Delhi District Court
State vs Mamta on 7 May, 2025
1
IN THE COURT OF SH SAURABH GOYAL,
JMFC-01, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
State Vs. : Mamta & ors.
FIR No : 583/2023
U/s : 8 Immoral Traffic (Prevention) Act 1956
P.S. : Chhawla
1. Criminal Case No. : 21168/2024
2. Date of commission of offence : 26.12.2023
3. Date of institution of the case : 29.04.2024
4. Name of the complainant : Insp. Pankaj Kumar
5. Name of accused & parentage : 1) Mamta W/o Sh .Parmesh
2) Sonam W/o Sh. Arvind
(already convicted vide order
dated 06.07.2024 as pleaded
guilty)
6. Offence complained or proved : U/s 8 of Immoral Traffic
(Prevention) Act.
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 07.05.2025
9. Final order : Acquitted
10. Date of final order : 07.05.2025
Present : Sh. Vikas Kharb Ld. APP for state.
Accused in person with Ld. Counsel.
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JUDGMENT
1. Vide this judgment, I seek to dispose off the case of the prosecution filed Fir no. 583/2023 St. Vs. Mamta 2 against the accused Mamta only for having committed the offence punishable U/S 380, 454, 411 R/W 34 of Indian Penal Code, 1861 (hereinafter referred as "IPC") since other remaining accused namely Sonam was already convicted vide order dated 06.07.2024 as she pleaded guilty.
2. Briefly stated, the facts of the case are that on receipt of secret information regarding carrying of prostitution by some ladies near Ganda Nala, BSF Camp Chhawla, by Insp. Pankaj Kumar and he alongwith Ct.Sunil went to the spot i.e. Ganda Nala, BSF Camp Chhawla where they met with the secret informer who pointed out towards those ladies, thereafter, Insp. Pankaj KUmar shared this information with the Duty Officer and directed him to send the staff to the spot and HC Umesh, W HC Manoj, W Ct. Reema, Ct. Sunil and HC Kailash also came there and met Insp. Pankaj Kumar who briefed them about the information and handed over Rs. 500/- bearing last digit No. 563555 to HC Umesh who went near the Ganda Nala where he found 2 ladies standing there and after some time he gave signal to the raiding team and all of them reached there. Upon the search by W HC Manoj Kumari Rs. 500/- which HC Umesh handed over, were recovered from the possession of accused Mamta and accused Mamta was apprehended and this case FIR was registered and thereafter, investigation was carried out and upon completion of investigation, accused persons were charge-sheeted for commission of offence U/s 8 of Immoral Traffic (Prevention) Act, 1956.
3. Accused persons were summoned and they put their appearance before the court, After making compliance U/ 207 Cr.P.C. and hearing arguments on charge U/s 8 of Immoral Traffic Prevention Act was framed against both the accused persons vide order dated 06.07.2024 to which accused Mamta pleaded not guilty and claimed Fir no. 583/2023 St. Vs. Mamta 3 trial. However, the accused Sonam pleaded guilty and thus, she was convicted vide order dated 06.07.2024.
4. In support of it's case, prosecution examined total six witnesses and their testimonies are produced herein below -
(I) PW-1 HC Umesh deposed that on 26.12.2023 when he was present in the PS, then SHO PS Chhawala directed the DO Concerned to send police staff at Ganda Nala BSF Camp Chhawla as SHO concerned has received some information regarding immoral activities going near the Ganda Nala BSF Camp. Thereafter, upon the instructions of SHO Concerned, he along with W/HC Manoj kumari, W/Ct. Reema, Ct. Sunil and HC Kailash went to Ganda Nala BSF Camp, where SHO met them who briefed them about the information of immoral activities of some of the ladies nearby. He further deposed that the SHO Concerned handed over to him Rs. 500/- bearing last digit No.563555 and he went near the Ganda Nala where he found 2 ladies standing there and he talked to them about having immoral activities and they consented for the same and he had given Rs. 500/- to one lady namely Mamta. He correctly identified the accused Mamta in the court. He further deposed that he gave signal to the other staff and thereafter, all the staff member reached there and W HC Manoj Kumari, searched the accused Mamta and Rs. 500/- which he handed over to her (given to me by SHO Concerned) were recovered from her possession. He further deposed that thereafter, SHO Concerned prepared rukka and handed over the same to him and he got the present case FIR registered and he returned back to the spot and handed over the copy of FIR to SHO, thereafter, the SHO concerned prepared site plan Ex.PW1/A, SHO also seized the currency note of Rs. 500/- vide seizure memo Ex.PW1/B and served notice U/s 41 A Cr.P.C upon both the accused namely Fir no. 583/2023 St. Vs. Mamta 4 Mamta and Sonam. He further deposed that SHO prepared the interrogation report of accused persons Ex.PW1/C & Ex PW1/D and released them upon furnishing of pabandinama. This witness also correctly identified the accused as well as the currency note of Rs. 500/- used in the present case as Ex. PX1. He further deposed that during investigation, his statement U/s 161 Cr.P.C was also recorded. The photographs of currency note of Rs. 500/- available on record also been correctly identified by this witness as Ex. PX2.
(II) PW-2 Ct. Sunil deposed that on 26.12.2023, he was posted as Constable/operator of SHO PS Chhawla when one secret information was received by SHO Concerned regarding some ladies doing immoral activities near Ganda Nala, BSF Camp Chhawla, thereafter, he along with the SHO Concerned went to the spot i.e. Ganda Nala, BSF Camp Chhawla where they met with the secret informer who pointed out towards those ladies. Thereafter, the SHO Concerned shared the information with the DO Concerned and directed him to send the staff to the spot and thereafter, HC Umesh, WHC Manoj Kumari, W Ct.Reena , Ct. Sunil and HC Kailash came there and met the SHO Concerned. Rest of the testimony of this witness is on the similar lines as that of PW-1 HC Umesh, thus, the same is not reproduced herein to avoid the repetition. This witness also correctly identified the accused as well as the currency note of Rs. 500/- used in the present case i.e. Ex. PX1 and it's photographs i.e. Ex. PX2.
(III) PW-3 W Hct. Manoj Kumar and PW-5 HC Kailash also deposed upon the same lines as that of PW-1 HC Umesh thus, their testimonies are also not reproduced herein to avoid the repetition.
Fir no. 583/2023 St. Vs. Mamta 5 (IV) PW-4 Insp. Pankaj Kumar who is the investigation officer in the present case deposed that on 26.12.2023, one secret information was received by him regarding some ladies doing immoral activities near Ganda Nala, BSF Camp Chhawla, thereafter, he alongwith Ct. Sunil, went to the spot i.e. Ganda Nala, BSF Camp Chhawla where they met the secret informer who pointed out towards those ladies. He further deposed that he shared the information with DO Concerned and directed him to send the staff to the spot, thereafter, HC Umesh, W HC Manoj, W Ct. Reema, Ct. Sunil and HC Kailash came to Ganda Nala BSF Camp and met him and he briefed them about the information of immoral activities of some of the ladies nearby. He deposed that he handed over Rs. 500/- to HC Umesh bearing last digit No.563555 and he went near the Ganda Nala where he found 2 ladies standing there and after some time he gave signal to them and thereafter, all of them reached there and W HC Manoj Kumari, searched the accused Mamta and Rs. 500/- which HC Umesh handed over to her (given to HC Umesh by SHO Concerned) were recovered from her possession. He further deposed that thereafter, he prepared rukka Ex.PW4/A and handed over the same to HC Umesh who got the present case FIR registered and he returned back to the spot and handed over the copy of FIR to him. He further deposed that he prepared site plan Ex.PW1/A, also seized the currency note of Rs. 500/- vide seizure memo Ex.PW1/B and served notice U/s 41 A Cr.P.C upon both the accused namely Mamta and Sonam Ex PW4/B & Ex. PW4/C and he also Prepared the interrogation report of accused persons Ex.PW1/C & Ex PW1/D and released them upon furnishing of pabandinama Ex PW4/D & Ex. PW4/E. He stated that during investigation, he recorded statement of witnesses U/s 161 Cr.P.C.
Fir no. 583/2023 St. Vs. Mamta 6 He correctly identified the accused Mamta in the court. He also identified the Currency note of Rs. 500/- i.e. Ex. PX1 and it's photographs i.e. Ex. PX2.
5. During trial, the accused Mamta also got recorded her statement U/s 294 Cr.P.C whereby she admitted the genuineness of present case FIR NO. 583/2023 along with certificate U/s 65 B of Indian Evidence Act, GD NO. 0078 A, GD No. 0083A , GD No. 0100A and GD No. 0105 A, pursuant to which the PW at Sr. No. 7 in the list of witnesses was dropped.
6. Thereafter, the prosecution Evidence was closed vide order dated 13.12.2024. Thereafter, statement of accused was recorded U/s 281 R/W 313 Cr.P.C to which accused denied all the incriminating circumstances against her, however, she opted not to lead any defence evidence in her favour.
7. I have heard L.d. APP for the State and Ld. Defence counsel.
8. It is submitted by Ld. APP that all the witnesses have supported the prosecution case and therefore, accused is liable to be convicted. On the other hand, Ld. Defence counsel argued that the evidence produced by prosecution side is not sufficient to prove the charge against the accused and moreover, there are number of contradictions in the testimonies of the prosecution witnesses. Further, Ld. Defence counsel relied upon the decision given by High Court of Delhi in a case titled as State (Delhi Administration) vs. Bashir Ahmad & ors. reported as 1983 C.C. Cases 367 (IIC), in support of his contention that a single instance of offer of sexual intercourse does not constitute prostitution.
Fir no. 583/2023 St. Vs. Mamta
7
APPRECIATION OF EVIDENCE:
9. It is observed that all the prosecution witnesses have deposed to the same effect and it has been testified by them that on the instruction of the SHO, PS Chawwla who had received secret information regarding immoral activities going near Ganda Nala, BSF Camp, HC Umesh as a decoy witness (PW1) approached the accused Mamta and Sonam and talked them about having immoral activities to which they consented and he gave Rs. 500/- for the same to accused Mamta. Thereafter, when all the Staff members of the raiding team reached there, Rs 500 were recovered from the personal search of accused Mamta. Accused Mamta is charged for offence under section 8 of the Immoral Traffic (Prevention) Act which reads as under:
Seducing or soliciting for purpose of prostitution.
- Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-
(a)by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way) or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or
(b)solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, Fir no. 583/2023 St. Vs. Mamta 8 with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees.
10. The word 'prostitution' has been defined in Section 2 (1) of the Act as the sexual exploitation or abuse of persons for commercial purposes. In order to constitute prostitution, the act of the female must be an act of offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. The promiscuous sexual intercourse means indiscriminate (not restricted to one individual) sexual intercourse, that is to say, proof of one sexual intercourse is not enough. What Act seeks to prohibit is the act of a common prostitute and therefore, a single act of offer cannot amount to an offer for purpose of promiscuous intercourse. Promiscuity in prostitution means indiscriminate bartering of sex favours without any emotional attachment and for monetary considerations. Promiscuity lies in an intentional indifference in the selection of parties as long as they pay. It excludes a permanently kept concubine or a woman taken without paying any consideration. It should be proved that the person concerned indulges in indiscriminate sexual intercourse with several persons. Even if the several acts of intercourse are not directly and fully proved, there should be material to show that the person is in the habit of having indiscriminate sexual intercourse. On the aforesaid aspects, reference can be made to Ved Prakash V State, 1989 Cr.L.J. 671 (Mad); Bai Shanta V State of Gujrat, AIR 1967 Guj. 211; in re Dhanalakshmi, 1974 Cr.L.J. 61. Thus, the term 'earnings of prostitution' means the hire charges, whether in cash or in kind, which a prostitute receives for offering her body for promiscuous sexual intercourse.
11. In the case in hand, it is evident that prosecution has not been able to produce an iota of evidence to show that the accused Mamta was a prostitute. Admittedly, no Fir no. 583/2023 St. Vs. Mamta 9 independent witness has been produced in support of prosecution case nor any recovery of money or any other material has been affected to prove that co-accused Sonam was involved in the activities of prostitution as well. The star witness, i.c., the decoy witness (PW1) is a partisan witness and part of same police station of the SHO is the IO and that PW1 was administratively subordinate to the IO/SHO/ PW4 and there is no corroborative evidence of any independent person to support his version.
12. In the present case, no independent public witness has been cited by the prosecution. Though, it is claimed by the prosecution that IO PW-4 Insp Pankaj Kumar tried to associate some public persons in the raiding party however, they refused but PW-1 HC Umesh (decoy customer) who is the most material witness himself denied this fact and stated in his cross-examination that IO did not request any person employed near BSF camp to join the raid. Further, PW1 and PW2 both have admitted that IO/SHO had not prepared any handing over memo of currency not of Rs.500/-. At the same time, it is admitted that position of accused ladies is not mentioned in the Site Plan prepared by the IO. All this clearly shows non-compliance on the part of PW-4 IO) of section 15 (2) of the ITP Act. Further, had PW-4 made any efforts for joining the public witnesses and they had refused to join the raiding parties, then PW-4 should have taken action against those witnesses u/s 187 IPC. However, PW-4 has not taken any such action and he has even failed to disclose name of persons to whom he tried to associate in the raiding party and PW-1 and PW2 had corroborated each other and denied claim of PW-4 of making efforts for associating any public witnesses, which makes the prosecution story doubtful.
13. Since as already discussed above, no public witnesses have been associated in this case, in such circumstances, testimony of PW-2Ct. Sunil, PW3, W/HC Manoj Fir no. 583/2023 St. Vs. Mamta 10 Kumari, PW-4 Inspector Pankaj Kumar and PW5 HC Kailash is to be considered, however it is barred by the principles of hearsay so far as they have deposed regarding striking of a deal between decoy customer and the accused. Admittedly, these two witnesses have not heard conversation between PW-1 HC Umesh and accused Mamta. Therefore, whatever was told to these Four witnesses by decoy customer and shadow witness becomes barred by the principles of hearsay.
14. Now, we are left with the testimony of only one witnesses regarding striking of the deal for the purposes of prostitution between the decoy customer and the accused and it is the testimony of PW1, HC Umesh (decoy, customer). Again, here is a difficulty. HC Umesh is admittedly a police officer when the deal was struck between him and accused. In such circumstances, whatever was stated by the accused in presence of these witnesses is hit by Section 162 of Cr.P.C and therefore cannot be relied upon in evidence. On this point, reference is drawn from judgment of Hon'ble Delhi High Court in STATE Versus BASHIR AHMED AND OTHERS, 23 (1983) DELHI LAW TIMES 486 DELHI HIGH COURT which was a case under Immoral Traffic Prevention Act it was held that " in the present case the solicitation made by the accused to the police officer was not a confession made to him of an offence but was an offence committed in relation to a person who happened to be a police officer. Confession is always of past events. It cannot, therefore, be said that whatever was said by the accused to the police officer concerned was a confession, and inadmissible under Section 25 of the Evidence Act. But it appears to me that the said statement of the accused having been made during investigation is excluded from evidence under Scion 162 Cr.P.C. Here, as in The State Of Uttar Pradesh vs Bhagwant Kishore Joshi, A. 1. R 1964 S.C. 221, the investigation was commenced when the police office got the information and set the trap. The statement of the accused to the decoy police constable was, Fir no. 583/2023 St. Vs. Mamta 11 therefore, inadmissible in evidence under Section 162 Cr.P.C. it was Held further, that "it cannot be too strongly emphasized that it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is in the interest of prosecution not to use a police officer as a decoy. The prosecution in the present case has failed because of such use." It was held that Confession is not defined in the Evidence Act. But a 'confession' is not a statement by an accused 'suggesting the inference that he committed' the crime. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession. A confession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the offence: Pakala Narayan Swami Vs. Emperor, AIR 1939 P.C 47. Now, the solicitation made by the accused to the police officer was not a confession made to him of an offence but was an offence committed in relation to a person who happened to be a police officer. Confession is always of past events. It cannot, therefore, be said that whatever was said by the accused to the police officer concerned was a confession, and inadmissible under Section 25 of the Evidence Act. But, it appears to me that the said statement of the accused having been made during investigation is excluded from evidence under Section 162 Cr.P.C with reference to a trap laid by the police. It was held in Maha Singh v. State (Delhi Admn.), AIR 1976 SC 449, that where the Inspector recorded the complaint, arranged the raid by noting each step taken thereafter in a regular manner, later or forwarded the complaint for formal registration of the case under Section 154-Cr.P.C at the Police Station and whatever he did in order to detect the accused while taking the bribe, all that came within the term 'investigation' under Section 2(h) of the Code of Criminal Procedure because investigation had commenced on recording by him of the complainant's statement disclosing a cognizable offence. Investigation may start without information or without reducing the same in writing under Section 154 Cr.P.C. In this case also, investigation was commenced when the police officer got the information and set the trap. The statement of the accused to the decoy police constable was, therefore, inadmissible under Section 162 Cr.P.C.
15. In the present case, even otherwise no independent witness from the locality where this raid was conducted has been joined which again goes to the root of the Fir no. 583/2023 St. Vs. Mamta 12 matter and benefit of doubt ought to be given to accused persons. Further, the departure and arrival entry of the police officials to the police station have not been filed or proved by the prosecution to lend credence to the version of the prosecution. Further, admittedly no one even visited the residence of accused Mamta to check if she was carrying out any prostitution activities in open area which is near a highly sensistive area adjoining BSF camp. Therefore, the evidence given by witnesses cannot be accepted as sufficient to found a conviction.
CONCLUSION:
16. For the reasons recorded above, it is concluded that prosecution failed to prove it's case beyond all reasonable doubts. Accordingly, accused Mamta is pronounced not guilty and is accordingly acquitted for the offence punishable U/S 8 of Immoral Traffic (Prevention) Act, 1956. Previous Bail Bonds of the accused, if any, stands canceled and surety, if any, stands discharged. Original documents, if any, be released after cancellation of endorsement, if any, against proper receipt and identification. SAURABH by Digitally signed SAURABH GOYAL GOYAL Date: 2025.05.07 16:39:24 +0530 Announced in the open court on (Saurabh Goyal) this day i.e. 07th May, 2025 JMFC-01 South West District, Dwarka, New Delhi It is certified that this judgment contains 12 pages and each page bears my signatures.
Digitally signed by SAURABH SAURABH GOYAL
GOYAL Date: 2025.05.07
(Saurabh Goyal)
16:39:29 +0530
JMFC-01 South West District, Dwarka,
New Delhi.
Fir no. 583/2023 St. Vs. Mamta