Bombay High Court
Yellamma Durgappa Mehatre vs The State Of Maharashtra on 8 August, 2017
Bench: A.M. Badar
(203)APEALNo.5342010(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.534 OF 2010
Smt.Firoja @ Puja Maihjur Shaikh,
Age.37 Years, Occu. Household,
Residing at Turbhe Stores,
K.K.R. Road, Navi Mumbai.
(Accused presently in Nashik Jail) ... Appellant
V/s.
The State of Maharashtra,
(At the instance of Turbhe Police
Station). ... Respondent
WITH
CRIMINAL APPEAL NO.597 OF 2010
Yellamma Durgappa Mehatre,
Age.35 Years,
Residing at House No.3168,
Opposite Navjivan Hindi High School,
K.K.R. Road, Turbhe Stores,
Navi Mumbai.(At present in judicial
custody and lodged at Nashik Road
Central Jail) ... Appellant
V/s.
The State of Maharashtra,
(At the instance of Turbhe Police
Station). ... Respondent
.....
Ms.Nasreen Ayubi, Appointed Advocate for the Appellant in
APEAL/534/2010.
Mr.Shshrut Jadhwar, Advocate for the Appellant in
APEAL/597/2010.
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Mr.Vinod Chate, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 8th August 2017.
ORAL JUDGMENT :
1 Appellant/accused Smt.Firoja @ Puja Maihjur Shaikh
came to be tried in Sessions Case No.210 of 2009, whereas
Appellant/accused Yellamma Durgappa Mehatre came to be tried
in Sessions Case No.28 of 2009 and ultimately by the impugned
common Judgment and Order dated 30/06/2010 passed by the
learned II Additional Sessions Judge, Thane, both of them came to
be convicted of the offence punishable under Section 366A of the
Indian Penal Code ("the IPC" for the sake of brevity) and both of
them were sentenced to suffer rigorous imprisonment for five
years and to pay fine of Rs.2000/- and in default to undergo
further imprisonment for six months while acquitting them of
offences punishable under Section 3,4,5 and 6 of the Immoral
Traffic (Prevention) Act, 1956 ("PITA" for the sake of brevity).
2 Brief facts leading to the institution of both these
Appeals can be summarized thus :
(a) On 01/02/2008, police inspector Jagtap received
information that minor are being detained and they are being
compelled to indulge in prostitution at K.K.R. Road, Turbhe
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Stores, Navi Mumbai. It was decided to lay a trap and
accordingly, assistance of P.W.No.5 Somling Kamble were taken as
decoy customer. The panch witnesses namely Ramji Yadav and
Sainath Gavand were arranged. Two currency notes of Rs.200/-
denominations were then handed over to P.W.No.5 Somling
Kamble and he was sent to the room, where police apprehended
that minors were compelled to indulge in prostitution. Then
P.W.No.5 Somling Kamble left for the spot. After 15 minutes
therefrom police team raided that spot of incident which is stated
to be House No.3168 located in front of Navjivan Hindi High
School, K.K.R. Road, Turbhe Stores, Navi Mumbai.
(b) According to the prosecution case, when the raiding
team reached the spot of incident, both appellants/accused, who
were standing outside that room, flee from the spot. Then, Police
Inspector Jagtap asked the inmates of the room to open the door.
P.W.No.3 Laxmi Maitri opened the door. The room was divided
into cabins by curtain partitions. In one of the cabin, P.W.No.5
Somling Kamble found present with P.W.No.6 Nasima @ Kajal
Shaikh. Currency notes with P.W.No.5 Somling Kamble were also
found in the said room. Upon investigation, police found that
P.W.No.3 Laxmi Maitri and P.W.No.6 Nasima @ Kajal Shaikh were
enticed and induced by both appellants/accused for indulging
them in prostitution and consequently, they were detained for
prostitution in the said room bearing House No.3168 of Turbhe
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area of Navi Mumbai. During investigation, it was transpired that
the appellants/accused had kept brothel and live on earning of
prostitution by enticing minor for prostitution and by detaining
them for prostitution.
(c) The First Information Report of the crime in question
came to be lodged by P.W.No.1 Pramod Bhosale, A.P.I., Turbhe
Police Station resulting in registration of Crime No.49 of 2008
with Turbhe Police Station for offences punishable under Section
366A of the IPC and Sections 3,4,5 and 6 of the PITA. On
completion of necessary investigation, both appellants/accused
were charge-sheeted accordingly.
(d) After framing and explaining charge to both
appellants/accused persons, they were put to trial as they abjured
their guilt. In order to bring home the guilt to the
appellants/accused, the prosecution has examined in all seven
witnesses. Alleged victims of the crime in question namely Laxmi
Maitri and Nasima @ Kajal Shaikh are examined as P.W.No.3 and
P.W.No.6 respectively. First informant-Pramod Bhosale, A.P.I.,
Turbhe Police Station is examined as P.W.No.1 and FIR lodged by
him is at Exh.14. Arjun Adagale is the brother of owner of the
room in question. He is examined as P.W.No.2. However, he did
not support the prosecution. P.W.No.4 is Dr.Anilkumar Gondhale,
Medical Officer, working with Navi Mumbai Municipal
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Corporation Hospital. He had conducted ossification test of
P.W.No.3 Laxmi Maitri and P.W.No.6 Nasima @ Kajal Shaikh.
Those reports are at Exhs.23 and 24. P.W.No.5 Somling Kamble,
the decoy customer turned hostile to the prosecution. P.W.No.7
Arvind Patil, police inspector is the Investigating Officer of the
crime in question.
(e) After hearing the parties, by the impugned Judgment
and Order, the learned trial Court came to the conclusion that the
alleged offences under PITA are not proved for want of compliance
of mandatory provisions of Sections 13 and 15 of the said Act.
However, both appellants/accused came to be convicted for the
offence punishable under Section 366A of the IPC by holding that
appellants/accused brought victim girls to Mumbai on the pretext
of providing work and, thereafter, victims girls were indulged in
prostitution by them. Evidence regarding ossification test adduced
by the prosecution was accepted by the trial Court by holding that
there is no reason to disbelieve the version of Dr.Gondhale that
after carrying out the ossification test, he found both the girls to be
below 18 years of age on the date of the incident. Accordingly, it
is held that both appellants/accused had committed an offence
punishable under Section 366A of the IPC.
3 I have heard Ms.Nasreen Ayubi, the learned counsel
appearing for the Appellant Firoja @ Puja Shaikh. She argued that
P.W.No.2 Arjun Adagale and P.W.No.5 Somling Kamble have
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turned hostile to the prosecution. The learned Advocate further
argued that P.W.No.3 Laxmi Maitri and P.W.No.6 Nasima @ Kajal
Shaikh have accepted the fact that appellants/accused Yellamma
and Firoja respectively are their relatives and as such, it cannot be
said that appellants/accused had kidnapped both of them.
4 I have also heard the learned Advocate appearing for
the appellant/accused Yellamma Mehatre. He argued that
description of ladies who flee from the spot so also that of the spot
is not proved by the prosecution. The raid is also not proved by
the prosecution as appellants/accused have been acquitted of the
offence punishable under PITA. He further argued that age of
P.W.No.3 Laxmi Maitri is not proved and evidence of P.W.No.4
Anilkumar shows that his opinion is general in nature. There is
margin of two years on either side in such test. The learned
Advocate further argued that evidence of the victim girl shows that
there was common toilet and they were using it. However, none
of them had complained to anybody and, as such, it cannot be said
that the offence alleged is proved against accused persons.
5 The learned Assistant Public Prosecutor contended that
evidence of P.W.No.4 Anilkumar Gondhale is acceptable and the
report of ossification test shows that both victims were below 18
years of age at the time of commission of offence.
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6 I have carefully considered the rival submissions and
also perused Record and Proceedings including depositions of
witnesses and documentary evidence. Both appellants/accused
are independently convicted for the offence punishable under
Section 366A of the IPC without taking aid of Section 34 of the
IPC by the learned trial Court. This appears to be so because,
according to the prosecution case, appellant/accused Yellamma
(Criminal Appeal No.597 of 2010) had induced P.W.No.3 Laxmi
Maitri to come to Mumbai for taking up some work, whereas the
appellant/accused Firoja (Criminal Appeal No.534 of 2010)
induced minor female P.W.No.6 Nasima @ Kajal Shaikh to
accompany her to Mumbai on the pretext of providing work. As
such, it is apposite to quote provisions of Section 366A of the IPC,
which reads thus :
"366-A. Procuration of minor girl. - Whoever, by any
means whatsoever, induces 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 shall be punishable
with imprisonment which may extend to ten years and
shall also be liable to fine."
It is seen that this Section 366A of the IPC deals with
procuration of minor girls by inducing them to go from any place
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or to do any act with intent that such girls may be or knowing that
it is likely that such minor girls will be forced or seduced to illicit
intercourse with other persons. The aim of this Section is to
prevent immorality and safeguarding the chastity of minor
females. An offence punishable under Section 366A of the IPC
complete when the accused becomes successful in inducing a
minor girl to go from some place or to do an act with an intent
that such girl may be forced or seduced to illicit intercourse with
another. However, for making out this offence, the prosecution is
obliged to prove beyond all reasonable doubts that the victim girl,
at the time of commission of offence, was under the age of 18
years. Let us, therefore, scan evidence of prosecution witnesses in
order to determine whether the offence alleged and held to be
proved by the learned trial Court is, in fact, proved against both
accused persons.
7 Considering the nature of offence alleged against both
appellants, evidence of the victim girls is of utmost importance.
P.W.No.3 Laxmi Maitri is one of the victim girl. While in the dock,
she has stated her age as 17 years. Her evidence shows that she is
studied up to 7th Standard at Rabakhari, Karnataka. P.W.No.3
Laxmi Maitri deposed that appellant/accused Yellamma, who is
her relative, had come to her parental house in Karnataka State
and told her parents that she is taking her for work and that is
how she has been brought to Turbhe Stores area, Navi Mumbai by
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appellant/accused-Yellamma. As per her version, when she
reached the house at Navi Mumbai, another girl named P.W.No.6
Nasima @ Kajal Shaikh was already there with appellant/accused-
Firoja @ Puja. P.W.No.3 Laxmi Maitri further deposed that on
reaching the house, the appellant/accused indulged her in
prostitution and Yellamma used to take money from the customer
and was not paying anything to her. As per version of P.W.No.3
Laxmi Maitri, at the time of raid by police, her age was 15 years.
In cross-examination, P.W.No.3 Laxmi Maitri has candidly
accepted the fact that she did not remember her date of birth. She
admitted that the house, where she was residing with
appellant/accused-Yellamma, was surrounded by other houses and
there was toilet outside the said house, which is common for all.
8 The next victim of this crime namely P.W.No.6 Nasima
@ Kajal Shaikh has deposed that appellant/accused-Firoja @ Puja
is her relative and on the pretext of providing work to her, she
brought her to Mumbai and then said Firoja @ Puja indulged her
in prostitution. This witness further deposed that P.W.No.3 Laxmi
Maitri and appellant/accused Yellamma were also residing with
her in the same room.
9 Evidence of P.W.No.3 Laxmi Maitri and P.W.No.6
Nasima @ Kajal Shaikh, as such, goes to show that
appellant/accused had brought P.W.No.3 Laxmi Maitri from her
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parental house to Mumbai by inducing her on the pretext of
providing work and then she was forced and seduced to illicit
intercourse with others. Similarly, P.W.No.6 Nasima @ Kajal
Shaikh was induced by appellant/accused Firoja @ Puja to leave
her parental house for getting work and subsequently she was
forced and seduced to illicit intercourse with others by
appellant/accused-Firoja @ Puja.
10 Now, let us examine whether the prosecution has
proved that P.W.No.3 Laxmi Maitri and P.W.No.6 Nasima @ Kajal
Shaikh were under 18 years of age at the time of commission of
offence. It is well settled that oral evidence is hardly of any
assistance while determining the age of a person. In the case in
hand, P.W.No.3 Laxmi Maitri has deposed her age after entering
into the witness box, as 17 years, whereas P.W.No.6 Nasima @
Kajal Shaikh has stated her age as 16 years. Both of them have
not stated their date of birth during the course of deposition.
Their evidence does not contain any detail as to how both these
witnesses have estimated their age. P.W.No.3 Laxmi Maitri is
stated to have studied up to 7th Standard. As such, there is every
probability that her date of birth must be recorded in the school
record. However, the prosecution has not taken any steps to
collect her date of birth from the general register maintained by
the school or by obtaining a copy of her School Leaving Certificate.
The prosecution has not called or summoned Headmaster of the
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school, where P.W.No.3 Laxmi Maitri had taken school education,
in order to prove her date of birth or age. No steps were taken to
examine her parents to depose about age of P.W.No.3 Laxmi
Maitri. Similar is the case in respect of P.W.No.6 Nasima @ Kajal
Shaikh. Her parents were not examined by the prosecution to
depose about her age or date of birth in order to estimate whether
she was under 18 years of age at the time of commission of
offence.
11 In order to prove age of victim girls, the prosecution is
satisfied by subjecting them to ossification test and by examining
P.W.No.4 Anilkumar Gondhale, Medical Officer attached with Navi
Mumbai Municipal Corporation Hospital. P.W.No.4 Anilkumar
Gondhale has deposed that he carried out ossification test on
P.W.No.3 Laxmi Maitri and P.W.No.6 Nasima @ Kajal Shaikh. For
conducting ossification test, he took x-rays and carried out medical
examination. P.W.No.4 Anilkumar Gondhale further deposed that
then he opined that age of P.W.No.3 Laxmi Maitri was 16 to 17
years, whereas age of P.W.No.6 Nasima @ Kajal Shaikh was
between 13 to 14 years and accordingly he issued certificates at
Exhs.23 and 24 respectively. His cross-examination reveals that he
has not mentioned numbers of x-ray plates on certificates at
Exh.23 and 24 issued by him. This witness had not brought those
x-ray places before the Court. He was not remembering x-ray
plate numbers. Ultimately, this witness admitted in cross-
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examination that his opinion about age is general in nature. This
witness further admitted that the age ascertained may be plus or
minus by two years. Thus, it is seen that evidence regarding
assessment of age of victim girl is a very fragile premise. No
attempt was made by the prosecution to procure birth certificates
of both these victim girls or to call their parents for deposing about
age of P.W.No.3 Laxmi Maitri or that of P.W.No.6 Nasima @ Kajal
Shaikh. The evidence of P.W.No.4 Anilkumar Gondhale is very
vague and scanty. He has not given any detail as to how he has
formed opinion as to age of victim girls. In this context, excerpt
from celebrated book by Dr.Modi needs reproduction. In 24 th
Edition of a 'Textbook of Medical Jurisprudence and Toxicology',
Dr.Modi has dealt with ossification text in Chapter-X. Relevant
portion thereof can be quoted with advantage and reads thus :
"Owing to the variations in climatic, dietetic, hereditary
and other factors affecting the people of the different
states of India, it cannot be reasonably expected to
formulate a uniform standard for the determination of
the age of the union of epiphysis for the whole of India.
However, from investigations carried out in certain
provinces, it has been concluded that the age at which
the union of epiphysis takes place in Indians,
particularly of persons belonging to Bengal, Punjab and
South India, is about two to three years in advance of
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the age incidence in Europeans, and that the epiphyseal
union occurs in females somewhat earlier than in
males. SM Das Gupta et al, has also reported that in
the State of Uttar Pradesh, this fusion occurs somewhat
earlier in girls than in boys, usually by one to two
years. SD Loomba has shown that in the people of
Uttar Pradesh, epiphyseal union occurs at a slightly
later period than in other states of India. However, it is
earlier than in English subjects, but slightly later than
that occurring in America, Australia, Egypt and Burma.
Dr.Kothari, working in the Marwar region of Rajasthan,
also reported that the fusion occurs earlier in girls than
in boys, although his actual figures vary a little from
other states. In ascertaining the age of young persons,
radiograms of several main joints of the upper or the
lower extremity of one or both sides of the body should
be taken, and an opinion should be given according to
the following table. However, it must be remembered
that too much reliance should not be placed on this
table as it merely indicates an average and is likely to
vary in individual cases even of the same province,
owing to the eccentricities of development."
12 If evidence of P.W.No.4 Anilkumar Gondhale is tested
on the touchstone of these observations, it is seen that though this
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witness has claimed to have assessed age by taking x-rays of right
shoulders, right elbows and right wrists of P.W.No.3 Laxmi Maitri
and P.W.No.6 Nasima @ Kajal Shaikh, his evidence is
conspicuously silent about the fact whether there was fusion of
clavicle (Stemal end), fusion of Distal end of radius and ulna.
Necessary data for coming to the conclusion regarding the age is
not reflected in Medical Certificates at Exhs.23 and 24 by
P.W.No.4 Anilkumar Gondhale. Those Certificates only give
conclusion of Dr.Anilkumar Gondhale without scientific data and
material about examination of x-ray plates. Therefore, it appears
that, as admitted by him, his opinion about estimation of age is
general in nature rather than based on scientific examination.
Even, the Honourable Apex Court in Jaya Mala v. Home
Secretary, Government of Jammu and Kashmir & Ors., reported
in AIR 1982 Supreme Court 1297 has criticized the evidence
regarding ossification test in these words :
"However, it is notorious and one can take judicial
notice that the margin of error in age ascertained by
radiological examination is two years on either side."
13 It is, thus, clear that ossification test is not sure test as
to the age of a person. It gives only an approximate age which can
vary as seen from opinion of Dr.Modi. In the case in hand, the
prosecution could have produce evidence regarding age of victim
girls in the form of birth certificates of P.W.No.3 Laxmi Maitri and
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P.W.No.6 Nasima @ Kajal Shaikh. At this juncture, it is apposite
to note that as per provisions of Registration of Birth and Deaths
Act, 1969, registration of births in the family is made compulsory.
Section 7 of the said Act deals with appointment of Registrar for
each local area for registering births as well as deaths taken place
in the said local area. Section 8 of the said Act mandates each
Head of the house to report births in the family to the Registrar
and the Registrar is enjoined with a duty to maintain register for
recording births as well as deaths. There is no evidence on record
to demonstrate that the Investigating Officer had taken any steps
to collect such evidence regarding age of victim girls in order to
bring home the guilt to appellant/accused, so far as offence
punishable under Section 366A of the IPC is concerned. In
absence of scientific data, which ought to have been reflected in
evidence of P.W.No.4 Anilkumar Gondhale, and the fact that
certificates issued by him assessing age of victim girls is also bereft
of such data, it cannot be said that the prosecution has proved
beyond reasonable doubt that the female girls namely P.W.No.3
Laxmi Maitri and P.W.No.6 Nasima @ Kajal Shaikh were under 18
years of age at the time of commission of offence alleged against
appellant/accused persons. The appellant/accused are, therefore,
certainly entitled for benefit of doubts in absence of clear and
cogent evidence to show that P.W.No.3 Laxmi Maitri and
P.W.No.6 Nasima @ Kajal Shaikh were under 18 years of age at
the time of commission of offence.
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14 In result, both Appeals are allowed with following
order :
(a) The impugned Judgment and Order dated 30/06/2010
passed by the II Additional Sessions Judge, Thane
convicting both the appellants/accused of the offence
punishable under Section 366A of the IPC is quashed and
set aside.
(b) Both appellants/accused are acquitted of the offence
punishable under Section 366A of the IPC.
(c) Bail bonds of appellant/accused Yellamma Mehatre stand
cancelled.
(d) Appellant/accused Firoja @ Puja Shaikh be released from
the prison forthwith if not required in any other case.
(e) The fine amount, if any, paid by appellant/accused be
refunded to them.
(A.M.BADAR J.)
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