Zarina @ Razia vs State Of N.C.T. Of Delhi
2016 Latest Caselaw 1261 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                              DECIDED ON       : 18th FEBRUARY, 2016

+                          CRL.A. 571/2003
       ZARINA @ RAZIA                                    ..... Appellant
                           Through :   Ms.Astha, Advocate.

                           versus

       STATE OF N.C.T. OF DELHI                          ..... Respondent
                           Through :   Mr.Vinod Diwakar, APP.
                                       SI Ramesh Chand.

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

S.P.GARG, J. (Oral)

1. Aggrieved by a judgment dated 02.08.2003 of learned

Additional Sessions Judge in Sessions Case No.92/2001 arising out of FIR

No.236/2001 registered at Police Station Kamla Market by which the

appellant - Zarina @ Razia was convicted under Section 366 IPC read

with Section 368/373 IPC and Sections 3,4 & 5 of the Immoral Traffic

(Prevention) Act, 1956 (in short: ITP Act), she has preferred the present

appeal. Vide order dated 14.08.2003, she was awarded various prison

terms with fine. The substantive sentences were to operate concurrently.

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

sheet was that the appellant along with her associates Bhagti Ram Pandey

and Hasina abducted/seduced the prosecutrix 'X' (assumed name) before

21.06.2001 with an intention to compel or force her to have illicit

intercourse. The appellant and her associates used to run a brothel at

Kotha No.56, G.B.Road, Delhi and the prosecutrix 'X' was recovered

from the said Kotha on 21.06.2001 at around 8.50 p.m.

3. On receipt of a secret information, raid was conducted by the

police at Kotha No.56, G.B.Road and two girls 'X'and 'Y'(assumed

name) were recovered from there. The Investigating Officer lodged First

Information Report after recording statement of the victim 'X' (Ex.PW-

1/A). 'X'and 'Y' were medically examined; they recorded 164 Cr.P.C.

statements. Statements of the witnesses conversant with the facts were

recorded. In the complaint, the victim (X) disclosed as to how initially

rape was committed upon her and her friend 'Z'(assumed name) by Deep

Karan @ Sonu and Umesh Kumar @ Tinkoo in different jhuggies at

Madipur after abducting them on their way to the park. Thereafter, 'X'

was sent along with Zarina @ Razia at 56, G.B.Road for the purpose of

prostitution by Deep-Karan. Subsequently both Deep-Karan and Umesh

were also arrested. Upon completion of investigation, a charge-sheet was

filed against all of them for commission of various offences. The

prosecution examined twenty witnesses to establish its case. In 313

statement, the accused persons denied their involvement in the crime and

pleaded false implication. The trial resulted in their conviction. Being

aggrieved and dissatisfied, the convicts have filed various appeals; the

present appeal pertains to the appellant - Zarina @ Razia. It is relevant to

note that during the pendency of the appeal, it was informed by the

appellant's counsel on 08.01.2015 that the appellant - Zarina @ Razia has

since expired. State was directed to verify her death. However, till date the

State could not verify the appellant's death.

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

examined the file. As per the victim 'X's statement (Ex.PW-1/A), she

was initially abducted and forcibly raped by Deep-Karan in a jhuggi for

about a month. Subsequently, Deep-Karan sold her to the appellant

(Zarina @ Razia) for `15,000/-. She promised to provide her a good job

and brought her to Kotha No. 56, G.B.Road; she was pushed into

prostitution against her wishes there. In her Court statement as PW-1, she

reiterated her version and implicated Deep Karan and Umesh Kumar for

abducting her and her friend 'Z' and to have committed rape upon them in

two different jhuggies at Madipur for about a month. Apparently the

appellant was not in picture at that time and was not instrumental in their

kidnapping or sexual assault. She had no nexus with Deep Karan to

compel 'X' to indulge in prostitution at the Kotha. Only allegation that

emerged against her was that 'X' was sold to her by Deep Karan and she

brought her to kotha which belonged to the co-convict - Bhagti Ram

Pandey. It is further alleged that she used to share income generated by

the prosecutrix 'X' and other sex-workers. Primarily, the allegations

against the appellant pertain to the commission of offences punishable

under Sections 3, 4 and 5 of the ITP Act. It is pertinent to mention that co-

convict - Bhagti Ram Pandey with similar allegations has been acquitted

by this Court by a detailed judgment dated 02.02.2016 in Crl.A.791/2003.

5. Undeniably, Section 13 of the ITP Act mandates State

government to appoint Special Police Officer for dealing with the offences

under the Act. Vide Notification (Ex.PW-17/A) all ACPs, (SDPOs),

SHOs and Assistant Commissioners of Police of Crime Branch, Palam

Airport and Railways have been designated as Special Police Officers for

the purpose of enforcement of the Act. Apparently, Additional SHOs of

the concerned police stations have not been designated as Special Police

Officers in the said notification. Record reveals that various

correspondences took place to confer similar powers upon Additional

SHOs under Section 13 of the Act but the request was repeatedly not

acceded to (Ex.PW17/DA to Ex.PW17/DE). By a letter (Ex.PW17/DB),

request was specifically made to designate Additional SHO, Kamla

Market, to be the Special Police Officer as per the provision of the Act.

Needless to say, Additional SHOs were not competent to carry out the

investigation under the Act.

6. Admittedly, in the instant case raid was conducted at Kotha

No.56, G.B.Road on 21.06.2001 by PW-11 (Insp.Ashok Tyagi) posted as

Additional SHO, P.S.Kamla Market. It was emphasized that concerned

SHO had proceeded on leave and by oral/verbal directions /orders,

Inspector Ashok Tyagi was directed to officiate as SHO of police station

Kamla Market by PW 19 (Udhey Sahai), ACP, Central District on

19.06.2001. DD No.38 (Ex.PW-18/A) was recorded on 19.06.2001 by

Insp.Ashok Tyagi taking over charge as SHO of Police Station Kamla

Market. Admitted case is that no order in writing was issued authorizing

Insp.Ashok Tyagi, to work as officiating SHO for any specific period.

PW-18 (HC Rajya Vardhan) admitted in the cross-examination that in DD

No.43 (Ex.PW18/DA) recorded subsequent to DD No.38 (Ex.PW-18/A),

designation of Insp.Ashok Tyagi has been mentioned as Additional SHO,

Police Station Kamla Market. In DD No.37-B (Ex.PW18/DB), recorded

on 20.06.2001, Ms.Chhaya Sharma, IAS has been shown as officiating

SHO of police station Kamla Market. PW-19 (Udhey Sahai) did not

furnish any explanation as to why order in writing was not issued to

authorize Insp.Ashok Tyagi to work as SHO of Police Station Kamla

Market. The entire lot of documents on record disclose that investigation

was carried out by Insp.Ashok Tyagi in his capacity as Additional SHO.

No document on record pertaining to investigation reveals that he carried

out the investigation in the capacity of an officiating SHO, police station

Kamla Market. All applications moved before the court including

application under Section 164 Cr.P.C; application for medical

examination of the victims and accused persons; personal search memos

and other various documents reflect that the investigation was carried out

by Insp. Ashok Tyagi as Additional SHO, Kamla Market. Subsequently,

investigation was also carried out by SI Satbir. In some memos prepared

by him, Insp.Ashok Tyagi has been depicted as Additional SHO as

witness. DD No.19/A dated 21.06.2001 has been written by Inspector

Ashok Tyagi as Additional SHO, Kamla Market. It has not thus been

established with certainty that the investigation was carried out by Insp.

Ashok Tyagi as SHO of the concerned police station. Since Insp.Ashok

Tyagi was not empowered under Section 13 of the Act to carry out the

investigation, the entire proceedings conducted by him go to the very root,

competence and jurisdiction and can't be sustained.

7. Appellant's conviction is primarily based upon the

testimonies of PW-1 and PW-16. PW-1 ('X') was taken to a jhuggi by

accused Deep Karan and allegedly confined there for about a month.

Physical relations took place between the two there. At no stage, 'X'

raised hue and cry to complain her forcible abduction or rape. After about

a month, she was sent allegedly with the appellant (Zarina @ Razia) to the

Kotha in question by Deep Karan after accepting `15,000/-. On the way to

the Kotha, 'X' did not raise any protest and accompanied on her own

without demur. In the cross-examination, 'X' admitted that there were

number of other jhuggies around the jhuggi where she was kept for about

a month. On the advice of ladies in the said Jhuggies, she had agreed to

stay there. Admittedly, she was under no restraint and was free to move

anywhere. During this period, she did not visit her parents and never

bothered to contact them. Her parents also did not lodge any missing

report to find her for so long. She further admitted that on the way to

Kotha, she did not raise alarm. During her stay for about a month, in the

said Kotha also, she did not complain. She did not elaborate in her

evidence as to who used to get money from the customers and if so, when

and how much. It is unclear as to how the 'income' used to be shared by

the appellant and her associates.

8. PW-16 ('Y'), another victim, a married lady, deposed that

when she was having five months pregnancy, her husband abandoned her

and married another woman. When she was employed in a carpet

manufacturing company in Nepal, Etti, her acquaintance, brought her to

Delhi on the pretext to provide her a better job. She was sold by her to the

appellant (Zarina @ Razia) at Kotha No.56, where she was compelled by

the appellant - Zarina @ Razia, Hasina and Bhagti Ram Pandey to

indulge in prostitution against her wishes. She further deposed that Hasina

too was a sex worker at that Kotha and compelled the new girls brought

there to indulge in prostitution. They used to send customers and share the

money paid by them. She was not paid anything for two months during

her stay there. Again, the appellant was not instrumental when 'Y' was

brought at the Kotha by one Etti. During investigation, Etti could not be

arrested in this case. The victim aged 22 years had arrived at Delhi on her

own along with Etti. Again, during her stay at Kotha, she did not protest

any time. Only when a raid was conducted on 21.06.2001, she and PW-1

came forward to lodge complaint. In the cross-examination, she disclosed

that there were 200-300 more girls in the Kotha. However, no such girl

came forward to support her. She further admitted that before the raid, the

police used to make inquires and she had apprised the police about her

forcible stay. She admitted that a quarrel had taken place between Kotha

people and the police a few days before and she was taken by the police

after a week. She has made vital improvements in her deposition and has

been duly confronted with her previous statement (Ex.PW-6/DA). No

cogent evidence has emerged to show as to, to what extent, the appellant

and his associates used to share the 'income' generated from prostitution.

9. Prosecutrix 'Z', who was kidnapped and raped by the

accused Umesh did not appear for examination before the Court. Adverse

inference is to be drawn against the prosecution for withholding the

crucial witness. In the MLC, no visible injuries were found on the body

including private parts of the victims. As per ossification test, 'X' was

aged more than 15 years but less than 17 years; 'Z' was opined to be more

than 16 years but less than 17 years. Exact dates of birth of the victims

have not surfaced on record. It is unclear if both of them were below 16

years of age on the day of incident and their consent for physical relations

(if any) had no relevance. No incriminating article was recovered from

the spot; no customer was found present at the Kotha; no tainted money

could be recovered either from the accused persons or the victims.

10. In the light of the above discussion, I am of the view that the

prosecution has failed to prove its case beyond reasonable doubt. The

appellant deserves benefit of doubt; the appeal is allowed. The conviction

and sentence are accordingly set aside.

11. Bail bonds and surety bonds stand discharged. Trial Court

record (if any) be sent back forthwith along with the copy of the order.

Intimation be also sent to the Superintendent Jail.

(S.P.GARG) JUDGE FEBRUARY 18, 2016 / tr