Delhi District Court
Sc No.553/16 State vs . Firoz Anssari & Ors. Page 1 Of 53 on 26 November, 2019
IN THE COURT OF MS MANJUSHA WADHWA
ADDITIONAL SESSIONS JUDGE-3 (SHAHDARA)
KARKARDOOMA COURTS, DELHI
SC No.553/2016
FIR No.31/13
Police Station - Anand Vihar Railway Station
Under Section - 363/365/370/392/34 IPC & 23 J.J. Act &
Section 24 of child Labour Act.
State
Versus
(1) Firoz Ansari @ Munna S/o Sh. Farooq Ansari
(2) Smt. Munkunwari Devi W/o Sh. Firoz Ansari
Both R/o Vill. Torpa Rashid Gali,
P.S. Torpa, District Khoonti,Jharkhand.
(3) Smt. Nirmala W/o Sh. Roshan Lal
R/o Vill. Saliya toli, P.S. Kurdeg
District Simdega, Jharkhand.
(4) Nitesh Singh S/o Sh. Deopal Singh
R/o Vill. Sukurhuttu,PS Lupunga Bero,
District Ranchi, Jharkhand.
Date of institution : 17.01.2014
Date of judgment reserved : 31.10.2019
Date of judgment : 26.11.2019
Decision : Acquittal
JUDGMENT
1. Police has filed the present charge-sheet against accused Firoz Ansari, Munkunwari Devi, Nirmala, Nitesh Singh and Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 1 of 53 Sh. B.N. Kapoor in case FIR No.31/2013, Police Station Anand Vihar Railway Station under Sections 363/365/370/379/411/427/342/34 IPC. Accused B.N. Kapoor was discharged vide order on charge dated 27.05.2015 passed by Ld. Predecessor of this court. At the outset, it is mentioned that the victims are mentioned as 'C' and 'T' in the charge as they were found to be minor. During the course of evidence, 'C' is found to be major as per ossification test but is referred as per her specification given in the charge as 'C' only.
2. Briefly stating, the case of the prosecution is that on 05.10.2013, Ms. Meena Kumari, complainant (PW3) visited Police Station Anand Vihar Railway Station and made a statement Ex.PW3/A stating therein that on 01.10.2013, her real sister T (aged about 16 years) and her cousin sister C (aged about 17 years) were coming to meet her in Delhi from Jharkhand on Jharkhand Swarn Jyanti Express and they were to reach Railway station Anand Vihar on 02.10.2013. the complainant had gone to Anand Vihar Railway Station to receive them. The complainant made a call to her sister on mobile no. 8252224645 but said number was switched off. After sometime, the complainant received a call from mobile no. 7763855084 and her cousin C informed that they had reached Ghaziabad and that they would reach Anand Vihar within 15-20 minutes. The complainant replied C that she has already reached at Railway Station Anand Vihar. The said train reached Anand Vihar Railway Station at 5.30 p.m., the complainant searched for her sisters in the train as well as on Railway Station but could not find them.
Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 2 of 533. The complainant received a call on 04.10.2013 on the landline number (25450593) of her employer B.S. Sethi from mobile no. 7763855084 and caller asked her to give her address so that both the girls could be dropped; the complainant had a talk with her sisters, one of them told her to come to take them, the complainant asked the address whereupon they told her to come at Jeevan Hospital and ask about complete address from the caller, but he did not provide the same and disconnected the phone. The complainant approached the PS Kirti Nagar and from there, she was taken to PS Anand Vihar Railway Station where she complained to have doubt that some person had seduced her sisters and taken them away with him.
4. On the basis of statement of the complainant, present FIR Ex.PW11/A was registered and investigation commenced. On 10.10.2013, IO received a telephonic call from secret informer stating that two girls kidnapped from Anand Vihar Railway station are lodged in house number 138, Bhagwan Nagar, Kilokari, Delhi. On pointing out by secret informer, accused Firoz @ Munna and Mankunwari @ Kiran were apprehended from third floor of the house. During interrogation, they disclosed that on 02.10.2013, accused Nitesh had brought both the victims to them for employing them as maid servants and that mobile phone of victims was stolen after they slept; they had changed name of victim C as Rupa Kerketa and name of T as Seema Kerketta and thereafter both the victims were taken to house of Nirmala at Sudarshan Park. Nirmala deployed T as maid servant and kept C in her placement agency.
Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 3 of 53Nirmala gave commission of Rs. 20,000/- to the Firoz and Munkunwari. Both the accused Firoz @ Munna and Mankunwari Devi were arrested and their personal search was conducted. In personal search, mobile phone of C was recovered and seized. Besides mobile, one filled and unfilled form were also recovered and seized. Victim C was recovered from the house of accused Nirmala, whereas victim T was recovered from the house of B.N.Kapoor (discharged) at the instance of accused Nirmala. Police had also recovered application forms in the name of Rupa and Seema Kerketa with the photographs of victims and commission slip receipt book (Sl. No. 1-50) including page no. 2 in the name of accused B.N.Kapoor vide which accused Nirmala had taken commission of Rs.30,000/- from B.N.Kapoor.
5. During the course of investigation, police obtained date of birth certificate of T from her school in which her date of birth has been given as 15.10.2001. C had not attended any school and her date of birth was assessed on the basis of Ossification test in which she has been opined to be 23 years of age. On receipt of secret information, accused Nitesh was also arrested on 11.12.2013; police recovered a mobile phone from him with 3 SIM cards bearing No. 7763855084, 8742916756 and 8252224645. From first SIM card, accused Nitish used to make call to the complainant and last SIM number was of victim C. Statement of witnesses were recorded and on completion of the investigation, chargesheet was filed in the court.
6. After complying with provisions of Section 207 Cr.P.C., Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 4 of 53 case was committed to court of Sessions, which in turn assigned the case to this court for trial in accordance with law.
7. After hearing counsel for the accused persons and Ld. Addl PP, accused Nitesh was charged for the offence's punishable u/s 365/370/374 IPC; u/s 23 of Juvenile Justice Act and Section 14 of the Child Labour Act, 1986 with co-accused Firoz, Nirmala and Munkunwari. Substantive charge was also framed against accused Nitesh under section 363 IPC.
8. Accused Firoz was charged for the offence's punishable u/s 365/370 r/w section 34 IPC ; u/s 23 of Juvenile Justice Act r/w section 34 IPC alongwith co-accused Nitesh. He was also charged for the offences punishable under section 374 IPC r/w section 34 IPC and Section 14 of the child Labour Act, 1986 with co-accused Nitesh, Munkunwari and Nirmala and substantive charge under Section 392 IPC was also framed against him.
9. Accused Munkunwari and Nirmala were charged u/s 365/370 IPC r/w section 34 IPC and Section 23 of Juvenile Justice Act read with Section 34 IPC with co-accused Nitesh and under section 374 IPC r/w Section 34 IPC; under Section 14 of the child Labour Act, 1986 with co-accused Nitesh and Firoz. All the accused persons pleaded not guilty and claimed trial.
10. In order to prove its case, prosecution has examined as many as 20 witnesses.
Formal evidence:
11. PW4 Sh. Surjeet Bhalla testified that in the year 2013, accused Nirmala was his tenant on second floor in his house at Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 5 of 53 Sudarshan Park, Moti Nagar, New Delhi and she stayed there for 5-6 months and rent agreement Ex.PW4/B was executed in that regard between wife of this witness and accused Nirmala, which was seized vide memo Ex.PW4/A.
12. PW6 Sh. Om Prakash Saini is owner of House No. 138, Bhagwan Nagar. He testified that in the year 2013, he along with his family was residing on first floor of said house and there were tenants on other floors. It was a four storeyed house with a basement. He stated that police had made inquiry from him in this case and had taken copy of police verification form Ex.PW6/A along with voter I card and Aadhar card of one tenant. Seizure memo of police verification form was identified by the witness as Ex PW-6/A. though he could not tell name of said tenant, but pointed out towards accused Munkunwari, present in the court. In cross examination, he deposed that Munkunwari was residing on the second floor and she resided for 5-6 months in the year 2013.
13. PW7 Sh. Rakesh deposed that in the year 2011, one lady Kiran was working with him as a labour and he had obtained SIM no. 9899610757 of Vodafone issued in his name for that lady in the year 2011. Said lady worked with him for 7-8 months and thereafter she left the work. Later on, PW7 came to know that she had opened some placement agency. He has identified his customer application as Mark PW-7/A along with his Voter I card as Ex.PW7/A. this witness identified accused Munkunwari as Kiran and clarified that she is known by these two names. In his cross-examination, he stated that he had not given any document to police to show that Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 6 of 53 Kiran worked with him at any point of time. He testified that he had talking terms with Kiran and she had informed him that she was running a placement agency at Ashram.
Medical Evidence & Evidence as to age of victims
14. PW5 Dr. Sachin, Medical Officer from SDN Hospital, Delhi had medically examined c on 10.02.2013 vide MLC Ex.PW5/A and t vide MLC Ex.PW5/B. He did not find any external fresh injury on the victims. Thereafter, both the patients were referred to Sr. Gynae for detailed examination, management and expert opinion. It is mentioned on the MLC Ex.PW5/B of T that she refused for internal examination.
15. PW9 Dr. Vinay Kumar Singh, Specialist (Forensic Medicine), Aruna Asaf Ali Hospital, Delhi deposed that on 23.10.2013, C was produced before the Medical Board comprising of Dr. Rachna Jain, Dr. Kavita and he was head of the Board. The Board examined X-ray reports and also physically examined the patient C. Said patient was also subjected to dental examination and on cumulative evaluation, age of C was opined to be 23 years and above on the date of examination. Report of the Board has been proved as Ex.PW9/A. this witness was not cross examined by the opposite side.
16. PW14 Ct. Nemi Prasad on direction of IO went to village Limda, PS Karra, District Khuti, Jharkhand where he met Incharge of school (Mr. Meghnath) and obtained date of birth certificate of T as Mark PW-14/A. Nothing material was elicited in his cross Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 7 of 53 examination.
17. PW17 Sh. Meghnath Baraik, Headmaster of Government Upgrade Middle School Malgo, PS Karra, District Khuti, Jharkhand testified that T was admitted in the said school in class III on 15.05.2009 and her date of birth was 15.10.2001. He has proved photocopy of relevant page of admission register as Ex.PW17/A. He proved the issuance of age certificate of victim T ( Mark PW-14/A) by him as Ex.PW17/B. On 18.01.2013, he had also issued School transfer certificate of T as Ex.PW17/c. In his cross-examination, this witness stated that proof of date of birth of aforesaid student is not available in the record of school. He did not know from which school, the student had passed class I and II.
Evidence of Material Police Witnesses
18. PW8 HC Ram Kumar and PW10 WHC Ompati had joined investigation of the present case with IO SI Joy Kutti (PW19). PW19 SI Joy Kutti deposed that on 05.10.2013 at about 2.00 p.m., one Meena Kumari came to PS Anand Vihar Railway Station and gave statement regarding missing and kidnapping of her two sisters T and C. He recorded her detailed statement Ex.PW3/A, made endorsement thereon and prepared Rukka Ex.PW19/A and handed over the same to PW11 Hc Devender Kumar, who was working as duty officer on 05.10.2013 at PS Anand Vihar Railway Station. PW11 recorded FIR and proved on record the computer printout of the FIR as Ex.PW11/A; PW11 made endorsement Ex.PW11/B on the Rukka. After registration of the FIR, PW11 Hc Devender Kumar Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 8 of 53 made DD entry no. 10A Ex.PW11/c. IO/PW-19 SI Joy Kutti further deposed that he applied for call details record (CDR) of mobile nos. 8252224645 and 7763855084, which were disclosed by complainant Meena Kumari and found mobile no. 8252224645 was registered in the name of father of C, while mobile number 7763855084 was registered in the name of accused Nitesh, who had accompanied the two girls in the train. On further analysis of the CDRs, it was revealed that from the number of accused Nitesh, calls were made on Delhi number i.e. 9899630757 and on obtaining CDR and CAF of this number, it was found that this number was registered in the name of one Rakesh Kumar (PW7) with whom accused Munkunwari had worked and on being contacted, Rakesh Kumar confirmed the said fact. IO/PW-19 SI Joy Kutti further deposed that on analysis of CDRs, the location of abovesaid 3 numbers on 02.10.2013 and 03.10.2013 was of the area of Maharani Bagh. PW-19 employed secret informers to trace out address of Kiran in that area.
19. On 10.10.2013, IO/PW-19 SI Joy Kutti received a secret information that both the kidnapped girls were lodged in House No. 138, Bhagwan Nagar, Kilokari, Delhi. IO/PW-19 SI Joy Kutti reached Ashram, Delhi where secret informer joined him and they proceeded to Jeevan Nursing Home at Bhagwan Nagar, where HC Ram Kumar (PW8) and W(Ct.) Ompati (PW10) met the IO and they told that they were sent by the SHO to trace address of Kiran and they were joined in the investigation.
20. Thereafter, on raid being conducted by IO/PW-19 SI Joy Kutti at House no. 138, III floor, Bhagrwan Nagar, accused Firoz Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 9 of 53 Anasari and Mankunwari @ Kiran met him there. Both the accused told that accused Nitesh had brought both the girls there on 02.10.2013 and stated that they were to be employed as maid servants; both the girls had refused for work and they were lodged in a room and their mobile phone was snatched, accused Firoz Ansari produced one mobile phone from almirah of his room and handed over the same to this witness and stated that SIM of said mobile had been destroyed. It was of Nokia make and same was seized vide memo Ex.PW8/A; accused Firoz Ansari was arrested vide memo Ex.PW8/B; accused Munkunwari was arrested vide memo Ex.PW8/c; personal search of accused Firoz Ansari was conducted vide memo Ex.PW8/D and that of accused Munkunwari was conducted vide memo Ex.PW8/E; one filled up form Ex.PW8/F in the name of Manisha Tirki and one unfilled form Exd.PW8/G of 'Munna Sinkku Kiran Devi Service Centre' were recovered from search of the house and same were seized vide memo Ex.PW19/B; disclosure statements of accused Firoz Ansari and Munkunwari were recorded vide memos Ex.PW8/H and Ex.PW8/I respectively. Both these accused stated that they had handed over said girls with different names to accused Nirmala at Moti Nagar.
21. Both the above accused led the IO/PW-19 SI Joy Kutti to H.No. F-129, Sudarshan Park Moti Nagar and C was recovered from II floor of said house and she was given name as Seema Kerketta. IO recovered two forms in the name of Roopa Kerketta and Seema Kerketta from said house and on matching photographs, IO/PW-19 SI Joy Kutti found that Roopa Kerketta was actually T, whereas Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 10 of 53 Seema Kerketta was C. Accused Nirmala was also present there and she was identified by accused Firoz and Kiran. Recovery Memo of C @ Seema, was prepared as Ex PW-8/P. Filled form of Jai Maria Enterprises in respect of Roopa Kerketta Ex.PW8/K and of Seema Kerketta Ex.PW8/L and one commission slip receipt book Ex.PW8/Q (not on record) were seized vide memo Ex.PW8/J. Receipt at Sl. no.2 was given to one Mr. B.N. Kapoor against payment of Rs.30,000/-. Accused Nirmala was arrested vide memo Ex.PW8/M and her personal search was conducted vide memo Ex.PW8/N and her disclosure statement was recorded as Ex.PW8/O.
22. Accused Nirmala led the police party to House No. F-18, Bali Nagar, Moti Nagar from where t was recovered and recovery memo was prepared in that regard as Ex.PW10/A. IO moved application for recording statement of both the girls u/s 164 cr.P.c. which is Ex. PW-12/A. Pursuant thereto, statement of T under Section 164 cr.P.c. was recorded as Ex.PW 2/A and that of C was recorded as Ex.PW1/D2 by PW12, the Ld. Metropolitan Magistrate.
23. In his cross-examination, PW19 stated that distance of House No. 138 and Jeevan Nursing Home is 1/2 Km and that it was residential area; he did not visit I and II floor of the said house nor did he make inquiry from residents of those floors. He did not disclose the purpose of his visit to landlord of accused Nirmala. He found 2-3 ladies and 2 gents there but they refused to disclose their names and he did not record their statements. He did not call the landlord after he arrested Nirmala. He found the document mentioned as Ex PW8/Q i.e. a receipt book containing commission Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 11 of 53 slips in the name of Jay Maria Enterprises in the office of Nirmala. He made no enquiries from the person namely Pawan Toppo as mentioned on slip bearing No. 002 in the receipt book. He further stated that all the 3 floors at H.No. 138 were occupied by inhabitants and he stayed there for 3 ½ hours. He did not call any person from neighborhood to join the investigation. He did not call any public persons from the neighbourhood or any resident or occupant of the house from which accused Munkunwari was arrested. He did not collect any document to prove the occupancy of Firoz Ansari in that house. He denied the suggestion that accused Firoz was not occupant of that house or he did not visit third floor of that house. He did not make any inquiry with regard to Manisha tirki.
24. PW18 SI Suresh Chand had arrested accused Nitesh on 11.12.2013 as further investigation was marked to him for SI Joy Kutti was on leave. He testified that on 11.12.2013, he along with HC Devender (PW11) were on patrolling duty. Secret informer met HC Devender in the main hall of Anand Vihar Railway Station and informed that accused Nitesh was about to leave for Jharkhand and was present near Tikona Park within campus of the Railway Station. They went there and arrested accused Nitesh vide memo Ex.PW11/D. His personal search was conducted vide memo Ex PW- 11/E. From his personal search, one black colour Nokia Mobile phone having Sim card of Airtel with one extra cover put on the said mobile set having two extra Sims of Idea and Reliance, were recovered. Accused Nitesh disclosed that Sim of Reliance belonged to the victim. Mobile phone and all the Sim cards were seized vide Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 12 of 53 seizure memo Ex.PW11/G. His statement was recorded as Ex PW- 11/F. This witness has identified mobile set of accused Nitesh as Ex.PW18/Article1, Sim card of Airtel company as Ex.PW18/Article-2, Sim card of Idea as Ex.PW18/Article-3 and that of Reliance company as Ex.PW18/Article-4.
25. In his cross-examination, he stated that they were in uniform and on seeing them, accused Nitesh did not try to flee away. He did not prepare any Site Plan of that place. He further stated that no pubic witness became ready to join the proceedings.
26. PW15 ct. Satyajit Singh had joined investigation with ASI Suresh chand (PW18) on 25.12.2013 and reached at H. No. F-29, Sudershan Park and IO/ ASI Suresh Chand seized copy of the rent agreement (Ex PW-4/B) entered into between accused Nirmala and Kamlesh, wife of Surjeet Bhalla vide seizure memo Ex.PW15/A. Evidence of call details
27. PW13 Sh. Israr Babu, Alternate Nodal Officer, Vodafone has produced and proved customer application form of Rakesh Sharma in respect of mobile no. 9899610757 as Ex.PW13/B; call details for the period from 25.09.2013 to 11.10.2013 as Ex.PW13/A; its location chart as Ex.PW13/C and certificate given under Section 65B of Evidence Act as Ex.PW13/D.
28. PW16 Sh. Yogesh tripathi, Alternate Nodal Officer, Reliance communication has produced and proved customer application form of Sukra Oraon in respect of mobile no. 8252224645, as Ex.PW16/B and copy of Election I card as Mark Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 13 of 53 PW-16/A; call details for the period from 25.09.2013 to 11.10.2013 as Ex.PW16/A and certificate given under Section 65B of Evidence Act as Ex.PW16/C.
29. PW20 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel has produced and proved customer application form of accused Nitesh Singh in respect of mobile no. 7763855084 as Ex.PW20/A, copy of Aadhar card of the accused Nitesh Singh as Ex.PW20/B; call details for the period from 25.09.2013 to 11.10.2013 as Ex.PW20/C and certificate under Section 65B of Evidence Act as Ex.PW20/D. Evidence of complainant & both the victims
30. PW-3 Ms. Meena Kumari is the complainant of the present case. She has testified that she has been working as house maid in Kirti Nagar, Delhi for the last 7 years. T is her real sister, whereas C is her cousin (daughter of her mausi) and both of them had been residing at their native place i.e. village Limbra, and village Tangra Toli, Jharkhand respectively.
31. She testified that on 01.10.2013, both T and C had left Jharkhand for Delhi in Jharkhand Swarn Jayanti Express to meet her. It was decided between this witness, T and C that this witness would meet them at Anand Vihar Railway Station to take them to her house. After boarding the train, T and C had made a call to PW3 informing that battery of their phone was down and it could be switched off. this witness had reached the railway station on 02.10.2013. About 10-15 minutes prior to reaching of the train at Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 14 of 53 Anand Vihar, PW3 received a call from an unknown number and said call was made by C informing this witness that she was using phone of a co-passenger. this witness had also told C that she had reached Anand Vihar Railway Station at 3.00-3.30 p.m. and was present there. The train reached Anand Vihar Railway Station at 5.30 p.m., PW3 searched for t and c till 8.00 p.m. but could not find them and thereafter PW3 returned to her house. Next morning, PW3 again went to the railway station in search of victims but in vain. PW3 had informed at her native place that victims had not reached Delhi and that they were not traceable. PW3 kept calling C at her number but it was found switched off.
32. In the morning of 04.10.2013, PW3 received a call from the number which victims had used for calling her on 02.10.2013 before arrival of their train at Anand Vihar Railway Station and said call was first picked up by Mr. Sethi, employer of PW3 and he had a talk with the caller, who did not tell his name. Said caller informed that victims were with him and he asked the address of PW3 stating that he would take both the girls to the said address; PW3 told her address to the caller; when PW3 asked address of the caller, he did not respond. PW3 had talked with C who asked the witness to come to Jeevan Hospital. The witness asked the address but C could not tell the complete address and thereafter the call was disconnected. PW3 went to Jeevan Hospital on the same day, searched for both the girls at Jeevan Hospital and nearby places but could not find them and thereafter she returned to her house.
33. On the next day, PW3 went to PS Anand Vihar Railway Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 15 of 53 Station and narrated the incident to Police; police recorded her statement Ex.PW3/A and obtained her signatures. This witness testified that at the time of incident, T was 13 years old and C was 14 years old.
34. PW3 further deposed that after 3-4 days, she received a telephonic call from PS Anand Vihar Railway Station and was informed about recovery of T and C; she visited the PS and met both the girls. Police had informed that both the girls would be kept at a different place for next 2-3 days. PW3 came back to her house. After 2 days, victims were allowed to go along with Sushil, brother of PW3. She further testified that victims did not tell her the name of persons, who had kept them, nor did PW3 meet those persons.
35. In her cross-examination on behalf of accused Firoz and Nitesh, this witness stated that she had talk with T and C with her mobile no. 9953060811. She further stated that parents of C had told her on the day of departure that T and C were coming to her. the victims T and C had informed her on 02.10.2013 that they had reached Ghaziabad. This witness stated that she had made a call on the number from which victims had called her 10-15 minutes prior to reaching Anand Vihar Railway Station, it was picked up once, but no talk could be held as voice was not audible and thereafter PW3 again tried to call at that number, but same was found switched off. She further stated that she had made a call at no. 100 from her house on 03.10.2013 and that on that very day, she had made a complaint at PS Kirti Nagar. She clarified that her complaint was recorded at PS Kirti Nagar but she had not given any written Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 16 of 53 complaint. PW3 further stated that she came to know about age of T from a certificate which was issued from the school attended by T and about age of C from her parents. When she had given statement at PS Anand Vihar Railway Station, she did not tell age of T and C as 13 and 14 years. She has denied the suggestion that she did not visit Anand Vihar Railway Station on 02.10.2013 or 03.10.2013 or that no call was received by her at the landline number of Mr. Sethi on 04.10.2013 or that both the girls were above 18 years of age in the year 2013.
36. PW1 C deposed that she did not know anyone with the name of Krishna Kirketta. She knows Meena Kumari, who is her sister-in-law (bhabhi), wife of her cousin Sushil and that she was residing at Kirti Nagar, Delhi for long time.
37. On 01.10.2013, she along with T boarded Swarn Jayanti Express from Hatia, Jharkhand to come to Delhi to meet her sister- in-law Meena Kumari. On the next day, they deboarded the train at Anand Vihar Railway Station at about 5.00 p.m. Accused Nitesh Kumar had also come in the train with them, who became friendly; accused told them that he would take them to the place of their bhabhi Meena and he had also taken number of Meena from them. Accused Nitesh took them to Jeevan Hospital stating that Meena would meet them at that place but she did not meet there. thereafter, accused Nitesh told that it was already night and that he would take them to their Bhabhi next morning. Accused Nitesh took them to a house of his so-called sister and said place was near Jeevan Hospital. They had taken meal and slept. There were 3 Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 17 of 53 ladies and 3 gents in the said house. Next morning, accused Nitesh switched off mobile phone (make Nokia) of this witness and kept the same with him. When PW1 asked accused Nitesh to take them to house of their Bhabhi Meena, he told that she had to work at Kothi and when this witness resisted, accused Nitesh threatened to push her down from the roof of building and that he would hand her over to the Police. Accused Nitesh had also slapped T, who had also resisted to work. After 2-3 days, T was taken to another place for work and this witness was also taken by a different person to a house for work and when she did not agree to work, the same person took her back to the same house after 2-3 hours. She was kept in that house for 10 days. She had asked accused Nitesh to let her go to her Bhabhi's house but he did not allow. She had also asked inmates of the house to let her go, but they too did not allow and they kept her in a locked room.
38. PW1 deposed that Meena, her bhabhi, came after about 10 days along with police officials; police had apprehended 2-3 persons and accused Nitesh was also apprehended later on. Police had taken her to Anand Vihar Railway Station and kept her at a separate place; police had taken her to court where her statement was recorded by a lady Judge. This witness has identified her mobile phone which was kept in unsealed envelop as Ex.PW1/Article-1. Accused Nitesh was produced through video conferencing and this witness on seeing his face on TV monitor promptly stated that he was Nitesh, who had taken her and T to that place. This witness has also identified accused Munkunwari Devi Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 18 of 53 stating that she was kept in her house. She could not identify accused Nirmala stating that she did not know her and had not seen her. She also could not identify accused Firoz by saying that she did not know him.
39. PW1 further stated that when she was kept in a house, accused Nitesh and some other person had obtained her thumb impression on a form with her photograph. She further deposed that she had received a call from her Bhabhi Meena during her train journey and that accused Nitesh had also made a call to her Bhabhi Meena after getting the phone number from PW1 because her phone had network problem at that time. Bhabhi of PW1 had asked her to remain at Anand Vihar Railway Station.
40. This witness was put certain leading questions by Ld. Addl PP as she resiled from her previous statement, same was allowed. Upon being suggested by Ld. Addl PP, PW1 admitted that one of the persons residing in the house of sister of accused Nitesh was Firoz. Attention of this witness was drawn towards accused Firoz on camera with the suggestion that he is the same Firoz who was residing in that house and only then this witness admitted that he is same Firoz. In response to court's query, this witness stated that she had forgotten his name and face and that is why she could not identify him earlier. This witness admitted that she was kept in the house of a different lady and said lady had sent her to a house (kothi) to work and when she refused, owner of that house sent her back to said lady. She admitted that police had recovered her from the house of that lady. But she denied knowledge whether name of Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 19 of 53 said lady was Nirmala. This witness was suggested and shown face of accused Nirmala on camera by stating that she was that lady, who had sent her for work and from whose custody she was recovered, but this witness clearly refused to identify accused Nirmala being that lady. She has denied that she has been won over by over and that is why she had deliberately refused to identify accused Nirmala.
41. In her cross-examination on behalf of accused persons, this witness stated that she never worked in Punjab. She stated that she had worked in Haryana around 2-3 years back prior to coming to meet Bhabhi. She denied that she was not coming to Delhi to meet her bhabhi Meena, rather she was coming in search of job. She further stated that she did not know Nitesh before meeting him in the train; he had told his name in Delhi the next day after keeping her at the house of his sister; she came to know name of accused Nitesh from the persons, who were residing in the house where she was kept as they used to call his name as Nitesh. She had told name of accused Nitesh to the Doctor where she was taken for checkup. Nitesh had stayed in the house for 2-3 days and thereafter he left for his native place. There were 3-4 floors in the house and she was kept on third floor. She has admitted that on the next morning after reaching Delhi, she had talked with Bhabhi from the mobile phone of Nitesh and Nitesh did not ask her bhabhi at that time to take her along with her. She volunteered that Nitesh had told her to have breakfast and thereafter he would take them to place of her bhabhi but he locked her in a room. There were 2 rooms, kitchen and bathroom on the third floor. This witness, T and 2 others were kept Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 20 of 53 in one room and remaining persons used to stay in other room. She admitted that other persons residing in that house did not beat, abuse or threaten her. She added that only Nitesh had slapped T. She further stated that there was a balcony beside the room, where she used to dry her clothes. She did not make any hue and cry from that balcony to inform public persons about her wrongful confinement in that house. She was taken to a house to work in the morning time in an auto. She did not tell any person on the way that she was forcibly being taken to work. In response to court's query, this witness stated that accused Firoz used to put them on job. She had refused for job but he did not listen to her. The lady whom she had identified used to say that she should work, otherwise she would not allow her to meet her Bhabhi.
42. Mutatis mutandis PW-2 T stated that PW-1 is her cousin and Meena Kumari is her sister in law being engaged to her elder brother Sushil. On 01.10.2013, she was coming to Delhi with PW1 to meet Meena Kumari. One boy Nitesh became friendly to them in the train. After deboarding the train at Anand Vihar Railway Station, they could not talk to their bhabhi Meena as battery of their mobile phone had discharged. She also deposed that Nitesh had taken them to Jeevan Hospital on the pretext that Meena would meet them at that place. From Jeevan Hospital, he had taken them to her sister house as Bhabhi Meena was not there, stating that next morning, he would take them to place of Bhabhi Meena. Next morning, Nitesh assured them to take to Bhabhi Meena but he locked them in a room. She deposed that after 2-3 days, Nitesh had Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 21 of 53 taken them to the house of some other person to work as maid servant. The witness did not want to work and asked him to leave them but accused Nitesh compelled them to work. She had worked for 5-6 days in the house of a person but did not know his name and thereafter police came and took her away. She also deposed that she was taken to the other house by another boy whose name she did not know. She was never physically assaulted by Nitesh or another person. Nitesh had only threatened her to work. this witness has identified her signatures on statement recorded under Section 164 cr.P.c. and same is Ex.PW2/A. She has clearly identified Nitesh produced through Video conferencing. She could not identify remaining 3 accused persons, namely, Firoz, Munkunwari Devi and Nirmala stating that she did not know them.
43. This witness was also declared hostile by the prosecution and was cross-examined by Ld. Addl PP for the State. She stated that after boarding the train, she had a talk with Bhabhi on mobile phone of C. Later on, C had a talk with Bhabhi. She had not noticed whether C had talked with Bhabhi with her phone or with phone of Nitesh. She stated that when they reached near Ghaziabad, they had talked to Bhabhi with mobile phone of C. She could not say whether they had talked with Bhabhi at around Ghaziabad with mobile phone of Nitesh as battery of mobile phone of C was discharged. She did not remember if after reaching Anand Vihar, they asked Nitesh to make a call to her Bhabhi with his mobile phone. She denied the suggestion that Nitesh had slapped her at the house of his sister. She admitted the suggestion that Nitesh had Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 22 of 53 snatched mobile phone from C. This witness denied a suggestion that accused Firoz and Munkunwari had taken her to the house of accused Nirmala for work and Nirmala had sent her to the house of another person to work. She has denied that she has deliberately refused to identify Firoz, Munkunwari and Nirmala as those persons who were instrumental in engaging her for work at the house of another person as she has been won over by them.
44. In her cross-examination, this witness is specific that C is year elder to her. She could not recall if she had told doctor her age as 18 years. She denied that no one had come to receive them at Anand Vihar Railway Station or that they had requested Nitesh to take them. She was taken in TSR to a Kothi and it would have taken around an hour. She had told an old man residing in that house that she did not want to work and he had told that the person who had brought her would come to take money and this witness asked the old man not to pay money to anyone. She did not make any noise while going in an auto that she was being forcibly taken for work.
Arguments addressed by Sh. A.K. Bali, Sh. Sundeshwar Lal and Sh. Gaurav Vashisht Amicus curiae for the accused persons
45. Ld. Counsels for the accused persons submitted that the victim T and C are stated to be aged 16 and 17 years respectively but they are found to be major. It is submitted that as per ossification test, C has been opined to be 23 years of age. Regarding victim T, it is submitted that she stated in her cross-examination that C is one year elder to her, meaning thereby, T was 22 years old. It is Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 23 of 53 submitted that testimony of PW-17 Sh. Meghnath Baraik does not go to conclusively prove that T was minor as reflected in age certificate issued by PW17 Sh. Meghnath Baraik as this witness deposed that there was no proof available in record in support of date of birth of the victim T. It is further contended that in photographs affixed on the forms of placement agency, both the victims appear to be major and the aforesaid circumstances cumulatively go to prove that both the victims were major on the date of alleged commission of offence.
46. It is also contention of ld. counsel for the accused persons that the accused MunKunwari is not married to accused Firoz as they were not staying together; PW6 Om Prakash Saini stated that MunKunwari was staying on second floor and that in the Aadhar card of the accused MunKunwari, her husband name is written as Raja Mehto and same is the position in the election I Card of accused MunKunwari as well as tenant verification form. He has also referred to the testimony of defence witness DW-2 Prehlad in this regard.
47. It is further contended that as per the case of prosecution, Munkunwari took the police to the house of Nirmala to recover C, however, the same is doubtful as the recovery memo is not signed by accused MunKunwari. The seizure memo of mobile phone of C recovered from the accused Firoz Ansari does not bear the signature of the accused MunKunwari and it reflects the place of recovery as 4th floor. It is further contended that PW2 has not identified the accused MunKunwari, Nirmala and Firoz. It is also his contention that the witness T has denied the suggestion given by Ld. Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 24 of 53 APP for State that the accused MunKunwari and Firoz were residing in the same house, who had taken her to the place of another lady Nirmala who had sent her to house of another person to work.
48. It is further submitted that Omprakash, landlord has not been joined at the time of arrest of accused MunKunwari. Even the landlord Om Prakash was not informed about the arrest of accused Munkunwari and Firoz from his house. It is also his contention that arrest memo and search memo do not bear the date which cast doubt about the arrest of accused Munkunwari from the house. It is also his contention that accused Nirmala was arrested at the instance of accused Firoz and MunKunwari but the documents of arrest and pointing out memo Ex. PW-8/P do not bear the signature of either of accused Firoz or MunKunwari.
49. It is also submitted that mobile phone recovered from the accused Firoz was not sealed and therefore recovery of mobile phone is doubtful. It is further submitted that seizure memo of mobile phone Ex. PW-8/A shows the recovery of mobile phone from the almirah kept at 4th floor of H.No.138, but no evidence has been led by prosecution as to how the accused Firoz Ansari and Mankunwari were in possession of said floor. It is also submitted that the seizure memo of mobile phone does not bear the signature of accused MunKunwari as witness. It is also contended that site plan of recovery of mobile phone was not prepared. Similar is the contention with respect to documents Ex. PW-8/F (form in name of Manisha Tirki) and Ex. PW-8/G(Unfilled form). It is also contended that seizure memo Ex. PW-19/B of the said forms should have been Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 25 of 53 signed by accused MunKunwari while same is only signed by accused Firoz Ansari, other witnesses mainly Omprakash Saini and neighbours have not been joined as witness.
50. It is also contended that IO has not done any investigation on the seized forms, Ex. PW-8/F and Ex. PW-8/G and also not cited Manish Tirki as a witness. Police has also not investigated that any such agency was being run by accused persons. It is also his contention that PW-8 HC Ram Kumar in his examination-in-chief recorded on 15.01.2016 has stated in his examination in chief that the aforesaid forms i.e. Ex. PW-8/F and Ex. PW-8/G were seized from 3rd floor of H.No. 138. Attention was also drawn to the testimony of PW-10 W/HC Ompati, who has stated during cross-examination that Kiran was arrested from ground floor and she feigned ignorance about the place of arrest of accused Firoz from the house.
51. It is also submitted that the victims were not minor and thus offence of kidnapping is not made out against the accused persons. It is further submitted that it is not a case of forced labour, which is apparent from the CDR as the victims were regularly talking to complainant Meena Bhabhi.
Arguments on behalf of Sh. Vikas Kumar,Addl PP for the State
52. Ld. Addl PP submitted that both the victims (PW-1 C and PW-2 T) have specifically stated the role of accused persons in the commission of offence. It is his contention that the testimony of prosecution witnesses is coherent, which proves the commission of Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 26 of 53 offences by the accused persons. He further submitted that T is proved to be minor as birth certificate issued by school and proved by PW-17 Sh. Meghnath Baraik.
53. The aforesaid rival contentions of the parties shall be dealt with hereinafter.
(I) Age of both the victims
54. It is submitted that the victim T and C are stated to be 16 and 17 years old respectively but they are found to be major. Reliance was placed upon the opinion of medical Board, Ex PW-9/A as per which C is aged about 23 years and above and MLC of victim T where her age is mentioned as 18 years. On the other side, it is submitted on behalf of State that the testimony of PW-17 Sh. Meghnath Baraik proves that the victim T was less than 18 years.
55. Since C had not attended any school, her date of birth was assessed on the basis of Ossification test report, Ex PW-9/A as per which she has been opined to be 23 years of age and above. To prove the Ossification test report, prosecution has examined Dr Vinay Kumar Singh, Specialist Forensic Medicine, Aruna Asaf Ali Government Hospital, Delhi as PW-9.
56. In order to consider the rival contentions of the parties, it is apt to consider the testimony of witnesses. PW9 Dr. Vinay Kumar Singh, deposed that on 23.10.2013, C was produced before the Medical Board comprising of Dr. Rachna Jain, Dr. Kavita and he was head of the Board. The Board examined X-ray reports and also physically examined the patient C and on cumulative evaluation, it Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 27 of 53 was opined that age of C was 23 years and above on the date of examination. Report of the Board has been proved as Ex.PW9/A. From the report of the board, it is apparent that C was aged about 23 years and above as on 23th October 2013.
57. Coming to victim T, prosecution has examined PW17 Sh. Meghnath Baraik, Headmaster of Government Upgrade Middle School Malgo, PS Karra, District Khuti, Jharkhand. He has testified that T was admitted in the said school in class III on 15.05.2009 and her date of birth was 15.10.2001. He has proved photocopy of relevant page of admission register as Ex.PW17/A. He deposed that he issued age certificate of T as Ex.PW17/B. On 18.01.2013, he had also issued School Transfer Certificate of T, which is Ex.PW17/C. In his cross-examination, this witness stated that proof of date of birth of aforesaid student is not available in the record of school, if furnished at the time of her admission. He did not know from which school, the student had passed class I and II.
58. In order to assess the age of victim, it is apt to reproduce to section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, which read as under:-
"Presumption and determination of age.
1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 28 of 53 and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
59. Testimony of PW-17 coupled with photocopy of relevant Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 29 of 53 page of admission register, Ex.PW17/A and school leaving certificate of T, Ex.PW17/B shows her date of birth as 15.10.2001, meaning thereby, T was minor on the date of incident i.e. 02.10.2013.
60. The division bench of Hon'ble High Court of Delhi in W.P.(CRL) 2558/2019 titled as Asha Rathore Vs Commissioner of Police and ors decided on 30.09.2019 has held that in view of Section 94 of the Act, 2015, this Court is of the opinion that the birth certificate issued by the School has to be given precedence. It is only in the absence of a certificate from school or a matriculation certificate that a birth certificate given by a corporation or a municipal authority can be relied upon.
61. Coming to the contention of ld. Counsels for the accused that the date of birth certificate issued by PW-17 cannot be relied upon as the said school was not having any proof of date of birth of victim from first attended school. In this regard, suffice is to state that the Juvenile Justice (Care and Protection of Children) Act of 2000 has been repealed by section 111 of the Juvenile Justice (Care and Protection of Children) Act 2015. The Act of 2015 came into force on 15 January 2016. The requirement of first attended school as provided under Section 12 in The Juvenile Justice (Care and Protection of Children) Rules, 2007 has been done away with by the Act of 2015. Even otherwise, no question was put to the victim about her first attended school. Notwithstanding that PW-2 T in her cross-examination dated 01.09.2015 testified that C is around a year elder to her, oral testimony of the victim has no significance. Hence, prosecution has been successful in establishing that victim T was Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 30 of 53 minor and C was major as per ossification test report proved on record.
II IDENTIFICATION OF ACCUSED PERSONS.
62. PW-1 C identified Nitesh and Munkunwari in her examination in chief. After seeing Nitesh in camera, she promptly replied that he is the one who had taken her and T to that place. She did not identify Firoz in her examination in chief by stating that she does not know him. But, upon being suggested by ld Addl PP for State by showing Firoz again in camera, the witness admitted that he is the same Firoz, who was residing in the house. After seeing Munkunwari in camera, PW-1 stated that she was kept in her house. However, witness PW-1 did not recognize accused Nirmala by stating that she did not know her and had not seen her.
63. PW-2 T also recognized Nitesh on camera as the same person who had taken her and C to that place from station. However, she did not recognize accused Firoz, Nirmala and Munkunwari by stating that she did not know them. Since the witness resiled from her statement, she was cross examined by Ld. Addl. PP for the State. Even she denied the suggestion put by ld. Addl. PP that she had deliberately refused to identify Firoz, Munkumari and Nirmala as she has been won over by them.
64. Thus, accused Nirmala was not identified by either PW- 1 or PW-2. Accused Munkunwari was identified by PW-1. Accused Firoz was not identified by PW-1 in the first instance and she identified him only when suggestion was given to her by Ld. Addl PP Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 31 of 53 that he is the same Firoz who was residing in the house. It was accused Nitesh, who was identified by PW-1 and PW-2.
65. Insofar as accused Firoz is concerned, his identification by PW-1 only after being suggested by Ld. Addl. PP, has no significance. In addition, victim T has also not identified him. The victim T has even not identified accused Nirmala and Munkunwari. III Improvement in Testimony of Star Witnesses/victims and Complainant Bhabhi Meena Kumari
66. In examination in chief, PW-3 reiterated the contents of her complaint with some additions which are narrated hereinafter. In complaint, she did not state that after boarding the train, T and C had made a call to her informing that battery of their phone was down and it could be switched off. She also did not state in complaint that on 03.10.2013 morning, she again went to the railway station in search of T and C but in vain. She further did not state in complaint that she had informed at her native place that T and C had not reached her house and that they were not traceable and she kept calling C at her number but it was found switched off.
67. On the other side, PW-1 C did not depose in the first instance about making any phone call on 02.10.2013 to PW-3 Meena from the mobile phone of Nitesh, which she admitted upon being suggested by ld. Addl PP. She also did not depose in the first instance that on the next morning after reaching Delhi, she had talked with Bhabhi from the mobile phone of Nitesh, which she admitted in cross examination. While in statement under section 164 CrPC., victim C did not state about talking to her Bhabhi Meena on Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 32 of 53 01.10.2013 and on 02.10.2013 either by her mobile phone or from the mobile phone of Nitesh. She also did not state about any conversation with her Bhabhi Meena on 04.10.2013. She only stated about talking to her Bhabhi Meena on 03.10.2013 in the morning when her mobile phone was snatched.
68. Coming to the testimony of PW-2, she denied having any conversation with accused Nitesh on the way. She denied to have knowledge about any talk between C and accused Nitesh. According to PW-2, due to discharge of battery, they could not talk to their Bhabhi Meena after they deboarded at Anand Vihar Railway Station; Nitesh told them that he would take them to place of her Bhabhi Meena and on that pretext, he took them to Jeevan Hospital and from there, to her sister' house residing nearby. As the witness resiled from her previous statement, leading questions were put to her by Ld. Addl PP. In answer to leading question, she testified that Nitesh had snatched mobile phone from C. She further admitted that after boarding the train, she had talked with Bhabhi from mobile phone of C and later, C had talked with Bhabhi. She stated that she had not noticed whether C had talked with Bhabhi with her mobile phone or with phone of Nitesh, as battery of mobile phone of C was discharged. She could not recall whether after reaching Anand Vihar, they had asked Nitesh to make a call to her Bhabhi with his mobile phone. Noticeably, PW-2 in her statement recorded u/s 164 CrPC stated to have spoken to Bhabhi Meena on phone on 01.10.2013; discharge of battery of mobile phone and mobile getting switched off on reaching Delhi, having conversation with Bhabhi through mobile Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 33 of 53 phone of Nitesh; Nitesh pretended talking to her Bhabhi and informed victims that Bhabhi would be coming to Jeevan Hospital. The aforesaid testimonies of PW-1 C, PW-2 T and PW-3 Meena Kumari show that there is discrepancy regarding the mobile phone calls made by the victims C, T and complainant Meena Kumari to each other.
IV Conduct of the accused and victims.
69. The conduct of the accused persons and victims is very important factor in establishing the charge levelled against the accused persons. In the present case, victim C had made a call to PW3 Meena Kumari about 15-20 minutes prior to reaching at Anand Vihar Railway Station. After reaching Anand Vihar Railway Station, both the victims did not care to wait for Meena Kumari and merely on asking of accused Nitesh, they accompanied him. Even after reaching Jeevan Hospital, when Meena Kumari did not meet them, they did not show any resistance and went to house of alleged sister of accused Nitesh, who was a stranger and had only met them on the train. This conduct is quite significant.
70. Even conduct of Meena Kumari is also quite unusual. She had reached Anand Vihar Railway Station well before time. When the train arrived, both the victims did not meet her. She waited there till 8.00 p.m. But she did not try to make inquiry from the Railway Authorities or she did not make any complaint in writing either to Police or to Railway Authority on that day.
71. As per story of prosecution, in the morning of Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 34 of 53 04.10.2013, PW3 received a call from the number, used by C and T on 02.10.2013 before arrival of their train at Anand Vihar Railway Station and said call was first picked up by Mr. Sethi, employer of PW3 and she had a talk with the caller, who did not tell his name. Said caller informed that victims C and T were with him and he asked for address of PW3 Meena Kumari stating that they would bring both the girls to said address; PW3 told her address to the caller; when PW3 asked for address of the caller, he did not respond. PW-3 complainant Meena Bhabhi had talked with C, who asked her to come to Jeevan Hospital but she could not tell the complete address and thereafter the call was disconnected. PW3 went to Jeevan Hospital on the same day, searched for both the girls outside Jeevan Hospital and nearby places but could not find them and thereafter she returned to her house. The testimony of PW-3 appears to be not probable. It won't be expected in the normal course that the accused Nitesh would kidnap the victims, wrongfully confine them for the purpose of their exploitation in order to unlawfully compel the victims to labour against their will and at the same time, also call the employer of Bhabhi of victims to drop the said victims. The story put forth by the prosecution that accused Nitesh called the employer of the complainant to drop the victims on 04.10.2013 is not probable and raise doubt upon the story of prosecution that he had intention to deploy the victims to work without their free will. It is not explained as to how accused Nitesh knew landline number of employer of Meena Kumari. Pertinently, as per call details proved on record, no call was made to employer of Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 35 of 53 Meena Kumari by accused Nitesh on 04.10.2013. The said call details create dent in the testimony of PW-3 Meena who stated to have received phone call from the Nitesh number. Admittedly, no force of any kind was used on the victims. PW-1 C admitted the suggestion during cross examination dated 31.08.2015 that the other persons residing in that house did not beat, abuse or threaten her. She volunteered that only Nitesh had slapped T. On the other side, PW-2 T has denied the suggestion given by Ld. Addl PP that Nitesh had slapped her at the house of his sister. PW-2 T has testified that she was never physically assaulted by Nitesh or another person.
72. Further, PW-1 C admitted the suggestion in cross examination dated 31.08.2015 that on next morning i.e. 03.10.2013, she had talked with Bhabhi from the mobile phone of Nitesh. The testimony of PW-1 regarding the phonecall made from mobile number of Nitesh on 03.10.2013 at mobile number of Bhabhi Meena is not reflected in the CDR of mobile number of Nitesh. Even otherwise, had the accused Nitesh brought the victims with deceitful intention to wrongfully confine them, he would not have allegedly called the complainant Meena from his mobile phone in the morning of 03.10.2013 and allowed the victim C to talk to her.
73. It is also worthwhile to mention herein that PW-1 C testified in her cross examination that there was balcony beside the room, where she used to dry her clothes. She testified that she did not make any hue and cry from that balcony to inform public persons about her wrongful confinement in that house. She volunteered that road was far away from the balcony and they were not allowed to Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 36 of 53 remain in balcony for longer period. It is also her deposition that she was taken to a house to work during morning time in an auto. She did not tell any person on the way that she was forcibly being taken to work. She denied the suggestion that on the way, she did not tell any person because she was willing to work. The relevance for extracting the aforesaid testimony of PW-1 C is that had the C been illegally confined in that house, she would have made some efforts to come out of clutches of the accused persons. She did not raise any hue and cry even upon getting opportunity in the auto and balcony in this regard. Thus, the element of use of any kind of force or deceitful means is missing in this case.
V. Recovery of victims
74. As per PW-1 C, her Bhabhi Meena came there after about 10 days alongwith police officials and they found her there. On the other side, PW-3 Meena testified that after about 3-4 days of reporting the matter to police, she received telephone call from PS Anand Vihar Railway station about recovery of both victims and she met the victims in the PS. She further testified that C and T did not tell her the name of persons, who had kept them, nor did PW3 met those persons. Thus, PW-1 C and PW-3 Meena deposed contrary to each other inasmuch as Meena testified to have not accompanied the police for recovery of victim C whereas, victim C stated that Meena came with police officials to recover her.
75. As per pointing and recovery memo, Ex PW-8/P, C was recovered from the house no. F-29, 2nd floor, Sudershan Park, Delhi, Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 37 of 53 belonging to Nirmala w/o Roshan at the instance of accused Firoz and his wife Munkunwari @ Kiran where she was kept by Nirmala for providing her job of a maid servant. The pointing and recovery memo, Ex PW-10/P shows that T was recovered at the instance of Nirmala from the house no F-18, Bali Nagar, Delhi, belonging to one B.N. Kapoor, where she was working as maid servant at the salary of Rs. 2500/- by changing her name as Roopa Kerkatta.
76. Said B.N. Kapoor was initially made accused in the present case as victim T whose name was changed to Roopa Kerkatta was recovered from his house. He has also paid commission and a commission slip was issued to him. Sh. B.N. Kapoor was discharged in this case. He was not made a witness in this case. If he had been produced, it could have cleared the cloud if T was compelled to work under force or coercion at his house or was recovered from his house. The commission slip issued to B.N.Kapoor has not been duly proved on record as same was not sent for expert's opinion to prove that it was issued by Nirmala or it bears her signature.
77. Even otherwise, as per case of the prosecution, one filled up form in the name of Manisha Tirki Ex.PW8/F and one unfilled form Ex.PW8/G were recovered from the third floor of House No. 138, Bhagwan Nagar from where accused Firoz and Munkunwari were apprehended. On top of both these forms, 'Munna Sinkku Kiran Devi Servivce Centre' is written. But both these forms are not signed by the accused Munkunwari. No investigation was done with regard to the fact if said ' Munna Sinkku Kiran Devi Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 38 of 53 Service Centre' was being run by accused Munkunwari or Firoz Ansari.
78. IO had seized two forms in the name of Roopa Kerketa and Seema Kerketta from the office of accused Nirmala. Form of Roopa Kerketa is completely filled and same is Ex.PW8/K. Form of Seema Kerketta is half filled and it is Ex.PW8/L. On the top of these forms 'Jai Maria Enterprises' (Regd.) is written and they bear seal of 'Jai Maria Enterprises' (Regd) wherein registration no. 767 is also given. Investigation agency did not bother to investigate whether said placement agency was being run by accused Nirmala. These forms also do not bear signature of accused Nirmala. In the absence of such investigation, there is nothing on record to believe that these placement agencies were being run by accused Nirmala. Further, there is no material on record except the aforesaid forms i.e. Ex PW-8/K where name of Roopa Kerkatta is mentioned and form Ex PW-8/L where name of Seema Kerkatta is mentioned. As per the case of prosecution, photos of victims are affixed on these forms. It is only C who stated in her statement recorded under section 164 CrPC that accused Nitesh had started calling her as Seema and calling T as Roopa. However, she did not state so in her examination in chief. Except the photos on the said forms, there is no material on record to establish that the name of victims was changed to Seema and Roopa. Thus, there is no credible evidence on record to establish that the victim C was recovered from the office of Nirmala and victim T(Roopa kerkatta)was recovered from F-18, Bali Nagar, Delhi, house of Sh. B.N. Kapoor.
Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 39 of 53VI Discrepancy in telephone call details i.e. CDR of mobile no. 8252224645 in the name of Sukra Oraon used by C; mobile no. 7763855084 in the name of Nitesh and case of prosecution.
79. As per the case of prosecution, the complainant had reached Anand Vihar Railway station to take her sisters on 02.10.2013. She made a call to her sister on mobile no. 8252224645 but said number was switched off. After sometime, the complainant received a call from mobile no. 7763855084 (Nitesh) and her cousin informed that they had reached Ghaziabad and that they would reach Anand Vihar within 15-20 minutes. Thereafter, the complainant received a call on 04.10.2013 on the telephone of her employer B.S. Sethi(25450593) from mobile no. 7763855084 and caller asked her to give her address so that both the girls could be dropped; the complainant had a talk with her sisters but they could not give complete address and when caller was asked to give his complete address, he did not inform about the address and disconnected the phone. The complainant approached the PS Kirti Nagar and from there, she was taken to PS Anand Vihar Railway Station. PW-3 Meena stated in cross examination dated 01.10.2015 that she had a talk with victims through her mobile number 9953060811. She also testified that she had been using this number exclusively for 3-4 years.
80. Now coming to CDRs of aforesaid mobile numbers, it is seen from CDR of mobile no. 7763855084 of Nitesh, Ex PW- 20/C(colly) that PW-3 Meena Kumari had conversation from her Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 40 of 53 mobile number 9953060811 to mobile no. 7763855084 of Nitesh as:-
Calling No. Called No. Date Time Duration(s) 7763855084 9953060811 01.10.2013 19:28:55 65 9953060811 7763855084 02.10.2013 15:54:26 37 9953060811 7763855084 02.10.2013 18:13:20 9 9953060811 7763855084 02.10.2013 18:32:06 12 9953060811 7763855084 05.10.2013 20:21:38 15 7763855084 9953060811 10.10.2013 09:05:33 391
81. From the CDR of Nitesh, it is apparent that Meena Kumari had conversation with him on his mobile number on 01.10.2013 at about 7:28 p.m. and on 02.10.2013 at about 03.54 p.m., 06.13 p.m. and 6.32 p.m. The train reached on 02.10.2013 at Anand Vihar railway station around 5.30 p.m. The complainant Meena Kumari thereafter talked to Nitesh on 05.10.2013 at 8.21 p.m. for 15 seconds and on 10.10.2013 at about 09.05 a.m. for 391 seconds. It is also relevant to note herein that on 04.10.2013, there is no record of accused Nitesh making telephonic call from his mobile number 7763855084 on the landline number 25450593 of B.S. Sethi(employer of Meena). This also goes to show that the complainant Meena Kumari has not projected the true story and was in communication with accused Nitesh on his mobile phone, which goes to show that he was not a stranger to the complainant. Even otherwise, call details of mobile number of accused Nitesh does not show that on 02.10.2013, C had called Meena Kumari from the mobile number of Nitesh about 15-20 minutes prior to reaching at Anand Vihar Railway Station. Further, call was made from mobile Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 41 of 53 number of accused Nitesh to Meena Kumari on 01.10.2013 and thereafter Meena Kumari had called on the mobile of accused Nitesh 3 times on 02.10.2013 and again on 05.10.2013; thereafter accused Nitesh had called Meena Kumari on 10.10.2013 and they talked to each other for 390 seconds i.e. more than 6 minutes.
82. Now coming to relevant data of CDR of Mobile No. 8252224645 belonging to father of C(Ex PW-16/A) which was used by victim C is as under: -
Calling Party Called Party Date Call Time Bill
Duration
9953060811 8252224645 30.09.2013 13:9:40 65
9953060811 8252224645 01.10.2013 6:6:52 139
8252224645 9953060811 01.10.2013 08:54:10 50
8252224645 9953060811 01.10.2013 09:39:49 30
9953060811 8252224645 02:10.2013 09:46:28 130
8252224645 9953060811 02.10.2013 14:49:55 30
8252224645 7763855084 02:10.2013 15:22:5 38
9953060811 8252224645 03:10.2013 11:35:38 263
9953060811 8252224645 03:10.2013 11:42:58 77
9953060811 8252224645 03:10.2013 11:48:26 149
52811 8252224645 03:10.2013 12:0:12
9899348095 8252224645 03:10.2013 12:0:40 31
9608841833 8252224645 03:10.2013 12:2:32 244
83. From the aforesaid CDR, it is again amply
clear that Meena Kumari spoke to C at her mobile number on 30.09.2013 at about 01.09 p.m.; on 01.10.2013 at about 06:06 a.m., 08.54 a.m. and 09:39 a.m. They again talked to each other on 02.10.2013 at about 9.46 a.m., 2.49 p.m. and on 03.10.2013 at about 11.35 a.m., 11.42 a.m., 11.48 a.m. and 12.04 p.m. In addition, Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 42 of 53 victim C also talked to Nitesh on 02.10.2013 at his mobile number at about 3:22 p.m.
84. These conversations of Meena Kumari on the mobile number used by C go to prove that mobile phone of C was not switched off by Nitesh in the morning of 03.10.2013 as testified by C which put dent in the case of prosecution. Further, C and Meena were talking to each other till 03.10.2013 which is contrary to what deposed by them.
85. As per testimony of PW-3 Meena, on 01.10.2013, victims had called her and informed her on telephone about boarding the train. It is also her deposition that she could not talk to them thereafter on phone as the same was switched off. On 02.10.2013, C called her from an unknown number informing her that she was using phone of co-passenger and asked her whether she reached the station which she replied in affirmative. On the other side, C deposed that she received a call from her Bhabhi Meena during her train journey. She also testified that Nitesh had also made call from his mobile number to her Bhabhi Meena during train journey after getting the number from her because her phone was not catching the network. Both C and Meena deposed contrary to each other as Meena deposed that she could not talk to victims at mobile phone of C except once on 01.10.2013 as their mobile phone was switched off whereas C deposed to have received a call from Bhabhi Meena during train journey. Noticeably, the CDR depicts the picture different than the testimony of PW(s).
86. As per CDR, Complainant Meena Kumari spoke to C at Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 43 of 53 her mobile number on 01.10.2013 at about 06:06 a.m., 08.54 a.m. and 09:39 a.m.; again on 02.10.2013 at about 09.46 a.m. and 2.49 p.m.; thereafter on 03.10.2013 at about 11:35 a.m.,11:42 a.m., 11.48 a.m. and 12.04 p.m. The said conversation details extracted from CDR of mobile number used by C shows that Meena was in communication with C till 03.10.2013. Further, C spoke to Nitesh on his mobile number on 02.10.2013 at about 3.22 p.m. No explanation has been put forth as to why C would call accused Nitesh on 02.10.2013 when Nitesh was with C in the train. The aforesaid CDR of C is not in tune with testimony of PW-3 Meena that C spoke to her only once on 02.10.2013 from the mobile number of Nitesh.
87. Coming to the CDR of Nitesh, PW-3 Meena Kumari had conversation with Nitesh on his mobile number on 01.10.2013 at about 7:28 p.m., which is not in tune with her testimony as per which she neither made any call nor received any call from an unknown number of Nitesh on 01.10.2013. Further, on 02.10.2013 Meena Kumari had called Nitesh on his mobile number at about 03.54 p.m., 06.13 p.m. and 6.32 p.m., while as per her testimony, she received call from the said number for the first time on 02.10.2013 about 10- 15 minutes prior to reaching of train at Anand Vihar railway station, which reached around 5.30 p.m. Interestingly, after reaching of train at Anand Vihar Railway Station, she again made call to Nitesh on 02.10.2013 at about 6:13 p.m. and 6:32 p.m. In justification of the same, PW-3 stated in cross-examination that she had made call on the said number which was picked up once but no conversation took place as voice was not audible. Pertinently, PW-3 Meena did not Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 44 of 53 state so in her complaint. Be that as it may, the fact cannot be overlooked that she did not inform the police on 02.10.2013 about the missing of victims. No justification is emerging from the record as to why PW-3 Complainant Meena Kumari did not report the matter to police when she could not locate victims at the railway station. Indeed, the telephone calls made by her to Nitesh after reaching of train dilutes the prosecution story itself.
88. The telephone calls made between Meena Kumari, Nitesh and victims raises doubt in the story of prosecution inasmuch as allegations are that Nitesh had induced the victims to go along with him from Anand Vihar Railway station. Even CDR of Nitesh does not reflect any call made to B.S. Sethi, employer of Meena Kumari at landline number 25450593 on 04.10.2013. The prosecution has also not examined Sh. B.S. Sethi as a witness to substantiate that call was made by the accused Nitesh on landline number of B.S. Sethi. One can easily make out from the CDR of mobile number used by Nitesh and C that Nitesh was known to complainant Meena earlier. Same is fortified from the conversation between Meena and Nitesh on 01.10.2013 itself, thereafter on 02.10.2013, 05.10.2013 and 10.10.2013 i.e. even after reporting of matter to police.
VII Relationship of victims C, T and Complainant Meena
89. PW1 Miss C stated Meena Kumari, as her sister-in-law (bhabhi), wife of her cousin Sushil while PW3 Meena stated T as her real sister and C as daughter of Mausi(Aunt). She further deposed Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 45 of 53 that C and T were allowed to go along with Sushil, her brother. PW- 2 T stated that Meena Kumari is her sister in law as engaged to her elder brother Sushil for the last 2-3 years. She stated C as her cousin(daughter of her mausi). C stated in statement u/s 164 CrPC that Meena is engaged to brother of her cousin sister T. PW-1 C stated in cross examination that Meena and Bhaiya Sushil are yet to marry. Thus, there is lot of discrepancy qua relation of complainant Meena with victims. There is no clarity about the relation of T, C and Meena. Meena stated T as her real sister whereas T stated Meena as engaged to her elder brother Sushil. Surprisingly, Meena stated that T and C returned to native place with her brother Sushil. Meaning thereby, Meena stated Sushil to be her brother and T as her real sister whereas T stated Meena Kumari as Bhabhi being engaged to her elder brother Sushil. So, it is not clear whether Sushil was brother of Meena or Meena was engaged to Sushil or whether T was real sister of complainant Meena. The said inconsistency in testimony of victims C, T and complainant Meena qua their relation with each other creates doubt in the story of prosecution.
VIII Relationship of Munkumari with accused Firoz
90. As per story of prosecution, Munkunwari is wife of accused Firoz, which has been refuted by Munkunwari. It has been urged on behalf of accused Munkunwari that she was staying on floor different than the accused Firoz.
91. PW6 Sh. Om Prakash Saini is owner of House No. 138, Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 46 of 53 Bhagwan Nagar. He testified that in the year 2013, he along with his family was residing on first floor of said house and there were tenants on other floors. It was a four storeyed house with a basement. He stated that police had made inquiry from him in this case and had taken copy of police verification form Ex.PW6/A along with her voter I card and Aadhar Card of one tenant and same were seized by the police vide seizure memo Ex.PW6/A. Though, he could not tell name of said tenant, but pointed out towards accused Munkunwari, present in the Court.
92. The tenant verification form(Ex PW-6/B), Election I card(Mark P6B) and Aadhar card of the accused Munkunwari shows her husband name as Rajo Mahto. Therefore, the story of prosecution that Munkunwari is wife of accused Firoz does not appear to be probable.
93. DW-2 Prehlad stated that he is tailor by profession and residing at the given address for the last 50 years. He knew accused Munkunwari as she was neighbour and residing with her four children as tenant in the house of Sh. O.P. Saini in the year 2013 and was working as maid in the neighbourhood. In cross examination, he could not tell the house number of O.P. Saini but stated him to be residing in front of their house. He testified that Munkunwari was residing at 3rd floor of house of O.P. Saini.
94. Ld. Counsels for the accused persons have also drawn attention of this court to the seizure memo of mobile phone of C, Ex. PW-8/A allegedly recovered from the accused Firoz Ansari and submitted that same does not bear the signature of the accused Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 47 of 53 Munkunwari and it reflects the place of recovery as 4 th floor. He further submitted that had the accused Munkunwari married to accused Firoz, they would have been residing together on 4 th floor and the recovery memo should have been signed by accused Munkunwari also as a witness. There is force in the said contention inasmuch as Accused Munkunwari was stated to be residing at 3 rd floor whereas the recovery of mobile phone was made from 4th floor of the building and arrest memo of Firoz Ansari, Ex PW-8/B and of Munkunwari, Ex PW-8/C mentions the place of arrest as H No. 138, Bhagwan Nagar, Kilokari without specifying the floor of house. PW- 19, Retd SI Joykutti testified that Firoz took out one mobile phone from the almirah of his room and handed over to him. He also testified that he arrested Firoz and Munkunwari from 3 rd floor of the house no. 138. where only Munkunwari was stated to be residing by DW-2. Therefore, it is not made out as to whether Firoz was occupying 3rd floor with Munkunwari. Rather, alleged recovery of mobile phone from 4th floor of said house at the instance of Firoz shows that Firoz was residing at 4 th floor. Therefore, the relationship of Firoz and Munkunwari as husband and wife is not made out. IX Conclusion
95. From foregoing discussion, victim C is proved to be major while T is proved to be minor on the date of incident. As per record of CDRs of mobile phones of accused Nitesh and C (victim); complainant Meena Kumari was in regular conversation with victims till 03.10.2013. Indeed, complainant Meena Kumari was also in regular communication with accused Nitesh and this shows that Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 48 of 53 accused Nitesh was acquainted to the complainant Meena Kumari. It is pertinent to note that as per C, accused Nitesh was with them on the train but CDR of mobile phone used by C shows her talking to accused Nitesh on his mobile number on 02.10.2013. No explanation is forthcoming from the side of C as to what necessitated her to call Nitesh on his mobile when he was already there with her on the train. The conversation between Meena Kumari, accused Nitesh and victims show that victims were not forcibly taken by accused Nitesh to the house of his alleged sister Munkunwari. As per settled legal position, the consent of the minor who is taken or enticed is wholly immaterial and it is only guardian consent, that would take a case out of purview of offence of kidnapping. In the instant case, complainant Meena was guardian of victims in Delhi and it does not stand established on record that the victims were taken away by the accused Nitesh without her consent or that he enticed the victims to accompany him. Pertinently, it is not the case of prosecution that accused Nitesh had brought the victims from the native place. As per own case of prosecution, Nitesh met the victims in the train itself and it is improbable that the accused Nitesh developed the intention in the train to kidnap them for the purpose of deploying in the placement agency. At this stage, one may also note that Om Prakash Saini (PW6) was owner of the house where accused Munkunwari was residing. This witness did not depose anything that accused Nitesh had visited the said house of Munkunwari along with the victims. He even did not say anything that he saw something unusual or over-heard any hue or cry of the Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 49 of 53 victims. He was not even made witness to arrest of the accused Firoz and Munkunwari. Surprisingly, he was not informed about their arrest from his house. Even both the victims did not try to come out from the clutches of the accused Nitesh, Firoz Ansari and Munkunwari despite opportunity available to the victims. Pertinently, CDR of mobile number used by C shows that she and Meena Kumari spoke to each other four times on 03.10.2013. In case, there was any kind of illegal detention of the victims by the accused persons, victims had an occasion to speak to Meena Kumari and would have asked for help from Meena Kumari. On the other side, Meena Kumari stated to have not spoken at all to victims on 03.10.2013, which shows complainant Meena Kumari is not trustworthy witness.
96. It is also case of the prosecution that accused Nitesh had called Meena Kumari at landline phone of B.S. Sethi, employer of Meena Kumari on 04.10.2013 and asked about her address so that both the victims could be dropped there. If one assumes the case of prosecution as true, it is rather improbable that accused Nitesh himself would call the complainant to drop both the victims and no explanation has been given as to how he came to know of number of one B.S. Sethi. Indeed, no such call to landline number of BS Sethi is reflected in CDR of mobile number of Nitesh. Rather, Meena Kumari herself called Nitesh on 05.10.2013 and received call on 10.10.2013. Noticeably, Meena Kumari had talk with accused Nitesh on 05.10.2013 when the initial complaint was made by her and again on 10.10.2013, she talked to accused Nitesh for more Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 50 of 53 than 6 minutes. No explanation has come on record as to what was the occasion with complainant Meena Kumari to have such a long talk with accused Nitesh on 10.10.2013. It is worthwhile to mention herein that the complainant Meena Kumari did not lodge any complaint on 02.10.2013 and even on 03.10.2013 about the missing of victims and what made her to remain silent till 04.10.2013. From the record of CDRs of mobile phone number used by accused Nitesh and C, it cannot be said that there was any force, coercion, pressure or deceit from the side of accused persons to the victims.
97. So far as forceful employment of victims is concerned, same is not proved on record. Indeed, PW-1 stated in cross examination that she had worked in Haryana around 2-3 years back from the time when she came to meet her Bhabhi. Both the victims have not identified accused Nirmala in the court. Forms of placement agencies placed on record have different names and prosecution has tried to justify that names of the victims were changed by the placement agencies. There is no investigation whether the placement agencies whose forms are on record being really being run by accused Munkunwari and/or Nirmala. Forms Ex. PW8/F, Ex.PW8/G, Ex.PW8/K and Ex.PW8/L do not bear signatures either of the girls/victims or the person, who had issued such forms. On forms Ex.PW8/K and Ex.PW8/L, registration no. 767 of Jai Maria Enterprises (Regd) is given but no investigation was carried out on this point to ensure that this placement agency was being run by accused Nirmala, nor any such investigation was conducted in respect of forms Ex. PW8/F and Ex.PW8/G of 'Munna Sinkku Kiran Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 51 of 53 Devi Service Centre.
98. Even it does not stand proved on record that accused Firoz is husband of accused Munkunwari. Recovery of victim T from the house of B.N. Kapoor cannot be relied upon inasmuch as prosecution has not examined said B.N. Kapoor as a witness. From the record, it is clear that accused B.N. Kapoor was discharged by Ld. Predecessor vide order on charge dated 27.05.2015. On his being discharged, it was incumbent on the part of the prosecution to examine him as a witness so that it could be proved that she was employed on a salary of Rs.2,500/-. Admittedly, no inquiry was made from person namely Pawan Toppo as mentioned on slip bearing No. 002 in the receipt book issued to B.N. Kapoor. The said commission slip issued to B.N.Kapoor has also not been duly proved on record as same was not sent for expert's opinion to prove that it was issued by Nirmala or it bears her signature.
99. PW1 C has identified accused Nitesh to be the person who had taken her and T and also identified accused Munkunwari Devi by stating that she was kept in her house, however, she did not identify accused Nirmala despite being allegedly recovered from her house. Again, she did not identify accused Firoz in the first instance by stating that she did not know him and has only identified accused Firoz when he was specifically pointed out by Ld. Addl PP and it was suggested to this witness that he was the person who was residing in the house of accused Munkunwari Devi. Such identification in the second instance does not inspire any confidence. Similarly, PW-2 T has only identified accused Nitesh but she did not identify remaining Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 52 of 53 three accused persons despite specific suggestion and pointing by Ld. Addl PP.
100. The evidence of both the victims as well as Meena Kumari and in particular CDR record nullify the identification of accused Nitesh and Munkunwari as it does not stand proved on record that both the victims were kidnapped by accused Nitesh or they were wrongfully confined and detained in the house of accused Munkunwari and Firoz or that they were transported and their custody was transferred by accused Nitesh to other accused persons by practicing fraud and deception upon the victims with intent to deploy the victims against their will. Even it does not stand proved on record that any force or assault was used against the victims or that they were deployed as maid servant against their consent or consent of guardian of T or that they were put under any fear of hurt while they allegedly remained in the custody of accused persons.
101. In view of reasons given above, this court is of the considered view that prosecution has miserably failed to prove its case against the accused persons. Accordingly, all the accused persons, namely, Nitesh Kumar, Firoz @ Munna, Mankunwwari Devi and Nirmala are acquitted of the charges levelled against them. File be consigned to record room after compliance of provisions of section 437A Cr.P.C. by accused persons.
Digitally signed by MANJUSHA MANJUSHA WADHWA
Location: Shahdara District,
WADHWA Karkardooma Courts, Delhi
Date: 2019.11.27 12:33:29
+0530
Announced in the open court (MANJUSHA WADHWA)
Dated: 26.11.2019 Addl. Sessions Judge-3 (Shahdara)
Karkardooma courts, Delhi
Sc No.553/16 State Vs. Firoz Anssari & Ors. Page 53 of 53