Delhi District Court
State vs . Luxmi on 13 March, 2015
IN THE COURT OF SH. HARUN PRATAP
METROPOLITAN MEGISTRATE01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 141/08
PS - Kamla Market
State Vs. Luxmi
Case ID No. 02401R0133462009
JUDGMENT
(a) Sr. No. of the Case 02401R0133462009
(b) Date of offence 25.08.2008
(c) Complainant Inspr. Bala Sharma, PS Kamla Market.
(d) Accused Laxmi, D/o Venkataraman, R/o Kotha
No. 68, First Floor, Left side, GB Road,
Delhi.
(e) Offence 8 ITP Act
(f ) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted.
(h) Date of Institution 02.03.2009
(i) Date when judgment 24.02.2015
was reserved
(j) Date of judgment 13.03.2015
1. Briefly stated, the allegations against the accused are that on 25.08.2008 at about 09:30 P.M, on a staircase in front of Kotha No. 68, GB Road, Kamla Market, Delhi, within the jurisdiction of PS Kamla Market, she seduced a decoy customer namely Ct Subhash for the purpose of prostitution in a public place by her words. As per the version of the prosecution, the accused thus committed an offence U/s 8 ITP Act. FIR No. 141/08
2. After completion of the investigation, chargesheet was filed by the police in the Court on 02.03.2009 and the copy of the challan was supplied to the accused on her appearance thereafter in compliance of provision u/s 207 Cr.P.C. Notice of the accusation for the offence u/s 8 ITP Act was put to the accused vide order dated 23.09.2010, to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In order to prove its case against the accused, prosecution has examined 4 witnesses:
3. Ct. Subhash has been examined as PW1 who deposed that on 25.08.2008, he was posted at PS Kamla Market as Ct; that on that day he joined the raiding party with SI Brijesh Mishra, W/Ct Sunita and Inspr. Bala Sharma; that there was a complaint that the prostitutes at GB Road were doing obscene act before passerby and the said information was shared with the members of the raiding party; that Inspector handed over Ct Subhash a currency note of Rs 100/ which was duly signed by him and directed him to go to GB road and contact with a prostitute/girl and to signal the raiding party by dropping his handkerchief as and when any prostitute/girl does an obscene act and demands money from him. He FIR No. 141/08 deposed that passersby were requested to join the raiding party but all declined without disclosing their identity; that at about 09:30 PM, he reached in front of Kotha No. 68 GB Road Delhi where accused Laxmi met him who removed her peticoat/maxi up to knee and aksed him to give money and she will give enjoyment which he cannot feel anywhere; that on hearing these words he dropped his handkerchief and in the meantime Lady Ct Sunita arrived there and apprehended the accused Laxmi. He further deposed that on formal search of the accused, the currency note given by him was recovered from right hand of the accused which was taken in possession vide memo Ex PW1/A; that the accused was thereafter arrested vide memo Ex PW1/D. PW1 correctly identified the case property as Ex.P1. He was cross examined and discharged.
4. Inspr. Brijesh Mishra has been examined as PW2 who deposed that on 28.8.08, he was posted at PS Kamla Market as SI. He also deposed on the similar lines being the member of raiding party as deposed by PW1 aforesaid. He was cross examined and discharged.
5. W/Ct Sunita has been examined as PW3 who deposed that on 25.08.08 she was posted at PS Kamla Market as Ct. She also deposed on the similar lines being the member of raiding party as deposed by PW1 FIR No. 141/08 and PW2. She also deposed that IO Inspr Bala Sharma prepared tehrir and got the case registered through Ct Subhash and after registration of the FIR, Ct Subhash came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO Inspr Bala Sharma; that the accused was arrested and her personal search was conducted by her vide arrest memo and personal search memo Ex PW1/B and Ex PW1/C. PW2 correctly identified the case property as Ex P1. She was cross examined and discharged.
6. Inspr. Bala Sharma has been examined as PW4 who deposed that on 25.8.08, she was posted at PS Kamla Market as Inspr.; that she had received complaints regarding solicitation being made publicly by accused; that she constituted a raiding party consisting of SI Brijesh Mishra, Lady Ct Sunita and one Ct Subhash who was made decoy customer in plain clothes; that she gave Rs 100/ to Ct Subhash after putting her signatures on the same and instructed him to give signal by dropping his handkerchief when deal is fixed; that he was also instructed to go through the verandah near the brothel no. 68. She deposed that the members of the raiding party they took their positions in the parking and saw that one lady who was standing behind the pillar of building no.68 came and talked to Ct. Subhash and when Ct. Subhash gave the signal by FIR No. 141/08 dropping his handkerchief on the ground, they went there and lady Ct. Sunita apprehended the accused Laxmi; that thereafter, Lady Ct. Sunita conducted the personal search vide personal search memo Ex.PW1/A of accused Laxmi and the Rs.100/ note which was bearing her signatures was recovered from the possession of Laxmi.; that thereafter she duly sealed the same with the seal of BM and seal after use was handed over to SI Brijesh Mishra; that they inquired from accused Laxmi who disclosed that she was from Andhra Pradesh and belonged to a poor family; that thereafter she prepared a rukka Ex.PW4/A and handed over the same to Ct. Subhash who went to PS Kamla Market for registration of FIR; that she prepared a site plan Ex.W4/B while Ct. Subhash came back at the spot after registration of FIR and handed over to her the original rukka and copy of FIR. She further deposed that she arrested accused Laxmi vide arrest memo already Ex.PW1/B and her personal search was carried out vide personal search memo already Ex.PW1/C; that she recorded the statement of members of raiding party.; that one surety namely Saroj came there and thereafter accused Laxmi was released on bail; that thereafter they went to PS Kamla Market and informed about the incident to senior officials; that the case property was deposited in Malkhana. PW4 correctly identified the case property as Ex P1. She was cross examined and discharged.
FIR No. 141/08
7. PE was closed by the Court vide order dated 06.09.2014. Statement of the accused was thereafter recorded U/s 313 Cr.P.C by putting to her the entire incriminating evidence on record. The accused therein her statement denied all the allegations against her and stated that she has been falsely implicated in the present case. Accused did not wish to lead any evidence and hence, matter was fixed for final arguments straightaway.
8. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In the present case, It is the version of the prosecution that information/complaints regarding solicitation for prostitution being made publicly were received by the SHO, PS Kamla Market continuosly and finally a raiding party was constituted on 25.08.08. However, no such complaint or complainant have been brought on record during the trial in this case. The accused was thereafter allegedly apprehended at about 09:30 P.M from the front of Kotha No. 68, GB Road, Kamla Market. It has been consistently stated by all the prosecution witnesses that efforts were made by the SHO to join the public persons at the spot itself but no one FIR No. 141/08 from the public persons agreed and left without telling their name and addresses. It is pertinent to mention that the incident in question allegedly happened in the late evening after closing of the market and no explanation has been given by any of the prosecution witnesses as to the number of public persons who might have been present in the late hours at the spot in question. Neither any mention has been made of the said 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 despite having the information regarding the alleged prostitution activities before hand.
10. 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 credible doubts on the testimonies of the prosecution witness. The nonjoining 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.
11. 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 FIR No. 141/08 (HC), wherein it was held that where the police has failed to join 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 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 eyewitnesses 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 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 FIR No. 141/08 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 PW2 and PW8 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 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) FIR No. 141/08 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 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 nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
12. Furthermore, coming to the alleged fact that an amount of Rs 100/ was handed over by PW1 to the accused in form of a currency note FIR No. 141/08 of Rs 100/ and same was allegedly recovered from the possession of accused, it is pertinent to mention that there is no mention regarding the origin or ownership of the said currency note and police has not taken the currency note which are expected to be handed over to the accused persons in such cases from the Malkhana or such source which could lend authenticity to the version of the prosecution.
13. It is also to be noted that all the relevant prosecution witnesses have deposed that personal search of accused was conducted and recovered currency note of Rs 100/ was seized vide seizure memo Ex PW1/A and that thereafter a rukka was prepared for registration of FIR in this case. However, 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 PW1/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.
14. Therefore, in view of the abovesaid discussion the Court has no hesitation in hereby arriving at the conclusion that the prosecution has failed to establish its case against the accused persons beyond reasonable FIR No. 141/08 doubt.
15. Hence, the accused is hereby acquitted of the offence u/s 8 ITP Act accordingly.
16. Be heard on the point of bail u/s 437 A CrPC separately. Announced and Signed in the Open Court on 13th March, 2015. (Harun Pratap) MM01(Central)/THC/Delhi FIR No. 141/08