Delhi District Court
4. Title Of The Case: : State vs . Manju Etc. on 10 July, 2018
1. IN THE COURT OF MS. SHAMA GUPTA
2. METROPOLITAN MAGISTRATEI (N/W)
3. ROHINI COURTS, DELHI
4.
1.Old Case No. : 651/3/07 2. Unique ID No : 02404R069132007 3. New Case No. : R538227/16 4. Title of the case: : State Vs. Manju etc. 9. FIR No. 650/06, PS Mukherjee Nagar 5. Date of institution : 23.01.2007 6. Date of reserving Judgment : 28.06.2018 7. Date of pronouncement : 10.07.2018 J U D G M E N T : (a) The date of commission 22.12.2006 (b)The name of complainant Inspector Shyama Pant PS: Mukherjee Nagar (c) The 1. Manju W/o Vinay @ Vijay R/o H name of No. 4, Indra Vihar, Delhi accused 2. Neelam W/o Vikram R/o H No. 172, Shiv Kunj, Sant Nagar, Burari, Delhi 3. Kajal W/o Tariq Anwar R/o 1/36, Vijay Nagar, Double Storey, Delhi. 4. Hema W/o Yogesh R/o 2875, Jahangir puri, Delhi. (d) The U/s 3/4/5/8 of The Immoral Traffic offence (Prevention) Act, 1956 complained of (e)The plea of the accused Not guilty (f)The final order Acquittal ( 10.07.2018 Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. g ) T h e d at e o f s u c h o r d e r 13.
14.Brief facts for the decision of the case:
1. In the present case, the accused Manju was put to trial for the alleged commission of offence U/s 3/4 and 5 of The Immoral Traffic (Prevention) Act, 1956 (hereinafter "ITP Act") on the allegation that the above mentioned accused was found running a brothel house at her premises bearing House No. 4, Indra Vihar, Delhi, on 22.12.2006, at about 9.00 pm, and was also found to be living on the earnings of the prostitution, after procuring the accused Neelam, Kajal and Hema for the purpose of prostitution. The accused Neelam, Kajal and Hema were jointly put to trial for the offence u/s 8 of ITP Act, on the allegation that on the above mentioned date and time, they were found to be seducing and soliciting the decoy customer for the purpose of prostitution, at the Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. premises of the accused Manju.
2. After usual investigation, charge sheet for the offence U/s 3/4 and 5 of ITP Act was prepared against the accused persons namely Manju, Neelam, Kajal and Hema and was filed before the court on 23.01.2007 whereupon, cognizance of the offence was taken and summons were issued against the accused persons. The provision of section 207 Cr. PC was complied on 02.02.2007.
3. After hearing the arguments, charges were framed against the accused Manju for the alleged commission of offence U/s 3/4/5 of ITP Act and against the accused Neelam, Kajal and Hema for the offence u/s 8 of ITP Act, to which the accused persons pleaded "Not Guilty" and instead claimed trial accordingly, the case was fixed for prosecution evidence.
4. During the course of trial, prosecution had examined 04 witnesses to substantiate the allegations leveled against the accused persons.
5. PW1/ HC Narinder Kumar deposed that on 22.12.06, while posted as Duty officer from 05.00 pm to 01.00 am, he received rukka through Ct. Rajiv, sent by W/ Inspector Shyama Pant and on the basis of the same, he registered the present FIR Ex. PW1/A and made endorsement Ex. PW1/B on the rukka.
PW1 was duly cross examined by Ld. Counsel for the accused persons.
Page 10 of 10 FIR No. 650/06 State Vs. Manju etc.6. PW2/ HC Narender, PW3/ HC Rajeev Tomar and PW4/ Retired W/Inspector Shyama Pant corroborated each other's testimony, as they were part of the raiding team. They all deposed that on 22.12.2006, they along with Ct. Vinod, Ct. Kanta Prasad and Ct. Vijay were on patrolling duty in the area of Indira Vihar, in a Government Gypsy bearing no. DL 1C H 3834, when the IO/ Inspector Shyama received information regarding the prostitution work at House No. 4, Indira Vihar, Delhi by 34 girls therefore, the IO asked few passerby to join the investigation, after disclosing the above said fact but, they refused to join the investigation. They further deposed that the IO constituted the raiding party with the above said staff and HC Narender Kumar/PW2, was sent to the above said house, as a decoy customer and HC Rajeev Tomar/PW3 was deployed as a shadow witness. They further deposed that they both were in civil dress and IO/ PW4 gave HC Narender Kumar Rs. 500/, bearing her signatures and at about 8.30 pm, PW2 and PW3 went to the above said house and found four ladies/girls. They further deposed that HC Narender/ PW2 talked with the said ladies and the accused Manju told him that the charges of the accused Hema and Neelam are Rs. 1000/ and charges of the accused Kajal is Rs. 1500/ and accordingly, HC Narender/ PW2 fixed the deal with Neelam. They deposed that the accused Manju told him to give Rs. 500/. They deposed that HC Narender came outside and gave signal to the IO and thereafter, IO/ PW4 came at the spot along with the above said staff and all the accused persons were apprehended by the IO. They further deposed that the IO/ PW4 recovered the above said Rs. 500/, prepared the rukka and handed over the same to PW2, for the registration of the FIR and PW2 accordingly, went to the PS and got Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. registered the FIR. They further deposed that PW2 came back to the spot along with the copy of FIR and original rukka and handed over the same to the IO. They further deposed that the IO/ PW4 prepared the handing over memo of Rs. 500/, bearing no. 8CA962873 as Ex. PW2/A and seized the above said note, which was recovered from the possession of the accused vide memo Ex. PW2/B and all the accused persons were arrested vide memo Ex. PW2/C to PW2/F and personally searched vide memo Ex. PW2/G to PW2/J. They deposed that the IO also prepared the site plan and all the accused persons were interrogated and shifted to Hindu Rao Hospital for medical examination and thereafter, all the accused persons were brought to the PS Model Town Lock Up and IO recorded the statement of other witnesses. PW4 further exhibited the rukka as Ex. PW4/A, site plan as Ex. PW4/B and MLC of all the accused persons as Ex. PW4/C to PW4/F. During the deposition of PW2, PW3 and PW4, the case property i.e Rs. 500/ note was shown to the witnesses and the same was correctly identified by them. They all further correctly identified all the accused persons. PW2 was cross examined by Ld. Counsel for all the accused persons and PW3 and PW4 were cross examined by Ld. Counsel for the accused Manju and Neelam but, despite opportunity granted to the remaining accused, they failed to cross examine the said witnesses.
7. After examination of all the material witnesses, prosecution evidence was closed vide order dated 03.06.2017 and statement of the accused persons was recorded U/s 281 r/w 313 Cr. P.C, on 29.01.2018, and the entire incriminating evidence brought on record was put to the Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. accused persons, to which they replied that they have been falsely implicated in the present case. They further opted not to lead defence evidence.
8. Final arguments were thereafter addressed by Ld. Counsel for the accused persons as well as by Ld. APP for the State. I have heard the arguments addressed by Ld. Counsel for the accused persons as well as by Ld. APP for the State and perused the records.
9. In the present matter, perusal of record reveals that all the witnesses as cited by the prosecution are police officials. It is argued by Ld. Defence Counsel that the mandate of Section 15 of ITP Act has not been complied with. It is argued that the area around the spot is a residential area but, no efforts have been made by the police officials to join public witnesses from the locality. However, in the case titled as Bai Radha vs. State of Gujrat AIR 1970 SC 1396, it was observed by Hon'ble Apex Court that though the legislature have provided certain safeguards with respect to ITP matters, which are contained in subsection 1 and 2 of Section 15 of ITP Act, involving inroads on the privacy of citizens and handling of delicate situations in respect of females but, the entire proceedings and the trial do not become illegal and vitiated owing to non observance or non compliance with the directions contained in the above said provisions . It was further observed that the Court has to be very careful and circumspect in weighing the evidence where there has been a failure on the part of investigating agency but, unless and until some prejudice has been caused to the accused persons, the conviction cannot be set aside.
Page 10 of 10 FIR No. 650/06 State Vs. Manju etc.10. In the present matter, as per the case of the prosecution, on 22.12.2006, Inspector Shyam, Ct. Vinod, Ct. Kanta Prasad, Ct. Rajiv, Ct. Vijay, HC Narinder were on patrolling duty in Govt. Gypsy bearing no. DL 1C H 3834, when the IO Inspector Shyama received the information regarding prostitution being carried at House No. 4, Indra Vihar, Delhi. PW2 HC Narender deposed the above said fact in his examination in chief however, when HC Rajiv Tomar was examined as PW3, he deposed that on the relevant date, he alone was on patrolling duty, when Inspector Shyama, Ct. Vinod, Ct. Kanta Prasad, Ct. Vijay, HC Narinder met him and Inspector Shyama asked him to join the investigation. He further deposed that Inspector Shyama had already received the information regarding the prostitution work and they all went to the spot in Govt. Gypsy bearing no. DL 1C H 3834. PW4 Inspector Shyama also corroborated the testimony of PW3 but, the testimony of PW2 is in contradiction to the testimony of both PW3 and PW4. It is worthwhile to mention here that PW2 was cited by the prosecution as decoy customer thus, his testimony is material to prove the case of the prosecution. But, none of the witnesses as cited by the prosecution has placed on record any DD entry regarding their departure from the PS or regarding their arrival to PS, after conducting the alleged raid, so as to prove their presence at the spot.
11. Further, all the witnesses as cited by the prosecution are police officials and during the course of his examination in chief, PW2 HC Narender deposed that the IO had asked passerby to join the investigation Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. but, they refused the same. He in his cross examination admitted that the IO had not given any written notice to the public persons nor any action has been taken by the IO, against them despite the fact that there were many public persons available at that time and some shops were also located near the place of spot.
12. In the present matter, further when PW2 was examined, so as to ascertain the factum of seizure of Rs. 500/, as handed over by him, as decoy customer to the accused Manju, he deposed that the same was bearing no. 8CA 962873, bearing the signatures of the IO/ Inspector Shyama but, he further deposed that when the IO recovered the same from the accused Manju, she prepared the seizure memo regarding the same and the seizure memo was completely prepared before sending the rukka for the registration of the case. Thus, the said testimony of PW2 clearly signifies that when the seizure memo of Rs. 500/ was prepared by the IO, the rukka has not been sent to the PS for registration of FIR, so there would be no occasion for the IO to prepare the seizure memo, which bears the FIR number of the present case. However, perusal of seizure memo Ex. PW2/B, prima facie reveals that it bears the particulars of the present case and the same shows that the same was prepared subsequent to the registration of FIR and the same is in contradiction to the testimony of PW2/ HC Narender. Thus, the same raises reasonable doubt, as to the presence of PW2 at the spot or he having participated in the investigation of the present matter.
13. There are further contradictions in the testimony of PW2 and PW Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. 3, as PW2 had deposed that the seizure memo was prepared prior to registration of the case however, PW3/ shadow witness namely HC Rajiv deposed that when he returned to the spot along with the FIR then, the IO had prepared the handing over memo of Rs. 500/ ie Ex. PW2/A and its seizure memo Ex. PW2/B. PW4/ Inspector Shyama also corroborated the version of PW3 but, in view of the contradictions in the testimony of the witnesses and in the absence of placing on record any DD entry to show their departure from the PS or their arrival in the PS after the alleged raid, the prosecution requires corroboration of the testimony of the police officials by independent public persons. In the present case admittedly, the independent witnesses were available at the time of alleged raid but, as per prosecution's case, they refused to associate themselves in the investigation. This explanation does not inspire confidence because, the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons allegedly contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public, the investigating officer can take action against such a person under the law. But, in the present case there is a vague explanation by PW2, PW3 and PW4, that public witnesses were approached but, they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there appears to be deliberate attempt to defeat the legislative safeguards. Thus, the case of the prosecution can not be said to be Page 10 of 10 FIR No. 650/06 State Vs. Manju etc. established beyond reasonable doubt on the basis of the testimonies of PW2 to PW4, who all were police officials and whose testimonies are not even corroborating the testimonies of each other. Accordingly, the accused persons namely Manju, Neelam, Kajal and Hema stands acquitted for the offence U/s 3/ 4/5 and 8 of ITP.
15. Digitally signed SHAMA by SHAMA
16.
GUPTA
GUPTA Date: 2018.07.10
17:17:07 +0530
Announced in the open court (SHAMA GUPTA)
on 10th July, 2018 METROPOLITAN MAGISTRATE
ROHINI DELHI
Page 10 of 10 FIR No. 650/06 State Vs. Manju etc.