Delhi District Court
Cbi vs (1) Anand Vishwa @ Bishwa on 10 July, 2014
1
IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE
CBI03 (PC ACT): TIS HAZARI: DELHI
Sessions Case No. 05/13
RC Number : 5(S)/12 CBI/SCI/ND.
CBI Vs (1) Anand Vishwa @ Bishwa
Late Sh. Kaziman Vishwa
R/o Samsing Bagan, near
Samsing High School,
P.S. Maitali Bazar,
Jalpaigudi, (W.B.)
(2) Faris Suja Jalali @ Anup
S/o Syed Suja Jalali
R/o H.No.1, Lane No.1,
BagheAliMardan Khan
Srinagar(Jammu &
Kashmir)
Under Section: U/S 120B r/w 420,366A,372,373
IPC r/w 5 of IT(P) Act, 1956.
Date of Institution : 06.08.2012
Date of conclusion of arguments: 28.05.2014
Date of judgment : 07.07.2014
JUDGMENT
1. Both accused, A1 Anand Vishwa @ Bishwa and A2 Faris Suja Jalali @ Anup, have been chargesheeted for S C No.05/13 1/47 2 offences punishable under Section 120B r/w Sections 420,366A,372,373 IPC and Section 5 of Immoral Traffic(Prevention) Act,1956. Further, A1 Anand Vishwa @ Bishwa, has been chargesheeted for substantive offences punishable under Sections 420,366A, 372 IPC and Section 5 of Immoral Traffic (Prevention) Act and A2 Faris Suja Jalali @ Anup, has been chargesheeted for substantive offences punishable under Section 373 IPC and Section 5 of Immoral Traffic(Prevention) Act. The allegations against both the accused are that they were involved in sale/purchase and procurement of girls, minor as well as major for pushing them into prostitution. In the present case, the allegations are that, accused no.1, Anand Vishwa @ Bishwa, was wanted in a case RC no. 3 (S)/2002, SCI, CBI, New Delhi, which was being investigated by Insp. Seema Pahuja of CBI, New Delhi, who had received information that he shall be reaching Old Delhi Railway Station. It is alleged that the victim Alisha Gurung had come to reside in Delhi in month of January or February 2010 alongwith her husband Pawan Tamang, whom she had married in the month of February 2009 at village Frymall S C No.05/13 2/47 3 located below Government College, Darjeeling, where she had come to visit her maternal grandfather, Pawan Tamang, being a resident of that village, and for their livelihood, they used to sell Momos in the area of R.K. Puram, New Delhi. During the stay at Delhi, both, victim Alisha Gurung and her husband Pawan Tamang, came in contact with A1 Anand Vishwa @ Bishwa, as he was their regular customer and during interactions, it was disclosed by A1 Anand Vishwa @ Bishwa that he had been providing assistance to boys and girls, who had been coming to Delhi in getting suitable job such as domestic help and baby sitter etc. Victim Alisha Gurung and her husband had returned back to Darjeeling, in the month of June 2010.
2. Further, it is the case of CBI that both her husband and her motherinlaw, Laxmi Tamang, were alcoholic, and were abusive towards Alisha Gurung, and to get rid of said atmosphere, she planned to leave home to do some job and in second week of April 2012, she contacted A1 Anand Vishwa @ Bishwa over his mobile phone. Victim Alisha Gurung, shared her problems with A1 Anand Vishwa @ Bishwa, who S C No.05/13 3/47 4 assured her to arrange a suitable job at Delhi, and it is in these circumstances that she had come to Delhi on 13.04.2013, on the asking of A1 Anand Vishwa @ Bishwa, who promised to receive her at Old Delhi Railway Station.
3. Further, it is the case of CBI that during interrogation, A1 Anand Vishwa @ Bishwa, disclosed that he was in the business of prostitution for last two years, and had called victim Alisha Gurung to sell her to A2 Faris Suja Jalali @ Anup, for prostitution for a sum of Rs.40,000/. It was also disclosed by A1 Anand Vishwa @ Bishwa that A2 Faris Suja Jalali @ Anup, was running a brothel at his rented accommodation at Sriniwaspuri, Delhi.
4. Further, it is alleged that to verify the facts disclosed by A1 Anand Vishwa @ Bishwa, he was allowed to talk with A2 Faris Suja Jalali @ Anup, over his mobile phone, to finalize the deal of salepurchase of the victim. The conversation was recorded and after the information disclosed by A1 Anand Vishwa @ Bishwa was confirmed in the conversation between him and A2 Faris Suja Jalali @ Anup, a trap was laid. A2 Faris Suja Jalali @ Anup, was apprehended, S C No.05/13 4/47 5 redhanded when he paid Rs.9,500/ to A1 Anand Vishwa @ Bishwa, against the deal in the area of Lajpat Nagar, New Delhi. CBI has claimed that A2 Faris Suja Jalali @ Anup was also involved in salepurchase of minor/major girls for their commercial sexual exploitation, and victim Alisha Gurung was called to Delhi by A1 Anand Vishwa @ Bishwa, after he and A2 Faris Suja Jalali @ Anup, entered into a criminal conspiracy with an object to procure her from Darjeeling for the purpose of pushing her into prostitution without her knowledge and she was allured by A1 Anand Vishwa @ Bishwa by making a false promise of providing a suitable job to her. It is also the case of CBI that victim Alisha Gurung was a minor on 13.04.2012, as she was born on 13.05.1994 to Sh. Tapan Gurung and Smt. Ranju Gurung at village Pratapgaon, Ward no.7, Mirik, Distt. Darjeeling, W.B., claiming that her original name was Pranisha Gurung and Alisha Gurung is her family name.
5. Charge for offences punishable under Section 120B IPC r/w Sections 420/366A/372/373 IPC and Section 5 S C No.05/13 5/47 6 of the Immoral Traffic (Prevention) Act was framed against both the accused. Further, accused no.1 Anand Vishwa @ Bishwa, was charged for substantive offences punishable under Sections 420,366A/372 IPC, under Section 5 of Immoral Traffic(Prevention) Act.
6. A2 Faris Suja Jalali @ Anup, was further charged for substantive offences punishable under Section 373 IPC and under Section 5 of Immoral Traffic(Prevention) Act. Both the accused pleaded not guilty to the charges framed and claimed trial.
7. Prosecution has examined 26 witnesses in order to substantiate the allegations both the accused.
8. Both the accused were examined under Section 313 Cr.P.C and their statements were recorded. Both the accused denied the allegations and submitted that they had been falsely implicated in the case claiming that they had nothing to do with the allegations made against them by the prosecution.
9. No witness was examined in defence on behalf of the accused no.1 Anand Vishwa @ Bishwa.
S C No.05/13 6/47
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10. On behalf of accused no.2 Faris Suja @ Jalali, six witnesses have been examined in defence.
11. DW1 Raj Kishore Rai, Ahlmad of the Court of Sh. Pawan Kumar Jain, ASJ01, Central District, Tis Hazari Courts, Delhi, examined on behalf of accused no.2, Faris Suja Jalali@ Anup, has deposed as regard the chargesheet filed in another case being RC No. S1/1/2012/S0003 titled as CBI Vs. Anand Vishwa & Others, wherein also accused no.2, Faris Suja Jalai @ Anup, was arrested and later on discharged. The witness has proved the chargesheet filed in the said case as Ex. DW1/A, being the certified copy.
12. DW2 is Sabir Ali, who has deposed to the effect that he is in the business of manufacture of Voltage Stabilizers, has been supplying parts of voltage stabilizers to Suja Jalali, father of accused no.2, Faris Suja Jalai @ Anup, who was having his like business in Jammu & Kashmir. DW2 Sabir Ali also deposed that accused no.2 Faris Suja Jalai @ Anup used to visit his shop in Mandawali for supply of spareparts as well as for making payments for the supply made.
13. DW3 Ruhul Shah was examined partly and was S C No.05/13 7/47 8 abandoned.
14. DW4 Syed Suja Jalai is father of accused no.2 Faris Suja Jalai @ Anup, and has deposed that he was having his business in the name of M/s Cosco Electronics in Sri Nagar, Jammu & Kashmir, and his son/accused no.2 Faris Suja Jalai @ Anup, had come to Delhi in year 2003 for studies. DW4 Syed Suja Jalai has testified that accused no.2, Faris Suja Jalali @ Anup, was also assisting him in his business and he had been sending money to him in Delhi for the personal expenses of accused no.2, Faris Suja Jalai @ Anup as well as for making payments towards the purposes made for his business( business of the witness).
15. DW5 Mohd. Hussain Wani, is an official of Bank of Baroda, Durga Nag Branch, Sri Nagar, J & K, and has testified as regards the account of DW4 Syed Suja Jalai with their bank and has statement of account Ex. DW5/A.
16. DW6 Muzaffar Hussain, is Manager of J & K Bank, BagheAli Mardan Branch, Sri Nagar, J & K, and has also proved in a similar way the Statement of Account of M/s Cosco Electronics with their bank Ex. DW6/A, of which S C No.05/13 8/47 9 DW4 Syed Suja Jalai is a proprietor.
17. Arguments were heard on behalf of the prosecution as well as both the accused persons.
18. Charge framed under three heads being for offences punishable under Section 366A IPC against accused no.1 Anand Vishwa @ Bishwa, under Section 372 IPC as again against accused no.1 Anand Vishwa @ Bishwa, and for offence punishable under Section 373 IPC against accused no.2 Faris Suja Jalai @ Anup, relates to offences against the minors and read as under:.
"366A. Procuration of minor girl. Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine".
"372. Selling minor for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such persons will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to S C No.05/13 9/47 10 fine.
[Explanation I.......................... Explanation II. ........................]"
"373. Buying minor for purpose of prostitution, etc. Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen years with intent that such persons shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. [Explanation I. ........................ Explanation II. ........................."
19. The case of the prosecution is that the victim Ms. Alisha Gurung, being PW15, was a minor, as she was born on 13.05.1994, the day on which victim had reached Old Delhi Railway Station, after being induced by accused no.1 Anand Vishwa @ Bishwa, for a job in Delhi. PW15 Alisha Gurung, has deposed that she was born on 13.05.1994, and she had studied in Baghkhor Primary School, Mirik Municipality, Ward no.7, Darjeeling. Prosecution has examined PW13 Kishan Gurung, who is a teacher in Baghkhor Primary School, Mirik Municipality, Ward no.7, Darjeeling. PW13 Kishan Gurung has proved the Certificate Ex. PW13/A relating to Ms. S C No.05/13 10/47 11 Pranisha Gurung, and the certificate has been signed by the witness. PW13 Kishan Gurung has deposed that Certificate Ex. PW13/A was signed by him, as Head Mistress of the school, was on leave on 11.06.2012, when CBI officer had reached the school on 11.06.2012, and so, he prepared the certificate. In his crossexamination PW13 Kishan Gurung, stated that no Birth Certificate was given by the parents of Ms. Pranisha Gurung, and as is the practice, when no birth certificate after demand is given, the information is recorded, as given. In the present case also, the witness has stated that information as regard the Date of Birth of Ms. Pranisha Gurung was recorded, as given. PW15 Alisha Gurung has also deposed that her family name was Alisha Gurung, but her name was written in the school as Ms. Pranisha Gurung. Another witness examined on behalf of the prosecution is PW14 Tapan Gurung, father of PW15 Alisha Gurung, who also testified that Date of Birth of his daughter Pranisha Gurung is 13.05.1994. On behalf of the prosecution, another witness being PW12 Pawan Tamang, husband of victim Alisha Gurung, has also been examined, and he has also S C No.05/13 11/47 12 testified that she was born on 13.05.1994, and she is also known as Pranisha Gurung.
20. On behalf of the accused persons, reliance has been placed on a case decided by Hon'ble Supreme Court titled as Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 Supreme Court Cases 584, in which case the School Leaving Certificate was produced by the accused for proving his date of birth claiming that he was a child under the relevant Children Act, at the time of the alleged offence, and it was observed by Hon'ble Supreme Court that the Certificate was not issued in the ordinary course of business of school, Head Master stated that he had no personal knowledge regarding Date of Birth of the accused, and was not in the school, when accused was admitted therein. Hon'ble Supreme Court further held that the said School Leaving Certificate could not be relied upon. In the present case also, the Certificate given by PW13 Kishan Gurung being Ex. PW13/A, which to the effect that Pranisha Gurung, daughter of Tapan Gurung was a bonafide student of Baghkhor Primary School, Mirik Municipality, 734214, DGAHC, and her date of birth as per Admission Register is S C No.05/13 12/47 13 13.05.1994. The certificate is not even a certified copy of the Admission Register. Admission Register has not been produced. PW13 Kishan Gurung testified that he was posted as Assistant Teacher in the school, since year 1998, and Ms. Pranisha Gurung, was studying in the school in year 1999. PW13 Kishan Gurung in crossexamination stated that he was not remembering the total duration for which Ms. Pranisha Gurung was a student in the school, just deposing that she got admission in the infant section in the school and studied from ClassI to ClassIII. The Certificate Ex. PW13/A given, cannot held to be an entry in any public register or other official book having been made by a public servant, in discharge of his official duty etc. as envisaged under Section 35 of Indian Evidence Act, 1872, particularly, when the original register based, upon which the certificate Ex. PW13/A was given, has not been produced. Accordingly, it is held that Certificate Ex. PW13/A cannot be relied upon, as proof of the date of birth of PW15 Alisha Gurung.
21. PW12 Pawan Tamang, husband of Ms. Alisha Gurung, PW14 Tapan Gurung, father of Alisha Gurung and S C No.05/13 13/47 14 PW15 Alisha Gurung, herself, have also deposed that date of birth of Alisha Gurung was 13.05.1994, and the date of offence alleged, is 13.04.2012. In that way, Ms. Alisha Gurung, was aged 17 years and 11 months on 13.04.2012. Ms. Alisha Gurung, PW15, had travelled to Old Delhi Railway Station, from New Jalpaigudi against railway ticket dated 11.04.2012 Ex. PW15/A and has given her age as 19 years. It has been stated by PW15 in her crossexamination that the ticket was arranged for her by an agent, who had met her on way to Railway Station or at the Railway Station itself. In absence of any proof of the date of birth, like the Birth Certificate, deposition of PW12, Pawan Tamang, PW14 Tapan Gurung and PW15 Ms. Alisha Gurung, herself, cannot be relied upon, as there is no basis for the witnesses deposing that she was born on 13.05.1994, as she as per the case of the prosecution itself, had studied only up to ClassIII, and there was no document available with the witnesses to tell her date of birth except the Certificate, which had been issued by PW13, Kishan Gurung only on 11.06.2012. In the circumstances, it is held that PW15 Ms. Alishan Gurung was not a minor as on S C No.05/13 14/47 15 13.04.2012. So, accused no.1, Anand Vishwa @ Bishwa, cannot be held accountable for offences punishable under Section 366A IPC as well as under Section 372 IPC, for which he had been charged. Similarly, accused no.2, Faris Suja Jalali @ Anup, cannot be held accountable for offence punishable under Section 373 IPC, for which he had been charged.
22. Both the accused have been charged for offence punishable under Section 120B IPC r/w Sections 420/366A/372/373 IPC and Section 5 of Immoral Traffic(P) Act, with the allegations that they entered into a criminal conspiracy to induce and procure a minor girl, PW15 Alisha Gurung, for purpose of her sale and purchase for prostitution. PW15 Alisha Gurung has deposed that in year 2010, she alongwith her husband had come to Delhi and they had come to Delhi for search of work and started selling Momos in Delhi. During that period, she came to know that accused no. 1, Anand Vishwa @ Bishwa, who used to visit their shop for taking Momos, and had also introduced him working as driver and assisting outsiders visiting Delhi in getting jobs relating to household work and child care. PW15 Ms. Alisha Gurung S C No.05/13 15/47 16 deposed that after living in Delhi for about six months, they returned to their house in Darjeeling. PW15 Ms. Alisha Gurung deposed that sometime in April, 2012, there was a quarrel in her house between PW15 Ms. Alisha Gurung and her motherinlaw, and during that period, she had talked to accused no.1, Anand Vishwa @ Bishwa on phone inquiring, if any, work suitable to her was available, and accused no.1 Anand Vishwa @ Bishwa had told her that work was available and she can come to Old Delhi Railway Station. She started for Delhi from Darjeeling on 11.04.2012 and reached Old Delhi Railway Station on 13.04.2012. Accused no.2, Faris Suja Jalai @ Anup, was no where in the picture when PW15 Ms. Alisha Gurung had talked to accused no.1, Anand Vishwa @ Bishwa, and he had assured her work in Delhi, and advised her to reach Old Delhi Railway Station. Apart from mere conspiracy, which can be inferred from the allegations and association of accused no.1, Anand Vishwa @ Bishwa and accused no.2, Faris Suja Jalai @ Anup, as per their conversations on mobile phones to be mentioned later on, there need to be some overt act between the conspirators apart from S C No.05/13 16/47 17 the conspiracy, which in the case could be assumed to be that of procuring girls for prostitution. Even as per the case of the prosecution as deposed by the witnesses that after a trap was laid on 13.04.2012, accused no.2, Faris Suja Jalai had given Rs.9,500/ to accused no.1, Anand Vishwa @ Bishwa, when he had approached him to his car, near a bus stop in Lajpat Nagar, New Delhi. The allegations at the most can point to procuring a girl, by the accused no.2 Faris Suja Jalali @ Anup, and there is no evidence of any act on the part of the accused no.2, Faris Suja Jalai, towards the criminal conspiracy to bring girls from Darjeeling or other places, and particularly in this case to induce PW15 Ms. Alisha Gurung to come to Delhi. The only evidence which is brought on record on behalf of the prosecution, is in the form of a disclosure statement by accused no.1, Anand Vishwa @ Bishwa, to the effect that he had already reached a deal with accused no.2 Faris Suja Jalai @ Anup to hand over Ms. Alisha Gurung to accused no.2, Faris Suja Jalai for a consideration of Rs.40,000/. Thus, there is nothing on the record and no evidence adduced to prove the allegations that accused no.2, Faris Suja Jalali @ Anup, was a S C No.05/13 17/47 18 conspirator in the criminal conspiracy to bring Ms. Alisha Gurung to Delhi in order to push her in prostitution or to cheat her in any manner. It needs more than one person to hatch and execute a criminal conspiracy and accused no.1, Anand Vishwa @ Bishwa cannot give shape to a criminal conspiracy all alone. Accordingly, it is held that prosecution has failed to prove the existence of any criminal conspiracy between accused no.1 Anand Vishwa @ Bishwa and accused no.2 Faris Suja Jalali @ Anup, to induce PW15 Ms. Alisha Gurung to come to Delhi for the purpose of pushing her into prostitution.
23. Further, accused no.1, Anand Vishwa @ Bishwa, has been charged for offence punishable under Section 420 IPC with the allegations that pursuant to the criminal conspiracy, he induced minor girl being PW15 Ms. Alisha Gurung, to come to Delhi from Darjeeling, on the false pretext of her providing a suitable job at Delhi. Section 420 IPC reads as under: "420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person,or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is S C No.05/13 18/47 19 capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
24. Thus, the ingredients to make out an offence punishable under Section 420 IPC are:
(i) cheating
(ii) inducing by cheating dishonestly the person deceived to deliver any property to any person
(iii) to make, alter or destroy the whole or any part of a valuable security, or anything which can be converted into a valuable security.
25. Valuable security has been defined under Section 30 of IPC, which reads as under:
30. " Valuable security". The words "valuable security"
denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right".
It is clear that no property or valuable security as such is involved, as no document per se is the subject matter of the inducement resulting in PW15 Ms. Alisha S C No.05/13 19/47 20 Gurung coming to Delhi from Darjeeling. At the most it could be an offence of cheating as defined under Section 415 and punishable under Section 417 IPC, but the ingredients of offence punishable under Section 420 IPC are not made out from the evidence, brought on record on behalf of the prosecution, as against accused no.1, Anand Vishwa @ Bishwa.
26. Next charge against both, accused no.1 Anand Vishwa @ Bishwa and accused no.2, Faris Suja Jalali @ Anup, is of offence punishable under Section 5 of Immoral Traffic(Prevention) Act, and the allegations are that accused no.1, Anand Vishwa @ Bishwa procured the minor girl, being PW15 Alisha Gurung from Darjeeling, on the false pretext of providing her a suitable job at Delhi knowing that she will be sold for the purpose of prostitution, and allegations against accused no. 2 Faris Suja Jalali @ Anup, is that he procured minor girl being PW15 Ms. Alisha Gurung, for the purpose of prostitution.
27. PW24 Insp. Seema Pahuja deposed that on 24.02.2012, she was entrusted the investigation of case RC no. S C No.05/13 20/47
21 3 (S)/2012, relating to illegal human trafficking against accused Anand Vishwa @ Bishwa(accused no.1) and others, which was in reference to another girl named Riya Lama, and during investigation of that case on 12.04.2012, she had received a source information about accused Anand Vishwa @ Bishwa, who was wanted in that case, having called a girl named Alisha Gurung(PW15) from Darjeeling, West Bengal to Delhi for the purpose of prostitution. Inspector Vijay Kumar, being PW23 alongwith source was sent to Old Delhi Railway Station on 13.04.2012 and at about 7.30 A.M., PW15 Ms. Alisha Gurung, reached there on a train, and when accused no.1, Anand Vishwa @ Bishwa approached her, they were identified by the source and were apprehended. Both of them were taken to CBI office, where disclosure statement was made by accused no. 1, Anand Vishwa @ Bishwa being Ex. PW3/A, wherein he disclosed that he had already talked to accused no.2 Faris Suja Jalali @ Anup to sell Alisha Gurung(PW15) for him for a sum of Rs.40,000/, disclosing that accused no.2, Faris Suja Jalali @ Anup, used to purchase girls for pushing them into prostitution. Accused no.1, Anand S C No.05/13 21/47 22 Vishwa @ Bishwa was made to talk to accused no.2, Faris Suja Jalali @ Anup, deal was finalized, and it was agreed that a sum of Rs.10,000/ shall be given by accused no.2, Faris Suja Jalali @ Anup to accused no.1, Anand Vishwa @ Bishwa, and the girl (PW15 Ms. Alisha Gurung) shall be handed over by accused no.1, Anand Vishwa @ Bishwa to accused no.2 Faris Suja Jalali @ Anup, at a place near bus stop, Lajpat Nagar, Delhi. Taperecording of the conversation was done, which was later on converted into a CD(Ex. P13) and a Memorandum to that effect was prepared Ex. PW3/H on 28.05.2012.
28. Thereafter, a CBI team led by PW23 Insp. Vijay Kumar, wherein independent witness being PW3 S. Harvinder Singh had gone to Lajpat Nagar Bus Stop, being the point agreed between accused no.1, Anand Vishwa @ Bishwa and accused no.2, Faris Suja Jalali @ Anup. Accused no.1, Anand Vishwa @ Bishwa and the girl Alisha Gurung(PW15) were sent to the grey colour car belonging to accused no.2, Faris Suja Jalali @ Anup, a bundle of currency notes, which later on found to be Rs.9,500/ on counting, were handed over by S C No.05/13 22/47 23 accused no.2 Faris Suja Jalali @ Anup to accused no.1 Anand Vishwa @ Bishwa, Alisha Gurung(PW15) was asked to sit in the car, when accused no.2, Faris Suja Jalali @ Anup, was apprehended by CBI team.
29. As deposed by PW16 S. Ingarsal, Sr. Scientific Officer, GradeI, on 17.07.2012, he was deputed alongwith Mr. Sunil Kumar, Laboratory Assistant, for taking voice samples of both the accused persons, and he had taken the voice samples of both the accused, accused having been brought by PW26 Insp. R.D. Sharma. PW16 has also proved that voice of accused no.2, Faris Suja Jalali @ Anup, was recorded on CD Ex. P14, which was duly sealed and voice of accused no.1, Anand Vishwa @ Bishwa, was recorded on CD Ex. P15, which was also duly sealed.
30. PW17 Dr. Rajinder Singh, Director, CFSL, Lodhi Road, New Delhi, was working as Principal Scientific Officer on 18.07.2012, and Head of Physics Division , CFSL, Lodhi Road, New Delhi. Voice comparison was made by this witness and he has deposed that a letter was received from CBI on 18.07.2012 by Sh. G.K. Tanwar, Sr. Scientific Officer, Grade S C No.05/13 23/47 24 I, as the witness was on tour on 18.07.2012, it was opened by Sh. G.K. Tanwar. On 09.08.2012, sealed parcels were given to the witness and after opening the sealed parcels, the witness has given the numbering as Q1, S1 & S2. Q1 (Ex. P13) containing the compact disc having questioned voice recording of both the accused. Parcel S1 ( Ex. P15) containing a compact disc, containing specimen voice of accused no.1, Anand Vishwa @ Bishwa and S2 ( Ex. P14) containing another compact disc containing specimen voice of accused no. 2, Faris Suhja Jalali @ Anup. PW17 has proved his report Ex. PW17/B, which is to the effect that on examination, he found that the questioned voice of both the accused persons in the disc Q1 ( Ex. P13) tallied with the specimen voice recorded vide discs vide parcels S1( Ex. P15) and S2 ( Ex. P14).
31. On behalf of the accused persons, reliance has been placed on a case decided by Hon'ble Supreme Court titled as Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and others AIR 1975 Supreme Court 1788, and it has been argued that no reliance can be placed on the tape recorded conversation between accused persons as per S C No.05/13 24/47 25 the CD (Ex. P13), since no steps were taken after the alleged recording of the conversation, to ensure that tampering thereof was ruled out. In the present case, as deposed by PW3 S. Harvinder Singh as well as by PW24 Insp. Seema Pahuja that when accused no.1 Anand Vishwa @ Bishwa was made to talk to accused no.2, Faris Suja Jalali @ Anup, on his mobile phone, it was noticed that mobile phone of accused no.1, Anand Vishwa @ Bishwa, was not having proper quality of recording, and so, his SIM was inserted in a mobile phone of one Constable named Sunil, who was present in CBI office. Conversation in the matter as per the case of the prosecution was recorded with the help of mobile phone of Ct. Sunil. There is no evidence as regard the sealing of the phone of Ct.Sunil, after it was used for recording conversation between two accused persons. There is also no evidence on record that on 28.05.2012 also, when the conversation between two accused was converted into a CD, Ct. Sunil was present, and he had handed over his mobile phone. Ct. Sunil has also not been examined in the case nor his mobile phone produced. In such circumstances, authenticity and genuineness of the S C No.05/13 25/47 26 conversation recorded has not been ensured and tampering thereof cannot be relied upon. This part of evidence collected and adduced on behalf of the prosecution, cannot be relied upon.
32. On behalf of the accused persons, reliance has been placed on a case decided by Hon'ble Kerala High Court titled as T. Jacob Vs. State of Kerala AIR 1971 Kerala 166, wherein facts were that petitioner therein and the second accused, a woman were found carrying on prostitution in Room no. 10 of the Beach Hotel, Calicut at about 2.30 A.M. on the night of 19.03.1970, when the Assistant Superintendent of Police made a surprise raid in the room accompanied by his constables and two witnesses, and they were alleged to be caught redhanded in the act of prostitution. It was held by Hon'ble Kerala High Court that the evidence recorded in the case does not justify a charge either under Section 5 (1) (d) or under Section 7 (1) of the Act ( Immoral Traffic Prevention Act). It was further held by Hon'ble Kerala High Court that the evidence of accused's earlier connections with the prostitute showing him to have caused or induced her to carry on S C No.05/13 26/47 27 prostitution, was necessary to hold him accountable for offence punishable under Section 5 (1) (d) of the Act( Immoral Traffic Prevention Act). With due respect it is submitted that facts of the case in hand, are totally distinct with the case of T. Jacob(supra), as the allegations in the present case are of accepting of money, being the price, for the girl( PW15 Ms. Alisha Gurung), which was handed over by accused no.1, Anand Vishwa @ Bishwa to accused no.2, Faris Suja Jalali @ Anup.
33. On behalf of accused persons, reliance has also been placed on a case decided by Hon'ble High Court of Kerala titled as Mr. X, Central Kerala Vs State of Kerala, CDJ 2009 Ker HC 147, and the facts of the case were that on 27.06.2008, Mr.X aged 65 years accused no.1, called Miss. A, second accused, aged 21 years into his rented premises, namely, Room no.108 of Government Guest House, Thycaud and after a tip off by the Administrator of the Guest House, they were found indulging in illicit sexual intercourse, when the police reached there. Currency notes totalling to Rs. 10,000/ and two phonographic magazines were seized from S C No.05/13 27/47 28 beneath the pillow in the said room. On behalf of the accused, reliance was also placed on another case decided by Hon'ble High Court of Punjab & Haryana, CDJ 2009 PHC 139 titled as Renu Bansal Vs U.T. Chandigarh, and the facts were that on 04.11.1996, an information was received by DSP Surjit Singh to the effect that one Deepak Chauhan and his wife Pooja were indulging in business of flesh trade in Chandigarh and had been supplying women @ Rs.500/ per lady for the purpose of prostitution and information was that they were standing near Government School, Sector 40B, Chandigarh, in red maruti car to attract customers. A decoy customer was sent and when he gave a signal to DSP Surjit Singh, they were apprehended. Deepak Chauhan was standing outside the car and Pooja Chauhan and two other girls, namely Renu Bansal and Rekha, were sitting inside the car. On search, marked currency notes were recovered from Pooja Chauhan and also from Rekha and Renu Bansal, which were bearing the initials of the Investigating Officer (DSP Surjit Singh). With due respect, it is submitted that facts of neither of the two cases, being relied upon on behalf of accused persons, have any S C No.05/13 28/47 29 similarity with the facts of the present case, as exchange of money in the present case, is not for any sexual favour, but for sale/purchase of the girl, Ms. Alisha.
34. Submissions were also made on behalf of accused persons as regard the registration of two FIRs in the matter and it has been argued that PW24, Inspector Seema Pahuja was investigating case RC No.3(S)/2012 against accused Anand Vishwa and others, in reference to another girl named Riya Lama and on the basis of the disclosure statement made by accused Anand Vishwa, accused Faris Suja Jalali was also arrested in the said case and later on, when no evidence was found against accused no.2 Faris Suja Jalali, a fresh case, being the present one, was registered for implicating him, when a complaint dated 16.04.2012 was sent by her and on the basis of the complaint dated 16.04.2012 Ex.PW24/D, a separate RC being No.5(S)/2012 was registered on 02.05.2012 by SP Rakesh Rathi.
35. Chargesheet filed in RC No.3(S)/2012 has been proved on behalf of accused persons through DW1 Raj Kishore Rai, Ahlmad in the Court of Sh. Pawan Kumar Jain, ASJ as S C No.05/13 29/47 30 Ex.DW1/A, and reliance in this regard on behalf of accused persons have been placed on a case decided by Hon'ble Supreme Court titled as Babu Bhai Vs State of Gujarat & Ors. 2010 (4) JCC 2590, wherein it was held by Hon'ble Supreme Court that the Court had to examine the facts and circumstances giving rise to both the FIRs, further holding that the test of sameness is to be applied to find out whether both the FIRs relate to the same incident, or of same occurrence or are in regard to the incidents which are two or more parts of the same transaction. Hon'ble Supreme Court further held in the case, that in case the answer is in affirmative, the second FIR is liable to be quashed, however, in case, the contrary is proved, the second FIR is permissible. The two FIRs, being RC No.3(S)/2012 and the present case, being RC No.5(S)/2012 refers to different incidents. RC No. 3(S)/2012 proved through chargesheet Ex.DW1/A relates not to the inducement given to PW15 Ms. Alisha Gurung to reach Delhi and the facts of the present case are totally distinct to the facts as per RC No.3(S)/12, and so, the second FIR in the matter is not contrary to law laid down by Hon'ble Supreme S C No.05/13 30/47 31 Court, being relied upon on behalf of accused persons.
36. Submissions were also made on behalf of accused persons as regard the delay in registering the FIR since the complaint Ex.PW24/D was made by PW24, Inspr. Seema Pahuja on 16.04.2012 and the case was registered only on 02.05.2012. It was also argued on behalf of accused persons that it was only after a bail application has been filed for release on bail of accused no.2, Faris Suja Jalali that the present case was registered, as no evidence was found against him in case RC No.3(S)/2012. The case was registered pursuant to the investigation in case RC No.3(S)/2012 and particularly in view of the statement given by the victim, Ms. Alisha Gurung, and the disclosure statement of accused no.1, Anand Vishwa, which were the basis of the complaint filed by PW24, Inspector Seema Pahuja. There was no scope of any manipulation between the period when the complaint was made and the case was formally registered separately from case RC No.3(S)/2012.
37. Submissions were also made on behalf of the accused persons that statement of victim, Ms. Alisha Gurung PW15, S C No.05/13 31/47 32 was recorded in case RC No.3(S)/2012, and only a copy of the same has been proved in the present proceedings as Ex.PW24/A, and also only the photocopy of the disclosure statement made by accused no.1, Anand Vishwa, being Ex.PW3/A has been proved.
38. On behalf of the prosecution, reliance has been placed on a case decided by Hon'ble Kerala High Court titled as Surendran Vs State & Ors. 1994 Cri.L.J.464, wherein it was held by Hon'ble Kerala High Court that Section 162 CrPC does not prohibit the use of statement recorded by the police in connection with another case in any other proceedings (other than the inquiry or trial in respect of the offence for which the investigation was conducted). It was further held by Hon'ble Kerala High Court that the statement recorded by police in connection with another case, can be used for cross examining prosecution witness concerned. Reliance on behalf of prosecution was also placed on another case decided by Hon'ble Bombay High Court titled as Khair Mohamed Reas Mohamed Vs State of Maharashtra 1995 Cri.L.J.568, wherein it was held by Hon'ble Bombay High Court that S C No.05/13 32/47 33 statement made to police during investigation is admissible in evidence, in a civil suit. So, there is no bar to the use of statement recorded in one case in another matter.
39. PW15, Ms. Alisha Gurung has deposed that in April 2012, after a quarrel in her house, she had talked to Anand Vishwa on phone and inquired from him, if any work was available. Accused no.1, Anand Vishwa told her to come to Old Delhi Railway Station telling that work was available. PW15 started for Delhi from Darjeeling on 11.04.2012 and reached Old Delhi Railway Station on 13.04.2012 at 7.00 A.M, when A1 Anand Vishwa met her to take her alongwith him, both of them were apprehended by CBI. PW15, Ms. Alisha Gurung also deposed that at about 5.00 P.M on 13.04.2012, she and A1 Anand Vishwa were taken to a bus stop, where she and A1 Anand Vishwa were dropped. PW15 also deposed that she and Anand Vishwa, as per the instructions of CBI officials, had walked 1015 paces towards a grey colour car, and in the car one boy being A2 Faris Suja Jalali was present, some money was handed over by A2 Faris Suja Jalali to A1 Anand Vishwa. PW15 further deposed that she was asked to S C No.05/13 33/47 34 sit in the car by A1 Anand Vishwa and immediately, thereafter A1 Anand Vishwa and A2 Faris Suja Jalali, were apprehended.
40. PW15 Ms. Alisha Gurung also deposed that when they reached CBI office, Anand Vishwa had told that he had earlier sold Riya Lama and had also sold her to Faris Suja Jalali for Rs.40,000/. PW15 also deposed that she was not aware, if A1 Anand Vishwa used to sell girls for the purpose of prostitution and in case, she had known that fact, she had not come to Delhi, on the assurance of A1 Anand Vishwa.
41. PW3, S.Harvinder Singh, who was joined in the CBI team, as an independent witness, had been working as Vigilance Assistant, Indian Oil Corporation, Scope Complex, New Delhi, and has deposed that after recording of conversation between the two accused persons, he had accompanied the CBI team to Lajpat Nagar bus stop and he had noticed on that day, while waiting alongwith other CBI team, at a distance, that A2 Faris Suja Jalali handed over some money to A1 Anand Vishwa and after the accused persons were apprehended, money was recovered from A1 Anand S C No.05/13 34/47 35 Vishwa by Inspector Vijay Kumar, which was given to the witness. Thus, the fact of A1 Anand Vishwa as well as A2 Faris Suja Jalali procuring PW15, Ms. Alisha Gurung for the purpose of prostitution, are proved and ingredients of offence punishable under Section 5(1)(a) of the Immoral Traffic (Prevention) Act are made out.
42. A1 Anand Vishwa procured Ms.Alisha Gurung in the sense that she was made to come to Delhi from Darjeeling after dishonestly and falsely being assured by A1 Anand Vishwa that some domestic work was available, whereas he intended to sell her for prostitution to A2 Faris Suja Jalali, and it was pursuant to that, that Ms.Alisha Gurung had reached Delhi and A1 Anand Vishwa had gone to Old Delhi Railway Station on 13.04.2012 in the morning hours, to take her alongwith him.
43. Apart from the deposition of PW15, Alisha Gurung as regard accused no.2, Faris Suja Jalali handing over the money to accused no.1, Anand Vishwa on 13.04.2012 at a bus stop near Lajpat Nagar and accused no.1, Anand Vishwa asking her to sit in the car of accused no.2, Faris Suja Jalali, there are S C No.05/13 35/47 36 witnesses as regard the general reputation of accused no.2, Faris Suja Jalali amongst his friends and acquaintances. PW1, Abhishek Kumar Singh has stated that through his friends, he had come to know that accused Faris Suja Jalali was involved in commercial sexual activities. Another witness examined on behalf of prosecution is PW6, Jai Pal, who was the owner of H.No.S39, Sri Niwas Puri, Delhi and testified to the effect that accused Faris Suja Jalali was living as a tenant in one of the flat in his house, having come to occupy it in the year 2012. PW6 also deposed that he had never seen accused no.2, Faris Suja Jalali going for any work and he was informed by neighbours that number of girls used to visit his flat and he had also noticed that number of boys and girls used to visit him in the morning as well as in the evening. PW9, Rajesh Chauhan has deposed that from January to March 2012, he was living as a tenant in H.No.S39, Ist floor, Pvt. Colony, Sriniwas Puri, Delhi itself, owned by PW6 Jai Pal and had also come to know accused no.2, Faris Suja Jalali, who was also residing there. PW9, Rajesh Chauhan also deposed that number of boys and girls used to visit him during day time and also in the S C No.05/13 36/47 37 evening and in the month of May or June 2012, when a raid was conducted by CBI and he had come to know that accused no.2, Faris Suja Jalali was involved in prostitution. PW11 is Zafar Imam, who deposed that he had met accused no.2, Faris Suja Jalali in year 2005 at a coaching class in Kalu Sarai near IIT Gate, Delhi and again met him towards the end of year 2011 or beginning of year 2012 and he came to know that accused Faris Suja Jalai was involved in wrong doings and was in CBI custody. PW11, Zafar Imam also deposed that he was called to CBI office and on hearing the tape, he was certain that accused no.2, Faris Suja Jalali was involved in some wrong work. PW19 is Shahid Akhtar, who has deposed that he was residing in a flat in Rathi House, Kalu Sarai, New Delhi and was residing there in year 2004 also, when accused no.2, Faris Suja Jalali had come to stay there and had taken a flat on 4th floor of the Rathi House. PW19 deposed that accused no.2, Faris Suja Jalali stayed in Rathi House, Kalu Sarai for about one year and then went to live in Katwaria Sarai, New Delhi and in January 2012, he come to know that accused Faris Suja Jalali was involved in prostitution. PW19, Shahid Akhtar also S C No.05/13 37/47 38 deposed that after coming to know about his involvement in profession of prostitution, he has tried to convince him not to indulge, but he did not give any importance to his suggestions. PW19 also deposed that A2 Faris Suja Jalali had admitted to him the fact of his involvement in prostitution. The deposition of these witnesses, being friends or acquaintances of A2 Faris Suja Jalali, by itself is not sufficient to draw any inference as regard the involvement of A2 Faris Suja Jalali @ Anup in the prostitution, but they do give an idea of the impression, which was gathered by the friends and acquaintances of A2 Faris Suja Jalali, and this has to be seen in the light of the deposition of PW15, Alisha Gurung as regard money paid by A2 Farish Suja Jalali to A1 Anand Vishwa @ Bishwa on 13.04.2012.
44. Then, there is evidence as deposed by PW6, Jai Pal and other witnesses being PW23, Inspector Vijay Kumar that on 16.04.2012, a raid was conducted at the rented accommodation of accused no.2, Faris Suja Jalali, in the house of PW6, Jai Pal, and during the search, ladies garments, sandals, condoms etc. were recovered and the place was pointed out by A2, Faris Suja Jalali, as deposed by PW23, Inspector Vijay S C No.05/13 38/47 39 Kumar, who had conducted the search on the directions of PW24, Inspector Seema Pahuja and the articles recovered were seized vide memo Ex.PW2/A.
45. Not only that, A2 Faris Suja Jalali was having an account, being No.0408040100002488 with Jammu & Kashmir Bank, Ansal Plaza, Andrews Ganj, New Delhi and as deposed by PW8, Sanjay Sharma, who has proved the statement of account Ex.PW8/C in reference to that account, approximately Rs.22 Lacs were deposited in the account during the period between 25.06.2010 to 25.06.2012. Admittedly, A2 Faris Suja Jalali, was not having any independent source of income, having come to Delhi for the purpose of studies in year around 2003 and much of the amount has been deposited otherwise than through cheques or transfers. DW4, Syed Suja Jalali, father of A2 Faris Suja Jalali has testified on behalf of A2, deposing that his son/A2 Faris Suja Jalali used to assist him in his business, and he had been visiting the dealers from whom the spareparts were being purchased by him for his business of voltage stabilizers. DW4 also deposed that payments were made by Faris Suja Jalali on behalf of the firm, to the S C No.05/13 39/47 40 suppliers. DW4 has proved statement of his account with Jammu & Kashmir Bank, BagheAliMardan, Sri Nagar and also another bank account with Bank of Baroda, Srinagar and has also placed on record the statement of accounts of both the banks, which were proved by DW6, Manager of J & K Bank, BagheAliMardan Branch, Sri Nagar as Ex.DW6/A alongwith certificate Ex.DW6/B and by DW5, Mohd. Hussain Wani, AccountscumCash Clerk, Bank of Baroda, Durga Nag Branch, Sri Nagar as Ex.DW5/A, respectively. The money received by A2 Faris Suja Jalali from accounts of his father as well as of Alamgiri, his mother, during the period from 25.06.2010 to 25.06.2012 is only Rs.4,44,565/.
46. Another witness examined on behalf of accused no.2, Faris Suja Jalali is DW2, Sabir Ali, who has deposed that he was in the business of Voltage Stabilizers and has been supplying Voltage Stabilizers to Suja Jalali, father of A2 Faris Suja Jalali, since year 2008. However, in his cross examination, apart from deposing that he used to receive payments from M/s Cosco Electronics, firm of Suja Jalali through A2 Faris Suja Jalali, has stated in his cross S C No.05/13 40/47 41 examination that it was not possible for him to tell the mode of payment, whether in cash or through cheques and also stated in cross examination that he does not remember of any of the payments on behalf of M/s Cosco Electronics received either in cash or through cheque. It was a matter related to year 2010 to 2012 and in case DW2, Sabir Ali had been making supplies of parts of Voltage Stabilizers to M/s Cosco Electronics, then it would not have been difficult for him to find out from the books of accounts maintained by him, whether payments were received by him in cash or cheques, particularly when DW2 is deposing that his firm was assessed to income tax and annual turn over of the firm in year 20122013 was around Rs.1.40 crores. DW2 also stated in his cross examination that he had never met Suja Jalali personally, and had talked to him only on telephone and had been receiving the orders only on telephone from him. In the absence of any proof of the money received by DW2 from the firm of father of A2 Faris Suja Jalali through him, his deposition cannot be relied upon. The money being deposited by A2 Faris Suja Jalali in his bank account with J & K Bank, Ansal Plaza, New Delhi at regular intervals S C No.05/13 41/47 42 as is clear from statement of account Ex.PW8/C (colly.) from the period 25.06.2010 to 25.06.2012, give credence to the other evidence brought on record on behalf of prosecution particularly, the deposition of PW15, Alisha Gurung and PW3, S. Harvinder Singh.
47. In view of the above discussions, it is held that prosecution has been able to prove the charge for offence punishable under Section 5 of Immoral Traffic (Prevention) Act against accused no.1, Anand Vishwa @ Bishwa and has also been able to prove the charge for offence punishable under Section 5 of Immoral Traffic (Prevention) Act against accused no.2, Faris Suja Jalali @ Anup. However, the prosecution has not been able to prove the charge for the offence punishable under Section 120B IPC r/w Sections 420/366/372/373 IPC and Section 5 of Immoral Traffic (Prevention) Act against either of the accused. Similarly, prosecution has not been able to prove the charge for substantive offences punishable under Section 420 IPC, under Section 366A IPC and under Section 372 IPC against accused no.1, Anand Vishwa @ Bishwa. Also, the prosecution has not been able to prove the charge for S C No.05/13 42/47 43 substantive office punishable under Section 373 IPC against accused no.2, Faris Suja Jalali @ Anup.
48. Accordingly, accused no.1, Anand Vishwa @ Bishwa is held guilty and convicted for offence punishable under Section 5 of the Immoral Traffic (Prevention) Act. However, he is acquitted of the charge under Section 120B IPC r/w Sections 420/366/372/373 IPC and Section 5 of Immoral Traffic (Prevention) Act, as well as for substantive offences punishable under Section 420 IPC, under Section 366A IPC and under Section 372 IPC.
49. Accused no. 2, Faris Suja Jalali @ Anup is held guilty and convicted for offence punishable under Section 5 of the Immoral Traffic (Prevention) Act. However, he is acquitted of the charge under Section 120B IPC r/w Sections 420/366/372/373 IPC and Section 5 of Immoral Traffic (Prevention) Act as well as for substantive offence punishable under Section 373 IPC.
Announced in open court (J.P.S. MALIK)
On 07.07. 2014 SPECIAL JUDGE
CBI03 (PC Act)
DELHI
S C No.05/13 43/47
44
IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE CBI03 (PC ACT): TIS HAZARI: DELHI Sessions Case No. 05/13 RC Number : 5(S)/12 CBI/SCI/ND.
CBI Vs (1) Anand Vishwa @ Bishwa
Late Sh. Kaziman Vishwa
R/o Samsing Bagan, near
Samsing High School,
P.S. Maitali Bazar,
Jalpaigudi, (W.B.)
(2) Faris Shuja Jalali @ Anup
S/o Syed Suja Jalali
R/o H.No.1, Lane No.1,
BagheAliMardan Khan
Srinagar(Jammu &
Kashmir)
Under Section: U/S 120B r/w 420,366A,372,373
IPC r/w Sec. 5 of IT(P) Act, 1956.
ORDER ON SENTENCE
1. Both the convicts, being A1 Anand Vishwa and A2 Faris Shuja Jalali,have been held guilty and convicted for offence punishable under Section 5 of Immoral Traffic S C No.05/13 44/47 45 (Prevention) Act, 1956. Both were heard on the point of sentence.
2. On behalf of the prosecution, submissions were made by Sh. Sanjay Kumar, Sr. PP for CBI. Sh. S.P. Kaushal, Advocate, made submissions on behalf of A2 Faris Shuja Jalali @ Anup, and submissions were made on behalf of A1 Anand Vishwa @ Bishwa by Sh. Jivesh Tiwari, Advocate.
3. On behalf of A2, Faris Shuja Jalali @ Anup, it was stated by Ld. Defence Counsel that A2, Faris Shuja Jalali, is the only son of his parents, it was the first offence and request is made for a lenient view.
4. On behalf of A1, Anand Vishwa @ Bishwa, Ld. Defence Counsel submitted that it is his first offence. He is a young boy and has a young wife, a daughter of three years old to support. Prayer is made on behalf of A1 for a lenient view, and to enlarge him on probation, and reliance in this case has also been placed on a case decided by Hon'ble Supreme Court titled as Ramnaresh Pandey Vs. State of Madhya Pradesh AIR 1974 Supreme Court 35, and another case decided by Hon'ble Punjab and Haryana High Court titled as Kuldip S C No.05/13 45/47 46 Chand Vs. State of Punjab 2013(2) Crimes 25 ( P & H).
5. Sh. Sanjay Kumar, Ld. Sr. PP for CBI made submissions for awarding maximum punishment to the convicts and argued that they had committed serious offences of sale/purchase of a minor for the purpose of prostitution.
6. It has been held that prosecution has failed to prove the fact that the victim was a minor as on the date of the offence. Allegations proved are serious, that of procuring a girl for commercial sexual exploitation involving sale/purchase of the girl amongst the convicts. Convicts found guilty of such offences, does not deserve to be extended the benefits of the provisions of Probation of Offenders Act, 1958.
7. Convict Anand Vishwa @ Bishwa, is sentenced to undergo RI for 4 years and a fine of Rs.2,000/ for offence punishable under Section 5 of Immoral Traffic( Prevention) Act, 1956. He shall undergo SI for two months in case fine is not paid.
8. Convict Faris Shuja Jalali @ Anup, is sentenced to undergo RI for 4 years and a fine of Rs.2,000/ for offence punishable under Section 5 of Immoral Traffic( Prevention) S C No.05/13 46/47 47 Act, 1956. He shall undergo SI for two months in case fine is not paid.
9. Copy of the Judgment and Order on sentence be given to both the convicts, free of charge.
Announced in open court (J.P.S. MALIK)
On 10.07. 2014 SPECIAL JUDGE
CBI03 (PC Act)
DELHI
S C No.05/13 47/47