Ex.PW10/A and after interrogation, her disclosure statement was recorded vide Ex.PW10/B and was medically examined. The witness has identified the accused Pooja in the court.
(31) In her cross examination by Ld. Defence Counsel, the witness has deposed that she had told to the Investigating Officer in statement that first of all they went to the house of prosecutrix who State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 24 of 58 accompanied them but when confronted with statement Ex.PW10/D it was not found recorded. The witness has deposed that they left the police station at about 67.00 AM in the morning for the house of prosecutrix but she does not remember the address of the prosecutrix. According to the witness, they reached to the house of prosecutrix within 30 minutes but does not recollect as to who were also present there but it was a small house. She does not remember as to whether the house of the prosecutrix was already opened or not. According to the witness, there are many other houses adjoining the house of the prosecutrix and states that the Investigating Officer did not call any public persons to join the investigation. She has denied that the prosecutrix never pointed out the accused Pooja or that Pooja was never arrested at the instance of the prosecutrix or that she was not arrested in the manner as narrated or that all the documents were prepared at police station.
(32) PW11 SI Mahender Pratap has deposed that on 23.8.2011, he was posted at Police Station Shahbad Dairy and was nominated as Juvenile Welfare Officer of Police Station Shahbad Dairy. According to him, on the directions of the SHO, he reached at CWC, Hari Nagar and met Welfare Officer Shweta who accompanied him to Nari Niketan where the prosecutrix was produced before him and he recorded her statement in the presence of Welfare Officer Shweta which statement is Ex.PW5/A. State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 25 of 58 Thereafter, on the directions of the SHO, he went to Govt. Girls School, Libaspur and collected the School Certificate and Student Detail pertaining to the prosecutrix which is exhibited as Ex.PW6/A and Ex.PW6/B. (33) In his cross examination by Ld. Defence Counsel, the witness has deposed that there were two DD entries bearing no. 30A & 31A dated 01.8.2011 at Police Station Shahbad Dairy copies of the same are Ex.PW11/BD and Ex.PW11/CD. According to him, he recorded the statement of prosecutrix in the room of Welfare Officer Sweta at about 2.002.30 PM. He has denied the suggestion that the prosecutrix was tutored and her statement was recorded falsely. According to the witness, he remained there upto 44.30 pm and also met with the members of CWC and inspected the original proceedings conducted by ASI Ishwar Singh kept at CWC. The witness has explained that on the instructions of JJB, two police officers from each police station are nominated as JWA from the PS and their names has been duly signed to JJB from the concerned SHO police station and his name was also sent to JJB as Juvenile Welfare Officer from the police station. He has placed before this court the copy of the document in the judicial file showing him as Juvenile Welfare Officer issued by Ms. Meera Malik, member of CWC which is Ex.PW11/DX1 and the other document i.e. Order dated 18.10. 2011 which is Ex.PW11/DX2. He has deposed that he State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 26 of 58 collected the Student details and a certificate from the Principal in which the age of the prosecutrix was mentioned as 10.4.1997 and it was the matter of investigation to collect the other document regarding the age of the prosecutrix. According to him, he met the Principal of the school who provided him Ex.PW6/B and Ex.PW6/A. (34) PW12 SI Sukhpal Singh has deposed that on 13.12.2011 he received some documents including statement of the prosecutrix through Nirmal Chaya from the police station and came to know that initially the prosecutrix was medically examined on 02.08.2011 and she disclosed her name as Preeti instead of 'S'. The witness has deposed that he made endorsement on the statement of the prosecutrix vide Ex.PW5/A and converted the same into rukka vide his endorsement Ex.PW12/A and handed over the same to the duty officer for getting the present case registered and after registration of the present case investigations of the case was handed over to Insp. Jai Parkash. According to the witness, on 14.12.2011, he again joined the investigation and along with L/Ct. Sudesh, Insp. Jai Parkash went to Nirmal Chaya, Hari Nagar and met the mother of the prosecutrix and custody of prosecutrix was taken with the permission of the CWC and her medical examination was got conducted at BSA hospital and exhibits were collected. The witness has deposed that the prosecutrix led them to the house of Tahira and pointed out the State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 27 of 58 place of incident there on which Insp. Jai Parkash prepared the pointing out memo vide Ex.PW9/B after which Tahira was arrested vide memo Ex.PW9/C and personally searched vide Ex.PW9/D. The witness has further deposed that on 15.12.2011, he again joined the investigations and along with L/Ct. Sarita went to Nirmal Chaya and taken the prosecutrix from there and brought her to the court where Insp. Jai Parkash was already present there who got her statement recorded U/s 164 Cr. P.C and thereafter she was again send to Nirmal Chaya.
(35) In his cross examination by Ld. Defence Counsels, the witness has deposed that he does not know in which connection prosecutrix was got medically examined on 02.08.2011 as he only joined the investigations on 13.12.2011. According to him, he had received DD No. 30A EX PW 11/BD, DD No.31A EX PW 11/CD, order of Meera Malik EX PW 11/DX, Form X rule 27/19 EX PW 14/C, order dated 18.10.2011 EX PW 11/DX2 and EX PW 14/D, request letter to principal EX PW 11/A, student details EX PW 6/B, school certificate EX PW 6/A along with the photocopy of MLC of Preeti dated 02.08.2011 with rukka and copy of FIR. He has deposed that he handed over all the documents along with rukka and copy of FIR to the investigating officer. According to him, he joined the investigations on 14.12.2011 at about 910 AM and along with other State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 28 of 58 raiding party members left the police station between 9 to 10AM in a government jeep and after one hour they reached at Nirmal Chaya, Hari Nagar where the mother of the prosecutrix was sitting on the bench. According to the witness, they left Nirmal Chaya for BSA hospital for the medical examination of the prosecutrix at about 1212:15 PM and the mother of the prosecutrix also accompanied them. The witness has deposed that the statement of the mother of the prosecutrix was recorded by the Investigating Officer at about 2:30 PM. According to him, they took 2030 minutes to reach the house of Tahira and there are residential houses, commercial buildings, other buildings and there were many persons on the road but Investigating Officer did not ask any person to join the investigations during the journey. He has deposed that the house of Tahira was situated in the area of 12 sq. yards and the house was on the ground floor and on the first floor. According to him, the Investigating Officer knocked the door of the house and Tahira herself opened the door and they remained in the house of Tahira for two hours but the Investigating Officer did not asked any persons from the neighbours to join the proceedings. He has deposed that no person from the raiding party even the prosecutrix entered into the house of Tahira in including the IO. According to the witness, the pointing out memo is in his handwriting and the prosecutrix had stated she resided in the house for about three months and Pooja was State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 29 of 58 also residing there as a tenant on the first floor. The witness has deposed that the documents were prepared by the Investigating Officer in the official gypsy. He has denied that he did not join the investigations or that all the documents were prepared at the police station or that he had signed all the documents at the instance of the investigating officer. The witness has further denied that accused Tahira was not arrested in his presence in the manner as he have stated.
(36) PW14 Inspector Jai Prakash has deposed that on 13.12.2011, he was posted as ATO and also working as SHO at Police Station Shahbad Dairy and on that day investigation of this case was marked to him. According to the witness, he collected the copy of FIR, statement of Kumar Shahima and other documents from SI Mahender Pratap and started investigation of this case. The witness has deposed that on 14.12.2011, he along with SI Sukh Pal and Lady Ct. Sudesh went to CWC and moved applications to collect the documents in respect of the prosecutrix and also for her custody which applications are Ex.PW14/A and Ex.PW14/B after which he received the documents are Ex.PW11/DX, Ex.PW11/DX2, Ex.PW14/C and Ex.PW14/D and the MLC of the girl Ex.PW14/E. According to the witness, she made inquiry from the prosecutrix and she told her actual name as 'S' and her fake name Priti Malhotra D/o Ramesh Malhotra was told by her due to fear of accused Tahira as State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 30 of 58 Tahira called her by the name of Priti Malhotra D/o Ramesh Malhotra. The witness has deposed that he took the custody of Prosecutrix from CWC and her mother Nafiza Bibi also met him who was asked her to join the investigation. According to the witness, the prosecutrix was taken to BSA Hospital and her medical examination was got conducted vide MLC Ex.PW7/A after which doctor handed over one sealed parcel which containing exhibits which was taken into possession vide memo Ex.PW9/A along with sample seal. The witness has deposed that thereafter the prosecutrix led them to House No. 275, F Block, Shahbad Dairy and pointed out towards the house and told that the house belongs to accused Tahira and accused Tahira who was present there was identified by the prosecutrix vide pointing out memo and identification memo which is Ex.PW9/B. The witness has further deposed that he also prepared the site plan of the spot at the instance of prosecutrix vide memo Ex.PW14/F and thereafter the accused Tahira was arrested vide memo Ex.PW9/C and her personal search was conducted vide memo Ex.PW9/D and her medical examination was got conducted.
(37) The witness has further deposed that on 15.12.2011, he along with Lady Ct. Sarita & SI Sukh Pal went to CWC and custody of prosecutrix was taken and she was produced before the Ld. MM for recording her statement U/s 164 Cr. PC and her statement was State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 31 of 58 recorded. According to the witness, on 15.12.2011, he sent exhibits with sample seal to FSL through Ct. Biresh after obtaining the same from MHC (M). The witness has deposed that on 14.01.2012, he along with SI Sat Narain, Lady Ct. Sudesh went to the house of prosecutrix and she pointed out at the house of Pooja at B7/114, J.J. Colony, Bhalaswa Dairy, Delhi and at her instance, the accused Pooja was arrested vide memo Ex.PW2/A, her personal search was conducted vide memo Ex.PW2/B and recorded her disclosure statement vide Ex.PW10/B. (38) On his cross examination by Ld. Defence Counsels, the witness has deposed that he received DD No. 30A Ex.PW11/BD 31A dated 01.08.2011 Ex.PW11/CD and order of Meera Malik, Ex.PW11/DX and form 10 under rule 27 (19) Ex.PW14/C, from SI Mahender Partap in the month of December, 2011 during his investigations but he is unable tell the exact date, when he received these documents. According to him, he did not prepared the seizure memo of these documents and he has also not recorded DD Number for receiving the above said documents. He has denied that all the above said documents were handed over to him by SI Mahender Partap on 14.12.2011. He has admitted that it has been written in the DD No. 30A dated 01.08.2011 that "S. B Dairy, Maharana Partap Chowk ke pass ek admi ek pandra saal ke ladke se galat kaam karwa State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 32 of 58 raha hai, uske jaan khatre mein hai". He has further admitted that it has been written in the DD No. 31A dated 01.08.2011 that "F block, Shahbad Dairy, Maharana Pratap Chowk, B222 15 saal ke ladke se balatkar hua, ladkey ko pakar rakha hai". The witness has deposed that he did not make any investigations in respect of the contents of the DD No. 30A, 31A dated 01.08.2011 nor he interrogate ASI Ishwar Singh about the proceedings in respect of DD No. 30A and DD No. 31A. He admits that he had mentioned in his charge sheet that he came to know that the prosecutrix told that no rape was committed upon her, nor any molestation was done upon her and she refused for her internal medical checkup. The witness has deposed that he left the police station in the morning on 14.12.2011 to CWC with his team but he does not remember the exact time if it was 6 AM or it was 11 AM. The witness has further deposed that on his application vide Ex.PW14/B, he received original MLC No. 7286/11 of BSA hospital from the CWC but he did not receive certified copy of the counseling report of welfare officer, certified copies of the statements recorded by Welfare officer and any other relevant documents from CWC. According to the witness, he did not make any investigations regarding the report given by CWC mentioned in the Ex.PW14/C. The witness has deposed that on 14.12.2011, they reached at Nirmal Chaya at about 10 AM and mother of the prosecutrix met him outside the Nirmal Chaya and he State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 33 of 58 recorded her statement but did not cite her as witness in charge sheet. The witness has deposed that two brothers of the prosecutrix were in jail at that time, father was working as a kabari, but he did not mention this fact in the document Ex.PW14/DX1. The witness has admitted that prosecutrix has five major brothers out of which three were married and two sisters but he did not make any investigations from the other family members of the prosecutrix except her mother who informed him that she did not make any missing reports in respect of prosecutrix. According to the witness, they reached at the house of Tahira in evening time but he does not remember the exact time and has explained that it was afternoon time. He admits that he did not ask any neighbours of Tahira to became a witness of the proceedings nor he ask any neighbours for verifying the facts that prosecutrix resided at the house of Tahira. According to the witness, the house of Tahira was situated in the area of about 1212 ½ sq. yards and it was two storied house, i.e. ground and first floor and Tahira was residing on the ground floor. He has deposed that SI Sukhpal, L/Ct. Sudesh, himself and prosecutrix went inside the house of Tahira and they remained in the house of Tahira for 45 minutes and the documents were prepared in the official gypsy outside of the house. According to the witness, the accused Pooja was residing on the first floor of the Tahira's house as tenant and he tried his best to trace out Pooja but she could not be found.
State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 34 of 58 (39) The witness has deposed that on 14.01.2012 they left for the house of Pooja at the morning time and after 30 minutes they reached at the house of Pooja where her mother met the. According to the witness, on 14.01.2012 the prosecutrix first time pointed out the house of Pooja at Bhalswa Dairy. He has denied the suggestion that he has not conducted a fair investigations or that he has wrongly charge sheeted both the accused Pooja and Tahira. He has denied that the mother of the prosecutrix has not been cited by him as a witness as she did not make any allegations. He has further denied that he prepared all the documentations while sitting in the police station or that obtained the signatures of the accused persons on the blank papers and used the same in the present case. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(40) After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.
(41) According to accused Pooja she is innocent and has been falsely implicated. She has stated that she is a permanent resident of Bhalawa and had never resided in any private accommodation nor she know the complainant and she has nothing to do with the alleged incident.
State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 35 of 58 (42) According to accused Tahira she is innocent and has been falsely implicated. She has stated that the prosecutrix was residing as a tenant on the ground floor along with one lady whose photograph is Ex.PW13/DX1 and when she (Tahira) objected to her illegal activities, a quarrel had taken place on which she (Tahira) was falsely implicated in the present case. She has further stated that the prosecutrix and the said lady who was residing with the prosecutrix have not even paid the rent. According to Tahira, the prosecutrix is a major and she had voluntarily left her family and she has been involved in the prostitution and she (Tahira) objected her activities and hence the prosecutrix has falsely implicated her to take a revenge. She has stated that nothing had happened as narrated by the prosecutrix and Pooja never resided with the prosecutrix.
FINDINGS:
(43) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel for the accused. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
(44) The identity of the accused Pooja and Tahira is not disputed. They have been specifically named in the FIR and the State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 36 of 58 prosecutrix 'S' has correctly identified them in the court. An attempt has been made by the Ld. Counsel for accused Pooja to discredit the prosecutrix on the point of identity of Pooja by sowing her (prosecutrix) photograph of a lady which is Ex.PW13/DX1, and it was suggested that the Pooja who was named by her (prosecutrix) is shown in this photograph, which suggestion has been specifically denied by the prosecutrix 'S'. She has specifically stated that the accused whom she met is present in the court i.e. the accused Pooja.
This being the background, I hold that in so far as the identity of the accused Pooja and Tahira is concerned, the same stands established and proved.
Age of the prosecutrix:
(45) The case of the prosecution is that prosecutrix was a minor at the time when she was kidnapped. In this regard the prosecution has placed it reliance on the school record of the prosecutrix and also her Ossification Test Report. PW6 Karuna Suri (Vice Principal of the School) has proved the date of birth certificate of the prosecutrix showing her date of birth as 10.4.1997. The ossification / age determination test of the prosecutrix was also got conducted which report has not been disputed by the accused, shows her estimated age as on 17.7.2012 between 15 to 17 years. The case of the prosecution is that the prosecutrix has been sexually abused State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 37 of 58 and pushed into the flesh trade for almost three years for the date of FIR, proving thereby that on date of registration of the FIR, the prosecutrix was between 1416 years of age. As per the allegations made by the prosecutrix, she has been into flesh trade for three years, meaning thereby that for the first time when she was sexually abused, she was hardly aged about 13 to 15 years and had not even attained the age of consent.
Medical / Forensic Evidence:
(46) The medical record of the prosecutrix has been duly proved by Dr. Vandana Mittal (PW7) vide MLC Ex.PW7/A, which does not show any fresh signs of external injury. She has proved that hymen was torn which tear was old tear on the right side posteriorly.
She has also proved that there were no fresh treat, bleeding or ulceration and no rectal injury was present.
(47) The FSL Report Ex.PW8/A and Ex.PW8/B have been duly proved by PW8 Anita Chhari which show that semen could not be detected in any of the exhibits. This being the background, I hold that the medical and forensic evidence which has come on record does not support the prosecution in any manner.
Allegations against the accused:
(48) The entire case of the prosecution rests on the sole testimony of the prosecutrix 'S', wherein she has made specific State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 38 of 58 allegations against the accused Pooja and Tahira. She has specifically accused Pooja of having befriended her and taken her to the house of Tahira where she was pushed into flesh trade / prostitution for almost three years and allegedly given beatings by Pooja. As per the allegations, the prosecutrix was not permitted to go back home and repeatedly galat kaam was being done and she was compelled to do dhanda by the accused Pooja and Tahira. The prosecutrix has further alleged that on an average about five customers used to come daily and one customer was charged Rs.500/ out of which she was paid Rs.300/ and remaining Rs.200/ was kept by Tahira. She has also alleged that after sometime when she was not being sent back home, she herself started doing the work of prostitution and when Tahira used to call the customers on telephone, Pooja also came there. The relevant portion of her testimony is reproduced as under:
"I am residing with my family comprising of my parents, five brothers three of whom are married, two sisters both of whom are married. My family is into the business of scraps / rags (kabari). I am the youngest in my family. About three to four years of ago Pooja who is present in the court (correctly identified) was residing in the same gali where I am residing, befriended me and came to on speaking terms with me after which she introduced me with Tahira who is present in the court (correctly identified) who was resident of Shahbad Dairy. Tahira had asked State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 39 of 58 Pooja about me and Pooja told her that I was residing in the same gali. Pooja told Tahira that I was her friend. On seeing Tahira I had become conscious. Tahira told me that I should not be scared and asked me to wash my face and change my clothes. I told Tahira that I wanted to go back home. She refused and she insists that I should change my clothes since they had become dirty. I started crying and wanted to go back home but Tahira consoled me and told me that I should not be scared and insisted that I should change my clothes. Thereafter she caught hold of my hand and took me to the bathroom where I changed my clothes and I told Tahira that I wanted to go back home. Thereafter I was offered a cold drink and thereafter I started feeling nausea (chakar aa gay) and became unconscious, After 23 days when I regain consciousness, I found blood all around me on the bed and the bed sheet. I only found Tahira and Pooja in the room and called out to them. I asked them Didi what had happened, on which they told me it was nothing. Tahira changed the bed sheet whereas Pooja gave me 23 slaps stating where was need to ask, Tahira what had happened but Tahira stopped her saying "bache hai mat maar". Thereafter I was asked to take my bath and given clothes which I changed. I was also given food after which Pooja went back home but left me at Tahira's house, thereafter Pooja came only after one month while I remained at Tahira's house. I State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 40 of 58 told Tahira I wanted to go back home but Tahira told me that I speak to Pooja in this regard. Thereafter neither Tahira talk to me on the subject nor Pooja came there. After one month when Pooja came I told her that I wanted to go back home and started crying but she told me that now this was my house. During this period galat kam was done with me repeatedly for three years.
Court question: What do you mean by galat Kam?
Ans. : Dhanda, by removing my clothes, I was subjected to sexual intercourse.
On an average about five customers used to come daily except on Tuesdays when no customer/client came. One customer used to pay Rs 500/ out of which I was given Rs 300/ and Rs 200/ Tahira used to keep. After some time when I was not being sent home, I myself started doing this work of prostitution. Customers were called by Tahira on telephone. Pooja used to come and meet me sometimes and also bring customers on some of the occasions.
One of our neighbours Zubeda saw me on one occasion, as I have come out of the house. Zubeda saw that I was being detained by Tahira and asked me what was the matter on which I disclosed to her that Tahira and Pooja are not permitting me to go back home. Zubeda told me that she could assist me and help me by calling the police if so I wanted on which I requested Zubeda to call the police.State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 41 of 58
On which Zubeda made a call to the police informing them that I was being pressurized in prostitution by these women. After police came to the spot. I informed them about the whole incident. Thereafter I was brought to the police station where I was interrogated at length. I told them the entire details of the incident. On which my statement already Ex.PW5/A was recorded bearing my signatures at point B. Zubeda aunty was with me when my statement was recorded. I pointed out to the police the accused Tahira and Pooja and took them to the house of Tahira and got Tahira arrested first. Thereafter I was taken for my medical examination after which I was brought to Rohini courts where my statement was recorded by the Ld. MM. Which statement is Ex.PW13/A bearing my signatures at point A. Thereafter I was sent to Nirmal Chaya. After I was handed over to my parents by the court, I joined the investigations with the police after the warrants was issued against Pooja and pointed out to the Investigating Officer the house of Pooja where she was apprehended. The arrest memo of accused Tahira is already Ex.PW9/C bearing my signatures at point C, her personal search was also conducted vide already Ex.PW9/D bearing my signatures at point C. The arrest memo of accused Pooja is already Ex.PW2/A bearing my signatures at point C and the personal search of accused Pooja is already Ex.PW2/B bearing my State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 42 of 58 signatures at point C."
(49) The prosecutrix has been cross examined at length. The present case rests upon the sole testimony of the prosecutrix. (50) Before evaluating the above statement of the prosecutrix on the touch stone of truthfulness and credibility, it is necessary to briefly discuss the guiding principles of law as laid down by the various Courts. The Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 has held that:
"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases , the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."
(51) The Hon'ble Supreme Court of India in the case of Ram Das and ors Vs. State of Maharashtra, reported in AIR 2007 SC 155, has held as under:
State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 43 of 58
"It is no doubt true that the conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained .....There may also be cases where on the account of fear and threats, witness may avoid going to the police station immediately ........It is also possible to corrceive the cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to police and seek the legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weight in the mind of the court i.e. the initial hesitation of the victim to report to the police which may affect her family State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 44 of 58 life and family reputation ...In the ultimate analysis, what is the effect of the delay in lodging the report with the police is a matter of appreciation of evidence and court must consider the delay in the background of the facts and circumstances of such case.......(para17 ) "
(52) The Hon'ble Supreme Court of India in Dinesh Jiaswal Vs state of M.P, reported in AIR 2010 SC 1540 has held as under :
"...... Mr. C.D Singh has however placed reliance on Moti Lal's case (AIR 2008 SCC (Supp) 882:2008 AIR SCW 4846) (Supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances . There can be no quarrel with the proposition and it has been so emphasised by this court time and again but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facia inspires confidence. We are of the opinion that the present matter is indeed an exceptional one (para 5)"
"As already mentioned above, in our opinion, the story given by the prosecutrix does not inspire confidence, we then allow the appeal, set aside the impugned judgement and direct that the appellant be acquitted"
(53) The Supreme Court Of India, in Pandurang Sitaram Bhagwat Vs State of Maharashtra , reported in 2005 CRI L.J 880 State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 45 of 58 has held as under :
"the approach of the learned trial judge as noticed supra that ordinarily a lady would not " put her character at stake" may not be wrong but cannot be applied universally . Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where changes under section 376 and 354 of IPC have been found to have been falsely advanced ( para 16)"
"we are not oblivious that the the doctrine "
falsus in uno , falsus in omnibus'' is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation.... PW 2 and PW 3 not only failed to substantiate the allegation as as regards commission of offence under section 323, 504, 506 read with section 34 IPC but also implicated the three persons falsely . The statement of the said witnesses should have been accepted with the pinch of the salt and keeping in view the admitted animosity between the parties. The background of the case vis a vis continuous animosity between the complainant and her husband , on one hand as also the appellants and his other tenants could not have been lost sight of by the learned trial judge( Para 20)"
(54) Applying the above settled law to the facts of the present case, I may observe that the prosecutrix 'S' who is proved to be a minor, has made specific allegations of kidnapping by the accused State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 46 of 58 Pooja and Tahira and thereafter forcibly pushing her into flesh trade / prostitution initially and thereafter she herself started entertaining the customers. Whatever the prosecutrix has been doing is an offence under the I.T.P Act and hence her testimony is required to be read with caution being the testimony of coaccused / accomplice. (55) At the very Outset according to the prosecutrix, she was lured by Pooja and taken to the house of Tahira where she was detained for a number of months. Here I may observe that as per the evidence on record, the prosecutrix had been staying in a large family comprising of her parents and a number of brothers and sisters.
Despite the fact that she was missing, no complaint to police was made by her family members nor there is any material to show that they had tried to search for her. Be that as the case may be, even if there is no formal missing complaint, it was necessary for the prosecution to have at least examine the parents or any other family members of the prosecutrix to prove the allegations made by the prosecutrix that she was kidnapped by the accused or was missing for almost more than two years, which has not been done. It is impossible that a young girl 1213 years of age would suddenly go missing without her family being bothered about her. The family members of the prosecutrix were the best witnesses who could have proved the aspect of her having gone missing but they have been withheld from the court and an adverse inference is being drawn for State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 47 of 58 the same. I hold that this aspect of prosecutrix being missing from the house for many months, does not stands established beyond reasonable doubt.
(56) Secondly as per the allegations made by the prosecutrix, she was forcibly detained in the house of Tahira for large number of months and was pushed into flesh trade / prostitution for almost three years. In this regard, I may observe that it appears to be impossible that the prosecutrix would have remained forcibly confined in a small room / jhuggi of accused Tahira which is situated virtually in the same area where the family of the prosecutrix reside without the neighbours or the family of the prosecutrix having noticed the same. The Investigating Officer has made no efforts to examine any of the neighbours on the said aspect. Assuming what is alleged is correct, an illegal activity was allegedly being carry out in the neighbourhood with large number of persons visiting the house of Tahira, it was natural that persons residing in the vicinity would have noticed the same and hence under the given circumstances, it was necessary for the Investigating Officer to have questioned the neighbours and cited them as witnesses and examined that in the court, which the investigating officer has not done, for which again an adverse inference is being drawn.
(57) Thirdly I am compelled to bring on record that the manner in which the Investigating Officer has prepared the site plan, State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 48 of 58 reflects the casual nature of investigations. He has not bothered to show in the site plan the structures / houses existing around the house of Tahira which house according to the prosecutrix was being used as a brothel. I may note that using a brothel is an offence and hence it became necessary for the investigating officer not only to have properly depicted and indicated the said building so being used as an brothel in the site plan but to have brought on record the other evidence of this aspect which unfortunately has not been done, thereby raising a big question mark on the claims made by he prosecutrix 'S' in this regard.
(58) Fourthly the entire investigations are silent on the aspect of the house of Tahira being a brothel house. The owner of the house/ neighbour / Pradhan of the area and other persons frequented in the area, were the best witnesses of the prosecution who could have deposed in the present case in order to have prove and substantiate the aforesaid aspects, who incidentally have neither been examined nor brought before the court as witness. (59) Fifthly Zubeda who according to the prosecutrix was the neighbour of Tahira and had rescued the prosecutrix and made a call to the police, was material witness of the prosecution, but neither she has been cited as witness nor has she been examined in the court. It is this Zubeda who was in a position to inform as to how the prosecutrix met her and the fact that she thereafter made a call and State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 49 of 58 informed the police. Nonciting and nonexamination of Zubeda as the material witness of the prosecution, again creates a doubt in the mind of the court and is a serious lapse by the prosecution. She was an important link in the chain and her non examination as a witness in the court is fatal to the prosecution. I may observe that a large number of questions which have now arisen during the trial, have remained unanswered. How was it that the prosecutrix reached to the police and what was her physical condition at that time, are aspects on which only Zubeda could have responded but incidentally she (Zubeda) has not been cited as a witness nor examined in the court and no explanation is forthcoming for the same.
(60) Sixthly the prosecutrix 'S' herself had been most inconsistent in her testimony and has made material improvement in her deposition before the court. IO in his cross examination admitted that initially the prosecutrix had made allegations of rape upon some other person but later backed out on the same. This definitely proves that the prosecutrix 'S' is not a reliable witness and hence it is not safe to rely upon the uncorroborated and unsubstantiated testimony when she herself has not been found to be credible and truthful. (61) Lastly I may observe that when the prosecutrix was produced in the court for her examination, initially she was not served with the summons and as per the report placed before this Court had left the given address (i.e. the address of her mother) and State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 50 of 58 had gone away of her own. Later, she however appeared before the court and informed that since her mother had compelled her into a marriage against her wishes hence she walked out of the same and now wanted to marry somebody else. The prosecutrix has further informed that she was staying with one Moshin at Laxmi Nagar whom she came into contact when she was into prostitution and he used to come to her as a client and now wanted to marry her. This court also observed the demeanor of the prosecutrix during the trial was threatening towards the Investigating Officer and the Lady Constable who had produced her in the court on 05.6.2012 i.e. after the day when she was found to be missing from the address given to the Investigating Agency/ filed in the Court. On observing this behaviour, a professional counselling was directed to be provided to her. This court also observed that the prosecutrix did not appear to be under the control of her parents and had run away from them. The only justification given by the prosecutrix was that they wanted to push her into her old marriage, to which she was not agreeable. Assuming that whatever has been stated by the prosecutrix is correct and that she was already married (after having attained puberty as per Muslim law) then it does not appear probable that she would have been staying with her parents at the time when she was first allegedly allured and kidnapped by the accused (as per the allegations made in the charge sheet). The entire stand taken by the prosecutrix is self State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 51 of 58 contradictory and there are a large number of unanswered questions which are as under:
➢ Where was prosecutrix residing at the time of incident (i.e. when she was first taken by Pooja to the house of Tahira). Whether at her parent's house or at the house of her first husband (which fact of marriage she has now disclosed to the court for the first time and has not been investigated)? ➢ Why no complaint was made by the family of the prosecutrix and why no efforts were made to search for her in case if the prosecutrix was missing from her house for virtually 3 years?
➢ How is it possible that the family of the prosecutrix did not come to know of the place where she was held captive (assuming the allegations to be correct and the parental house of the prosecutrix and the place where she was held captive being the same area)?
➢ The prosecutrix in her testimony states that she was going outside the house to attend the call of nature, why then no alarm was raised by her at any point of time?
➢ Who is this Zubeda who had first informed the police about the prosecutrix and why she has not been made a witness? ➢ Why the parents / family of the prosecutrix, neighbours and residents of the area, have not been cited as witness to State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 52 of 58 prove that some illegal activity was being done in the house of Tahira?.
➢ Why no witness had been cited by the Investigating Agency and no documents have been placed on record to prove the residential address of Pooja and Tahira ?.
➢ As admitted by the Investigating Officer that the initial allegations made by the prosecutrix were of rape by some other person which allegations she had made against in an assumed name of Preeti Malhotra. Why did the prosecutrix 'S' made these allegations on an assumed name of Preeti Malhotra and who is this other person against whom these allegations were made with regard to which the prosecutrix is now totally silent? How is it possible that the investigations have thereafter been diverted to involve Tahira and Pooja despite there being no details of the said person (against whom prosecutrix had initially alleged rape)?
(62) This being the background, I hold that it is not safe to proceed on the basis of the sole testimony of the prosecutrix which testimony does not appear to be truthful and credible. The prosecutrix has been consistently and repeatedly changing stands.
The initial complaint made was of rape but the investigations have been diverted to involve Tahira and Pooja by alleging a prostitution State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 53 of 58 racket and there are no investigations on the initial complaint of rape because the prosecutrix later changed her version. The testimony of the prosecutrix does not find any independent corroboration either direct or circumstantial. Hence, I hereby hold that the evidence on record does not conclusively establish the guilt of the accused Pooja and Tahira beyond reasonable doubt. Under these circumstances, benefit of doubt is liable to be given to both the accused Pooja and Tahira.
FINAL CONCLUSION:
(63) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 54 of 58 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(64) Applying the above principles of law to the facts of present case, it is evident that the identity of accused Pooja and Tahira stands established. It stands established that at the time of the alleged incident of kidnapping the prosecutrix was a minor aged about 13 to 15 years and had not even attained the age of consent. No missing complaint was lodged by the family members of the prosecutrix 'S' when she was allegedly missing. However, the following aspects do not stand established beyond reasonable doubt:
➢ That the prosecutrix 'S' was staying with her mother since at one place she claimed that she was staying with her mother whereas in the Court she has claimed that her mother had pushed her into a marriage with somebody which she opposed and hence she walked out of the same.
➢ That the prosecutrix 'S' was missing for almost three years. ➢ That the accused Pooja and Tahira kidnapped or abducted the prosecutrix 'S' from the lawful guardianship of her parents with the intent that she will be forced or seduced to illicit intercourse with other person.
➢ That the accused Pooja and Tahira lived or either wholly or in part, on the earning of the prostitution of the prosecutrix State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 55 of 58 and they both procured the prosecutrix without her consent for the purpose of prostitution or induced the prosecutrix 'S' that she may for the purpose of prostitution become the inmate of a person to carry on prostitution.
➢ That the accused Pooja and Tahira were having the actual charge of control over the prosecutrix 'S' a juvenile and assaulted, abandoned, exposed or willfully neglected the juvenile or caused or procured her to be assaulted in a manner likely to cause the prosecutrix 'S' unnecessary mental or physical suffering.
➢ That the room/ jhuggi of Tahira was being used as a brothel where the prosecutrix 'S' was being held/ captive for almost three years.
➢ That the prosecutrix 'S' had been pushed into flesh trade by he accused Pooja and Tahira.
➢ That Zubeda has rescued the prosecutrix and made a call to the Police.
(65) It has been held that it is not safe to proceed on the basis of the sole testimony of the prosecutrix which testimony does not appear to be truthful and credible. The prosecutrix has been consistently and repeatedly changing stands. The initial complaint made was of rape but the investigations have been diverted to involve State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 56 of 58 Tahira and Pooja by alleging a prostitution racket and there are no investigations on the initial complaint of rape because the prosecutrix later changed her version. The testimony of the prosecutrix does not find any independent corroboration either direct or circumstantial.
Further, the medical and forensic evidence which has come on record does not support the prosecution in any manner.
(66) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused are guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Pooja and Tahira. Crucially, the material and evidence on record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused.
(67) In view of the above and also in view of the fact that both the accused Pooja and Tahira are not habitual criminals and have no State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 57 of 58 criminal record, I hereby hold that benefit of doubt is liable to be given to both the accused. In this background, both the accused Pooja and Tahira are hereby acquitted of the charges under Section 363/366A/34 Indian Penal Code, under Section 3/4/5 of I.T.P. Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act. The sureties of accused be discharged as per rules.
(68) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 17.09.2012 ASJ (NW)II: ROHINI
State Vs. Pooja, FIR No. 396/2011, PS Shahbad Dairy Page 58 of 58