Delhi District Court
State vs . 1) Anita on 8 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 186/2013
Unique Case ID: 02404R0300442013
State Vs. 1) Anita
W/o Surender
R/o H. No. 190, Sector2,
Avantika, Delhi.
(Convicted)
2) Santosh
W/o Nawab Singh
R/o House of Bhagwandas
near Balaji Temple, Sher Singh Enclave
Karala, Delhi.
(Convicted)
3) Islamuddin @ Aslam
S/o Abdul Gaffar
R/o H. No. B156, Balbir Nagar
Kirari Suleman Nagar, Delhi.
Also at A194, PhII, Nangloi, Delhi.
(Convicted)
FIR No. : 191/2013
Police Station : South Rohini
Under Section : 317/363/370/120B/34 Indian Penal Code
Date of committal to Sessions Court : 30.10.2013
Date on which orders were reserved : 03.07.2014
Date on which judgment pronounced : 03.07.2014
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 1 of 110
JUDGMENT:
(1) The case of the prosecution in brief is that on 5.7.2013 at 6:00 PM at Main Road near H. No. A190, Pocket00, Sector2, Rohini, the accused Anita, Santosh and Islamudin @ Aslam, entered into a conspiracy pursuant to which they kidnapped a girl child aged about one month from Adarsh Clinic for the purpose of exploitation of the said child and thereafter they left the said girl child in a place with the intention of wholly abandoning the child.
BRIEF FACT/ CASE OF THE PROSECUTION:
(2) The case of prosecution in brief is that on 5.7.2013 the SHO Police Station South Rohini received a secret information that one Anita was trying to sell a infant / child and if a raid is conducted, the infant / child could be recovered. On receipt of the said information, a raiding party was constituted including the representative of NGO Navsharshti namely Nazma Khan. Thereafter the raiding party along with the secret informer reached at Avantika Market where the secret informer informed that the leader of the gang was Dr. Aslam who was running a nursing home in the same area and used to sell the infants / children and also prepare forged documents relating to birth. The secret informer further informed that Anita and Dr. Aslam were having a newborn female child with them and they were looking for a client to sell the said child. Thereafter, after identifying the house of Anita i.e. A190, Pocket State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 2 of 110 00, Sector2, Avantika, the secret informer left the spot. Thereafter, W/Ct. Mamta and W/Ct. Kamlesh were deputed as decoy customers and Nazma Khan was deployed as shadow witness to hear the conversation between the decoy customers and Anita. The decoy customer W/Ct.
Mamta talked to Anita and told her that she is not having any child and she requires a child from her on which Anita told them that the child was not with her after which Anita left the spot and after about ten fifteen minutes two women came to the spot along with a child accompanied by one male person and both the women along with the child sat on the car in which the decoy customers were already sitting while the male person remained standing outside the car. The deal regarding sale of girl child was finalized at Rs. One Lakh. Thereafter, W/HC Kamlesh made a signal to the other members of the raiding party pursuant to which both the women along with the female child were overpowered by the members of the raiding party while the male who was standing outside the car ran away in the gali. Thereafter, on interrogation, the apprehended women disclosed their names as Santosh and Anita and that of the male person as Dr. Aslam. Thereafter, on formal search, the trap money Rs. One Lakh was recovered from the bag of Anita. Thereafter, an FIR was registered and both Santosh and Anita were arrested. During investigations, Islamuddin @ Aslam was arrested and after completing investigations, charge sheet was filed in the court. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 3 of 110 CHARGE:
(3) Charge under Section 120B, 363/120B, 370/120B and 317/34 Indian Penal Code was settled against the accused Anita, Santosh and Islamuddin @ Aslam to which they pleaded not guilty and claimed trial.
(4) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Witnesses:
Sr. PW Name of Witness Details of witnesses
No. No.
1. PW1 HC Mahesh Police witness.
2. PW2 W HC Krishan Police witness.
3. PW3 SI Dharambir Police witness.
4. PW4 Insp. Naresh Malik Police witness.
5. PW5 Ct. Mahender Police witness.
6. PW6 Dr. Ravi Kant Doctor.
7. PW7 Mr. Jolly Geewarghese Witness from Asharan
Orphanage.
8. PW8 HC Raj Kumar Police witness.
9. PW9 Nazma Khan Representative of NGO.
10. PW10 Insp. Anil Kumar Police witness.
11. PW11 Ct. Sanjay Kumar Police witness.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 4 of 110
12. PW12 W HC Kamlesh Police witness / decoy
customer.
13. PW13 W Ct. Mamta Police witness / decoy
customer.
14. PW14 SI Laxmi Narayan Police witness.
15. PW15 SI Devender Police witness.
List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1 PW 1/1 Affidavit of evidence of HC HC Mahesh
Mahesh
2 PW 1/A Copy of Reg No. 19 Sr. No.
2987/13
3 PW 2/1 Affidavit of evidence of W W HC
HC Krishan Krishan
4 PW 2/A DD No. 43A
5 PW 2/B Copy of FIR
6 PW 2/C Endorsement on Rukka
7 PW 3/1 Affidavit of evidence of SI SI Dharambir
Dharambir
8 PW 3/A DD No. 32A
9 PW 4/1 Affidavit of evidence of Insp. Naresh
Insp. Naresh Malik Malik
10 PW 4/A DD No. 31A
11 PW 5/1 Affidavit of evidence of Ct. Ct. Mahender
Mahender
12 PW 5/A Certificate U/s 65 B
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 5 of 110
13 PW 6/A Seizure memo of Document Dr. Ravi Kant
14 PW 7/A Information Jolly
15 PW 11/A Arrest memo Ct. Sanjay
16 PW 11/B Personal search memo Kumar
17 PW 11/C Disclosure Statement
18 PW 11/DX1 Confronted statement
19 PW 11/DX2 Confronted statement
20 PW 12/A Seizure memo HC Kamlesh
21 PW 12/B Seizure memo of Rs. 10000/
22 PW 12/C Seizure memo
23 PW 12/D Arrest memo of Anita
24 PW 12/E Personal search memo
25 PW 12/F Arrest memo of Santosh
26 PW 12/G Personal search memo
27 PW 12/H Disclosure statement
28 PW 12/I Disclosure statement
29 PW 14/A Rukka SI Laxmi
30 PW 14/B Site plan Narayan
31 PW 15/A Casualty card SI Devender
32 PW 15/B Medical Document of Baby
Child
33 PW15/C1 to C4 Photographs of Baby Child
subjected to sale
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has
examined as many as Fifteen witnesses:
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 6 of 110
Public Witnesses / Complainant:
(6) PW6 Dr. Ravikant has deposed that he is running a hospital
in the name of Nirmal Hospital at C6/241243, Main, Police Station Road, Sultan Puri, Delhi and on 6.06.2013, one person who was handicapped from his right leg along with a lady namely Jyoti came in his hospital. He has further deposed that the person was informing him that he is the husband of that lady and he asked him to get his wife admitted in his hospital as she was having term pregnancy. According to him, he got her admitted and on 7.06.2013 she delivered a female baby and the aforesaid lady remained in his hospital till 14.06.2013 and they had deposited Rs.10,000/ initially and had promised to pay remaining amount of Rs.20,000/ at the time of discharge and thereafter the couple left the hospital by saying that they have brought the said amount. He has further deposed that there was great rush of the other patient in the hospital and on finding him busy in the hospital, both left the hospital along with baby without making the remaining payment of Rs.20,000/. He has stated that at the time of admission, they had given their address as 30/591, MCD Colony, Sector 20, Rohini. Witness has further deposed that he sent his staff at the aforesaid address for taking the balance amount but his staff found the aforesaid house locked. He has further deposed that on inquiry, his staff came to know that no lady in the name of Jyoti ever resided at the aforesaid address and thereafter he did not care of that incident. According to him, later on the police officials State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 7 of 110 informed him that the child has been sold by the aforesaid couple and he handed over the entire documents to the Investigating Officer which was available in his hospital at that time. He has further deposed that the police had taken the aforesaid documents into possession vide seizure memo Ex.PW6/A and the original treatment sheet/consent sheet are Ex.PX1 and Ex.PX2 respectively and the documents Ex.PX2 bears the signatures of the male person whose name he does not remember is at point A. He has further deposed that the treatment sheet is Ex.PX3 and the clinical test sheet is Ex.PX4 and the photocopy of admission register is Ex.PX5 and the photocopy of his registration certificate is Ex.PX6. (7) During the crossexamination by Ld. Defence counsel, the witness has deposed that he did not make any complaint to the police when the couple left the hospital without making his remaining payment. He has denied the suggestion that no such incident has taken place in his hospital and therefore, he did not make any complaint to the police. He has denied the suggestion that he was deposing falsely at the instance of the Investigating Officer. According to the witness at that time, there was no CCTV cameras installed in the hospital. (8) PW7 Jolly Geewarghese has deposed that she has been authorized by the governing body of Hope Foundation (NGO) to depose in this case as Ms. K. S Genevieve, a social worker left the services of the aforesaid NGO and the minor unknown girl child was State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 8 of 110 given the name Liana by their agency who was brought by the police.
She has further deposed that the child was being illegally sold by the accused persons and she was rescued by the police party through decoy customer and the child was admitted in their institution on 5.07.2013 via CWC, Nirmal Chhaya Complex. According to her, they had send the information to the SHO, Police Station South Rohini, the missing person squad and child welfare committee, Nirmal Chhaya and their information is Ex.PW7/A bearing the photograph of the girl child. According to the witness the envelope in which the aforesaid information was given to the police station is Ex.PX7. (9) During the crossexamination by Ld. Defence counsel, the witness has deposed that she has no personal knowledge of this case and she is deposing only as per record.
(10) PW9 Smt. Nazma Khan has deposed that she was social worker and on 5.07.2013 and went to Police Station South Rohini on the request of SI Suman of Police Station South Rohini regarding deal of a girl child as informed by her by SI Suman. She has further deposed that the police official including SHO Anil Kumar and SI Suman met her in the police station and SI Saini formed a raiding party and she along with the police official reached at A190, Pocket 00, Sector2, Avantika and the secret informer left the spot after identification. She has further deposed that she was deployed as a decoy customer to hear the conversation between the customer and Anita / Kamlesh who were also State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 9 of 110 there and one Ct. Mamta had talked with Anita and told her that she is not having any child and she requires a child from her. "kafi der tak anita aise hi ghumati rahi, kuch der baad taiyaar hogai baccha dene ke liye". According to the witness Anita told them that she is not having any child with her and she is bringing a child within tenfifteen minutes. She has further deposed that Anita left the spot and after about ten fifteen minutes, she came back to the spot along with a child and thereafter, Mamta and accused Anita spoke regarding the consideration amount. She has further deposed that Anita was demanding too much money but the deal was finalized for amount of Rs.1,00,000/ and on this, one lady Constable handed over Rs.1,00,000/ to Anita at about 56 pm and the police official lady Ct. Mamta received the child from accused Anita. She has further deposed that the lady constable who handed over the money made a signal to the raiding party and the entire raiding party surrounded the accused Anita and another lady namely Santosh was also with accused Sunita and one male person also with them whose name was Aslam who was standing outside the vehicle. She has further deposed that it was informed that Aslam will prepare the document of the birth of the child but the said Aslam ran away when the accused persons were surrounded. She has further deposed that the age of the child was approx. one month at that time and the said child was handed over to police official and thereafter both the accused namely Santosh and Anita along with the child were taken to the Police Station State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 10 of 110 and the amount of Rs.1,00,000/ was recovered from the bag of accused Anita which was in a packet. She has further deposed that she had seen two currency notes in the packet on both side but she did not see all notes in the packet. She has further deposed that there were two currency notes of the denomination of Rs.1000/ on both sides of the packet and the aforesaid amount / bundle was converted into parcel and taken into possession. She has further deposed that the aforesaid two accused were arrested in this case and his statement was recorded by the police in the police station.
(11) On a leading question put by Addl. PP, witness has deposed that SI L. N. Saini had also handed over Rs.10,000/ separately and SI L.N Saini also directed her, Kamlesh and Mamta to keep a watch on the accused and try to take delivery of the child in the vehicle and thereafter at about 5.50 pm, Ct. Mamta and HC Kamlesh sat in a private vehicle and accused Santosh handed over the baby child to Ct. Mamta. (12) The witness has correctly identified accused persons namely Anita and Santosh. The witness has also correctly identified a bundle which is having two currency notes of denomination on both sides of the bundle and the cutting of newspaper in between the bundle as the same which was given by constable to the accused Anita and same is Ex.P1.
(13) During her crossexamination by ld. Defence counsel, the witness has deposed that the NGO Navshrishti is being run by Ms. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 11 of 110 Reena Bannerjee and she had not given her identity card to the Investigating Officer showing that she is working in the aforesaid NGO as social worker. She has admitted that she has been cited as a witness earlier also by the police in many cases but she has been cited as a witness of police by Police Station South Rohini for the first time. Witness has further deposed that she was not given any notice by the police when she was called in the police station, nor the same was given to her later on. She has denied the suggestion that she was stock witness of the police and she is giving false evidence in the cases on the asking of the police officials. She has further deposed that she reached the Police Station at about 4 pm and they left the police station at about 4.30 pm in a four wheeler but she can not give the number and description of the vehicle. According to the witness SI Suman, two constables and SI Saini were in the same car and SI Saini was driving that vehicle and the raiding party left the police station in two vehicles but she can not give the number of either vehicle and except the secret informer and herself, no public person was there in the proceeding.
(14) According to the witness, during investigation no public person was asked by the Investigating Officer to join the investigations and she also does not remember the colour of the either of the vehicles. She has further deposed that they did not go to the house of accused persons and she do not know as to how the accused persons came to know that they are coming to their house. According to the witness the State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 12 of 110 accused Anita and Santosh both were coming together from the house but she is not aware if the house of Anita and Santosh is the same or separate and states that Investigating Officer did not verify this fact in her presence. She is also not aware about the owner of A190, Pocket00, Sector2, Avantika, Delhi, and in her presence, none of the police officials went to the said house. She also does not recollect the color of the clothes worn by the accused persons at that time. She has further deposed that the bag in which the amount was recovered was also taken by the police into possession and the bag was with the accused Santosh while coming from the house. Witness has admitted that her signatures was not taken on any document. She has denied the suggestion that she was not present at the spot and therefore, her signatures were not taken on any of the document. She has further deposed that SI L.N Saini handed over Rs.10,000/ to Lady HC Kamlesh which she had given back to Shri L.N Saini in the police station. Witness has further deposed that no memo was prepared regarding exchange of money in her presence and she remained present with the investigating officer during the entire investigation and no writing work was done by the Investigating Officer in her presence at the spot. She has further deposed that the parcel of the packet was also prepared in the police station. She has deposed that Aslam ran away from the spot and he was chased by two police officials but he could not be caught. Witness has admitted that one of the police officials were having a State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 13 of 110 motorcycle. She has further deposed that the police officials did not chase the accused persons on motorcycle and she did not hear any noise from anybody and her statement was recorded at the Police Station by SI L. N. Saini, however she can not tell the time consumed by Shri L.S Saini in recording her statement. Witness has further deposed that her statement was recorded on the basis of her dictation and it was recorded only in her words. According to the witness the police official had not called any other official from their NGO even at the time of arrest or thereafter when both the accused persons were produced before Ld. MM for taking police remand etc. Police / Official Witnesses:
(15) PW1 HC Mahesh has tendered his examinationinchief by way of affidavit, which is Ex.PW1/1 and he relied upon entry in Register No. 19 vide Mud No. 2987/13, copy of which is Ex.PW1/A. In his affidavit, witness has deposed that on 05.07.2013 the Investigating Officer, SI L.N. Saini handed over two parcels sealed with the seal of "LNS" and copy of seizure memo to him and he made entry in this regard in Register No. 19 at Serial No. 2987/13. (16) During the crossexamination by Ld. Defence counsel, the witness has denied the suggestion that the entry in the register No. 19 has been fabricated at the instance of senior officers. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 14 of 110 (17) PW2 W/HC Krishna has tendered her examinationinchief by way of affidavit, which is Ex.PW2/1 and she rely upon DD No. 43 A, copy of which is Ex.PW2/A, copy of FIR which is Ex.PW2/B bearing her signatures at point A and endorsement on rukka which is Ex.PW2/C bearing her signatures at point A. In her affidavit, witness has deposed that on 05.07.2013 she was posted as Duty Officer from 4 PM to 12 midnight at Police Station South Rohini and on that day she received rukka from SI L.N. Saini for registration of case at 7:20 PM through Ct. Sanjay No. 1290/OD. According to the witness, after receiving rukka she lodged DD No. 43A at 7:20 PM with regard to registration of case and got registered case FIR No. 191/13 in CIPA computer through Ct. Mahender No. 1947/OD and after registration copy of FIR and rukka were handed over to Ct. Sanjay No. 1290/OD to hand over the same to SI L.N. Saini for conducting further investigations.
(18) During the crossexamination by Ld. Defence counsel the witness has denied the suggestion that the rukka has been antetimed. (19) PW3 SI Dharambir has tendered his examinationinchief by way of affidavit, which is Ex.PW3/1 and he relied upon DD No. 32 A, copy of which is Ex.PW3/A. In his affidavit, witness has deposed that on 05.07.2013 he was posted as Duty Officer at Police Station South Rohini, Delhi from 8:00 AM to 4:00 PM and at 2:35 PM Insp. Naresh State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 15 of 110 Malik, SHO South Rohini made a entry vide DD No. 31A and at 3:40 PM SI L.N. Saini made a entry vide DD No. 32A. The witness has not been crossexamined by the Ld. Defence counsel despite being given opportunity in this regard.
(20) PW4 Insp. Naresh Malik has tendered his examinationin chief by way of affidavit, which is Ex.PW4/1 and he rely upon DD No. 31A, copy of which is Ex.PW4/A. In his affidavit, witness has deposed that on 05.07.2013 he received a secret information from a source person regarding a lady namely Anita trying to sell a child in the area and if approached through a decoy customer the child could be recovered.
According to the witness, he made a DD entry in this regard vide DD No. 31A dated 05.07.2013 at 2:35 PM and apprised the senior officers about the same. Witness has further deposed that a raiding team comprising Insp. Anil Kumar, SI L. N. Saini, W/SI Suman, W/HC Kamlesh No. 564/OD and W/Ct. Mamta 2253/OD was constituted and NGO Nav Shakti activist Ms Nazma Khan was called to join the raiding team and the raiding team along with Ms Nazma Khan departed vide DD No. 32A at 3:40 PM. According to the witness later on SI L.N. Saini confirmed the information to him and he ordered him to take legal action and he personally visited the spot and asked ERV staff and Ct. Sanjay No. 1290/OD to assist the raiding team.
(21) During the crossexamination by Ld. Defence counsel the witness has deposed that he had received the secret information and he State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 16 of 110 had shared this information with his ACP Sh. Shiv Dayal and Additional CP Sh. Sanjay Kumar. He has further deposed that he only informed them telephonically and not in writing. According to the witness DD No. 31A was also recorded in this regard and this DD was recorded after giving information to the senior officers. He has further deposed that he did not mention the names of the senior officers with whom he had shared the information and he did not mention in the DD No. 31 A the directions given by the ACP and Addl. CP Sh. Sanjay Kumar and the said DD entry was made at 2:35 PM. He has admitted that at that time he immediately directed Insp. Anil Kumar to constitute a police party. He has further admitted that Insp. Anil Kumar was removed from the police party on his directions but again thereafter clarified that he was not removed from the police party but was only asked to remain at some distance. He has denied the suggestion that he had asked Insp. Anil Kumar to remove himself and go back to the police station and he was also in the area at that time. On a specific Court question, the witness has replied that he was present around Avantika market and also visited the spot.
(22) He has further deposed that he was in uniform at that time and lady officers and SI L.N. Sahni were in Civil Dress while others were in uniform. He has further deposed that he had taken a Civil Vehicle at that time and it was a vehicle of one of the staff members and he does not recollect the details. He has further deposed that he did not State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 17 of 110 inform SI Devender in his statement U/s 161 Cr. P.C. which is Ex.PW4/DX1 that he was in uniform and in a private vehicle belonging to some staff member. He has deposed that at that time there were two other officials of his Police Station with him but he does not recollect their names and has voluntarily added that their names were must be mentioned in Departure entry. He has further deposed that he was not sure but the number of the departure entry may be 33 A and he left the police station around 4 PM. He has stated that the police party had left the police station before but he left later and that he reached back at the police station at about 11 PM. He has further deposed that after the accused Santosh and Anita were apprehended, he had reached the spot at around 6 PM and after the rukka was sent he left the spot. He has admitted that both the ladies were not arrested in his presence. According to the witness he did not obtain any permission to arrest the lady accused from the Judicial Magistrate. He has further deposed that he is also not aware if any body had taken the permission for arrest from the Ld. MM or not. He has also clarified that both the ladies were not produced before the Ld. MM immediately and both the ladies were brought to Police Station at around 10 PM. He has stated that both the ladies had reached the Police station with the staff before he reached.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 18 of 110 (23) On a specific Court question the witness has replied that he does not recollect who was present in the Police Station in the intervening night from the family of accused Anita and Santosh. The witness was then permitted to refresh his memory and inform, after which he stated, he was not aware who was present from the family of the accused Anita and Santosh during the intervening night of 05/06.07.2013 when they were detained in the Police Station. On a specific Court question if he was present in the Police Station during the intervening night of 05/06.07.2013, the witness has replied that he does not recollect the same and after being permitted to refresh his memory and inform, has responded by saying that he could be there only and where else he would go (wahi hounga aur ka ha jaunga). (24) Witness has denied the suggestion that during the intervening night of 05/06.07.2013, the accused Islammudin was admitted in New Rohini Hospital and they pressurized the doctors to produce him in the Police Station on which he was brought to the Police Station along with the doctors after which he was detained. Witness has voluntarily added that the Investigating Officer had arrested him in the morning but he cannot tell the place of arrest of Islamuddin. He has further deposed that he had taken the briefing of ten in the morning and again voluntarily added that it must be around 8 AM. He has admitted that the female child was in the custody of their lady officers and has voluntarily clarified that she had been sent to Palna at night itself W/SI State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 19 of 110 Suman and W/Ct. Mamta had gone to Palna at Paschim Vihar and got the child admitted there. According to the witness he received this information in the night itself around 12 midnight and it was by telephonic information that he was informed about the same. He has further deposed that he did not personally speak of Ms Nazma Khan and has voluntarily added that he had asked some one else to call her and probably it was W/SI Suman but he does not recollect and it could be some one else. He has further deposed that he did not meet Ms. Nazma Khan in the Police Station but he was told she had come to the Police Station but he cannot tell at what time Ms. Nazma Khan had come. He has further deposed that he did not record the statement of Ms Nazma Khan and he did not make any separate DD entry with regard to the joining of Ms Nazma Khan in the raiding party and has voluntarily added that this information is a part of the DD where the details of the constitution of the police party has been recorded. The witness has further deposed that both the lady accused were produced before the Illaka Magistrate at around 12 afternoon and their medical examinations were not got conducted within his knowledge or under his supervision and he was aware that medical examination of both the accused were conducted and the medical examination of both these ladies were conducted on 05.07.2013. He has further deposed that he thinks that two days Police Custody Remand of both the lady accused were taken. Court has observed that there is no MLC of the accused dated 05.07.2013 and State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 20 of 110 all the MLCs are after 06.07.2013 till 10.07.2013. (25) Witness has denied the suggestion that the entire incident has been stage managed and concocted or that the accused Santosh and Anita have been arrested and detained illegally in the Police Station in violation of the existing law. According to the witness, before the signing the final charge sheet he had read the same. He has denied the suggestion that he was deposing falsely to justify the arrest of accused Anita, Santosh and Islamuddin or that a false case has been foisted upon the accused Anita, Santosh and Islamuddin. He has deposed that W/SI Suman was not present in the court to submit for cross examination. Witness has voluntarily added that information regarding the rejection of her exemption had been received by him and the information has been conveyed to the CAW cell. He has further deposed that he does not know that she had not appeared. He has denied the suggestion that W/Sl Suman was being deliberately withheld of the court as a matter of strategy.
(26) PW5 Ct. Mahender has tendered his examinationinchief by way of affidavit, which is Ex.PW5/1 and has relied upon copy of FIR which is Ex.PW2/A and certificate U/s 65 (B) of Indian Evidence Act which is Ex.PW5/A. In his affidavit witness has deposed that on 05.07.2013 he performed duty as CIPA operator in the police station South Rohini and on that day he entered the FIR No. 191/13 dated 05.07.2013 U/s 317/363/370/120B/34 IPC in CIPA computer and he gave State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 21 of 110 certificate U/s 65(B) Indian Evidence Act in this regard to the investigating officer. The witness has not been crossexamined by the Ld. Defence counsel despite being given opportunity in this regard. (27) PW8 HC Raj Kumar has deposed that on 8.07.2013, he was posted at Police Station South Rohini and on that day, he along with Investigating Officer SI Devender reached at Nirmal Hospital, Sultan Puri where Dr. Ravikant Mehta met them who was interrogated. He has further deposed that he handed over the documents of his hospital to the Investigating Officer which documents are Ex.PX1 to Ex.PX6. He has further deposed that the aforesaid documents were taken into possession vide seizure memo Ex.PW6/A and his statement was recorded by the Investigating officer.
(28) During the crossexamination by Ld. Defence counsel, the witness has deposed that he does not remember the time when the aforesaid documents were taken into possession. He has admitted that Investigating Officer had read over the aforesaid documents before taking into possession. He has again said, the documents were not read over by the Investigating Officer in his presence. He has admitted that they had come to the police station directly from the hospital. He has denied the suggestion that no hospital record was handed over by the doctor to the Investigating Officer in his presence or that he was deposing falsely.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 22 of 110 (29) PW10 Insp. Anil Kumar has deposed that on 05.07.2013 he was posted as Inspector Investigations at police station South Rohini and on that day a secret information was received with SHO Police Station South Rohini regarding selling of a child by a lady named Anita in the area of Police Station South Rohini and a team was constituted by SHO which comprised of himself, SI L.N. Sahni. W/SI Suman, W/HC Kamlesh, Ct. Mamta and Ms Nazma, a representative of NGO Navshristi who had been called to the Police Station and included in the raiding party and the secret informer was also with them and he was heading the raiding party. He has further deposed that the information was shared with the raiding party and they were accordingly briefed after which they reached Avantika Market and the informer was directed to confirm the information who will then inform the SHO. He has further deposed that after some time the informer confirmed the information to SI L. N. Sahni who conveyed the same to the SHO on which the SHO lnsp. Naresh Malik reached the spot and SHO also called the ERV staff and Beat Constable Sanjay and briefed them accordingly whereas he was relieved from the spot. (30) During the crossexamination by Ld. Defence counsel, the witness has deposed that nothing transpired in his presence. He has admitted that he cannot tell what was confirmed by the informer to the SHO. He has further deposed that they left the Police Station around 3:40 PM and he stayed in the market area for about half an hour and left State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 23 of 110 at around 55:15 PM. He has further deposed that the members of the raiding party had reached the spot in two private vehicles and there was no official vehicle in which they reached the spot and he did not arrange for the private vehicles and he do not know who arranged the same. (31) PW11 Ct. Sanjay Kumar has deposed that on 05.07.2013 he was posted as Constable at Police Station South Rohini and on that day he was on patrolling duty in the area when he received a telephone call from SHO and he was directed to meet SI L.N. Sahni at house No. A190, pocket 00, Sector 2, Avantika, Rohini. He has further deposed that on receipt of these directions he went to the aforesaid address where he met SI L.N. Sahni who directed him to remain positioned away from the house and keep watch on the same and after some time there was a police raid in the house which was conducted by SHO, SI L.N. Sahni, W/SI Suman, W/HC Kamlesh and representative of the NGO Ms Nazma Khan while he remained standing in the gali keeping a watch. He has further deposed that after some he saw one man coming out of the house and running away, he followed the said person but could not apprehend him but he can identify him. He has further deposed that in the meanwhile he saw that the police party apprehended two ladies along with one small child. He has further deposed that at around 7:05 PM SI L.N. Sahni handed over to him a tehrir with the directions to take the same for registration of the case and he took the tehrir to the Duty Officer and handed over the same to the DO and after the registration of State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 24 of 110 the FIR he along with SI Devender to whom the original tehrir and copy of the FIR was handed over returned to the spot. He has further deposed that in his presence SI Devender arrested two ladies whose name he came to know was Anita and Santosh whereas the child was handed over to W/SI Suman and W/Ct. Mamta and the two lady officers then took the child to the Police Station and his statement was recorded and he was relieved. Witness has further deposed that on the next day i.e. on 06.07.2013 at around 5:00 AM he again joined the investigations in the present case when he along with SI Devender, W/HC Kamlesh went to Balbir Nagar, Kirari Suleman, House No. B156 and when they reached at the address one person was standing outside the house and he identified him as the person who was seeing coming out of the house and had run away. He has further deposed that in his presence W/HC Kamlesh also identified him as the person who had come for sale of the small female child and had escaped at the time of the raid and on interrogation the name of the said person was confirmed as Islamuddin. According to the witness SI Devender then arrested the said person vide memo Ex.PW11/A, his personal search was conducted vide memo Ex.PW11/B and thereafter they returned to the police station. The witness has correctly identified all the accused persons namely Anita, Santosh and Islamuddin.
(32) In the leading questions put by Ld. APP for the state, the witness has denied the suggestion that the disclosure statement was State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 25 of 110 recorded in his presence which is Ex.PW11/C or that it bears his signatures at point A. Court has observed that the signatures of the witness at point A on the arrest memo and personal search memo do not tally with the signatures on disclosure statement Ex.PW11/C. (33) During the crossexamination by Ld. Defence counsel, the witness has deposed that on 05.07.2013 when he left the police station in the morning for patrolling around 10 AM he had made his departure entry but he cannot tell its details and states that he reached back to the Police Station at around 910 PM. He has further deposed that he did not mention about joining the investigations in the present case in his arrival entry nor he mention this fact that one person had escaped during the police raid. He does not recollect the time when his statement was recorded by SI Devender. After the witness has asked to recollect and tell the time, he has kept quite for almost more than 23 minutes and then states that it must be around 9 PM. Court observed from the demeanor of the witness that he appeared to have been taken by surprise on this question only after which gave the reply by calculating the same.
(34) Witness has further deposed that soon after his statement was recorded, he returned to the Police Station along with other persons. He has further deposed that at the time of patrolling he was on his personal bike and he parked the vehicle towards the end of the gali on one side but he cannot tell the number of the house in font of which he State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 26 of 110 had parked his vehicle. He has further deposed that vehicle was parked around 5060 meters away from the house in which raid was conducted. The witness has deposed that he was standing at a distance of 3040 meters away from the house where the raid was being carried out and the gali was hardly 1015 feet wide. He has admitted that the area is totally residential with large number of houses on both the sides. He has further deposed that not many people were sitting outside the gali and there was not much crowd and some passerbys had inquired from him as to why he was standing there but he told them it was nothing and it was just like that ("main aise hi khara ho"). According to the witness, he was standing on one side of the gali and he was standing on the opposite side where house No. 190 is situated. He has admitted that from the place where he was standing he could see the house and anybody coming out of the house could see him. He has further deposed that all the persons of the police party were in uniform but the female officers were in civil and all the police officers of the raiding party had gone inside the house and no body stood outside the house. He has further deposed that he cannot tell whether the entry and exist to house No. 190 is only one and there is no other entry and the house is constructed on the ground floor and also on the first floor and he cannot tell if there were other residents in the same house. He has admitted that he is the beat constable of the area, voluntarily added that he was not aware of the every house, again said, his beat is the adjoining beat. He State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 27 of 110 has further deposed that at that time, this beat fell under the jurisdiction of HC Ram Narain and Ct. Amit. Witness has further deposed that he is posted in the Police Station South Rohini for two years and prior to that he was at Police Station Sultanpuri. He has admitted that when two ladies came out of the house along with police party the child was in the hand of lady constable / lady police officials and not in the hands of the accused Anita and Santosh. Witness has further deposed that when Islamuddin came out from the house, he started running in the side opposite to his side and he did not see SHO South Rohini at the spot nor he saw any other police official standing on the other side of the gali. He has stated that he reached the spot on the asking of the SHO but at the spot, the SHO was not there nor he gave any instructions and has voluntarily explained that all instructions were given to him by SI L. N. Sahni. He has further deposed that it hardly took about 1015 minutes during which period the police party entered the house and came out with both the ladies during which Islamuddin escaped and when he was running after Islamuddin he also raised an hue and cry and asked public persons to catch him but no body helped. He has further deposed that he hardly chased the accused for about 100150 meters but thereafter he could not see him. He has further deposed that he did not give all these details to the Investigating Officer in his statement U/s 161 Cr. P.C. which is Ex.PW11/DX1 was recorded. He has admitted that his signatures are not present on any of the documents prepared at the spot. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 28 of 110 He has further deposed that both the ladies were apprehended at around 5 PM and they were arrested only after SI Devender came to the spot at around 8 O'clock and he was not aware if SI Devender or any other lady officer had obtained the permission of Ld. MM for arresting the accused. According to the witness both the accused i.e. Anita and Santosh were kept in the lockup of Police Station during the night and they were not produced before Ld. MM after their arrest and he cannot tell if they were taken for their medical examination. (35) Witness has further deposed that in the morning when they went to Balbir Nagar area both the accused Anita and Santosh were not with them. He has admitted that Balbir Nagar Kirari Suleman is a residential area. He has further deposed that SI Devender did not ask any public person to join the police party before reaching to B156, Balbir Nagar. B156 has been constructed on 100 sq. yards plot and he cannot tell if the said house has been constructed on 33 sq. yards land and has voluntarily added that he cannot tell the exact size whether it is 50 or 100 sq. yards. He has further deposed that the said house is single floor. He has denied the suggestion that accused Islamuddin himself had surrendered in the police station South Rohini in the night of 05.07.2013. According to the witness he did not tell the Investigating Officer in his statement U/s 161 Cr. P.C. which is Ex.PW11/DX1 about the description of the person who had run from the spot. He has denied the suggestion that no such description has been mentioned because State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 29 of 110 there was no raid as claimed by him hence the question of Islammudin running away from the spot does not arise. He has denied the suggestion that all documentations was done while sitting in the Police Station and he merely signed the same on the asking of the SHO and the Investigating officer. Witness has further deposed that he was not aware if during the intervening night of 05/06.07.2013, the doctors from New Rohini Hospital where the accused Islammudin was admitted, were being pressurized to produced him on which the accused Islammuddin had reached the Police Station along with the doctors. He has denied the suggestion that the entire incident has been created to stage managed only to falsely implicate the accused Anita, Islammuddin and Santosh in the present case. He has further deposed that he had mentioned this fact to SI Devender Ex.PW11/DX2 that the accused Islammuddin had been arrested and his personal search was conducted in his presence on which memos he had signed. Confronted with statement Ex.PW11/DX2 where this fact has not mentioned. He has denied the suggestion that he was deposing falsely at the instance of senior officers. (36) PW12 HC Kamlesh has deposed that on 5.07.2013, she was posted at Police Station South Rohini and on that day, he along with SI L.N Saini, SI Suman, Nazma Khan, Ct. Mamta left the police station in one vehicle and Inspector Anil Kumar along with staff left the police station in another vehicle and reached at Avantika Market at 4.30 pm. She has further deposed that one public person whose name she does State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 30 of 110 not remember was also with them and the secret informer informed them that a deal in respect of a child was being done and pointed out towards the house in which the lady who indulges in the deal resides. According to the witness public person i.e secret informer went inside the house no. 190, Pocket 00, Sector 2, Avantika and came outside the house. She has further deposed that at about 5.30 pm, one lady came out side the house and the secret informer pointed out towards that lady as the same who is involved into deal regarding sale of a child. She has further deposed that she along with Nazma and Mamta went to that lady and told her that she required her help to which that lady asked as to what type of help she required. Thereafter, she spoke that lady and informed her that Mamta (lady constable Mamta) was her devrani and her marriage has taken place 8 years ago and she was having no child so far and they have come to know that she can get a child which she was ready to purchase. She has further deposed that initially the said lady did not help and started talking of other issues but later she became ready to help them and told them that she was having a child and they could get the child for consideration. Therefore the deal was truck for a consideration of Rs.1,00,000/ and they asked that lady to bring the child to which the lady informed them that the child was not available in the house at present and asked her to wait for some time. She has further deposed that she informed that lady that they were sitting in the vehicle and whenever the child is available, she should inform them. According State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 31 of 110 to the witness, thereafter they sat in the vehicle and she informed SI L.N Saini that deal has been finalized and they had to wait for some time. (37) Witness has further deposed that at about 6:00 pm, two ladies including the previous lady and one male person came from the said house. The other lady was having a child on her lap and both the ladies sat in their vehicle along with the baby whereas the male person remained outside the vehicle. She has further deposed that she handed over a packet to the lady who dealt with the child whereas the other lady handed over the child to lady constable Mamta and the packet was having only two currency notes of denomination of Rs.1000/ on each side and the packet was made with the help of cutting of the newspaper. (38) Witness has further deposed that SI L.N Saini had given him Rs.10,000/ separately and hence the deal was finalized for more or less for Rs.1,00,000/, which amount was to be adjusted from the said Rs.1,00,000/. She has further deposed that on the finalize of the deal, she made a signal to the police party on which the entire raiding party surrounded both the ladies and on this, the person who was standing outside the vehicle ran away from the spot and the packet which was handed over to accused Anita was recovered from her bag. According to the witness SI L.N Saini converted the packet into parcel and sealed with the seal of LNS and the sealed parcel was taken into possession vide seizure memo Ex.PW12/A and the packet of Rs.10,000/ was also taken into possession separately vide memo Ex.PW12/B and the State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 32 of 110 aforesaid girl child was taken into possession vide seizure memo Ex.PW12/C. She has further deposed that both the ladies were interrogated and their names came to be known as Anita and Santosh. Anita was the one who finalized the deal of a child and Santosh was the one who handed over the custody of the child to them. The witness has deposed that the seal after use was handed over to her and SI L.N Saini prepared a tehrir and sent the same to the police station for registration of the case through Ct. Sanjay. He has stated that SI Devender then came to the spot with Ct. Sanjay. Witness has further deposed that further investigation of this case was done by SI Devender and Ct. Sanjay brought the FIR to the spot and handed over the same to SI Devender. She has further deposed that the accused Anita was arrested by SI Devender vide memo Ex.PW12/D, her personal search was conducted vide memo Ex.PW12/E and the accused Santosh was arrested vide memo Ex.PW12/F whereas her personal search was conducted vide memo Ex.PW12/G. Thereafter the accused Anita and Santosh were thoroughly interrogated and their disclosure statements were recorded vide Ex.PW12/H and Ex.PW12/I. According to the witness on 6.07.2013, she along with SI Devender and Ct. Sanjay reached at B156, Balbir Nagar, Kirari Suleman Nagar, Delhi for the search of accused who ran away from the spot where that person who ran away from the spot met them and she had identified him as the same State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 33 of 110 person who came with the aforesaid two accused persons and on seeing the police party he ran away from the spot. According to the witness he was interrogated and his name was known as Aslam and he was also arrested vide memo Ex.PW11/A. (39) The witness has correctly identified accused persons. The witness has correctly identified one packet of currency note of the denomination of Rs.1000/ on each side and having cutting pieces of newspaper in between the both as the same as recovered from accused Sunita and the same is Ex.P1. The witness has correctly identified one bag as the same as recovered from accused Anita and the same is Ex.P2. (40) During her cross examination by Ld. Defence counsel, witness has deposed that she cannot tell las to who called Nazma Khan and at about 2:30 PM she came in the police station and she do not know if any notice was given to Nazma Khan by the investigating officer or not. According to the witness they left the police station at about 3:45 PM in two private vehicles and she do not know as to from where the said vehicles were procured and both were four wheelers but she cannot give their registration number and description. Witness has further deposed that SI L.N. Saini, herself and Ct. Suman were in one vehicle and Insp. Anil Kumar and other staff were in other vehicle and all the police officials were in civil clothes and they reached at the spot at about 4:30 PM. According to the witness 45 public persons were asked to join investigations but none agreed and she cannot tell names, State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 34 of 110 addresses or description of the said public person and she was not aware if investigating officer had given any legal notice to the public persons who refused to join the investigations. Witness has further deposed that she was not aware if investigating officer had made inquiries regarding ownership of house No. A190, sector 2, Rohini. Witness has admitted that they had not entered the said house. According to the witness accused Anita met them at a distance of 45 steps from the said house and there was no mediator / person who could arrange the deal between the accused persons and them. Witness has admitted that she is maintaining a mobile phone of make MRS or that her mobile has a recording facility or that in the briefing they were informed about the deal which was likely to be made. Witness has further deposed that they did not carry the record with them and she also did not activate the recording facility of her mobile. According to the witness there was not much hue and cry and as soon they spoke to Anita and Santosh, the ladies cooperated with them and accompanied them to the police vehicle which was parked about 1520 meters away. She has stated that there were two private cars which they had brought and two official vehicles, one was gypsy and one ERV. Witness has further deposed that both the ladies did not resist and she did not go to the hospital with the accused and she also cannot tell in which hospital they were taken and what happened thereafter. According to the witness, both the accused were arrested between 78 PM. Witness has further deposed that she State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 35 of 110 did not go to the Ld. Magistrate to take permission for the arrest these ladies and she also cannot tell if anybody else had gone to the Ld. MM to take permission for arresting the lady accused. According to the witness, they reached the police station at about 1011 PM and she was relieved at around 1112 midnight i.e. after her statement was recorded. Witness is unable to tell what happened to the accused after she was relieved around 12 midnight as she was relieved from the investigations. According to the witness, WSI Suman and Ct. Mamta had taken the child to Palna at around 1111:30 PM and did not returned back to the police station thereafter and she can say this because after she was relieved, she remained in the ladies room on the first floor since she could not go back being late night whereas the accused ladies were kept on the ground floor and has voluntarily explained that there is a room opposite the SHO room where interrogation is conducted. Witness has further deposed that the ten thousand rupees had been arranged by SI L.N. Saini but she cannot tell the details of the marks put on the said currency notes and states that in her presence, the said currency notes were never sealed nor the pullandas bear her signatures. According to the witness, the SHO came to the spot before the accused were apprehended and before the child was recovered, he was in the area but she cannot tell where. (41) According to the witness, he was in civil dress and she did not see any other official with him and after they apprehended the State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 36 of 110 accused, the SHO did not come to the spot. Witness has admitted that initially the team was headed by Insp. Anil Kumar but before the raid he was asked to leave the spot. Witness has further deposed that he was also in civil but she cannot tell the time he left the spot and they remained at the spot till about 78 PM and even during this period no public person was joined in the proceedings. Witness has denied the suggestion that no disclosure statement of Santosh and Anita was recorded in her presence and has voluntarily added that she had seen the interrogation but she cannot tell the details of the interrogation and what was told by Santosh and Anita to SI Anil Saini. Witness has denied the suggestion that all the documents were prepared in the police station and she only signed on the asking of the senior officers due to which she was unable to give the contents of the disclosure statement. Witness has further deposed that she was standing at a little distance from the accused due to which reason she cannot tell what was being told to SI L.N. Saini and has explained that they were sitting in the police vehicles whereas all writing work was being done by the investigating officer while standing outside. Witness has admitted that Balbir Singh Nagar is thickly populated residential area. According to the witness, the Investigating Officer did not join any neighbor or public person in the investigations. Witness has further deposed that they hardly remained there for five minutes when the accused Islammuddin was inside the house at that time and he did not offered any resistance at the time of his State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 37 of 110 apprehension. She is unable to tell whether Islamuddin was in good health or ailing at that time and has voluntarily added that she was only asked to identify if Islamuddin was the same person who had run away from the spot. Witness has further deposed that she did not tell SI Devender in her statement Ex.PW12/DX1 the description of Islamuddin that is person who had run away from the spot. According to the witness she had shown the spot to the investigating officer where they had apprehended the accused Santosh and Anita or the place where the vehicles had been parked. Witness has denied the suggestion that she was deposing falsely on the directions of senior officers. (42) PW13 W/Ct. Mamta has deposed that on 5.07.2013, she was posted at Police Station South Rohini and on that day, she along with SI L.N. Saini, SI Suman, Nazma Khan, W/HC Kamlesh and secret informer left the police station in one vehicle reached at Avantika Market at 4.30 pm and Investigating Officer formed a raiding party and reached at A190, Pocket 00, Sector 2, Avantika. Rohini. According to her, the secret informer informed them that a deal in respect of a child was being made and pointed out towards the house in which the lady who indulged into such deals resides and the secret informer remain outside with them. At the same time, one lady came out of the house and the secret informer pointed out towards that lady as the same who was dealing with sale of a child and thereafter she along with W/HC Kamlesh and Nazma went to that lady. She has further deposed that State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 38 of 110 they talked with that lady and told her that they required her help to which that lady asked as to what type of help they required. On this W/HC Kamlesh talked that lady and told her that she was her devrani and her marriage had taken place 8 years back but she was having no child till date and when they came to know that she could get a child arranged for them which she was ready to purchase. She has further deposed that initially the said lady did not help and started talking of other issues but on further request, she became ready to help them and told them that she was having a child and they can get the child for a consideration. According to her, therefore, the deal has been struck for a consideration of Rs. l,00,000/ (Rs one lac) and they asked that lady to bring the child to which that lady informed them that the child was not available in the house and asked them to wait for some time. She has further deposed that W/HC Kamlesh informed that lady that they were sitting in the vehicle and whenever the child is available, she should inform them after which they sat in the vehicle. Thereafter, W/HC Kamlesh informed SI L.N Saini that deal has been finalized and they had to wait for some time. She has further deposed that at about 6 pm, two ladies including the previous lady and one male person came from the said house. The other lady was having a child on her lap and both the ladies sat in their vehicle along with the baby whereas the male person remained outside the vehicle. Witness has further deposed that W/HC Kamlesh handed over a packet to the lady who dealt with the State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 39 of 110 child and the other lady handed over the child to her. The packet was having only two currency notes of denomination of Rs.1000/on each side and the packet was made with the help of cutting of the newspaper. The witness has further deposed that SI L.N Saini had given W/HC Kamlesh Rs.l0,000/separately, so, that in case if the deal was finalized for more or less Rs. 1,00,000, the amount may be adjusted from the said Rs.1,00,000/ (Rs one lac). She has further deposed that on the finalization of the deal, W/HC Kamlesh made a signal to the police party on which the entire raiding party surrounded both the ladies and on this, the person who was standing outside the vehicle ran away from the spot. She has further deposed that the packet which was handed over to accused Anita was recovered from her bag which was lying on her shoulder and SI L.N Saini converted the packet into parcel and sealed the same with the seal of LNS and the sealed parcel was taken into possession vide seizure memo Ex.PW12/A. She has further deposed that the packet of Rs.l0,000/ was also taken into possession separately vide memo Ex.PW12/B and the aforesaid girl child was also taken into possession vide seizure memo Ex.PW12/C and both the ladies were interrogated and their names were known as Anita and Santosh. According to the witness, Anita is the same lady who struck the deal of the child and Santosh is the one who handed over the custody of the child to them and the seal after use was handed over to W/HC Kamlesh. SI L.N. Saini prepared a tehrir and sent the same to the police station for State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 40 of 110 registration of the case through Ct. Sanjay when SI Devender came to the spot with Ct. Sanjay. According to the witness further investigation of this case was done by SI Devender and Ct. Sanjay brought the FIR to the spot and handed over the same to SI Devender and the accused Anita was arrested by SI Devender vide memo Ex.PW12/D. She has further deposed that her personal search was conducted vide memo Ex.PW12/E. She has further deposed that the accused Santosh was arrested vide memo Ex.PW12/F and her personal search was conducted vide memo Ex.PW12/G. She has further deposed that the accused Anita and Santosh were thoroughly interrogated and their disclosure statement were recorded vide Ex.PW12/H and Ex.PW12/I. Witness has further deposed that the child was got medically examined at SGM hospital and thereafter she was taken to Palna at Paschim Vihar and got admitted her there.
(43) The witness has correctly identified accused persons namely Anita and Santosh. The witness has correctly identified one packet of currency note of the denomination of Rs.l000/ on each side and having cuttings of pieces of newspaper in between the both as the same as recovered from accused Sunita which is Ex.P1. The witness has correctly identified one bag as the same as recovered from accused Anita and is Ex.P2.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 41 of 110 (44) During the crossexamination by Ld. Defence counsel, the witness has deposed that W/SI Suman called Ms Nazma Khan from NGO in her presence and she came to the Police Station at about 3:00 to 3:30 PM and they left the police station immediately after arrival of Ms Nazma Khan i.e. at around 3:30 PM. According to the witness in her presence no notice was given to Ms Nazma Khan. She has admitted that the information was not given to the Investigating Officer by the secret informer in her presence. She has further deposed that she does not know as to where the pullanda of the recovered notes were prepared and she also does not know the sources of Rs. Ten Thousand with SI L. N. Saini had given to W/HC Kamlesh. She has admitted that W/HC Kamlesh had not counted the said Rs. Ten Thousand in her presence. She has admitted that the packet of notes was not signed by W/HC Kamlesh and Ms Nazma Khan. According to the witness there were two vehicles in which they had gone to the spot and she cannot give the registration number and the description of the aforesaid vehicles and both the vehicles were of white color and the police officials who were in their vehicle were in civil clothes whereas the police officials present in the other vehicle were in police uniform. According to the witness they reached the spot at about 5:30 PM and the accused Anita met them at a distance of about 10 paces from her house and no body entered the house No. A190 from where the accused Anita came out. She has further deposed that Investigating Officer did not make inquiry State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 42 of 110 regarding the occupancy of the aforesaid house in her presence and Investigating Officer made request from public persons to be a witness in this case but none agreed and left the spot without disclosing their names and addresses and secret informer accompanied them to the accused Anita and thereafter he left the spot. She has admitted that she was having mobile phone make SAMSUNG at that time and the said mobile phone is having recording facilities and Investigating Officer as well as other police officials were also having mobile phones having recording facilities. She has further deposed that Investigating Officer had not told her to record the conversation between the accused persons and police officials. She has admitted that Ct. Sanjay came to the spot on a motorcycle and she cannot tell as to who chased the accused Aslam. She has admitted that there was no mediator / person in between them and the accused persons who could have finalized the deal. According to the witness, nobody from the raiding party raised any alarm when accused Aslam ran away from the spot and the pullandas were prepared at the spot and the entire writing work was done while sitting at the spot and she do not know as to how many documents were signed by Ms Nazma Khan. She does not remember whether she had mentioned the description of accused Aslam in her statement U/s 161 Cr.PC and when confronted with statement Ex.PW13/DX1 it was was not found so mentioned. She has further deposed that they remained at the spot for about 88:30 PM and returned State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 43 of 110 to the Police Station at about 1212:30 midnight and thereafter she was asked to remain with the accused and W/SI Suman was not with her at that time and she was relieved from Palna itself. She is unable to tell whether Nazma Khan was relieved from the spot itself or not. Witness has denied the suggestion that accused persons were falsely implicated in the present case or that the entire incident has been stage managed and falsely created only to falsely implicate the accused Anita, Santosh and Islamuddin. She has further denied the suggestion that she was deposing falsely at the instance of senior officers. (45) PW14 SI Laxmi Narayan has deposed that on 05.07.2013 he was posted at police station South Rohini and on that day SHO Insp. Naresh Malik received the information that a lady namely Anita is trying to sell a small baby which is in her possession and can be apprehended if raided and the child could be recovered from her. He has further deposed that the information was recorded vide DD No. 31 A which is Ex.PW4/A and a team was formed comprising himself, W/SI Suman, W/HC Kamlesh, W/Ct. Mamta and Insp. Anil Kumar. According to the witness, on the instructions of Insp. Naresh Malik, W/SI Suman informed Smt. Nazma Khan, representative of Navshristi NGO and she came to the Police Station and they all left for the place pointed out by secret informer vide DD No. 32A copy of which is Ex.PW3/A at about 4:30 PM. He has further deposed that they all reached at Avantika chowk where he directed the secret informer to State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 44 of 110 confirm the secret information once again, therefore he went to house No. 190, Pocket 00, Sector 2, Avantika, Rohini and came back at about 5 PM to him and informed him that the head of this racket is Dr. Aslam who is a doctor in a Nursing home somewhere in the area and after taking a huge amount sells the child to the needy people and also got the documents of the child prepared. Witness has further deposed that after being confirmed the secret information he informed the SHO who directed him to raid at once and he himself also came to the spot. He has deposed that he prepared W/HC Kamlesh and W/Ct. Mamta as decoy customer and Ms Nazma Khan was prepared as shadow witness and he handed over the trap money (dummy) in a packet of Rs. One Lac in which he fixed two currency notes of the denomination of Rs. One Thousand on both sides of the bundle and also fixed the cuttings of the newspaper in between both the notes to W/HC Kamlesh after being signed the same by him. He has further deposed that he also handed over Rs. Ten Thousand to W/HC Kamlesh for the purpose of adjusting the negotiation money if the deal is more or less of Rs. One Lac vide memo of handing over Ex.PW12/B. He has further deposed that he also directed the decoy customer to deal with the lady and directed Ms Nazma Khan to shadow the witness and to hear the conversation between the decoy customer and the members of the racket and he also sent the secret informer to follow the shadow witness and the decoy customer and to come out from the house before the aforesaid decoy State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 45 of 110 customer and the shadow witness. He has further deposed that they started waiting for the aforesaid official and at about 5:30 PM W/HC Kamlesh, Ct. Mamta and Ms Nazma Khan came to them and informed them that she had completed the deal with the lady for amount of Rs one lac for the purchase of child. According to him she also informed him that the lady who made the deal informed him that the child is with her and she will come out of the house within 1015 minutes therefore they waited for 1015 minutes outside the house. He has further deposed that he requested 45 passerby to join the raiding party but none agreed and left the spot without telling their names and addresses. According to the witness, W/HC Kamlesh, W/Ct. Mamta and Ms Nazma Khan came out of the house and sat in their car and informed the entire incident to him. Witness has further deposed that at about 6:00 PM two ladies came to them with a baby child and they were also accompanied by a male person and both of them sat in their vehicle and the male person remained standing outside. He has further deposed that one of them handed over the child to W/Ct. Mamta and W/HC Kamlesh and the bundle of dummy/ trap money was also handed over to the lady with whom the deal was finalized after which W/HC Kamlesh made a signal to them and at the same time both the ladies were apprehended. He has further deposed that they were interrogated and their names were known as Anita and Santosh and the lady who handed over the child to Mamta was known as Santosh whereas the lady with whom the deal was State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 46 of 110 finalized and money was handed over was known as Anita. He has further deposed that on seeing this the person who was standing outside the vehicle ran away immediately and the baby child was aged about one month and thereafter he had taken the baby child into possession vide seizure memo Ex.PW12/C. According to the witness, the accused Anita was formally searched by W/Ct. Mamta and the aforesaid packet containing dummy money was recovered from the bag lying on the shoulder of Anita and he converted the aforesaid packet into parcel and sealed the same with the seal of LNS and the said parcel was again kept in the said purse of accused Anita and thereafter the said parcel was taken into possession vide seizure memo Ex.PW12/A. He has further deposed that he handed over the baby child to W/Ct. Mamta and W/SI Suman for guarding her and for getting her admitted in Ashran (an NGO) and thereafter he prepared the rukka Ex.PW14/A and he send the rukka to the Police Station through Ct. Sanjay for getting the case registered who came back at the spot with the copy of FIR and original rukka along SI Devender to whom further investigations of this case was handed over. He has further deposed that he handed over the accused persons, case property, documents to SI Devender and SI Devender prepared the site plan at his instance vide Ex.PW14/B. (46) The witness has correctly identified the accused Anita and Santosh. The witness has correctly identified one packet of currency note of the denomination of Rs.l000/ on each side and having cutting of State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 47 of 110 pieces of newspapers in between the both as the same as recovered from accused Sunita and is Ex.P1. The witness has correctly identified one bag as the same as recovered from accused Anita and is Ex.P2. (47) During the crossexamination by Ld. Defence counsel, the witness has deposed that W/SI Suman called Ms Nazma Khan from the NGO and she came in the Police Station at about 3:00 PM. He has further deposed that he did not give her any notice and has explained that the information was given to her verbally and they left the Police Station at about 3:40 PM in two private cars whose registration number and make he does not recollect now but states that it was probably of white color. Witness has further deposed that they reached the spot at about 5:15 PM and no legal notice was served upon the public persons who refused to join the investigations. He has admitted that police officials were having mobile phone he did not try to record the conversation between the accused and the police officials. He has further deposed that accused Anita met W/HC Kamlesh in front of house No. A190, Pocket 00, sector 2, Avantika, Rohini and he did not searched the said house and he did not verify the ownership of the said house. Ct. Sanjay accompanied them from the police station, he returned back after a short duration on his motorcycle. According to the witness, all the police officials were in civil dress and no person / mediator was there who could finalize the deal. He has further deposed that the sum of Rs. 10 thousand was collected from the staff of police State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 48 of 110 station and no DD regarding the collection of said amount was made by him and the said amount was later on return back to the concerned staff of the police station and no DD was made even at that time. He has further deposed that he did not obtain the signatures of Ms Nazma Khan on any document. He has denied the suggestion that Nazma Khan was not present as alleged by him or that no such incident ever took place. (48) The witness has further deposed that they went to the spot from Avantika chowk in one vehicle and he along with W/SI Suman went to the spot in a car from Avantika chowk. He has further deposed that all other members of the raiding party had already reached there on foot but he does not recollect if any other member of the raiding party had signed the site plan or not. According to the witness, they remained at the spot for about 34 hours but he does not recollect the name of the official who chased the accused Aslam and has voluntarily added that the official was from ERV. He has further deposed that he did not try to chase accused Aslam when he fled from the spot. Witness has further deposed that the trap money was prepared at the police station and it took about 57 minutes in preparation of pullanda of trap money. According to him, the entire writing work was done at Avantika chowk while sitting inside the vehicle thereafter he had left the spot prior to the arrest of accused persons namely Anita and Santosh. He has further deposed that secret informer left the spot at about 5:30 PM. He has further deposed that he does not know how the accused persons were State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 49 of 110 brought to the Police Station. He has stated that he returned back to police station from the spot and he had made his arrival entry when he returned back to the police station. He has denied the suggestion that accused persons were falsely implicated in the present case. He has denied the suggestion that the entire incident has been stage managed and falsely created only to falsely implicate the accused Anita and Santosh or that he was deposing falsely at the instance of senior officers.
(49) PW15 SI Devender has deposed that on 5.07.2013, he was posted at Police Station South Rohini and on that day at about 7.30 pm, he was present in the area when he received a telephone call from the Duty Officer of the Police Station and was asked to reach Avantika Market, A190, Pocket 00, Sector02, Rohini as the investigations in the case had been marked to him. He has deposed that when he reached the above address, he met SI L.N Saini WSI Suman, WHC Kamlesh, Ct. Mamta and Ct. Sanjay. He has further deposed that there were two ladies with them and he discussed the matter with SI L.N Saini and he was informed that both these ladies were involved in child trafficking. SI L.N Saini handed over to him copy of the FIR and the original rukka two sealed pullandas, three memos including the recovery memo of the child along with the two ladies who had been apprehended along with a small female child who was with WSI Suman. According to him he then interrogated the two ladies who disclosed their names as Anita and State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 50 of 110 Santosh and thereafter he prepared their arrest memos, personal search memos and disclosure statements and the arrest memo of the accused Anita is Ex.PW12/D and her personal search is Ex.PW12/E. He has further deposed that her disclosure statement is Ex.PW12/H. He has further deposed that the accused Santosh was arrested vide memo Ex.PW12/F and her personal search is Ex.PW12/G and her disclosure statement is Ex.PW12/I. (50) Witness has further deposed that he immediately directed WSI Suman and WHC Mamta to go to SGM Hospital and after getting medical examination of the child done to take the child to orphanage namely Asaran, Multan Nagar and get the child admitted there. He has further deposed that they then returned to the police station and interrogated both the accused about the coaccused and after providing them food they were put in ladies lock up in the custody of W/HC Kamlesh and W/Ct. Mamta. He has further deposed that on 6.07.2013, in the morning at about 5.30 AM he along with WHC Kamlesh and Ct. Sanjay went to Balbir Nagar, Kirari, Suleman Nagar for search of the coaccused and they arrested the accused Islamuddin from there at the instance of WHC Kamlesh and Ct. Sanjay who had seen him while running from the spot. According to the witness, his arrest memo is Ex.PW11/A, his personal search memo is Ex.PW11/B and disclosure statement is Ex.PW11/C. He has further deposed that he then returned State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 51 of 110 to the police station and all the accused were taken to BSA Hospital where the medical examination was got conducted and they were produced before the Ilaka Magistrate from where three days police custody remand was taken. Witness has further deposed that he then tried to search for the parents of the female child and he also tried to search for Arif whose name was disclosed in the statement of accused Islamuddin but Arif could not be traced. According to him after three days, the accused were again produced before the Ilaka Magistrate and the accused Santosh was got remanded to JC whereas Anita and Islamuddin were taken on two days police remand and they tried to search for the parents of the child and also Arif but could not be traced on which the accused were again produced before the Ilaka Magistrate on the expiry of the custody period and got remanded to judicial custody. According to the witness during the investigation, he went to Nirmal Hospital from where he took the treatment/ admission and discharge slip regarding baby child which are Ex.PX to Ex.PX6 and the aforesaid documents were taken into possession vide seizure memo Ex.PW6/A. He has further deposed that at the instance of SI L.N Saini he prepared the site plan Ex.PW14/B. Witness has further deposed that he also collected the registration certificate from New Rohini Hospital which is Ex.PX7 and the appointment letter of accused Islamuddin which is Ex.PX8. He has further deposed that he received the letter State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 52 of 110 from Asharan Orphanage which is Ex.PW7/A which was marked to him for investigation. He has further deposed that he also received form 27 which is Ex.PX9. He has further deposed that he received the receipt regarding admission of female baby in the orphanage which is Ex.PX10. He has further deposed that the baby child was got medically examined at SGM Hospital vide casualty card Ex.PW15/A and the medical document of the baby child is Ex.PWI5/B running into two pages. He has further deposed that he took four photographs of the baby child from his mobile camera which is Ex.PWI5/Cl to Ex.PWI5/C4. He has further deposed that he also recorded the supplementary statement of accused Santosh which is Ex.PWI5/D. He has further deposed that he then recorded the statements of the various witnesses, prepared the charge sheet and filed in the court. The witness has correctly identified all the accused persons.
(51) During the crossexamination Ld. Defence counsel, the witness has admitted that child was not recovered in his presence. According to the witness he also can not tell as to who prepared the trap money/dummy and where it was prepared and when he reached the spot, two private vehicles and a government vehicle i.e ERV was found present there. He has further deposed that the private vehicles belonged to police staff and both of them were of white color. He is however unable to tell the registration number or the make of said vehicles. He State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 53 of 110 has further deposed that he did not searched House No. A190 nor he made inquiries as to who was the owner of said house. He has admitted that the spot is surrounded by residential houses. He has further deposed that he did not approached any house for making inquiries. He has further deposed that he had not shown the position of vehicles in the site plan. He has further deposed that he did not obtained the signatures of Nazma Khan on any document and he can not assign any reason for not obtaining the signatures of Nazma Klan. He has denied the suggestion that Nazma Khan was not present at the time of incident or that no such raid, as alleged, was ever took place. He has admitted that except the disclosure statements of coaccused, nothing incriminating was collected against accused Aslam. According to the witness WHC Kamlesh and Ct. Sanjay had told him the description of accused Aslam at the time of their respective statements. He has denied the suggestion that accused persons namely Santosh and Anita had not given the address of accused Aslam. The witness was asked to go through the disclosure statement of accused Anita and Santosh after which he admitted that the address of accused Aslam was not mentioned therein. He has further deposed that he does not know from where the sum of Rs.l0,000/ was collected and by whom, the said amount was collected. He has further deposed that the writing work was done at the spot and partially at Police station and he prepared police report and signed the same after reading the contents of the police report. He has admitted State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 54 of 110 that in the said police report it is mentioned that accused Aslam was arrested on the pointing out of accused persons namely Santosh and Anita. He has denied the suggestion that accused persons were falsely implicated in the present case after the incident was stage managed and falsely created. He has denied the suggestion that accused Aslam was pressurized to appear at the police station or that in the presence of his senior doctors, accused Aslam had surrendered at the police station. He has denied the suggestion that no recovery of girl child as alleged was ever took place. He has denied the suggestion that he was deposing falsely being the Investigating Officer of this case. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(52) After completing the prosecution evidence, statements of accused under Section 313 Cr.PC were recorded wherein the entire material / evidence against the accused persons were put to them which they have denied.
(53) According to the accused Anita she is a widow having two small children. She has stated that she did know Santosh or Islamuddin prior to this case. According to her, she was called outside her house where she found Santosh and Islamuddin with the police and thereafter she was also taken by the police to the police station where she was compelled to sign certain documents whose details she cannot tell. She is original resident of Kerala and cannot read or write Hindi properly. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 55 of 110
She states that she has been falsely implicated by the police and that she has nothing to do with the alleged allegations. According to Anita the recovery of the child has been and money has been planted upon him by the police. She further states that the entire case has been concocted and fabricated against her by the police and she does not even know the co accused persons prior to this incident. According to Anita, she has been falsely arrested by the police in this case and detained at the Police Station at night where she was tortured and one male police officer was made to stand on her thighs and she was beaten and it is only thereafter that she was compelled to put her signatures on various documents.
(54) According to the accused Santosh she did not know Anita prior to this incident and she had only seen her on one or two occasions in the Rohini Nursing Home. She states that Jyoti was her friend for the last three four years and the said Jyoti had given birth to a baby girl but she did not want to keep the child as her condition was very bad. According to Santosh, Jyoti had asked her to keep the child for two three days but thereafter did not come back to take the child. Santosh further states that she knows Islamuddin as he was also working in the same hospital i.e. Rohini Nursing Home. She further states that the child which was with her had been given by her to Anita to be given to somebody as Jyoti did not want to keep the child. Santosh State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 56 of 110 further states that presently she cannot tell the whereabouts of the Jyoti and she had left the house where she was residing. According to Santosh, she is totally illiterate and cannot read or write and that she put her thumb impression on certain papers in the Police Station whose contents she did not know. Santosh has stated that she was detained in the Police Station at night and only male police officials were present at night and she was given one danda blow on her right arm by one male officer.
(55) According to the accused Islamuddin @ Aslam, he is innocent and does not know the coaccused Anita and Santosh. He has stated that he is an OT Assistant in the New Rohini Hospital and although Santosh claims that she was working in the same hospital, but he never seen her in the hospital. According to the accused, on the date of incident, he was on night duty and was off during the day and had joined his duties at 8 PM. The accused Islamuddin has stated that he has been falsely implicated by the police in the present case, he did not make any disclosure statement and his signatures were obtained on some blank papers forcibly by the police which are later on converted into various memos. According to him, he had seen the police officials giving danda blows to the ladies and hence due to fear he signed the documents in the Police Station. He has stated that no such incident had taken place. According to him, all the allegations State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 57 of 110 against him are false and concocted by the police only to falsely implicate him in this case.
FINDINGS:
(56) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel, considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed on behalf of accused and prosecution.
My findings are as under:
Identity of the Accused:
(57) In so far as the identity of the accused Anita, Santosh and Islamuddin @ Aslam is concerned, the same is not disputed. Firstly, they have all been named in the FIR. Secondly, the accused Anita and Santosh were apprehended at the spot itself along with the girl child and the trapped money, whereas the accused Islamuddin @ Aslam had managed to run away but soon thereafter his identity was disclosed by the apprehended accused Anita and Santosh. Thirdly, the accused Islamuddin @ Aslam was apprehended on the intervening night within few hours of the incident after the details of his identity were disclosed by the apprehended accused Anita and Santosh. All the accused namely Anita, Santosh and Islamuddin @ Aslam have also been identified in the court by the members of the Police Party who had carried out the sting State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 58 of 110 operation and also by Ms. Nazma Khan (PW9) who is an independent public witness and a representative of a NGO working in the area and had accompanied the raiding party. Ms. Nazma Khan the representative of the NGO has identified the accused Anita as the person with whom the initial talk regarding purchase of the child had taken place between the members of the raiding party pursuant to which a deal was finalized at a sum of Rs. One Lakh. She has identified the accused Santosh as the other lady who was with Anita. I may observe that Ms. Nazma Khan does not identify the male accused Islamuddin @ Aslam who was with Anita and Santosh and has explained that he had run away. Islamuddin has however been identified by the other members of the raiding / police party as the person who had ran away from the spot and had been apprehended later.
Employment of Islamuddin and Santosh in New Rohini Hospital - Not Disputed - Proved:
(58) The case of the prosecution is that the accused Islamuddin @ Aslam and Santosh were employed in the New Rohini Hospital which is a Nursing Home and the child who was subjected to sale in a sting operation carried out by the police, was born in the said Nursing Home and allegedly abandoned by her parents soon after the birth. The accused Islamuddin in his statement under Section 313 Cr.PC has admitted that he is working as O.T. Assistant in the New Rohini State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 59 of 110 Hospital but states that he has never seen the accused Santosh in the said hospital though he admits that Santosh is also working in the same hospital. Even otherwise the appointment letter of Islamuddin which has been placed on record as Ex.PX8 shows that he had been appointed as O. T. Attendant and Multipurpose Worker on a monthly salary of Rs.
4,800/ with effect from 1.8.2009, which Islamuddin does not deny or dispute.
(59) The accused Santosh in her statement under Section 313 Cr.PC has specifically stated that she had seen Anita in the hospital on one or two occasions whereas she knew Islamuddin as he was employed in the same hospital i.e. New Rohini Hospital where she was working. (60) The investigating agency has also placed on record the registration certificate of the New Rohini Hospital situated at 156, Pocket 00, Sector11, Avantika, Rohini, in the name of Dr. Sanjay Gupta which document is Ex.PX7. The registration certificate of the Nirmal Hospital run by Dr. Ravi Kant (PW6) at C6/241/243, Nangloi, has also been placed on record as Ex.PX6 which has not been disputed or denied by the accused persons. Hence, under the given circumstances, I hold that both the accused namely Santosh and Islamuddin @ Aslam were employed in the New Rohini Hospital as Midwife / Aaya and O.T. Attendant, respectively, which aspect stand established and proved. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 60 of 110 Recovery of Child Not Disputed / Proved :
(61) The case of the prosecution is that a secret information had been received by the Inspector Naresh Malik, SHO Police Station South Rohini, that a newborn child was being subject to sale and if raided, the lady could be apprehended. As per the secret information received, a racket was being run which was headed by Dr. Aslam and after taking amount, newborn babies were being sold. Pursuant to the said information, a team had been constituted consisting of SI Laxmi Narain Saini, Inspector Anil Kumar, W/SI Suman, W/HC Kamlesh and W/Ct.
Mamta. Thereafter, on the instructions of the SHO, W/SI Suman was sent to inform the representative of NGO Navshristi pursuant to which Ms. Nazma Khan came to the Police Station and thereafter they all left the Police Station and reached at House No. 190, Pocket 00, Sector 2, Avantika, Rohini.
(62) Two currency notes of denomination of Rs.1,000/ were put on both sides of a bundle of the cuttings of newspapers and W/Ct. Kamlesh and W/Ct. Mamta were deputed as decoy customers to negotiate about the sale of the child with the seller. Ms. Nazma Khan was deputed as shadow witness. Thereafter, at about 5:30 PM, W/HC Kamlesh, Ct. Mamta and Ms. Nazma Khan came to the Incharge, raiding party and informed that they had completed the deal with the lady for Rs. One Lakh for the purchase of a child. They also informed that the lady had told them that the child is with her and she will come State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 61 of 110 out of the house within 1015 minutes. On this, the raiding party waited and also requested 45 passerbyes to join the raiding party but none agreed. Thereafter, at about 6:00 PM two ladies came out of the house with a child accompanied by a male both of whom sat in the vehicle whereas the male person remained outside the vehicle and one of the lady handed over the child to W/HC Mamta and W/HC Kamlesh and the bundle of dummy / trap money was handed over to the lady with whom the deal was finalized after which W/HC Kamlesh made a signal to the raiding party pursuant to which both the ladies were apprehended whereas the male person who had come with the ladies and was standing outside the vehicle, ran away. The accused Santosh was identified to be the lady who handed over the child to the W/Ct. Mamta whereas the accused Anita was the one with whom the deal was finalized and money was handed over. The child was hardly aged about one month and was handed over to W/Ct. Mamta and W/SI Suman and was later on admitted in the Orphanage by the name of Asharan on the directions of CWC. The packet of dummy / trap money which was handed over to the lady was recovered from the bag hanging on the shoulder of Anita which was thereafter seized. Both the ladies were interrogated and formally arrested whereas the amount of the money was also sealed and seized. On sustained interrogation, both the ladies disclosed that the male person was Islamuddin who was working with Santosh in New Rohini Hospital and on 6.7.2013 the accused Islamuddin State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 62 of 110 was arrested from Balbir Nagar, Kirari Suleman Nagar at the instance of W/HC Kamlesh and W/Ct. Mamta who had seen him running away and were in a position to identify him as the same person who was with the accused Santosh and Anita and was standing outside the vehicle and had run away from the spot. Islamuddin had also disclosed about one Arif but the police could not trace out the said Arif despite opportunity. (63) The entire case of prosecution has been proved by the members of the police party i.e. Inspector Naresh Malik (PW4), Inspector Anil Kumar (PW10), Ct. Sanjay Kumar (PW11), W/HC Kamlesh (PW12), W/Ct. Mamta (PW13) and SI Laxmi Narain (PW14) who have confirmed and corroborated each other on all the material aspects. SI Devender (PW15) had only carried out the formal interrogation and arrest of the accused Anita and Santosh who had already been apprehended by the members of the raiding party and has thereafter proved the arrest Islamuddin admission of the one month old child in the Orphanage namely Asharan at Multan Nagar. Their testimonies find due corroboration from Ms. Nazma Khan the representative of the NGO Navshristhi who had joined the police party at the time when the raid was conducted.
(64) Further, Dr. Ravikant (PW6) has proved that on 6.06.2013 a lady namely Jyoti along with a person who was handicapped from his right leg, came in his hospital and Jyoti was admitted having term pregnancy and on 7.06.2013 she delivered a female child after which she State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 63 of 110 remained in the hospital till 14.06.2013. He also proved that the said couple had initially deposited Rs.10,000/ and promised to pay remaining amount of Rs.20,000/ at the time of discharge and thereafter the couple left the hospital saying that they would bring said amount but thereafter on finding busy him in the hospital, they (couple) along with baby left the hospital without making the remaining payment of Rs.20,000/. He has further proved that at the time of admission, the couple had given their address as 30/591, MCD Colony, Sector 20, Rohini, which address was found to be fictitious. According to him, later he came to know that the child had been sold by the aforesaid couple and therefore he handed over the entire documents to the Investigating Officer which was available in his hospital at that time which documents relating to admission and treatment of patient Jyoti in the Nursing Home and birth of the baby child (female) are Ex.PX1 to Ex.PX4 and Ex.PX5 respectively which have not been denied or controverted by the accused. Rather, the accused Santosh in her statement under Section 313 Cr.PC has admitted that Jyoti had been admitted in the hospital. She has stated that Jyoti was her friend for the last three four years and Jyoti had given birth to a baby girl but she did not want to keep the child as her condition was very bad and hence Jyoti had asked her to keep the child for two three days but thereafter she did not come back to take the child. Santosh has stated that she knew Islamuddin as he was also working in the same hospital i.e. Rohini State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 64 of 110 Nursing Home. She further states that the child which was with her had been given by her to Anita to give to somebody as Jyoti did not want to keep the child and now she cannot tell the whereabouts of the Jyoti as she had left the house where she was residing.
(65) It is apparent that in so far as the aspect of parentage of the child is concerned, it is established that the child belongs to one Smt. Jyoti who had given birth to the child at New Rohini Nursing Home from where she and her husband gone away with the child without making payment of the hospital / nursing home. It is also the case of the accused Santosh that Jyoti did not want to keep the baby child and hence she gave it to her i.e. Santosh for giving the child to somebody and it was she who had given the child to Anita for giving the same to somebody. This fact so disclosed by Santosh to the Investigating Officer and also in her statement under Section 313 Cr.PC. I may note that Santosh had been employed in the same hospital where Islamuddin is employed. It is writ large that after the child had been given to Anita to give to somebody, the deal had been finalized by accused Anita with decoy customers for Rs. One Lakh which money thereafter was recovered from the possession of Anita after which both Santosh and Anita were caught red handed together. The recovery of the child at the spot stands proved and it also stands established that thereafter the child was taken to Asharan orphanage pursuant to the directions of the CWC. The relevant documents relating to the proceedings conducted by the State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 65 of 110 CWC and the admission of the child in orphanage are Ex.PW7/A and Ex.PX9 which the accused have neither disputed nor controverted. (66) The child is presently in Orphanage and Ms. Jolly Geewarghese, Adoption Officer, Asharan Orphanage examined as PW7 has proved the admission the girl child in their Orphanage by the police through CWC, Nirmal Chhaya on 5.7.2013 the details of which are placed on record as Ex.PW7/A. (67) Hence in view of the above, I hold that the prosecution has been able to successfully establish and prove the birth of the baby child (female) aged one month namely Laina (name given by the orphanage). The prosecution has also been able to prove that soon after the birth, the child was abandoned by her mother Jyoti and her husband (neither arrested nor declared a PO) who handed over the female child to Santosh for purposes to give the child to somebody else as she did not want to keep her. The prosecution has further successfully proved that a secret information with regard to the sale of the child had been received by the police officials pursuant to which a raiding party had been constituted, decoy customers (i.e. HC Kamlesh and Ct. Mamta) were deputed and shadow witness (i.e. Sm. Nazma) was also deputed and the deal regarding sale of the child was struck at Rs.One Lac after which the money was received by Anita while Santosh handed over the child to the decoy customers (i.e. HC Kamlesh and Ct. Mamta) in the presence of shadow witness (i.e. Sm. Nazma) while Ishlamuddin @ Aslam stood State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 66 of 110 outside the vehicle in which handing over of the child took place. The prosecution has also proved that thereafter the accused Santosh and Anita were apprehended whereas the accused Ishlamuddin @ Aslam was apprehended in the intervening night after few hours. It is further established that soon after the recovery, the child was produced before the CWC and on their directions was got admitted in the Asharan orphanage on 5.7.2013 as a short term pending inquiry. (68) Through, the accused Islamuddin has raised an objection with regard to the manner of his arrest and claims that he was unwell and was undergoing treatment in the hospital yet he has not been able to prove and establish these facts at all. He himself is an employee of Nursing Home and the possibility that in order to create an alibi for himself for showing his attendance at New Rohini Hospital in the night duty, cannot be ruled out. Even otherwise he has not produced any evidence or material to prove the said aspect. Islamuddin @ Aslam has been identified by the members of the raiding police party as the man who was present with both the ladies and standing outside the Van / vehicle when child was handed over to the decoy customers and trap money given to Anita. There is no history of any animosity between the police witnesses who have identified him and the accused and rules out the possibility of his false implication. In this background, I hold that the prosecution has successfully proved the above sequence of events as put forwarded by them.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 67 of 110 Charges Established / Proved against various Accused:
(69) A one month old female child/ infant abandoned by mother only because she and father of the child did not wish to keep the child.
Reasons could be manifold Primarily Poverty as the parents were unable to even foot the bills of the Nursing Home. The infant was handed over to a midwife attended to the hospital/ Nursing Home who was a friend of the mother of the infant hardly within a month of her birth and the mother asked her to give the child to anybody. It is in this background that this baby child was an object of sale for Rupees One Lac in a deal so stagemanaged by the police after the lady constables i.e. the decoys who claimed that one of them was childless despite her marriage of eight years. The question which now arise is whether this sale of infant for adoption could be Trafficking as contemplated in the Statutory Law (Section 370 and 372 IPC etc.)?
(70) Coming now to the charges invoked and firstly to the provisions of Section 317 IPC, which is reproduced as under:
"Exposure and abandonment of child under twelve years, by parent or person having care of it: Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.--This State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 68 of 110 section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure."
(71) It is writ large that in so far as the charge under Section 317 IPC is concerned, it relates to the exposure or abandonment of the child by the parents or person having care of it. In the present case the exposure and abandonment of the infant aged one month if any had been done by her parents i.e. Smt. Jyoti and her husband both of whom neither arrested till date nor proceeded against to be declared PO till date and who have both not been identified till date and their present whereabouts are unknown. The allegations of abandonment are against them. In so far as the accused Santosh, Anita and Islamuddin is concerned, there is no evidence against them relating to exposure or leaving the child with the intention of abandoning the child. Hence under the given circumstances, the provisions Section 317 Indian Penal Code cannot be invoked against the accused Anita, Sunita and Islamuddin @ Aslam.
(72) Coming next to the charge under Section 363 Indian Penal Code, which provides as under:
"Punishment for kidnapping. Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 69 of 110
(73) It is an admitted case of the prosecution that the baby child of one month who is the subject matter of sale had been given to Santosh by her mother Jyoti who was her husband as she did not want to keep the child and it was Jyoti who asked her (Santosh) to give the child to somebody. Where then is the question of kidnapping ? There is nothing on record to show that either the accused Anita, Santosh and Islamuddin @ Aslam had kidnapped the child from the custody of its parents or lawful guardian. Rather, the case of the prosecution is that it is the parents who had abandoned and disposed off the new born female child by handing over the custody of the child to Santosh for giving the child to somebody. In this background, the I hold that ingredients of Section 363 Indian Penal Code do not stand satisfied. (74) Now coming to the charge under Section 370 Indian Penal Code. Sale of child to a childless woman who wants to adopt a child howsoever immoral and revolting it may appear, is a civil wrong for any adoption in this manner is illegal and invalid not being as per the procedure prescribed but is certainly not a criminal offence in India. The provisions of Section 370 Indian Penal Code do not cover this situation while alleging Trafficking and is not an offence under any other provision, for it only becomes an offence where there are allegations of such a sale being for exploitation of the child. The provisions of Section 370 Indian Penal Code are reproduced as under: State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 70 of 110
"370. Trafficking of person. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First.-- using threats, or Secondly.-- using force, or any other form of coercion, or Thirdly.-- by abduction, or Fourthly.-- by practising fraud, or deception, or Fifthly.-- by abuse of power, or Sixthly.-- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.-- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.-- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 71 of 110 ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Coming next to the provision of Section 372 Indian Penal Code which is reproduced as under:
Whoever sells, lets to hire, or otherwise disposes of State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 72 of 110 any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
Explanation I.--When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation II.--For the purposes of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasimarital relation.
(75) Trafficking as contemplated in Indian Penal Code as herein above does not cover a situation where a child is sold as a commodity in the market. There is no presumption as regards every sale. The only situations as covered under Section 372 Indian Penal Code are when such hire, selling of disposing of a female under the age of 18 years is to State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 73 of 110 a prostitute or to any person who keeps or manages a brothel, with the intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any age be employed or used for any such purpose. The provisions of Section 372 IPC are so vague and loosely worded that the knowledge it so contemplates that such a person at any age be employed or used for purpose of prostitution, illicit intercourse or for illegal or immoral purpose in future, is something which is difficult to conceive or prove. No wonder the arrests are few and more fewer are the convictions.
(76) It is now for those responsible for framing of law to determine whether to cover such situation of sale of child for purposes of Adoption in the definition of Trafficking but in so so far as this Court is concerned the situation in hand not being covered under Section 317 or 370 IPC there is little which it can be done against the accused. (77) The illegality, of course (i.e. sale of child for purposes of adoption) has been committed. The law of this country prescribes a procedure under law for purpose of Adoption and in case if not followed the adoption is illegal. Any agreement of prior meeting of mind/ conspiracy of the caretaker of the child to give the child in adoption by selling the child for money is squarely covered in Clause (2) of Section 120A which provides that When two or more persons agree to do, or State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 74 of 110 cause to be done, an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. This is punishable under Section 120B (2) Indian Penal Code which provides that Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
(78) In the present case, no doubt there was a prior meeting of minds between all three accused namely Anita, Santosh and Islamuddin @ Aslam but the material on record is insufficient for me to conclude that it was for an illegal purpose or for doing an illegal act. The act of Adoption is legal but adoption of a child can only be done as per the procedure prescribed by law. This act i.e. sale of the child for purposes of adoption, is by means which is illegal and not in accordance with the law provided for adoption. It is this act of subjecting the child to sale which is an act which is covered under Section 120A (2) Indian Penal Code i.e. act which is not illegal (i.e. Adoption) but by illegal means (by sale of the child) which is punishable under Section 120B Clause (2) State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 75 of 110 IPC providing for punishment for being a party to criminal conspiracy other than criminal conspiracy to commit an offence. The prior meeting of mind and agreement stands establishes from the fact that all the three accused (i.e. Santosh and Islamuddin being employees of same Nursing Home and Anita being known to them as she used to frequent the hospital) were physically present at the time the deal was finalized for sale of the infant with Decoy of police.
(79) Coming now to the provisions of Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, also stands fulfilled which provides for Punishment for cruelty to juvenile or child which provisions are as under:
"Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both."
(80) Subjecting a one month old infant to sale is certainly exposing the child in a manner likely to cause to this infant unnecessary mental and physical suffering which is squarely covered Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, for which all accused are liable.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 76 of 110 (81) Hence under the given circumstances, I hereby acquit the accused Anita, Santosh and Islamuddin @ Aslam of the charges under Section 120B, 363/120B, 370/120B and 317/34 Indian Penal Code but hold them guilty for the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code and Section 120B (2) Indian Penal Code read with Section 23 of Juvenile Justice Act. Permission to arrest the accused Anita & Santosh not obtained:
(82) The accused Anita and Santosh are both women whose arrest after sunset is prohibited except in exceptional circumstances and that too in accordance with the procedure established under Section 46 (4) Cr.P.C. after obtaining the permission from the Judicial Magistrate First Class.
(83) Subsection (4) to Section 46 of the Code of Criminal Procedure has been added by Act 25 of 2005 (w.e.f. 2362006), to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances. The provisions of subsection (4) of Section 46 of the Code reads thus:
46. Arrest how made (1)... to (3)...
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 77 of 110 Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
(84) From a bare perusal of the above provisions of subsection (4) of Section 46 of the Code, it is crystal clear that, the said provision mandates that no woman shall be arrested after sunset and before sunrise save in Exceptional Circumstances, without the prior permission of the Judicial Magistrate, First Class, in whose local jurisdiction the offence is committed or the arrest is to be made. Upon careful perusal of the aforesaid provision, it is abundantly clear that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances existed, a Lady Police Officer shall, by making a written report, obtain prior permission of the Judicial Magistrate, First Class. Therefore, the requirement of the provisions of subsection (4) of Section 46 of the said Code is two fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest. In cases wherein such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offence is committed or the arrest is to be made. This sub Section (4) has been added to Section 46 and has come into force on 23.6.2006 which virtually prohibits arrest of a woman after sunset and before State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 78 of 110 sunrise except in unavoidable circumstances. The exceptional circumstances so contemplated herein above cannot be put in a straight jacket compartment and depends upon facts of each individual case. (85) The Hon'ble Apex Court while dealing with the arrest of a person accused of cognizable offence in the case of Joginder Kumar's case reported in 1994(4) SCC 460 observed that the arrest of a person becomes eminent only in certain circumstances like when the allegations involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law; or the suspect is given to violent behaviour and is likely to commit further offences; or the suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested; or the suspect is a habitual offender who unless arrested, is likely to commit similar or further offences. In case of a woman there has to be an exception circumstance to justify such an arrest. (86) In the present case, the perusal of the evidence on record reveals that no such permission of the First Class Magistrate has been obtained nor it is the case of the prosecution that it was so obtained. As evident from the testimonies of Inspector Naresh Malik (PW4), W/HC Kamlesh (PW12), W/Ct. Mamta (PW13), SI Laxi Narayan (PW14) and Si Devender (PW15) that no permission to arrest the lady accused Anita State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 79 of 110 and Santosh had been obtained from the Judicial Magistrate First Class pursuant to the report made by a lady officer before the Ld. Magistrate as contemplated under law [Section 46 (4) Cr.P.C.] which proves that not only this is a serious non compliance of the statutory law while arresting the lady accused Anita and Santosh which infringes upon their statutory rights but their arrest and confinement in the Police Station was illegal. Not only that, both these ladies Anita and Santosh have during the trial also informed the Court that during their detention in the Police Lockup they were tortured by male police officers which fact both these accused Anita and Santosh initially stated on oath and later reaffirmed in their statements under Section 313 Cr.P.C. The allegations so made are serious issues relating to Custodial Violence and Human Rights violations.
(87) Having said so and now coming to the merits of the evidence collected by the Investigating Agency and the case of the prosecution, I may observe that the aspect of illegal confinement of accused Anita and Santosh is an aspect which is separate and dose not touch the merits of the evidence so collected by the Investigating Agency except to say that action as per law is required to be initiated against the erring officers so connected with the apprehension, arrest and detention of these lady accused Anita and Santosh for their illegal detention and confinement after sunset and for non compliance of the provisions of Section 46 (4) Cr.P.C. and also for violation of their State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 80 of 110 Human Rights and Custodial Violence.
FINAL CONCLUSION:
(88) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(89) Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 81 of 110 by the police witnesses including the Investigating Officers. On the basis of the evidence on record the following aspects stand established:
➢ That the accused Santosh was employed as Midwife/ Aaya at New Rohini Hospital situated at 156, Pocket 00, Sector11, Avantika, Rohini.
➢ That the accused Islamuddin @ Aslam was employed in the New Rohini Hospital as O.T. Attendant.
➢ That the accused Anita was known to the accused Santosh since she used to frequent the Hospital/ Nursing Home. ➢ That on 05.07.2013 the SHO of Police Station South Rohini i.e. Inspector Naresh Malik received an information that a lady namely Anita was trying to sell a small baby which was in her possession.
➢ That a team was formed comprising of SI L.N. Saini, W/SI Suman, W/HC Kamlesh, W/Ct. Mamta and Insp. Anil Kumar and Smt. Nazma Khan, representative of Navshristi NGO was also joined in the raiding party. ➢ That the raiding party reached at Avantika Chowk where SI L.N. Saini directed the secret informer to confirm the secret information once again on which the secret informer went to house No. 190, Pocket 00, Sector 2, Avantika, Rohini and came back at about 5 PM to him and confirmed the information.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 82 of 110 ➢ That W/HC Kamlesh and W/Ct. Mamta were prepared as Decoy Customer and Ms. Nazma Khan was prepared as shadow witness and they were handed over the trap money (dummy) in a packet of Rs. One Lac.
➢ That the Decoy Customer was directed to deal with the lady and Ms. Nazma Khan was directed to shadow the witness and to hear the conversation between the decoy customer and the members of the racket.
➢ That at about 5:30 PM W/HC Kamlesh, Ct. Mamta and Ms. Nazma Khan returned back and informed the raiding party that they had completed the deal with the lady for amount of Rs one lac for purchase of child.
➢ That thereafter the raiding party waited for 1015 minutes outside the house.
➢ That at about 6:00 PM two ladies came to the Decoy Customers with a baby child and they were also accompanied by a male person and both of them sat in their vehicle and the male person remained standing outside.
➢ That one of them handed over the child to W/Ct. Mamta and W/HC Kamlesh and the bundle of dummy/ trap money was also handed over to the lady with whom the deal was finalized after which W/HC Kamlesh made a State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 83 of 110 signal to the raiding party and at the same time both the ladies were apprehended who disclosed their names as Anita and Santosh whereas the male who was standing outside the vehicle ran away and managed to escape. ➢ That the lady who handed over the child to W/Ct. Mamta was accused Santosh whereas the lady with whom the deal was finalized and money was handed over was the accused Anita.
➢ That the baby child aged about one month was taken into possession and both the accused Anita and Santosh were arrested.
➢ That the packet containing dummy money was recovered from the bag lying on the shoulder of Anita which was seized.
➢ That on 6.7.2013 at the instance of accused Anita and Santosh, the coaccused Islamuddin was apprehended from his house and arrested.
➢ That the infant/ child was produced before the Child welfare Committee and pursuant to the directions of the Child Welfare Committee was admitted in an Orphanage Ashran for a short stay and was given the name Laina and till date has not been claimed by anybody and continues to be under the care and custody of the Orphanage. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 84 of 110 (90) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (91) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. (92) However, the act done by the all the three accused i.e. selling of an infant how so ever revolting and immoral is not an offence as contemplated under Section 370 and 372 Indian Penal Code. Hence under the given circumstances, I hereby acquit the accused Anita, Santosh and Islamuddin @ Aslam of the charges under Section 120B, State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 85 of 110 363/120B, 370/120B and 317/34 Indian Penal Code but hold them guilty for the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code and Section 120B (2) Indian Penal Code read with Section 23 of Juvenile Justice Act, for which the accused are accordingly convicted.
(93) Before ending, in view of my observations made with regard to the statutory non compliance of the provisions of the Code of Criminal Procedure [Section 46(4) Cr.P.C.] while arresting the lady accused Anita and Santosh at 8:30 PM confirming their detention/ confinement to be illegal, an offence under the Indian Penal Code and the allegations made by the lady accused Anita and Santosh regarding Custodial Violence inflicted upon them during their detention in the Police Lockup in night primafacie discloses commission of offence under Indian Penal Code, I direct that appropriate action both legal and departmental in accordance with law be initiated against the erring officers for the same. I clarify that the directions as aforesaid shall be effective/ operational and subject to any directions passed by the Delhi High Court in Crl. MC No. 1757/2014 & Crl. M.A. No. 5872/2014. (94) Copy of this judgment be placed before the Ld. CMM concerned, Commissioner of Police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for information and necessary action as per law subject to any directions State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 86 of 110 passed by the Delhi High Court in Crl. MC No. 1757/2014 & Crl. M.A. No. 5872/2014.
(95) Be listed for arguments on sentence on 8.7.2014.
Announced in the open Court (Dr. KAMINI LAU) Dated: 03.07.2014 ASJ (NW)II: ROHINI State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 87 of 110 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI Sessions Case No. 186/2013 Unique Case ID: 02404R0300442013 State Vs. 1) Anita W/o Surender R/o H. No. 190, Sector2, Avantika, Delhi. (Convicted) 2) Santosh W/o Nawab Singh R/o House of Bhagwandas near Balaji Temple, Sher Singh Enclave Karala, Delhi. (Convicted) 3) Islamuddin @ Aslam S/o Abdul Gaffar R/o H. No. B156, Balbir Nagar Kirari Suleman Nagar, Delhi. Also at A194, PhII, Nangloi, Delhi. (Convicted) FIR No. : 191/2013 Police Station : South Rohini Under Section : 317/363/370/120B/34 Indian Penal Code Date of conviction : 03.07.2014 Arguments concluded on : 08.07.2014 Date of Sentence : 08.07.2014 State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 88 of 110 APPEARANCE: Present: Sh. Taufeeq Ahmed, Ld. Addl. PP for the State.
Convicts Anita, Santosh and Islamuddin in Judicial Custody along with Sh. Gajraj Singh, Advocate.
ORDER ON SENTENCE:
(1) The present case probably one of the first to be registered subsequent to the Criminal Law Amendment Act of 2013 after the amendment in Section 370 Indian Penal Code providing for an exhaustive definition of Trafficking. This case exposes the helplessness of the Criminal Justice System to deal with the situation where children/ infants are sold in the adoption market/ Baccha Bazar as potatoes, tomatoes and onions. It also exposes the apathy of the Government to the issue in hand even when, so far back as 23.2.1993 the Chairman, Law Commission of India had written to the then Prime Minister highlighting the seriousness of the issue to which report of the Law Commission I shall refer to herein after.
(2) The case of the prosecution is that on 5.7.2013 at 6:00 PM at Main Road near H. No. A190, Pocket00, Sector2, Rohini, the accused Anita, Santosh and Islamudin @ Aslam, entered into a conspiracy pursuant to which they kidnapped a girl child aged about one month from Adarsh Clinic for the purpose of exploitation of the said child and thereafter they left the said girl child in a place with the intention of State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 89 of 110 wholly abandoning the child.
(3) However, on the basis of the testimonies of the various witnesses examined by the prosecution particularly Ms. Nazma Khan (PW9), W/HC Kamlesh (PW12) and W/Ct. Mamta (PW13), this court vide a detailed judgment dated 03.07.2014 has acquitted the accused Anita, Santosh and Islamuddin @ Aslam of the charges under Section 120B, 363/120B, 370/120B and 317/34 Indian Penal Code but held them guilty for the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code and Section 120B (2) Indian Penal Code read with Section 23 of Juvenile Justice Act (4) Vide the detailed judgment this Court has observed that the prosecution has been able to successfully prove and establish the sale of the infant female child by the accused Santosh a midwife/ Aaya at New Rohini Hospital, Anita and Islamuddin @ Aslam an OT Attendant at New Rohini Hospital in a sting operation carried out by the local police under the SHO Police Station South Rohini pursuant to which operation the infant child was produced before the Child Welfare Committee and was admitted in an Orphanage Ashran for a short stay and was given the name Laina who till date has not been claimed by anybody and continues to be under the care and custody of the Orphanage. (5) Lamenting the lack of law of adequate provision to deal with the situation in hand, this court in its judgment observed that how so State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 90 of 110 ever revolting and immoral the act of sale of child for purposes of adoption may be, yet it is not an offence as contemplated under Section 370 and 372 Indian Penal Code. The observations and findings are as under:
"........ A one month old female child/ infant abandoned by mother only because she and father of the child did not wish to keep the child. Reasons could be manifold Primarily Poverty as the parents were unable to even foot the bills of the Nursing Home. The infant was handed over to a midwife attended to the hospital/ Nursing Home who was a friend of the mother of the infant hardly within a month of her birth and the mother asked her to give the child to anybody. It is in this background that this baby child was an object of sale for Rupees One Lac in a deal so stagemanaged by the police after the lady constables i.e. the decoys who claimed that one of them was childless despite her marriage of eight years. The question which now arise is whether this sale of infant for adoption could be Trafficking as contemplated in the Statutory Law (Section 370 and 372 IPC etc.)?
Coming now to the charges invoked and firstly to the provisions of Section 317 IPC, which is reproduced as under:
"Exposure and abandonment of child under twelve years, by parent or person having care of it: Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 91 of 110 description for a term which may extend to seven years, or with fine, or with both. Explanation.--This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure."
It is writ large that in so far as the charge under Section 317 IPC is concerned, it relates to the exposure or abandonment of the child by the parents or person having care of it. In the present case the exposure and abandonment of the infant aged one month if any had been done by her parents i.e. Smt. Jyoti and her husband both of whom neither arrested till date nor proceeded against to be declared PO till date and who have both not been identified till date and their present whereabouts are unknown. The allegations of abandonment are against them. In so far as the accused Santosh, Anita and Islamuddin is concerned, there is no evidence against them relating to exposure or leaving the child with the intention of abandoning the child. Hence under the given circumstances, the provisions Section 317 Indian Penal Code cannot be invoked against the accused Anita, Sunita and Islamuddin @ Aslam.
Coming next to the charge under Section 363 Indian Penal Code, which provides as under:
"Punishment for kidnapping. Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 92 of 110
It is an admitted case of the prosecution that the baby child of one month who is the subject matter of sale had been given to Santosh by her mother Jyoti who was her husband as she did not want to keep the child and it was Jyoti who asked her (Santosh) to give the child to somebody. Where then is the question of kidnapping ? There is nothing on record to show that either the accused Anita, Santosh and Islamuddin @ Aslam had kidnapped the child from the custody of its parents or lawful guardian. Rather, the case of the prosecution is that it is the parents who had abandoned and disposed off the new born female child by handing over the custody of the child to Santosh for giving the child to somebody. In this background, the I hold that ingredients of Section 363 Indian Penal Code do not stand satisfied.
Now coming to the charge under Section 370 Indian Penal Code. Sale of child to a childless woman who wants to adopt a child howsoever immoral and revolting it may appear, is a civil wrong for any adoption in this manner is illegal and invalid not being as per the procedure prescribed but is certainly not a criminal offence in India. The provisions of Section 370 Indian Penal Code do not cover this situation while alleging Trafficking and is not an offence under any other provision, for it only becomes an offence where there are allegations of such a sale being for exploitation of the child. The provisions of Section 370 Indian Penal Code are reproduced as under:
"370. Trafficking of person. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by--
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 93 of 110
First.-- using threats, or Secondly.-- using force, or any other form of coercion, or Thirdly.-- by abduction, or Fourthly.-- by practising fraud, or deception, or Fifthly.-- by abuse of power, or Sixthly.-- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.-- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.-- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 94 of 110 (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Coming next to the provision of Section 372 Indian Penal Code which is reproduced as under:
Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 95 of 110 immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
Explanation I.--When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation II.--For the purposes of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasimarital relation.
Trafficking as contemplated in Indian Penal Code as herein above does not cover a situation where a child is sold as a commodity in the market. There is no presumption as regards every sale. The only situations as covered under Section 372 Indian Penal Code are when such hire, selling of disposing of a female under the age of 18 years is to a prostitute or to any person who keeps or manages a brothel, with the intent that such person shall at any age be employed or used for State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 96 of 110 the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any age be employed or used for any such purpose. The provisions of Section 372 IPC are so vague and loosely worded that the knowledge it so contemplates that such a person at any age be employed or used for purpose of prostitution, illicit intercourse or for illegal or immoral purpose in future, is something which is difficult to conceive or prove. No wonder the arrests are few and more fewer are the convictions.
It is now for those responsible for framing of law to determine whether to cover such situation of sale of child for purposes of Adoption in the definition of Trafficking but in so so far as this Court is concerned the situation in hand not being covered under Section 317 or 370 IPC there is little which it can be done against the accused.
The illegality, of course (i.e. sale of child for purposes of adoption) has been committed. The law of this country prescribes a procedure under law for purpose of Adoption and in case if not followed the adoption is illegal. Any agreement of prior meeting of mind/ conspiracy of the caretaker of the child to give the child in adoption by selling the child for money is squarely covered in Clause (2) of Section 120A which provides that When two or more persons agree to do, or cause to be done, an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 97 of 110 immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. This is punishable under Section 120B (2) Indian Penal Code which provides that Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. In the present case, no doubt there was a prior meeting of minds between all three accused namely Anita, Santosh and Islamuddin @ Aslam but the material on record is insufficient for me to conclude that it was for an illegal purpose or for doing an illegal act. The act of Adoption is legal but adoption of a child can only be done as per the procedure prescribed by law. This act i.e. sale of the child for purposes of adoption, is by means which is illegal and not in accordance with the law provided for adoption. It is this act of subjecting the child to sale which is an act which is covered under Section 120A (2) Indian Penal Code i.e. act which is not illegal (i.e. Adoption) but by illegal means (by sale of the child) which is punishable under Section 120B Clause (2) IPC providing for punishment for being a party to criminal conspiracy other than criminal conspiracy to commit an offence. The prior meeting of mind and agreement stands establishes from the fact that all the three accused (i.e. Santosh and Islamuddin being employees of same Nursing Home and Anita being known to them as she used to frequent the hospital) were physically present at the time the deal was finalized for sale of the infant with Decoy of police. Coming now to the provisions of Section 23 of The Juvenile Justice (Care and Protection of Children) State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 98 of 110 Act, 2000, also stands fulfilled which provides for Punishment for cruelty to juvenile or child which provisions are as under:
"Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both."
Subjecting a one month old infant to sale is certainly exposing the child in a manner likely to cause to this infant unnecessary mental and physical suffering which is squarely covered Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, for which all accused are liable....."
(6) In terms of the above observations, the accused Anita, Santosh and Islamuddin @ Aslam were acquitted of the charges under Section 120B, 363/120B, 370/120B and 317/34 Indian Penal Code but held guilty for the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code and Section 120B (2) Indian Penal Code read with Section 23 of Juvenile Justice Act, for which they were accordingly convicted.
(7) Heard arguments on the point of sentence. The convict Anita is a widow aged about 37 years having a family comprising of one son State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 99 of 110 and one daughter. She is 12th pass and at the time of her arrest was working as Staff Nurse in a private hospital. She is a first time offender having no criminal background. She has already remained in Judicial Custody for a period of One Year and Three Days in this case. (8) The convict Santosh is also a widow aged about 45 years having a family comprising of two married daughters and one married son. She is a totally illiterate and at the time of her arrest was working in a private hospital as Midwife/ Aaya. She is a first time offender having no criminal background. She has already remained in Judicial Custody for a period of One Year and Three Days in this case.
(9) The convict Islamuddin @ Aslam is aged about 36 years having a family comprising of aged widow mother, wife, one son and one daughter. He is a Matriculate and was working as OT Attendant at the time of incident. He is a first time offender having no criminal background. He has already remained in Judicial Custody for a period of One Month and Eighteen Days in this case.
(10) Ld. Counsel appearing on behalf of the convicts has vehemently argued that the convicts are first time offenders and have no history of criminal involvements. He has further argued that all the convicts are helping hands of their respective families and any harsh view would not only be detrimental for their lives but also to the family members of the convicts. He has prayed that a lenient view be taken State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 100 of 110 against the convicts.
(11) On the other hand the Ld. Addl. PP for the State has vehemently argued that a stern view should be taken against the convicted keeping in view the seriousness and nature of the allegations involved.
(12) I have considered the rival contentions. All the convicts are first time offenders and are earning hands of their respective families. Therefore, I hereby award the following sentences to them. (13) I hereby award the following sentences to the convict Anita:
1. For the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three Months (already undergone).
2. For the offence Section 120B (2) IPC r/w Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, the convict is sentenced to Rigorous Imprisonment for a period of Three Months (already undergone).
Both the sentences shall run concurrently.
(14) In so far as the convict Santosh is concerned, I award the following sentences to her:
1. For the offence under Section 120A (2) punishable under State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 101 of 110 Section 120B (2) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three Months (already undergone).
2. For the offence Section 120B (2) IPC r/w Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, the convict is sentenced to Rigorous Imprisonment for a period of Three Months (already undergone).
Both the sentences shall run concurrently.
(15) Further, in so far as the convict Islamuddin @ Aslam is concerned, I award the following sentences to him:
1. For the offence under Section 120A (2) punishable under Section 120B (2) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three Months.
2. For the offence Section 120B (2) IPC r/w Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, the convict is sentenced to Rigorous Imprisonment for a period of Three Months.
Both the sentences shall run concurrently.
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 102 of 110 (16) Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules. (17) The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(18) One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
(19) I may also observe that in the judgment this Court has observed that there has been a statutory non compliance of the provisions of the Code of Criminal Procedure [Section 46(4) Cr.P.C.] while arresting the lady accused Anita and Santosh at 8:30 PM confirming their detention/ confinement to be illegal, an offence under the Indian Penal Code and the allegations made by the lady accused Anita and Santosh regarding Custodial Violence inflicted upon them during their detention in the Police Lockup in night primafacie discloses commission of offence under Indian Penal Code, and appropriate action both legal and departmental in accordance with law has been directed to be initiated against the erring officers for the same which which reason copy of the Judgment has been directed to be placed State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 103 of 110 before the Ld. CMM concerned, Commissioner of Police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for information and necessary action as per law. I hereby clarify that the directions as aforesaid shall be effective/ operational and subject to any directions passed by the Delhi High Court in Crl. MC No. 1757/2014 & Crl. M.A. No. 5872/2014. (20) However, before I end I shall be failing in my duty if I do not pen down my serious concerns as regards the cases relating to sale of infants and children in the Adoption Market in gross violation of the established legal procedures and the repeated observations made by various courts and the Law Commission of India. In the year 1993 the Chairman 13th Law Commission of India in the 146th Report of the Law Commission of India so forwarded by him to the then Prime Minister Sh. P.V. Narsimha Rao vide his letter dated 26.2.1993 expressed his serious concerns relating to cases of sale and transfer of women and children and lack of statutory law in the country to deal with the same and noted as under:
"...... The social evil of sale of women and children has been growing in India during recent years. This evil is substantially confined to the poor sections of our society. All human beings especially women and children need special protection of law as they are particularly vulnerable to exploitation. The Law Commission has considered this subject suomoto State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 104 of 110 having regard to the importance of the subject in the light of social justice to the poor. Though the Indian Penal Code contains certain provisions designed to deal with the disposal of persons below a certain age by way of sale or other mode of transfer, but those provisions are confined to cases where the transaction is entered into, for one of the purposes specified in those sections. But where such a purpose does not exist or is not proved at the trial, those provisions are not adequate to safeguard the interest of women and children.
The Law Commission has considered the matter in detail and I have great pleasure in forwarding herewith the 146th Report of the Law Commission of India on the subject of "Sale of Women and Children" with a proposal to add Section 373A to the Indian Penal Code to meet the social evil...."
(21) I may observe that the Law Commission in this Report (146th Report) had specifically noted that there were limitations in sections 372373 Indian Penal Code Firstly that they are confined to sale (or purchase), letting on hire (or taking on hire) or other disposal (or acquisition on disposal) of a person under the age of 18 years but do not cover the sale etc. of adults and Secondly that these sections are confined to transactions entered into for any of the purposes specified in the sections i.e. prostitution, illicit intercourse with any person and any unlawful and immoral purpose and hence the sale of the person above State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 105 of 110 the age of 18 years is not punished nor is any sale for a purpose not specified in the Sections (as also noted by this Court in the present case). In this report the Law Commission of India had recommended and proposed the insertion of Section 373A in the Indian Penal Code as under:
"373A Selling woman or minor etc. (1)Whoever, in a case nor falling under Section 372 or Section 373
(a) sells, lets to hire or otherwise disposes of, for consideration, any person under the age of eighteen years, or any woman of any age or,
(b) buys, hires or otherwise obtains for consideration the possession of any such person or any woman, shall be punished with imprisonment for either description for a term which may extend to seven years and shall also be liable to fine. (2) The provisions of this section apply in relation to a person of unsound mind, as they apply in relation to a person under the age of eighteen years.
Explanation: Nothing in this Section shall apply in relation to the hiring of the services of any person.
On the insertion of the above section in the Indian Penal code, a consequential amendment of the First Schedule of the Code of Criminal Procedure, 1973 will be needed. That Schedule deals with the categorization of offences as bailable etc. It is suggested that the newly created offence should be
(a) cognizable,
(b) nonbailable, and
(c) triable exclusively by the Court of Session.." State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 106 of 110 (22) The Indian Parliament recently enacted the Criminal Law (Amendment) Act, 2013 thereby amending Section 370 Indian Penal Code which now after the amendment defines the offence of trafficking thus replacing the prior Section 370, which dealt with the buying or disposing of any person as a slave. The new Section 370 of the Indian Penal Code criminalizes anyone who recruits, transports, harbours, transfers or receives a person using certain means (including threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement) for purposes of exploitation. Exploitation in turn is not defined but is said to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Punishment ranges from 7 to 10 years' rigorous imprisonment with fine. The Criminal Law Amendment Act, 2013 actually downloads the definition of trafficking in Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons, Especially Women and Children supplementing the 2000 United Nations Convention Against Transnational Organized Crime, India being a signatory to the UN Protocol on December 12, 2002 and having ratified it in May 2011.
(23) In so far as the concerns of the Law Commission of India and its recommendation for insertion of Section 373A Indian Penal State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 107 of 110 Code is concerned, the issue has not been touched upon at all and unfortunately the report of the Law Commission of India has been allowed to gather dust. The case in hand exposes the flip side of the issues relating to adoption in our country. The Central Government and State Governments are making efforts to simplify the adoption procedures and are encouraging placement agencies to accept abandoned or surrendered children and to nurture them till they are adopted, yet a big racket of illegal sale of children for adoption exists in many states. Illegal adoptions are secret only a small fraction of such adoptions are reported or recorded. There is no authentic factual data on the illegal adoption of children. As has been exposed in the present case, there are reports of many illegal adoptions taking place outside the adoption guidelines of CARA, through hospitals, nursing homes and agencies which are not recognized by state government or CARA. (24) The Modus operandi of such illegal adoptions is that a biological pregnant mother who does not wish to keep the child after delivery due to various reasons like poverty or the child being a girl child or by reasons of getting pregnant before marriage, soon after the delivery in a hospital allows the new born child to be taken by hospital staff and given to a prospective adoptive parent soon after delivery for payment of huge sum of money. Most of the illegal sale of children for adoption is hospital centered and relate to unwanted pregnancies. State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 108 of 110 (25) Baby Selling and Baby Buying are illegal in many countries and come within the category of adoption fraud relating to Sale of a child illegally without following any legal legislation or guidelines set up by Govt. Agencies. Unfortunately in India despite a strong recommendation by the Law Commission of India in its 146th Report recommending the extending of the scope of legal provisions so to cover the cases where a woman or a child is sold, whatever be the immediate or ultimate objective of the transaction and whether such objective be apparent or not and criticizing the sale or transfer of human beings as chattels to be used for accomplishing mercenary motives, till date no steps have been taken in this direction by the Government of the land. (26) I am pained to observe that even after 20 years of the above recommendations of the Law Commission of India the recommended amendments are yet to be deliberated upon by those who have been entrusted with the responsibility of framing the laws in this country and yet to see the light of the day. In this background, I reaffirm the recommendations of the Law Commission of India (Supra) and hold that there exists an urgent need and a valid justification to extend the scope of legal provisions so to COVER THE CASES WHERE A WOMAN OR A CHILD IS SOLD, WHATEVER BE THE IMMEDIATE OR ULTIMATE OBJECTIVE OF THE TRANSACTION AND WHETHER SUCH OBJECTIVE BE State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 109 of 110 APPARENT OR NOT. Sale of human being particularly that of an infant who needs special protection of law is condemnable and such a conduct has to be visited with criminal penalties as such transaction of sale of infant destroys the very humanness of the individual so sold and is a demoralizing act because if the law does not punish such a person it may tend to generate and perpetrate in him an insidious abhorrence of human values and a disregard for the dignity of human beings. Such a person indulging into sale tends to treat human beings as chattels to be used for accomplishing mercenary motives and THIS SERIOUS LACUNA IN THE EXISTING LAW OF THIS NATION HENCE NEEDS TO BE REMOVED.
(27) I hereby direct that a copy of this order be placed before the Chairman, Law Commission of India for information.
(28) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 08.07.2014 ASJ (NW)II: ROHINI
State Vs. Anita etc., FIR No. 191/13, PS South Rohini. Page 110 of 110