Delhi District Court
Fir No: 133/ vs . on 26 May, 2009
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:FTC:
R.NO.272:TIS HAZARI COURTS:DELHI
FIR NO: 133/01
U/s 366 A/ 372/109 IPC
PS :MOTI NAGAR
State
Vs.
Neelam Cheema & Monika
JUDGMENT
1 Sl. No. of the Case SC NO: 78/2009
2 Date of Committal to Sessions 09/10/02
3 Received by this court on transfer 22.4.09
4 Name of the complainant Smt. Shabina@ Sameena
5 Date of commission of offence 17.3.2001 to 17.5.2002
6 Name of accused, parentage and 1.Neelam Cheema@ Lovely W/o
address Tanmeet Cheema R/o 1017, Sector 42
B, Chandigarh
2.Monika @ Manni W/o Asif Khan R/o F-
155, Karampura, Delhi
7 Offence complained of U/s 366 A/ 372/109 IPC
8 Plea of guilt Pleaded not guilty
9 Final order Conviction
10 Date on which order reserved 19.5.09
11 Date on which order announced 22.5.09
BRIEF REASONS FOR DECISION :
1. On 17.03.01 complainant Smt. Sameena lodged a missing report with PS Moti Nagar qua her daughter Shabana aged around 15 years, a student of 8th standard. Report was reduced into writing vide DD No. 53- B. Later on , her another complaint dated 02.04.01 FIR in hand was registered under Section 363 IPC. The investigation was carried out during which IO prepared site plan of Shabana's residence and collected a school certificate for her date of birth as well as attendance. Her look out notice was also issued but she could not be traced.
2. After about a year of the same i.e. on 17.05.02 complainant Shamina appeared in PS Moti Nagar alongwith her daughter Shabana and got her statement recorded U/s 161 Cr. P.C. Later on her 164 Cr. P.C statement was also recorded on 20.05.02. As per Shabana accused Monika @ Manni, their neighbour , was the regular visitor to her house and used to call her parents as mummy and papa. Monika induced Shabana that if she will follow her instructions , then she can live in opulence. She told Shabana that she is female and job of females is to make males happy and in this way they can earn lot of money. Athough Shabana rebuked Monika by saying that she fears doing any wrong deed. She was further induced by Monika that now she is grown up and there is nothing to fear as she will be provided such medicines which will enhance her strength and tolerance . She was told that in this manner , she can help her family come out of poverty . Owing to her tender age , Shabana fell prey to inducement of Monika.
3. On 17.3.2001 at around 1.00 PM at her house Monika introduced a lady named Dolly to Shabana while saying that she is the lady who will give her lot of money and place to live. As asked , Shabana reached near shop of Mahajan Cable after calling Monika from where she was picked up by Monika and Dolly in an auto and was taken to a house in sector 16, Rohini, Delhi. In that house Dolly used to live with her husband and two daughters. Monika @ Manni took Rs.10,000/- from Dolly after leaving Shabana at her house. At her Rohini House, Dolly @ Sonia gave Shabana a hair cut and some medicines. After about a week a man named Raj came to that house, Dolly introduced Shabana to him as a new girl whose "FIRST KAAM" is yet to be done. She charged Rs.10,000/- from Raj but he could not do anything owing to ripe age . Another customer was charged Rs.7000/- by Dolly for spending time with Shabana. Thereafter she was made to go to some hotel near Tihar Jail for being used by some foreigner who was charged Rs. 35,000/- . There minor Shabana was raped and was dropped back Rohini alongwith some clothes and gold top which were shared between Dolly and Mamta.
4. Under the influence of accused Neelam Cheema @ Lovely , she further told the police that later on she was sold to a man Sardarji purportedly from Amritsar for Rs.60,000/- and she was further put into prostitution. In her initial statement to police and 164 Cr.P.C she named accused Neelam Cheema as the lady who brought her back to her home after she found her crying at a public place in Amritsar. But subsequently Shabana clarified in her supplementary 161 Cr.P. C. statement that actually Dolly @ Sonia sold her to Accused Neelam Cheema of Chandigarh in lieu of some money . At Chandigarh, Neelam Cheema kept Shabana at her mother's place and used to send her different customers at various hotels in Chandigarh for prostitution after charging money . When her condition started deteriorated and she tried to run away from there, accused Neelam Cheema agreed to drop her back to her parental house in Karampura Delhi but before that she made Shabana to swear on Quran Shariff that she will not tell the truth about her to anybody. For this reason only she felt herself religiously bound and could not tell anything incriminatory qua Neelam Cheema in her initial statement to police as well as before Ld. MM. She subsequently called Neelam Cheema on her two telephone number i.e. 9814024203 & 9814276315 on the pretext that she is ready to go back with her and then with the help of the police she got her arrested. At the time of her arrest , she was found carrying more than Rs.70,000/- cash. Attempts were made to trace Dolly and others but they could not be located owing to incomplete particulars. After conclusion of investigation charge sheet was filed.
5. After compliance of 207 Cr. P.C Ld. MM committed the case for trial to Sessions U/s 209 Cr. P.C. In the Sessions Ld. Predecessor on 08.01.04 charged accused Monika @ Manni with 372/366-A/109 IPC and charged accused Neelam Cheema @ lovely U/s 366-A IPC. Both the accused pleaded not guilty and claimed trial. During its evidence prosecution examined as many as 11 witnesses. Statement of accused was recorded in which they pleaded innocence and claimed false implication. They however chose not to lead any evidence in defence.
6. I have heard arguments of Ld. APP Sh. Irfan Ahmed for State and Sh. Dhyan Singh Ld. Defence Counsel for both the accused persons at length. I have also gone through the case file carefully besides relevant laws involved in the issue in hand.
7. First witness examined by the prosecution is PW-1 Dr. Babita Garbiyal, CMO of Din Dayal Upadhyay Hospital. On 17.05.02 she examined Shabana vide her detailed report Ex. PW 1/A as per which despite being a minor girl child , she was found to be habitual of (sexual) intercourse and her vagina could admit two fingers easily.
8. PW-2 is child victim Shabana. Although her deposition was initially started on 01.04.04, but that day upon being asked by the Court about this case she started crying unconsoleably and could not even stand during the in camera proceedings. Even her mother who was called in could not pacify her and the court was told that whenever she thinks of the ordeal through which she underwent she develops a fear psychosis and starts crying apart from suffering doubts of breathlessness. She was sent for medical help and her deposition was deferred. Thereafter her evidence started on a later date. In her deposition as PW-2 she identified accused Monika @ Manni as their ex tenant who used to visit their house frequently and who induced her to leave her house on the plea that she can make her rich by entering the business of "making men happy" and who apparently sold her to Dolly of Rohini for Rs.10,000/-. She deposed on the lines of the prosecution case as detailed supra. She also identified accused Neelam Cheema correctly in the court as the lady from Chandigarh who used to send her to different hotels in Chandigarh for having sex with different men forcibly. She proved her signed statement given to police as Ex. PW 2/A. She got accused Monika at pointing out and proved her statement as Ex. Pw 2/B. She proved her letter written to police of 10.06.02 about Neelam Cheema as Ex. Pw 2/C. Ex. Pw 2/D is arrest memo of Neelam Cheema . As per her she was student of 8th standard when Monika took her to Rohini and she was hardly 15 or 16 years old. In her cross examination she clarified that after about a month of her being dropped in Delhi by accused Neelam Cheema she told her mother the truth about her tormentor Neelam Cheema and at that juncture her mother persuaded her that while speaking truth, the vow of Quran Sharif given to her, would not come in way.
9. PW-3 is Sameena, mother of the prosecutrix Shabana. As per her she has two sons and four daughters and her husband is a carpenter . She deposed on the lines of prosecution case but said that accused Neelam Cheema brought her daughter back after 14 months from when she went missing. She also reiterated that later her daughter Shabana asked her whether she can break the oath given to her by Neelam Cheema on Holy Quran Sharif to which she told Shabana that she can speak truth despite the oath and after this Shabana told her that Neelam Cheema used to send her to different customers at Chandigarh. She also identified accused Monika as the lady who used to frequent her house and who enticed her daughter Shabana to leave the house.
10.PW-4 is HC Suresh Kumar, Duty Officer of PS Moti Nagar. He proved the copy of FIR as Ex. PW 4/A.
11.PW-5 is Const. Bhupesh Kumar. He proved order of destruction of DD No.53-B, initial missing report of Shabana dated 17.03.01 as Ex. Pw 5/A.
12.PW-6 is Ct. Geeta. She joined the investigation on 17.05.02 \alongwith SI Babu Lal when on the pointing out of prosecutrix Shabana accused Monika was arrested vide personal search memo as Ex. PW 6/A and arrest memo as Ex. PW 6/B. She also accompanied Shabana when she was taken to DDU Hospital for her medical examination. She also joined investigation on 10/06/02 when accused Neelam was got arrested by Shabana from her Karampura house vide personal search as Ex. PW6/C and arrest memo as Ex. PW 6/D. She identified both the accused. She also proved their disclosure statements and pointing out memos as Ex. Pw 6/E to I.
13.PW-7 is Jameel Ahmed , is father of prosecutrix Shabana. As per him Shabana was hardly 13 years old when she went missing. He identified accused Monika as their neighbour who used to visit their house and used to call him as father and his wife as mother. She told that she is punjabi who is converted into Islam. As per him on the day Shabana went missing she went Monika and thereafter Monika went missing for four-five days. He identified accused Neelam who dropped Shabana back after about 14 months. He further deposed that after her initial statement to the police his daughter Shabana told that she was held in custody of Neelam Cheema soon after she went missing but when he asked his daughter that why she did not tell it to the police she replied that she was given oath of Quran Sharif by accused Neelam Cheema. He further witnessed the arrest of Neelam Cheema after she was telephonically called by Shabana.
14.PW-8 is Sh. Gurdeep Singh the then Ld. MM and proved the 164 Cr. P.C statement as PWEx. 8/A and certificate Ex. 8/B and application of IO as Ex.PW 8/C.
15.PW-9 is Jeet Singh, teacher in Govt. Sarvodya School, H-Block. He proved on record copy of admission record of prosecutrix Shabana Ex.PW9/A, counter file of certificate as Ex. PW 9/B, as per which her date of birth was 24.03.1987. He also brought other documents namely application Ex. PW9/C and School Leaving Certificate as Ex. PW 9/D.
16.PW-10 is Const. Geeta has already been examined as PW6 but in her cross examination she was inadvertently examined as PW10.
17. PW-11 is SI Babu Lal IO of this case . In his detailed deposition he brought on record the steps taken by him during the investigation on the lines of prosecution case. He proved the site plan of house of prosecutrix as Ex. PW 11/A, seizure of age proof of Shabana from her school as Ex. PW11/B. He arrested accused Monika Manni and prepared site plan as Ex. PW 11/C. He got Shabana medically examined and seized articles from hospital vide Ex.PW11/D. He got the 164 Cr. P.C statement of prosecutrix recorded apart from arresting Neelam on 10.06.02 . He identified both the accused in the court and seized Neelam Cheema's car vide Ex. PW 11/E. He proved FSL Records Ex. P-A to E and filed chargesheet after investigation.
18. At the onset it would be appropriate if Section 366 A is glanced :
SECTION 366 A runs as under :
Procuration of minor girl -
Whoever, by any 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 intercouse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
19. Ingredients of offence:- The essential ingredients of the offence under sec. 366 A are as follows:
(1) The accused induced a minor girl below the age of 18 years; (2) She was induced to go from any place or to do any act:
(3) She was induced with the intent that she might be or knowing it to be likely that she would be forced or seduced to illicit intercouse with another person.
20.Section 372 runs as under: Selling minor for purpose 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 lawful and immoral purpose, or knowing it to be likely that such person 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 also be liable to fine.
21.Ingredients of offence:The essential ingredients of the offence under sec. 372 are as follows:
(1) Accused sold , hired or otherwise disposed of a person, (2) The victim was under 18 years of age; (3) He did it with the intent or knowledge of the likelihood that the victim would be engaged or employed for the purpose of either -
(a) prostitution, or,
(b) illicit intercourse, or
(c) any act or thing which is unlawful or immoral.
22.At the onset I shall deal with the issue of age of prosecutrix Shabana since the first pre requisite for both the above offence is that the girl should be a minor . Prosecution has proved on record school certificate ex. PW11/A dated 7.4.01 issued by Principal of Govt. Sarvodya Vidhyala, H Block Karam Pura, New Delhi according to which date of birth of Shabana is 14.3.87. Other than this several other documents from the same school were also filed and proved on record namely admission/withdrawl register Ex. PW9/A, school leaving certificates Ex. PW9/B, application form Ex. PW9/C and school leave certificate of MCD school dated 31.3.1997 Ex. PW9/D apart from original school leaving certificate Ex. PW3/B. All these documents consistently shows the date of birth of prosecutrix Shabana as 14.3.87. Since the incident in hand pertains to 17.1.2001 and as such the age of the prosecutrix on that day was 14 yrs 3 days. And as such she was a child as per definition of a child as contained in Section 2 (k) of Juvenile Justice (Care and Protection of Children) Act, 2000. In this regard I do not find any force in the contention of Ld. defence counsel that the school certificate proved on record by school teacher of Shabana namely PW9 can not read in evidence because they were not shown to her parents. It is a settled legal proposition that duly proved authentic /admission record duly maintained from the time much prior to the incident in question are believeworthy and can be regarded as reliable source of date of birth. Moreover, Section 35 of the Evidence Act provides that an entry made by a public servant in a public record or official register in discharge of his duty is a relevant fact. Section 81 of the Evidence Act provides that the court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by document and is produced from proper custody. Moreoever, not only in the initial missing report dated 17.1.2001 but also in the Fir as well as in the subsequent investigational document, MLC, 164 Cr. P.C statement as well as deposition in the court, all the witness have deposed that Shabana was minor child despite this , defence has not even suggested either two the public witness of the official witness what Shabana was student of VIII stands was a minor child. This failure on the part of the defence shows that the prosecution evidence qua the age of Shabana remained unrebutted and uncontroverted.
23.In case titled Sannaila Subba Rao Vs. State of AP 2008 (4) RCR Criminal 1(SC) Hon'ble Supreme Court while observing qua weightage to be attached to school certificate while ascertaining the age of prosecutrix observed, " School Certificate issued by Head Master with regard to age of prosecutrix is a legal document and have evidentary value and has to be given due weightage. Such dates of births are recorded in the school register by the authorities in discharge of their public duty."
24.As regards the 2nd ingredient qua above two offences, the entire ordeal through which poor minor girl Shabana under went from17.3.2001 to 61.5.02 can be divided in two parts. The role of accused Monika @ Manni is pivotal in the first part while that of accused Neelam Cheema @ Lovely is at the forefront in the second part .
25.It has come in evidence that accused Monika @ Manni was a neighbour and a close family friend of Shabana . She was regular visitor in their house and owing to the fact that she found Shabana to be a beautiful girl, she started inducing and inciting her to use her feminity and womenhood for earning quick bucks for living comfrotable life and to help a poor family . Even though the girl resisted these insinuations , but accused Monika @ Manni, continued to poison her mind and finally prevailed over her. She mislead the child to make her to leave the house after introducing her with one Lady named Dolly @ Sapna. She herself took Shabana from Karampura to Dolly's house in Sector 16, Rohini and took Rs.10,000/- from Dolly in this regard.
26.There is specific evidence of the prosecutrix on record that while introducing Dolly, Monica told Shabana that she will make her life happy and enjoyable for both of them. Such was the perverse and crooked intention of Monika that even though child Shabana reasoned with her that she would not do anything , it is wrong apart from the plea that she is too young and frail , accused reasoned to her that she will provide her medicines to give her strength and increase her tolerance. She was also told that she is a woman and a woman can become rich by making men folk happy. Such was the tender mind of the child that when she was told of this by Monika, she could not figure out exactly whether it was all good or bad. Not only as per codified statue but also as per settled law the thought process of a school going minor child belonging to a poor background, who is in her early teens, is not that developed or intelligent enough as to judge as to what is good and what is bad to her. For this reason itself our Penal Code has devoted several penal provisions aimed at safeguarding the minors from gullible wrong doers.
27.The sheer fact that accused Monika @Manni charged Rs.10,000/- from Dolly @ Sapna while handing over the child Shabana to her shows that she had sold child Shabana for nothing else but prostitution. Shabana has specifically detailed at least three instances when during her detention at Rohini, she was compelled to offer herself for sex. Initially she offered one Raj for Rs.10,000/-, then to one other man for Rs.7000/- and thereafter to a foreigner for Rs.35,000/-.
28.The second leg of ordeal of child Shabana started from the point when her tormentor Dolly @Sapna took her to Chandigarh and sold her to accused Neelam Cheema @ Lovely . At Chandigarh , Neelam Cheema kept the girl child Shabana at her mother's house and used to send her to various hotels forcibly for indulging in sex with different persons. Such was the cruel attitude of Neelam Cheema that at times Shabana was compelled to have oral sex with several persons in her presence. When her condition deteriorated and she tried to flee from there. At that juncture, accused Neelam Cheema @Lovely played a ploy by further tormenting the child emotionally, religiously and psychologically . She agreed to set free and drop Child Shabana to her parental house but not before making her to swear over Quran Shariff that she would not tell the truth about her to anybody. The child Shabana had no option but to agree and become victim to yet another atrocious chapter of her life.
29.Accused Neelam Cheema apparently cooked up a story that she found the child crying at Amritsar and agreed to drop her to Delhi. This fact of dropping of child Shabana by accused Neelam Cheema is not only evident from the deposition of child's parents namely PW 3 Sameena and PW7 Zamil Ahmed, but is also an admitted case of the defence, both during final arguments as well as Statement of Accused.
30.While opening his arguments , Ld. Defence counsel focused the entire efforts on impeaching the credibility of victim traumatised child Shabana. Even though a thorough and believable explanation was available on record but still defence pleaded that prosecutrix should not be believed at all. His entire cross examination primarily focused on confronting the child with her 161 and 164 Cr. P.C. statement. Interestingly the factum of child being enticed and allured to leave her house for prostitution is duly admitted in the cross examination done on behalf of accused Neelam Cheema. Child victim admitted the suggestions of the defence that "It is correct that I was taken by Dolly out of Delhi......... It is correct that I was sent with different persons by Dolly from Rohini.................... It is correct that I had stayed at Rohini for about 15-20 days. " Even the factum of child Shabana being subjected to child prostitution is not denied by the defence when she was suggested that she used to collect the money from the customers herself and used to send the same to her house. Even at the stage of final arguments one of the main plank argument of the defence was that had been child Shabnam was major in age and everything happened with her with consent.
31.Although it is a fact that even though name of accused Neelam Cheema appears in initial statement given by the prosecutrix but accusations against her came on record only on 10.6.2002 . Prima facie, plainly speaking, by settled legal standard of procedural laws , it appears to be a relayed statement but in such like matters when a minor of a tender age who is in turmoil and who is shattered into shambles, court is expected to appreciate her evidence sensitively. The deposition of a child who has been induced to leave the safe environment of her parental house and who has been traded and preyed upon by the accused with ulterior motives can not mechanically rejected as sought by the defence .
32.In another important case titled "State Vs. Chander Prakash AIR 1990 SC 658 Hon'ble Supreme Court ruled , " The court must not be oblivious of the emotional turmoil and psychological injury that a prosecutrix suffers on being molested or raped. A woman who is subjected to sexual violence would always be slow and hesitant about disclosing her plight. The court must, therefore, evaluate her evidence in the above background."
33.This court can not remain oblivious of the fact that poor child Shabana who was repeatedly sold , had to buy independence from the clutches of Neelam Cheema by swearing Quran Shariff that she would not tell about Neelam Cheema to anybody. Since Neelam Cheema herself brought her to Delhi, a story was cooked up that from Delhi she reached Amritsar where Neelam Cheema rescued her. As soon as child Shabana reached Delhi, traumatised and shattered, she could not apparently gather courage to overcome the psychological blackmailing she was subjected to by being given an oath of Holy Quran Sharif and she , as a puppet, uttered whatever she was told to .
34.When despite spending time at her house with her mother and other family members she did not become emotionally normal, her mother PW3 Sameena asked her as to what is wrong with her. It is at that juncture that she gathered courage to come out of her cocoon. She told her mother that she was under oath of Holy Quran Sharif and as such she could not tell the truth about Neelam Cheema @ Lovely either to the police or to Ld. MM. Poor child asked her mother if she can break the oath taken on Holy Quran Sharif. It is only when her mother told her that oath of Holy Quran would not come in way of speaking truth, she could gather courage to tell the truth about taking Neelam Cheema @ Lovely to the police . At that juncture, in order to bring Neelam Cheema within the folds of law child Shabana decided to call her on her mobile numbers at Chandigarh . When child Shabana told her that she is willing to join her back, Neelam Cheema rushed to Delhi to take her back with huge cash of more than Rs.70,000/- apparently aimed to give the same to her parents but was arrested for her misdeeds.
35.The conduct of accused Neelam Cheema, through out the story, has remained mischievously tainted. Right from the beginning, even as per her defence, her conduct belied her own story propounded by her. She claimed that she found Shabana at Bada Gurudwara, Amritsar. She asked her as to why she is crying upon which Shabana is said to have told her that she was sold for prostitution. At that juncture instead of taking her to local police, even though as per the points story she was detained and forced into prostitution at Amritsar for more than a year, she brought Shabana to Delhi. Even in Delhi she did not take child Shabana to local police where an FIR qua her missing already stood lodged but rather dropped her to her parents house. Had her conscience been above board and clear she would have reported the matter to Amritsar police then and there or at least to Delhi police. The fact that she avoided reporting the matter to the police speaks volumes that things are not as plain and simple as she projected them to be. There is no justification of her coming back to Delhi with huge amount of cash all the way from Chandigarh to Delhi by driving her own car on a plain phone call from Shabana.
36.Section 8 of the Evidence Act provides that conduct of an accused soon before and after commission of an offence is a relevant fact and can by used against the accused. Evidence available on record shows that not only child Shabana was traded as a chattel, forced into prostitution but was also psychologically, emotionally and religiously blackmailed by the accused Neelam Cheema @ lovely. When Shabana tried to rescue herself from the clutches of the accused, she had to barter her liberty by taking oath of Holy Quran Sharif that she will not divulge the truth about Neelam Cheema that it was she who bought her from Dolly @ Sapna and tormented her by forcing her into prostitution and unnatural sex for more than a year at Chandigarh. Poor helpless child Shabana was so much traumatised that she could not come out of the gloom of insinuations which was casted around her by Neelam Cheema. Had Shabana not gathered courage by reinforcing words of wisdom of her mother that the oath of Quran Sharif would not come in way in speaking the truth, the misdeeds of Neelam Cheema would not have come to fore. Such was the emotional devastating effect of this whole ordeal on the psyche of child Shabana that when she appeared as a witness before the court in April 2004 , two years after the incident, upon hearing the first question as to what happened to her, she started crying unconsoleably. Her condition became so bad that she could not stand and suffered bouts of breathlessness and had to be provided medical attention. In this backdrop I do not see any strength whatsoever in the endeavour of Ld. Defence Counsel to impeach the credibility of deposition of Child Shabana by resorting to put insensitive questions like " IS IT CORRECT THAT IT IS A SIN TO TELL A LIE AFTER SWEARING BY QURAN PAK". This question speaks volumes about the intention of the defence in reminding her of the oath given to the child to not to tell the truth before she was set at liberty and was allowed to walk out of vicious cycle of child prostitution.
37.A better part of the cross examination was aimed at drawing a mileage out of the earlier statement given by the child during investigation, when she had not overcome the psychological and religious blackmailing by the accused. In her court deposition child has categorically stated that after she was sold by accused Monika to Dolly @ Sapna of Rohini, she was again sold to accused Neelam Cheema @ Lovely of Chandigarh she categorically stated that she had never stayed at Amritsar at any point of time. This deposition in the above backdrop conclusively shows that the reference of Amritsar and some names of individuals related to Amritsar in earlier statement of the child during investigation were nothing but a result of tutoring and psychological blackmailing by accused Neelam Cheema @ Lovely.
In the case title "DARSHAN SINGH Vs. STATE" ,1955 SCC (Cr) 702 Hon'ble Supreme Court observed, " When the prosecution has established all the circumstances connecting the accused with a crime and in the absence of any explanation, it cannot be said that the conduct of the accused has to be ignored and need not be taken into account."
In State Vs Gurmeet Singh 1996 (2) SCC 384 Hon'ble Supreme Court while laying the guidelines qua appreciation of evidence of a prosecutrix ruled , " If the evidence of prosecutrix inspires the confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The testimony of prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases of sexual molestation."
38.Another argument put forth on behalf of defence is that investigation in the case is defective in so far as police did not take steps to collect corroborative evidence from Chandigarh or take defective measures to arrest Dolly @ Sapna. In this regard the record shows that despite attempts she could not be traced at her last known address. Ideally she should have been got declared a proclaimed offender. As regards non collection of corroborative evidence from Chandigarh, it is observed that any such effort would have added more strength to the prosecution case but absence thereof does not in any manner weaken the evidence already available on record. In any case it is a settled legal preposition that defective investigation or ommissions on the part of IO to take certain investigation steps shall not effect the merits of the case.
39.In Karnel Singh Vs. State (1995) 5 SCC 518 Hon'ble Supreme Court while addressing a plea of defective investigation ruled , " In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if investigation is designedly defective."
40.I do not find any force in the plea of the defence that police cannot involve additional accused by recording supplementary statement of 161 Cr. P.C. Ld. Defence Counsel relied upon III 1995 CCR 215 and 1993 CCC 408. Both these judgments are not applicable in the facts and circumstances of this case for the simple reason that the case in hand involves a sensitive matter of child prostitution and also that there is a proper explanation for the delay in recording of statement unlike in the cited cases.
41.I also do not find any force in the plea of the defence that Neelam Cheema @ Lovely was falsely implicated for monetary considerations. As discussed supra at length, had accused Neelam Cheema been a saviour as she initially projected herself to be, child Shabana would not have deposed against her saviour. Prosecutrix child withstood the brunt of cross examination and no material discrepancy qua the role of Neelam Cheema has come on record. As discussed supra, she avoided contacting police through out, both at Chandigarh as well as Delhi, even as per her story and there is nothing on record to show that she ever filed any complaint or made any representation to support her plea that she was falsely implicated in a child prostitution case.
42.In view of the above detailed discussion I have no hesitation in concluding that prosecution has proved its case as per charges framed against accused Monika @ Manni and accused Neelam Cheema @ Lovely beyond any shadow of doubt. Accordingly accused Monika @ Manni is hereby convicted for commission of offences punishable U/s 366-A/372/109 IPC and accused Neelam Cheema @ Lovely is convicted for commission of offence punishable U/s 366-A IPC. Order on sentence would be passed separately after hearing both the accused.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 22.5.2009 ( SURINDER S. RATHI ) ASJ:FTC:DELHI:22.5.2009 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:FTC:
R.NO.272:TIS HAZARI COURTS:DELHI FIR NO: 133/01 U/s 366 A/ 372/109 IPC PS :MOTI NAGAR State Vs. Monika and Neelam Cheema 22.5.09 Pr: Ld. Addl. PP Sh. Irfan Ahmad for State Both the accused are on court bail with Ld. Counsel Sh. Dhyan Singh Advocate Vide a separate judgment of the day both the accused found guilty for commission of offence punishable U/s 366 A/ 372/109 IPC .
They be taken into custody and sent to J/C. They be heard on the point of sentence on 25.5.09 at 2.00 PM.
( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE FTC:DELHI 22.5.2009 IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE FAST TRACK COURT: ROOM NO.272 : TIS HAZARI COURTS : DELHI FIR NO: 133/01 U/s 366 A/ 372/109 IPC PS :MOTI NAGAR State Vs. Monika @ Manni and Neelam Cheema @ Lovely CUSTODY WARRANTS OF ACCUSED MONIKA @ MANNI W/O ASIF KHAN Whereas in the above noted case accused Monika @ Manni W/o Asif Khan R/o No.838, T Block, Vivekanand Nagar, Ghaziabad, UP , Age:37 yrs is taken in to custody as she is found guilty for commission of offence punishable 372/366A/109 IPC . She be kept in judicial custody and now be produced for hearing on the point of sentence on 25.5.09 at 2.00 PM ( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE FTC:DELHI 22.5.2009 IN THE COURT OF SHRI SURINDER S. RATHI : ADDL. SESSIONS JUDGE FAST TRACK COURT: ROOM NO.272 : TIS HAZARI COURTS : DELHI FIR NO: 133/01 U/s 366 A/ 372/109 IPC PS :MOTI NAGAR State Vs. Monika @ Manni and Neelam Cheema @ Lovely CUSTODY WARRANTS OF ACCUSED NEELAM CHEEMA W/O SH. TANMEET SINGH Whereas in the above noted case accused NEELAM CHEEMA @ Lovely W/O SH. TANMEET SINGH R/O 5012, SECTOR 38, CHANDIGARH, AGE : 41 YRS is taken in to custody as she is found guilty for commission of offence punishable 366 A IPC. She be kept in judicial custody and now be produced for hearing on the point of sentence on 25.5.09 at 2.00 PM.
( SURINDER S. RATHI ) ADDL. SESSIONS JUDGE FTC:DELHI 22.5.2009 IN THE COURT OF SHRI SURINDER S. RATHI : ASJ :
FTC : R.NO.272 TIS HAZARI COURTS : DELHI FIR NO: 133/01 U/s 366 A/ 372/109 IPC PS :MOTI NAGAR State Vs. Neelam Cheema & Monika ORDER ON SENTENCE 26/5/2009 Pr: Ld. Addl PP Sh. Irfan Ahmad for State Shabana, the child victim is also present with both her parents Convicts Neelam Cheema @ Lovely and Monika @ Manni are in J/c with LD. Counsel Sh. Dhyan Singh Advocate Neelam Cheema @ Lovely was convicted for commission of offence punishable U/s 366 A IPC. and Monika @ Manni was convicted for commission of offence punishable U/s 372/366A/109 IPC vide separate judgment dated 22.5.2009.
Submissions on the point of sentence from both the sides heard at length.
While opening his submissions on the point of sentence it is stated by LD. Addl. PP for state that convicts do not deserve any leniency and they are entitled to be given maximum punishment since both of them indulged in trading of a minor girl child and forced her into prostitution.
Ld. Defence Counsel Sh. Dhyan Singh Advocate, for both the convicts, has also made submissions in detail . Making submissions on behalf of convict Monika @ Manni , he stated that she has already remained in J/c for 2½ yrs. It is stated that she is not a previous convict and she has faced the trial for around 7 years. It is stated that she is a married lady having two children aged 14 yrs and 3 yrs respectively. She has studied up to 9th standard and is said to be a housewife.
While submitting on behalf of accused Neelam Cheema @ Lovely , it is stated that she remained in J/c for around 2½ months. It is stated that she is not a previous convict and had a son aged 14 yrs. She has studied up to 7th standard and is a property dealer by profession. It is said that after her involvement in this case , her husband divorced her and now she is taking care of her son.
As far as punishment in sexual crimes are concerned, Hon'ble Supreme Court in case titled " State Vs. Rajesh" (2005) 8 SCC 11 observed, " Any liberal attitude by imposing meagre sentences or taking too sympathetic a view merely on account of lapse of time or considerations personal to the accused only in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate sentence in a criminal trial. Leniency in matters involving sexual offences is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. "
In case tilted "Gopal T.K. Vs. State", AIR 2000 SC 1669 Hon'ble Supreme Court observed, " Sexual offences constitute an altogether different type of crime which is result of perverse mind."
This matter involves ruining of life of a school going girl child who was sold by convict Monika @ Manni for prostitution to satiate her greed for money. Shabana was later on bought by convict Neelam Cheema @ Lovely who ensured that poor child Shabana is preyed upon and raped for money day in and day out for more than a year. Courtsey people like Monika @ Manni and Neelam Cheema @ Lovely, our country has acquired outrageous distinction of being a hot distination for Paedophiles lurking for child sex. In a study conducted by Ministry of Women and Child Development , Government of India , there are about 30 lacs prostitute in our country, out of which 40 per cent , i.e. 12 lacs are children. According to a remark made by Home Secretary of India around 100 million people are involved in women trafficking and as reported by CNN on 11.5.09 and as stated by Director of CBI in an International Seminar , India has now occupied unique position of not only being a source and transit nation in child trafficking but is also favoured destination for child prostitution. According to a survey 4 billion sex acts a year are being performed in India on child sex slaves and India has a thriving child sex industry which attracts wealthy westerners .
Again courtsey convict Monika @ Manni , child victim Shabana who was attending her school in 8th Standard at Govt. Sarvodya Kanya Vidhyala, H Block, Karam Pura, Delhi when she was procured from her safe abode of parental house and was sold to a child sex peddler in Rohini for a meager Rs. 10,000/-. There she was constrained and made to loose her virginity at the age of 14 years at the hand of a foreign national for Rs.35000/- & other gifts, as per evidence available on record.
Despite having plethora of laws and statutory provisions in our country aimed at alleviating child trafficking for prostitution , the law implementing agencies have always fallen short in ensuring safety of girl child in our country. Such is the height of insensitiveness and apathy on the part of Police Agency that thousands of cases of missing children especially the girls are not even registered. Owing to the calculated inactions and at times complicity of the Law Implementing Agencies, we have given birth to men of draconian psyche like those involved in infamous Nithari case where minor girls were not only raped but were also murdered and eaten up. The worst part is that despite this bedlam , we are not learning from the mistakes committed in the past and are still doing precious little to safeguard the girl child from the armies of child traffickers who like vultures are hovering around in our society always looking for a prey. They don't mind risking the lives of minor girls and thrusting them into the mayhem of prostitution just for few quick bucks.
Since its inception , through various Conventions, Charters and Protocols, United Nation Organization has stressed that issue of commercial sexual exploitation of children shall be attended by all its constituent members with utmost priority. India, as an independent nation has always taken lead in formulating laws like Children (Pledging of Labour) Act 1933, Suppression of Immoral Traffic Women and Girls Act 1956 , Immoral Traffic (Prevention) Act 1956 apart from incorporating Section 366 A, 372, 373 in the Indian Penal Code.
But when it comes to effective implementation of these laws, detection of crime, putting criminals to trial and ensuring conviction rising graph of child prostitution in our country show that we are well short of target. Alot needs to be done in this regard and till such time our children, especially minor girls, would be at the mercy of people like convicts Monika @ Manni and Neelam Cheema @ Lovely.
While making submissions on the quantum of sentence , it is submitted on behalf of the convicts that in terms of 2003 (JCC) 984, convicts deserve lesser sentence. I do not see any parity in the judgment cited and the facts constituting the case in hand. A case of simplictor rape can not be equated with a case where a girl child is kidnapped and sold as a chattel for prostitution.
As far as quantum of sentence is concerned , in view of the aforesaid discussion and plethora of precedents of Hon'ble Supreme Court that quantum of sentence should be such that it should act as a deterrence to those who are involved in similar mischievous acts and are yet to be booked under the law.
Another aspect of the matter is grant of "compensation to a victim of child trafficking and child prostitution ." On this score , a lot needs to be done qua legal infrastructure and practice prevailant in our country. Even though we have evolved efficient mechanism for providing free legal aid and similar facilities for accused persons but similar infrastructure qua bringing awareness and qua providing financial aid / compensation to a "victim of crime" is still not in place. Although constitutionally our criminal justice mechanism takes care of the prosecution aspect of a criminal wrong committed against our citizens but as far as Tortious Liability and victim compensation is concerned, our system leaves the victim to fend for his own.
Despite the fact that all other democracies of the world have efficient systems to victims of crime for launching prosecuting for compensation, but compensation to a victim of crime in our country is primarily attended U/s 357 Cr.P.C and Section 5 of Probations of Offender Act apart from Article 32,128 & 142 of Constitution.
In plethora of cases, Hon'ble Supreme Court of India has awarded compensation to the victims of crime and has also commented on the sorry state of affairs, prevalent in the lower courts, of showing cold shoulder response to the plight of victims.In case titled Gudalure Cherian Vs. UOI , while coming down heavily on police officials and medical officers for spoiling investigation in a rape case, granted compensation of Rs.2.50 lacs to the victim of rape and Rs. 1 lac to the other victim.
In case titled Bodhisattwa Gautam Vs. Subhra Chakarborty, AIR 1996, SC 922 Hon'ble Supreme Court invented a new path breaking concept of interim compensation to victims of crime while observing, " This decision recognises the right of the victim for compensation by providing that it shall be awarded by the court on conviction of offender subject to finalisation the scheme by the Central Government. If the court trying an offence of rape as jurisdiction award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation, which should also be provided in scheme."
This judgment was thereafter followed in Delhi Domestic Working Womens Forum Vs. UOI matter, 1994 (3) Crimes 597(SC) (FB) where grant of compensation as well as interim compensation to the victim of crime was treated as part of over all jurisdiction of the courts trying offences of rape which was regarded as an offence against basic human rights as well as Fundamental Constitutional Rights of Personal Liberty and Life. In this judgment Hon'ble Supreme Court observed, " It is necessary, having regard to the Directive Principles contained under Article 38 (1) of the Constitution of India to set up a Criminal Injuries Compensation Board..... Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shocks as well as loss of earning due to pregnancy and the expenses of child birth if this occurred as a result .... ."
While commenting upon the failure of trial courts in invoking the benign provision of Section 357 Cr. P.C, in case titled "
Harikishan & State of Haryana Vs. Sukhbir Singh" AIR 1988 SC 2127 Hon'ble Supreme Court observed , " It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive the victim crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the end of justice in a better way."
In its 41 st report the Law Commission of India clearly stated that our courts are not liberal in utilising these provisions and went to the extent of saying that it is regrettable that our courts do not exercise their statutory powers under this Section as freely and as liberally as they could desire. All this show that a good law, when badly administered, may fail its social purpose and if overlooked in practice, may fail both in the purpose and utility.
In a scheme formulated by National Commission for Woman, years ago , a rape victim in India was slated to get compensation upto Rs. 2 lacs. This scheme was designed to provide them relief apart from encouraging the reporting of such crimes and improve rape conviction rate in our Country since only a miniscule percentage of women and children who are raped ever report the incident to the police. It was also proposed that in the event of death of rape victim the compensation money would be given to the next of kin. As per the scheme the victim would be paid Rs.20,000/- compensation during three weeks of an application for compensation which the victim is supposed to file alongwith copy of FIR and MLC. The balance, as per the scheme is supposed to be handed over to the victim within a year subject to victim's cooperation with the police in the trial of the rape accused. The scheme included establishment of District Relief and Rehabilitation Board headed by a DM which would also provide the victim with legal, medical and psychological aid. This proposal was sent to the Planning Commission of India for financial sanction in the 11th Five Year Plan commencing April'07 . This benevolent scheme, still appears to be stranded in the muddle of red tapism and as per Ld. APP no such scheme is under implementation as of now. This is high time that such like welfare schemes which have been formulated after six decades of our Independence, shall be implemented promptly and efficiently so as to provide succor to the hapless victims of sexual crimes like minor child Shabana. The work done by National Commission for Women in this regard is lauded. Ministry of Human Resource Development and its department of Women and Child Development shall provide more teeth to bodies like NCW so that it can work more efficiently and effectively and also make the Police Department shun its tardiness in dealing with crimes related to Women and Child Trafficking.
At this juncture LD. Defence Counsel Sh. Dhyan Singh intervenes and submits that just by convicting his clients and making these observations, nothing is going to change in our country and more so in the organised crime of Women and Child Trafficking for prostitution. I am not at all in conformity with Ld. Defence Counsel for the plain reason that as a Presiding Judge of a Sessions Court, this Court cannot turn blind eye to the plight of a child victim who was trafficked for prostitution. If not this Court which has tried the accused for the crime of snatching the books from a school going child, selling her as a chattel and putting her up in a brothel house, who else would endeavour to provide succor to her.
In this regard highlighting the plight of victims of crime, apparently perturbed Hon'ble Supreme Court in case titled " Zahira H. Sheikh Vs. State of Gujrat, AIR 2006, SC 1367" famously known as Best Bakery Case observed, " The judges.... should have taken more proactive role, using a range of mechanisms to ensure justice..... unusual circumstances and the exceptional nature of the case attracts judicial opprobrium. Exceptional situations merit exceptional measures by the judiciary.... the Lower Courts can neither feel power less nor abdicate its duty to arrive at the truth and satisfy the ends of justice..... they have to take a participative role in trial."
Considering the gravity of offence and in view of the above discussion as far as convict Monika @ Manni is concerned , she is sentenced to undergo RI for a period of 8 years for commission of offence punishable U/s 372 IPC r/w 109 IPC apart from fine of Rs 50,000/- I/D to undergo additional 3 months SI.
As regards the offence U/s 366A IPC , she is sentenced to undergo RI for eight years apart from fine of Rs.5 lacs I/D to undergo additional SI for a period of one year.
Both the sentences of Monika @ Manni shall run concurrently.
As regard convict Neelam Cheema @ Lovely who used Child Shabana as a bait for Paedophiles and sold Shabana's childhood and chastity for more than a year , she is sentenced to undergo RI for a period of 9 years apart from fine of Rs. 6 lacs I/D to undergo additional SI for a period of one year.
Both the convicts are given benefit of section 428 Cr.P.C Out of the cumulative fine imposed upon both the convicts, i.e. 11.50 lacs , Rs.11 lacs shall be given to victim Shabana as compensation for ordeal through which she underwent so that she can honourably rehabilitate in life. Although no amount of money can undo the scars which her childhood has suffered at the hands of convicts but this compensation shall endeavour to bring some solace to her apart from sending message to the wrong doers in Society that once caught they will have to shell out hefty fines apart from long incarnation in jail.
Copy of judgment has already been supplied to convicts. Copy of order be supplied to convicts free of cost. Convict be sent to J/c for undergoing sentence. Copy of judgment be also sent to Chairperson, National Commission for Women as well as Chairperson Delhi Commission of India for women for information and necessary follow up action qua urgent implementation of above referred Compensation Scheme for victims of sexual crimes and formation of District Relief and Rehabilitation Board.
FINE NOT PAID.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 26.5.2009 ( SURINDER S. RATHI ) ASJ:FTC:DELHI:
26.5.2009