Mohammad Ali Al Gitar vs State Of U.P.
2013 Latest Caselaw 5796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 50
 

 
CRIMINAL APPEAL No. - 1475 of 2013
 

 
Appellant :- Mohammad Ali Al Gitar
 
Respondent :- State Of U.P.
 
With
 
CRIMINAL APPEAL No. - 1631 of 2013
 
Appellant : - Nayyar Kamal @ Sufiyan
 
Respondent : State of U. P. 
 
Counsel for the appellants : 	Sri G. S. Chaturvedi, Sr. Advocate 						assisted by Sri Samit Gopal, Adv.
 
Counsel for the State : 		Km. Anjum Haq, AGA
 

 
HON'BLE ANIL KUMAR SHARMA, J.

Both these appeals emanate from the common judgment dated 19.3.2013 passed by Addl. Sessions Judge, Court no.-1, Maharajganj in S.T. no. 90 of 2012 arising out of crime no. 459/12 P. S. Sonoli District Maharaj Ganj whereby each appellant had been convicted u/s 370 IPC and section 5 of The Immoral Traffic (Prevention) Act, 1956 and sentenced to undergo seven years' R.I. under each section with fine of Rs. 10,000/- and Rs. 2,000/- respectively with default stipulation. However, both the accused-appellants have been acquitted for the offence punishable u/s 371 IPC.

2. Succinctly stated the facts of the case, as borne out from the FIR and the evidence adduced by the prosecution during trial, are that on 12.6.2012 at 3.30 p.m. Km. Budhi Maya Sunar daughter of Bal Bahadur Sunar resident of Sunval, Gram Vikas Samiti Ward no. 8, Navalparasi, Nepal submitted a written report at P. S. Sonoli stating that few days ago a Nepali woman came at her house and advised her to take up job in Saudi Arabia for higher income and she would not have to incur any travelling expenses. On her assurance she gave her photo etc. On 11.6.2012 Nayyar Kamal s/o Mohd. Ayyub r/o village Kayar, P. S. Sarai Khawaja District Jaunpur and Mohd. Ali Al Gitar s/o Ali r/o Damman, Saudi Arab came at her residence and said that her passport and Visa had been prepared and she had to accompany them for Saudi Arab. It was further stated that apart from the complainant, the accused have also prepared Smt. Tulsi w/o Gokul r/o Gram Vikas Samiti Ward no. 8, Gulmi (Nepal) and Raj Kumari s/o Govind Sonar r/o Gram Vikas Samiti Ward no. 3, Gulmi (Nepal) for going with them to Saudi Arab. Both the accused persons on 11.6.2012 brought all of them, lodged them in Niranjana Hotel and in the night they shifted them to Hotel Indo Nepal. They were talking that three women have been arranged, they would get Rs. One Crore by selling them in Saudi Arab and then she came to know that on the pretext of getting them job they would sell them and would sexually exploit them. They informed about the talks of the accused persons to Hotel staff Kamlesh Singh, Ashok Singh, Manager Sunil Khare and Top Bahadur Thapa. Both these accused assured the other women that after getting their Passport and Visa prepared they would also take them. The written report of Buddhi Maya contained the thumb impressions of Smt. Raj Kumari and Smt. Tulsi and it was registered at case crime no. 459/212 u/s 370, 371 IPC and section 5 The Immoral Traffic (Prevention) Act, 1956, investigation whereof was taken up by SHO Ashwini Kumar Sinha. He recorded the statements of the complainant and her companions Smt. Tulsi, Smt. Raj Kumari, Sunil Kumar Khare and Kawaljit Singh. Thereafter the investigating officer interrogated both the accused, who allegedly confessed their guilt. The Passport of accused Ali Al Gitar and ID proof of Nayyar Kamal were seized and they were taken into custody and lodged in police station at 10.10 p. m. on 12.6.2012. The complainant and her female companions were given in the supurdgi of Nepal police. On 18.6.2012 all the three victims along with people of India-Nepal Maitri Sangh appeared in the Court for statements u/s 164 Cr. P. C. and the same day place of incident was inspected at the instance of the complainant. On 20.6.2012 the investigating officer inspected reception registers of Niranjana Hotel and Indo Nepal Hotel and obtained photo-copies thereof, which revealed that both the accused along with ladies Budhi Maya, Tulsi and Raj Kumari had checked in rooms no. 202 and 204 of Hotel Niranjana on 11.6.2012 at 6.00 p.m. and left at 11.00 p.m. the same night. The rooms were booked by accused Nayyar Kamal. According to the reception register of Hotel Indo Nepal, its room nos. 104 and 105 were got booked by accused Nayyar Kamal on 11.6.2012 at 22.30 hrs. the investigation culminated into charge-sheet against the accused persons.

3. After committal of the case to the Court of Session, charges for the offence punishable u/s 370 and 371 IPC and Section 5 The Immoral Traffic (Prevention) Act, 1956 were framed against both the accused, who abjured their guilt and claimed trial.

4. In order to prove its case, the prosecution had examined Kawaljit Singh PW-1, Smt. Tulsi PW-2, Smt. Raj Kumari PW-3, Shri Chandra Gupta PW-4, Sunil Kumar Khare PW-5, Top Bahadur PW-6, Triveni PW-7, Ashok Kumar PW-8, Rahul Tripathi PW-9, Akhilesh Kumar Pandey PW-10, Km. Buddhi Maya sonar PW-11, Kanahiya Pandey PW-12, Markandey Tripathi PW-13 and SHO Ashwini Kumar Sinha PW14.

5. Both the accused persons in their separate statements u/s 313 Cr. P.C. have again denied the entire prosecution allegations and claimed false implication. However, they have not adduced any evidence in defence.

6.The learned trial Court after hearing the parties' counsel had convicted and sentenced both the appellants as stated above in para-1 of the judgment. Aggrieved, they have come up in appeal.

7.I have heard arguments of Sri G. S. Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal, Advocate for the appellants and Km. Anjum Haq, learned AGA for the State and perused the record of the case carefully.

8.Castigating the impugned judgment and the findings of the learned trial Court, learned senior counsel for the appellants has vehemently argued that it is a case of no evidence against the accused-appellants as none of the three victims has supported the prosecution story on any count and the testimony of other witnesses is based on hearsay evidence. He emphatically contended that the prosecution has not been able to prove that the complainant or her two other female companions were slaves of the accused appellants or were procured/ possessed by them for their sexual exploitation. He has placed reliance on the Full bench case of this Court reported in (1880) ILR 2 All 723 Empress of India Vs. Ram Kuar decided on March 8, 1880 to contend that from the evidence on record by no stretch of imagination, the character of the three lady victims in the case can be categorized as 'slave'.

9.Per contra learned AGA supporting the impugned judgment has fairly stated although all the three victims have not supported the prosecution story, but the other facts and circumstances coupled with the documentary evidence available on record fully proved the charges for the offence punishable u/s 370 IPC and section 5 Immoral Traffic (Precaution) Act and so the appeals are liable to be dismissed.

10.The core question for decision in these appeals is as to whether from the evidence available on record, the complainant and her two female companions can be termed as slave or they have been treated by any of the accused as slave, so as to constitute an offence punishable under Section 370 IPC against the accused persons. Section 370 IPC reads as under:

"370. Buying or disposing of any person as a slave - Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

11.The Indian Penal Code does not define the term 'Slave' or 'Slavery'. As noted above, Sections 370 and 371, I.P.C. also refer to such terms besides Section 367 IPC. Sincere efforts were made to find out an acceptable meaning to the said term with reference to the context, but except the dictionary meaning no other source could be found in that respect. For a proper reference, the dictionary meanings are quoted as hereunder :

In Webster's Dictionary "One who has no freedom of action, a slave is defined as : but whose person and services are wholly under the control of another;"

Century Dictionary : a person who is the chattel or property of another and is wholly subject to his will."

Wharton's Law Lexicon : "Slavery" is defined as : "the civil relation in which one man has absolute power over the liberty of another."

Oxford's Advance Learner : 1. Person who is owned by and has to serve another. 2. Drudge, hard worker. 3. (foll by of to) obsessive devotee (slave of fashion), 4. machine, or part of one, directly controlled by another."

Chambers 20th Century "a person held as property; Dictionary an abject; one who is submissive under domination: one who is submissively devoted: one whose will has lost power of resistance: one who works like a salve a drudge: a mechanism controlled by another mechanism, e.g. in computing, by the central processor: a master-slave manipulator."

Black's Law Dictionary : "Slave. A person who is wholly subject to the will of another; one who has no freedom of action, but whose person and services are wholly under the control of another. One who is under the power of a master, and who belongs to him; so that the master may sell and dispose of his person, of his industry, and of his labour, without his being able to do anything, have anything, or acquire anything, but what must belong to his master."

P. Ramanath Aiyar's "Slave. One over whose life, The Law Lexicon : liberty and property another has unlimited control. Every limitation placed by the law upon the absolute control modifies and to that extent changes the condition of the salve."

"Slavery" is defined as "the state of entire subjection of one person to the will of another."

It appears from all the aforesaid meaning attributed to the term 'slave' and 'slavery' that deprivation of the freedom of movement and right of expression with respect to person or property can be taken as the meaning to the term 'slave' or 'slavery'.

12.In the case Ram Kuar (supra), it was observed Hon'ble Robert Stuart, CJ that -

'A slave is a creature without any right or any status whatsoever, who is or may become the property of another as a mere chattel, the owner having absolute power of disposal by sale, gift, or otherwise and even of life or death over the slave, without being responsible to any legal authority.'

It was further observed, that -

'There must be a selling or disposal of a person as a slave, that is, a selling or disposal whereby one who claims to have a property in the person as a slave transfers that property to another.'

13.In the light of the above meaning of 'slave' we would examine the evidence adduced by the prosecution in the case to find out whether the prosecution has been able to prove that all the three lady victims were being treated as slaves by accused-appellants or they were likely to be sexually exploited by taking them to Saudi Arab.

14.First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is the foundation of the prosecution story and if the FIR is doubtful, then the entire edifice of the prosecution case is demolished. In the instant case neither the first informant Buddhi Maya PW-11 nor the scribe Triveni PW-7 have supported the prosecution story about the manner in which the written report was prepared and FIR came to be registered. Triveni PW-7 has stated he sells tea on a thela near taxi stand of Sonoli. On 12.6.2012 he did not go towards Indo Nepal Hotel nor any Nepali woman met him on that day. He did not hear from the Nepali women or the local people that accused Nayyar Kamal and Mohd. Ali Al Gitar have brought Raj Kumari, Buddhi Maya, and Tulsi to take them to Saudi Arab for earning more money or their sexual exploitation. Although he has identified his signature on the written report, but has stated that the police sub-inspector had obtained his signature on a plain paper. He has been declared hostile by the prosecution and in the cross-examination conducted by the State counsel he has denied his statement u/s 161 Cr. P.C. In cross-examination at the hands of defence lawyer he has stated that he was called by the darogaji at the out-post and he obtained his signature on a plain paper. The written report Ex. Ka-3 contains the thumb-impressions of all the three Nepali ladies i. e. Buddhi Maya, Raj Kumari and Tulsi. Buddhi Maya PW-11 has denied all the contents of the written report. Although she has identified her thumb impression on Ex. Ka-3, but this statement cannot be believed as no one how-so-ever literate he may be, is not in a position recognize or identify his/her thumb impression on any document without knowing the contents thereof. In examination-in-chief itself, she has stated that when her thumb impression was obtained it was a plain paper and thumb impressions of Raj Kumari and Tulsi were not obtained in her presence. In cross-examination she has admitted that she is illiterate but has denied all the prosecution story including her stay in Niranjana or Indo Nepal Hotel as also her statement u/s 161 Cr. P.C. It is important to note that the contents of the written report Ex. Ka-3 were not read over to her during examination-in-chief in the trial Court. The check report Ex. Ka-2 has been proved by Head Constable Akhilesh Kumar Pandey PW-10. He has also proved the copy of GD regarding registration of the case vide report no. 30 at 3.30 p.m. (wrongly marked as Ex. Ka-3). Mr. Pandey has stated that complainant Buddhi Maya came to police station along with the written report, but in cross-examination he has stated that he did not know Buddhi Maya or Triveni (scribe of the written report). He has not spoken a single word about arrival of two other Nepali ladies namely Smt. Raj Kumari or Smt. Tulsi at the police station. However, in the copy of GD report no. 30, it has been mentioned that Buddhi Maya came to police station along with Raj Kumari, Tulsi, Top Bahadur Thapa (PW-6) - Waiter, Hotel Niranjana and Ashok Kumar (PW-8), Mali of Hotel Niranjana. Both these employees of Hotel Niranjana have also not supported the prosecution story on any count and have specifically stated that they did not go to the police station for lodging the FIR. Thus, the manner in which the written report was scribed by Triveni PW-7, thumb-marked by the three Nepali women and handed over by them personally at the police station is shrouded with doubts and not proved at all. If the FIR in a criminal case is doubtful, then the other prosecution evidence available on record need to be carefully scrutinized.

15.All the three star witnesses of the prosecution namely Buddhi Maya PW-11, Tulsi PW-2 and Raj Kumari PW-3 have not supported the prosecution story on any count. PW-11 has stated that on 11.6.2012 she had come to Sonoli, where some police personnel met her and they obtained her thumb impression on a plain paper. She has specifically stated that no Nepali woman had come to her residence for getting job in Saudi Arab or allured her to get more money there. She did not hand over photo etc. She has further stated that neither Nayyar Kamal nor Mohammad Ali Al Gitar visited her house. They did not get her passport or Visa prepared. It is pertinent to note here that during investigation or trial the Passport or Visa of Buddhi Maya have not seen the light of the day. She had denied her stay in any of the hotel on 11.6.2012. She had specifically stated that she has seen the accused for the first time in the Court. Similar statement had been given by other alleged victims Tulsi PW-2 and Raj Kumari PW-3. It is important to note that none of the three Nepali women was minor. Buddhi Maya PW-11 is aged about 25 years and Tulsi and Raj Kumari were aged about 40 years when their statements were recorded in the trial Court. They all have in unison stated that they did not stay in any of the Hotel namely Niranjana and Indo Nepal Hotel. All these witnesses have not even identified any of the accused in the Court and have stated that they never met them at their respective residences. It is important to note here that it has come in the statements of Investigating Officer Ashwini Kumar Sinha PW-14 that on 13.6.2012 all the three victims were given in the supurdgi of the Nepal police and on 18.6.2012 they were brought to Court for recording their statements u/s 164 Cr. P. C. In cross-examination Mr. Sinha has stated that no statement u/s 164 Cr. P. C. of any witness was recorded. They tried hard, but on account of busy schedule and summer vacations in the Court, it could not be recorded. He has fairly admitted that his application for recording statement u/s 164 Cr. P. C. was not rejected by the Court. The explanation given by this witness for not recording of statement of victims u/s 164 Cr. P. C. is not at all satisfactory and reliable. In summer vacations all the Magistrates remain on duty and they are given 10-days recess by rotation. In these circumstances, an inference can be drawn that the statements of victims u/s 164 Cr. P.C. could not be recorded as they were not ready to depose for the prosecution. Thus, from the statements of PW-2, PW-3 and PW-11 it cannot be inferred that they were slaves of any of the accused at any point of time or the accused were trying to sexually exploit any of them. They were not deprived of freedom of movement and right of expression with respect to their person, therefore none of them satisfy the requirements of being slave of the accused persons.

16.Now as regards stay of the accused persons along with the three Nepali women in Hotel Niranajana or Indo Nepal Hotel is concerned, the prosecution had examined Kawaljit Singh PW-1 (Manager, Indo Nepal Hotel), Sunil Kumar Khare PW-5 (Manager), Top Bahadur PW-6 (Waiter) and Ashok Kumar PW-8 (Gardner) of Hotel Niranjana.

17.Kawaljit Singh PW-1 is the Manager of Indo Nepal Hotel, Sonauli. He has proved the entries of reception register stating that on 11.6.2012 at about 10.30 p.m. accused Nayyar Kamal reached the hotel and booked rooms no. 104 and 105. Thereafter three ladies came and stayed in room no. 104. Other accused resident of Saudi Arab also stayed in the room of the hotel. In the morning he came to know that the accused were talking to take the women to foreign. He has identified both the accused in the Court. In cross-examination he has denied the stay of accused Mohammad Ali Al Gitar resident of Saudi Arab in the hotel. He has further stated that he did not go the rooms or heard the talks of the accused and the Nepali women. The reception register entry no. 5405 shows that on 11.6.2012 at 22.30 hrs. Nayyar Kamal has booked rooms no. 104 and 105 for two males and three females. Names of accused Mohammad Ali Al Gitar or the three lady victims do not find place therein. It further shows that Nayyar Kamal checked out of the Hotel on 12.6.2012 at 21.10 hrs. Thus, at the most only this much can be inferred from his statement that both the accused have stayed in the hotel with three ladies. The other part of the prosecution story regarding taking the ladies to foreign country for any purpose is based on hearsay evidence and does not inspire confidence.

18.Sunil Kumar Khare PW-5 has stated that on 10.6.2012 he was posted as Manager in Hotel Niranjana, Sonauli, Maharajganj and on that day at 2.45 p.m. two persons named Nayyar Kamal and Mohammad Ali Gitar arrived in the hotel, room no. 202 was given to them after getting entry noted in the register and obtaining C-form. On 11.6.2012 three Nepali women came and room no. 204 was given to them. He could not tell the time of arrival of the ladies. He has specifically stated that the gents and ladies stayed in different rooms and on 11.6.2012 at about 10 p.m. the ladies left the hotel and thereafter both the accused also checked out. He has proved the entry of reception register as Ex. Ka-1, which does not corroborate his statement given in examination-in-chief that on 10.6.2012 accused Nayyar Kamal and Mohammad Ali Al Gitar checked in the hotel at 2.45 p.m. because in reception register (copy Ex. Ka-1) at serial no. 1311 the date and time of arrival of accused in the Hotel has been mentioned as 11.6.2012 at 6.00 p.m. At serial no. 1312 of the same date and time, name of Buddhi Maya Sunar r/o Nawal Parasi, Sunwal has been entered. The names of two other women as Kumari and Tulsi had been noted by some other person in different hand-writing. The aforesaid inmates of rooms no. 202 and 204 checked out of the hotel Niranjana at 11.00 p.m. on 11.6.2012, whereas the time of their arrival in Hotel Indo Nepal on 11.6.2012 had been mentioned as 22.30 hrs. which is not possible. Mr. Khare PW-5 has not stated anything in examination-in-chief about the conduct of accused persons and the three Nepali ladies. In cross-examination he has stated that none of the crying Nepali woman had told him that some one is taking them to Saudi Arab for sale and he does not know anything about it. Thus, from the statement of PW-5, only this much can be inferred that both the accused along with the three victims stayed in Hotel Niranjana for few hours on 11.6.2012.

19.Top Bahadur PW-6 has stated that he is waiter in Hotel Niranjana and on 10.6.2012 at about 2.45 p.m. two persons named Nayyar Kamal and Ali Al Gitar have stayed in room no. 202 of the hotel but he has denied the arrival of three Nepali women on 11.6.2012 as he was not on duty. He has totally denied the other part of the prosecution story up to lodging of the FIR. He has been declared hostile by the prosecution and in cross-examination conducted on behalf of the State he has proved the entries of reception register and on the basis thereof has stated about the stay of the three victims in the hotel up to 11.00 p.m. on 11.6.2012. According to this witness from the newspaper he came to know about the incident. He has also denied his statement u/s 161 Cr.P.C. Thus, the statement of this witness about the crime in question is of no help to the prosecution.

20.Ashok Kumar PW-8, a Gardner of Hotel Niranjana has also not supported the prosecution story on any count and his knowledge about the stay of both the accused along with three Nepali women on the premise that his job is to look after the plants of the hotel. He too has been declared hostile by the prosecution and in cross-examination conducted by the State counsel nothing could be elicited which may show that he is not stating the truth. In cross-examination on behalf of the defence he has stated that he works as Gardner in the hotel and has no concern about the persons who visit the hotel or stay there.

21.Thus from the testimony of PW-1, PW-5, PW-6 and PW-8 only this much can be inferred that both the accused and the three Nepali ladies names whereof have been mentioned in the reception register of Hotel Niranjana have stayed for few hours on 11.6.2012. However, the statements of PW-5 and PW-6 that both the accused checked in Hotel Niranjana on 10.6.2012 at 2.45 p.m. is not proved at all.

22.Rahul Tripathi PW-9 a correspondent of Doordarshan has denied the entire prosecution story including the alleged confession of both the accused in his presence to the police. He too has been declared hostile by the prosecution. In cross-examination he has also denied his interrogation by the investigating officer and his alleged statement recorded u/s 161 Cr. P. C. On the contrary he has stated that on the day of incident he had gone to Gorakhpur for his personal work.

23.In view of the above appreciation of evidence on record it is clearly established that the prosecution has miserably failed to prove the allegations levelled against any of the appellant in charges under which they have been convicted by the learned trial Court. Thus, their conviction u/s 370 IPC and section 5 of The Immoral Traffic (Prevention) Act cannot be sustained. It is noteworthy that during trial charge for the offence punishable u/s 371 IPC was also framed against both the appellants, but they have been acquitted on this count by the trial Court and their acquittal under this section has not been challenged by the State.

24. In view of what has been said and done above, lead us to this irresistible conclusion that the prosecution has failed to prove charge for the offence punishable u/s 370 IPC and section 5 of The Immoral Traffic (Prevention) Act beyond all reasonable doubt against both the appellants. The learned trial Court has failed to correctly appreciate the evidence on record and has erred in convicting and sentencing the appellants. Thus, both the appeals are allowed. Accused Mohd. Ali Al Gitar and Nayyar Kamal are acquitted for both the charges levelled against each of them. They are in jail. They should be released forthwith if not wanted in any other case. The Passport of accused-appellant Mohd. Ali Al Gitar and ID proof of accused-appellant Nayyar Kamal seized by the police on 12.6.2012 be returned to them.

25. Let certified copy of the judgment be immediately sent to the Court concerned and Chief Judicial Magistrate, Maharajganj for ensuring compliance.

(Anil Kumar Sharma, J)

September 13, 2013

KCS/-