Delhi District Court
State vs . Anurag Goyal Fir 455/13 (21/17) on 12 July, 2018
State Vs. Anurag Goyal FIR 455/13 (21/17)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 21/17
FIR No. 455/13
PS Kirti Nagar
U/s 342/370/34 IPC
STATE
VERSUS
(1) ANURAG GOYAL (A1)
S/O SH.SATYA NARAYAN AGRAWAL
R/O D117, 2ND FLOOR,
MANSAROVAR GARDEN,
KIRTI NAGAR, DELHI.
(2) CHANDAN BARIK (A2)
S/O SH.SHREE NATH BARIK
R/O C90 B, SHIVAJI ENCLAVE,
RAJA GARDEN, DELHI.
Result: Acquitted Page 1 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
Date of Institution : 03.01.2017
Date of Reserving Judgment : 03.07.2018
Date of Judgment : 12.07.2018
Offence Complained of : U/s 342/370/34 IPC
Offence Charged with : U/s 342/370(2) IPC
(AGAINST A1)
: U/S 370 (2) IPC (AGAINST
A2)
JUDGMENT
1.Accused Anurag Goyal has been facing trial for the offences Punishable U/s 342 and 370(2) IPC. Accused Chandan Barik has been facing trial for the offence Punishable U/s 370(2) IPC. PROSECUTION'S CASE :
2. On 29.11.2013, on receiving DD no.7A, IO/ASI Jai Bhagwan alongwith Ct.Yogesh reached Bhatia Global Hospital and Endosurgery Institute, Ambica Vihar, Paschim Vihar, Delhi where Patient Ms.Tina Munda was found admitted vide MLC No. 641/13.
She was declared 'not fit for statement' by the doctor and therefore DD no.7A was kept pending. Thereafter, on the direction of IO, Result: Acquitted Page 2 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) accused Anurag Goyal (A1) and Chandan Barik (A2) produced Tina Munda in the PS where her statement was recorded by the IO in presence of PW9 Ms.Deepika Malik. She has stated in her statement that her mother has expired since her childhood. She is residing with her one Sister, brother and father. In the last year, one boy namely Pradeep told her that he would keep her in his house well and brought her to Delhi but left her with one Matiyas. She told Pradeep and Matiyas that she is not intending to live in Delhi and wanted to go to her house. They told her that she may work in Delhi for some days and thereafter, they would sent her to her house. Matiyas engaged her to work as Maid in one Kothi, the address of which she did not know. After 56 months, Matiyas took her to one Chandan (A2), who told her that she may work for 23 days and thereafter, she will be sent to her house. Thereafter, accused Chandan left her in the house of accused Anurag Goyal at G6, Mansarover Garden, Delhi. Thereafter, accused Chandan came at the house of Anurag Goyal for taking her Salary. She again told them that she wanted to go back to Result: Acquitted Page 3 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) her house but they ignored her. She did not want to do the work there but despite that, she did the work as Maid. The house owner did not allow her to go outside. Owners Anurag, Chandan and Matiyas never gave her money and did not allow her to talk with her Parents. Due to frustration, on 28.11.2013, she had consumed some poisonous liquid (ददमक ममरनन कद दवमई). Accused Chandan Barik (A2)and Anurag Goyal (A1) took her to hospital and got her admitted there. On the statement of injured, present case U/s 342/370 IPC was registered. Injured was kept in Nirmal Chhaya, Hari Nagar, Delhi. Inquiries were conducted from both the accused persons. They were arrested. Statement of injured U/s 164 Cr.P.C. was got recorded. On the directions of Ld.M.M., injured was taken to her native place at PS Dhekiajuli, Distt.Sonitpur (Assam) and handedover to her legal guardian. The date of birth of injured is 23.02.1993. During investigation, it was revealed that she has died on 01.11.2015 due to illness. Statements of her husband and sister Asha have been recorded in this regard. Her Death Certificate Ex.PW2/A was Result: Acquitted Page 4 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) collected. After completion of investigation, the present case was committed to the Sessions Court.
CHARGE :
3. On 20.02.2017, the accused Anurag Goyal was charged by this Court for the offences U/s 342/370(2) IPC and accused Chandan Barik was charged by this Court for the offence U/s 370(2) IPC to which both the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. To prove its case, Prosecution has cited 13 witnesses out of whom 10 witnesses have been examined before the Court.
5. On 04.12.2017, Ld.Prosecutor dropped the witness Smt.Asha cited at Srl.No. 2 in the list of witnesses as she was not the witness to the incident and her statement was not material. On the same day, he has also dropped the witness Dr.A.Rattanpal cited at Srl.No. 11 in the list of witnesses in the light of statement of Dr.Raj Kishore examined as PW3.Result: Acquitted Page 5 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
6. The Table as below shall broadly indicate the name of the witness, his/her role as per prosecution and short gist of their testimonies/documents proved through them.
S.N Name of Evidence
o. Witness/Nat
ure
PW Sh.Arun This witness was married to the deceased Tina
1 Pradhan Munda on 01.01.2014 and she had expired due to
(husband illness on 09.11.2015. She had suffered sudden of fever but was not admitted in the hospital.
deceased) PW Sh.James This witness had issued Death Certificate of 2 Palekar deceased Tina Munda in Assami language which (Pradhan is Ex.PW2/A and certified that Smt.Tina Munda of Village had expired all of sudden due to fever on Gagra and 09.11.2015. Village Panchayat of Village Panbari Barepeta) is authorised to look after such affairs pertaining to Village Mona Bagh also. He was authorised by the Village Panchayat to issue the Death Certificate of Tina Munda.
Result: Acquitted Page 6 of 38State Vs. Anurag Goyal FIR 455/13 (21/17) PW Dr.Raj This witness had medically examined the patient 3 Kishore Tina Munda on 28.11.2013 with alleged history of (RMO unknown poisoning and she had been brought in Bhatia hospital by W/Ct.Nivedita and her guardian Global Chandan. He has proved the MLC of injured as Hospital) Ex.PW3/A. The patient was unconscious at the
time when he had examined her. This witness had washed her stomach and taken her gastric lavage, kept in Jar, sealed with the seal of hospital and handedover to the Police constable alongwith sample seal.
This witness has also identified the signatures of Dr.A.Rattanpal at point B on the said MLC, who had opined the nature of injury as "Simple".
PW Sh.Hem This witness has recorded the statement of injured 4 Raj Tina Munda U/s 164 Cr.P.C. and proved the (Principle following documents : Judge, JJB (1) Proceedings for recording statement U/s 164 II, Cr.P.C. of the injured Ex.PW4/A; Ferozshah
(2) Statement of injured Tina Munda Ex.PW4/B; Kotla, Delhi (3) Certificate of this witness Ex.PW4/C;
Result: Acquitted Page 7 of 38State Vs. Anurag Goyal FIR 455/13 (21/17) (4) Application of IO Mark PW4/D and (5) Application of IO for providing copy of statement of injured Ex.PW4/E. PW ASI Anil This witness has recorded the FIR of the present 5 Kumar case and proved the following documents :
(Duty (1) Print out of FIR Ex.PW5/A; Officer)
(2) Certificate U/s 65B of the Indian Evidence Act Ex.PW5/B;
(3) Endorsement regarding Kaymi entry made in DD register regarding registration of FIR Ex.PW 5/C. PW Ct.Kishan This witness had taken both the accused persons 6 Kumar to DDU hospital for getting their medical examination conducted. After getting both the accused persons medically examined, they were brought to PS and were put in lock up.
Result: Acquitted Page 8 of 38State Vs. Anurag Goyal FIR 455/13 (21/17) PW7 Ct.Yogesh In reference to DD no.7A, this witness had accompanied ASI Jai Bhagwan to hospital at Paschim Vihar, where injury Tina Munda was found admitted. Doctor had declared her "fit for statement" but she could not depose anything. Doctor had handedover a pullanda alongwith Sample seal which was seized by the IO vide Seizure Memo Ex.PW7/A. PW8 ASI This witness has made the entry at Srl.No. 2336 Mahavir in Register no.19 on 29.11.2013 and proved its MHC(M) copy as Ex.PW8/A. The pullanda vide said entry was sent to FSL, Rohini, on 18.11.2016 through HC Jai Prakash vide RC No. 72/21/16 and he proved this entry at Portion X in Register no.19 against entry at Srl.No. 2336.
On 20.03.2017, Ct.Rishi had brought and deposited the FSL result and entry to this effect was made at Portion Y on Ex.PW8/A. He has also proved the copy of RC no.
72/21/16 as Ex.PW8/B and copy of
acknowledgement from FSL as Mark PW8/C.
Result: Acquitted Page 9 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
PW9 Ms.Deepi In the year 2013, on receiving telephonic call
ka Malik from PS Kirti Nagar, she had reached the PS,
(President where the injured Tina Munda was present. She
of Anchal had inquired from her about the incident but the
Ki Chaun, injured was repeatedly saying that she intend to
an NGO return her home in her native village. She was
for not in her proper senses though she was
Women's conscious.
Welfare) The injured told this witness that she had
consumed something (ममनन कक छ पद ललयम हह).
This witness was declared hostile and
crossexamined by the Ld.Prosecutor wherein she has identified her signatures at Point X on statement Mark PW9/A. She has also proved her statement Ex.PW9/B and admitted some facts as mentioned in the abovesaid statement Ex.PW9/B and also denied some facts as mentioned in Ex.PW9/B. Result: Acquitted Page 10 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) PW SI Jai This witness has conducted the investigation 10 Bhagwan (IO of this case as IO and deposed about all the of the case) investigation conducted by him. He has proved the following documents :
(1) Seizure memo of pullanda of Gastric Lavage Sample Ex.PW7/A;
(2) Statement of injured Tina Munda Ex.PW10/A (earlier marked as Mark PW9/A);
(3) Rukka Ex.PW10/B;
(4) Print out of FIR Ex.PW5/A;
(5) Site Plan Ex.PW10/C;
(6) Arrest Memos of both the accused persons Ex.PW10/D (that of accused Anurag Goyal) and Ex.PW10/E (that of accused Chandan Barik);
(7) Disclosure statements of both the accused persons Mark PW10/F and Mark PW 10/G;Result: Acquitted Page 11 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17) (8) His application for getting statement of Tina Munda U/s 164 Cr.P.C. Ex.PW 4/D;
(9) FSL Result Ex.PW10/H;
(10) Death Certificate of Tina Munda Ex. PW2/A;
(11) Hindi Translated Death Certificate of Tina Munda Mark PW10/J;
(12) Statement of Deepika Malik Ex.PW 9/B;
(13) Documents collected from accused Chandan Barik Mark PW10/K and Mark PW10/L. DEFENCE :
7. The incriminating circumstances produced by the Prosecution in the testimonies of PW1 to PW10 were put to both the accused persons in their Statements U/s 313 Cr.P.C. According to the accused Chandan Barik, he runs a Placement Agency by the name of "Sai Enterprises". He admits the fact that injured Tina Munda was Result: Acquitted Page 12 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) working with Anurag Goyal as domestic helper and she had told him that she had consumed liquid in Sh.Goel's house. He submitted that he had paid the hospital bills and some bills are with him. He has stated in response to question no.8 that one person by the name of "Massi" brought her to him to help her in getting work as domestic help. He gave her Rs.1,000/ as advance and she gave him her Salary of four months while saying that "भहयम यन मम आपसन गमगव जमतन समय लन ग द". Thereafter, accused Anurag Goyal did not pay her Salary of ललग four months. In response to question no.15, accused Chandan Barik stated that he is innocent. All the witnesses are interested witnesses.
He has Placement Agency and gave Employment to Tina Munda and maintained record.
Accused Anurag Goyal has stated in his statement U/s 313 Cr.P.C. that he did not know anything and nothing had happened in his presence. Statement Ex.PW4/B made by Tina Munda is a false statement. He denied that the injured was forced to work. He is not aware about the involvement of Pradeep. Tina Munda was employed Result: Acquitted Page 13 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) in his house as per her consent and through Placement Agency of Chandan Barik. She used to visit her local Guardian Chandan Barik for 12 days every month and also she left his house with him on 27th November, 2013. He admits that Chandan Barik from the agency used to collect Salary every month on her behalf. He states that he is innocent and has been falsely implicated in this case. DEFENCE EVIDENCE :
8. Both the accused persons have not produced any evidence in their defence.
9. This Court has heard Ms.Nimmi Sisodia, Ld.Prosecutor in support of the Prosecution's case and also Sh.Fanish Jain, ld. Defence counsel on behalf of accused Anurag Goyal and Sh.V.S.Rana, ld. defence Counsel for accused Chandan Barik.
10. Record has been perused carefully.
ARGUMENTS BY LD.PROSECUTOR :
11. Ms.Nimmi Sisodia, Ld.Prosecutor has urged that though the complainant Ms.Tina Munda has died and unfortunately her evidence Result: Acquitted Page 14 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) could not be recorded, but she has laid emphasis on the testimony of PW9 Ms.Deepika Malik, President of "Anchal Ki Chhaon", an NGO for Women's Welfare. According to the Ld.Prosecutor, PW9 had direct conversation with the deceased/complainant as she was asked to provide her counseling. She inquired from the Victim about the incident. She was not in proper senses though conscious. The Ld.Prosecutor further points out that this witness was required to be crossexamined U/s 154 of the Indian Evidence Act by the Addl.P.P. during which she categorically admitted that the signatures on statement Mark PW9/A dt. 30.11.2013 are her signatures at Point X. She admits that she had signed on this document in token of her presence when the statement of Tina Munda was recorded. It is pointed out that witness admitted that Tina Munda had informed her that Matti Dass (Matiyas) had left her with Chandan Barik (A2) where after which A2 engaged her in Kothis. It is pointed out that though the witness had tried to resile from her statement to the police, yet her entire statement cannot be effaced from record.Result: Acquitted Page 15 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
12. Thus, referring to the cumulative effect of the testimonies, the Ld.Prosecutor submits that the Prosecution has proved that during 01.11.2012 to 28.11.2013, the complainant was induced by one Pradeep (since absconded) to accompany him to Delhi from her Village Faizabad, Assam and that she was handedover to Matti Dass (Matiyas) (since absconded) where she was engaged as a domestic Help against her wish.
13. The Ld.Prosecutor further submits that it is proven that on 03.03.2013, accused Anurag Goyal (A1) recruited her as his Domestic Help through coaccused A2. It is pointed out that in view of the testimony of PW9, it is also proven that Tina Munda was kept confined in the house of A1 situated at D117, Mohan Garden, New Delhi.
14. The Ld.Prosecutor has further argued that the Prosecution has also proved that between 03.03.2013 to 28.11.2013, A1 had forced/coerced Tina Munda to perform work as domestic help while exploiting her physically and economically due to which she Result: Acquitted Page 16 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) consumed the poisonous substance on 28.11.2013.
15. The Ld.Prosecutor finally argued that the act of A2/Chandan Barik as explained above in having received Tina Munda from Matiyas (Matti Dass) and engaging her as a domestic help in the house of A1 where she was not paid any remuneration and forced to work against her wish is also duly proved. ARGUMENTS BY LD.DEFENCE COUNSEL :
16. The Ld.counsel for A1 has brushed aside all the arguments made by the Prosecution. As a matter of fact, Mr.Fanish Jain, Advocate has argued as a lead Counsel alongwith Sh.V.S.Rana, for both the accused persons. It is his argument that the Prosecution no where establishes that the incident took place in his house. It is contended that there is no evidence to even show that Tina Munda was actually employed in the house of A1 what to say of proving that she was financially exploited.
17. With this background, the defence counsel pointed out that as per accused A1, the incident of consumption of unknown substance did Result: Acquitted Page 17 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) not take place in his presence. So far as the employment part of Tina Munda with him is concerned, he denies that Tina Munda was forced to work. He claims to be not aware about the involvement of Pradeep. The defence counsel points out that the accused/A1 himself admits that Tina Munda was employed in his house as per her consent and through the Recruitment Agency of A2. He denies any evidence regarding financial exploitation and torture to the deceased / complainant Tina Munda.
18. According to him, Tina Munda used to visit her local guardian i.e. A2 for 1 to 2 days every month and that she had left the house of A1 on 27.11.2013. He has also admitted that he was paying monthly Salary of Rs.4,000/ to Tina Munda which was collected by Chandan Barik/A2 himself.
19. So far as A2 is concerned, Mr.Rana, Advocate categorically pointed out that deceased/complainant was working with A1 as domestic help and that she had even told him to have consumed some liquid in the house of A1. It is his case that he had visited PS Kirti Result: Acquitted Page 18 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) Nagar on 30.11.2013 and taken Tina Munda alongwith. He even claimed to be in possession of some hospital Bills. As per the record, 'Sai Enterprises' is the name of his Placement Agency but as per him, Tina Munda was working else where before she came to him for work. He also claims that Tina Munda had come with an intention to work as a domestic help and she was working as domestic help for about a year out of her own free Will. He has however, implicated his coaccused A1 by saying that A1 did not pay four months salary of Tina Munda. He admits that it is he who employed Tina Munda with Anurag Goyal/A1 as a domestic help.
20. Accordingly, with the above reflected conflict of defence of two accused persons, it is the contention of the Counsels for the accused persons that in the absence of proof of statement of Tina Munda, her conversation with PW9/Ms.Deepika Malik is inconsequential.
Reference in this context is placed in the following Judgments :
(1) Ram Kishan Singh Vs. Harmit Kaur & Another;Crl.Appeal No. 106 of 1970 Result: Acquitted Page 19 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17) "Para 8 : A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence.
Para 9 : it is true that the High Court as an appellate Court can set aside an order of acquittal. In doing so, the High Court has to review the evidence upon which the order of acquittal is founded. The High Court is to consider the views of the trial Judge as to credibility of the witnesses. The High Court is also to keep in view the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. Finally the High Court is to give reasons that the acquittal was not justified. The acquittal by the Sessions Judge cannot be said to be against the evidence or in disregard of evidence. Nor can the acquittal be said to be in Result: Acquitted Page 20 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) violation of the principles of criminal jurisdiction."
(2) R.Shaji Vs. State of Kerala Crl.Appeal No. 1774/2010 Para 14 : Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case where the magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.
Para 15 : so far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of Result: Acquitted Page 21 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide : Jogendra Nahak & others Vs. State of Orissa & others, AIR 1999 SC 2565; and Assistant Collector of Central Excise, Rajamundry Vs. Duncan Agro Industries Ltd. & others, AIR 2000 SC 2901).
Para 16 : Section 157 of the Evidenct Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to crossexamine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.
During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 Cr.P.C. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is Result: Acquitted Page 22 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) very influential, owing to which the witnesses may be influenced. (Vide : Mamand Vs. Emperor, AIR 1946 PC 45; Bhuboni Sahu Vs. King, AIR 1949 PC 257; Ram Charan & Others Vs. The State of U.P., AIR 1968 SC 1270; and Dhanabal & Anr. Vs. State of Tamil Nadu, AIR 1980 SC 628) (3) Priya Swami Vs. State Crl.Appeal No. 299/2000 "Law is well settled that a statement recorded under Section 161 and 164 code of Criminal Procedure can be used either for corroboration or contradiction. Section 157 of the Evidence Act makes it clear that a statement under Section 164 Code of Criminal Procedure can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. Since the defence would have no opportunity to cross examine the witness whose statements were recorded under Section 161 or Section 164 Code of Criminal Procedure, such statements cannot be treated as substantial evidence."
Result: Acquitted Page 23 of 38State Vs. Anurag Goyal FIR 455/13 (21/17) FINDINGS :
21. The questions that arise for consideration in accordance to Section 354 (1) (B) of Cr.P.C. are :
(1) Whether the accused/A1 have wrongfully confined the deceased Tina Munda from November, 2012 to 28.11.2013 in his house at D117, 2 nd Floor, Mansarovar Garden, Kirti Nagar, Delhi and whether, during such period he forced or coerced Tina Munda to work as domestic help by physically and economically exploiting her due to which she consumed unknown poison on 28.11.2013?
(2) Whether A2 had, between the period mentioned above, received Tina Munda for the purpose of exploitation and induced her to work at the house of A1 without any remuneration and against her wish to work as domestic help ?
The relevant Penal Proceedings of IPC are as under : Result: Acquitted Page 24 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17)
22. Section 340 IPC is as under :
"Wrongful confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
Illustrations :
(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.
(b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z."
23. Section 341 IPC is as under :
"Punishment for wrongful restraint - Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one mongh, or with fine which may extend to five hundred rupees, or with both."Result: Acquitted Page 25 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
24. Section 370 of IPC, so far pertains to here, is as under :
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.
Result: Acquitted Page 26 of 38
State Vs. Anurag Goyal FIR 455/13 (21/17)
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 less than seven years, but which may extend to ten years, and shall also be liable to fine.
xxxxxxxxxxxxxx."
25. A note has to be made at the very beginning that in this case, the Prosecution could not examine its main witness Tina Munda as she subsequently died on 09.11.2015 due to illness. This fact is proven by IO/PW10 that when he visited at the Native place of Tina Munda in Assam to collect her age Proof, he was informed of her death. The Death Certificate Ex.PW2/A is proven by PW2/Sh.James Palekar.
Its translated Version is Mark PW10/J. Result: Acquitted Page 27 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17)
26. PW1/Sh.Arun Pradhan is the husband of deceased Tina Munda.
He also proves that his wife died due to illness on 09.11.2015.
27. The question which arises is whether her statement recorded by the IO on 30.11.2013 (Ex.PW10/A) which was earlier marked as Mark PW9/A in the testimony of PW9/Ms.Deepika Malik has been proved? The question also arises as to whether the statement of Tina Munda U/s 164 Cr.P.C. Ex.PW4/B has been proved?
28. A note is also to be made of the fact that such statements can be used for corroboration and contradiction. Its use is too fold. It is to deter the witness from changing his/her stand by denying the contents of his/her previously recorded statement. Secondly, to tide over immunity from Prosecution by the witness U/s 164 Cr.P.C.
29. Section 157 of the Evidence Act clarifies that statement recorded U/s 164 Cr.P.C. can be relied upon for the purpose of corroborating the statements made by the witness or even to contradict the same. Further more, as the defence had no opportunity to crossexamine the witness whose statements are recorded U/s 164 Cr.P.C., such Result: Acquitted Page 28 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) statements cannot be treated as substantive evidence.
30. In the present case, neither Statement Ex.PW10/A nor her statement Ex.PW4/B are substantive pieces of evidence as their maker has died.
31. I am to therefore look for corroboration of the statements and for such corroboration, the only relevant witnesses before me are PW9 and the case IO.
32. I have pointed out earlier in the Judgment that in their respective statements Section 313 Cr.P.C., neither of the accused persons is denying that Tina Munda was employed by A2 to work as domestic help in the house of A1. The IO did not verify the documents Mark PW10/K, Mark PW10/C and Mark PW10/DA. However the defence has put these documents to the IO during his cross examination. Mark PW10/K shows that it is nomenclatured as an Agreement between "Sai Enterprises" (Registered) and Tina Munda. It is a 'Maid BioData'.
33. It has come in evidence that name of Placement of Agency of A2 Result: Acquitted Page 29 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) is "Sai Enterprises".
34. Ex.PW10/C is the copy of Employment Form dt. 03.03.2013.
It shows Tina Munda agreed to work as a House Maid at H.No. G6, 1st Floor, Mohan Garden, New Delhi15, which is the house of A1, at a monthly Salary of Rs.4,000/ from 03.03.2013 to 03.02.2014.
35. Mark PW10/DA is copy of Form ST2 which the IO collected but did not verify. It shows that the Firm "Sai Enterprises" has been registered with the Central Excise Department and has the Service Tax Registration Number also. It is registered for :
(1) Man Power Recruitment Agency;
(2) Education Cess and (3) Secondary and Higher Education Cess For these three services, "Sai Enterprises" has Service Tax Registration. This document can be looked into as it was collected by the IO.
36. Therefore, "Sai Enterprises" is a Registered Recruiting Agency and Mark PW10/C reveals that Tina Munda had agreed with "Sai Result: Acquitted Page 30 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) Enterprises" represented by A2 to work as a House Maid. There is no document on record to show that Tina Munda was ever Trafficked for any reason whatsoever by or at the instance of A2 or A1. Record shows that she was Major when employed in the house of A1 and the Employment is against valid documents.
37. What is to be proved is whether this Employment was against the wish of Tina Munda and whether she was wrongfully restrained at any point of time during the period as Incharge by A1 at H.No. D 117, Mansarover Garden, New Delhi and whether such exploitation resulted in her getting forced to consume an unknown poisonous substance (FSL report is Negative).
38. To find answers to these questions, I will have to revert back to PW9 and the case IO.
39. As per record, PW9 was called by the case IO at the PS on 30.11.2013 for recording statement of the Victim. As per record, when the IO had visited the "Bhatia Global Hospital, Paschim Vihar, Delhi on 28.11.2013, he could not record statement of the Victim as Result: Acquitted Page 31 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) she was 'unfit for such statement'. As per MLC Ex.PW3/A, she was conscious at 01:00 PM on 29.11.2013. The IO never went to the hospital on 29.11.2013. The Victim was discharged from the hospital on 30.11.2013 as per the Discharge Summary on record.
40. As per the IO, he had left instructions for the accused persons to bring the Victim to the PS when she recuperated.
41. Before that, she was present in the said hospital at 10:30 PM of 28.11.2013. Ex.PW3/A shows that she was brought to the hospital by her Guardian/A2. There is an Endorsement on the MLC that "Pt. taken at D117, Mansarover Garden, Delhi". As per the Charge sheet, the address of A1 is D117, Second Floor, Mansarover Garden, New Delhi. As per Mark PW10/C, she was employed at house of A1 at G6, Mansarover Garden, Delhi.
42. Both these addresses appear to be different but there is no investigation on it as to whether the A1 had shifted from First floor, G6, Mansarover Garden (if he was residing there) to his present address shown in the Chargesheet.
Result: Acquitted Page 32 of 38State Vs. Anurag Goyal FIR 455/13 (21/17)
43. On the contrary, it is second defence of the accused that he does not reside at the first floor of H.No. 117, Mohan Garden, Delhi and even in his Statement of Accused U/s 313 Cr.P.C., it is recorded that he was resident of Second Floor of D117 and that his present address is D111, First Floor, Mansarover Garden, Kirti Nagar, Delhi. In my considered view, the IO should have investigated this aspect as he states in his crossexamination as PW10 that he had visited the 'First Floor' of D117, Mansarover Garden, with the Victim, accused persons, L/Ct.Usha and accompanying Constable.
44. In my further considered view, this fact will not create much doubt in the version of the Prosecution however, when I revert back to the history of 'brought by' recorded in the MLC, what is to be noted is that presence of Anurag Goyal/A1 is not recorded thereupon. The IO made no clarification as to how it was Chandan Barik/A2, who got Tina Munda admitted at the hospital. This creates a doubt as to whether the incident of consumption of unknown poisonous substance took place in the house of A1. Defene that Tina Munda Result: Acquitted Page 33 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) had left house of A1 on 27.11.2013 therefore becomes probable. The IO has also not cared to explain specifically as to whether he had met only A2 or A1 too when he recorded brief facts in Ex.PW10/B i.e. Tehrir. He also does not specify as to what time the Victim consumed unknown substance on 28.11.2013. So absence of evidence regarding presence of Victim in the house of A1 on 28.11.2013 and further absence of evidence of the place where she consumed unknown poison coupled with the fact of absence of time of consumption and time gap between such consumption and approaching to the hospital at 10:30 PM leaves many doubts open in the Prosecution case.
45. There is also a very grave contradiction between the testimonies of PW9 and PW10. PW9 was required to be, examined by the Prosecution. According to PW9, she was not present in the room of the IO when Statement of Tina Munda Mark PW9/A (later exhibited as Ex.PW10/A) was recorded. She has been extensively crossexamined on this aspect leading to contradictions in her Court Result: Acquitted Page 34 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) statement. However, from her recrossexamination after re examination by Addl.P.P.for the State, she has clarified that, "when the Police recorded the statement of Tina Munda Mark PW9/A, I was not present in the room where her statement was recorded".
46. Else where in her testimony, she has clarified that she reached the PS and marked her presence in the PS and signed at Point X on Mark PW9/A only as a taken of her presence in PS.
47. She admits of have spoken to Tina Munda and states that she was not in proper senses and was repeatedly telling her that she wanted to go back to her house and that she had consumed some liquid substance.
48. Like the IO, she clarifies that Tina Munda was brought to Delhi by one Pradeep (not arrested) and that she was left with one Matti Dass (Matiyas) (not arrested) who got her engaged to work as Maid in Kothis, she however denies that Tina Munda ever told her that Chandan Barik got her engaged in the house of A1.
49. The entire Prosecution case reveals that PW9 is somehow not Result: Acquitted Page 35 of 38 State Vs. Anurag Goyal FIR 455/13 (21/17) giving the direct answer to this fact which is otherwise established on record in view of the document Mark PW10/K and Mark PW 10/C.
50. Nevertheless, this witness creates such doubts in the story of the Prosecution that her testimony cannot be used to corroborate contents of Ex.PW10/A and statement Ex.PW4/B.
51. In the same context, the defence has cited Judgment titled as Priya Swami Vs. State, supra in which case, the witness whose statement U/s 164 Cr.P.C. was recorded died. As a matter of fact, the Trial Court convicted the Appellant U/s 302 IPC relying upon the statement made by the complainant Surinder (since deceased) U/s 161 Cr.P.C. and of Maheshwar Pd.Singh recorded before the Ld.MM U/s 164 Cr.P.C., but who was not produced in Court as witness. It was categorically held that these statements cannot be made basis of conviction as such statements cannot be treated as substantial evidence. Conviction was Set Aside.
C ONCLUSION :
Result: Acquitted Page 36 of 38State Vs. Anurag Goyal FIR 455/13 (21/17)
52. Thus, having regard to the above, I find that there is no corroborative evidence on record to show that the Victim Tina Munda was Trafficked, criminally restrained or that she was Exploited in the manner complained of. Consequently, this Court holds that the Prosecution is not able to prove the case against both the accused persons beyond reasonable doubt. Thus, both the accused persons namely Anurag Goyal (A1) and Chandan Barik (A2) are hereby acquitted for the following offences :
(1) Accused Anurag Goyal (A1) is acquitted of offences U/s 342 and 370 (2) IPC.
(2) Accused Chandan Barik (A2) is acquitted of offence U/s 370 (2) IPC.
Both the accused persons have already furnished PBs/SBs for Rs.10,000/each (Rupees Ten thousand each) with one surety each in the like amount, in view of Section 437A Cr.P.C. as per Order dt. 03.07.2018. Sureties are present. Their Bonds are accepted for a period of six months from today.
Result: Acquitted Page 37 of 38State Vs. Anurag Goyal FIR 455/13 (21/17) Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 12.07.2018 ASJ05(W)/THC
Delhi/12.07.2018(P)
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.07.16
16:34:17
+0530
Result: Acquitted Page 38 of 38