IN THE COURT OF Ms. SHILPI JAIN METROPOLITAN MAGISTRATE-01(CENTRAL), TIS HAZARI COURTS, DELHI - 110054 FIR No. 69/09 PS Kama Market [ENTITY] Vs. [ENTITY] U/[SECTION] [ACT] CNR No. DLCT-02-002358/12 JUDGMENT
(a) Sr. No. of the Case 299704/16 (b) Date of offense 25.05.2009 (c) Complainant Inspector [ENTITY]
(d) Accused Persons 1. [ENTITY] D/o. Ravi ender R/o. Kotha No. 5274, 1st Floor, G.B. Road, Delhi (Pleaded Guilty).
2. [ENTITY] S/o. Ashok Pandit, R/o. Begabond, G.B. Road, Ajmeri Gate, Delhi (Declared P.O.).
3. [ENTITY] S/o. Chirangi Lal, R/o. Kotha No. 5274, 1st Floor, Shardha Nand Marg, Ajmeri Gate, Delhi.
(e) Offence U/[SECTION] [ACT] (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 07.09.2009 (i) Date when judgment was 04.10.2018 reserved (j) Date of judgment 04.10.2018 FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 1 to 13 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Kamla Market Nagar against the accused persons namely [ENTITY], [ENTITY] and [ENTITY] for the offence U/[SECTION] [ACT].
2. Briefly stated facts of the case are that on 25.05.2009, at about 9:00 pm, at Khota No. 5274, G.B. Road, Delhi, accused [ENTITY] being occupier/tenant of the aforesaid premises allowed the same to co-accused persons to be used as brothel and accused [ENTITY] seduced and solicited the decoy customer for the purpose of prostitution and thereby committed an offence punishable U/[SECTION] of [ACT].
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to all the accused persons in compliance of [SECTION] [ACT]. Thereafter, charge u/[SECTION] [ACT] was framed against the accused namely [ENTITY] and charge under [SECTION] [ACT] was framed against the accused [ENTITY] vide order dated 03.01.2013 by the Ld. Predecessor of this court, to which accused [ENTITY] pleaded guilty and do not claimed trial. However, accused [ENTITY] did not pleaded guilty and claimed trial.
4. It is also pertinent to note that accused [ENTITY] declared Proclaimed Offender vider order dated 29.07.2011 passed by Ld. Predecessor.
5. It is pertinent to mention here that accused [ENTITY] was convicted and sentenced on pleading guilty vide order dated 03.01.2013, passed by Ld. Predecessor.
6. Thereafter, matter was fixed for PE.
FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 2 to 13 PROSECUTION EVIDENCE
7. In order to prove the guilt of the accused, prosecution examined as many as 5 witnesses.
8. PW-1 is HC [ENTITY], who deposed that on 25.05.2009, she was posted at PS Kamla Market, that she along with SI [ENTITY], [ENTITY], Ct. [ENTITY] were present near Kotha No. 50 G.B. Road in the meantime, SHO along with her driver ASI [ENTITY] reach there in her gypsy and thereafter they all started patrolling on foot after directing ASI [ENTITY] to be present at the above said Government gypsy on the main road, that when they reached kotha no. 50, secret informer informed the SHO Inspector [ENTITY] that one girl namely [ENTITY] and along with one person were instigating the passerby for prostitution near Kotha No. 5274, that IO formed the raiding team comprising her and the other police official and requested 3-4 passerby to join the raiding team but none agreed, that IO made Ct. [ENTITY] as decoy customer in civil dress and gave Rs. 250/- (two currency note of Rs. 100/- each and one currency note of Rs. 50) to Ct. [ENTITY] vide handing over memo Ex. PW-1/A after conducting his formal search vide memo Ex. PW-1/B IO directed Ct. [ENTITY] to go to above said person and to deal for prostitution with them by using above said money, that IO also directed Ct. [ENTITY] to give the signal after completion of deal with accused person, that Ct. [ENTITY] went to the accused persons and talked with them and after sometime gave signal towards them by his hand, that thereafter they all reached to the spot i.e. Kotha No. 5274 and she apprehended accused [ENTITY] and [ENTITY] apprehended accused [ENTITY], that IO recovered above aid Rs. 200/- from the hand of accused [ENTITY] and remaining Rs. 50/- were recovered from accused [ENTITY], that IO kept the above said currency note in envelope and sealed the same with the seal of BS and seized the same vide seizure memo Ex. PW-1/C and Ex. PW-1/D, that IO prepared the rukka and got the FIR registered through Ct. [ENTITY], that IO prepared site plan, that during interrogation accused [ENTITY] disclosed that she FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 3 to 13 gives half money to owner of the kotha namely [ENTITY], that IO arrested both the accused persons vide their arrest and personal search memo Ex. PW-1/E to PW-1/H, that IO recorded her statement, that she can identify the case property if shown to her. Thereafter, MHC(M) produced one envelope duly sealed with the seal of BS having the particular of present case, that envelope is opened and cash of Rs. 250/- (two currency note of Rs. 100/- each bearing no. 7KM 909416 and 0GF886251 respectively and one currency note Rs. 50/- bearing number 3LD940017) are taken out and the same shown to the witness who identified the same, that same are exhibited as Ex. P-1 to P-3 respectively and collectively.
9. In the cross examination, PW-1 deposed that IO recorded the disclosure statement of accused [ENTITY] in her presence, however, she cannot recall as to what is stated by accused [ENTITY], that she cannot recall as to who apart from her signed as witness on that statement, that she do not remember whether [ENTITY] was arrested in her presence, that search of [ENTITY] was not taken in her presence, that she cannot say whether any document of ownership regarding the spot in favour of accused [ENTITY] was seized by the IO. She denied that she is deposing falsely.
10. PW-2 is Ct. [ENTITY], who deposed that on 25.05.2009, he was posted as Ct. at PS Kamla Market, that he along with SI [ENTITY], [ENTITY] and W/HC [ENTITY] was on the partolling duty and were present in the front of Kotha No. 50, G.B. Road, Delhi, that at bout 8:30 pm, SHO inspector [ENTITY] came there in the Government vehicle, that SHO [ENTITY] instructed [ENTITY] (her driver) to remain there and they left for patrolling duty, that they reached near Kotha No. 42, that one secret informer came there who told IO Inspector [ENTITY] that one boy and girl were inducing public persons for prostitution and they were demanding Rs. 250/-, that IO asked the 3-4 passerby for joining the investigation but none agreed and left the place without disclosing their name and addresses, that SI [ENTITY] conducted his FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 4 to 13 personal search and nothing recovered from his possession and thereafter, IO handed over Rs. 250/- (two hundred rupees currency notes and one 50 currency note) to him through a hawalgi memo and instructed him to give a signal when the said boy and girl induced him for prostitution, that he came towards Kotha No. 5274 and thereafter, one boy and girl started inducing him for prostitution , that he handed over Rs. 250 to [ENTITY] and [ENTITY] handed over Rs. 50/- to one boy whose name was disclosed as [ENTITY], that he made signal through his right hand by putting it on his head, that the raiding party members reached there, that W/HC [ENTITY] conducted search of the [ENTITY] and recovered two currency notes (two notes of 100 rupees) from her possession and [ENTITY] conducted search of [ENTITY] and recovered Rs. 50/- from his possession, that the said currency notes were seized by the IO by putting them in an envelope and by sealing them with the seal of BS, that the said boy and girl were talking to him regarding prostitution, the girl had told him that out of the said Rs. 250/-, 100/- to be given to one [ENTITY] for using the Kotha and Rs. 50/- would be given to [ENTITY] as commission, that IO prepared rukka and handed over the same to him for registration of case, that after registration of case, he came back at the spot and handed over original rukka and copy of FIR to IO, that IO arrested the accused persons and their personal search were conducted and the recovered currency notes were seized vide seizure memo Ex. PW-1/D and Ex. PW-1/C respectively, that the arrest memos and personal search memos of the accused persons are Ex. PW-1/E to PW-1/H. Thereafter, MHC(M) has produced case property i.e. one envelop sealed with Court seal and seal is broken with the permission of the Court, that the seal is broken and it is containing two currency notes in the denomination of 100 rupees and one Rs. 50/- note, that witness identified the case property as Ex. P-1 (colly).
11. PW-2 was cross examined by Ld. APP for the [ENTITY] as he was not disclosing all the facts. During cross examination he admitted that when the aforesaid currency notes were handed over to him, Inspector [ENTITY] put her FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 5 to 13 signature on it, that he could not depose this fact in his chief examination as case pertains to year 2009, that witness has identified the signatures of [ENTITY] on the currency notes.
12. PW-3 is ACP [ENTITY], who deposed that on 25.05.2009, she was posted as SHO, at Ps-Kamla market, that on that day she was on patrolling duty in her govt zypsy/vehicle bearing registration no. DL-1CJ-3601 and the same was being driven by ASI [ENTITY], that they reached near kotha no. 42, GB road/ Sardhanand Marg and other staff was also present with her including SI [ENTITY], [ENTITY], LHC [ENTITY], Ct. [ENTITY], that one secreter informer met them there and informed them that one boy and one girl were inducing public persons for prostitution near building number 5274 and were demanding Rs.250/-, if raided they could be apprehend and asked 3-4 passers by to join the investigation but none agreed, that she instructed Ct. [ENTITY] to be in civil dress and become a decoy customer and SI [ENTITY] took his cursory search, that she handed over three currency note to Ct. [ENTITY] i.e two currency note in the denomination of Rs. 100/- and one currency note in the denomination of Rs. 50/- and she signed the above-said three currency notes with initials, that decoy customer was instructed to give a signal by putting his right hand over his head and he was sent near building no. 5274 i.e in the varanda, that they all also took their position near the building, that at about 09.00 p.m, they saw that one girl was talking with Ct. [ENTITY] and one boy was standing there and they were wearing the same dress as told by secreter informer, that Ct. [ENTITY] signaled towards them as instructed and thereafter, they were apprehended, that the girl disclosed her name as [ENTITY], D/o Sh. [ENTITY] and said boy disclosed his [ENTITY], that two currency note in the denomination of Rs. 100/- were recovered from the hand of [ENTITY] and one currency note in the denomination of Rs. 50/- was recovered from the possession of [ENTITY], that all the currency notes were bearing her initials, that the currency notes were put in an envelope and sealed with a seal of BS and were seized, that she mentioned all the facts in her FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 6 to 13 rukka Ex.PW3/A which were disclosed by Ct. [ENTITY], that it was also disclosed that the Rs. 100/- were to be given to kotha owner [ENTITY] for using the same, that she sent Ct. [ENTITY] for registration of case, that she prepared site plan Ex.PW3/B, that seizure memo of currency note is Ex.PW1/D, that she also prepared fard hawalgi memo of currency notes at the time of handing over currency notes to Ct. [ENTITY], that seizure memo of Rs. 50/- is Ex. PW1/C, that personal search memo of Ct. [ENTITY] is Ex.PW1/B, that Ct. [ENTITY] came back at the spot and handed over the original rukka and copy of FIR to her, that she arrested the accused [ENTITY] and [ENTITY] and there personal searches were conducted vide memos Ex.PW1/E, Ex.PW1/F , EX.PW1/G and Ex.PW1/H, that accused persons were sent for medical examination, that she went to police station and case property was deposited in malkhana, that on that day, she also visited the first floor of the above-said building and accused [ENTITY] was not found there, that she recorded the statement of witnesses and case property Ex.P1(Colly).
13. In the cross examination PW-3 deposed that the copy of the log book of the movement of her zypsy/govt vehicle has not been placed on record. She denied that since she had not visited the spot on 25.05.2009 as stated by her and that is why said log book record has not been placed on record deliberately. She further deposed that [ENTITY] and [ENTITY] disclosed the name of [ENTITY] and she had visited the first floor but no documentary evidence was found there related to [ENTITY]. She denied that no such name of [ENTITY] was disclosed by [ENTITY] and [ENTITY] and accused [ENTITY] has been falsely implicated in the present case, that she is deposing falsely and accused has no concern with the property in question.
14. PW-4 is Retired SI [ENTITY], who deposed that on 25.05.2009, he was posted at PS Kamla Market as duty officer, on that day at about, 08:35 pm, DD entry regarding the departure of SI [ENTITY] along with Ct. [ENTITY] and WHC [ENTITY] is made at S. No. 27 in the daily dairy register 'A, that attested FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 7 to 13 copy of DD is Ex. PW-4/A and who proved registration of present FIR Ex. PW- 4/B, endorsement on rukka Ex. PW-4/C and Certificate under [SECTION] of [ACT] Ex. PW-4/D.
15. PW-5 is HC [ENTITY], who deposed that he has brought the summoned record i.e. register no. 19 of year 2009, that as per record, on 25.05.2009, Inspector [ENTITY] in the present case deposited the case property i.e. one sealed pullanda sealed with the seal of BS along with seizure memo, that entry regarding the same made in the register no. 19 Ex. PW-5/A (OSR), that till the time, the pullinda remained in his custody, the same were intact and were not tempered with.
16. It is pertinent to note that PW/Retired SI [ENTITY] dropped from the list of witnesses vide order dated 13.04.2015 passed by Ld. Predecessor as one member in the raiding party has already been examined on the same lines.
17. It is also pertinent to note that PW/[ENTITY] was dropped from the list of witnesses vide separate statement of Ld. APP for the [ENTITY] dated 30.03.2017.
18. Thereafter, PE was closed and matter was fixed for SA. [ENTITY]ment of the accused under [SECTION] [ACT] was recorded vide order dated 25.09.2018 by putting entire incriminating evidence to the accused [ENTITY]. Accused [ENTITY] denied all the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE. Therefore, DE was closed and the matter was fixed for final arguments.
19. Final argument heard on behalf of defence counsel as well as [ENTITY] and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 8 to 13
20. Perusal of the record reveals that accused [ENTITY] was charged with the offence under [SECTION] [ACT].
21. In the present case, It is the version of the prosecution that on 25.05.2009, at about 9:00 pm, at Khota No. 5274, G.B. Road, Delhi, accused [ENTITY] being occupier/tenant of the aforesaid premises allowed the same to co-accused persons to be used as brothel and thereby committed an offence punishable U/[SECTION] of [ACT].
22. Perusal of the record reveals that SHO had not obtained any document in respect of non taking of search warrants from the competent authority, therefore, admittedly, no search warrant obtained from the competent authority before conducting raid. PWs categorically deposed that place of incident was a crowded place and lot of public persons were present over there however, IO has failed to join any passerby in the raiding party and no notices were issued to public persons who refused to join the investigation. No plausible explanation has been given for not joining independent public witnesses to the investigation which reflect that no sincere efforts were made by the IO concerned for joining other public persons to the investigation despite the fact that lot of public persons were present at the place of incident.
23. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses and no efforts seem to have been made for joining independent witnesses.
24. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. [ENTITY] of Haryana" reported as CC Case[SECTION] (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 9 to 13 down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. [ENTITY] of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "[PRECEDENT], it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. [ENTITY] of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 10 to 13 other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "[PRECEDENT], in which it was observed as follows :-
"[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused. In the case of "Sadhu Singh Vs. [ENTITY] of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. [ENTITY] of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 11 to 13 "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. [ENTITY]" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. [ENTITY] of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. [ENTITY] of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
25. Admittedly there is no recovery from the accused [ENTITY] and accused [ENTITY] was arrested as the occupier/tenant of Kotha No. 5274 on the pointing and disclosure of accused [ENTITY] which has been recorded by the IO. Even if this statement is accepted, it does not prove that accused [ENTITY] was the owner of the Kotha. No documentary evidence has been filed by the IO to substantiate the claim that [ENTITY] was owner/occupier/tenant of the Kotha on the alleged date. Further, during the investigation, IO has sufficient time to make efforts and collect some documentary evidence or other cogent evidence against the accused but that has not been done. It has also been seen in a number of cases that investigations against the the owners/managers/occupiers/tenant of the Kotha, who are the real culprits, are being done in a slipshod manner and no serious efforts are made to collect evidence which may withstand the test of law. Admittedly, there is no oral or documentary evidence on record to FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 12 to 13 establish the guilt of accused [ENTITY] beyond reasonable doubt.
26. Perusal of the testimonies of PWs reveals that information about the prostitution was given by secret informer and said secret informer reached at the spot along with them. This deposition makes it clear that said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution.
27. Therefore, in view of the abovesaid reasons, appreciation of evidence, absence of any oral or documentary proof regarding ownership/managership/occupier/tenant of accused [ENTITY], non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused [ENTITY] beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused [ENTITY] and therefore, accused [ENTITY] is hereby acquitted of the offence u/[SECTION] [ACT].
28. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of [SECTION] A [ACT]. Same is accepted for a period of six months from today.
29. File be consigned to the record room after due compliance with direction to revive the same on the apprehension of accused [ENTITY].
Pronounced and Signed in the Open Court on 04.10.2018 SHILPI Digitally signed by [ENTITY] Date: 2018.10.04 17:17:57 +0530 ([ENTITY]) MM-01(Central)/THC/Delhi 04.10.2018 FIR No. 69/09 PS Kamla Market [ENTITY] Vs. [ENTITY] & Ors Page No. 13 to 13