Andhra Pradesh High Court - Amravati
Gurram Venkat Nageswara Rao Pandu, vs The State Of A.P., Rep By Pp., on 26 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.277 OF 2010
&
CRIMINAL APPEAL NO.284 OF 2010
COMMON JUDGMENT:
-
The Criminal Appeal No.277 of 2010 is filed by the
unsuccessful A.2 challenging the judgment, dated 05.02.2010 in
Sessions Case No.162 of 2009, on the file of Additional Assistant
Sessions Judge, Eluru ("Assistant Sessions Judge" for short),
whereunder the learned Assistant Sessions Judge, found the
appellant guilty of the charges under Sections 366-A and 417 of
the Indian Penal Code ("I.P.C." for short) and proviso (ii) Sub
Section (1) of Section 5 of Immoral Traffic (Prevention) Act,
1956 ("I.T.P. Act" for short), convicted him under Section
235(2) of the Code of Criminal Procedure ("Cr.P.C." for short)
and after questioning him about the quantum of sentence,
sentenced him to undergo rigorous imprisonment for seven
years for the charge under Section 366-A of IPC, to undergo
rigorous imprisonment for six months for the charge under
Section 417 of IPC and to undergo rigorous imprisonment for
ten years for the charge under the proviso (ii) Sub-Section (1)
of Section 5 of I.T.P. Act and that the sentences shall run
concurrently.
2) The Criminal Appeal No.284 of 2010 is filed by
the unsuccessful A.1 challenging the judgment, dated
05.02.2010 in Sessions Case No.162 of 2009, on the file of
learned Assistant Sessions Judge, whereunder the learned
Assistant Sessions Judge, found the appellant guilty of the
charges under Sections 366-A and 417 of IPC and proviso (ii)
Sub Section (1) of Section 5 of ITP Act, convicted her under
Section 235(2) of Cr.P.C., and after questioning her about the
quantum of sentence, sentenced her to undergo rigorous
imprisonment for seven years for the charge under Section 366-
A of IPC, to undergo rigorous imprisonment for six months for
the charge under Section 417 of IPC and to undergo rigorous
imprisonment for ten years for the charge under the proviso (ii)
Sub-Section (1) of Section 5 of I.T.P. Act and that the sentences
shall run concurrently.
3) The parties to these Criminal Appeals will hereinafter
be referred to as described before the learned Assistant
Sessions Judge for the sake of convenience.
4) The Sessions Case No.162 of 2009 arose out of a
committal order in P.R.C.No.12 of 2008, on the file of II
Additional Judicial Magistrate of First Class, Eluru in Crime
No.215 of 2007 of Eluru II Town L & O Police Station.
5) The case of the prosecution, in brief, according to
the contents of the charge sheet as above, is as follows:
(i) A.1 is a native of Jalipudi Village, Eluru Mandal and she
is residing in a house bearing Door No.21A-10-6, Ashok Nagar,
Eluru. Earlier, she stayed in Singapore and Malaysia. She got a
passport which is valid up to 18.08.2015. After returning to
India, she started procuring women and sending them to
Singapore or Malaysia on tourist Visas and thus indulged in
women trafficking for the purpose of prostitution. A.2 is a
resident of Kovvali village in Denduluru Mandal. He is an auto
rickshaw driver. He is the cousin of A.1.
(ii) On 10.08.2007 the victim, who is a minor girl, aged 17
years and resident of K. Kannapuram village of Koyyalagudem
Mandal, went to Tanuku to join in ANM course after completing
Intermediate. While returning home, she was lonely waiting at
the bus stand in Eluru at about 10 p.m., on the same day.
Taking advantage of loneliness of the victim, A.2 hatched a plan,
inquired about her and promised that he would send her to
Chennai for ANM Nurse Training with the assistance of A.1. A.2
made her to believe his false promises. A.2 took the victim to
the house of A.1 situated in Ashok Nagar. Then both the
accused hatched a plan to send the victim to Singapore or
Malaysia for prostitution. They promised the victim to get ready
by 18.08.2007 to go to Chennai to undergo ANM training.
Believing their words, on 18.08.2007 the victim contacted A.1
over phone. Then A.2 asked her to come to Eluru with her bag
and baggage. Then A.1 detained the victim in her house and on
the evening of 20.08.2007 A.1 went out of her house to contact
passport agent to secure passport in the name of the victim to
send her abroad for flesh trade.
(iii) On receipt of reliable information, the Circle Inspector
of Police, Eluru Town Circle, conducted raid on the house of A.1,
arrested A.2 and rescued the victim. The Circle Inspector of
Police recoded the confessional statement of A.2 through
mediators. The Sub-Inspector of Police, II Town Police Station
Eluru, registered a case in Cr.No.215/2007 under Sections
366-A, 417 r/w 34 of IPC and Sections 4, 5 and 6 of Immoral
Traffic (Prevention) Act, 1956 at 6-30 p.m., on the same day.
During the course of investigation, the Circle Inspector sent A.2
to Court for judicial custody. He sent the victim to Government
Hospital, Eluru for medical examination. Dr. M. Padma, who
conducted medical examination on the victim, preserved the
material objects and later they were sent to RFSL, Vijayawada
for chemical analysis.
(iv) The Inspector of Police visited the scene of offence,
got prepared a rough sketch of the same. He arrested A.1 on
23.08.2007 at 3 p.m., at her house in Ashok Nagar and got
recorded her confessional statement. At the instance of A.1, the
Circle Inspector seized residence certificate of the victim issued
by the M.R.O., Koyyalagudem village, Andhra Bank passbook of
the victim, Photostat copy of the ration card of the victim and
ration coupons. The C.I. also seized the passport of A.1. Later
he sent A.1 for judicial custody. Hence, the charge.
6) The jurisdictional Magistrate took the cognizance of
the case under Sections 366-A, 417 r/w 34 of IPC and Sections
4, 5 and 6 of the I.T.P. Act against A.1 and A.2. After complying
the formalities under Section 207 of Cr.P.C., the learned
Magistrate committed the case to the Court of Sessions. The
Court of Sessions numbered it as S.C.No.162 of 2009 and made
over to the learned Assistant Sessions Judge, for disposal, in
accordance with law.
7) On appearance of the accused before the learned
Assistant Sessions Judge, charges under Sections 366-A, 417
r/w 34 of IPC and Sections 5 and 6 of the I.T.P. Act against
them were framed and explained to them in Telugu, for which
they pleaded not guilty and claimed to be tried.
8) To bring home the guilt of the accused, during the
course of trial, on behalf of the prosecution, P.W.1 to P.W.6
were examined and Ex.P.1 to Ex.P.13 and M.O.1 to M.O.5 were
marked. After closure of the evidence of the prosecution,
accused were examined under Section 313 of Cr.P.C. with
reference to the incriminating circumstances appearing in the
evidence let in, for which they denied the same and reported no
defence witnesses.
9) The learned Assistant Sessions Judge, on hearing
both sides and on considering the oral as well as documentary
evidence, found the accused guilty of the charges under
Sections 366-A and 417 of IPC and proviso (ii) Sub Section (1)
of Section 5 of I.T.P. Act, convicted and sentenced them as
above. However, the learned Assistant Sessions Judge found
A.1 and A.2 not guilty of the charge under Section 6 of I.T.P. Act
and accordingly, acquitted them under Section 235(1) of Cr.P.C.
Felt aggrieved of the conviction and sentence for the charges
under Sections 366-A and 417 of IPC and proviso (ii) Sub
Section (1) of Section 5 of I.T.P. Act, the unsuccessful A.1 and
A.2 separately filed the above two Criminal Appeals.
10) Now, in deciding the above Criminal Appeals, the
points that arise for consideration are as follows:
(1) Whether the prosecution proved that A.1 and A.2
kidnapped the victim on 10.08.2007 with an intention to
force her for prostitution and to take her to Singapore or
Malaysia as alleged by the prosecution?
(2) Whether the prosecution proved that A.1 and A.2
procured the victim without her consent for the purpose of
prostitution or so as to induce her to go from Eluru to
Chennai with intention that she may be used for the
purpose of prostitution?
(3) Whether the prosecution proved that A.1 and A.2
cheated the victim within the meaning of Section 415 of
I.P.C. punishable under Section 417 of IPC?
(4) Whether the judgment, dated 05.02.2010 in
S.C.No.162 of 2009, is sustainable under law and facts
and whether there are any grounds to interfere with the
same?
Point Nos.1 to 4:-
11) P.W.1 was the medical officer, who examined the
victim and issued wound certificate. P.W.2 was no other than
the victim. P.W.3 was a retired employee, who turned hostile.
P.W.4 was mahazar witness with regard to the events happened
on 20.08.2007 at the house of A.2. P.W.5 was Sub-Inspector of
Police, who assisted Inspector of Police in detection of the case.
P.W.6 was the Inspector of Police.
12) The sum and substance of the case of the
prosecution is that A.2 enticed the victim i.e., P.W.2 to the
house of A.1 with an intention to use the victim for prostitution
by taking her to Malaysia. The prosecution examined P.W.2 as
second witness. Her evidence in substance is that on 06.08.2007
she went to Tanuku to join in Nursing school. As they demanded
a fee of Rs.12,000/-, she returned back to Eluru at about 7-30
or 8-00 p.m. She was sitting in the bus stand awaiting a bus.
Then an auto driver i.e., A.2, who was standing there according
to her, he informed her that he would take her to his sister's
house, who returned from Malaysia and keep her there on that
night and on the next day morning, he will send her to native
place. Accordingly, A.2 took her to A.1's house in Eluru. During
casual talks with A.1, she informed her that previously she
worked in Malaysia and she is going again and she would take
her to Malaysia. She expressed her inability to go to Malaysia
due to her financial constraints. She (A.1) said that she would
defray half of the fare and she asked her (P.W.2) to give
Rs.2,000/- at first. On the next day morning, she went to her
native place, K. Kannapuram and requested her father to give
Rs.2,000/- so that she can go to Singapore along with A.1. Her
parents and other family members did not agree to send her to
Malaysia. Accordingly, she came to Eluru and informed the same
to A.1. After boarding bus to Jangareddigudem, she casually
opened her bag and found one small steel box. On opening the
box, she found a small gold ring, two chains, one molathradu
and some currency notes worth Rs.18,500/-. On the next day,
she came to Eluru and handed over the box to A.1. At about 10
or 10-30 a.m., II Town Police, Eluru raided the house of A.1 and
took her and A.1 to police station. Police examined her. This is
the sum and substance of the victim.
13) P.W.3 turned hostile to the case of the prosecution.
14) The prosecution examined P.W.1, who examined the
victim at the request of police and according to her opinion, she
opinioned that as per her clinical examination and findings and
RFSL report, there is no evidence or suggestive of recent
intercourse. Ex.P.1 is the certificate issued by her. Ex.P.2 is her
final opinion. Ex.P.3 is the RFSL report.
15) P.W.4 was mediator for two mahazars. One on
20.08.2007 and another on 23.08.2007. His evidence is that on
20.08.2007 he, another mediator Sadasiva Rao accompanied
the police to Ashok Nagar, Eluru. They went to the house of
Katneni Jagannadha Rao. Police apprehended A.2 in their
presence under a cover of mediators report. He attested that
report. The signature of A.2 was also obtained on that report.
Ex.P.5 is the report, dated 20.08.2007. The contents of that
report are true and correct. He also deposed that on 23.08.2007
at 3-00 p.m, he attested another mediators report drafted at the
house of K. Jagannadham. Police seized nativity certificate,
passbook from the possession of A.1. Ex.P.6 is mediators report,
dated 23.08.2007. Ex.P.8 is savings bank account passbook of
P.W.2, issued by Andhra Bank, Koyyalagudem. Ex.P.9 is the
Photostat copy of ration card of Ayinaparthi Suvartha. Ex.P.10 is
residential certificate of Ayinaparthi Devi issued by M.R.O.,
Eluru.
16) P.W.5 was the Sub-Inspector of Police, who deposed
that on 20.08.2007 at 4-30 p.m., he along with staff followed
the Inspector of Police. They picked up Dasari Satyanarayana
and another mediator T. Sadasiva Rao at Court center, Eluru. At
about 5-00 p.m, they reached the house bearing D.No.24A-10-6
in Ashok Nagar, Eluru. One person tried to escape on seeing the
police. They caught hold of him. They also found a girl at that
house and he produced them before the C.I. The C.I. of police
separated them and interrogated them. They got drafted
mediators report. The C.I. instructed him to register a case. He
registered a case in Crime No.15/2007 under Sections 366-A,
417 r/w 34 of IPC and Sections 4, 5 and 6 of I.T.P. Act. Ex.P.11
is the FIR.
17) P.W.6 was Inspector of Police. He spoke about the
fact that on 20.08.2007 at 4-30 p.m., he received information
with regard to organizing women for human trafficking at
D.No.24A-10-6, Ashok Nagar, Eluru. He secured the mediators
along with S.I. of Police and proceeded there. They reached the
said house and found A.2-Gurram Venkata Nageswara Rao in
front of the verandah. A.2 tried to escape on seeing them. He
took him into custody. A.2 confessed about the offence in the
presence of mediators with regard to enticing the victim for
prostitution at Singapore. The victim was also present in the
main house in the custody of A.2. He got recorded the
confession-cum-mediators report and directed the S.I. to
register FIR. He examined the victim at the scene and recorded
her detailed statement under which she handed over cash of
Rs.18,500/-, one gold ring with white stone, two gold chains,
one chain with locket and one silver waist thread. She stated
that they belonged to A.1. He kept the victim girl under custody.
M.O.1 is cash of Rs.18,500/-, M.O.2 is gold ring with white
stone, M.O.3 is gold chain with locket, M.O.4 is another gold
chain and M.O.5 is silver waist thread. He prepared rough sketch
of the scene of offence under Ex.P.12. He returned to Eluru
Police station and sent the victim to Government Hospital for
medical examination. He handed over the victim to Swadhara
Home, Eluru for safe custody. He sent A.2 for remand. On
21.08.2007 he along with his staff surprised the house of A.1
and found absconding. Younger sister of A.1 one J. Nirmala was
present. She produced passport belonging to A.1. Ex.P.13 is the
passport. On 23.08.2007 at 3-00 p.m., he arrested A.1 at her
house in the presence of mediators. She produced original
residential certificate of victim issued by M.R.O., Koyyalagude;
Andhra Bank passbook of the victim bearing Account
No.312971; Photostat copy of ration card of victim and
residential certificate of the victim. He seized those documents
under the cover of mahazar. He sent A.1 to Court for remand.
After obtaining RFSL report and after obtaining final opinion
from the medical officer, he filed charge sheet.
18) Sri Divyateja Gadikota, learned counsel,
representing Sri Nimmagadda Satyanarayana, learned counsel
for appellant in Crl.A.No.277 of 2010, would contend that except
the so-called confessional part of the appellant, there remained
nothing to prove that appellant had intention to sell away the
victim girl for the purpose of prostitution at Malaysia or
Singapore. Virtually, the evidence of P.W.2, the victim, was not
at all convincing. The evidence on record would not establish the
offence of kidnapping. The evidence of P.W.2 was very weak in
nature. Her evidence cannot stands to test of scrutiny. It was
not the case of the prosecution that she was subjected to any
sexual harassment. The evidence of medical officer would prove
that there was no evidence of sexual intercourse. Her evidence
that A.2 enticed her to the house of A.1 is not believable. The
essential ingredients of Section 366-A and 417 of I.P.C. are not
at all satisfied. The conviction of the appellant even under
proviso (ii) Sub-Section (1) of Section 5 of the I.T.P. Act is not
sustainable. The prosecution did not prove that the victim as a
minor. The learned Assistant Sessions Judge basing on
assumptions and presumptions, convicted the appellant
erroneously, as such, the appeal is liable to be allowed.
19) Learned counsel for the appellant in Crl.A.No.277 of
2010 would rely upon the decisions of the Hon'ble Supreme
Court in (1) Criminal Appeal No.207 of 2022 (arisen out of
SLP (Criminal) No.8423 of 2019), (2) Jinish Lal Sah vs.
State of Bihar1 and (3) Sajjan Kapar vs. State of Bihar2.
20) Sri Khaja Khatuhuddin Shaik, learned counsel,
representing Sri Challa Ajay Kumar, learned counsel appearing
for appellant in Criminal Appeal No.284 of 2010, would contend
(2003) 1 Supreme Court Cases 605
(2005) 9 Supreme Court Cases 426
that appellant/A.1 had nothing to do with the allegations. She
was made a scapegoat in the entire episode. She has nothing to
do with the victim. The victim never came to her residence.
The manner in which the police arrested her is not at all
believable. Even according to the allegations, A.1 never
kidnapped the victim. The allegations were against A.2. The
learned Assistant Sessions Judge without there being any proper
evidence convicted the present appellant. The evidence on
record would not satisfy the essential ingredients of the charges.
He would argue that the appeal is liable to be allowed.
21) Sri Y. Jagadeeswara Rao, learned counsel,
representing the learned Public Prosecutor, would contend that
the prosecution proved the charge under Section 366-A of IPC
i.e., kidnapping of a minor girl with an intention to seduce her to
illicit intercourse. The case of the prosecution was that A.1 and
A.2 enticed away P.W.2 so as to send her to Malaysia or
Singapore for prostitution by making the victim to believe that in
fact she will be sent to Chennai for the purpose of employment.
P.W.5 caught hold of red handedly A.2 when the victim was in
his custody at the house of A.1. As A.1 went to outside for some
other work, police could not arrest her. At a later point of time,
they arrested A.1. Both arrest of A.2 and A.1 were happened in
the presence of mediators under the cover of two mahazars.
P.W.2, the victim, supported the case of the prosecution. The
act of A.2 when the victim was at bus stand to take her to the
house of A.1 and made her to spend night at the house of A.1 is
nothing but an act on the part of A.2 in enticing the victim from
lawful guardianship. Both A.1 and A.2 further induced her to go
around them with a promise to provide employment, but they
had either intention to take her Malaysia or Singapore for the
purpose of prostitution. The investigating officer seized M.O.1 to
M.O.5 at the time of arrest of A.1 and in fact the accused
provided those M.O.1 to M.O.5 to the victim so as to further
induce her. The age of the victim was not in dispute throughout
the trial. Now the appellants cannot contend that the victim was
not a minor. The learned Assistant Sessions Judge on thorough
appreciation of the evidence on record, convicted and sentenced
A.1 and A.2, as such, the appeal is liable to be dismissed.
22) One of the charges against both the accused was
under Section 366-A of IPC which provides inducing any minor
girl under the age of eighteen years to go from any place or to
do any act with intent that such girl may be, or knowing that it
is likely that she will be, forced or seduced to illicit intercourse
with another person. The basic content in Section 366-A of IPC
is nothing but kidnapping. What is kidnapping is there in
Section 359 of IPC. It is two counts. One is kidnapping from
India and another is kidnapping from lawful guardianship. What
is lawful guardianship is mentioned in Section 361 of IPC.
Section 361 of IPC runs as follows:
361. Kidnapping from lawful guardianship.--Whoever
takes or entices any minor under [sixteen] years of age if a
male, or under [eighteen] years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.--The words "lawful guardian" in this section
include any person lawfully entrusted with the care or custody
of such minor or other person.
(Exception) --This section does not extend to the act of any
person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be
entitled to lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.
23) So, kidnapping from lawful guardianship under
eighteen years of a female is nothing but an offence. Section
366-A of IPC is aggravated form of kidnapping.
24) In the light of the contentions canvassed, firstly, I
would like to deal with as to whether the victim was under the
age of eighteen years at the time of offence. The case of the
prosecution is that P.W.6 under the cover of Ex.P.5-mahazar
arrested A.2 and traced the victim on 20.08.2007 at the house
of A.1 and the date of offence was said to be prior to Ex.P.5-
mahazar. The case of the prosecution is that the investigating
officer at the time of arrest of A.2 and tracing the victim at the
house of A.1 in the custody of A.2 ascertained the age of the
victim as that of 17 years. At the time of examination of the
victim before the Court, she furnished her age as on the date of
evidence i.e., on 05.01.2010 as 20 years. If that is considered,
the age of the victim by the time of offence i.e., 06.08.2007 as
stated by the victim must have been below the age of 18 years.
According to the information furnished by P.W.2 at the time of
examination by the time of offence she was a minor below the
age of 18 years. In the entire cross examination P.W.2-victim
and P.W.6-investigating officer, the accused did not venture to
dispute her age in anywhere.
25) Having regard to the above, this Court is of the
considered view that throughout trial, accused did not dispute
the age as that of 17 years by the time of offence as projected
by the prosecution.
26) Turning to the citation in Criminal Appeal No.207 of
2022 relied upon by the learned counsel for the appellant in
Crl.A.No.277 of 2010, it was a case where juvenile sought to
prove his age basing on a birth certificate and the High Court of
Punjab and Haryana at Chandigarh reversed the order of
Additional Sessions Court and ordered that the appellant be tried
as an adult. Against the said order, the appellant filed an appeal
before the Hon'ble Supreme court. The Hon'ble Supreme Court
dismissed the claim of the appellant upholding the judgment of
the Punjab and Haryana High Court at Chandigarh. The factual
matrix in the above said case was that the age of the juvenile in
conflict was in dispute.
27) Turning to the decision in Jinish Lal Sah's case (1
supra), the allegations were under Section 366-A of IPC as well
as 376 of I.P.C. The victim girl testified that her age at the time
of offence was 14 years. The father of the victim deposed that
her age was 19 years at the time of offence. The medical
evidence was that her age appears to be 17 years. Considering
the same, the Hon'ble Supreme Court held that the prosecution
failed to establish that the girl was less than 18 years of age on
the date of incident, as such, charge under Section 366-A of IPC
against the accused must fail.
28) Coming to the present case on hand, as this Court
specifically pointed out both the appellants never ventured
before the learned Assistant Sessions Judge disputing the age of
P.W.2 before her or disputing the age of P.W.2 before P.W.6-the
investigating officer. So, when the accused kept quite without
disputing the case of the prosecution that the victim was aged
about 17 years i.e., below 18 years as on the date of offence,
the appellant in Crl.A.No.277 of 2010 cannot gain any strength
basing on the above referred two decisions.
29) The case of the prosecution before the learned
Assistant Sessions Judge that the victim was aged about 17
years was not at all sought to be disputed in anywhere.
Therefore, the evidence on record means that the victim was a
minor by the time of offence in question.
30) Now, this Court would like to deal with as to whether
the evidence on record would prove the essential ingredients of
kidnapping as against both the appellants.
31) To prove the fact that both the accused induced or
enticed her to go out from lawful guardianship there remained
the solitary evidence of P.W.2. As pointed out, P.W.2 supported
the case of the prosecution. According to her, when she was
sitting at 7-30 or 8-00 p.m., at Uluru bus stop waiting for bus,
A.2 standing there approached her and asked her that he would
take her to his sisters' house who returned from Malaysia and he
will keeping there during that night and that on the next day
morning, he will be sent her to her native place. Then he took
her to A.1's house situated at Ashok Nagar, Uluru. The victim
testified clearly that A.1 informed her at her house that
previously she worked at Malaysia and she will go again and she
would take her (victim) to Malaysia and when she expressed her
inability to go there due to her financial constrains, she told her
that she would defray half of the fare. She asked her to give
Rs.2,000/- at first. Her evidence means that on the next day
when she went to her parents house and requested them to give
Rs.2,000/- so that she can go to Singapore along with A.1, they
expressed their inability, as such, she came to Uluru on the next
day and informed the same to A.1. She also testified that after
boarding bus to Jangareddigudem when she opened the bag and
found a small steel box and that on opening the steel box, she
found a small gold ring, two chains, one molathradu and some
currency notes worth Rs.18,500/-. On the next day, she came
and handed over the same to A.1. Therefore, the evidence of
P.W.2 means that believing the words of A.2 on 06.08.2007 she
accompanied A.2 to the house of A.1 where on account of the
words used by A.1, she went to her parents house and made a
request them to permit her to go to Malaysia or Singapore and
when they refused, she came there and intimated to A.1 and
when she was going to Jangareddigudem, she found a small
steel box where she found a small gold ring, two chains, one
molathradu and some currency notes worth Rs.18,500/-. So,
she came again to Uluru and handed over same to A.1 and when
she was in the house of A.1, she was caught hold by the police.
This is the sum and substance of the evidence.
32) During cross examination the learned defence
counsel elicited that the victim did not state that A.2 informed
her that she would defray half of the fare and that she
requested her father to allow her to go to Malaysia for which he
refused and that she did not state before the police that A.1
kept a small steel box containing a small gold ring, two chains,
one molathradu and some currency notes worth Rs.18,500/-.
According to the defence those were all omissions on material
aspects.
33) During cross examination of P.W.6, the investigating
officer, those omissions attributed to P.W.2 were not at all
elicited, as such, it cannot be held that the evidence of P.W.2 is
suffering with any omissions. On the other hand, the evidence
of P.W.6, the investigating officer, is that when he traced the
victim at the house of A.2, she handed over a small gold ring,
two chains, one molathradu and some currency notes worth
Rs.18,500/-. With regard to the presence of A.2 when the victim
was in the house of A.1 by which time A.1 was not found in the
house, the testimony of P.W.2 remained unshaken.
34) Apart from this, nothing could be elicited during
cross examination of P.W.6 to dispute the presence of A.2 at the
house of A.1 on 20.08.2007 when the police effected raid. The
conducting of raid by the police on 20.08.2007 at the house of
accused and further on 23.08.2007 also at the house of accused
has support from the evidence of P.W.4, the mediator. P.W.4
was mediator to Ex.P.5-mahazar, dated 20.08.2007 and Ex.P.6-
mahazar, dated 23.08.2007.
35) It is to be noted that P.W.2 has no reason
whatsoever to depose false against A.1 and A.2. The very act of
A.2 taking P.W.2 to the house of A.1 during the night and the
words spoken by A.1 is nothing but an act of enticement. P.W.2
categorically spoken about the conversation between her and
A.1. A.1 and A.2 had no business whatsoever to get the victim
to their house on 06.08.2007 and further get the victim to visit
their house thereafter twice as spoken by victim. It is only on
account of inducement and enticement only victim could be
found in the house of A.1 in the custody of A.2. In my
considered view, the very evidence of P.W.2 which is convincing
is making out a case to the effect that both A.1 and A.2 induced
and enticed the victim to come to their house. There is no
dispute that P.W.2 had her parents by the time of the offence.
Unfortunately, parents of the victim were not examined before
the learned Assistant Sessions Judge. It appears that there was
strained relationship after the incident between her parents and
victim. It is evident from the evidence of P.W.6, the
investigating officer, that after tracing the victim from the
custody of A.2, he handed over the victim to Swadhara Home,
Uluru for safe custody. It is not a case where P.W.2 had any
grouse or ill-feelings against the accused. Nothing could be
found in her cross examination to disbelieve her testimony.
However, there was an answer from P.W.2 during cross
examination that as per the directions of the police, she gave
evidence before the Court. It is to be noted that the police are
duty bound to guide the witnesses when they are summoned to
give evidence. They are duty bound to effect the service of
summons on the witnesses. It does not mean that she was
tutored by police. There was no need for the police to tutor
P.W.2 against A.1 and A.2.
36) Having regard to the facts and circumstances, the
prosecution had established the fact that the victim was under
the age of 18 years by the time of offence which was not at all
in dispute in anywhere. The prosecution established that A.2
enticed away the victim to the house of A.1 and where upon
inducement made by A.1, the victim was compelled to ask her
parents to send her to Malaysia or Singapore for which they
refused and which was intimated by the victim to A.1 and
further according to the victim she found M.O.1 to M.O.5 in her
bag when she was going to Jangareddigudem. Later, she was
compelled to come back to A.1 to give the same and on the part
of day she was caught hold. The seizure of M.O.1 to M.O.5 was
spoken to by P.W.6 in his evidence when she was in the custody
of A.2 in the house of A.1. The accused have no probable
defence at all in this regard. It is rather improbable to assume
that M.O.1 to M.O.5 were of victim. When the parents of P.W.2
were not afforded to give a sum of Rs.2,000/- to her, it is
improbable that she could be found in possession of M.O.1 to
M.O.5. Hence, all these further goes to prove that by means of
M.O.1 to M.O.5, there was A.1 and A.2 induced and enticed
away P.W.2. In my considered view the evidence proves the
essential ingredients of kidnapping. Further by virtue of the
evidence of P.W.4-the mediator and P.W.6-the investigating
officer, the seizure of Ex.P.8-savings bank account passbook of
P.W.2, Ex.P.9-Photostat copy of ration card and Ex.P.10-
residentail certificate was proved from the house of A.1. There
are no doubtful circumstances to disbelieve the seizure of the
above said documents. Except the plea of false implication,
nothing was brought probabalized to disbelieve the case of the
prosecution.
37) As this Court already pointed out Section 366-A of
IPC is aggravated form of kidnapping i.e., procuring of minor girl
to do any act with intent that such girl may be, or knowing that
it is likely that she will be, forced or seduced to illicit intercourse
with another person. Similarly, the proviso (ii) Sub-Section (1)
of Section 5 of I.T.P. Act provides punishment for procuring,
inducing or taking a person for the sake of prostitution. The gist
of the offence either under Section 5 of the ITP Act for which
accused were convicted or Section 366-A of IPC was procuring a
minor girl for the purpose of prostitution or for illicit intercourse.
As this Court already pointed out the instances of kidnapping is
established against A.1 and A.2. The prosecution alleged
aggravated form of kidnapping.
38) It is to be noted that it is not the evidence of P.W.2
that A.1 and A.2 promised her to take her to Malaysia or
Singapore for any immoral purpose on the pretext of any
employment. It is not her evidence that A.1 and A.2 made such
inducement or enticement so as to compel her for having sexual
intercourse with any other person or for prostitution. Therefore,
the theory that A.1 and A.2 wanted to send the victim to
Singapore or Malaysia for the purpose of prostitution is nothing
but a theory developed from the confession of the accused. In
other words, except the confessed version of A.1 and A.2 in
Ex.P.5 and Ex.P.6, there is no evidence at all to prove that the
inducement or enticement made by A.1 and A.2 against victim
was to compel her for the purpose of prostitution. Absolutely,
the prosecution wanted to prove the guilt against the appellants
under Section 366-A of IPC and the proviso (ii) Sub-Section (1)
of Section 5 of the I.T.P. Act basing on the confession only. The
prosecution did not adduce substantial evidence to prove the
intention of A.1 and A.2 against the victim.
39) Under the circumstances, it is unsafe to assume that
A.1 and A.2 enticed away P.W.2 for the purpose of illicit
intercourse with another person or for prostitution. In my
considered view, without there being any legal basis, the
learned Assistant Sessions Judge convicted A.1 and A.2 under
Section 366-A of IPC and the proviso (ii) Sub-Section (1) of
Section 5 of the I.T.P. Act. In my considered view, the evidence
available on record, which is believable proves the offence of
kidnapping which is punishable under Section 363 of IPC.
40) Turning to the decision in Sajjan Kapar's case (2
supra), which was relied upon by the learned counsel for the
appellant in Criminal Appeal No.277 of 2010, it is a case where
the Hon'ble Supreme Court dealing with the charge under
Section 366-A of IPC held that the essential ingredients therein
are not satisfied. The Hon'ble Supreme Court specifically dealt
with when the offence of kidnapping is completed. The
allegations were that the accused gone to the school of P.W.6
and on the pretext that he was sent by her father to get the
victim from school took the victim. The Hon'ble Supreme Court
held that the offence of kidnapping was completed when the
accused took the minor girl away from the school.
41) In my considered view, the above referred citation is
not helpful to the contention of the appellant in Crl.A.No.277 of
2010. On the other hand, it is in favour of the case of the
prosecution for the reason that the act of A.2 in enticing away
the victim to A.1 was completed when he put the victim in the
house of A.1. Further there was specific evidence of P.W.2 on
account of the words spoken by A.1, she went to her village and
made a proposal to her father to go to Malaysia and when her
request was turned down, she again came there and intimated
to A.1 and further when she was going out to Jangareddigudem,
she found M.O.1 to M.O.5 in her bag and on the next day she
handed over to A.1. All these episodes are nothing but episodes
due to inducement made by A.1. The very act of A.1 and A.2 is
nothing but enticing away P.W.2 from the lawful guardianship.
Even the decision in Sajan Kapar's (2 supra) fully supports the
case of the prosecution.
42) Coming to the offence alleged under Section 415 of
IPC, it runs as follows:
Section 415 Cheating runs as follows:
Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property,
or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception
within the meaning of this section.
43) The essential ingredients of Section 415 of IPC
should be inducement of any person by one person to another
so as to deliver any property to any person any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property. Absolutely, the evidence on record does not satisfy the
ingredients of Section 415 of IPC which is punishable under
Section 417 of IPC.
44) In the light of the above reasons, I am of the
considered view that the prosecution before the learned
Assistant Sessions Judge was able to prove the offence of
kidnapping punishable under Section 363 IPC and it failed to
prove the aggravated form of kidnapping under Section 366-A of
IPC and further 415 of IPC. Further the prosecution failed to
prove the proviso (ii) Sub-Section (1) of Section 5 of the I.T.P.
Act.
45) It is to be noted that the offence of kidnapping
punishable under Section 363 of IPC which is a minor offence
when compared to Section 366-A of IPC.
46) Having regard to the above, I am of the considered
view that the evidence on record proves the offence under
Section 363 of IPC against both the accused, as such, they are
liable to be convicted and punished for the aforesaid offence. In
my considered view, the evidence adduced by the prosecution is
not at all sufficient to prove the charges under Sections 366-A
and 417 of IPC and the proviso (ii) Sub-Section (1) of Section 5
of the I.T.P. Act. Under the circumstances, the judgment of the
learned Assistant Sessions Judge is liable to be interfered by
modifying the conviction and sentence to that of Section 363 of
IPC.
47) In the result, the appeals are allowed in part, setting
aside the judgment, dated 05.02.2010 in Sessions Case No.162
of 2009, on the file of Additional Assistant Sessions Judge,
Uluru, thereby both the appellants/A.1 and A.2 shall stands
acquitted of the charges under Sections 366-A and 417 of IPC
and the proviso (ii) Sub-Section (1) of Section 5 of Immoral
Traffic (Prevention) Act, 1956 and accordingly, they are
acquitted under Section 235(1) of Cr.P.C. However, they are
found guilty for the offence under Section 363 of IPC and
accordingly they are sentenced to suffer rigorous imprisonment
for three (03) years each and to pay fine of Rs.1,000/- (Rupees
one thousand only) each in default to suffer simple
imprisonment for three (03) months each.
48) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the judgment of this Court
to the trial Court on or before 02.01.2024 and on such
certification, the trial Court shall take necessary steps to carry
out the modifying sentence imposed against the appellants and
to report compliance to this Court.
49) The Registry is directed to forward the copy of the
judgment along with original records to the trial Court on or
before 02.01.2024.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
____________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 26.12.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.277 OF 2010
&
CRL. APPEAL NO.284 OF 2010
Note:
The Registry is directed to forward
the copy of the judgment along with
original records to the trial Court on
or before 02.01.2024.
Date: 26.12.2023
PGR
