In the Court of Ms.

Kaveri Baweja
Additional Sessions Judge- Special FTC 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 93/2013
Unique ID No. : 02401R0496712013
State versus Teena
W/o Sh. Lal Bahadur
R/o Village Kachi Bang,
PS Lohar Pani Gabisa Nepal &
Also at:
Kotha No. 56, Ist Floor, GB Road
Delhi
Case arising out of:
FIR No. : 78/2013
Police Station : Kamla Market
Under Section : 368/109/376/344/34 IPC &
3/4/5/6 ITP Act
Judgment reserved on : 09.04.2014
Judgment pronounced on : 19.04.2014
JUDGMENT
Case of the Prosecution:
Stating briefly, the facts of the case as borne out from chargesheet
are that on 09.05.13 at around 7.15 PM, one Sh. Subir Roy and Ms
Jyotsana from a NGO came to PS Kamla Market alongwith one Taibur.
Sh. Subir Roy informed SHO PS Kamla Market, Insp. Pramod Joshi that
sister of Taibur 'AK' [name withheld to protect the identity of victim] is
missing and a missing report has been registered in this regard vide DD
No. 920 at PS Diamond Harbour, District South 24 Pargana, West Bengal.
He also gave information that the said girl is at Kotha No. 56 First Floor,
GB Road, Delhi.
Insp. Joshi brought the entire facts to the notice of senior officers,
and as directed, Insp.Pramod Joshi, SHO PS Kamla Market constituted a
raiding party comprising of SI Ajay Singh, W/Ct. Sunita, Ct. Pankaj, Subir
Roy, Jyotsna, Taibur and other staff and reached at Kotha No. 56, GB
Road, Delhi. Insp. Pramod Joshi requested 4-5 passers by to join the
raiding party but none agreed and left without disclosing their names and
addresses. As per the chargesheet, due to shortage of time, no notice was
served upon any person who refused to join the raiding party.
After reaching at Kotha No. 56, Ist Floor, Left Side, GB Road, Delhi,
about 20 girls present there were gathered. Taibur was asked to identify
Prosecutirix 'AK'. Accordingly, Taibur saw all the girls present there
carefully but his sister could not be found. In the meantime, one girl
namely Ganga expressed her desire to go to her home and she was rescued
from there.
Thereafter, Insp. Pramod Joshi along with raiding party went to
Kotha No. 56, IInd Floor, Delhi where also about 20-25 girls were present.
Out of those girls, one girl identified Taibur as her brother and Taibur also
identified her. The Prosecutirix expressed her desire to go home.
Thereafter, Prosecutirix 'AK' was rescued and intimation to this effect was
given to PS Diamond Harbour, District South 24 Pargana, West Bengal.
Other girl namely Ganga was also interrogated but she stated that she does
not want to lodge any complaint against anybody and she only wanted to
go to her home. Both girls were got medically examined at LNJP Hospital
by W/ASI Chanchal and Ct. Shankar Lal. After medical examination, W.
ASI Chanchal handed over one sealed sample alongwith sample seal. Girl
Ganga refused for her gynaecological examination. Exhibits were
deposited in malkhana and both girls were made to stay at Bapuna Women
Center.
On 10.05.13 statement of Prosecutirix 'AK' was recorded. She
stated that she had studied upto class IX and her family comprised of her
parents, five brothers and four sisters.
Prosecutirix 'AK' alleged that one day in January, 2013, while she
was roaming outside her house on the road, two boys came on a
motorcycle and threw a piece of cloth on her face after which she fainted.
When she regained her consciousness, she found herself at Sialda, Railway
Station along with said two boys. When she enquired from those two boys
as to where they have brought her, they threatened her kill. Thereafter,
said two boys whose name she came to know as Raju and Ravi, took her to
Hawrah Railway Station and brought her to Delhi. They took her to a
room where two other boys namely, Rajiv and Raja were already present
and all of them told her that she will have to do the work of prostitution.
When she refused for the same, they threatened her and gave her beatings.
Thereafter, all of them called one Teena at their room and handed over
Prosecutirix to her. Prosecutirix alleged that Teena took her to Kotha No.
56, GB Road, Delhi where she met another lady Timple. She alleged that
Teena and Timple told her that she will have to do the work of prostitution
and earn money for them. When she refused to do the work of prostitution,
she was given beatings. Thereafter, due to fear, she started doing the work
of prostitution. She alleged that many customers used to visit her in one
day and each customer used to pay Rs. 300/-. Prosecutirix alleged that all
her earnings from prostitution were kept by Teena and Timple and when
she refused to do the work of prostitution, they used to give her beatings.
Whenever police used to come at Kotha for checking, they used to hide the
girls.
Both the girls i.e. Ganga and 'AK' were produced before Sh.
Gagandeep Singh, Ld. MM from there both girls were sent to Nari Niketan
and ordered to be produce before court on 13.5.13. On 13.05.13 custody of
Prosecutirix 'AK' was handed over to her father and Ganga was sent to
Nari Niketan as her Ossification Test was to be conducted.
On 15.05.13 as per the directions of Insp. Pramod Joshi, SI Ajay
Singh submitted the copy of FIR no. 279/13 dated 10.05.13 under Section
370 IPC, PS Diamond Harbour, West Bengal before Sh. Sachin Sangwan,
Ld. MM. Ld. MM after getting verified whether any case has been
registered on the basis of statement of victim 'AK' at PS Diamond Harbour,
directed SHO PS Kamla Market vide order dated 16.05.13 that case be
registered and matter be investigated.
Pursuant to directions of Ld. MM, present case was registered under
Section 344/368/376/109/34 IPC & 3/4/5/6 ITP Act.
During the course of investigation, statement of witnesses were
recorded. 'Ganga' was given counselling and report was submitted before
court. Insp. Pramod Joshi interrogated and arrested Accused Teena and
her disclosure statement was recorded separately. Statement of
Prosecutirix 'AK' was recorded by Ms Aparna Swami, Ld. MM. During
investigation, exhibits were sent to FSL, Rohini.
The Investigating Agency searched for owner of Kotha No. 56, Ist
Floor, GB Road and notice was issued to Office of BSES. As per record,
electricity bill was in the name of Ms Padma Devi H. No. 5369 i.e.
Property No. 56 Ist Floor, GB Road, Delhi who could not be traced during
investigation. NBWs were obtained for co-Accused Padma and Timple.
During investigation, co-Accused Timple, Ravi and Raju were searched
but they could not be found despite best efforts.
Charges:
After committal of case, on the basis of material on record Accused
Teena was charged for offence punishable under Section
344/368/376/109/34 IPC and 3/4/5/6 ITP Act. The Charges were read
over and explained to Accused to which he pleaded not guilty and claimed
trial.
Prosecution Evidence:
In order to prove the guilt of Accused, Prosecution examined nine
[09] witnesses on record.
PW1 Dr. Ravindra Kumar deposed that on 09.05.13, Prosecutirix
'AK' was examined by Dr. Raj who has now left the services of hospital.
He identified the handwriting and signatures of Dr. Raj as he has seen him
writing and signing during course of his duties. The MLC of Prosecutirix
is Ex. PW1/A.
PW2 Prosecutirix 'AK' deposed that she is living at Purab Bhawani
Pur, PS Diamond Harbour, South 24 Pargana, West Bengal with her
parents, five brothers and four sisters. She deposed that one day in the
month of January, 2013, while she was roaming on the road near her
house, two boys came on a motorbike and threw a piece of cloth on her
face and she became unconscious. Upon regaining consciousness, she
found herself in a house in Delhi where four boys were present namely
Raju, Raja, Rajeev and Ravi, who told her that she had to do the work of
prostitution and when she refused, they threatened to kill her.
Prosecutirix 'AK' deposed that one day Teena and her husband came
there and Raju told her that she will have to go with them and do the work
of prostitution. Upon their refusal, Teena and her husband threatened to
kill her and she was brought by them to their house. She did not know the
address of their house. Prosecutirix correctly identified Accused Teena
when produced in court. She deposed that Teena and her husband called
Raju at their house and Raju gave her beatings when she pleaded with him
to let her go. She was brought to Kotha No. 56, GB Road, Delhi by Teena
and her husband. She did not know the name of husband of Teena.
PW2 Prosecutirix 'AK' deposed that one more lady namely Timpal
was present at the Kotha. Teena and Timpal forced her to do the work of
prostitution and when she refused to do the same work, they threatened to
sell her further. Due to their threat, she started doing the work of
prostitution. She deposed that customer used to pay Rs. 300/- and the said
dmoney was taken away from her by Teena and Timpal and that she was
not allowed to keep any money with her. The money which customers
used to give sometimes as tip was also taken away by Teena and Timpal.
Prosecutirix 'AK' further deposed that in case she refused to
establish physical relations with any customer, Teena and Timpal used to
watch from CCTV cameras and they used to come to the said room and
used to threaten her that they will traffic her further. She deposed that in
case of any raid by the police, a bell used to ring and they were forced to
hide in a small room which was very suffocating. There were many other
girls in the said Kotha who were doing the work of prostitution.
PW2 further deposed that she was kept confined in the said Kotha
forcibly by Teena and Timpal and was not allowed to leave. They were
not given proper food. After about three months, one Bengali boy came to
the Kotha and asked her why she was crying and she narrated all the facts
to him. He asked her about her house and he informed her family
members. She deposed that her father and brother contacted one NGO
namely Shakti Vahini and police came to the Kotha alongwith her brother
namely Taibur Mandal and officials from said NGO. Prosecutirix deposed
that she was concealed in a small room by the Accused Timpal but when
her brother and police started searching her, Accused Timpal told her that
if she refused to recognize her brother, she will give money, mobile etc.
she agreed to do so but on seeing her brother, she identify him and,
thereafter, she was rescued by the police.
Prosecutirix 'AK' further deposed that police made inquiries from
her and recorded her statement Ex. PW2/A. One more girl namely Ganga
was also rescued by the police alongwith her. She was taken to the
hospital for her medical examination. Her statement was recorded by one
Magistrate with the help of a Bengali translator. The statement is Ex.
PW2/B.
PW3 Subir Roy, Director, Progamme and Project, Shakti Vahini
deposed that in month of March, 2013, there was an information in Shakti
Vahini regarding missing of Prosecutirix 'AK'. On 09.05.13 father and
brother of Prosecutirix came to their office and they informed them that
they had information about Prosecutirix that she was confined at Kotha
No. 56, GB Road, Delhi. Thereafter, he alongwith father and brother of
Prosecutirix went to PS Kamla Market and informed the police about the
same. He also called one volunteer of Shakti Vahini namely Jyotsna in the
PS. He deposed that police organised raiding party consisting of himself,
Jyotsna, brother of Prosecutirix and police officials and reached in front of
Kotha No. 56, GB Road, Delhi. Police asked some public persons to join
the raiding party but none of them agreed. Police conducted the raid at
Kotha No. 56, First Floor, left side, GB Road and inside the Kotha about
20 girls were gathered. One of the girls namely Ganga came forward and
told the raiding party that she was kept confined there in the Kotha and she
wanted to go from there. The brother of Prosecutirix was asked to identify
his sister among the girls but he could not identify any of the girls to be his
sister.
PW3 further deposed that then police conducted the raid at second
floor, left side of the said Kotha and found 20-25 girls in the Kotha.
Brother of Prosecutirix was again asked to identify his sister among the
girls. He identified one of the girls as his sister whose name was later
revealed as 'AK' and she also identified her brother. Ganga and
Prosecutirix 'AK' were rescued from the said Kotha and brought to PS.
Later on, Police recorded his statement.
PW4 ASI Ishwar Singh is Duty Officer who recorded FIR Ex.
PW4/A.
PW5 SI Jagdish Prasad deposed that on 06.07.13 he alongwith
IO/Insp. Pramod Joshi and W. Ct. Sarita reached at Kotha No. 56, First
Floor, right side, GB Road, Delhi alongwith secret informer. The secret
informer pointed out from outside the Kotha towards a lady and left from
there. The said lady was apprehended with the help of Ct. Sarita whose
name was revealed as Teena. Accused was interrogated and arrested. Her
personal search memo was also prepared. Disclosure statement of Accused
was also recorded vide Ex. PW7/A.
PW6 Dr. Jyotsna identifies signatures of Dr. Poonam on MLC Ex.
PW1/A as she had seen her writing and signing during regular course of
her duty.
PW7 W. SI Chanchal took two girls namely Ganga and Prosecutirix
'AK' to LNJP Hospital for their medical examination. After getting them
medically examined, she came back to the PS and handed over the medical
records and exhibits to the IO, who seized the same vide seizure memo Ex.
PW7/A.
PW8 Ct. Mahender Singh took the exhibits from the malkhana with
FSL form and deposited the same at FSL, Rohini vide RC No. 51/21.
PW9 Insp. Pramod Joshi deposed that on 09.5.13 while he was
posted as SHO PS Kamla Market, at about 7.15 PM, one Subir Roy and
Jyotsna from NGO Shakti Vahini came at PS alongwith one Taibur and
informed him that one girl 'AK' who was missing from February, 2013
from West Bengal was informed to be present at Kotha No. 56, First
Floor, GB Road. This information was brought within the notice of senior
officers who directed him to conduct a raid. On this information, he
constituted a raiding party consisting of himself, SI Ajay Singh, W. Ct.
Sunita, Ct. Pankaj, Subir Roy, Jyotsna and Taibur and left the PS and a
Govt. Gypsy for Kotha No. 56, GB Road at about 8 PM. Near Kotha No.
56, he requested 4-5 passers by to join raiding party after briefing them
about the information but none of them had agreed and left the place
without disclosing their names and address.
A raid was conducted at Kotha No. 56, First Floor, left side, GB
Road. 20 girls were found present there. Taibur, the brother of missing girl
'AK' was asked to identify his sister amongst those girls but he did not
identify any of the girls as his sister. Out of those girls, one girl whose
name was revealed as Ganga told him that she wanted to go her home. The
girl Ganga was rescued from the Kotha.
Thereafter, they conducted the raid at the second floor of Kotha No.
56. We went at second floor from inside the first floor. 20-25 girls were
also present there. Taibur was again asked to identify his sister and he
identified one girl as his sister whose name was revealed as 'AK' who also
identified her brother. They came back to PS alongwith rescued girls
Ganga and 'AK'. Both the girls were sent for medical examination to LNJP
Hospital in the custody of W. SI Chanchal and Ct. Shankar Lal. Thereafter,
they were kept in Short Stay Home at Bapna Ghar, Bhagwan Dass Road.
On the next day, with the help of NGO staff of Shakti Vahini,
statement of Prosecutirix 'AK' was recorded as she was speaking mixed
language Hindi and Bengali which is already Ex. PW2/A attested by me at
point B. Ganga did not level any allegation against anyone. As a missing
report was also registered at PS Diamond Harbour, West Bengal, the said
complaint was faxed to SP of concerned district after consultation with
senior police officers. Both the girls were produced in the Court of Duty
MM and Ld. MM directed to produce them before concerned court on
13.5.13 and both the girls were sent to Nari Niketan.
On 13.5.13 'AK' and Ganga were produced before Ld. MM. Ld. MM
called the detailed report for 16.5.13 with regard to missing report already
lodged at PS Diamond Harbour, West Bengal i.e. FIR No. 279/13 PS
Diamond Harbour. As FIR No. 279/13 was registered only under Section
370 IPC, Ld. MM directed to register the case under appropriate section.
On 16.5.13 he prepared the rukka which is Ex. PW9/A and got registered
the FIR.
PW9 Insp. Pramod Joshi inspected the spot and prepared the site plan
Ex. PW9/B. He searched for the Accused but they could not be traced.
'AK' was released to the custody of her parents. Prosecutirix was called
several times but she did not appear as she was busy in the investigation of
case FIR No. 279/13 PS Diamond Harbour.
On 06.7.13 on the basis of secret information, Accused Teena was
apprehended from Kotha No. 56 First Floor, right side, GB Road, Delhi and
was arrested at about 12.30 PM vide arrest memo Ex. PW9/C and her
personal search was conducted by W. Ct. Sarita vide memo Ex. PW9/D.
Accused was interrogated and she gave her disclosure statement which is
already Ex. PW5/A. Accused was produced before the court and was taken
on two days PC remand for the arrest of other co-Accused. Raids were
conducted at several places but Accused could not be found.
On 15.7.13 Prosecutirix 'AK' came from West Bengal. Her statement
was got recorded in court under Section 164 CrPC. I collected the copy of
statement.
During investigation, on the basis of electricity bill furnished by
BSES, the owner of the said Kotha was one Padma Devi. However, the
complete ownership proof could not be found. PW9 recorded the
statement of witnesses, completed the investigation, prepared the
chargesheet and filed it in court.
Plea of the Accused :
The entire incriminating evidence was put forth to the
Accused in her statement recorded under Section 313 Cr.PC. Accused
pleaded innocence and claimed her false implication in the case. She
stated that she only prepared food for the inmates of the kotha who are
doing the work of singing and dancing voluntarily in the said kotha. The
Accused did not prefer to lead any evidence in her defence.
Arguments, Analysis and Findings:
I have heard arguments advanced by Ld. APP and gone through the
detailed written arguments filed on behalf of Accused.
While on the one hand, Ld. APP has contended that case of the
Prosecution stands established beyond reasonable doubt. On the other
hand, it is argument of Defence that Prosecution has failed to prove its
case. It is contended on behalf of Accused that though as per the
Prosecution case, statement of the victim in the present case had been
recorded on 10.05.13 itself, yet the FIR was registered only on 16.05.13. It
is contended that unexplained delay of seven days in registration of FIR
after recording of statement of victim in the present case clearly indicates
that case of Prosecution is manipulated and fabricated.
It is further contended that there is no explanation on record for the
delay in recording of statement of Prosecutirix under Section 164 CrPC
and it was recorded only on 15.07.13. It is submitted that this also
indicates that statement of Prosecutirix under Section 164 CrPC is
procured one and the Prosecutirix was tutored.
The next contention of the Defence is that no independent public
person of the locality was joined during investigation of the case at any
point of time as per the mandate of provisions of ITP Act, particularly
Section 15 of ITP Act. It is submitted that non-joining of the respectable
persons of the locality vitiate the entire proceedings and case of
Prosecution must fail on this score itself.
It was further submitted by learned defence counsel that there are
marked improvements and embellishments in the deposition of the
Prosecutirix before the court, as is highlighted by her detailed cross-
examination wherein she has been confronted with her earlier statements.
In view of the said material improvements in her testimony, the testimony
of Prosecutirix cannot be said to be worthy of credit and thus cannot be
relied upon as it does not inspire confidence.
In the detailed written arguments, Defence has also sought to
highlight that the alleged place of occurrence has not been proved on
record by the Prosecution. It is contended that though Accused has been
arrested from Kotha No. 56, First Floor, GB Road, Delhi on 06.07.13, it is
the own case of the Prosecution that Prosecutirix was allegedly rescued
from Kotha No. 56, Second Floor on 09.5.13. It is further contended that
there is no evidence whatsoever that Accused was having any kind of
connection with the place from where Prosecutirix was allegedly
recovered i.e Kotha No. 56, Second Floor, GB Road, Delhi. Further, there
is no mention of any Kotha or its number in the entire judicial record and
Prosecution has thus failed to prove its case beyond reasonable doubt.
It is further contended that the Investigating Agency has failed to
bring on record as witness the other 20-25 girls who were present in the
Kotha at the time of rescue of Prosecutirix and absence of any of those
girls as witness is also fatal to the case of the Prosecution.
Similarly, brother of Prosecutirix who as per Prosecution case was
part of the raiding party at the time of rescue of the Prosecutirix was not
examined as a witness by the Prosecution, thus, casting a shadow of doubt
on the entire case of the Prosecution.
Lastly, it was contended that there is no evidence of any conspiracy
between Accused and other co-Accused persons and thus the Prosecution
case must fail.
I have considered the rival submissions in the light of the evidence
on record.
At the outset, it is necessary to first discuss the guiding case law as
laid down by Hon'ble Apex Court for dealing with cases involving sexual
offences with women. It has been laid down by Hon'ble Supreme Court in
State of Punjab vs. Gurmit Singh & Ors., AIR 1996 SC 1393(1) as under:
In cases involving sexual molestation,
supposed considerations which have no material
effect on the veracity of the Prosecution case or
even discrepancies in the statement of the
Prosecutirix should not, unless the discrepancies
are such which are of fatal nature, be allowed to
throw out an otherwise reliable Prosecution case.
The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggrassion
are factors which the courts should not overlook.
The testimony of victim in cases of sexual
offences is vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the Courts should
find no difficulty to act on the testimony of a victim
of sexual assault alone to convict and Accused
where her testimony inspires confidence and is
found to be credible. Seeking corroboration of
her statement before relying upon the same, as a
rule, in such cases amounts to just adding insult to
injury. Why should the evidence of a girl or a
woman who complains of rape or sexual
molestation, be viewed with doubt, disbelief or
suspicion?
In Gurmit Singh (Supra), the Hon'ble Supreme Court also laid down
as to what is the duty of a Court while appreciating evidence in case of
sexual office. It was observed that:
Of late, crime against women in general and
rape in particular is on the increase. It is an irony
that while we are celebrating women's rights in all
spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of
human dignity of the victims of sex of crimes...
...The courts must deal with such cases with
utmost sensitivity. The Courts should examine the
broader probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the Prosecutirix ,
which are not of a fatal nature, to throw out an
otherwise reliable Prosecution case.
.....The testimony of the Prosecutirix must
be appreciated in the background of the entire
case and the trial court must be alive to its
responsibility and be sensitive while dealing with
cases involving sexual molestations.
Keeping in mind the said Principles of Law , it is essential to firstly
deal with the arguments of Defence that alleged place of incident has not
been established on record by the Prosecution. In support of this
argument, Ld. Defence Counsel pointed out towards testimony of
Prosecutirix PW2 and argued that in her entire deposition, she has failed
to specify the place where she was allegedly made to do the work of
prostitution and the place from where she was rescued. It was contended
that in absence of any evidence to this effect, the Prosecution has failed to
prove the allegations against Accused and to connect her with commission
of alleged offences.
Having gone through the evidence led by the Prosecution on record
in its entirety, I am, however, unable to subscribe to the said arguments of
the Defence for the reasons as discussed herein below. Although,
Prosecutirix PW2 was unable to spell out the floor of Kotha No. 56, GB
Road, Delhi where she was allegedly forced into prostitution by Accused
Teena and co-Accused, however, the place from where she was rescued
has been clearly established on record by way of testimony of PW3 Subir
Roy and PW9 Insp. Pramod Joshi.
Moreover, Prosecutirix 'AK' herself deposed before the court that
she was abducted from her native village by two boys and she was brought
to Delhi where she was forced to do the work of prostitution by Accused
Teena and other co-Accused. In her cross-examination, the witness
candidly deposed before the court that she was not conversant with Hindi
language and she was as such unable to tell the name of the place told by
Accused Teena to the TSR driver when she was being taken by Teena and
her husband. She also deposed that she was unable to notice the number of
floors in that house where she was taken by them as she was immediately
pushed inside the gate. However, the witness clearly deposed that she was
taken to Kotha No. 56, First Floor, GB Road, Delhi on the next morning by
the Accused.
It is a matter of record that PW1 was not conversant with
Hindi/English and only knew Bangla language. It is also a matter of record
that help of an Interpretor was taken while examining this witness. She
deposed that she was abducted and brought to Delhi by two boys and was
taken to Kotha No. 56, GB Road by Accused Teena and her husband. She
correctly identified Accused Teena and deposed that it is Accused Teena
who along with Timple (not arrested) forced her to do the work of
prostitution at the said Kotha. The contention of the Defence that the place
where the Prosecutirix was forced to do the work of prostitution has not
been established on record is thus completely baseless and must be rejected
outrightly.
Moreover, it has also come on record in the testimony of PW3 Sh.
Subir Roy and PW9 IO/Insp. Pramod Joshi that victim 'AK' was rescued
from Kotha No. 56, Second Floor, GB Road, Delhi. PW1 deposed that
Accused never used to allow her to leave the Kotha till the time she
remained there. Thus, apparently, she was forced to do the work of
prostitution by Accused Teena at the place from where she was rescued ie.
Kotha No. 56, Second Floor, GB Road, Delhi.
The victim PW2 also deposed that Accused Teena and co-Accused
Timple [not arrested] forced her to do the work of prostitution and when
she refused to do the said work, they threatened to sell her further and due
to their threat, she started doing the work of prostitution. She further
deposed that the payment of Rs. 300/- made by the customers was also
taken away Teena and Timple. She was not allowed to keep any money
with her. She also deposed that the money which customers used to give
some times as tip was also taken away by Teena and Timple.
The testimony of the Prosecutirix PW2 further reveals that she
brought out in her deposition that Accused Teena and Timpal used to
watch from CCTV cameras and they used to come to the said room and
used to threaten her to traffic her further, in case she refused to establish
physical relations with any customer. She also stated that in case of any
raid by the police, a bell used to ring and they were forced to hide in a
small room which was very suffocating. She deposed that she was kept
confined in the said Kotha by Accused Teena and Timple and not allowed
to leave the Kotha. They were not given proper food and she was rescued
only after she requested one Bengali boy, who came to Kotha and informed
her family members.
The plight of the Prosecutirix is thus clearly brought out from her
deposition. It is noteworthy that at the time of her deposition on 06.12.13,
the witness also brought out before the court that someone has been calling
on the mobile phone of her brother and asking her to compromise the case
and take Rs. 1,00,000/- in lieu thereof and the phone calls have been made
from different numbers and caller did not tell his name.
It is thus apparent that Prosecutirix and her family members were
being pressurized and an attempt was being made to ensure that victim
does not give the correct statement before the court. As per her statement,
her family members were also offered Rs. 1 lakh for compromising the
case. Undoutedly, the benefit of such an allurement can be related directly
to the Accused and to no one else.
Further, the testimony of PW2 remained unimpeached despite her
lengthy cross-examination. The 'so-called' improvements in her testimony,
as sought to be pointed out by the Defence, to my mind, are not material
and certainly cannot be said to be fatal to the case of the Prosecution.
I also find myself unable to subscribe to the arguments of Defence
that there is unexplained delay of seven days in registration of FIR in the
present case. A bare perusal of the chargesheet itself would reveal that the
case was registered only pursuant to the directions of the concerned area
MM who after clarifying the facts from PS Diamond Harbour, West
Bengal where FIR No. 279/13 under Section 370 IPC had already been
registered, directed registration of FIR in the present case. In his testimony
IO/PW9 Insp. Pramod Joshi also clearly stated the reason for registration
of FIR only on 16.05.13. He deposed that Ld. MM had called for detailed
report with regard to missing report lodged at PS Diamond Harbour, West
Bengal and since the said case was registered only under Section 370 IPC,
Ld. MM directed to register this case and pursuant to the directions of Ld.
MM, IO prepared rukka Ex. PW9/A and got the present FIR registered.
Arguments of the Defence with regard to delay in FIR must, therefore, be
rejected, they being completely baseless.
Similarly, there is no substance in the arguments of the Defence that
there is unexplained delay in recording of statement victim under Section
164 CrPC or that it must be presumed that since there is no such delay, her
statement is tutored one. A perusal of testimony of PW9 IO/Insp. Pramod
Joshi would reveal that he has categorically deposed that Prosecutirix was
released to the custody of her parents. She was called several times but she
did not appear as she was busy in investigation of case FIR No. 279/13 PS
Diamond Harbour, West Bengal. Her statement was got recorded under
Section 164 CrPC on 15.07.13 when she came to Delhi from West Bengal.
Apparently, the IO was not cross-examined in this regard at all and thus his
testimony to this effect, being unrebutted must be accepted and the
argument with regard to delay in recording of statement under Section 164
CrPC, as raised by the Defence must, therefore, be rejected.
I also find no force in the arguments of Defence that non-joining of
any independent public persons of the locality would result in the entire
proceedings being vitiated or that the case of the Prosecution must fail on
this score.
Undoutedly, Section 15 [2] ITP Act mandates that at the time of
conducting of search, concerned police officer shall call upon two or more
respectable inhabitants [at least one of whom shall be a woman] of the
locality in which the place to be searched is situate, to attend and witness
the search, and may issue an order in writing to them or any of them so to
do. However, non compliance of Section 15 [2] ITP Act cannot be said to
vitiate the trial.
I am supported in my view by judgment of Hon'ble Supreme Court
of India titled as Bai Radha Vs State of Gujarat AIR 1970 Supreme
Court 1396 wherein it has been held that It would be legitimate to say
that a search which is to be conducted under the Act much comply with the
provisions contained in Section 15; but it cannot be held that if a search is
not carried out strictly in accordance with the provisions of that section
the trial is rendered illegal. There is hardly any parallel between an
officer conducting a search who has no authority under the law and a
search having been made which does not strictly conform to the provisions
of Section 15 of the Act. The principles which have been settled with
regard to the effect of an irregular search made in exercise of the powers
under Section 165 CrPC would be fully applicable even to a case under
the Act where the search has not been made in strict compliance with the
its provisions. It is significant that there is no provision in the Act
according to which any search carried out in contravention of Section 15
would render the trial illegal. In the absence of such a provision, we must
apply the law which has been laid down with regard to searches made
under the provisions of the Criminal Procedure Code.
Similarly, non citing of other girls present in the Kotha at the time of
alleged raid as witness or non examination of the brother of Prosecutirix
as a witness cannot, in my opinion, be said to be fatal to the case of the
Prosecution.
Moreover, it is well settled law that lapses on part of Investigating
Agency can certainly not go to the benefit of Accused and cannot be a
ground for acquittal. In this regard reference may be made to judgment of
Honble Supreme Court titled as Dhanaj Singh @ Shera and Others Vs
State of Punjab AIR 2004 Supreme Court 1920 wherein Honble Apex
Court has laid down:
Accused cannot be acquitted solely on account of defective
investigation-To do so would tantamount to playing into hands of
Investigating Officer if investigation is designedly defective.
Similar view has been laid down in Leela Ram (D) through Duli
Chand Vs State of Haryana and another AIR 1999 Supreme Court 371
(1) wherein it has been laid down:-
Any irregularity or even an illegality during investigation-Should not
be treated as a ground to reject the procesution case and State of U. P. Vs
Hari Mohan and others AIR 2001 Supreme Court 142 wherein it has been
laid down that Investigation-Defective in nature-Cannot be made a basis
for acquitting Accused-Moreso when a case is made out against all or any
one of the Accused persons.
I am also not in agreement with arguments of Ld. Defence Counsel
that Prosecution has failed to establish that Brothel within the meaning of
Section 2(a) of ITP Act was being run in the premises in question i.e. Kotha
No. 56, Second Floor, GB Road, Delhi. It is relevant to mention that in her
testimony, Prosecutirix 'AK' clearly deposed that there were many other
girls in the said Kotha who were doing work of prostitution and in case of
raid by the police, a bell used to ring and they were forced to hide in a small
room which was very suffocating. Besides Prosecutirix , there were other
girls who were doing the work of prostitution in the premises. Thus, the
aforesaid argument of the Defence cannot be accepted.
Although the Defence tried to bring out from the cross-examination
of the victim PW2 that there are marked improvements in her testimony
recorded before the court, however, on going through her testimony in its
entirety, I find that she has made a true and candid statement before the
court. The So called improvements in her testimony cannot be said to be
so material so as to be fatal to the case of the Prosecution and are only
minor discrepancies. The argument of the Defence that testimony of the
Prosecutirix cannot be relied upon for this reason, thus cannot be
accepted.
I however, find myself in agreement with the argument of the
Defence that there is no evidence of any conspiracy between co-Accused in
present case for offence under Section 366 IPC.
On going through the record, I find that there is no evidence
whatsoever on record to hold that there was any criminal conspiracy
between Accused Teena and those two unknown boys who allegedly
abducted her from her village inasmuch as Prosecutirix only deposed that
she was handed over by Raju to Teena and her husband. From her
testimony, it does not stand proved as to who had abducted her from her
native village. Hence, Prosecution, in my view, failed to prove that
Accused Teena entered into any criminal conspiracy in order to abduct
Prosecutirix . Accused Teena is accordingly, acquitted for offence under
Section 366/120-B IPC.
However, the Prosecutirix PW2 clearly brought out from her
deposition that both Accused Teena and Timple kept her confined in the
Kotha and did not permit her to leave from there. Obviously, both Teena
and Timple acting under conspiracy confined PW-2 at Kotha No.56,
Second Floor, G.B.Road, Delhi. It may be reiterated, even at the cost of
repetition, that the mere fact that Teena was arrested from Ist Floor, while
Prosecutirix was confined and forced into prostitution at 2
nd
Floor of
Kotha No.56, G.B.Road, Delhi, cannot be said to have any bearing on the
case in view of the testimony of Prosecutirix , who clearly identified
Accused Teena and deposed that she committed the alleged offences.
Thus, as per the above discussion and the evidence on record,
particularly the testimony of PW-2 (Prosecutirix ), charges for offences
under Section 3/4/5/6 ITP Act stand proved beyond reasonable doubt.
In the light of the aforesaid, to my mind, Prosecution has also been
able to prove its case beyond reasonable doubt with regard to charges
under Section 368 r/w Section 120-B IPC. I also find on going through the
record that as the Prosecution has failed to lead any evidence in order to
establish the commission of offence under Section 376 IPC by any of the
customers upon the Prosecutirix PW-2, Accused Teena cannot be
convicted for having abetting of the said offence. Accordingly, she is
hereby acquitted for the offence under Section 376 r/w 109 IPC.
Accused Teena is accordingly, convicted as aforesaid for offence
under Section 368/120-B IPC & Sections 3/4/5/6 ITP Act.
Let her be heard on the point of sentence.
Announced in the Open Court
on 19.04.2014
(Kaveri Baweja)
Additional Sessions Judge- Special FTC-2 (Central)
Tis Hazari Courts: Delhi.
State Vs. Teena
FIR No. 78/13
PS : Kamla Market
SC No. : 93/13
19.04.2014
Present : Sh. Rakesh Mehta-Ld. Substitute APP for State.
Accused Teena produced in J/c.
Sh. Naveen Bhalla-Proxy Counsel for Accused.
Main counsel is not available today.
Vide judgment announced of even date on separate sheets,
Accused Teena W/o Sh. Lal Bahadur is convicted for offence under Section
368/120-B IPC & Sections 3/4/5/6 ITP Act while is acquitted for offence
punishable under Section 366/120-B IPC.
At request, adjourn for arguments on sentence on 25.04.2014.
(Kaveri Baweja)
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge- Special FTC 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 93/2013
Unique ID No. : 02401R0496712013
State versus Teena
W/o Sh. Lal Bahadur
R/o Village Kachi Bang,
PS Lohar Pani Gabisa Nepal &
Also at:
Kotha No. 56, Ist Floor, GB Road
Delhi
Case arising out of:
FIR No. : 78/2013
Police Station : Kamla Market
Under Section : 368/109/376/344/34 IPC &
3/4/5/6 ITP Act
Judgment pronounced on : 19.04.2014
ORDER ON SENTENCE
Vide judgment dated 19.04.2014, Accused Teena W/o Sh. Lal
Bahadur has been convicted for the offence punishable under Sections
368/120-B IPC & Sections 3/4/5/6 ITP Act.
Arguments heard on the point of sentence.
It is submitted that age of the convict is about 26 years and there
is no history of any previous involvement. It is submitted that prosecutrix
in the present case was admittedly above 18 years of age and a prayer for
lenient view is made on this ground. It was also brought to my notice
during the course of arguments on sentence by Ld. Defence Counsel that in
Writ Petition No. 4414/2012 which is pending before Hon'ble High Court,
the petitioners in the said writ petition who are occupants of H. No. 56,
Second Floor, Swami Shradhanand Marg, Delhi have been protected from
eviction by Hon'ble High Court and the next date of hearing in the said
proceedings is 30.04.14. It is submitted that in case any order for closure
of Kotha No. 56, Second Floor, GB Road would be passed by this court
under Section 18 ITP Act, it would result eviction of petitioners in writ
petition who are also occupying the said premises.
In view of the aforesaid submissions of Ld. Defence Counsel, no
order for closure of Kotha No. 56, Second Floor, GB Road is being passed
in this case.
However, having considered the submissions made and in the
light of facts and circumstances of the case, convict Teena W/o Sh. Ram
Bahadur is hereby sentenced as under:-
i) For the offence punishable under Section 368/120-B, the above named
convict is directed to undergo Rigorous Imprisonment for a period of 07
years in addition to payment of fine of Rs.5,000/-. In default of payment
of fine, she shall undergo SI for 06 months.
ii) For the offence punishable under Section 3 ITP Act, the above named
convict is directed to undergo Rigorous Imprisonment for a period of 02
years in addition to payment of fine of Rs. 2000/-. In default of payment
of fine, she shall undergo SI for 03 months.
iii) For the offence punishable under Section 4 ITP Act, the above named
convict is directed to undergo Rigorous Imprisonment for a period of 02
years in addition to payment of fine of Rs. 1000/-. In default of payment
of fine, she shall undergo SI for 02 months.
iv) For the offence punishable under Section 5 ITP Act, the above named
convict is directed to undergo Rigorous Imprisonment for a period of 05
years in addition to payment of fine of Rs.2,000/-. In default of payment
of fine, she shall undergo SI for 3 months.
v) For the offence punishable under Section 6 ITP Act, the above named
convict is directed to undergo Rigorous Imprisonment for a period of 07
years in addition to payment of fine of Rs. 5000/-. In default of payment
of fine, she shall undergo SI for 6 months.
All the aforesaid sentences shall run concurrently. The convict
shall also be entitled to benefit of Section 428 CrPC.
The aforesaid fine amounting to Rs. 15,000/- as imposed upon
the convict, is directed to be paid by way of compensation to the victim as
per the provisions of Section 357 Cr.PC.
I also recommend further payment of adequate compensation to
the victim in the present case as per provisions of Section 357A CrPC.
The quantum of compensation to be awarded under Victim Compensation
Scheme shall be decided by Delhi Legal Aid Services in terms of provision
under Section 357A CrPC. Accordingly, it is directed that copy of this
judgment and order be sent to Secretary DLSA, Central District for
necessary action.
Copy of this judgment and order of sentence be also supplied to
above named convict free of cost.
File be consigned to Record Room.
Announced in the Open Court
on 25.04.14
(Kaveri Baweja)
Additional Sessions Judge- Special FTC-2 (Central)
Tis Hazari Courts: Delhi.