Full Text
HIGH COURT OF DELHI
SANJANA RAI ALIAS ANKITA RAI .....Appellant
Through: Mr. Ajay Verma, Advocate.
Through: Mr. Amit Ahlawat, APP for the State.
Mr. Anil Grover, SPP for CBI with Mr. Neeraj Bhardwaj and
Mr.Mankaran Singh, Advocates.
JUDGMENT
Exemption allowed, subject to just exceptions.
The applications stands disposed of.
This is an application seeking condonation of delay of 261 days in filing the appeal.
For the reasons stated in the application, same is allowed and the delay of 261 days in filing the appeal is condoned.
The application stands disposed of.
2022:DHC:2052
1. By way of the present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), the appellant has challenged the impugned judgment dated 15.10.2018 and order on sentence dated 30.10.2018 passed in SC No. 27254/2016 titled as CBI Vs. Anand Vishwa @ Bishwa and Ors., arising out of FIR No. R.C.3(S) 2012-CBI/SC-1/New Delhi, registered at Police Station CBI/SC.I/New Delhi, under Sections 344/366A IPC Sections 4/5 of ITP Act, whereby appellant has been sentenced to undergo as follows:-
(i) Ten years of rigorous imprisonment under Section 366A IPC with fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for two years.
(ii) Seven years of rigorous imprisonment under Section 4 of the ITP Act.
(iii) Seven years of rigorous imprisonment under Section 5 of the ITP Act.
(iv) Seven years of rigorous imprisonment under Section 120B IPC read with Sections 342/366A/376/506 IPC read with Sections 4 and 5 of the ITP Act with fine of Rs.3,000/-, in default of payment of fine, to undergo simple imprisonment for one year.
2. In brief, the facts of the case as per the prosecution are that information was received vide e-mail dated 17.02.2012 from one Sh. Nirnay John, a functionary of an NGO namely, Mankind on Action for Rural Growth (‘MARG’) based in Darjeeling, West Bengal, regarding missing of 14 years minor girl ‘RL’ (prosecutrix herein) for seeking CBI help on urgent and immediate basis to rescue the said missing girl, who seemed to be in the net of inter-state gang of traffickers. ‘RL’ was recovered on 22.02.2012 by the officials of Special Crime Unit – I of CBI, New Delhi, from the market of Village Munirka, New Delhi, while she was with the appellant – Sanjana Rai @ Ankita Rai. ‘RL’ was thereafter interrogated by the Special Police Officer and she gave a written complaint stating that she is resident of Darjeeling and her father is a tourist guide at local Zoological Park, Darjeeling and her mother deserted her family about thirteen years ago. ‘RL’ asked one ‘AG’ (prosecutrix in another case bearing RC NO. 5(S)/2012-SC I/CBI, New Delhi), a married lady of her village for help and the said ‘AG’ recommended the prosecurix to go to Delhi for employment through one of her acquaintance/friend, namely, Anand Vishwa, who was residing in Delhi. On 19.11.2011, prosecutrix reached Siliguri Bus Stand, where Anand Vishwa @ Bishwa met her and took her to Delhi by train and thereafter to a house at Nehru Place, where wife of Anand Vishwa, namely, Babita was already present, who delivered a baby girl on 25.11.2011. According to the prosecutrix accused Anand Vishwa @ Bishwa forcibly established physical relations with her and also subjected her to sexual exploitation at the hands of several persons. ‘RL’ also alleges that when she was subjected to sexual exploitation for the first time, she was made to eat something and after consuming it, she felt giddiness. ‘RL’ further alleges that accused Anand Vishwa took her to the house of his friend i.e. accused/appellant Sanjana at Village Munirka, who was aware that Anand Vishwa was involved in trade of supplying girls for commercial sexual exploitation. According to the prosecutrix, on 29.11.2011, she left the house of accused – Anand Vishwa and started living with the appellant and thereafter, the appellant – Sanjana sent the proxecutrix to the house of coaccused Ajay Vishwa, where she stayed for one month, who also established physical relations with the prosecutix several times. Prosecutrix further stated that she managed to escape from there and came back to the house of the appellant.
3. During the course of investigation, the prosecutrix was medically examined and her statement under Section 164 Cr.P.C. was also recorded. According to the prosecution, the appellant knowingly and intentionally sent the prosecutrix to accused Birendra Kumar Singh @ Pandit at Munirka for the purpose of commercial sexual exploitation for monetary gains, despite knowing that prosecutrix was a minor girl. The co-accused Birendra Kumar Singh @ Pandit not only forcibly raped the prosecutrix, but also subjected her to commercial sexual exploitation at the hands of his clients.
4. I have heard learned Special Public Prosecutor appearing on behalf of the Central Bureau of Investigation and learned counsel appearing on behalf of the appellant. I have also perused the record.
5. At the outset, it is submitted by learned counsel for the appellant that the appellant had already undergone more than nine years of incarceration, out of the maximum sentence awarded to her which is ten years rigorous imprisonment and submitted that the appellant may be released on the period of sentence already undergone. It is further submitted that the appellant has been falsely implicated and that there is no independent witness who had deposed against the appellant. It is further submitted that there are inconsistencies and contradictions in the testimonies of the prosecution witnesses and the testimony of the prosecutrix is not reliable and is full of improvements. It is further submitted that the Trial Court had not appreciated the fact that prosecution failed to explain the reason as to why even after knowing that the appellant was sexually exploited the prosecutrix, instead of going to the police or complaining about the same to some other person, went back to the appellant’s house after escaping from the house of co-accused Anand and Ajay, and this conduct of the prosecutrix shows that the appellant has been falsely implicated. It is further submitted that the prosecutrix had made statement under Section 164 Cr.P.C. on 22.02.2012, wherein she stated that while she was shopping with the co-accused Kiran, CBI officials met them and took them to CBI office, while in her examination-in-chief, prosecutrix stated that she met the CBI officials while she was shopping with the appellant and further again in her crossexamination prosecutrix stated that she was with co-accused Kiran when she was rescued by the CBI officials, which again goes on to show that prosecutrix is not a trustworthy witness.
6. On the other hand, it is submitted by learned Special Public Prosecutor appearing on behalf of the CBI that there is no infirmity in the impugned judgment dated 15.10.2018. It is further submitted that the victim/prosecutrix was a minor on the date of the incident, and minor inconsistencies are not sufficient to disbelieve the evidence led by the prosecution. It is further submitted that even if at one or two places, the victim has named the appellant as Kiran, it does not make the prosecutrix unbelievable as the appellant has been correctly identified by the prosecutrix and the contention that the prosecutrix after escaping from the house of the co-accused went back to the house of the appellant, despite the fact that she was being sexually exploited also has no force in it as the victim/prosecutrix was a minor on the date of incident and she had no place to go, that is why she again went to the appellant and this conduct of the prosecutrix does not render her testimony unreliable as the helpless victim had no other place to go.
7. In the present case, as per the case of the prosecution, the victim/prosecutrix - ‘RL’ was a minor on the date of incident. In order to prove the age of the victim/prosecutrix on the date of the incident, the prosecution has examined PW-13, namely, Ms. Neena Rai, who was working in the school since 1999, where the victim/prosecutrix was studying. PW-13 identified the signatures of Sr. Elizabeth Chaterjee on a letter Ex.PW-13/A who was the Head Mistress of the school where the victim/prosecutrix was studying, and also identified her signatures on the copy of the admission register with regard to the date of birth of ‘RL’, which is Ex.PW-1/B. PW-13 further deposed in her testimony that the date of birth of the victim/prosecutrix is 15.10.1997.
8. As per Ex.PW13-A, the date of birth of the victim as per the school record is 15.10.1997 and PW-13 has produced the original admission register of the school and the copy of the same is Ex.PW-13/B. The prosecution has also examined PW22, Registrar, Birth and Death, Darjeeling Municipality, who had produced attested copy of the birth certificate of victim and the same is Ex.PW-22/B. He also exhibited his verification report with regard to the birth certificate of victim which is Ex.PW-22/A, and as per that record, the date of birth of victim was 15.10.1997.
9. PW-22 had produced the attested copy of the birth certificate of the victim from the office of the Registrar, Birth and Death, Darjelling Municipality, and Ex.PW-22/A is the verification report issued by the the Vice Chairman of Darjeeling Municipality who had attested the birth certificate Ex.PW-22/B, therefore, I find no reason to disbelieve the testimony of PW-22 or to hold that the document produced by him is fabricated or false. From the deposition of PW-13 and PW-22 and on the basis of documents exhibited by them, the prosecution has been able to prove that the date of birth of ‘RL’ is 15.10.1997, and that on the date of commission of the offence, the victim/prosecutrix was under eighteen years of age.
10. It is also pertinent to mention here that, in her cross-examination the victim/prosecutrix has denied the suggestion that she was above eighteen years of age on 27.11.2011 and on being further questioned, during crossexamination recorded on 06.09.2013, with regard to her name and address of her school, the victim correctly named the same school from which PW-13 had produced her record. Therefore, on the basis of birth record placed on record by the prosecution, the victim/prosecutrix was about thirteen years old at the time of commission of the offence.
11. The victim is the most relevant witness in the case of the prosecution, who has been examined before the Trial Court as Ex.PW-3, Now, it is to be seen whether the testimony of PW-3 is reliable or not. The learned Trial Court has examined the testimony of PW-3 in great detail and has observed as follows:- “95. I have considered the aforesaid submissions and gone through the deposition of the prosecutrix PW[3] minutely. It may be noted that in her deposition before the court, victim categorically deposed that she came to Delhi on the night of 29/30.11.2011 by train with accused Anand. To corroborate her deposition in this regard, the prosecution has examined PW10, who was working as Deputy CVO, Traffic (Retd.) Northern Railway in 2012. He produced the record relating to prosecutrix 'RL' and Anand, who travelled in train No. 12505, North East Express on 28.11.2011 and 29.11.2011. He also produced railway chart of passengers containing their names which is Ex. PW10/B and PNR numbers of both the above-mentioned passengers. Though it was argued that as per record produced by the witness, the age of 'RL' who travelled on the said PNR number is mentioned as 32 years and thus it cannot be held that victim in the present case, who is a minor, had travelled on the said PNR number on the aforesaid date.
96. I have considered the said submissions. However, it cannot be ignored that victim had been allegedly trafficked by accused Anand for the purpose of her sexual exploitation. That being so, it cannot be expected that he would mention her correct age in the records of the railways while travelling with her from Siliguri to Delhi and it can safely be presumed that the age of the victim was got recorded intentionally as 32 years. There is otherwise no other explanation for the railway records to contain the name of accused Anand and victim 'RL' as passengers, who travelled in train No. 12505, North East Express on 28.11.2011 and 29.11.2011.
97. Thus, apart from the testimony of the prosecutrix herself, there is record from the railway produced by PW10 of the year 2011 to corroborate that the victim in fact travelled from Siliguri to Delhi by train on 29.11.2011.
98. In that view of the matter, the mere fact that victim in her statement recorded during the course of investigation did not mention the correct dates, cannot be a ground to discard her entire deposition or to throw out the case of the prosecution outrightly.
99. The official from the Railway Department produced the record maintained in the official course of business and the objection raised by the Defense regarding exhibiting the passenger chart Ex. PW10/B is totally unfounded and there can be no doubt with regard to authenticity of the record produced by PW10 in this regard.
100. In the light of the above discussion, the contention of the Defense that victim could not have been in Delhi on 25.11.2011 i.e. on date when child of accused Anand was born, as per the version of the prosecutrix in her complaint Ex. PW3/A and statement under Section 164 CrPC Ex. PW-3/I, is also liable to be rejected. It may be noted that upon stepping into the witness box, the prosecutrix clearly testified that child of accused Anand was born on 25.12.2011. It is also relevant to note that this fact was put to accused Anand in his statement recorded under Section 313 CrPC, which was partly recorded on 21.05.2018 as Question No. 17 which is as follows:- Question: It is in evidence against you that on 25.12.2011 you made a call to Mukesh and asked him to send Prosecutrix PW-3 her to your house as his wife had delivered a baby. Thereafter, Mukesh had hired an auto and sent PW-3 to your house from where she went to the hospital where your wife was admitted and PW-3 stayed in the hospital and on the next day, your wife was discharged. What you have to say? Ans. It is incorrect as I have never called any Mukesh nor anybody except my family members were there along with my wife at the time of her delivery.
101. It is apparent from the response of accused Anand that he never denied that his wife did not deliver a child on 25.12.2011 nor any evidence was led by him to the contrary. He merely stated that he had never called anyone except his family members and only he and his family members were with his wife at the time of delivery.
102. At the end of his statement under Section 313 CrPC, Accused Anand was asked as Question No. 234 on 31.05.2018 whether he had anything else to state. Even in response to the said question, accused did not even mention anything with regard to date of delivery of his wife nor produced any document in this regard during the entire course of trial. Thus, the version of the prosecutrix that wife of accused Anand delivered a child on 25.12.2012 has not been disputed by accused Anand.”
12. I have also carefully perused the testimony of PW-3, her statement recorded under Sections 161 and 164 Cr.P.C. and I find no infirmity in the observations made by the learned Trial Court while appreciating the testimony of PW-3, who is a child witness. The reliance placed by the learned Trial Court on the judgment of the Supreme Court in the case titled as Smt. Shamim Vs. State (GNCT of Delhi) in Crl. Appeal No. 56 of 2018 decided on 19.09.2018 is not misplaced and the learned Trial Court has rightly arrived at a conclusion that the testimony of PW-3 does not suffer from infirmity and cannot be termed as unbelievable. The relevant paras 88 and 89 read as follows: “88. In this regard, reliance may be placed on a recent pronouncement of Hon'ble Apex Court in case titled as Smt. Shamim vs. State (GNCT of Delhi) in Crl Appeal No.56 of 2018 decided on 19.09.2018. wherein it was observed as under:- "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
89. Further, while answering a Reference received from the Juvenile Justice Board-I, the Hon'ble High Court of Delhi in Criminal Reference No.02/16 titled as Court on its own motion vs. State decided on 04.08.2018. made certain observations with regard to appreciation of evidence of a child victim and recording of her multiple statements during investigation and observed as under:- The dynamics of child sexual abuse are the same internationally. First and foremost, it is essential to understand the manner in which the children recount. Children do not disclose in one go but do so in piece meal. To accord the same treatment to a child as one would to an adult would result in grave injustice. It needs no elaboration that the children would be reluctant and unlikely to disclose an entire adverse experience in proper detail in their first statement to the police, let alone the necessary details. The fear for themselves or their family; an apprehension that they would be disbelieved; inability to identify themselves as victims; pressure or threats from the perpetrator; relationship to the perpetrator; fear of embarrassment, shame or self-blame; fear of stigmatization; lack of trust with the investigating agency amongst other would be some of the reasons which would act as barriers to a child making a disclosure of a complete incident in a single meeting. A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done. The Hon'ble High Court further held as under.-
(i) The law allows the investigating agencies to record multiple statements of the victims. There is no prohibition on recording multiple statements by the police.
(ii) A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.”
13. Minor inconsistencies in the testimony of the witness which do not go to the root of the matter are not sufficient to dislodge the testimony, rather these minor discrepancies are a guarantee towards the truthfulness of the testimony of the witness as the witness is not speaking in a parrot like manner, rather she is speaking from her memory.
14. The testimony of the victim/prosecutrix also find corroboration from the deposition of PW-18 and PW-32. PW-18, Ms. ‘RC’ deposed that she knew accused Imtiaz as he used to visit the house of accused Ajay when she was residing with him. She further deposed that Ajay sold her and took her to Mr. Khan and then said Mr. Khan took her to Ajay and she was sold for the purpose of prostitution, though the victim was unable to remember the specific dates, but PW-18 correctly identified both accused persons – Ajay Chaudhary and Imtiaz in the Court.
15. PW-32 – ‘AG’ also supported the version of the prosecution and stated that the victim/prosecutrix asked her to arrange a job and she told her that she knew the accused. PW-32 had clearly identified accused Anand Vishwa and deposed that she told Anand Vishwa about the victim who assured her that he will arrange a job for taking care of the baby and he took the victim from Siliguri in November, 2011. PW-32 had further deposed that after sometime she had talked to Anand Vishwa on phone about procuring some job for her and he assured her about getting job in Delhi. Later, on receipt of call from CBI, she went to the office of CBI and accused Anand Vishwa was also there. Thereafter, she was taken to an area near bus stand along with 4-5 CBI officials and accused Anand Vishwa handed her over to a person sitting in another car for the purpose of prostitution and accused – Anand Vishwa took money from him and after that they were caught by CBI. PW-32 has further deposed that the name of the said person to whom she was handed over by accused Anand Vishwa was Anoop @ Faris Suja Jalali and the date of handing over and apprehension of Anoop was 13.04.2012.
16. The testimony of these two witnesses further supports the case of the prosecution that accused persons were in the business of trafficking and selling girls for the purpose of prostitution. The victim in the instant case was medically examined by PW-4 who gave her report vide MLC Ex.PW- 4/A. The relevant portion of the same reads as follows: “111. It is noteworthy that as per medical examination report of the victim, the concerned doctor opined on the basis of her medical examination that the victim was sexually exploited on the basis of her medical examination. The alleged history of the victim having been apparently told by Insp. Seema Pahuja, also in my opinion does not have any bearing on the findings of the examining doctor, who submitted her report not on the basis of the alleged history, but on the basis examination of the victim conducted by her. The perusal of the MLC would reveal that upon examination of the victim per vagina, she found her hymen torn and introitus wide and, therefore, she gave her opinion on MLC Ex. PW- 4/A.”
17. So the testimony of the victim/prosecutrix ‘RL’ is fully supported by the medical evidence on record in the form of MLC Ex.PW-4/A.
18. It is also argued that there is delay in lodging of FIR and the investigation is defective. Both these points were considered by the learned Trial Court, who observed that though there are some loose ends in the investigation conducted by CBI but the learned trial court relied upon the judgment of the Supreme Court in the case titled as Kernel Singh Vs. State of M.P. 1995 (5) SCC 518. The relevant paras read as under:- “117. In this regard, I am supported in my view with judgment titled as Kernel Singh Vs State of M.P.: 1995(5) SCC 518. It was observed by Hon'ble Supreme Court as under: "In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an Accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. “118.In the case of Paras Yadav Vs State of Bihar (1999) 2SCC126. it was held that: "If the lapse or omission is committed by the investigating agency or because of negligence, the Prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the Complainant party".
119. In the case of State of Karnataka Vs K. Yarappa Reddv (1999) 8 SCC 715. the Hon'ble Supreme Court considered the question of defective investigation as to whether any manipulation in the station house diary by the IO could be put against the Prosecution case. In para 19, the Hon'ble Supreme Court observed as under:
19. It is further observed by the learned trial court that even if there is a lapse on the part of investigating agency, the same cannot be a ground to acquit the accused when there is considerable evidence against the accused on record. In the instant case, the testimony of PW-3, the victim/prosecutrix and her medical report clearly points out towards the guilt of the appellant and the defective investigation, as alleged by learned counsel for the appellant, is not sufficient to disbelieve the testimony of PW-3.
20. I find no infirmity in the observations made by the learned Trial Court in this regard and while holding that the loose ends, as pointed out by learned counsel appearing on behalf of the appellant, does not make the case of the prosecution unreliable and the investigation even if defective, as submitted by learned counsel for the appellant and the same cannot come to the rescue of the appellant.
21. It has also been argued on behalf of the appellant that there is an unexplained delay in registration of the FIR. In the instant case, the victim left her home in West Bengal in November, 2011 and the e-mail in this regard Ex.PW-9/A was received in the office of CBI on 17.02.2012. The victim was recovered on 22.02.2012 and the FIR was registered on 24.02.2012 after the matter was brought to the notice of the senior officers pursuant to the rescue of the victim on 22.02.2012. The case regarding missing of victim had already been registered at the concerned Police Station at Darjeeling as deposed by PW-1 when the missing report was received at the local Police Station. Therefore, merely delay of one day in registration of the FIR is no ground to fault the case of the prosecution. The testimony of PW-15 is also of much importance. In this regard, the deposition of PW-15 reads as under:- “181. PW-15 Sh. Vijay Kumar Dy. SP, CBI Special Task Force, New Delhi is also a witness to the investigation. He deposed that on 18.02.2012, he was called by his DIG Anurag Garg and his SSP Surender Pal and they handed over him one e-mail along with photograph of a girl and directed him to trace out the said girl. One DD entry of PS Sadar, Darjeeling District, West Bengal Police was also given to him. He also identified the said DD No.722, e-mail, photograph when shown to him at the time of his deposition in the court and the same have been exhibited as Ex. PW-9/A.
182. PW-15 further deposed that on perusal of the e-mail it was revealed that there was a reference of one mobile number in the said e-mail, consequently Nodal Officer was contacted and it was revealed that the number was issued by Airtel. He called for location chart of the said mobile phone and the said mobile was found in the area of Munirka. Thereafter, they deployed their sources in Munirka on 18.02.2012 and had also given the copy of the photograph of the said girl to them.
183. PW-15 further deposed that on 22.02.2012, on receipt of an information that a similar girl was seen in Munirka Market, they reached there about 4 PM. The informer met them there and pointed towards the girl and at that time the girl was accompanied with one woman. Upon inquiry, the girl confirmed that her name is 'RL'. Lady Insp. Rima made inquiry from both the females wherein it was revealed that the woman who accompanied 'RL' was Sanjana. Thereafter, with the consent of both the females, they took both of them to CBI office for further investigation.”
22. Considering the facts and circumstances of this case no adverse inference is liable to be drawn against the prosecution and defence has not been able to show as to what prejudice has been caused to them when FIR in the same Police Station was already registered on 22.02.2012. Therefore, the prosecution has satisfactorily explained the manner and the circumstances in which the FIR was registered.
23. The victim/prosecutrix has clearly identified the appellant in the Court during her testimony, who deposed that she was left by accused Anand Vishwa at the house of the appellant after which the appellant took her to the house of co-accused Kiran where Kiran used to take money from the boys who used to exploit the victim, thereafter, appellant took victim to Munirka from where accused Anand Vishwa again took her to his house.
24. The victim identified the appellant in the Court during her crossexamination recorded on 16.03.2016, she has stated that when she met the CBI officials for the first time she was with Kiran in Munirka market and at that time they were shopping. Learned counsel for the appellant has argued that the victim had stated that she was with the appellant in her examinationin-chief whereas in her cross-examination dated 16.03.2016 she had stated that she was with accused Kiran when she was rescued by the CBI officials so as to contend that the testimony of the victim is unreliable and unworthy. It has also been argued on behalf of the appellant that if the victim was being sexually exploited by the appellant, there was no reason for the victim to return to the house of the appellant again. In this regard, learned Trial Court had observed as follows:- “189. I have considered the aforesaid submissions. However, it may be reiterated that the victim in the present case was allegedly trafficked for the purpose of her sexual exploitation and was being sexually exploited at the hands of accused persons one after other. Slight variations in her version cannot thus be treated as a ground to hold that she was not deposing the truth or that her entire testimony is liable to be discarded solely at this score. It must be kept in mind that the victim not only correctly identified accused Sanjana in her examination-in-chief, but also deposed that when she was rescued by the CBI officials on 22.02.2012, she was in the company of Accused Sanjana. Upon being further cross-examined, the victim was again questioned by the learned defence counsel himself:- "Question: I put to you that you were shopping with Sanjana on 22.02.2012 at Munirka Market? Answer: It is correct."
190. Thus, I find that the victim has been consistently stating that she was with Accused Sanjana on 22.02.2012 at Munirka Market and the fact that she stated the name of Accused Kiran at one point cannot be said to be fatal to the case of Prosecution.
191. Further, the fact that 'RL' did not raise any hue and cry when she was in the company of Accused Sanjana in the market, also cannot be said to draw an adverse inference inasmuch as the victim 'RL' has been proved to be a minor at the time of commission of the alleged offences. It has come on record that she came to Delhi for the first time in the year 2011 and at that time, she was merely 13 years old. In these circumstances, possibility cannot be ruled out that victim 'RL' was probably not aware as to where she would go if she tried to escape from the house of Sanjana, to whom she treated as her sister, as stated by her in her further cross-examination on same date i.e. 06.09.2013 in response to a question as to why did she go to the house of Sanjana when she knew very well that Sanjana was forcing her for prostitution.
192. It is also noteworthy that on 06.09.2013 itself a question was again put to the victim as to why she did not make hue and cry after seeing the police officials or make complaint to any persons found on the way. The victim responded to the question stating that she did not do so as Accused Sanjana was with her.
193. It thus appears from reading the deposition of the victim 'RL' in its totality that she was a minor helpless victim and Accused Sanjana did not deter from sexually exploiting the child and continued to send her to different persons on whose hands she continued to suffer.”
25. Therefore, from the deposition of PW-3, the prosecution has been able to establish that the appellant – Sanjana had sold her to accused persons where she was exploited at the hands of different persons. Therefore, I find no infirmity in the observation made by the learned trial court in the impugned judgment wherein in the relevant paras reproduced hereinabove the learned trial court has very aptly dealt with two submissions made by the counsel for the appellant regarding the victim not running away from the clutches of the appellant and calling appellant as Kiran. However, the facts remain that the victim/prosecutrix was rescued from the clutches of the appellant when they were in a market and the identity of the appellant is not disputed. On the basis of facts and circumstances discussed herein above, prosecution has been able to bring home the charges against the appellant under Section 366A IPC and Section 5 of the ITP Act for having procured the minor victim/prosecutrix ‘RL’ knowing that she will be forced or seduced to illicit intercourse with other persons and for forcing the minor victim for doing the work of prostitution stand duly proved on record.
26. As far as charge under Section 344 IPC is concerned, the prosecution has not been able to prove from the evidence on record that the appellant got the victim in wrongful confinement. Further, from the deposition of PW-3 ‘RL’ it becomes clear that accused – Sanjana sold her to another accused persons who further sexually exploited her at the hands of different persons. The presumption laid down in Section 4(2) of the ITP Act is thus squarely attracted in the facts of the present case against accused – Sanjana, who is also convicted for offences punishable under Section 4 of the ITP Act besides the offences punishable under Sections 366A IPC and Section 5 of the ITP Act.
27. As far as the contention of learned counsel for the appellant that the appellant may be released on the period already undergone, the same also has no force in it and the said contention has also been vehemently opposed by learned SPP appearing on behalf of the CBI on the premise that the allegations against the appellant are grave and serious in nature and the appellant has been involved in human trafficking where a minor girl has been exploited and her life has been ruined.
28. Looking into the allegations against the appellant and the manner in which the minor child was sexually exploited, I find no reason to release the appellant on the period of sentence already undergone by her.
29. In view of the foregoing, the appeal, being devoid of any merit, is hereby dismissed.
RAJNISH BHATNAGAR, J MAY 09, 2022 AK