Roma vs The State
2015 Latest Caselaw 8511 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 24th AUGUST, 2015
                                DECIDED ON : 17th NOVEMBER, 2015

+                          CRL.A. 465/2005

      ROMA                                               ..... Appellant
                           Through :   Mr.Bahar U.Barqi, Advocate with
                                       Mr.Brijpal, Advocate.

                           VERSUS

      THE STATE                                         ..... Respondent
                           Through :   Mr.Amit Ahlawat, APP.

AND

+                   CRL.A. 494/2005 & CRL.M.B. 1215/2005

      KOMAL                                              ..... Appellant
                           Through :   Mr.Bahar U.Barqi, Advocate with
                                       Mr.Brijpal, Advocate.

                           VERSUS

      STATE                                             ..... Respondent
                           Through :   Mr.Amit Ahlawat, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by their conviction under Sections 120B/368 read

with Section 366 and 323 IPC by a judgment dated 28.04.2005 of learned

Addl. Sessions Judge, Roma and Komal have preferred the instant

appeals. By an order dated 06.05.2005, they were sentenced to undergo RI

for five years with fine `1,000/- each under Section 368 read with Section

366 IPC and RI for six months with fine `500/- each under Section 323

IPC. Both the sentences were to run concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 07.01.2000 a secret information was received by SI

V.P.Jha at around 07.30 p.m. to the effect that a girl kept forcibly in Kotha

No.54, First Floor, G.B. Road has been forced to indulge in prostitution.

On this information, a raiding team went to Kotha No.54, First Floor, G.B.

Road. 'X' (assumed name) aged around 26 years came forward and

lodged complaint (Ex.PW-1/A). Investigating Officer lodged First

Information Report. In her complaint, 'X' implicated Roma and Komal

for forcing her to do prostitution. Roma was apprehended from the Kotha.

'X' was medically examined; she recorded her 164 Cr.P.C. statement.

During investigation, statements of the relevant witnesses conversant with

facts were recorded. Upon completion of investigation, a charge-sheet was

filed against both the appellants for committing various offences under

Sections 342/363/368/376/323/109/34 IPC and 3, 4, 5, 6, 7 & 8 ITP Act.

By an order dated 24.07.2001, the appellants were charged for committing

offences under Sections 120B/368/323 IPC and 3, 4, 5 & 6 ITP Act. They

pleaded not guilty to the charges and claimed trial. In order to bring home

its case, the prosecution examined seven witnesses. In 313 Cr.P.C.

statements, the appellants denied their involvement in the crime and

pleaded false implication. They did not examine any witness in defence.

The trial resulted in their conviction as mentioned previously. It is

pertinent to note that the appellants were acquitted of the charges under

Sections 3, 4, 5 and 6 ITP Act and the State did not challenge their

acquittal.

3. I have heard the learned counsel for the parties and have

examined the file. Recovery of the prosecutrix from Kotha No.54, First

Floor, G.B. Road, on 07.01.2000 is not under challenge. Appellants' plea

is that 'X' had come voluntarily for prostitution and she was never

wrongfully confined. Admittedly, the prosecutrix was aged around 26

years on the day of incident. She was a married lady having two children.

She lived in village Kanaipur Colony, PS Uttarpada, Distt. Googli (West

Bengal). She left home without informing her husband. A 'Missing Person

Report' was lodged by him. The exact date when the prosecutrix left her

home is not on record. In her complaint (Ex.PW-1/A), she disclosed that

about 9 or 10 months before she had come to Howrah in search of work.

When she was sitting at railway station at around 9 or 10 a.m. a lady

subsequently identified as Rekha allured her to accompany her on the

pretext to provide her a job. Rekha took her to an unknown place and kept

her for ten days there. Thereafter, she was brought by train to Delhi.

Rekha handed over her to a lady at Kotha No.54, First Floor, G.B. Road.

'X' further disclosed that subsequently she came to know that Rekha had

sold her for `20,000/- - `25,000/-. Thereafter, she was forced by Roma

and Komal to indulge in prostitution. On her refusal, they used to thrash

her. She further accused them of sharing the income received by them

from the customers. In 164 Cr.P.C. statement (Ex.PW-1/B) recorded on

10.01.2000, she named Rekha to have kidnapped her on the pretext to

provide her job. From Howrah, she was taken to Bihar. After about 10

days, Rekha sold her to Roma and Komal at Delhi. When she requested

them to allow her to go, she was not permitted to do so. She was pushed

into prostitution and on her refusal, she was beaten. Similar is her Court

statement as PW-1.

4. Appellants' conviction is primarily based upon the sole

testimony of the prosecutrix. Needless to say, conviction can be based on

the sole testimony of the prosecutrix provided it lends assurance of her

testimony. In case the Court has reasons not to accept the version of the

prosecutrix on its face value, it may look for corroboration. In the instant

case, the prosecutrix was major aged around 26 years. She was married

and had two children. She had left the matrimonial home without

informing her husband who had lodged a 'Missing Person Report'. The

prosecutrix did not explain as to why she left the matrimonial home on her

own without informing her family members. She allegedly met Rekha at

railway station Howrah who took her on the pretext to provide her job to

Bihar. 'X' remained there for ten days. At no stage, 'X' claimed to have

protested her kidnapping. She did not try to contact her husband. She did

not elaborate as to where she was kept for ten days in Bihar. As per her

own statement, she travelled from Bihar to Delhi by train. Again, during

the long journey, she did not raise alarm or hue and cry for her alleged

kidnapping. She voluntarily accompanied Rekha to Delhi. It is not her

case that Rekha had used force to confine her any time. At Delhi, she

came along with Rekha at Kotha No.54, First Floor, G.B. Road, where she

was allegedly sold. There is no evidence if any such transaction took

place. The Investigating Officer did not attempt to find out Rekha who

was the king-pin; her identity could not be established. No material was

collected if 'X' was sold for any consideration by Rekha to the appellants.

'X' lived at the said kotha for about 9 or 10 months before she was

rescued in a police operation on 07.01.2000. At no stage, during her stay

in the said kotha, the prosecutrix complained about her alleged wrongful

confinement. She lodged the instant complaint only when the said kotha

was raided on 07.01.2000. At no occasion prior to 07.01.2000 the

prosecutrix came forward to complain her wrongful confinement, though

as per PW-3's testimony, the police had visited the said place many a

times before.

5. Admitted position is that at the time of raid on the said kotha

8 or 9 other girls were found present there. The Investigating Officer,

however, did not examine any of them to corroborate X's version. It has

come on record that the prosecutrix was not in confinement in the said

kotha and she was present along with other 8 or 9 girls who did not come

forward to implicate the appellants for any crime. The Investigating

Officer did not collect any evidence to connect the appellants with the

ownership and possession of the kotha in question. Admittedly, Komal

was not present at the said kotha at the time of raid and she surrendered

subsequently in the Court. PW-3 (HC Makhan Singh) in the cross-

examination admitted that he had visited the kotha during his posting in

the said police station from 1999 to 14.05.2001 and did not find 'X' in the

kotha at that time. PW-4 (Lady Const.Dheeraj) disclosed in the cross-

examination that Komal was owner of the kotha as revealed by Roma.

However, PW-7 (SI V.P.Jha) in the cross-examination admitted that he

did not collect any documentary evidence regarding ownership of the

Kotha No.54, G.B. Road. He further admitted that at the time of raid, no

male person was present in the kotha. The Investigating Officer did not

investigate if the victim was forced to indulge in prostitution. No such

customer was identified with whom the prosecutrix was forced to have

physical relations. The Investigating Officer did not examine X's husband

to ascertain as to how and under what circumstances, she had left the

matrimonial home or what steps were taken by him to trace the

prosecutrix during the period of 9 or 10 months when she went missing.

6. Soon after the recovery, 'X' was medically examined vide

MLC (Ex.PW-5/A). However, no visible injuries were found on her body.

It belies her version that on refusal to have physical relations with the

customers, she was thrashed by the appellants. In the cross-examination,

'X' informed that her child was with Rekha and she (Rekha) had handed

over his / her custody to her husband after the raid. Earlier, 'X' did not

apprise the Investigating Agency, if she had left the home with a child.

She did not elaborate how and under what circumstances, her child was

kept in Rekha's custody. Apparently, Rekha was in touch with 'X' and

soon after registration of the case, Rekha returned the child to X's

husband. It seems that 'X' has not presented true facts. Under these

circumstances, possibility of the prosecutrix to be a willing party cannot

be ruled out.

7. In the light of above discussion, the appellants deserve

benefit of doubt. The appeals are allowed and conviction and sentence

recorded by the Trial Court are set aside. Pending application also stands

disposed of.

8. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE NOVEMBER 17, 2015 / tr