Delhi District Court
State vs . Reshma. 1/46 on 16 May, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 27966/2016
State V 1. Reshma w/o Sh. Vaman r/o. Kotha
No.58, 1st Floor, Left side, G.B. Road,
Delhi.
2. Chhoti. (Since not traceable)
3. Rahul.(Since not traceable)
4. Raja,(Since not traceable)
5. Raju,(Since not traceable)
6. Ronni @ Rocky (Since not
traceable)
FIR No. 192/2015
U/s 323/365/366/368/370/370A(1)/376/342/3
43/109/120B/34 IPC & 3/ 4/5/6 ITP Act
1956.
Police Station Kamla Market
Assigned to Sessions 29.02.2016
Charges framed on 10.03.2018
Arguments heard on 29.04.2019
Judgment pronounced on 16.05.2019
Decision Acquittal.
JUDGMENT:
1. The case of prosecution is that, the Station House Officer of Police Station Kamla Market had filed a chargesheet before the court of Ld. Metropolitan Magistrate vide FIR No.192/2015 dated 28.04.2015 u/s. 323/365/366/ 368/370/370A(1)/376/342/343/109/120B/34 IPC and section 3/4/5/6 of ITP Act for the prosecution of accused persons Reshma, Chhoti, Rahul, Raja, Raju and Ronni @ Rocky in the court of ld. Metropolitan Magistrate. After compliance Case No.27966/2016 State Vs. Reshma. 1/46 of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Hon'ble Supreme Court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being disclosed in the judgment.
But in this case FIR only accused Reshma was arrested and other accused persons namely Chhoti, Rahul, Raja, Raju and Ronni @ Rocky were not arrested by the police as they are absconding.
BRIEF FACTS OF THE CASE:
2. That, in this case criminal law was set into motion on 28.04.2015, when Inspector Yashveer Singh, was present in PS Kamla Market, then Shekhar and other person Shahalam Mandal came to police station and informed about missing of prosecutrix (his niece) from native place South 24 Paragana, West Bengal and alleged that she was being confined at Kotha No.58, First Floor, Left Side, G.B. Road, Kamla Market, Delhi. Inspector Yashveer Singh along with PW SI Padam Singh, HC Ram Sharan, Ct. Rajiv Jha, Ct. Yogesh and W/Ct. Sarita organized a raiding party and recorded DD No.20A, Ex.PW15/H in the police station and reached at Kotha No.58 and raid was conducted where prosecutrix namely 'MM' and 'RK' were recovered and accused Reshma was found present in the Kotha. PW15 Insp. Yashveer Singh recorded statement Ex.PW1/A of PW2 Prosecutrix 'MM'. On the basis of statement of prosecutrix 'MM' Ex.PW1/A, FIR No.192/2015 u/s. 365/368/370/370A(1)/ 376/342/343/ 109/120B/34 IPC and under section 3/4/5/6 of ITP Act was registered. In her Case No.27966/2016 State Vs. Reshma. 2/46 statement, prosecutrix 'MM' had narrated that she belong to a poor family. They are 8 brothers and sisters consisting of 6 sisters and 2 brothers. Her father had died 56 years ago and her family are doing the work of embroidery (zari). She had stated that about one and half years prior to the lodging of the present complaint by her, one of her neighbour in her village namely Ms. Ujmonia (now accused since absconding) who used to visit her house, met her at her house and asked her to accompany her for search of work as they both wanted to do some work in Delhi. She could not get any work in Kolkata because she was illiterate.
3. That, she further stated that Ms. Ujmonia, who was her friend had taken her firstly Sandeshpur Railway Station and got her introduced with a lady whose name was Chhoti (now accused since absconding). From there Ms. Ujmonia and Ms. Chhoti took her to a rented room at Malikpur in West Bengal. They stayed there for two days. Thereafter, they took her to Howrah Railway Station and they boarded a Delhi bound train. She further stated that when they boarded the train, two boys whose name were Rahul and Raja met Ms. Ujmonia and Ms. Chhoti. They were together in the same coach of the train. They reached New Delhi Railway Station in the night of next day and they came out of the railway station. She further stated that Rahul made her sit in an auto along with him and Ms. Ujmonia, Ms. Chhoti and Raja also took another auto. They all went to a rented room. It took two hours to reach there due to traffic jam. She further stated that in the evening of the next day accused Reshma, along with one more lady came there at the room. They had a talk with Ms. Ujmonia, Ms. Chhoti, Raja and Rahul. Thereafter, they asked to accompany Reshma and the lady who was with her stating that she has to do work with them at their house. She further stated that thereafter, accused Case No.27966/2016 State Vs. Reshma. 3/46 Reshma and the lady accompanying her, took her to Kotha No.58, First Floor, G.B. Road in an auto. When they reached there, she saw several girls in short dresses present at the aforesaid Kotha. She further saw 56 persons going along with the said girls in different rooms at the aforesaid Kotha. Accused Reshma called two/three girls to dress up her. They brought short dresses and made her to wear the same and asked her to accompany a boy to a small room. When she refused to do so, accused Reshma gave her beating and further told her that she had purchased her for Rs.60,000/ and she would have to do the same work at the aforesaid Kotha as other girls were doing. Thereafter, the aforesaid girls attached with the accused forcibly took her to a small room along with a boy. She further stated that the said boy committed sexual intercourse with her without her consent and against her will.
4. That, she further stated that on an average 2025 customers used to come at the aforesaid Kotha and accused Reshma used to force her to indulge into physical relation with her customers. Accused Reshma used to charge Rs.300/ from her customers for the prostitution being run by her. She further stated that accused Reshma made her stayed there at the aforesaid Kotha for 19 months. During that period whenever she tried to escape from there, accused Reshma used to give her beating with a danda (stick).
5. That, she further stated that during her stay at the aforesaid Kotha, one girl whose name was 'R' was also from West Bengal became her friend. She told her that accused persons had brought her at the aforesaid Kotha and forced her to indulge in prostitution.
6. That, she further stated that one customer who revealed his name as Shekhar Case No.27966/2016 State Vs. Reshma. 4/46 had also become her friend. She had narrated the whole incident to Shekhar. Then he gave her a mobile phone and she had talked her brother namely Mohram but now she does not remember its number. Shekhar had also talked with his brother and Mama namely Shah Alam on phone. In the evening of the next day, the aforesaid Shekhar, her mother, her Mama and her brother reached at the aforesaid Kotha along with 6 police officials. Some more police officials were also standing downstair in front of the aforesaid Kotha. They got rescued her and 'R' from the aforesaid Kotha. Police brought them along with accused Reshma to police station Kamla Market. She has further stated that she was also giving counseling by the counselor from an NGO. She further stated that police recorded her statement at the Kotha from where she was rescued along with other girl. Inspector Yashveer Singh prepared rukka Ex.PW15/C and gave the same to Ct. Rajiv Kumar Jha for registration of FIR. Prosecutrix (s) 'MM' and 'RK' were counseled by Ms. Sangeeta, counselor of DCW.
7. That, on dtd. 28.04.2015, both the prosecutrix (s) were medically examined vide MLC of prosecutrix 'RK' vide Ex.PW6/A and vide MLC of prosecutrix 'MM' vide Ex.PW6/B. W/Ct. Karuna after medical examination of both the prosecutrix (s) by the doctors sealed sexual assault kit and handed over the same to SI Padam Singh who presented the same to the IO who prepared seizure memo vide Ex.PW15/E.
8. That, on dtd. 30.04.2015, statement of prosecutrix (s) u/s 164 Cr.P.C. was got recorded by Ms. Ambika Singh, ld. MM wherein they had again reiterated the same facts and circumstances against the accused.
9. That, during the course of investigation, exhibits were sent o FSL Rohini and Case No.27966/2016 State Vs. Reshma. 5/46 chargesheet was filed in the court of ld. Metropolitan Magistrate. During course of trial, I.O. of the case has also filed the FSL report in the court.
CHARGE:
10. That, on the basis of material available on record as well as the evidence, collected by the I.O. during the course of investigation, Ld. Predecessor of this court vide order dated 10.03.2018 framed charges against accused Reshma for the offence punishable u/s 120B IPC, 366/368 IPC r/w 120B IPC, 370/370A (2) IPC r/w 120B IPC, 343 IPC, 109 IPC r/w 376 IPC and under section 3, 4, 5, 6 of ITP Act to which accused plead not guilty and claimed trial.
PROSECUTION WITNESSES:
11. In order to prove its case prosecution has examined 15 witnesses namely PW1 HC Om Prakash, PW2 Prosecutrix 'MM', PW3 Shahalam Mandal, PW4 Prosecutrix 'RK', PW5 Sh. Shekhar, PW6 W/Ct. Karuna, PW7 Sh. Deena Nath Yogi, PW8 Ms. Papiya Mondal, PW9 Dr. Nitin, PW10 Sh. Bipin Anand, PW11 Dr. Preeti, PW12 HC Vijay Singh, PW13 SI Padam Singh, PW14 Ms. Ambika Singh, Ld. MM and PW15 Insp. Yashveer Singh.
PWs Name of the Nature of the Documents proved Witness witness PW1 HC Om Prakash Police Witness He has proved rukka vide Ex.PW1/A for registration of the FIR, computerized copy of the FIR vide Ex.PW1/B, endorsement on the rukka vide Ex.PW1/C and certificate u/s 65 B of Evidence Act qua the present FIR vide Ex.PW1/D. Case No.27966/2016 State Vs. Reshma. 6/46 PW2 Prosecutrix Victim/12. She has proved her statement vide 'MM' complainant Ex.PW1/A. She has proved arrest memo of accused Reshma vide Ex.PW2/A and her personal search memo vide Ex.PW2/B.
13. She deposed that she had also given the description of accused Ujmonia @ Savera to the police.
She has proved her statement u/s 164 Cr.P.C. vide Ex.PW2/C and her MLC vide Ex.PW2/D. She has proved casualty card vide Ex.PW2/E. PW3 Shahalam Public Witness He deposed that prosecutrix Mandal "MM@P" is his niece. She had been missing for the last one and half year and on 22.04.2015 his nephew Moharram Mandal informed him that he had received a call from one Shekhar that his niece was wrongfully confined at Kotha No.58, First Floor, G.B. Road, Delhi. He again discussed the matter with his nephew Moharram Mandal who in turn also again talked to the aforesaid Shekhar. Thereafter, he also talked with Shekhar. He again told him the address of the place where his niece was confined.
He further deposed that he along with his nephew Moharram Mandal and his mother boarded a train to Delhi on 26.04.2015 and reached Delhi on 27.04.2015 at about 10.00 pm. They met Shekhar at Railway Station.
Shekhar took them to his house at Nayi Basti and they stayed there Case No.27966/2016 State Vs. Reshma. 7/46 for a night.
He further deposed that next day i.e. on 28.04.2015 at about 04.00 pm they all went to police station Kamla Market and met the police officials. From there they along with Shekhar and police officials went to Kotha No.58, First Floor, G.B. Road, Delhi. After reaching there police officials called all the girls available at the Kotha who assembled together. He identified his niece/prosecutrix "MM@ P"
from among the said girls. During this course one more girl (prosecutrix "RK") started weeping after seeing them and told the police officials that she was also confined forcibly there.
Police officials had also called one lady from an NGO. She interacted with both girls and police officials recorded their statements. From there they came back to PS Kamla Market.
PW4 Prosecutrix 'RK' Victim/14. This witness is also a material complainant witness being another victim. She has proved her MLC and casualty card prepared qua her medical examination vide Ex.PW4/A and Ex.PW4/B respectively. She has proved arrest memo of accused Reshma vide Ex.PW2/A. She has proved her statement u/s 164 Cr.P.C. vide Ex.PW4/C. She further deposed that she can identify the aforesaid Raju and Rocky @ Rony and the lady if shown to her.
Case No.27966/2016 State Vs. Reshma. 8/46PW5 Sh. Shekhar Public witness He deposed that 1015 days prior to 28.04.2015, he had visited Kotha No.58, First Floor, Left Side, G.B. Road, Delhi.
Prosecutrix 'MM@P' aged about 22 years met him. She appeared to be perplexed at that time. She told her that she was intending to go to her home. She further told him that she along with one more girl, whose name he does not remember, were brought to Delhi on the pretext of getting them employed, probably, they were brought by one Rahul. She gave her mobile number and requested him to inform about her brother namely Mohorram Mandal that she did not wish to stay there and take her out from there. He deposed that he had seen one lady namely Reshma, present in the court (correctly identified) at Kotha.
He deposed that after 23 days he telephoned the brother of prosecutrix and informed him about the said facts.
He further deposed that on dtd.
27.04.2015 brother of the prosecutrix along with her maternal uncle Sahalam Mandal came to his house at Daya Basti.
Next day i.e. on 28.04.2015 he took maternal uncle Sahalam Mandal to police station Kamla Market at about 3.00 - 4.00 pm. From there police officials along with us went to the aforesaid Kotha, where the maternal uncle Case No.27966/2016 State Vs. Reshma. 9/46 of the prosecutrix identified her.
One more girl/prosecutrix 'RK' was also present there. Police officials along with them brought the aforesaid two girls at police station and he remained there for about 1 or 1 & 1/ 2 hour and thereafter, he went to his house.
PW6 W/Ct. Karuna Police witness She deposed that she along with SI Padam and one more constable whose name she does not remember took both the prosecutrix(s) namely 'RK' and 'MM' to LNJP Hospital and got their medical examination conducted vide MLC Ex.PW6/A and Ex.PW6/B respectively. After their formal medical examination in the casualty of the said hospital both the prosecutrix were referred to department of Obs. & Gynae.
She further deposed that they produced aforesaid two prosecutrix in the department of Obs. & Gynae. where they were medically examined vide MLC Ex.PW6/C and MLC already Ex.PW2/D of prosecutrix 'MM'.
The doctor who had conducted their medical examination had also handed over her sexual assault kit in sealed condition along with the sample seal which she handed over to the SI Padam, who seized the same vide seizure memo prepared by him.
PW7 Sh. Deena Nath Public He has produced the record of Yogi witness/ Asstt. Meter K No. 100285385 installed Manager in name of accused Reshma at H. Case No.27966/2016 State Vs. Reshma. 10/46 (Power No.58, First Floor, G.B. Road, Supply), Delhi and the electricity charges of BSES, this connection were being paid Yamuna regularly. He tendered the copies Power Ltd., of records, Ex.PW7/A and Chandni Ex.PW7/B certifying with the seal Chowk, Delhi. of his company.
PW8 Ms. Papiya Public witness This witness is the Pradhan of Gram Panchayat, Canning Block Mondal, No. 1, District South 24 Pargana, West Bengal and she had issued a certificate Ex.PW8/A regarding age of prosecutrix 'MM'.
PW9 Dr. Nitin, Medical He has examined both the Witness prosecutrix(s) 'RK' and 'MM' vide their casualty cards, Ex.PW4/A and Ex.PW2/E respectively; PW9 Dr. Nitin also prepared MLC of prosecutrix 'RK', Ex.PW6/A and MLC of prosecutrix 'MM', Ex.PW6/B and thereafter, referred them to the Department of Obs. & Gynae. for further examination.
PW10 Sh. Bipin Anand, Public This witness is the Business witness/ Manager, BSES Yamuna Power Business Ltd. and he has produced the Manager, record of electricity connection BSES, CA No.10022492 of House Yamuna No.5317, Plot No.58, G.B. Road, Power Ltd. Delhi. He also produced original site reports, Ex.PW10/B (of Reshma) and Ex.PW10/C (of Krishna). He proved the copy of electricity bills vide marked as MarkY (of Reshma) and MarkZ (of Krishna).
PW11 Dr. Preeti, Medical She has conducted medical Case No.27966/2016 State Vs. Reshma. 11/46 witness examination of both prosecutrix
(s) vide MLC already Ex.PW6/C and Ex.PW2/D respectively. She had also made endorsement qua the said medical examination at point A to A bearing her signature at point B at the back of the casualty cards, already Ex.PW4/A and Ex.PW2/E respectively. She had prepared sexual assault kits qua the said medical examination of both the prosecutrix(s). The exhibits which were taken were preserved, sealed and handed over to the police along with sample seal. She further deposed that hymen of both the prosecutrix (s) were found torn.
PW12 HC Vijay Singh, Police witness He is the MHC(M) of PS Kamla Market. He deposited the case property of this case in Malkhana vide entry of register no. 19, Ex.PW12/A. He also deposed that as per road certificate, Ex.PW12/B the exhibits of this case were sent to FSL through Ct. Ajay and deposited there. He also received acknowledgement, Ex.PW12/C from Ct. Ajay.
PW13 SI Padam Singh, Police witness He deposed that on dtd.
28.04.2015, he was part of raiding team consisting of PW15 Insp.
Yashveer Singh, HC Ram Sharan, Ct. Rajiv Kumar Jha, Ct. Yogesh and W/Ct. Sarita and they along with Shahalam Mondal and Shekhar reached at Kotha no. 58, First Floor, G.B. Road, Kamla Case No.27966/2016 State Vs. Reshma. 12/46 Market, Delhi and from there two prosecutrix(s) 'MM' and 'RK' were recovered. He further deposed that on dtd. 09.05.2015, he on the directions of Insp. Yashveer Singh along with Ct. Mukesh and W/Ct.
Karuna reached in the village of the prosecutrix 'MM' in West Bengal in search of traffickers. He also visited PS Canning, District South 24 Pargana, West Bengal, but none of associates of accused could be apprehended except (Ujmonia) Child in Need of Care and Protection.
He produced both the prosecutrix
(s) before the Child Welfare Committee and as per his application, Ex.PW13/E, CWC ordered for allowing both the prosecutrix(s) to go to their homes.
PW14 Ms. Ambika Ld. MM She has recorded the statement of both prosecutrix (s) of this case Singh, namely 'MM @ P' and 'RK' u/s 164 Cr.P.C. vide Ex.PW2/C and Ex.PW4/C respectively.
PW15 Insp. Yashveer I.O./Police He has deposed on the lines of witness investigation. He deposed that on Singh.
28.04.2015 he was posted as SHO at PS Kamla Market and on that day one personal namely Shalom Mondal along with one Shekhar came to PS Kamla Market.
Shahalam Mandal informed that his niece was missing from their native place i.e. South 24 Pargana, West Bengal and they had information that she was being kept and confined in Kotha no. 58, Case No.27966/2016 State Vs. Reshma. 13/46 First Floor, Left Side, G.B. Road, Delhi. He informed to his senior officers and then constituted a raiding party consisting of himself, SI Padam Singh, HC Ram Sharan, Ct. Rajiv Jha, Ct. Yogesh and W/Ct. Sarita. He also recorded a recorded DD entry no. 20A in this regard and left for the spot at about 04:10 p.m. They reached near said Kotha no. 58 and before going into the Kotha, he requested 45 persons to join the raiding party but nobody agreed and they all left showing their difficulty. He deposed that then at about 04:25 p.m. he along with his team conducted raid in the Kotha. They went inside. 1015 dwells were found there. They were all made together in one room, out of which Shahalam Mandal identified one girl as his niece. He made inquiry from her and after confirming that she was kept there in confinement against her will and she was made to work of prostitution. He called the NGO of DCW and one counselor, Ms. Sangeeta Arora reached there. The prosecutrix 'MM' was produced before counselor and counselor prepared her report, Ex.PW15/A. He further deposed that in the meantime one more girl prosecutrix 'RK' came forward and she also informed that she was also kept in confinement against her will at the Kotha and made to work as prostitute. She was also counseled by the Case No.27966/2016 State Vs. Reshma. 14/46 counselor. Counselor report in this regard is Ex.PW15/B. He recorded statement of prosecutrix 'MM' already Ex.PW1/A and prepared rukka Ex.PW15/C bearing his signature at point A and thumb impression of prosecutrix 'MM' at point X. He had given rukka to Ct.
Rajiv Jha who left for police station for registration of FIR. He inspected the spot and prepared site plan Ex.PW15/D bearing his signature at point A. He has also recorded supplementary statements of both prosecutrix (s).
He further deposed that he then sent both the prosecutrix(s) through SI Padam with W/Ct.
Karuna to LNJP Hospital for their medical examination, where they were medically examined vide MLCs already Ex.PW6/A and Ex.PW6/C of prosecutrix 'RK' and MLCs already Ex.PW2/D and Ex.PW6/B of prosecutrix 'MM'.
W/Ct. Karuna handed over to him exhibits in sealed condition along with sample seal at police station which he seized. He has proved the copy of seizure memo vide Ex.PW15/E. He further deposed that during the course of investigation, accused Reshma was arrested at the instance of prosecutrix(s) vide arrest memo already Ex.PW2/A and her personal search was conducted vide personal search memo already Ex.PW2/B bearing Case No.27966/2016 State Vs. Reshma. 15/46 his signature at point D. He had recorded disclosure statement of accused vide Ex.PW13/A and as per disclosure statement of accused he tried to trace the other persons involved in the crime but nobody could be found. Accused was then produced in the court and sent to J/C. Both the prosecutrix(s) were also produced in court and were sent to Shelter Home through SI Padam Singh.
He further deposed that on 30.04.2015 both the prosecutrix(s) were taken to the Crime Branch Office, Kamla Market and portraits of the other persons involved in the case were got prepared. Prosecutrix 'MM' got prepared a portrait of one suspect namely Ujmonia @ Savera and the other prosecutrix 'RK' got prepared the portrait of Rocky.
He further deposed that on 05.05.2015 he had sent a request for closure of Kotha no. 58 to the SDM, Karol Bagh, Delhi vide request letter Ex.PW15/F. He further deposed that on 15.05.2015 SI Padam Singh with his team returned to Delhi. He had brought with him one CNCP (Child in Need of Care and Protection) aged about 17 years.
She was same Ujmonia @ Savera who was declared juvenile (CNCP). She was produced before him. Thereafter he produced her before CWC, Mayur Vihar, Delhi.
Case No.27966/2016 State Vs. Reshma. 16/46She was examined there by CWC but she did not disclose anything about other accused persons including accused Reshma.
Ujmonia @ Savera was then produced in LNJP Hospital where she was medically examined vide MLCs MarkXX1. Thereafter, she was referred to department of Gynecology for further evaluation, where she was medically examined vide MLC MarkXX2.
She was found pregnant as per MLC and therefore her ossification test could not be conducted. On 22.05.2015 on the directions of CWC he had sent Ujmonia @ Savera to at her native place in West Bengal through SI Padam Singh.
He further deposed that he had sent letter to BSES to produce document pertaining to electricity connection at Kotha No. 58. He proved the letter vide Ex.PW10/A along with documents which are already MarkX (colly.). He further deposed that accused Rocky could not be traced during the course of investigation.
He further deposed that the exhibits of this case were sent to FSL Rohini through Ct. Ajay and after completing investigation charge sheet was filed in the court.
He deposed that FSL report has been filed by SHO, PS Kamla Market through his application vide Ex.PW15/G. He has proved Case No.27966/2016 State Vs. Reshma. 17/46 true copy of DD no. 20A dated 28.04.2015 along with charge sheet vide Ex.PW15/H. He has investigated the matter and has testified about the steps taken by him during investigation. He further deposed that after completing investigation charge sheet was filed against the accused in the court.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
15. That, after recording the evidence of the prosecution witnesses, all the incriminating evidence put to the accused and her statement was recorded u/s 313 Cr.P.C. Accused denied all the incriminating evidence against her. Accused claimed that she is innocent and she has been implicated in this case. She further claimed that there are so many enemies against her outside the area of Kotha No.58. She further stated that as far as Prosecutrix (s) PW2 and PW4 are concerned, they were caught by the police in the corridor of ground floor of Kotha No.58 who were soliciting the customers in the area of G.B. Road and PW Shekhar was also caught hold with them and thereafter, all these persons had concocted a false story just to save themselves. She further claimed that prosecutrix (s) have made their complaint on the offer of greed of compensation from the government. Accused has not preferred to lead defence evidence.
16. In her additional statement u/s 313 Cr.P.C., accused Reshma claimed that she is innocent and has been falsely implicated in this case. There are so many enemies against her outside the area of Kotha No.58 and as far as prosecutrix Case No.27966/2016 State Vs. Reshma. 18/46 are concerned, they are caught by police in the corridor of ground floor of kotha who were soliciting the customers in the area of GB Road. PW Shekhar was also caught hold with them and thereafter, all these persons had concocted a false story just to save themselves. Further, prosecutrix (s) have made their complaint on the offer of greed of compensation from the government. PW3 Shah Alam has deposed falsely against her at the instruction of police officials and in connivance of prosecutrix (s) MM @ P and RK and Shekhar. Accused has not preferred to lead defence evidence.
ARGUMENTS:
17. Ld. counsel for accused argued and submitted that in her examination in chief dated 08.04.2016 prosecutrix who is PW2 herein had stated that applicant/accused Reshma was present at the Kotha when the raid was conducted on 28.04.2015 and at this point of time her examination was deferred due to lunch and thereafter, in continuation to her examination in post lunch session she deposed that accused Reshma was not present at Kotha at the time of raid on 28.04.2015. In her cross examination dated 29.08.2017 PW2 had deposed that she had given her statement before a lady magistrate at the instance of police officials. PW2 had further stated that she used to go outside Kotha for watching movies, for shopping in the market and to the doctor for her examination and that there were no restrictions on her in coming and going out of Kotha and she was moving freely of her own. PW2 further deposed that accused Reshma never used to interact with her and even she was not aware about the name of accused Reshma when Sapna disclosed Reshma's name to her.
18. Ld. Counsel for accused further submitted that PW2 had deposed against Case No.27966/2016 State Vs. Reshma. 19/46 Reshma at the instance of police officials and the deposition of PW2 is contrary to her allegations and therefore, creates a very serious doubt about the story put forth by the prosecution and thus is liable to discarded in toto and no credence can be placed on such a testimony.
19. Ld. Counsel for accused further submitted that PW4 and PW2 in their cross examination dated 03.11.2016 and 29.08.2017 respectively had deposed that police officials used to visit the said Kotha weekly and used to record names and addresses of the occupants in a register and that PW4 had also recorded her name with the police. PW2 had also deposed that she had never made any complaint to any police official who visited the said Kotha. On court question that "On whose asking you used to stand on Chajja? PW4 deposed that "One Sapna had asked me to stand on Chajja".
20. Further in cross examination dated 03.11.2016, PW4 had deposed that accused Reshma was arrested in the evening whereas, as per the arresting documents as well as the testimonies of the police witnesses of raiding team accused Reshma was arrested in the morning. Thus, the manner and legality of arrest of accused Reshma by the police officials is in serious doubt and question.
21. Ld. counsel for accused further submitted that the testimony of PW5 Shekhar is a hearsay in respect to the facts allegedly narrated by PW2 to him and therefore, needs to be discarded. PW5 in his cross examination had deposed that he did not make any complaint to police picket nor police patrolling team. Thus, the conduct of this witness is seriously in question.
22. Ld. counsel for accused further submitted that the testimony of PW3 Shahalam Case No.27966/2016 State Vs. Reshma. 20/46 Mandal is a hearsay as he has deposed that the alleged incident narrated to him by PW5 as narrated to PW5 by PW2 and therefore, needs to be discarded in toto.
23. Ld. counsel for accused further submitted that PW10 in cross examination admitted the fact that as per the documents produced by him in the court, the parentage of Reshma had not been mentioned in any of the documents exhibited by him. Therefore, it is not possible to ascertain as who is the alleged Reshma. That a suggestion was also given to this witness in this regard.
24. Ld. counsel for accused further submitted that PW2 and PW4 both of them have stated before the doctors while their respective medical documents Ex.PW2/D and Ex.PW4/A were being prepared that last time they had intercourse was in the morning of 28.04.2015 whereas as per the FSL result i.e. Ex.PW15/G it was opined that "No male DNA profile could be generated from the source of exhibits". Therefore, the allegations of PW2 and PW4 as well as the case of the prosecution are further belied by the report of the FSL.
25. Ld. Counsel for accused further submitted that as per the directions of Hon'ble Supreme Court of India, IO failed to get recorded the 164 Cr.P.C. statement of alleged victim within 24 hours and had not explained the reason for not doing so in case diary. As per prosecution, PW2 and PW4 were rescued in the evening of 28.04.2015 but their respective 164 Cr.P.C. statements were recorded only on 30.04.2015. On these grounds, ld. counsel for accused has prayed that accused may kindly be acquitted.
26. Per Contra, Ld. Addl PP for the State has argued and submitted that testimonies Case No.27966/2016 State Vs. Reshma. 21/46 of PW2 Prosecutrix 'MM' and PW4 Prosecutrix 'RK' are very specific against the accused. They both have deposed that they were brought to the Kotha No.58, G.B. Road, being run by the accused and they have deposed about all the facts and circumstances which they have experienced in the said kotha. They have explained in detail that they were exploited under the guidance/control and supervision of accused.
27. Ld. Addl. PP further submitted that PW2 has clearly stated that she was forced to indulge in prostitution at the said Kotha under control and supervision of the accused. She has also given a graphic narration how the police raided the Kotha and she was recovered from there and at that time accused was present in the Kotha and was arrested by the police. Testimony of the PW2 is reliable and inspiring confidence.
28. Ld. Addl. PP for the State further submitted that testimony of prosecutrix PW4 'RK' is also very material and against the accused. She has also given full detail how she was trafficked from her native place Kolkatta and brought to Delhi and then procured by accused Reshma and confined in Kotha No.58 and how she was sexually exploited by different2 person under supervision and control of accused Reshma.
29. Apart from the deposition of prosecutrix PW2 and PW4 their version is also corroborated on all material aspects by the deposition of PW5 Mr. Shahalam Mandal and PW Shekhar and it has also clearly establish that both prosecutrix
(s) were trafficked from native place and brought to Delhi and sold to accused Reshma and she procured them after paying amount of money and then they were forced by accused to work as prostitutes in the brothel run and controlled Case No.27966/2016 State Vs. Reshma. 22/46 by the accused.
30. Ld. Addl. PP for the State further submitted that as per the deposition of both prosecutrix (s) PW2 and PW4 it has been clearly established on record that accused was responsible for obtaining their custody, then confining them in her brothel and accused had been using them as prostitute and offering them to different2 customers for sexual activities and was earning money and the accused was using the said money. As such, accused is liable to be convicited u/s section 3,4, 5 and 6 ITP Act.
PERUSAL OF RECORD:
31. Arguments heard. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix 'MM' Ex.PW1/A, present FIR was registered against the accused.
32. It is further revealed that PW15 Insp. Yashveer Singh alongwith PW13 SI Padam Singh, HC Ram Sharan, Ct. Rajiv Jha, Ct. Yogesh and W/Ct. Sarita organized a raiding party and recorded DD no.20A, Ex.PW15/H in the police station and reached at Kotha of accused and raid was conducted and prosecutrix(s) namely 'MM' and 'RK' were recovered and accused was found present in the Kotha.
33. Before reaching at any conclusion, let the relevant sections i.e. 120B/366/368/370/370A(2)/343/109/376 IPC & 3/4/5/6 of ITP Act be re produced, which are as under: Section 120B IPC: Punishment of criminal conspiracy. (1)Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code Case No.27966/2016 State Vs. Reshma. 23/46 for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2)Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 366 IPC. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
Section 368 IPC: Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Section 370 IPC. Trafficking of person. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or
(e) receives, a person or persons, by First Using threats, or Secondly using force, or any other form of coercion, or Thirdly by abduction, or Fourthly by practising fraud, or deception, or Fifthly By abuse of power, or Sixthly By inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, Commits the offence of trafficking.
Explanation 1. The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2. The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a minor, it shall Case No.27966/2016 State Vs. Reshma. 24/46 be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than on occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
370A. Exploitation of a trafficked person. (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.
Section 343 IPC. Wrongful confinement for three or more days. Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 109 IPC. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to imprisonment for life, and shall also be liable for fine. (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or Case No.27966/2016 State Vs. Reshma. 25/46
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under twelve years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation. For the purposes of this subsection,
(a) "armed forces" means the naval, military and air force and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government.
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an orphanage or home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Case No.27966/2016 State Vs. Reshma. 26/46 Section 3 of ITP Act. Punishment for keeping a brothel or allowing premises to be used as a brothel. (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
(2A) For the purposes of subsection (2), it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause
(b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.) 3 Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause
(a)h or clause (b) of subsection (2) of any offence under that sub section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
Section 4 of ITP Act. 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 (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 (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.) (2) Where any person over the age of eighteen years is proved
(a) to be living with, or to be habitually in the company of, a prostitution; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute.
Case No.27966/2016 State Vs. Reshma. 27/46It shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of subsection.
Section 5 of ITP Act. Procuring, inducing or taking (person) for the sake of prostitution (1) Any person who
(a) procures or attempts to procure a (person), whether with or without (his) consent, for the purpose of prostitution; or
(b) induces a (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 a (person), or causes a (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 (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 subsection 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:
(i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life;
(ii) is a minor, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;) (3) An offence under this section shall be triable
(a) in the place from which a (person) is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such (person) is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
Section 6 of ITP Act. Detaining a (person) in premises where prostitution is carried on. (1) Any person who detains (any other person, whether with or without his consent), -
(a) in any brothel, or
(b) in or upon any premises with intent (that such person may have sexual intercourse with a person who is not the spouse of such person), shall be punishable (on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years).
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under subsection (1).
(2A) Where a child or minor found in a brothel, is on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has Case No.27966/2016 State Vs. Reshma. 28/46 been detained for purposes of prostitution or , as the case may be, has been sexually exploited for commercial purposes). (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,
(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
FINDINGS:
34. Having heard the arguments advanced by ld. Counsel for the accused as well as ld. Addl. PP for the State and after gone through the case file as well as evidence recorded by the prosecution witnesses, this court is of the considered view that on 28.04.2015 at about 4:00 p.m. one Sahalom Mondal appeared before the SHO PS Kamla Market and stated that his niece was missing for 1/ ½ years and was confined forcibly at Kotha No.58, 1st Floor, G.B. Road, Delhi and upon this information a raiding party under the supervision of Inspector Yashveer Singh was constituted and they had made a raid at Kotha No.58, 1 st Floor, G.B. Road, Delhi along with Shahalam Mandal and Shekhar and upon reaching there the said Sahaalom Mondal has identified his niece 'MM' and she was rescued from the said Kotha and in the meantime another prosecutrix 'RK' was also rescued from the said Kotha and their statements were recorded and both the prosecutrix alleged that one lady Reshma illegally confined both of them at Kotha No.58, G.B. Road and were forced in prostitution and on these allegations, accused Reshma was arrested.
35. That, as per the statement made by the both prosecutrix(s) the charges u/s Case No.27966/2016 State Vs. Reshma. 29/46 120B IPC, 366/368 IPC r/w 120B IPC, 370/370A (2) IPC r/w 120B IPC, 343 IPC, 109 IPC r/w 376 IPC and under section 3, 4, 5, 6 of ITP Act were framed against the accused to which, accused Reshma pleaded not guilty and claimed trial.
36. That, in order to prove their case, prosecution has examined 15 witnesses. PW1 who is the D.O. has deposed that he received a rukka sent by Inspector Yashveer Singh Ex.PW1/A and upon the said rukka he had got recorded FIR Ex.PW1/B. He has also placed on record certificate u/s 65B of Evidence Act qua the FIR vide Ex.PW1/D.
37. That, PW2 who is the prosecutrix has deposed that she is illiterate and belong to West Bengal and they are eight brothers and sisters consisting of six sisters and 2 brothers and her father had died 67 years ago and her aforesaid brothers and sisters are doing the work of embroidery (zari) and about one and half years prior to the lodging of the present complaint by her, one of her neighbour in her village namely Ms. Ujmonia (now accused since absconding) who used to visit her house, met her at her house and asked her to accompany her for search of work as they both wanted to do some work in Delhi and she being illiterate lady could not get work in Kolkata and Ms. Ujmonia taken her first Sandeshpur Railway Station and got her inteduced with a lady whose name was Chhoti (now accused since absconding). From there, Ms. Ujmonia and Ms. Chhoti took her to a rented room at Malikpur in West Bengal and they both stayed there for two days. Thereafter, they took her to Howrah Railway Station and boarded the train for Delhi and when they boarded the train, two boys namely Rahul and Raja met Ms. Ujmonia and Ms. Chhoti and they were together in the same coach of the train and they were talking to each other but Case No.27966/2016 State Vs. Reshma. 30/46 she could not hear them and when they reached at New Delhi Railway Station, Rahul made her sit in an auto along with him and Ms. Ujmonia, Ms. Chhoti and Raja also took an auto and went to a rented room and they all stayed there for the whole night and in the evening of the next day accused Reshma present in the court, correctly identified along with one more lady came there and they had a talk with Ms. Ujmonia, Ms. Chhoti, Raja and Rahul and thereafter all asked the prosecutrix to accompany accused Reshma and the lady accompanying her and took her to Kotha No.58, First floor, Left Side, G.B. Road, Delhi in an auto and when she reached there she saw several girls in short dresses present at the aforesaid Kotha and she further saw 56 persons going along with the said girls in different room at the aforesaid Kotha and accused Reshma called 23 girls to dress up her and they brought short dresses and made her to wear the same and asked her to accompany a boy to a small room and when she refused to do so, accused Reshma gave her beating and further told her that she had purchased her for Rs.60,000/ and she would have to do the same work at the aforesaid Kotha as the other girls were doing.
Thereafter, the aforesaid girls attached with the accused forcibly took her to a small room along with a boy and the said boy committed sexual intercourse with her without her consent and against her will.
38. It has been further deposed in examination in chief by the PW2 that on an average 2025 customers used to come at the aforesaid Kotha and accused Reshma used to forced her to indulge into physical relation with her customers and accused Reshma used to charge Rs.300/ from her customers for the prostitution being run by her. Accused Reshma made her stayed there at the aforesaid Kotha for 19 months and during that period whenever she tried to escape from there, accused Reshma used to give her beating with a danda Case No.27966/2016 State Vs. Reshma. 31/46 (stick).
39. It has also been deposed that during her stay at the aforesaid Kotha one girl whose name was 'RK' was also from West Bengal and she became her friend and she told her that accused persons had brought her at the aforesaid Kotha and forced her to indulge in prostitution and one day, one customer who revealed his name as Shekhar PW5 herein had also become her friend and she had narrated the whole incident to Shekhar and then he gave her a mobile phone and she talked to her brother namely Mohram and Shekhar had also talked with her brother and Mama on phone and on the next evening, the said Shekhar, her mother, her Mama and her brother reached at the aforesaid Kotha along with police officials and some more police officials were standing down stair in front of the aforsaid Kotha and they got rescued her and another girl 'RK' from the aforesaid Kotha and accused Reshma was very much present there and police brought them along with accused Reshma to police station Kamla Market.
40. She has further deposed that when she rescued along with other girl, she had also appended her thumb impression on statement made to the police and also pointed out the place of incident to the police and site plan was prepared and on the next day she and the another girl were taken by the police to Kotha No.58, G.B. Road, Delhi and accused was apprehended.
41. She has further deposed that her statement as well as statement of other girl who was also rescued got recorded and they both were examined.
42. But in the cross examination carried out by ld. Defence counsel of the Case No.27966/2016 State Vs. Reshma. 32/46 accused, prosecutrix PW2 has admitted that "It is correct that she had made her statement before the lady Magistrate at the instance of the police officials."
43. That, as per the law laid down by Hon'ble Apex Court of India in the cases of sexual offence against the woman, the sole testimony of the prosecutrix is sufficient to prove the guilt of the accused but the testimony of the prosecutrix must be of the sterling quality but perusal of the examination in chief and cross examination of PW2 who is the prosecutrix, this court is of the considered view that she has deposed in her examination in chief that when she came to Delhi with Ms. Ujmonia, Chhoti, Raja and Rahul and stayed in a room and in that room accused Rahul had committed sexual intercourse with her without her consent and against her will and perusal of the statement made by the prosecutrix before the police as well as the statement u/s 164 Cr.P.C. made by her before Ld. MM she has no where stated in those statements that accused Rahul committed sexual intercourse with her without her consent and against her will and therefore, this is the material contradictions in the statement made by prosecutrix before the Ld. MM as well as examination in chief made by her in the court.
44. There is material contradictions in the testimony of the prosecutrix on the ground that she has deposed that when raid was conducted and she was rescued from Kotha No. 58 to which accused was the owner of the said Kotha and at that time, accused Reshma was very much present there and police brought them along with accused Reshma to police station Kamla Market whereas in the further examination in chief she has deposed that she had wrongly stated in her earlier deposition that accused Reshma was apprehended during the course Case No.27966/2016 State Vs. Reshma. 33/46 of raid. In fact, she was not present at the time of raid and she was arrested by the police next day of the raid and both her statements were made confronted by ld. Defence counsel for the accused.
45. It has been further deposed by prosecutrix in her examination in chief that she had stated that she stayed at G.B. Road for about 19 months and there were 10 12 more girls who were living at the said Kotha. During her stay at Kotha she used to go outside Kotha for watching movies, for shopping in the market and to the doctor for her examination. There was no restriction on her in coming and going out of Kotha and she was moving freely of her own. Police also used to visit that Kotha frequently in a week and used to ask all the occupants girls of the Kotha about their names and further used to ask all from them if anyone has any complaint or problem. She never made any complaint to all those police officers who were visiting periodically at aforesaid Kotha.
46. It has also been deposed that she never made any complaint to all those police officers who were visiting periodically at aforesaid Kotha and accused Reshma never used to interact with her and she was not aware about the name of the accused present in the court as Reshma. Later on, Sapna had disclosed the name of accused Reshma to her.
47. PW13 SI Padam Singh who is the DO of said area of the G.B. Road has admitted in the cross examination that it is their duty to randomly check the Kothas situated within the jurisdiction of PS Kamla Market and one beat staff is deployed to check out the activities of nearby Kothas. PW13 SI Padam Singh has also admitted that he used to visit the Kothas including Kotha No.58 on a routine visits after a gap of 1015 days and if the prosecutrix herself has Case No.27966/2016 State Vs. Reshma. 34/46 admitted that she was at liberty to go out of that Kotha for watching movies and for purchasing in the market and she oftenly used to visit doctor for her examination and one police official has been deployed there and police officials of PS Kamla Market also used to make raid randomly on the said Kothas then there was every occasion and prosecutrix PW2 was at liberty and could have made the complaint if she was forcibly confined and was forced to do the act of prostitution but she never made any complaint to any of the police officials against the accused Reshma.
48. That, there is material contradictions in respect of examination in chief itself whereas prosecutrix PW2 has deposed that she was never allowed by accused Reshma to go outside and as and when she tried to rescue herself, then she was beaten and on the other hand she herself admitted that she used to visit watching movies and come out from Kotha for purchasing in the market and used to visit doctor for her examination.
49. That, during the cross examination, the certain facts were brought to the notice of the prosecutrix PW2 and made confrontation with the earlier statement and prosecutrix has admitted that "It is correct that all the above mentioned facts with which she was confronted have been deposed by her on the tutoring given by the police officials." and she further deposed that accused Reshma had not brought her to aforesaid Kotha. She voluntarily deposed that one Sapna along with one more lady whose name she does not know had brought her to the aforesaid Kotha. She has also deposed that accused Reshma had never forced her to indulge in any illegal activity and only Sapna had forced her to indulge her in such activity and she had stayed at the said Kotha on her own of her free will and she further admitted that "It is correct that whatever she has Case No.27966/2016 State Vs. Reshma. 35/46 deposed against accused Reshma, it was at the instance and tutoring of the police officials". and police did not make any investigation qua alleged Sapna.
50. That, upon making such deposition, ld. Addl. PP for the State has cross examined the prosecutrix PW2 as she was resiling from earlier statement made to the police as well as statement made by her u/s 164 Cr.P.C. before the Ld. MM and specific question was put in the question answer form by ld. Addl. PP of this court to the prosecutrix which is as under :
Question: In your previous statement you had testified that it was accused Reshma who had brought you at the aforesaid Kotha, confined you for long period of time and force you to indulge in physical relations with the customers visiting the Kotha, whereas today you are saying that it was some Sapna who had taken you at the aforesaid Kotha, forced you in physical relations with the customers and that Reshma never confined and forced you to indulge in physical relations with customers visiting the afore said Kotha. Which of the statement is correct?
Ans. The statement which I am giving today is the correct statement.
Question: Today you have testified that you used to go out of the Kotha to watch movie and that you were free to go anywhere from the aforesaid Kotha, whereas in your previous statement you had stated that whenever you and other girls confined at the Kotha tried to escape from there, accused Reshma used to beat you and she confined you at the Kotha and that she also used to live there. Which of the statement is correct?
Ans. The statement which I am giving today is the correct statement.Case No.27966/2016 State Vs. Reshma. 36/46
51. PW3 Sh. Shahalam Mandal who was also the member of the raiding party has deposed that PW2 is his niece who was missing and her father had lodged a missing complaint in their local PS in West Bengal when prosecutrix PW2 went missing about one and half years ago but the copy of the said complaint was not handed over to the I.O. by the family member of the prosecutrix PW2 nor placed on record to prove that some missing report was lodged by the parents of the prosecutrix PW2 in the police station where she used to reside.
52. That, PW4 who is another prosecutrix 'RK' has also deposed that she is illiterate and her mother is a housewife and prior coming to Delhi, she had been doing tailoring work and used to live at house of her Mausi and one Rocky @ Rony used to come at the shop where she was working and he developed friendship with her and six months prior to the present case Rocky @ Rony brought her to Delhi on the pretext of getting her employed and she come to Delhi with Rocky @ Roni and reached New Delhi Railway Station and one Raju (not arrested) took her to a house of a lady and she does not know the name of that lady. Thereafter, Raju took her to Hanuman Mandir where he met accused Reshma, present in the court (correctly identified) as she was already standing there near Hanuman Mandir and from there accused Reshma took her to G.B. Road by a rickshaw at Kotha No.58 at Second Floor and accused Reshma gave her beatings with stick when she refused to indulge in galat kaam and she was forced by accused Reshma to establish physical relation with another boy. Customer gave Rs.300/ to the accused Reshma and then said customer established physical relationship with her forcibly.
53. That, she further deposed that one day, one customer whose name was Shekhar who is PW5 herein came at the Kotha and she as well as PW2 both told him Case No.27966/2016 State Vs. Reshma. 37/46 that they were wrongfully confined there by the accused Reshma and further asked him to get them released from there and the said Shekhar gave two mobiles to both of them, so that we can call their family members and after about two days on 28.04.2015 the maternal uncle of the prosecutrix 'MM@P' alongwith her brother and with the said Shekhar with the police officials reached at Kotha and they both rescued from there.
54. She has further deposed that on 29.04.2015 police officials took her and prosecutrix 'MM@P' at the aforesaid Kotha in a Government vehicle where accused Reshma was found present and they both identified her and police arrested her vide arrest memo already Ex.PW2/A bearing her thumb impression.
55. That, as per the criminal jurisprudence and to prove the guilt against the accused, the fundamental principle is, that the guilt of the accused is to be proved by the prosecution beyond reasonable doubt but in this case, there is material contradictions in respect of the making the arrest of the accused Reshma whereas PW2 has deposed that the accused Reshma was present at the time of the raid by police at Kotha No.58 on dtd. 28.4.2015 when she was rescued with PW4 but PW4 has deposed that the accused Reshma was arrested on dtd. 29.04.2015 and the arrest of accused itself is doubtful and create doubt upon the point of the arrest of accused Reshma by the police officials.
That, prosecutrix PW2 has deposed that the Kotha No.58 is at the first floor at G.B. Road whereas prosecutrix PW4 has deposed that the Kotha No.58 is at second floor at G.B. Road within the jurisdiction of PS Kamla Market and it also creates a serious doubt upon the case of the prosecution made against the Case No.27966/2016 State Vs. Reshma. 38/46 accused and the benefit of doubt goes in favour of the accused.
56. That, it has been further deposed by PW4 that she was taken by accused Reshma from Hanuman Mandir at Kotha No.58, G.B. Road and forced for prostitution and the attention of this prosecutrix was drawn by Ld. Defence counsel for the accused towards statement Ex.PW4/C and she states that place Hanuman Mandir is not mentioned therein. PW4 who is the prosecutrix has also deposed that "I do not remember if I had stated in my statement Ex.PW4/C that from there accused Reshma took her to G.B. Road by a rickshaw at Kotha No.58 at second floor." Therefore, testimony of the prosecutrix itself is selfcontradictory and is not of sterling quality and also are not sufficient to prove the guilt against the accused Reshma.
57. That, in the further cross examination of prosecutrix PW4, she has deposed that "I do not remember if I had stated in statement Ex.PW4/C that in the meantime a customer came there and accused Reshma forced her to establish physical relation with that person and that she refused then accused started beating her with stick and also slapped the customer and that customer gave Rs.300/ to the accused Reshma and then he established physical relation with her." She also deposed that "I do not remember if I had stated in my statement Ex.PW4/C name of the customer as Shekhar and that said Shekhar gave two mobile phones to both of them."
58. That, another prosecutrix 'RK' who is PW4 has also admitted that police officials used to visit Kotha No.58 weekly and used to record in the register and Case No.27966/2016 State Vs. Reshma. 39/46 she had also recorded her name with the police and there was Chhaja at Kotha and she used to stand there and on this deposition, the court has asked a specific court question i.e. on whose asking you used to stand at Chajja? and she has answered one Sapna had asked her to stand on Chajja and during her stay in Kotha, the police had not conducted raid as she cannot read the number and Sapna had told about Kotha number and its place.
59. It is worth mentioning that Ld. Predecessor of this court has also put court question to this witness and the same is as under:
Court Question: Who used to force you to establish physical relation with the customers?
Ans. Sapna used to ask her to establish physical relation with the customers.
60. That, after gone through the entire testimony of prosecutrix PW4 then she has no where deposed that accused Reshma used to ask her to establish physical relation with the customers and the number of the said Kotha told by said Sapna to her. In these circumstances, prosecution has itself failed to prove its case against the accused beyond reasonable doubt.
61. That, PW5 Sh. Shekhar has deposed that he used to go to Kotha for enjoyment and prior to 28.04.2015, he had visited Kotha No.58, first floor, left side, G.B. Road and he met the prosecutrix who had stated that she along with one girl were brought to Delhi on the pretext of getting them employed and they were intending to go their home and she gave her mobile number and requested him to inform to her brother as she did not wish to stay there and this witness has deposed that he had seen one lady namely Reshma present in court (correctly Case No.27966/2016 State Vs. Reshma. 40/46 identified) at the Kotha at that time whereas neither prosecutrix PW2 nor prosecutrix PW4 who are the material witnesses for the prosecution to prove their case against the accused has deposed that when PW5 Shekhar visited the said Kotha for enjoyment then accused Reshma was present and the testimony of PW2, PW4 and PW5 is self contradictory and cannot be relied upon and inspire no confidence at all and in the cross examination he has admitted that when he was told by the prosecutrix for the first time that she was intending to go her home and then he did not make any complaint to the picket police nor to the police patrolling team and and the said Shekhar never made any complaint against the accused Reshma to the police in this regard and the case of prosecution is that at the instance of PW3 and PW5 the police raiding team was prepared and a raid was conducted at the Kotha No.58, G.B. Road where PW2 and PW4 both prosecutrix (s) were rescued and if no complaint has been made by PW5 and there was every liberty to the girls who used to live at the said Kotha to come out frequently to watch movies and for shopping and for their medical examination then the question does not arise to keep these girls in confinement and forcibly indulged in prostitution by accused.
62. PW5 has also admitted in his cross examination that "It is correct that I married with prosecutrix MM @ P."
63. Arrest of the accused is also doubtful on the point that the PW2 has once deposed that the accused Reshma was present when the police raid the Kotha No.58, G.B. Road, and PW5 has also admitted in her cross examination that accused Reshma was present when he along with brother and maternal uncle of prosecutrix MM @ P along with police also had reached at Kotha No.58 whereas PW4 another prosecutrix has deposed that the raid was conducted on Case No.27966/2016 State Vs. Reshma. 41/46 28.04.2015 and the accused was arrested on 29.04.2015 in the evening and in the criminal case if the arrest of accused is doubtful then it goes in favour of the accused.
64. PW6 W/Ct. Karuna has deposed that she had brought the prosecutrix to the LNJP Hospital for their examination and the doctor who conducted medical examination also handed over to her one sexual assault kit in sealed condition with sample seal and she had handed over the same to SI Padam Singh who seized the same vide seizure memo prepared by him.
65. That, the allegations against the accused are also that PW2 and PW4 were forcibly confined at Kotha No.58, G.B. Road, Delhi and were put into prostitution forcibly by accused Reshma and she earned money by putting both these girls in illegal confinement through trafficking from West Bengal and every day 2025 persons used to visit the said Kotha and do the sex with the prosecutrix and as per sexual assault kit sent to FSL for expert opinion and as per the FSL report "No male semen was found" on the FSL result Ex.PW15/G.
66. That, the testimony of prosecutrix PW2 and prosecutrix PW4 are also unbelievable and inspire no confidence on the ground that PW2 has mentioned in her examinationinchief that accused Reshma has bought her for Rs.60,000/ and she has to get indulged in the prostitution but in the statement u/s 164 Cr.P.C. the prosecutrix PW2 has not stated about amount of Rs.60,000/ and name of the Shekhar has also not been mentioned in the statement u/s 164 Cr.P.C. made by the prosecutrix before the Ld. MM and the prosecution has been failed to prove that accused had purchased the prosecutrix Case No.27966/2016 State Vs. Reshma. 42/46 PW2 for a sum of Rs.60,000/ by trafficking.
67. PW4 has also did not make any statement in respect of the Kotha No.58 allegedly occupied by the accused Reshma in her statement u/s 164 Cr.P.C.
68. That, the main allegation against the accused are that she is the owner of Kotha No.58 at first floor, G.B. Road within the jurisdiction of PS Kamla Market and keep the girls there illegally and by forcibly put them in the prostitution and earns money and to prove the same, the I.O. of the case served notice u/s 91 Cr.P.C. to the BSES and asked the documents in respect of the electricity connections installed to supply the electricity at Kotha No.58, first floor, left side, G.B. Road, Delhi as the I.O. himself was not able to prove about ownership of said Kotha and to prove the same, prosecution has examined PW10 Bipin Anand, Business Manager, BSES Yamuna Power Ltd., Chandni Chowk division who has deposed that pursuant to the notice served upon him to produce the relevant documents pertaining to CA No.1000285385 regarding electricity connection installed at House No.58, first floor, G.B. Road in the name of Reshma and he had provided this document running into 34 pages to the police vide forwarding letter dtd. 01.07.2015 Ex.PW10/A bearing his signature and as per their record one more electricity meter CA No.10025744 installed at the aforesaid premises in the name of Krishna and the documents in respect of this connection was not available in their office, hence, it was not provided to the police. This witness has further deposed that there were two electricity connection in the name of Reshma and Krishna bearing consumers No. 1000285385 and 1000251744 respectively, both installed at premises no. 5377 Kotha No.58, first floor, G.B. Road, Delhi and the said Kotha is comprised of two portions namely left and right portion and both the aforesaid Case No.27966/2016 State Vs. Reshma. 43/46 electricity connections were installed at left side of the Kotha No.58 and the said documents are scanned copy of their originals and due to privatization of electricity in Delhi and closure of DESU, the said document had misplaced and are not traceable and even today, the aforesaid connection running in the name of Reshma and Krishna. Original site reports are Ex.PW10/B of Reshma and Ex.PW10/C of Krishna and copy of the aforesaid bills are marked as Y (of Reshma) Mark Z (of Krishna) and the documents with regard to the connection in the name of Krishna have been misplaced. Even their scanned copies are not available. In the cross examination this witness has admitted that "It is correct that the parentage of Reshma has not been mentioned in any of the documents" and it is supplied by the BSES in respect of ownership, Kotha No.58, left side, G.B. Road, Delhi to the police.
69. The prosecution has not been able to prove the arrest of the accused Reshma as to where accused was arrested by the police from the said Kotha on 28.04.2015 or she was arrested from the said Kotha on 29.04.2015 and there is no proof of ownership of that Kotha that it was under the ownership and control of the accused Reshma and to prove the same, the prosecution has placed on record the electricity connection documents and perusal of the same this court is also of the considered view that prosecution has also not been able to prove that the accused Reshma was the owner of the Kotha No.58, left side, first floor, G.B. Road, Delhi and was having electricity connection in her name exclusively on the ground that PW10 who is the responsible officer of the BSES has placed on record the document and who has proved that there was two electricity connections in the name of Reshma and Krishna at Premises i.e. Kotha No.58, first floor, left side, G.B. Road, Delhi, and he has also proved that Kotha No.58 is comprises of two portion namely left and right portion and both aforesaid Case No.27966/2016 State Vs. Reshma. 44/46 electricity connection were installed at the left side of Kotha No.58 and it also create doubt upon the story of prosecution as alleged against the accused in respect of ownership of the Kotha No.58 and if electricity connection is not exclusively in the name of accused Reshma and the same is in two names on the said Kotha on the left side and same is in the name of accused Reshma and another in the name of Krishna then how the police only made accused Reshma as accused.
70. The prosecution has also failed to establish the charge against the accused on the point of ownership of the Kotha No.58, left side, first floor, G.B. Road as the site report placed on record by PW10/B wherein it has been specifically mentioned by the BSES department that the aforesaid connection is installed in staircase area and supply used at first floor left side and Reshma and Krishna both meters supply used in singlesame portion and it has also been revealed from the document mark 'Y' that Reshma and Krishna both meters supply used in single same portion. Therefore, it creates doubt as to who is the exclusive owner of the left side of Kotha No.58, G.B. Road, Delhi and the benefit of doubt goes in favour of accused as the prosecution has not been able to prove its case against the accused beyond reasonable doubt.
71. That, as stated above, this court is of the considered view that prosecution has been failed to prove their case against the accused Reshma beyond reasonable doubt and this court has no option except to acquit the accused Reshma from the charges u/s 120B IPC, 366/368 IPC r/w 120B IPC, 370/370A (2) IPC r/w 120B IPC, 343 IPC, 109 IPC r/w 376 IPC and under section 3, 4, 5, 6 of ITP Act.
Case No.27966/2016 State Vs. Reshma. 45/4672. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.50,000/ with one surety in the like amount.
73. As prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Therefore, there is no order to compensation to the victims/complainant.
74. Every page of this judgment is signed by me.
75. Ahlmad of this court is directed to consign the file to record room after completion of all the requisite formalities.
PRONOUNCED IN THE OPEN COURT ON 16.05.2019.
(SATISH KUMAR) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
Case No.27966/2016 State Vs. Reshma. 46/46