Delhi District Court
State vs . Olesya & Ors on 18 March, 2021
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Olesya & Ors
FIR NO: 38/09
P. S Kalkaji
U/s 3, 4 & 5 ITP
Crc No./92815/2016
JUDGMENT
Sl. No. of the case : 28/3
Date of its institution : 29.04.2010
Name of the complainant : Sh. Satvir Singh,
S/o Sh. O P Singh,
R/o L29/364, Mahipal Pur,
New Delhi.
Date of Commission of offence : 28.10.2009
Name of the accused : Veer Kumar,
S/o Sh. Om Prakash,
R/o H. NO. A159, Meet Nagar,
Shahdra, Delhi.
Offence complained of : 3, 4 & 5 ITP
Plea of accused : Not Guilty
Case reserved for orders : 06.03.2021
Final Order : Acquitted
Date of orders : 18.03.2021
1
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Veer Kumar for having committed the offence punishable u/s 3, 4 & 5 of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as "ITP Act").
2. Briefly stated, it is the case of prosecution that on 28.10.2009 at about 10:45 PM the accused Veer Kumar was found running a brothel house situated at L 30/365, Inn Mahipal Pur Extension, Delhi, and was also living on the earnings of the prostitute and at the same time indulged in procuring and inducing persons for sake of prostitution. The accused had allegedly taken the said property on rent. 3 other co accused persons namely Olesya Ivanova, Soniya and Rama @ Anjali were also involved in the present case.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge was framed against the accused person vide order dated 30.05.2011 u/s 3, 4 & 5 ITP Act to which he pleaded not guilty and claimed trial.
4. During the course of trial, the accused Olesya Ivanova was convicted vide separate judgment dated 23.01.2013 passed by this Court. Accused Sonia was convicted vide judgment & order dated 28.02.2012 and accused Rama was convicted vide judgment & order dated 27.02.2012.
5. In order to prove the guilt of accused, the prosecution examined following seven witnesses:
Sh. Sudesh was examined as PW1;
Sh. Satbir Singh was examined as PW2 ;2
Sh. Prem Sehrawat was examined as PW3 ;
Sh. Bharat Bhushan was examined as PW4;
Retired SI Ram Prakash was examined as PW5; ASI Niranjan Lal was examined as PW6;
W/Ct. Suman was examined as PW7;
HC Parvesh Kumar was examined as PW8;
Inspector Ishwar Singh was examined as PW8; Inspector Sukram Pal was examined as PW9; & Ct. Zubair was examined as PW10
6. PW1 in his evidence has given a detailed account of the incident in his testimony. He stated that on 29.10.2009, at about 10:30 PM, when he came out of his office i.e. L29/364, Mahipal Pur Extension, New Delhi, he found that two persons were coming out from the hotel i.e. 365, Inn in very high speed and pushed him. When PW1 asked them then those persons abused him. Thereafter, PW1 informed about this incident to his brother Satbir Singh. Thereafter, brother of PW 1 and Prem Sehrawat who was friend of brother of PW1 went to meet those two persons.
7. PW2 who is the brother PW1 in his testimony deposed that in the year 2009, he was at his office i.e. Atlantic Logistic Pvt. Ltd. and at about 10:30 PM his brother Sudesh Kumar informed him that the quarrel had occurred among him, Gulshan, his brother and staff member of the guest house of Gulshan. PW2 went to the guest house i.e. 365 Inn at the reception and intimated the said fact and at that time four ladies were there. He inquired from one person namely Kaalu and he informed that the ladies were doing prostitution business. Out of those four ladies two were Indian and two were foreigners. Before the arrival of the police, all the accused persons fled away from the spot but with the help of other accused persons PW2 apprehended them. PW2 filed the present complaint which is Ex. PW2/A.
8. PW3 in his testimony deposed that in the month of October 2009, the accused was running a hotel 365 and had quarrelled with Satbir Singh's brother namely Sudesh. Further, he stated that the persons involved were running sex trade.
3Police and media persons also arrived at the spot and in his presence some girls including foreigners were also arrested from the said hotel.
9. PW4 in his testimony deposed that he was the registered owner of flat no. L 30/365, Mahipal Pur, Red light chowk. He had given the same to the accused Veer Kumar on rent of Rs. 65,000/ per month. He had given the rent agreement to the police in this respect. The rent agreement is Ex. PW4/A. Witness correctly identified the accused present in the court.
10. PW5 deposed that in the intervening night of 28/29.10.2009, he was on emergency duty and he had received DD No. 48 A regarding quarrel at H. NO. 365 Inn Mahipal Pur. He along with Ct. Zuber went to the spot where they found that three ladies were surrounded by public persons for the allegations of running prostitution racket. He informed SHO who arrived at the spot and inquired the incident. They came to know that the one lady was taken to AIIMS trauma centre in injured condition and the three ladies were present at the spot whose names were Olesya, Rama and Sonia. Further, IO prepared the rukka on the statement of Satbir and got the case registered through Ct. Zuber and with the help of W/Ct. Suman, accused persons were personally searched and they were arrested. Arrest memo of accused Rama is Ex. PW5/A and personal search of accused persons are Ex. PW5/B, Ex. PW5/C and Ex. PW5/D.
11. PW6 deposed that on 29.10.2009 he received rukka through Ct. Zuber on the basis of which he recorded the present case FIR, copy of the same is Ex. PW6/A and also put his endorsement on rukka as Ex. PW6/B.
12. PW7 deposed that on 29.10.2009, he along with IO Inspector Ishwar went to the spot i.e. hotel 365 Inn Mahipal Pur. IO interrogated three girls namely Olesya, Rama and Sonia. Further, PW7 conducted personal search of all three girls vide Ex. PW5/B, Ex. PW5/C and Ex.PW5/D. Accused Olesya was arrested vide arrest memo 4 Ex. PW7/A. Accused Soniya was arrested vide memo Ex. PW7/B and accused Rama was arrested vide memo Ex. PW5/A. Thereafter, all three girls were brought to PS by IO.
13. PW8 deposed that on 26.11.2009, he was posted as Naib Court in the court of Sh. Sourabh Pratap Singh, Ld. MM, Patiala House Courts and on that date, accused Veer Kumar @ kalu was present in the court and the IO of the case no. 38/09 had requested for formal arrest of accused Veer Kumar. After permission of the court, accused Veer Kumar @ Kalu was arrested in his presence by IO SI Sukram Pal vide arrest memo Ex. PW8/A and personal search memo of accused as Ex. PW 8/B. Witness correctly identified the accused present in the court.
14. PW8 deposed that on 28.10.2009 that he was posted as SHO of PS Vasant Kunj (South). On that day, IO ASI Ram Prakash had received a DD no.48A regarding a quarrel at L30/365, inn Guest House, Mahipalpur Extn. He was informed about the said incident by IO through telephone. In the meantime, he also got information regarding DD no.4A and 5A from the spot. Thereafter, he alongwith SI Sukram Pal and other staff went to the spot on police Gypsy. On reaching the spot, he saw a large crowd and SI Ram Prakash was standing beside the crowd. On inquiry, complainant namely Satvir Singh had met them and narrated the incident. Thereafter, he recorded his statement which is already Ex.PW2/A. Thereafter, he prepared a rukka and handed over the same to Ct. Juber for registration of FIR and the same is Ex.PW8/A. After registration of FIR, Ct. Juber returned back at the spot and handed over the same to him. Thereafter, at the instance of the complainant, he prepared the site plan and the same is Ex.PW8/B bearing my signature at point Y. He also recorded the statement of witnesses who are present at the spot. In the meantime, he had called to lady constable namely Suman Kumar at the spot and thereafter, arrested the accused person namely Olesya, Sonia and Rama and also conducted their personal search vide memos already Ex.PW7/A, B and C & PW5/B, C and D. During 5 investigation, he also examined the owner of the property L30/365, Mahipalpur Extn. who supplied him a copy of the rent agreement between him and the accused Veer Kumar and the same is already Ex.PW4/A. He also collected the copy of PCR form from the Delhi police control room and the same is marked as MarkP1.
15. PW 9 deposed that on 28.10.2009, he was posted at PS Vasant Kunj as SI.
On that day, he was asked by SHO Inspector Ishwar Singh to join the investigation after receiving information of law and order problem in reference to DD No.4A and 5A. Thereafter, he alongwith Inspector Singh and other police staff went to the spot at Mahipalpur Extension, Guest House Inn no.L30/365 on a government vehicle. There was public gathering of about 3040 people. They were informed that prostitution business was being carried out in the guest house. One public witness namely Satbir had met them and given statement to SHO PS Vasant Kunj. IO had prepared all the documentary proceedings i.e. arrest memo, personal search of the accused persons etc. IO had also recorded the statement of PW9 in this regard. During the investigation, he was given the charge of the file for further investigation due to on leave of the first IO as accused Veer Kumar had surrendered. Thereafter, he had made a formal arrest of accused on 26.11.2009 and his personal search memo was also prepared by me which are already Ex.PW8/A and Ex.PW8/B. X.
16. PW10 deposed that on 28.10.2009, he was posted at PS Vasant Kunj as constable on emergency duty alongwith ASI Ram Prakash from 8.00 p.m. to 8.00 a.m.. On that day, at about 11.15 p.m. ASI Ram Prakash received a call from a PCR vide DD No.48A. Thereafter, he alongwith ASI Ram Prakash went to the spot i.e. Mahipalpur Extension, Guest House Inn no.L30/365. There was huge public gathering. He further stated that they came to know that three ladies were apprehended by the public persons and were confined inside the abovesaid guest house for the allegations of running a business of flesh trade in the abovesaid guest house Inn. He informed the SHO PS Kalkaji regarding the incident. Thereafter, SHO 6 alongwith other police staff had reached at the spot at about 12.00 midnight. One public witness namely Satbir had met them and gave statement to SHO of PS Vasant Kunj. On the basis of said complaint, SHO had prepared a rukka on the same and handed over the same to him for registration of FIR. After registration of FIR, PW10 returned back at the spot and handed over the original rukka and copy of FIR to IO/Inspector Ishwar Singh. IO had prepared all the documentary proceedings i.e. arrest memo, personal search and other proceedings of the accused persons etc.
17. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 12.02.2021. Thereafter, statement of accused was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 11.03.2020 wherein all the incriminating circumstances were put to him which he denied and took a defence that he has been falsely implicated in the present case. He chose not to lead defence evidence.
18. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
19. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
20. I have considered the rival submissions and perused the case documents.
21. It should be noted that while almost all PWs have supported the case of prosecution to the extent of running of a prostitution business in the said hotel, however, none of them have clearly pointed out towards the culpability of accused 7 Veer Kumar. It is an undisputed fact that Veer Kumar has taken the said premise on rent from PW4. However, the role of accused Veer Kumar in the present case could not be established by the prosecution in a very specific manner apart from him being tenant / owner of the said premise.
22. PW1 did not depose anything against the accused Veer Kumar. During his crossexamination, he even admitted that he had never seen the accused persons either before or after the incident. Further, PW2 in his testimony has not very categorically deposed anything against the accused Veer Kumar. While he deposed that on the date of incident, he met one person at the hotel who informed him about the prostitution business. However, it is not clear if the said person namely Kalu is the accused Veer Kumar. He did not state anything more about the person namely Kalu i.e. who that person was and how was he related to the said hotel. Even if I assume that the said person Kalu and the accused Veer Kumar are one and same person, however, even then the testimony of PW2 is of no help to the prosecution in bringing home the guilt of accused Veer Kumar. There is nothing in the testimony of PW2 which can suggest the involvement of accused Veer Kumar/Kalu in the present case. Infact PW2 in his testimony has not deposed anything against the accused Kalu except the fact that the information about prostitution business was provided by him. Merely informing about the running of prostitution business would not ipso facto make the person Kalu liable for the offences under the ITP Act. Entire testimony of PW2 is against the accused Virender who is stated to be the manager of said hotel.
23. Further, it should also be noted that PW3 also did not depose anything against the accused Veer Kumar. In fact, when he was crossexamined by Ld. APP, he admitted the fact that he had not seen the owner of the said hotel at the spot. It is interesting to note that the owner of the said hotel is the accused Veer Kumar. He also denied the suggestion that the owner of the said hotel tried to strike a bargain between him and the accused persons.
824. Perusal of the testimony of PW2 and PW3 who are the star witnesses of the present case creates a confusion over the identity of the accused Veer Kumar who is the owner of the said hotel. Both of them are referring to a person namely Kalu. They have not clearly stated as to whether the person Kalu and the accused Veer Kumar are one and same person. They have also not stated as to whether the person Kalu was the owner of the hotel. Both of them have primarily deposed against the accused Virender, the manager of the said hotel and there is nothing in their testimony which point out towards the culpability of accused Veer Kumar in the present case.
25. Moreover, it should be noted that testimony of PW4 who has been examined by the prosecution to prove the identity of accused Veer Kumar in fact weakens the case of prosecution. During his testimony, he had categorically stated that he gave the property at L30/365, Mahipal Pur, Red Light Chowk on rent to the accused Veer Kumar. He also deposed that he knew the accused Veer Kumar by that name only and not by any other name.
26. Remaining PWs are the police witnesses who were not the eyewitness of the incident. They did not specifically depose anything against the accused Veer Kumar except the fact that he was the owner of the said property and he was formally arrested in that capacity. They also did not specifically allege that the accused Veer Kumar was also known by another name Kalu. In fact, their testimonies do not even point out towards the active involvement of any person Kalu in the present case.
27. After examining the testimony of all PWs, now a question arises as to whether the accused Veer Kumar could be held liable for the offences under ITP Act on the ground of him being the owner of the property where the prostitution business was carried out.
928. Section 3 of the ITP Act provides for the punishment for keeping a brothel or allowing premises to be used as a brothel. It fixes criminal liability on the owner, manager or occupier of the premise which is used as brothel. Section 3 reads as under:
"Punishment for keeping a brothel or allowing premises to be used as a brothel.--
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who--
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
[(2A) For the purposes of subsection (2), it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,--
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof 10 have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.] (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of subsection (2) of any offence under that subsection in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction."
29. The essence of liability of these persons is the existence of knowledge. They cannot be held liable if they do not have knowledge about the premise being used as brothel. In the instant case, the prosecution did not bring anything on record to suggest that the accused Veer Kumar had knowledge about the prostitution business. Primarily the depositions of the PW2 and PW3 are against the accused Virender who was manager of the said hotel. Also, it has not been brought on record as to whether any report was published in the newspaper to the effect that the said premise was used as brothel so that a presumption of knowledge can be imputed on the owner.
30. Section 4 of the ITP Act provides for the punishment for living on the earnings of prostitution. It reads as under:
Punishment for living on the earnings of prostitution--
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of 20 [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both 21 [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].11
[(2) Where any person over the age of eighteen years is proved --
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub section (1).]
31. In the instant case, as discussed in the preceding paragraphs, the accused Veer Kumar cannot be said to be living on the earning of prostitution merely on the ground of being owner of the said premise. There is nothing on record to impute the knowledge of prostitution business on the part of accused Veer Kumar. Also, the prosecution has brought nothing on record to suggest that the accused Veer Kumar was living habitually in the company of prostitute or was a tout/pimp or exercised control or influence over the movement of persons involved in the prostitution business so that a presumption could be raised under this provision.
32. Section 5 of the ITP Act provides for the offence of procuring, inducing or taking person for the sake of prostitution. The essence of this offence is the procurement or inducement of any person to enter into the business of prostitution. In the instant case, the prosecution has not brought any evidence on record to suggest that the accused Veer Kumar was involved in the procurement or inducement of person for the sake of prostitution. He could not be held liable for this offence only because of the fact that he was the owner of the said premise.
33. Therefore, in view of the above discussions and findings, I am of the considered view that although there are grave suspicions against the accused Veer Kumar to have involved in the present case, however, the same could not shift the burden of proof from the prosecution to the accused. Prosecution has not been able 12 to prove the guilt of accused Veer Kumar beyond reasonable doubt. Hence, benefit of doubt has to be extended to the accused Veer Kumar.
34. Accused Veer Kumar stands acquitted of the offence u/s 3,4 & 5 of ITP Act.
Announced in the open court (Animesh Kumar)
on 18.03.2021 MM06, South East, New Delhi
It is certified that this judgment contains 13 pages and each page bears my signatures.
(Animesh Kumar) MM06, South East, New Delhi/18.03.2021 13