Delhi District Court
State vs . Pinki on 27 July, 2016
IN THE COURT OF Ms. Shilpi Jain
METROPOLITAN MEGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.155/08
PS -Kamla Market
State Vs. Pinki
Unique Case ID No. 02401RO595452009
JUDGMENT
(a) Sr. No. of the Case 02401RO595452009
(b) Date of offence 08.09.2008
(c) Complainant Sh. HC Sita Ram
PS Kamla Market.
(d) Accused Pinki
D/o Sh. Vinod Kumar
Kotha No. 64, G. B. Road
(e) Offence U/s 8 Immoral Trafficing Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 15.05.2009
(i) Date when judgment 27.07.2016
was reserved
(j) Date of judgment 27.07.2016
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Kamla Market Nagar against the accused namely Pinki and Nagma for the offence U/s 3/4/8 ITP Act. FIR No. 155/08 State Vs. Pinki Page No. 1 of 18
2. Briefly stated facts of the case are that on 08.09.2008 at 09.05 pm, at balcony in front of Kota No. 64, G. B. Road, Kamla Market, within the jurisdiction of PS Kamla Market, accused Pinki seduced the decoy customer namely HC Sita Ram for the purpose of prostitution in a public place by her word as mentioned in the rukka and thereby committed an offence punishable U/s 8 of ITP Act.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to the accused in compliance of Section 207 CrPC. Thereafter, charge u/s 8 ITP was framed against the accused namely Pinki vide order dated 21.09.2010 by the Ld. Predecessor of this court, to which she pleaded not guilty and claimed trial.
4. It is pertinent to note that accused Nagma was discharged vide order dated 21.09.2010 passed by Ld. Predecessor. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many FIR No. 155/08 State Vs. Pinki Page No. 2 of 18 as 4 witnesses.
6. PW-1 is HC Narender (Duty Officer), who depoSed that on 08.09.2008 he ws posted as Duty officer and his duty hours were from 04.00 pm to 12 midnight and he received rukka sent by Inspr. Bala Sharma and on the basis of which he registered FIR which is Ex. PW 1/4 and he made endorsement on the rukka at point X to X vide Ex. PW 1/A.
7. PW-2 is Woman Head Constable Kamlesh, who deposed that on 08.09.2008 she was posed at PS Kamla Market, that she along with SHO and HC Sita Ram were on patrolling duty as there was complaint that after shutter down of market the prostitute starts seducing the passersby, that SHO prepared a raiding party including her and other police officials and requested passersby /public persons to join the raiding party but all declined and went away without disclosing their names and addresses, that SHO directed to decoy customer i.e. HC Sita Ram to wear civil uniform and SHO handed over Rs. 200/- in the denomination of Rs. 100/- currency notes to HC Sita Ram, that SHO put her signature on these currency notes, that SHO prepared HC Sita Ram as decoy customer, that SHO insturcted HC Sita Ram to take visit inside FIR No. 155/08 State Vs. Pinki Page No. 3 of 18 the varanda of Kotha No. 64 at GB Road with direction that he will give a signal by waving his hand over his head as and when any prostitute seduce him for the purpose of prostitution, that HC Sita Ram reached inside the varanadha of Kotha no. 64 at GB Road and then all raiding party members took their position near the pillars, that on receiving the signals as fixed and at the direction of SHO at about 09.05 pm, the accused was apprehended by her and other police officers, that Rs. 200/- were recovered from the possession of accused, that the recovered notes were the same which were handed over by SHO to HC Sita Ram, that IO sealed the currency notes vide seizure Ex. PW 2/A, that IO prepared rukka and handed over the same to HC Sita Ram for registration of FIR, that HC Sita Ram was sent to PS by SHO for registration of FIR, that IO inspected the site and prepared site plan, that HC Sita Ram returned back at spot along with copy of FIR and rukka and same was handed over to IO by him, that accused Pinki was interrogated who made here disclosure statement as Ex. PW 2/B, that accused Pinki was arrested and her personal search were conducted vide memo vide arrest memo was Ex. PW 2/C and an PW 2/D. On 11.12.2008, she again joined investigation with the IO, that the IO arrested the accused Nagma. Witness correctly identified the case FIR No. 155/08 State Vs. Pinki Page No. 4 of 18 property and the case property i.e. two currency notes in the denomination of Rs. 100/- is Ex. P1 (colly.)
8. PW-3 is Head Constable Sita Ram, who deposed that on 08.09.2000 he was posted at PS Kamla Market as Head Constable, that on that day he aong with SHO and Woman Constable Kamlesh were on patrolling duty as there was complaints that that after shutter down of market the prostitute started seducing the passersby, that SHO prepared a raiding party including him and aforesaid police officials and requested passersby /public persons to join the raiding party but all declined and went away without disclosing their names and addresses, that SHO directed him to wear civil uniform and SHO handed over Rs. 200/- in the denomination of Rs. 100/- currency notes to me, that SHO put her signature on these currency notes, that SHO prepared him as decoy customer, that SHO instructed him to take visit inside the varanda of Kotha No. 64 at GB Road with direction that he will give a signal by waving his hand over his head as and when any prostitute seduce him for the purpose of prostitution, that he reached inside the varanadha of Kotha no. 64 at GB Road and then all raiding party members took their position near the pillars, that on receiving the signals as fixed and at the FIR No. 155/08 State Vs. Pinki Page No. 5 of 18 direction of SHO at about 09.05 pm, in the varnada of kotha no. 64 the accused was apprehended by Woman Head Constable Kamlesh and other police officers, that Rs. 200/- were recovered from the possession of accused, that the recovered notes were the same which were handed over by SHO to him, that IO sealed the currency notes with the seal of BS vide seizure Ex. PW 2/A, that IO prepared rukka and handed over the same to him for registration of FIR, that he was sent to PS by SHO for registration of FIR, that IO inspected the site and prepared site plan, that he returned back at spot along with copy of FIR and rukka and same was handed over to IO by him, that accused Pinki was interrogated who made her disclosure statement as Ex. PW 2/B, the accused Pinki was arrested and conducted personal search memo vide memos was Ex. PW 2/C and an PW 2/D. On 11.12.2008, that he again joined investigation with the IO, that the IO arrested the accused Nagma. Witness correctly identified the case property and the case property i.e. two currency notes in the denomination of Rs. 100/- is Ex. P1 (colly.)
9. PW-4 is Inspector Bala Sharma, who deposed that on 08.09.2008, she was posted as Inspector/SHO PS Kamla Market and she was receiving complainants that after closing of shops certain women/girls came FIR No. 155/08 State Vs. Pinki Page No. 6 of 18 downstairs in the varanda of the market from the kothas and induce public persons to participate in prostitution by making of obscene gestures, that thereafter she constituted a raiding party and asked 4-5 passers by to join investigation but none agreed, that HC Sita Ram was asked to wear plain cloths and to act as a decoy customer, that she handed over two currency notes in the denomination of Rs. 100/- signed by her to HC Sita Ram and instructed him to hand over the same to girl/woman who induce for act of prostitution and make a signal by placing his hands on his head. She further deposed that at about 09.05 pm, HC Sita Ram reached at the Varanda in front of Kotha No. 64, one girl stopped him and started doing indecent act, that she talked with Head Constable Sita Ram and HC Constable Sita Ram gave signal by placing his hand on his head, that woman Head Constable Kamlesh apprehended the said girl Pinki, that HC Sita Ram disclosed the indecent acts of Pinki which was mentioned in Tehrir Ex. PW 4/A, that search of Pinki was conducted and two currency notes with the denomination of Rs. 100/- were recovered vide seizure memo Ex. PW 2/A, that thereafter rukka was prepared and she sent HC Sita Ram for registration of case, that she prepared site plan Ex. PW 4/B and arrested accused Pinki vide memo Ex. PW 2/C and PW 2/D, that information of FIR No. 155/08 State Vs. Pinki Page No. 7 of 18 her arrest was given to her friend Rekha, that disclosure statement of Pinki is Ex. PW 2/B, that after medical examination, Pinki was sent to lock up.
10. During cross-examination she deposed that she had not received any written complaint regarding the aforesaid fact from any shopkeeper/resident of the area. She voluntarily deposed that only verbal complaints were made. She further deposed that she did not hear the conversation between the accused and Head Constable Sita Ram, that when Head Constable Sita Ram gave a signal only accused, Head Constable Sita Ram, Lady Head Constable, SI Brijesh Mishra and she herself were in Varanda. She admitted that she is the complainant in this case and author of FIR as well as IO who did entire investigation. She further deposed that she asked passersby to become witness but they refused, that she had not made any handing over memo of notes to Head Constable Sita Ram. She admitted that place of incident is a very crowded area and varanda is accessible to all, that there is Shanganj area in the back of building and families resides in that area. She denied that accused has been falsely implicated in the present case, that no secret information has been received, that no raiding party has been FIR No. 155/08 State Vs. Pinki Page No. 8 of 18 formed, that no enticement has been made by any girl in the Varanda, that no recovery has been effected from the accused.
11. Thereafter, PE was closed and matter was fixed for SA. Statement of accused under Section 313 Cr.PC was recorded by putting entire incriminating evidence to the accused . The accused denied all the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE. Therefore, DE was closed and the matter was fixed for final arguments.
12. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
13. Accused Pinki is charged with the offence U/s 8 ITP.
14. In the present case, It is the version of the prosecution that on 08.09.2008 at about 09.05 pm, they conducted raid at Balcony in front of Kotha No. 64, G. B. Road, Kamla Market and found that accused Pinki was seducing the decoy customer namely HC Sita Ram for the purpose FIR No. 155/08 State Vs. Pinki Page No. 9 of 18 of prostitution in a public place and thereby committed offence punishable U/s 8 of ITP Act.
15. Perusal of the record reveals that SHO had not obtained any document in respect of non taking of search warrants from the competent authority, therefore, admittedly, no search warrant obtained from the competent authority before conducting raid. PW-2 categorically deposed that SHO requested passersby to join the raiding party and but all declined and went away without disclosing their names and addresses. No plausible explanation has been given for not issuing notices to aforesaid public persons which reflect that no sincere efforts were made by the SHO concerned for joining public persons to the investigation despite the fact that PW-4 (Inspector Bala Sharma) who did entire investigation of the case is herself the complainant. In such kind of cases where IO and complainant are same person, sincere efforts should be made to join independent witnesses to the investigation of the case in order to establish the fact of fair investigation.
16. Furthermore, IO did not join any resident of adjoining houses to the search of accused, therefore admittedly there is no independent FIR No. 155/08 State Vs. Pinki Page No. 10 of 18 witness to the raid and the proceedings carried on by the police officials.
17. It has been consistently stated by all the prosecution witnesses that no one from the public persons were joined in the investigation and no notices were issued to the persons who refused to join the investigation. Neither any mention has been made of the persons living or working adjacent or nearby the spot in question nor any concrete efforts have been made by the police to join the public persons as witness of the alleged raid.
18. The absence of service of any written notice by the IO upon such public persons who could have been served at that point of time in normal course of events thus raises serious doubts on the case of the prosecution. The non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses and no efforts seem to have been made for joining independent witnesses.
19. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join FIR No. 155/08 State Vs. Pinki Page No. 11 of 18 independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if FIR No. 155/08 State Vs. Pinki Page No. 12 of 18 available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case
- that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there FIR No. 155/08 State Vs. Pinki Page No. 13 of 18 is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of FIR No. 155/08 State Vs. Pinki Page No. 14 of 18 the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
20. Now coming to the alleged fact that the amount of Rs 200/- was handed over by PW3 HC Sita Ram to accused Pinki in form of two currency notes of Rs 100/- each and same were allegedly recovered from the possession of accused Pinki, it is pertinent to mention that there is no mention regarding the origin or ownership of the said currency notes and police has not taken the currency notes which are expected to be handed over to the accused in such cases from the Malkhana or such source which could lend authenticity to the version of the prosecution. FIR No. 155/08 State Vs. Pinki Page No. 15 of 18
21. Moreover, it is also to be noted that all the relevant prosecution witnesses have deposed that SHO conducted the search of accused Pinki and recovered two currency notes of Rs 100/- each vide seizure memo Ex PW-2/A and that she thereafter prepared a rukka for registration of FIR in this case but perusal of the said seizure memo reveals that the same mentions the FIR no. alongwith other material details of the case despite it being apparent that FIR was registered subsequent to the preparation of Ex PW2/A. The said fact apparent on record therefore makes it clear that the documents have been antedated in time and thus serious doubts have been raised on the entire version of the prosecution.
22. Furthermore, SHO had not obtained any documents in respect of ownership of premises in question, therefore, admittedly there is no investigation qua ownership of the alleged premises in question used as brothel as alleged.
23. It is pertinent to note that PW-3 HC Sita Ram categorically deposed during his cross examination that SHO instructed him to give signal by waving hand over his head, however, as per testimony of PW-4 Inspector Bala Sharma, PW-3 made a signal by placing his hand on the FIR No. 155/08 State Vs. Pinki Page No. 16 of 18 head and not by waving his hand, thereby contradicting testimony of PW-3 with respect to signal. PW-4 Inspr. Bala Sharma categorically deposed during her cross-examination that she had not received any written complainant regarding the offence in question from any shopkeepers/residence of the area. She also deposed that she did not hear the conversation between the accused and HC Sita Ram. She also admitted that she is the complainant in this case and author of FIR and also IO of the present case and entire investigation is done by her, thereby raising the doubt about the genuinity of the present case/investigation.
24. In view of aforesaid material contradictions in the testimonies of PWs regarding the number of persons in the raiding party at the time of raid and other aforesaid contradictions, possibility of any raid being not conducted cannot be ruled out.
25. Therefore, in view of the abovesaid reasons, appreciation of evidence, material contradictions in the testimonies of PWs and non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused beyond FIR No. 155/08 State Vs. Pinki Page No. 17 of 18 reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Pinki is hereby acquitted of the offence u/s 8 ITP Act accordingly.
26. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
27. File be consigned to the record room after due compliance. Pronounced and Signed in the Open Court on 27th July, 2016 (Shilpi Jain) MM-01(Central)/THC/Delhi 27.07.2016 FIR No. 155/08 State Vs. Pinki Page No. 18 of 18