Delhi District Court
Fir No.150/08Ps Kamla Market State vs Kamla & Anr. on 27 January, 2016
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IN THE COURT OF SH.R.K. PANDEY, METROPOLITAN MAGISTRATE :
02 (CENTRAL) TIS HAZARI COURTS, NEW DELHI
FIR No. 150/08
PS: Kamla Market
U/s 3, 5, 7 & 8 ITP Act
State v. Kamla & Anr.
JUDGMENT
1. Sl No. of the case : 02401R0610742009
2. Date of Commission of the offence : 02.09.2008
3. The name of the informant : Inspector Bala Sharma
4. The name & address of accused : 1. Kamla. D/o Sh.
Ganpat, R/o. House
no. 52, G.B Road, Delhi
2. Zarina. D/o Sh. Haider,
R/o. House no. 52,
G.B Road, Delhi.
5. Date of institution of FIR : 02.09.2008
6. Date of receipt of this case in
this court : 15.09.2009
7. The plea of the accused : Pleaded not guilty.
8. Date of reserving the case for order : 27.01.2016
9. Date of Decision : 27.01.2016
10.Final order : Acquitted
FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
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BRIEF FACTS OF THE CASE :
1. Prosecution case in brief is that on 02.09.2008 at about 9.45 pm, in varandah of house no. 52, G.B. Road within jurisdiction of PS Kamla Market, accused Kamla seduced and solicited the decoy customer HC Ravinder by using words in public place and accused was found on carrying prostitution at notified public place. Case of prosecution against accused Zarina is that on 02.09.2008 at about 9.45 pm, at house no. 52, G.B. Road within jurisdiction of PS Kamla Market, accused was found keeping / managing the aforesaid place as brothel and accused procured / induced coaccused Kamla for purposes of prostitution. Accused Kamla was charged for offence punishable, u/s 7 & 8 of The Immoral Traffic (Prevention) Act (ITP Act) and accused Zarina was charged for offence punishable, u/s 3 & 5 of The Immoral Traffic (Prevention) Act (ITP Act) vide order dated 29.01.2011.
2. In order to prove allegations against the accused persons regarding aforesaid offence, prosecution has relied upon six witnesses including informant/complainant.
3. PW1 Ct. Ravinder deposed that on 02.09.2008, he was posted as Constable at PS. Kamla Market. PW1 deposed that on that day he along with ASI Ram Niwas, W/HC Kamlesh were on patrolling duty in area of G. B Road. PW1 deposed that they were having information that some woman used to induce public persons FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
3for prostitution after closure of shops at G. B Road. PW1 deposed that SHO had prepared a raiding party including deponent , SHO and above named police officials. PW1 deposed that SHO had given him civil cloths and he changed his uniform. PW1 deposed that SHO had also given him two currency notes of Rs. 100/ each. PW1 deposed that at about 9.45 pm, he reached near varandah /corrider of kotha no. 52 where one lady met him and she stopped him and she started using indecent word and tried to induce him for prostitution. PW1 deposed that, that lady demanded Rs. 200/ for prostitution and she stated that out of Rs. 200/ she would get Rs. 100/ and remaining Rs. 100/ would be given to manager of brothel namely Zarina Begum. PW1 deposed that he moved his hand over his head and gave signal to the other members of raiding team and after getting the signal, W/HC Kamlesh reached there and she apprehended that lady. PW1 deposed that remaining police team also reached there and deponent informed the incident to the SHO / IO. PW1 deposed that W/HC Kamlesh conducted personal search of that lady and notes which were given by deponent to that lady were recovered from her right hand. PW1 deposed after interrogation that lady disclosed her name as Kamla. PW1 deposed that IO prepared tehrir and on the basis of same, FIR was registered. PW1 deposed that recovered currency notes were taken into possession and a pullinda was prepared which was seized and was sealed with seal of RN. PW1 deposed that seizure memo of the currency note was prepared by IO. PW1 deposed that IO recorded FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
4his statement during investigation. PW1 identified the recovered currency notes as EXP1.
4. PW2 W/HC Kamlesh deposed that on 2.9.2008, she was posted as Ct. at PS Kamla Mkt and on that day, she joined the investigation of the case alongwith ASI Ram Niwas and Ct. Ravinder as ASI was having information that at GB Road some women used to induce public persons for prostitution by making indecent gestures and they take money for the same. PW2 deposed that in pursuance of the information, ASI prepared a raiding party & Ct. Ravinder was directed to wear civil cloths & two notes of Rs. 100/ each were given to him after signing the same with the instructions to go at GB Road & give signal if any lady induce him for prostitution. PW2 deposed that Ravinder was instructed to give signal at the time of settlement of deal. PW2 deposed that they all went to above said place and at about 9.45 pm, one lady stopped Ct. Ravinder and induced him for prostitution by making very indecent gestures and at the same time, Ct.Ravinder gave a signal to them. PW2 deposed that she apprehended that lady and ASI & other persons who were hiding behind the cars parked in parking also came there and Ct. Ravinder told them that when he reached at brothel no. 52, the said lady stopped him & induced him for prostitution by moving her chest and she asked Rs 200/ for that. PW2 deposed that she conducted the search of that lady whose name after interrogation was disclosed as Kamla & Rs. 200/ were recovered from her possession. PW2 deposed that the recovered FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
5notes were put in a envelope and sealed with the seal of RN which was taken into police possession and seizure memo ExPW1/A was prepared. PW2 deposed that accused Kamla was arrested and arrest memo ExPW2/A was prepared & her personal search was conducted and personal search memo ExPW2/B was prepared. PW2 identified the currency notes as EXP1.
5. PW3 HC Akhilesh Kumar deposed that on 02.09.2008 , he was posted at PS Kamla Market as HC and was working as Duty Officer from 4:00 pm to12:00 mid night and on that day, at about 11.05 pm, he received a rukka from Ct. Ravinder sent by Inspector Bala Sharma, on the basis of which, he registered FIR No. 150/08 EXPW3/A. PW3 deposed that he also made endorsement on the rukka Ex. PW3/B.
6. PW4 Retired SI Ram Niwas deposed that on 2.9.2008, he was posted as ASI at PS Kamla Mkt and on that day, he joined the investigation of the present case alongwith Wct. Kamlesh and Ct. Ravinder and received the information that at GB Road some women used to induce public persons for prostitution by making indecent gestures and they take money for that. PW4 deposed that SHO Inspector Baala Sharma also met them there & she was also having the aforementioned information. PW4 deposed that in pursuance of that information, SHO prepared a raiding party & Ct. Ravinder was directed to wear civil cloths & two notes of Rs. 100/ each were given to him after signing the same by the SHO with the instructions to go at GB Road & give signal if any lady induce him FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
6for prostitution. PW4 deposed that they all went to above said place and at about 9.45 pm, one lady stopped the Ct. Ravinder and induced him for prostitution by making very indecent gestures and at the same time, Ct.Ravinder gave signal to them. PW4 deposed that W/Ct. apprehended that lady and deponent & other police persons who were hiding behind the cars parked in parking also came there and Ct. Ravinder informed them that when he reached at brothel no. 52, then that lady stopped him & induced him for prostitution by moving her chest and she asked Rs 200/ for that. PW4 deposed that W/Ct. Kamlesh conducted the search of that lady whose name after investigation was disclosed as Kamla & in her search two notes of Rs. 100/ each which were signed and given to Ct. Ravinder were recovered from her possession. PW4 deposed that those notes were put in a envelope and sealed with the seal of RN which was taken into police possession and seizure memo ExPW1/A was prepred. PW4 deposed that accused Kamla was arrested and arrest memo ExPW2/A was prepared & her personal search was conducted by W/Ct and personal search memo ExPW2/B was prepared. PW4 deposed that her statement was recorded by the IO. PW4 deposed that on 21.11.08, accused Zarina was arrested by the SHO and arrest memo ExPW4/A was prepared and her personal search was conducted by SHO and personal search memo ExPW4/B was prepared.
7. PW5 Shakira Aggarwal has not supported the case of prosecution and deposed nothing against the accused persons.
FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
78. PW6 Ins. Bala Sharma deposed that on 02.09.2008, she was posted as SHO at PS. Kamla Market and on those days, she had received many complainant regarding prostitution in the varandas of G. B Road and on that day, she was on patrolling and while patrolling reached at division no. 4 near Hanuman Mandir where ASI Ram Niwas, Ct. Ravinder and W/HC Kamlesh met her. PW6 deposed that she briefed them the information / complains of prostitution . PW6 deposed that she prepared a raiding party and she requested 3 / 4 persons to join the raiding team but all refused to join the raiding team after expressing their inability and did not disclosed their names and addresses. PW6 deposed that she instructed Ct. Ravinder who was in plain clothes to become a decoy customer and thereafter she handed over to him Rs 200/ consisting of two currency notes of Rs.100/ after putting her initials on the same. PW6 deposed that thereafter, ASI Ram Niwas followed him as a shadow witness alongwith WHC Kamlesh and she also followed them. PW6 deposed that the decoy customer reached near Kotha No. 52 where he met a lady and there was some negotiation between said lady and decoy customer. PW6 deposed that after some time, decoy customer gave signal for raid and they overpowered the said lady namely Kamla. PW6 deposed that W/HC Kamlesh had conducted personal search of that lady and the aforesaid Rs. 200/ were recovered from her possession.PW6 deposed that she seized the recovered currency notes in one envelope and sealed with the seal of RN. PW6 deposed that she FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
8took said envelope into police possession and prepared seizure memo EXPW 1/A. PW6 deposed that she prepared a Rukka EXPW6/A and handed over to Ct. Ravinder and sent him to PS for registration of the case. PW6 deposed that Ct. Ravinder went to PS and got the case registered and he returned to spot and handed over original rukka and copy of FIR to her. PW6 deposed that she arrested the accused Kamla and got conducted her personal search and she prepared respective memos Ex PW2/A and EXPW2/B. PW6 deposed that she prepared site plan EXPW6/B of the spot. PW6 deposed that she also recorded disclosure statement of accused Kamla and in her disclosure statement, accused Kamla had disclosed about coaccused Zarina as Manager of the aforesaid Kotha no. 52 and deponent tried to apprehend coaccused Zarina but she could not be traced. PW6 deposed that anticipatory bail of coaccused Zarina was given by Ld. Sessions Court and she formally arrested coaccused Zarina. PW6 deposed that one public witness namely Shakira Aggarwal who was the neighbour of the accused met her and she also recorded her statement. PW6 deposed that after necessary investigation of the case, she prepared the challan.
9. After the prosecution evidence, statement of the accused Kamla D/o. Ganpat and Zarina D/o. Haider were recorded separately under Section 313 read with Section 281 of Cr.PC in which all the incriminating evidence was explained to the accused persons to which they denied but opted not to lead any defence evidence. Accordingly matter was fixed for final arguments.
FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
910. It is argued on behalf of the State that prosecution witnesses duly proved the prosecution's case. Hence, prosecution's story is duly proved beyond reasonable doubt. Therefore, accused persons are liable to be convicted.
11. It is argued on behalf of the accused Kamla D/o. Ganpat and Zarina D/o. Haider through counsel that accused persons are innocent and were falsely implicated by the police. It is further argued that all the prosecution witnesses are police officials and their testimony is liable to be rejected being member of police team and interested witness without corroboration by independent witness or evidence. It is further argued that prosecution has failed to prove its case beyond reasonable doubt. Hence, both the accused persons are liable to be acquitted.
12. Heard. Perused the record.
13. As per prosecution's story on 02.09.2008 at about 9.45 pm, in varandah of house no. 52, G.B. Road within jurisdiction of PS Kamla Market, accused Kamla seduced and solicited the decoy customer HC Ravinder by using words in public place and accused was found on carrying prostitution at notified public place. Case of prosecution against accused Zarina is that on 02.09.2008 at about 9.45 pm, at house no. 52, G.B. Road within jurisdiction of PS Kamla Market, accused was found keeping / managing the aforesaid place as brothel and accused procured / induced coaccused Kamla for purposes of prostitution.
"Brothel is defined in Section 2(a) ITP Act as FIR No.150/08PS Kamla Market State v/s Kamla & Anr.10
a place including any house, room or place or any portion of house, room etc. which is used for purpose of sexual exploitation or abuse for gain of another person or for mutual gain for two or more prostitutes".
"Prostitution is defined in Section 2(f) of ITP Act as it means sexual exploitation or abuse of persons for commercial purposes and expression prostitute shall be construed accordingly".
Section 3 of ITP Act provide penal provision i.e. punishment for keeping a brothel or allowing premises to be used by a brothel.
Section 4 ITP Act provide provision regarding punishment for living on the earnings of prostitution.
Section 5 of ITP Act provide provision regarding punishment for procuring, inducing or taking person for sake of prostitution.
Section 8 of ITP Act provide provision regarding punishment for seducing or soliciting any person for prostitution at public place or within sight of, and in such manner as to be seen or heard from any public place, FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
11whether from within any building or house or not.
14. On perusal of legal provision / penal provision as provided under the ITP Act 1956, basic requirement for penal liability u/s 3 of ITP Act is that there must be a premises which must be used for keeping a brothel or allowed to be used as brothel. In the present case, prosecution has not produced or proved any document that house bearing no 52, G. B Road from where accused Kamla was allegedly apprehended was actually in the possession of accused Zarina or same was kept or managed by the accused Zarina as a brothel. Further there is contradiction in the testimony of PW1/decoy customer and PW2/W/Ct. Kamlesh. On one hand, PW1 as stated that the raiding party was constituted by SHO and SHO gave him civil cloths and PW1 change his uniform into civil dress and on the other hand PW2 has not stated anything regarding the presence of the SHO/IO at the place of alleged incident and alleged raid conducted by the police team. Witness PW6/IO deposed that witness PW1/decoy customer was already in the civil dress and she only instructed him to become decoy customer. This statement of PW6/IO creates doubt regarding her presence at the time of alleged raid. It is also not established by the prosecution that accused Kamla was procured or induced by accused Zarina for purposes of prostitution and except the disclosure statement of both the accused persons which are not admissible, nothing was brought during evidence by the prosecution. Accordingly, the ingredient of offence punishable u/s 3 & 5 of ITP Act allegedly to be committed by the accused Zarina is not proved and FIR No.150/08PS Kamla Market State v/s Kamla & Anr.
12ingredient of offence punishable u/s 7 & 8 of ITP Act allegedly committed by accused Kamla is not proved, hence accused Zarina and Kamla are acquitted from the present case.
15. Bail bond and surety bond furnished u/s 437A Cr.PC shall remain in force for six months.
16. File be consigned to record room.
Announced in the open court (RAVINDRA KUMAR PANDEY) on 27.01.2016 MM02 (Central)Tis Hazari Court DELHI FIR No.150/08PS Kamla Market State v/s Kamla & Anr.