Delhi District Court
State vs . Annu @ Kajal Etc. on 12 February, 2015
State vs. Annu @ Kajal etc.
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-01, EAST, KARKARDOOMA COURTS, DELHI
State Vs. Annu @ Kajal etc
FIR No. 265/11
U/sec. 4/5/8 ITP Act
PS: Jagat Puri
Date of institution of case: 18.10.2011
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 12.02.2015
Unique I. D. No. 02402R0312252011
JUDGMENT
a) Sr. No. of the case : 277/11 b) Date of commission of the offence : 31.05.2011 c) Name of the complainant : Inspector R.S.Adhikari
d) Name of the accused and their parentage : 1. Annu @ Kajal S/o Late Sh. Devanand R/o H. No. 81, IIIrd Floor, Gali No. 03, Gurudwara Wali Gali, Gopal Park, Delhi.
2. Rani Ansari , W/o Shri Akhtar Ansari, R/o Viilage Chopla, Idgah Jhuggi, near Ghanta Ghar, Meerut, UP.
3. Muskan @ Sony, W/o Akash Jain, R/o 13 Block, Geeta Colony, Delhi.
FIR No. 265/11 Page No 1 of 13 State vs. Annu @ Kajal etc. e) Offence complained of or proved : Sec. 4/5/8 ITP Act f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of such order : 12.02.2015
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 31st May, 2011, Inspector Rajender Singh Adhikari received information from Vineet Chhabra that accused Annu @ Kajal was indulging in prostitution and she had conversation with him on telephone numbers 9213245729 and 9990610295 and has agreed to supply girls for prostitution for Rs.500/-. He further informed the SHO that Annu @ Kajal has agreed to meet him at Jeet Restaurant and if raid is conducted, they could be caught red-handed. Thereafter, the SHO passed on the said information to ACP and organized a raiding party consisting of Vineet Chhabra, Sub Inspector C. P. Singh, Head Constable Balbir, Constable Sunil and L/Head Constable Nirmala. Vineet Chhabra was deputed as the decoy customer and three currency notes in the sum of Rs. 1,500/- in the denomination of Rs. 500/- each, signed by the Inspector Rajender Singh Adhikari, were handed over to the decoy customer Vineet Chhabra, who was briefed to enter into a deal with the accused persons. Head Constable Balbir Singh was made a shadow witness to watch the transaction and to give the predetermined signal once the deal is struck. At about 7:00 p.m., decoy customer Vineet Chhabra made a call to accused Annu @ Kajal, who reached at the spot along with two girls at Jeet Restaurant at about 7:15pm. Decoy Customer Vineet Chhabra struck the deal and handed over the currency notes to one of the FIR No. 265/11 Page No 2 of 13 State vs. Annu @ Kajal etc. ladies. Thereafter, Head Constable Bal Bir, shadow witness made the required signal towards the raiding party and the raiding party rushed to the spot and overpowered Annu @ Kajal and the two girls with the help of L/Head Constable Nirmala, whose names were subsequently revealed as Rani Ansari and Muskan. Consequently, the present FIR was registered under sections 4/5/8 of the Immoral Traffic (Prevention) Act, 1956 (herein after referred to as the Act) against the accused persons.
After completion of the investigation, charge-sheet was filed before the court. Consequently, the accused persons were summoned to face the trial and the copies of documents, relied upon by the prosecution, were supplied to them as per the norms.
Thereafter, charge u/sec 4/5/8 of the Act was framed against the accused Annu @ Kajal and charge u/sec 8 of the Act was framed against the accused persons namely Rani Ansari and Muskan. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as ten witnesses.
PW1/Head Constable Chander Shekhar was the Duty Officer who recorded the FIR bearing number 265/2011/Ex.PW1/A and made an endorsement/Ex. PW1/B to this effect on the rukka.
PW2/Vineet Chhabra is the star prosecution witness. He during his examination-in- chief has deposed that on 31.05.2011, he was present at his office of Navya Times. He received information that some ladies are involved in prostitution at Gopal Park, Jagat Puri. At about 6:00 pm, he made a call to SHO, PS Jagat Puri. He FIR No. 265/11 Page No 3 of 13 State vs. Annu @ Kajal etc. visited the PS and gave the information to the SHO and then at about 6:20 pm, they left the PS in civil dress. At about 7:00pm, he made a call to accused Annu @ Kajal. She reached along with the girl at Jeel Restaurant at about 7:15 pm. SHO gave him three currency notes in the denomination of Rs. 500/-. Police officials apprehended Annu @ Kajal and other girls and three currency notes in the denomination of 500/- were recovered from the possession of Annu @ Kajal... Two mobile phones make Nokia and Micromax were also recovered from the possession of the accused Annu...
He correctly identified the accused persons and the case property in the court.
He during his cross-examination by the ld. Defence counsel has submitted that he received the information regarding prostitution from a Mukhbir. He went to Jeet Restaurant with SI CP Singh, HC Balbir and W/HC Nirmala. Police officials asked three-four passers-by to join the investigation/raiding party but they refused. They reached at the spot at about 6:40 pm and left the spot at about 7:20 pm. Three notes and two mobile phones were recovered from the possession of accused Annu @ Kajal. His statement was recorded at the PS. All the proceedings were conducted in the supervision of IO R.S. Adhikari. He denied the suggestion that he has falsely implicated the accused in connivance with police officials to grab money. He also denied the suggestion that nothing was recovered from the possession of Accused and same has been planted by the police.
PW3/Head Constable Bal Bir, inter-alia, deposed that on 31.05.2011, he was posted at PS Jagat Puri as Head Constable. At about 6:00 pm, SHO called him, lady Head Constable Nirmala, Constable Sunil and SI C.P.Singh in his office and asked them to wear civil dress. At about 6:40 pm, they along with Vineet Chhabra and the SHO reached at Reliance Fresh, Chander Nagar in government gypsy.
FIR No. 265/11 Page No 4 of 13 State vs. Annu @ Kajal etc.
Thereafter, SHO briefed them about the secrete information. Vineet Chhabra was detailed as decoy customer and he was detailed as shadow witness to watch the transaction and give the fixed signal once the deal is struck. Three currency note in the denomination of Rs. 500/-each signed by Inspector was handed over to the decoy customer Vineet Chabra. At about 7:00 pm, three ladies came at the spot and public witness Vineet Chhabra struck the deal with the ladies and handed over the three currency notes to one lady. He made the fixed signal towards the raiding party. IO with the staff conducted the raid and overpowered the ladies with the help of W/HC Nirmala.... The currency notes were recovered from the right hand of accused Annu @ Kajal.
He during cross-examination denied the suggestion that nothing was recovered from the possession of accused person or he deposed falsely deposed at the instance of the IO.
PW4/Rajeev Ranjan was the Nodal Officer, TATA Tele Services Limited. He proved the CDR of mobile phone 9213245729 as Ex.PW4/A, certificate u/sec 65-B Evidence Act as Ex. PW4/B and Customer Application Form as Ex.PW4/C. PW5/Amar Nath Singh was the Nodal Officer, Idea Cellular Limited. He proved the CDR of mobile phone 9990610295 as Ex.PW5/B, certificate u/sec 65-B Evidence Act as Ex. PW5/C and Customer Application Form as Ex.PW5/A. PW6/L/Head Constable Nirmala deposed that on 31.05.2010, she was posted as Head Constable at PS Jagat Puri. On that day, IO/CP Singh told them to go on raid. Accordingly, she along with IO/CP Singh, HC Blabir Singh and Ct. Sunil went for raid. She deposed that IO/CP Singh had received a call from one Vineet Chhabra that one lady namely Annu @ Kajal was bringing two girls. HC Bal Bir gave three FIR No. 265/11 Page No 5 of 13 State vs. Annu @ Kajal etc. notes of Rs.500/- to Annu @ Kajal. He was instructed by the IO/C. P. Singh to give signal after cracking the deal. She took three girls to the PS. Since the witness had resiled from her earlier statement given to the IO, she was cross-examined by the ld. APP for the State with the leave of the court wherein she admitted the suggestions put by the Ld. APP for the State. She during her cross examination by the Ld. Defence counsel has stated that rank of the IO was SI.
PW7/Israr Babu was the Nodal Officer, Vodafone Mobile Services Ltd. He proved the CDR of mobile phone alternative 9873356181 as Ex.P1, certificate u/sec 65-B Evidence Act as Ex. P2 and Customer Application Form as Ex.P3.
PW8/Inspector Rajender Singh Adhikari was the Investigating Officer of the case. He deposed that on 31.05.2011, he was posted as SHO at PS Jagat Puri. On that day at about 6:00 pm he was present at his office when one Vineet Chhabra came and informed him that one lady Annu @ Kajal was indulging in the work of prostitution at house no.81, 3rd Floor, Gopal Park and she would meet him at Jeet Restaurant. Thereafter, he prepared a raiding party and recorded a DD Entry No. 49-B/Ex.PW8/A in this regard. They went near Jeet Restaurant in government gypsy. He requested public persons to join the raiding party but none agreed. He gave three currency notes of Rs.500/- to Vineet Chhabra after signing the same. HC Bal Bir was made the shadow witness and sent with Vineet Chhabra with instructions to give signal after finalization of deal. At about 7:40 pm, HC Bal Bir gave signal and they apprehended three ladies with the help of W/HC Nirmala. Three currency notes of Rs.500/- and two mobile phones were recovered from the possession of accused Annu @ Kajal....
FIR No. 265/11 Page No 6 of 13 State vs. Annu @ Kajal etc.
PW9/Head Constable Narender Kumar was the Moharar Head Constable (Malkhana). He proved deposit of sealed case property vide entry no. 599 in Register No. 19/Ex.PW95/A. PW10/Sub-Inspector C. P. Singh (called on an application filed u/sec 311 Cr.PC by the Ld. APP for the State) has deposed on the similar lines as deposed by the Investigating Officer.
After completion of the prosecution evidence, statements of accused under sec. 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) were recorded to afford them an opportunity to explain the incriminating circumstances appearing against them in evidence. They denied the allegations and pleaded false implication. However, they did not lead any evidence in their defence.
Thereafter, the matter was posted for final arguments.
I have heard the rival submissions of the Ld. APP for State and ld. Defence counsels and perused the material on record very carefully.
It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
FIR No. 265/11 Page No 7 of 13 State vs. Annu @ Kajal etc. Arguments
Ld. APP for the State has submitted that prosecution has been able to prove the charge against the accused persons beyond reasonable doubt. In support of his contention, ld. APP for the State has submitted that the currency notes in the denomination of Rs.500/-each signed by the Investigating Officer were recovered from the possession of accused Annu @ Kajal which were paid by the decoy customer Vineet Chhabra in advance for having sex and the version of decoy customer has been corroborated by shadow witness Head Constable Balbir.
Per contra, ld. Counsel appearing for accused Annu @ Kajal has submitted that there is no material on record regarding the procurement or inducing or taking the co-accused girls for the purpose of prostitution or causing or inducing the co- accused girls to carry on prostitution or soliciting or seducing the public witness namely Vineet Chhabra and as such offences under Act are not made out against the accused Annu @ Kajal.
He further submitted that PW1/Vineet Chhabra, the alleged decoy customer has not supported the prosecution case. In this regard, he drew the attention of the court towards his deposition. He submitted that PW3/HC Balbir is interested witness being member of the raiding party and as such no implicit reliance can be placed on his testimony connecting the accused with the commission of the crime. Further, PW6/W/HC Nirmala has also not supported the prosecution case and was declared hostile by the prosecution. He therefore, requested that accused Annu @ Kajal may be acquitted of the charge.
Ld. Counsel appearing for the accused Rani Ansari and Muskan has submitted that prosecution has miserably failed to prove that accused persons namely Rani Ansari FIR No. 265/11 Page No 8 of 13 State vs. Annu @ Kajal etc. and Muskan seduced or solicited the decoy customer Vineet Chhabra in public place for the purpose of prostitution. He therefore prayed that accused persons namely Rani Ansari and Muskan may be acquitted of the charge framed u/sec 8 of the Act.
Decision and Brief reasons for the same In order to substantiate its case, the prosecution has to establish that the accused Annu @ Kajal lived, wholly or in part, on the earnings of the prostitution of accused Rani Ansari and Muskan and that she procured them for the purpose of prostitution. Further, that accused persons namely Annu @ Kajal, Rani Ansari and Muskan were soliciting or seducing the decoy customer Vineet Chhabra for the purpose of prostitution at the public place.
Before proceeding further, it would be advantageous to refer the relevant provisions of the Act.
4. Punishment for living on the earnings of prostitution.- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of 1[any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both 2[and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
5. Procuring, including or taking person for the sake of prostitution.-
(1) Any person who -
FIR No. 265/11 Page No 9 of 13 State vs. Annu @ Kajal etc.
a. procures or attempts to procure a 1[person], whether with or without his consent, for the purpose of prostitution; or b. includes a1[person]to go from any place, with the intent that he, may for the purpose of prostitution become the inmate of or frequent, a brothel; or c. takes or attempts to take a1[person], or causes a1[person] to be taken, from one place to another with a view to his carrying on or being brought up to carry on prostitution; or d. causes or induces a 1[person] to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years
8. Seducing or soliciting for purpose of prostitution.- Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not -
a. by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or b. solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place FIR No. 265/11 Page No 10 of 13 State vs. Annu @ Kajal etc. or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to five hundred rupees, and also with fine which may extend to five hundred rupees :
"Prostitution" is defined in clause (f) of section 2 of the Act. It reads as under:-
(f) "Prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression "prostitute" shall be construed accordingly.
From a plain reading of the aforesaid provisions, it is evident that "prostitution" is the sine qua non for constituting an offence under the Act. Mere handing over of money or receipt of money is not sufficient to bring home the charge under the Act or fasten the guilt unless there is evidence to show that the money was accepted or demanded for the purpose of prostitution.
PW1/Vineet Chhabra, the decoy customer, during his evidence has stated that he made a call to accused Annu @ Kajal at about 7:00 pm and she along with a girl came at Jeet Restaurant at about 7:15 pm. He further stated that SHO gave him three currency notes in the denomination of Rs. 500/-. The three currency notes in the denomination of Rs. 500/- were recovered from the possession of accused Annu @ Kajal.
PW1/Vineet Chhabra has nowhere stated in his evidence that any of the accused persons had solicited or seduced him for the purpose of prostitution or that he paid the amount to accused Annu @ Kalaj for procuring the girls for the purpose of FIR No. 265/11 Page No 11 of 13 State vs. Annu @ Kajal etc. prostitution and the same currency notes were recovered from the possession of accused Annu @ Kajal. Strangely, despite not toeing the line of prosecution he was not declared hostile by the ld. APP for the State.
PW2/Head Constable Balbir was deputed to act as a shadow witness. This witness has nowhere stated in his evidence that he heard the conversation between accused persons and the decoy customer Vineet Chabbra or that accused persons demanded the money or Vineet Chhabra handed over the money to accused Annu @ Kajal for the purpose of prostitution.
PW6/W/Head Constable Nirmala was also a member of the raiding party. She conducted personal search of the accused persons. However, she has nowhere in her evidence stated that she conducted the personal search of the accused persons and that three currency notes were recovered from the possession of accused Annu @ Kajal. She was declared hostile by the ld. APP for the State and was cross- examined with the leave of the court. However, no suggestion was put to her by the ld. APP for the State that she conducted personal search of the accused persons.
From the aforesaid analysis of evidence, I have no hesitation to hold that there is no iota of evidence on record to suggest that the accused persons were indulging in prostitution as defined under Section 2(f) of the Act. Further, there is no evidence on record to show and prove that the accused persons were seducing or soliciting the decoy customer Vineet Chhabra for the purposes of prostitution or that the accused Annu@ Kajal was living on the earnings of prostitution.
Therefore, for the reasons which I have outlined above, I am of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused FIR No. 265/11 Page No 12 of 13 State vs. Annu @ Kajal etc. persons. Therefore, I give benefit of doubt to the accused persons and accordingly, the accused persons namely Annu @ Kajal, Rani Ansari and Muskan are acquitted of the charge levelled against them. Bail bond under section 437A of the Code of Criminal Procedure, 1973 furnished. Perused and accepted for a period of six months from today.
File be consigned to record room after due compliance.
Announced in open (Babita Puniya)
Court on 12th day of February, 2015 MM-01/East/KKD Courts/Delhi
12.02.2015
This judgment contains 13 pages and each page bears my signature.
(Babita Puniya)
MM-01/East/KKD Courts/Delhi
12.02.2015
FIR No. 265/11 Page No 13 of 13