Lack of jurisdiction of the investigating officer, inconsistencies in victims' statements, and absence of evidence for forceful prostitution influenced the court's decision.

S.P.GARG, J.

1. Challenge in this appeal is a judgment dated 11.08.2003 of learned Addl. Sessions Judge in Sessions Case No.95/2001 arising out of FIR No.253/2001 PS Kamla Market by which the appellant – Shaiyara was convicted for committing offences punishable under Section 368 IPC read with Sections 366; 373 IPC and Sections 3, 4 & 5 Immoral Trafficking (Prevention) Act, 1956 (in short ‘ITP Act’). By an order dated 18.08.2003, she was sentenced to undergo various prison terms with fine. The substantive sentences were to run concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-sheet was that the appellant and her associate Bharti on or before 02.07.2001 concealed or confined the victims ‘MT’, ‘MK’, ‘T’, ‘M’, ‘P’, ‘A’, ‘V’ and ‘AM’ (changed names) on the first floor of ‘Kotha’ No.58, G.B.Road knowing that they were minors and have been kidnapped with the intent that they would be compelled or forced to illicit intercourse. These girls were recovered from the said ‘kotha’ on 02.07.2001 in a raid conducted by the police. On that day, Insp.Ashok Tyagi along with SI Satbir Singh and ASI Sarita was on patrolling duty. At about 06.30 p.m. when they were present near Kotha No.52, G.B.Road, a secret information was received that two girls namely ‘MK’ and ‘MT’ have been forcefully detained at Kotha No.58, G.B.Road. A raiding team was constituted and in the said raid at Kotha No.58, eight girls were recovered from different places. The Investigating Officer recorded victim’s statement (Ex.PW-1/A) and lodged First Information Report by making endorsement (Ex.PW-9/A) over it. After recording statements of the other victims, they were medically examined; their statements under Sections 164 Cr.P.C. were recorded. Subsequent investigation was carried out by SI Satbir Singh. Statements of the witnesses conversant with the facts were recorded during investigation. The accused persons were arrested. Ossification tests were conducted to ascertain the age of the victims. Upon completion of investigation, a charge-sheet was filed against the appellant and her associate Bharti for commission of offences punishable under Section 368 IPC read with Section 366 IPC; 109 IPC read with Section 376 IPC; 373 IPC and Sections 3, 4 & 5 ITP Act. By an order dated 05.11.2001, they were charged for committing the aforesaid offences to which they pleaded not guilty and claimed trial. To bring home its case, the prosecution examined twenty-three witnesses. In 313 Cr.P.C. statement, the appellant denied her involvement in the crime and pleaded false implication. On appreciation of the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, acquitted Bharti of all the charges except Section 3 of ITP Act. It is relevant to note that State did not challenge her acquittal for commission of other offences. It appears that Bharti has not challenged her conviction under Section 3 ITP Act. The trial resulted in appellant’s conviction and being aggrieved and dissatisfied, she has filed the instant appeal.

3. I have heard the learned counsel for the parties and have examined the file. At the outset, it may be mentioned that PW-9 (Insp. Ashok Tyagi) was posted as Addl. SHO PS Kamla Market at the relevant time. Whether Insp. Ashok Tyagi was competent to carry out investigation under ITP Act being Addl. SHO of PS Kamla Market during the relevant time has been discussed in detail in Crl.A.791/2003 decided by this Court on 02.02.2016 in ‘Bhagti Ram Pandey vs. State NCT of Delhi’. In that case, the investigation under ITP Act was carried out by Insp. Ashok Tyagi when he was working as officiating SHO of the said police station in the absence of regular SHO who had proceeded on leave. Para Nos. 5 & 6 are relevant :

“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) al