Delhi District Court
State vs . Hira Etc. Kaur Date: 2020.05.12 on 12 May, 2020
IN THE COURT OF MS. GURMOHINA KAUR
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 40/12 Digitally signed
PS : Crime Branch by GURMOHINA
U/s : 317/370/363/120B/34 GURMOHINA KAUR
State Vs. Hira etc. KAUR Date: 2020.05.12
Case No. : 93500/16 17:35:24 -0500
Date of institution of case : 15.03.2012
Date of reserving the judgment : 24.02.2020
Date of pronouncement of judgment : 12.05.2020
JUDGMENT
1. S. No. of the Case : 93500/16
2. Date of Commission of Offence : 14.02.2012
3. Name of the complainant : SI Virender Singh,
No. D138/SOS/Crime Branch
4. Name,parentage & address of accused : 1. Smt. Hira, W/o Late
Sh. Ramesh Chand
Sharma, R/o H. No. 76,
Block 9, Dakshin Puri, Near
Madan Giri, Delhi.
2. Neeraj Mahalwal,S/o Late Sh.
Ram Kumar, R/o H. No. B9
2/C, Village Madangir, Delhi.
3. Smt. Sapna @ Pooja, W/o Sh.
Vinod Sharma, R/o H. no. 76,
Block No. 9, Dakshinpuri,
Delhi.
4. Smt. Chandra, W/o Late Sh.
Partap Singh, R/o H. No.
1/179, Dakshinpuri, Madangir,
Delhi
5. Offence complained of : 317/370/363/120B/34
FIR No. 40/2012
PS : Crime Branch
State Vs. Hira etc. Page no. 1
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The case of the prosecution in brief is that a raiding party was constituted on the basis of secret information received on 15.02.2012 at 8.30 pm by SI Virender which constituted of SI Ram Niwas, WASI Jamuna Devi, WHC Suman, HC Amit, HC Anil, Ct. Surender, Ct. Rajnish, Ct. Alok, Ct. Devi Dayal, Ct. Bhup Singh and pursuant to the same, the aforementioned officials went in a Government Gypsy no. DL1CJ3853 and one private car and one NGO namely Shakti Vahini was also informed by them regarding the raid. As per the charge sheet, WHC Suman became a decoy customer and went to 179, Block I, Dakshin Puri where she made a deal for a male infant child Rs. 1 lakh and agreed to pay Rs. 10,000/ to accused Chandra who had also agreed to the deal. It is further alleged that that at about 7.30 pm, accused Chandra came along with other accused persons Hira and Pooja and the minor child and further asked for a commission of Rs. 50,000//. It is stated in the chargesheet that thereafter, shadow witness SI Ram Niwas was signalled to apprehend and arrest the accused persons by the concerned officials. During the personal search of accused person Chandra Devi, five notes of Rs.1000/ were recovered which were seized and the infant which FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 2 was recovered from the possession of accused Pooja and was given to women police officials and was later on submitted in the custody of Palna Children's Home. On completion of investigation, charge sheet was filed against the accused persons.
2. Cognizance of the offence was taken against the accused persons by Ld. Predecessor of this court and copies of chargesheet and documents were supplied to the accused persons in compliance of Section 207 Cr.P.C. On finding a primafacie case, vide order dated 29.10.2013 charge u/s 317 IPC was ordered to be framed against accused Neeraj Mahalwal, charges u/s 370 read with Section 120B and 34 IPC were framed against accused Chandra, Sapna @ Pooja and charge u/s 363/370 read with Section 120B IPC was framed against accused Heera to which all the accused persons pleaded not guilty and claimed trial.
3. In order to substantiate and prove the charge against the accused persons prosecution examined as many as 10 witnesses.
4. PW1 HC Jaipal deposed that on 15.02.2012, he was posted as a duty officer at PS Crime branch from 08:00 p.m to 08:00 a.m. and on that day he received rukka through Ct. Devi Dayal on which he put his endorsement Ex.PW1/A and got the present FIR registered. He stated that he had handed over the copy of rukka and the copy of FIR to Ct. Devi Dayal to be handed over to SI Yashpal. During his cross examination conducted by ld. Counsel FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 3 for accused Neeraj Meharwal he had stated that he received the rukka at about 10:45 p.m and it took about 45 minutes to register the FIR.
5. PW2 Sh. Subir Roy deposed that he had been working in NGO Shakti Vahini since 2010 and on 15.02.2012, at about 04:00 p.m, he had received a call from Delhi Police Crime Branch regarding their intervention in a child related case. He added that he was requested by the officer to reach T point near Virat Cinema at 06:00 p.m and he alongwith his colleague Lokender reached there at about 06:00 p.m. and met the members of the police team namely SI Virender Singh, Ram Niwas and other women officials Yamuna and Suman. He added that Virender Singh explained to him that they were going to rescue an infant with the help of a decoy customer and requested him to be a part of the raiding team. He further added that he agreed to be a member of raiding team and that SI Ram Niwas who acted as a decoy customer and a woman officer Jamuna went to the alleged spot while the rest of the team remained waiting at T point near Virat Cinema. He added that after sometime they came back with one old lady and he also identified the accused Chandra present before the court and further added that the accused Chandra had called the child. He further deposed that thereafter other women Pooja @ Sapna and Heera came alongwith an infant child and they went to SI Ram Niwas (decoy customer) and had a discussion with him. PW2 further identified accused persons Pooja and Hira during his deposition FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 4 and stated that the infant child was recovered vide seizure memo Ex.PW2/A and the handing over memo of ten notes of Rs. 1000 denomination was Ex.PW2/B. He further stated that the seizure memo of five notes was Ex.PW2/C and Ex.PW2/D. He added that he had put the signatures on all the aforesaid memos at the spot itself on 15.02.2012. He further stated that the police also arrested accused Sapna, Heera and Chandra vide arrest memo Ex.PW2/E, Ex.PW2/F and Ex.PW2/G respectively and further stated that with the help of women police officials, the accused persons were personally searched vide Ex.PW2/H, Ex.PW2/I and Ex.PW2/J respectively. He also stated that on the same day in the office of Crime Branch. Accused Neeraj was brought by the police officials and his arrest memo was Ex.PW2/K and his personal search memo was Ex.PW2/L. He added that the infant child was given in the care of woman police officials and Police official Jamuna took the infant child and submitted him in the custody of Palna Children Home. PW2 was cross examined by Ld. APP for State as he did not disclose the entire facts and during his cross examination by Ld. APP for State, he further admitted that he alongwith ASI Ram Niwas WHC Suman was made as a decoy customer and admitted that at the spot when accused Hira Devi, Chandra Devi was apprehended their search were carried out by woman police officer only. He further admitted that from the search of accused Chandra Devi, five currency notes of denomination Rs.1000 were FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 5 recovered and their numbers were mentioned in Ex.PW2/C. He further stated that the disclosure statement of the accused persons was Ex.PW2/N, Ex.PW2/O and Ex.PW2/P. Case property which were two envelopes duly sealed with the seal of VSY were produced during his cross examination and it was observed that the envelopes were torn from both the sides and currency notes could be seen and could be taken out without breaking out the seal. During his cross examination five currency notes were taken out from the envelope of Rs. 1000/ each. During his cross examination by Ld. Counsel for accused Neeraj, he denied that he was a stock witness of the Police and added that he had reached the spot at about 5.006.30 pm and had remained there till about 9.3010.00 pm. He further stated that he had never seen the police making any entry in the movement register. He added that he had not seen the accused Neeraj before his production in Crime Branch and denied that he had signed blank arrest memos and documents which were later filled up by the police officers. He was not cross examined by Ld. Counsel for accused persons Pooja, Heera and Chandra Devi.
6. PW3 ASI Jamna Devi deposed that on 15.02.2012, she was posted as ASI at Missing Person Section, Crime Branch, Kotwali, Daryaganj, Delhi and on that day, she had joined investigation of present case with SI Virender Singh and SI Ram Niwas. He added that on that day, a raiding team was constituted by SI Virender Singh and SI Ram Niwas consisting of himself, FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 6 WHC Suman, and they all four left their office and reached near Virat Cinema, Dakshin Puri. He further added that there, two persons from NGO Shakti Vahini met them and were inducted in the raiding team by the IO and from there they had gone to H. No. 1/179, Dakshin Puri, near Virat Cinema. He stated that thereafter, WHC Suman while leaving the team outside, went inside the above mentioned home and there she had conversation with accused Chandra and WHC Suman being a decoy customer asked Chandra whether she could arrange a child for the purpose of purchasing. He further deposed that accused Hira told them that she could arrange a male child and asked for Rs. 1 Lac and after sometime, WHC Suman came outside and shared the above said facts to them. He further averred that thereafter, on the instructions of IO, she took proper search of WHC Suman leaving no article with her and thereafter, IO handed over 10 notes of Rs. 1,000/ denomination each to WHC Suman and prepared the handing over memo of notes already Ex. PW2/A. He further stated that WHC Suman again went to accused Hira Devi and told them that she was taking the child and after sometime, accused Hira, accused Pooja @ Sapna and accused Chandra came to WHC Suman alongwith a male boy of around 04 years. He added that WHC Suman took the child from accused persons at the signaling of SI Ram Niwas, they cordoned off the accused persons and apprehended them. He stated that on casual search of accused persons and from the possession FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 7 of accused Hira and accused Chandra Rs. 5,000/ each were recovered which was handed over by IO to WHC Suman. He deposed that Rs. 5,000/ seized from accused Hira Devi was duly seized by the IO after preparing seizure memo already Ex. PW2/C and it was sealed with the seal of "VSY". He added that the Rs. 5,000/ seized from accused Chandra was duly seized by the IO after preparing seizure memo already Ex. PW2/D and was also sealed the same with the seal of "VSY". He deposed further regarding the investigation of the case and he correctly identified all the accused persons and case property. During cross examination conducted by Ld. Counsel for accused Neeraj he admitted that the DD entry regarding their leaving the spot was not on record and further stated that he could not say whether accused Neeraj was arrested in his presence or not. He added that after the incident he did not join the investigation in the present case and had signed all the documents at the spot only. He also denied the suggestion that nothing was recovered in his presence and that no accused was arrested in his presence. This witness was not cross examined on behalf of accused Hira Devi, Chandra Devi and Pooja @ Sapna despite being given opportunity.
7. PW4 ASI Suman who deposed on lines similar to PW3 regarding the raid on 15.02.2012. During her cross examination conducted by Ld. APP for State, the witness admitted that SI Virender, SI Ram Niwas and W/ASI Jamuna FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 8 Devi were a part of the raiding team. During her cross examination conducted by Ld. Counsel for accused Chandra Devi, Heera Devi and Pooja @ Sapna, PW4 stated that she did not remember whether she had made any departure entry while leaving the police station with the raiding party. She added that she reached at the spot in the private vehicle but did not remember the specification of the same. She also stated that vehicle was driven by the Delhi Police official whose details she did not remember. She admitted that she did not know in which vehicle who was sitting at the time of raid and that all the vehicles reached the spot at the same time. She added that there were number of shops near the area and they were open. She added that she could not say with certainty that if any member of the raiding party had left the spot during the raid and she stated that she could not tell the exact distance between the Virat cinema and the house and admitted that when she reached the house she had met with accused Chandra Devi and another person who could have been her husband. She stated that all the conversation between her and accused Chandra Devi took place in the presence of SI Ram Niwas and she did not remember whether there were any specific mark on the ten notes of Rs. 10,000/. She added that Rs.5000/ was recovered from accused Chandra Devi and Rs.5000/ from Hira Devi and IO did not join any public witness while making search of the accused persons and that only NGO person were present. She stated that FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 9 the disclosure statement of the accused persons were taken in PS and again added that the same were recorded in the Virat Cinema. She also stated that the accused persons were arrested in midnight and did not know whether any other statement of accused was recorded by the IO at the PS. During cross examination conducted by Ld. Counsel for accused Neeraj Mahalwal, she admitted that accused Neeraj was not present or involved in the raid and that he was subsequently arrested. She stated that there was no mention of accused Neeraj Mahalwal and his arrest in her statement recorded u/s 161 Cr.P.C. She stated that she did not remember where Ex.PW2/B was recorded and denied the suggestion that she had signed all the documents while sitting in the office on the direction of IO. She was again reexamined by Ld. APP for the State wherein she stated that her duty hours were from 10:00 a.m. to 06:00 p.m on 15.02.2012 and she had joined the raid on the directions of SHO after duty hours. During her cross examination conducted by accused Neeraj she stated that there was no written instructions on behalf of SHO to join the raiding team after duty hours.
8. PW 5 Insp. Yashpal Singh deposed that on 15.02.2012, he was posted as SI at the office of Crime Branch, Darya Ganj, Delhi and on that day after registration of present FIR, investigation of present case was marked to him, accordingly, he had reached at the spot i.e near Tpoint, Virat Cinema, Dakshin Puri, New Delhi and met first IO SI Virender Singh, SI Ram Niwas, FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 10 Subir Roy and other police officials who had conducted raid and seized one male infant baby s/o Ms. Neha and apprehended three lady accused persons namely Chandra Devi, Hira Devi and Pooja Devi @ Sapna while accused persons were trying to sell the infant baby for consideration of money. He added that first IO handed over to him the custody of above stated three accused persons alongwith already seized documents i.e handing over memo of notes, seizure memo of male infant baby, seizure memo of five notes of 1000 denomination from Hira Devi, seizure memo of five notes of 1000 denomination from Chandra Devi and already seized case property and, thereafter, in the presence of woman HC Suman, he had interrogated the accused persons and after due inquiry arrested them vide arrest memo already Ex.PW2/E, Ex.PW2/F and Ex.PW2/G and through W/HC Suman and W/SI Jamuna Devi got conducted their personal search vide memos Ex.PW2/H, Ex.PW2/I and Ex.PW2/J. He further stated that he had filled the particulars of present FIR on already prepared memos and in the meantime at the instance of accused Hira Devi who informed him that their coaccused Neeraj Mahalwal was standing near Virat Cinema, Dakshin Puri Extension, New Delhi, he arrested accused Neeraj Mahalwal standing near Virat Cinema, Dakshin Puri Extension, New Delhi in the presence of witnesses vide arrest memo Ex.PW2/K and conducted his personal search vide Ex.PW2/L and got deposited the case property of present case in the FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 11 Malkhana and committed all four accused persons to custody. He further added that he also recorded disclosure statement of accused Neeraj Mahalwal which was Ex.PW2/D and during investigation he had searched mother of the infant child namely Ms. Neha and after she met him, he got her statement recorded u/s 164 Cr.PC. He deposed that he also obtained the birth record of recovered male infant child s/o Ms. Neha and placed the same on record. He deposed that the forwarding letter of CMO, Safdarjung Hospital with the record of discharge summary of Ms. Neha after her delivery was Ex.PW5/A (colly) and he had deposited the recovered male infant child in the Child Welfare Committee, Kasturba Niketan, Lajpat Nagar, Delhi and who was later released to his mother Neha. He stated that during investigation, he had recorded the statement of witnesses and on completion of investigation, he filed the chargsheet. Witness also correctly identified all the accused persons present in the court. During cross examination conducted by counsel for accused Neeraj Mahalwal, the witness admitted that he had not placed on record the arrival and departure entry of the raiding party and that he had not participated in the raid in question and he had received its information after registration of FIR when investigation was handed over to him and that accused Neeraj was not apprehended by the first IO SI Virender Singh. He denied the suggestion that accused Neeraj had nothing to do with the present case or that he was deposing falsely. He also FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 12 denied that accused Neeraj was falsely arrested in the present case. He stated that when accused Neeraj was arrested, no independent witness were present at the spot except Subir Roy who was a part of raiding team. He further denied that he obtained the signature of all the accused persons on blank paper and later on converted them into disclosure statements. During cross examination conducted by Ld. Counsel for accused Hira, Chandra Devi and Pooja @ Sapna he denied the suggestion that accused persons were not arrested from the spot as stated by him in his examination in chief or that they were called in the PS and arrested.
9. PW 6 Sh. Hyat Singh deposed that the summons were received in their office to produce original discharge summary slip of MRD no. 95240, Ward 5, Unit 4 of Neha dated 10.10.2011 and discharge summary of MRD no. 9520 dated 05.10.2011 of baby of Mrs. Neha. He added that the medical records up to year 2014 and the MLC register upto year 2007 had been weeded out and disposed of after approval and the same were not available with the hospital and, therefore, the relevant summoned record could not be produced. He deposed that the certified copy of Hospital Authority regarding the weeding out of original records as abovestated was Ex.PW6/A and Ex.PW6/B bearing signature of Smt. Satyaviri Devi, Medical Record Officer of their hospital at point A respectively. During his cross examination conducted by Ld. Counsels for accused persons, he admitted that the FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 13 hospital authorities had not taken prior permission of the court before weeding out documents of the present case. He added that he had no personal knowledge of the present case.
10. PW 7 Dr. Anupuma Raina deposed that in the year 2012, he was working as Scientist / Incharge, DNA Fingerprinting Laboratory in Department of Forensic Medicine and Toxocology, AIIMS, New Delhi and in the present case, exhibits bearing no. 444, 445 and 446 of Neeraj, Viraz @ Krishna and Smt. Neha respectively were collected in the laboratory on the request of concerned DCP, Crime and Railways, Delhi and he had conducted DNA Typing of said exhibits. He added that after matching them with each other, he had opined that Exhibits No. 445 was the biological off spring of Ex. No. 444 and Ex. No. 446 and his detailed report in this respect was Ex.PW7/A. During cross examination conducted by Ld. Defence counsel, witness stated that he did not have any personal knowledge of the present case.
11. PW8 Insp. Virender Singh deposed that on 15.02.2012, he was present in the office of SOS Crime Branch, Kotwali, Delhi and on that day at about 03:30 p.m. a secret informer came in their office and informed him that some ladies in South Delhi were involved in selling of infant children. He added that after getting the information, he verified the same and further communicated the same to Insp. Sajjan Singh and ACP Sh. K.K. Sharma. He stated that they accordingly verified the information and directed him orally to FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 14 take legal action. He added that, thereafter, the said information was reduced into writing vide DD no. 13 and a raiding party was prepared comprising of himself, SI Ram Niwas, WASI Jamuna Devi, HC Amit, HC Anil, Ct. Surender, Ct. Alok, Ct. Rajesh, Devi Daya, Bhoop Singh, Jai Bawa and secret informer. He deposed that after that he alongwith raiding party reached at PS Crime Branch, Malviya Nagar in one Government Gypsy bearing no. DL1CJ3853 and two private cars. He further added that at the spot, he included WHC Suman into raiding party and briefed all the raiding party members about the secret information. He stated that he also informed an NGO namely Shakti Vahini to directly came at the spot i.e. T Point, Virat Cinema, Dakshin Puri, Delhi and he also alongwith raiding party reached at the T Point, Virat Cinema, Dakshin Puri, Delhi. He also stated that after reaching there, he asked some public persons to join the investigation but they refused and went away without disclosing their names and addresses and giving their genuine reasons. He added that at about 07:00 p.m, the officials of Shaktivahini NGO namely Subir Roy, Director and Sh. Lokender, Coordinator also reached there and he briefed them about the secret information and directed WHC Suman to become a decoy customer and after taking her search through WASI Jamuna Devi, he gave her Rs.10,000/ (ten notes of 1000 denomination) after recording their serial numbers through handing over memo already Ex.PW2/A. He further deposed on lines similar FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 15 to that of PW2 and PW4. During his cross examination conducted by Ld. Counsel for accused Chandra, Hira and Pooja @ Sapna, he stated that no written complaint was taken regarding the information given by secret informer and the secret informer remained in the office for about 20 minutes. He further added that he had not recorded any statement of driver of the abovesaid vehicles, although one car belonged to him and the other one belonged to SI Ram Niwas and both of them were driving the said vehicles. He added that he had briefed regarding the raid prior to the sending of the decoy customer and shadow witness in the abovementioned jhuggi. He further stated that he did not take any statement of the shadow witness regarding the proceedings done in jhuggi. He also stated that he had made the seizure memo of the currency notes from accused Chandra while sitting in the car and that he could not tell the exact number of currency notes but he could identify the currency notes if shown to him.
12. PW9 Insp. Ram Niwas deposed that on 15.02.2012, he was posted as Sub Inspector in SOS Crime Branch, Kotwali Dariyaganj and at about 3.30 pm SI Virender Yadav constituted a raiding party including him stating about an information of selling of infant child in the area of Dakshin Puri. He added that he was also told that the information had been conveyed to senior officers and as per their directions this raiding team was being constituted including SI Virender Singh, himself, W/Ct. Suman, W/ASI Jamuna, HC Amit, FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 16 HC Anil and some other constables. He stated that meanwhile SI Virender also informed an NGO namely Shaktiwahini and the raiding party reached at PS Malviya Nagar, Crime Office in a Government Gypsy and two private cars. He also added that there WHC Suman joined the raiding party and the team re assembled at T point, Virat cinema, Dakshin Puri at about 06:30 p.m. and at about 07:00 p.m. two persons of NGO Shakti Vahini came at T Point Virat Cinema, Dakshin Puri, Delhi. He deposed that SI Virender briefed the raiding party including the NGO persons and 7/8 public persons were also asked to join the raiding party but everyone refused to join the investigation and left the spot without disclosing their names and addresses. He also deposed on similar to that of PW2, PW8 and further identified accused Hira, Neeraj and Chandra Devi during his deposition. He was cross examined by Ld. APP for the State wherein he admitted that the seizure memo Ex.PW2/C and Ex.PW2/D were prepared in his presence and he had also signed it. He also admitted that the recovery of said currency notes were done in his presence and they were recovered from accused Chandra and Hira. He stated that he could not identify the currency notes as all currency notes looked the same and he could not remember the serial number of currency notes as the case was more than six years old. During his crossexamination by Ld counsel for accused Hirs, Chandra and Sapna, he stated that his statement was recorded by the IO on 15.02.2012 and that IO would have FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 17 attached his statement in the file but added that the same was not on record. He denied the suggestion that he had signed all the documents at the instance of the IO while sititing in the office of Crime Branch. During his crossexamination by Ld. Counsel for accused Neeraj, he denied the suggestion that his statement was not recorded by the IO as he was not a member of the raiding team in the present case and added that he had prepared some documents in his writing at the direction of the IO during raid and after that. He further denied the suggestion that he had never joined the investigation of the present case or that he had never been a shadow witness during raid in the present case.
13. PW10 Hyat Singh deposed that he was a summoned witness from Safdarjung Hospital and the summoned medical record had been weeded out vide DGHS order no. Z29015/6/2014MHI dated 10.02.2014 and the same attested copy of the order was Ex. PW10/A. The witness was not crossexamined by Ld. Counsel for accused persons.
14. Thereafter, PE was closed and statement of the accused persons were recorded u/s 313 Cr.PC on 24.06.2019 wherein all the accused persons namely Hira, Miraj Mahawal, Sapna and Chandra denied the prosecution case in its entirety and claimed innocence.
15. The accused persons opted not to lead any defence evidence and the matter was thereafter listed for final arguments.
FIR No. 40/2012
PS : Crime Branch
State Vs. Hira etc. Page no. 18
16. Arguments heard. Record perused and considered.
17. Accused Neeraj Mahalwal has been charged for offence punishable u/s 317 IPC. Perusal of the record reflects that qua accused Neeraj Mahalwal, it is seen that there was no incriminating evidence produced against accused Neeraj Mahalwal either in the chargesheet or in any of the evidence led by the prosecution during trial either by way of documents or otherwise. No witness has deposed against him. Apart from his disclosure statement, there is not even an iota of evidence against accused Neeraj Mahalwal on record. There is nothing on record that has been produced to suggest his involvement and further there are no details of his role as has been alleged in the charge sheet that has been provided for during the entire trial. None of the charges which have been framed against accused Neeraj Mahalwal have been been proved during trial and further no witness has deposed anything incriminating qua him in the present case. During the entire prosecution evidence there was no evidence placed on record to even prima suggest that accused Neeraj Mahalwal had exposed his son with the intention of abandoning him as is required to be proved as per the provision of Section 317 IPC.
18. Accordingly, accused Neeraj Mahalwal is acquitted in the present case for want of evidence qua him.
19. With respect to the remaining accused persons namely Chandra and Sapna, FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 19 the judicial record shows they have been charged for the offences punishable under Section 370 r/w 120 B IPC and 34 IPC and accused Heera has been charged for the offences under Section 363 IPC and Section 370 IPC r/w 120 B IPC.
20. It is pertinent to mention at this stage, that the case of the prosecution is that upon receipt of secret information by SI Virender Singh, a raiding team was constituted comprising of SI Virender Singh, SI Ram Niwas, ASI Jamna Devi and W/HC Suman and two officials of NGO Shakti Vahini were asked to be accompany them at the spot at the time of raid .i.e T Point near Virat Cinema. Further, as per the testimony of PW4, PW8 and PW9, no public witness joined the investigation despite the fact that the accused persons Sapna, Heera and Chandra were allegedly apprehended at about 07.30 pm at TPoint Virat Cinema, Dakshin Puri, New Delhi, which is a busy public place having presence of various public persons. Despite the fact, no public joined the investigation and, the record also reveals that no sincere efforts were made by the concerned police officials to join any public person during investigation at the time of apprehension of the aforementioned accused persons or at the time of allegedly recovery of currency notes from them. Even after the apprehension of the accused persons, the IO of the case could have very well served the passerby/public persons with notice in writing to join the police proceedings in as much as at that point of time, FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 20 accused persons were already stood apprehended and there was no possibility of their escaping their arrest or crime going undetected. No action was taken by the IO on refusal of the public persons under Section 187 IPC. In this regard reliance can be placed on case titled Anoop Joshi V/s State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
'' It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
21. In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: '' I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''. ''4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 21 a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but 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 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. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
22. In case law reported as Sadhu Singh Vs State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: '' In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused'' ''6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.
FIR No. 40/2012
PS : Crime Branch
State Vs. Hira etc. Page no. 22
23. Furthermore, it also requires mentioning that while the chargesheet has been filed stating that the child was an infant, who was offered to be sold by the accused persons, there are contradictions as to the age of the minor male child / victim. While PW3 has stated that the child was over 4 years old, PW2 and PW5 have stated in their deposition that the child was an infant. The discharge summary of the child could also not be proved as to the record pertaining to it had been weeded out and destroyed through an office order. The discrepancy as to the age of child has not been explained as even the members of the raiding team have given different age for the child / victim despite the fact that all of them were stated to be present at the time of raid and recovery of the minor male child.
24. It is further seen that as per the chargesheet, it has been alleged that accused Heera had kidnapped the child from accused Neeraj without his valid consent but the sequence of chain of events so as to the aforesaid allegations has not been proved or even explained during the entire trial. How the father of the minor male child i.e. accused Neeraj handed over the custody of his son / the victim in the present case or how accused Heera came in possession of the custody of son of accused Neeraj has not been explained or even proved during the entire trial. No investigation has been done in this respect and even the chargesheet is silent as to these crucial aspects so as to complete chain of events which are essential and are FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 23 required to be proved in the present case to bring about the guilt of the accused. There is also discrepancy as the IO SI Virender Singh who was examined as PW8 of the present case has stated during his cross examination that he could not tell the exact numbers of the currency notes and on the other hand PW9 SI Ram Niwas who is also stated to be the shadow witness and was a part of the raiding team had failed to identify the currency notes in the present case during his deposition. Infact, admittedly there is no statement recorded under Section 161 Cr.P.C of PW8 SI Ram Niwas on record, if any so, was so recorded during investigation, who is also stated to be a shadow witness as per the chargesheet. No explanation has been brought forth to show as to why his statement was not on record or whether it was recorded or not during trial by the concerned police officials. There is also no entry of arrival and departure qua the raiding party as per the testimony of witnesses and PW4 W/HC Suman has further stated during her crossexamination that she had joined the raiding party after her duty hours and no written order was issued to her in this respect. Furthermore, even as per the evidence on record the envelope from which the currency notes were kept, was admittedly torn and the possibility of tempering with currency notes could also not be ruled out. Also, even the seal was handed over admittedly to the IO by the concerned police official on the next day of the alleged raid and there was no memo of taking over and handing over of FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 24 seal that has been placed on record during trial.
25. It is pertinent to mention that the essential ingredients of kidnapping under Section 363 IPC are that a person should be kidnapped from lawful guardianship. Qua the offence of Section 370 IPC, it is seen that this section provides for buying or disposing of any persons as slave. In the present case, the prosecution version is that it was the father of accused Neeraj Mahalwal who had allegedly handed over his minor male child to be sold further illegally to the other accused persons. However, there is no evidence led to prove this allegation by the prosecution during the entire trial to this effect and as discussed earlier, the kidnapping of the minor male child has not been proved at all and that no evidence has been brought forth in this aspect during trial. Also, no evidence has been brought forth to show that the minor male child was being sold as slave or for some other purpose. No independent public witness has been examined apart from PW2 Subir Roy as discussed earlier who was working with a NGO and is stated to be a part of the alleged raid. Even PW2 has stated in his cross examination that he did not see the police official made any entry of movement of raid and even the consideration of money was brought to the court in a torn envelope wherein currency notes could be easily be taken out without mishandling of the seal.
26. It also requires mentioning that the most important or crucial witnesses in this case were the minor male child himself and his mother Mrs. Neha. Mrs. FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 25 Neha did not appear before the court as she was stated to be untraceable and (who is the mother of the minor male child), therefore, her deposition to bring out the true facts of the case could not be recorded. Her testimony was crucial. The investigation agency did not even mention the minor male child as a witness despite being the most important person in this case who could have proved the allegations in the chargesheet qua the accused persons. The examination of both these persons was important and crucial for this case and, therefore, their non examination goes to the root of the matter. Even the concerned official of Patna Children's Home has not been examined as witness during trial.
27. In the present case, as discussed earlier, no evidence has been brought forth to show that the minor male child was being disposed off for being used as a slave. No witness has been examined to prove this allegation during the trial. The concerned investigation official have failed investigate the trial in a proper manner. The basic ingredients of Section 363 IPC and Section 370 IPC on which the charges have been framed in the present case have not been proved as no evidence have been brought forth to establish these aforesaid charges during trial. No investigation has been done as to who had kidnapped the minor male child, what was the enticement, what was the alleged purpose for which the child was kidnapped and for what purpose was the minor male child being alleged sold to the decoy customer. The FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 26 investigation has not been conducted properly in this case. The prosecution has also not been able to prove the offence of criminal conspiracy u/s 120B IPC or common intention u/s 34 IPC qua all the accused persons as are also the charges against the accused persons as no evidence has been lead to show what was the criminal conspiracy, what was the illegal agreement that was hatched between the accused persons and what acts were done by them, pursuant to the criminal conspiracy in furtherance of the same. Furthermore, no evidence has been lead to prove the alternate change of common intention u/s 34 IPC qua all he accused persons and whether they had acted in pursuance of the same. Questions which were crucial to determine the present case such as who had handed over the minor male child to accused persons Hira, Chandra and Sapna has not been stated or proved during trial and have remained unanswered. Despite being a public place, the absence of any independent public person as a witnesses also casts doubt on the prosecution story.
28. The case put forth and the investigation done by the concerned police officials does not seem to be probable and the prosecution has not been able to prove its case beyond reasonable doubts.
29. Therefore, in view of the abovesaid facts and circumstances, I am of the opinion that benefit of doubt is to be give to the accused persons and as a consequence thereof accused persons are entitled to be acquitted in the FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 27 present case. Accordingly, all the accused persons namely Hira, Miraj Mahalwal, Sapna @ Pooja and Chandra are held "not guilty" and therefore all the accused persons namely Hira, Miraj Mahalwal, Sapna @ Pooja and Chandra are accordingly acquitted for all the offences. Announced in the open Court Today on 12.05.2020 (Gurmohina Kaur) CMM/SE/District Court, Saket New Delhi/12.05.2020 FIR No. 40/2012 PS : Crime Branch State Vs. Hira etc. Page no. 28