AFJAL Vs. STATE OF U. P.

JUDGEMENT

(1.) Both Criminal Appeal No. 5583 of 2016, Smt. Afjal Vs. State of U.P. and Criminal Appeal No. 5847 of 2016, Smt. Kali Vs. State of U.P., have been filed against one and common judgment, passed by Court No. 3 of Additional Sessions Judge/ Special Judge [Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act], Varanasi, in consolidated S.T. No. 161 of 2006, State of U.P. Vs. Mehtab and another connected with S.T. No. 284 of 2006, State of U.P. Vs. Smt. Kali, arising out of Case Crime No. 300 of 2005, u/s 3, 4, 5, 6, 9, 14, 15 of Immoral Traffic (Prevention) Act, 1956, P.S. Manduadeeh, District Varanasi, wherein a judgment of conviction for offence punishable, as above, and sentenced with two years R.I. with fine of Rs. 1000/- and in default three months additional imprisonment for offence punishable u/s 3 of Immoral Traffic (Prevention) Act, 1956, [hereinafter referred to as the Act], seven years R.I. with fine of Rs. 2000/- and in default six months additional imprisonment for offence punishable u/s 4 of the Act, ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 5 of the Act, ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 6 of the Act and ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 9 of the Act, with direction for concurrent running of sentences, was awarded against convict appellants Smt. Afjal and Smt. Kali, u/s 374(2) of Code of Criminal Procedure. Thus, appeals by both of convict appellants, with a prayer for setting aside impugned judgment of conviction and sentence made therein; thereby acquitting from charges levelled against them. Hence both the appeals are being decided by common judgment.

(2.) In brief memo of appeal, filed by Smt. Afjal, contains that the trial court failed to appreciate facts and law placed before it and passed the impugned judgment of conviction. Prosecution failed to prove its case beyond reasonable doubt. There was no independent impartial witness of occurrence. There was no compliance of section 15 of the Act. It was a false implication. After recording of statement u/s 313 Cr.P.C., for filling in lacunae in the prosecution case, PW11 Mala @ Vrinda @ Nargis was examined, upon behest of Ajit Singh and for her cross-examination the appellant was to deposit Rs. 7000/-. This was a discriminatory conduct of Trial Judge. Procedural irregularity was there. Application u/s 311 Cr.P.C. was moved by Ajit Singh, having no locus standi, because of him being proclaimed Chairperson of Guria Swayam Sevi Sansthan, Varanasi. He is neither independent nor natural witness. Rather he is of criminal repute and a partisan witness. His statement, u/s 161 Cr.P.C., was neither recorded nor was given to learned counsel for defence. Hence this was a development made in prosecution case. Dr. Krishna Yadav, Dr. Alka Singh and Dr. Manju Singh, PW8, PW9 and PW10, respectively, have specifically contended about non existence of any external or internal injury over person of victims, examined by them. According to them, Shabana was of 18 years, Mala @ Nargis was less than 18 years, Fatima @ Babli was more than 18 years, Pratima @ Shabnam and Shabana were of less than 18 years. Though none of the above witnesses have ever said that the victims, examined by them, were minors or juvenile. Rather on presumptive measure their age was determined and the learned trial judge has taken each of them as minor and on the basis of which judgment of conviction and sentence therein has been passed. Whereas, there are catena of judgments that two years either way in age determination may be possible and the fact in favour of the accused is to be given weight. But the trial court did not paid heed. Testimony of PW11 was full of material contradictions. She has categorically admitted about her misstatement, given before Chairman, Child Welfare Committee. Her identity was also doubtful. Appellant Smt. Afjal was not apprehended on spot nor there was any recovery of any victim from her possession or captivity. The alleged recovery of Fatima @ Babli, Sharmila @ Rubina and Shabana, wife of Sheru, was said to be from house of Rahmat i.e. husband of appellant Smt. Afjal, whereas recovery of Sangita @ Shakina, Mala @ Nargis and Pratima @ Shabana was said to be from the premises of Mehtab. But Fatima @ Babli, Sharmila @ Rubina and Shabana, who were said to be recovered from the house of Rahmat, husband of appellant Smt. Afjal, were not examined before the trial court. [Though this fact is wrong. Fatima @ Babli has been examined as PW1, but in the memo of appeal in ground no. 16 this has been wrongly written that she has not been examined before the trial court.] Recovery memo was not prepared on spot. It was full of overwriting and use of eraser and fluid. Same was position of chick F.I.R. as well as of General Diary entry. Chick F.I.R. was not sent to the Court of Magistrate before 8 days. It was against legal mandate establishing F.I.R. ante-timed. PW2 Fatima @ Babli, in her testimony, has admitted to be recovered from the house of Mehtab and not from the house of Rahmat. Whereas PW5 Ajit Singh and other witnesses have stated her recovery from the house of Rahmat, establishing material contradiction, resulting prosecution case doubtful. PW5, Ajit Singh, was having no locus standi to conduct this case, but he had intervened at every stage before the trial Judge. Even upon his application moved u/s 311 Cr.P.C., PW11 was summoned. Chairman, Child Welfare Committee, was having no authority to record statement u/s 164 Cr.P.C. Besides this, alleged recording of statement is full of doubt. This was false implication, because of enmity with Ajit Singh, who conspired with Dr. Roli Singh and got this case concocted. Learned Trial Judge passed the judgment of conviction on the basis of surmises and conjecture, because notification, regarding declaration of Red Light Area at Manduadeeh Shivdaspur, was not there on the record, even then it was accepted on the basis of presumption. Hence this appeal with above prayer.

(3.) Memo of appeal of Smt. Kali is with same contention that the trial court failed to appreciate facts and law placed before it and judgement in question was based on surmises and conjecture. Alleged raid was said to be of 13.11.2005 in which Shabana @ Kajol, D/o Jaipla was said to be recovered from the house of Smt. Kali, whereas Smt. Kali was not present at her house nor Shabanam @ Kajol was examined. There was no evidence against appellant regarding illegal trafficking of woman, except statement recorded u/s 161 Cr.P.C. of Shabnam @ Kajol, in which she has stated that Mukhiya, sister of appellant Kali, along with Jaiki and Mantor were forcing her for prostitution. There is nothing against appellant on record. Two independent witnesses Surya Prakash and Sanjay Vishwakarma, who were taken in above raid proceeding, were not examined before the trial court. Victim Shabanam @ Kajol was also not examined. Hence this appeal with above prayer.