Bombay High Court
The State Of Maharashtra vs Vijay Bhika Dive on 15 January, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:1789 1-APPEAL-65-2015.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.65 OF 2015
The State of Maharashtra ]
(Through Dindori Police Station, ]
Taluka - Dindori, District Nashik, ]
Vide C.R. No.27 of 2013) ] Appellant
(Orig. Complainant)
Versus
Vijay Bhika Dive ]
Age: 36 years, ]
R/o - Kochargaon, ]
Taluka - Dindori, ]
District. Nashik ] Respondent
(Orig. Accused)
.....
Ms. G.P. Mulekar, A.P.P, for Appellant-State.
Mr. Rajesh B. Parab, for Respondent.
....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 22nd DECEMBER, 2023.
PRONOUNCED ON : 15th JANUARY, 2024.
JUDGMENT:
1. State has taken an exception to a judgment and order dated
9th December, 2013 passed by Ad-hoc Additional Sessions Judge,
Nashik in Session Case No.201 of 2013 by which respondent-
accused was acquitted of the offences punishable under Sections
363, 366A of the Indian Penal Code, 1860 (for short "I.P.C") and
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Section 5 of The Immoral Traffic (Prevention) Act, 1956 (for short
"Act of 1956").
2. Facts in brief, are as follows.
3. Victim was a 14 years old girl and the daughter of the first
informant. She was prosecuting her studies in a Ashram School in
9th standard situate at Gayachiwadi. It was a Boarding School. Her
parents were residents of Nashik. Victim's brother - Rajendra and
his wife were residing at Kochargaon Taluka Dindori, District
Nashik along with their children. The respondent-accused was a
neighbour of Rajendra. Since families of the victim and the
respondent-accused were acquainted, victim and other siblings used
to call the respondent as "Mama" (maternal uncle).
4. Due to Holidays to the School, the victim had been to her
brother Rajendra on 16th February, 2013. On 21st February, 2013,
around 7.00 p.m, the victim had visited the house of the
respondent-accused. At that time, wife of the respondent informed
the victim that they would be visiting the temple of Goddess
Saptashrungidevi on the following day, upon which, the victim
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expressed her willingness to accompany wife of the respondent
along with her younger sister. The respondent, however, stated that
the victim should not bring her younger sister. When victim
returned to the house of her brother Rajendra and informed his
wife about her intention to accompany with the wife of the
respondent to go to Vani, Rajendra's wife asked the victim not to
accompany with the respondent and his wife.
5. However, on the next day, the victim had been to the house
of the respondent who took her to Nashik under the pretext of
purchasing clothes and Chappal. After reaching Nashik, the
respondent took the victim to Thakare Galli, which is a red light
area having brothels. The respondent met a woman and informed
her that he had brought a girl. The said woman, after noticing the
victim abused the respondent. The respondent thereafter
approached another woman, a prostitute, and demanded a room.
He asked the victim to enter into the said room immediately after it
was provided to him by the said woman. No sooner did the victim
enter into the room, she got scared as she noticed several cots kept
in the said room. She started weeping and ran away from the said
place. A few women met her on the way and asked as to what had
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happened with her. The victim narrated the incident to the said
women who were Social Workers of one "Disha Sanstha" which
takes care of welfare of the prostitutes. Said women informed the
Police. Subsequently, the victim and the respondent were taken to
Bhadrakali Police Station, Nashik. The victim again narrated the
incident to the Police and gave phone number of her father and
brother. Her father arrived at the Police Station and lodged a
report against the respondent.
6. A crime was registered bearing C.R. No.27 of 2013 under
Sections 363, 366A of the I.P.C and Section 5 of the Act of 1956
with Dindori Police Station on 22nd February, 2013.
7. P.W.7- Vilas Wamanrao Kohinkar, who was attached to
Dindori Police Station as a Inspector held investigation into the
crime. He recorded statements of the witnesses, drew panchanama
and referred the victim for medical examination. After the
investigation, he laid a charge-sheet against the respondent.
8. A charge was framed against the respondent by the Ad-hoc
Additional Sessions Judge, Nashik on 27 th June, 2013 under the
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Sections referred hereinabove. The respondent pleaded not guilty
and claimed a trial. The respondent has denied the commission of
the offences alleged against him raising a defence that the victim
accompanied him at the behest of her brother and his wife. He did
not kidnap the victim from the lawful guardianship of her brother
and his wife.
9. In his statement under Section 313 of the Code of Criminal
Procedure, 1973 (for short "Cr. P.C"), he stated that some women
residing in Thakare Galli tried to snatch money from his pocket and
upon his resistance, they took him to the Police Station and lodged
a false report. According to him, he was going to Nashik to take his
children to home when the victim's brother and his wife sent the
victim with him. Despite his reluctance to take the victim with him,
her brother and his wife prevailed upon him to take the victim with
him. No defence evidence has been adduced on his behalf.
10. Learned Additional Sessions Judge, after going through the
evidence of the prosecution and after hearing the respective sides,
by the impugned judgment and order gave benefit of doubt and
acquitted the respondent as above.
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11. I heard Ms. Mulekar, learned A.P.P at length as well as Mr.
Parab, learned Counsel for the respondent-accused.
12. Learned A.P.P would argue that un-disputedly the victim had
accompanied the respondent as she was enticed by him which is
evident from her testimony. My attention is invited to the testimony
of P.W.3 - Sushila Rajaram Ghanwate, who runs a Brothel and knew
the respondent very well as he used to bring women to her for
immoral trafficking. Learned A.P.P would argue that the conduct of
the respondent in taking the victim to the red light area itself is
sufficient to attract ingredients of Section 5 of the 1956 Act as well
as Section 366A of the I.P.C. She submits that there is no reason to
disbelieve P.W.3 - Sushila Ghanwate as there is no reason for her to
depose against the respondent as regards his conduct and the fact
that he brought the victim to her under the pretext of buying
clothes and Chappal for her. The learned A.P.P has also emphasized
on the fact that even another witness P.W. 4 - Latabai Babasaheb
Kapse, who is a Social Worker with " Disha Sevabhavi Sanstha" has
testified about the incident and the fact that the respondent was
inquiring about a room on rent in the red light area.
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13. It is submitted that the trial Court has swayed away with the
false defence raised by the respondent during trial. It is further
submitted that the prosecution had proved it's case beyond all
reasonable doubts against the respondent and, therefore, the
impugned judgment is nothing but a wrongful acquittal of the
respondent ignoring the clinching evidence brought forth by the
prosecution during trial. It is submitted that merely because brother
of the victim and his wife were not examined would not ipso facto
mean that the prosecution has failed in proving the charge against
the respondent beyond all reasonable doubts.
14. Per contra, Mr. Parab supported the impugned judgment by
inviting my attention to the cross-examination of the victim wherein
certain vital admissions, according to the learned Counsel would
disprove the prosecution's case as regards kidnapping of the victim
from lawful guardianship. The Counsel would argue that the victim
on her own accord volunteered to accompany the respondent
despite his reluctance and, therefore, it would not be a case of
kidnapping from lawful guardianship or even a case for procuration
of a minor girl under the age of 18 years with an intention to force
or seduce her to illicit intercourse with another person.
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15. Mr. Parab would further argue that the Court should be slow
while interfering in the judgment of acquittal. He also pointed out
that non examination of brother of the victim and his wife is fatal to
the prosecution's case.
16. P.W. 1 - first informant is the father of the victim. His
evidence indicates that he was acquainted with the respondent-
accused and his children used to call him as " Mama" (maternal
uncle). His evidence further reveals that he came to know about
the incident on 22nd February, 2013 when he received a phone call
from his son Rajendra. He approached Bhadrakali Police Station
where the victim and the respondent-accused were sitting. The
victim narrated the incident as to how she came to the Police
Station. His evidence is of hearsay nature, however, he categorically
testified that his daughter informed him as to how she was brought
to Nashik by the respondent when, in fact, the respondent's wife
had informed the victim that they would be going to Vani on the
following day. She also narrated the fact that she was brought to
Nashik under the pretext of purchasing clothes and chappal.
However, the respondent took her to Thakare Galli and thereafter
women from the Social Organization noticed the frightened victim
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and, therefore, she was brought to the Police Station. During his
cross-examination, nothing has been elicited which would render
his evidence unbelievable. The cross reveals that at the time of the
incident, victim and her sister were staying at Kochargaon with her
brother Rajendra. This witness, however, denied a suggestion that
the victim was sent with the accused by his son Rajendra and his
wife. He also stated that there was no dispute between him and the
respondent-accused prior to the incident.
17. Evidence of the victim would be important in this case who
was 14 years old at the time of giving evidence. She testified that at
the relevant time, she was in 9th standard in a Ashram School situate
at Gayachi Wadi. Her brother Rajendra was resident of Kochargaon.
Since it was a Saturday, the 16 th of February, 2013, she had been to
the house of her brother Rajendra. As already stated, the victim
used to call the respondent as Mama and, therefore, on 21 st
February, 2013, she along with her sister had been to his house.
Wife of the respondent had informed that they would be going to
Vani on the next date. The victim told her that she would bring her
younger sister, upon which, the respondent asked her not to bring
her younger sister. The victim thereafter informed her brother's
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wife about her plan to accompany the respondent to Vani. On the
next date, she visited the house of the respondent. The respondent
asked the victim to walk up to a bridge and thereafter he would
come and pick her up. Accordingly, the respondent arrived on a
motorcycle and asked her to occupy it. The respondent took her to
Village Girnare. At Girnare, the victim and the respondent noticed
cousin of the victim. The respondent asked the victim not to show
herself to her cousin. The respondent thereafter brought her to
Nashik in a Jeep. He thereafter took her to a building in an
unknown area after passing through lanes. There was a woman to
whom the respondent had stated that he had brought a girl with
him. The woman asked the respondent to bring her. The
respondent took the victim to the said woman. The said woman
thereupon abused the respondent by saying that "dk; js eq[kkZ] tkLr
ektyk dk\" The respondent thereafter slapped on the head of the
victim. The respondent had demanded a room on rent from
another woman and asked the victim to enter into the said room
immediately. Upon entering into the said room, the victim noticed
several cots over there. She got scared and started running away
from that place, however, five to six women intercepted and
inquired with her, whereupon she told them about the incident.
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Thereafter, some persons arrived over there and had beaten the
respondent and was taken to the Police Station.
18. In her cross-examination, the victim admits that on the day of
the incident, she accompanied the respondent on a Motorcycle
which belonged to one Ashok Lilke who is her uncle. It has been
reiterated that the respondent took the victim towards Village
Girnare. The mens rea of the respondent is writ large which is
evident from the evidence of P.W.3 - Sushila Ghanvate.
19. The cross-examination further reveals that from a river near
Village Kochargaon, the respondent took the victim to Girnare on
another Motorcycle of one Karanjalikar. From Village Girnare, the
respondent took the victim in a Jeep wherein there were 15 to 16
passengers. The victim further testified that two children of the
respondent were taking education at Ashram School at Nashik,
however, she denied a suggestion that the respondent - accused had
been to Nashik to take his children since those were holidays viz:
Saturday and Sunday. It is further suggested that the respondent
wanted to purchase clothes for his children and that the victim had
also asked him that she wanted to purchase clothes from Nashik.
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20. Cross-examination of the victim further indicates that she had
not asked the Driver of the Jeep as regards fare and place where the
Jeep was going. After reaching Nashik, all the passengers alighted
from the Jeep. The victim was unaware of the place at Nashik
where she had alighted. The cross further reveals that the
respondent took her to Thakare Galli after about one hour. She
denied the suggestion that while they were walking, few women
obstructed them and started snatching mobile from the pocket of
the respondent. She also denied the suggestion that the respondent
stated that they all were bad persons and that the victim should
accompany with him fast.
21. Thus, it can be seen even from the cross-examination of the
victim that instead of taking her to Nashik, the respondent took her
to Village Girnare first and thereafter to Nashik in a Jeep. If the
respondent was to visit Saptashrungi Vani, it is difficult to digest as
to how he would take the victim to Nashik and that too, in an area
which is known as "Thakare Galli". It is admittedly a red light area
where Brothels are run. Even if the story of the respondent that the
victim, despite his reluctance, voluntarily accompanied him would
not absolve him from the offence of kidnapping her from lawful
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guardianship as provided in Section 361 of the I.P.C as it is evident
from the evidence of the victim itself that she was admittedly below
16 years of age and she was enticed by the respondent without the
consent of her lawful guardians namely her brother Rajendra and
his wife. This is for the simple reason that the respondent had
asked the victim to accompany him on a Motorcycle near a bridge
and not directly from his house. It is not the contention of the
respondent that he took the victim in good faith and was indeed
taking her to Saptashrungidevi temple as it has not been suggested
to any of the witnesses by the defence. Since the victim was 14 years
of age, her act of alleged voluntarily accompanying with the
respondent would be insignificant as it would indeed amount to
kidnapping from her lawful guardianship. As such, the offence of
kidnapping from the lawful guardianship has been established and
proved by the prosecution.
22. Having considered the evidence of the victim as well as other
witnesses, it is explicit that the respondent had an intention right
from the beginning to bring the victim to Nashik in order to
procure purpose of her prostitution in the red light area. It is
evident that on 21st February, 2013 itself when the victim expressed
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her desire to accompany with the respondent along with her
younger sister, the respondent asked her not to accompany with her
sister. Secondly, if the victim was to be taken to the temple of
Goddess Saptashrungi at Vani, why she was taken to Nashik.
Thirdly, why the respondent asked the victim to walk up to the
bridge and, thereafter, carried her on a motorcycle. Fourthly, upon
noticing cousin of the victim at Village Girnare, why respondent
asked the victim not to show herself to the cousin. The motive of
the respondent, his preparation as well as his previous conduct in
view of section 8 of the Evidence Act is quite relevant in the given
set of circumstances. These are all the relevant facts which cannot
be lightly brushed aside. The intention and mens rea of the
respondent is writ large which is even evident from the evidence of
P.W 3 - Sushila Ghanwate and P.W. 4 - Latabai Kapse. The
respondent is not an innocent person as tried to be demonstrated by
the defence in light of the fact that he has been frequent visitor of
the red light area of Nashik where he used to bring women for
trafficking.
23. To that end, testimony of P.W. 3 - Sushila Ghanwate would be
relevant. She testified that she is a resident of Thakare Galli, Nashik
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where she has been running a Brothel for 35 years. The respondent
always used to bring women. At the relevant time, the respondent
had brought the victim around 11.00 a.m to 12.00 noon who was
aged about 14 to 15 years. Her evidence further indicates that the
said girl was frightened and was weeping. At that time, the
respondent had asked for a room whereupon this witness called P.W.
4 - Latabai Kapase and one Parvin Shaikh. P.W. 3- Sushila
Ghanwate informed them that the respondent had brought a girl. At
that time, one Alka Gurav was also present. They called the Police
by making a phone call. Evidence of this witness further indicates
that when she asked the victim as to the place from where she was
brought, the victim informed her that the respondent had brought
her under the pretext of purchasing chappal for her. Thereafter,
Police had obtained phone number of the victim's father and
brother and they were called. This witness along with other women
accompanied the victim and the respondent to the Police Station
where their statements were recorded.
24. Interestingly, it has been substantiated in the cross-
examination that P.W. 3 - Sushila Ghanwate has been running a
Brothel illegally for 35 years. She also admits that the Police always
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used to conduct raids at her Brothel and there are several cases
against her for which she was required to attend the Courts. She
admits that she has good relations with the Police. It was suggested
to this witness that she has falsely deposed against the respondent as
regards bringing the victim and asking for a room. She also denied
the suggestion that she had falsely deposed about the frequent visits
of the respondent to the Brothel who used to bring women. She
admits in the cross-examination that at the opening of Thakare
Galli, there are stalls of clothes on the road. She also admits that she
used to give rooms to other girls. She has denied a vital suggestion
that if a person refuses to become her customer, she would snatch
his money.
25. Her evidence has not been shattered in the cross-examination
in so far as the fact of bringing the victim to her Brothel and the
conversation which she had with the respondent at the relevant
time. It has also been proved that the respondent not only took the
victim at the red light area, especially to the said witness, but even
asked for a room. This act, indeed, would attract ingredients of
Section 5 of the Act of 1956, which reads thus;
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"5. Procuring, inducing or taking [person] for the sake of
prostitution.-
(1) Any person who -
(a) procures or attempts to procure a [person], whether
with or without [his] consent, for the purpose of
prostitution; or
(b) induces a [person] to go from any place, with the
intent that [he] may for the purpose of prostitution
become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a [person], or causes a
[person] to be taken, from one place to another with a
view to [his] carrying on, or being brought up to carry on
prostitution; or
(d) causes or induces a [person] to carry on
prostitution;
[shall be punishable on conviction with rigorous
imprisonment for a term of not less than three years and
not more than seven years and also with fine which may
extend to two thousand rupees, and if any offence under
sub-section is committed against the will of any person,
the punishment of imprisonment for a term of seven
years shall extend to imprisonment for a terms of
fourteen years:
Provided that if the person in respect of whom an offence
committed under this sub-section,-
(i) is a child, the punishment provided under this sub-
section shall extend to rigorous imprisonment for a term
of not less than seven years but may extend to life; and
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26. The evidence of P.W. 3 - Sushila Ghanwate coupled with the
evidence of the victim and the evidence of P.W.4 - Latabai Kapse
who spoke in tune with P.W. 3 - Sushila Ghanwate would precisely
attract ingredients of Section 366A of the I.P.C as it has been
established that the respondent induced the victim by taking her
with an intention to seduce her to illicit intercourse. There is every
reason to construe that the respondent had full knowledge and
intention that because of his conduct of procuring the victim, she
would be likely to be seduced to illicit intercourse with another
person.
27. Even, P.W. 4 - Latabai Kapse, a Social Worker with Disha
Sevabhavi Sanstha testified that she received a call in February,
2013 from Alka Gurav to which P.W. 3 - Sushila Ghanwate had
already made a reference informing this witness about the incident
in Thakare Galli. This witness reached Thakare Galli within 10
minutes. She had seen the victim with the respondent. Other
women present over there told this witness that the accused was
demanding a room on rent and, therefore, the said women called
this witness. Thereafter, this witness along with those women,
victim and the respondent had been to the Police Station. The
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victim told the Police about the incident as to how she was brought
to Nashik by the respondent on the pretext of purchasing Chappal
and clothes. The victim was quite frightened. Subsequently, she has
given phone number of her father.
28. Evidence of P.W. 4 - Latabai Kapse also remained un-
shattered and un-rebutted during cross. Rather, it has been
substantiated that P.W. 4 - Latabai Kapse is a Secretary of Disha
Sanstha which was a registered organization. She always visits Police
Station in connection with social work. The defence has tried to
suggest that this witness was an accused in a crime for which she
was in Central Jail, Nashik for 20 days, which she had denied in
clear terms. Interestingly, it is suggested to this witness that she was
lodged in Central Jail at Nashik, she had a visit with the respondent
which essentially means that the respondent was also in Nashik Jail,
perhaps in connection with a crime involving women trafficking or
some other crime which strengthens the testimony of P.W. 3 -
Sushila Ghanwate as regards his frequent visits to her brothel with
women. It can reasonably be inferred from the facts and evidence
as well as from the attending circumstances that he is not at all an
innocent person. He rather feigned innocence.
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29. P.W. 5 - Alka Raghu Gurav is another important witness who
testified that on 22nd February, 2013 around 11.00 a.m, the
respondent had brought a girl in Thakare Galli. This witness is also
resident of Thakare Galli, Nashik. Admittedly, this witness is also a
prostitute for last 30 years. Her evidence further reveals that the
respondent was demanding a room from P.W. 3 - Sushila Ghanwate.
The victim was about 13 to 14 years of age which is an undisputed
fact. When P.W. 3 - Sushila Ghanwate called this witness and
informed about demand of the accused, who had brought a girl, this
witness had called some other women. They gave a call to Disha
Sanstha and thereafter Parvin Shaikh and P.W. 4 - Latabai Kapse
came over there. They had called the Police. She categorically
testified that the respondent tried to escape from the spot but he
was caught and thereafter was handed over to the Police. This
witness had also categorically deposed that the victim had informed
them that she was brought by the respondent to Nashik under the
pretext of purchasing clothes and Chappals. This witness had signed
panchanama which was prepared by the Police at the house of P.W.
3 - Sushila Ghanwate which is at Exhibit - 20.
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30. Merely because certain crimes were registered against P.W. 5 -
Alka Gurav by the Police in light of her profession of prostitution
does not ipso facto mean that her evidence is to be viewed with
suspicion as I find no reason to disbelieve her. Rather, it is
praiseworthy and laudable that despite being in the profession of
prostitution, these witnesses namely P.W. 3 - Sushila Ghanwate, who
was aged about 65 years, P.W. 4 - Latabai Kapse who was 42 years
and this witness who was 45 years at the time of recording evidence
successfully prevented a futile attempt of the respondent to put the
victim into the business of prostitution who was just 14 years of age.
The candor with which the witnesses testified leaves no doubt in my
mind about the veracity and truthfulness of their evidence, if
juxtaposed with the evidence of the victim and the attending
circumstances.
31. The fact that the victim was enticed and brought to Nashik
under the pretext of purchasing clothes and Chappals is proved to
be an omission, nevertheless, it would not be a material omission in
view of discussion made hereinabove.
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32. P.W. 6 - Aarati Khetmali was working as P.S.I at the relevant
time with Bhadrakali Police Station. The sum and substance of her
evidence is that on 22nd February, 2013, pursuant to receipt of a
phone call from the workers of one Disha Sanstha in connection
with the victim and the respondent, she had sent some Policemen,
who brought the respondent and the victim at the Police Station.
This witness inquired with the victim and also obtained phone
number of her father. The complaint was written by this witness
which is proved at Exhibit - 27. She identified the respondent to be
the same person with whom the victim accompanied. The crime was
subsequently transferred to Dindori Police Station. Transfer letter is
at Exhibit 28. There is nothing in her cross-examination by the
defence except the admission that there were chapter cases against
the said Disha Sanstha at Bhadrakali Police Station.
33. P.W. 7 - Vilas Kohinkar was attached to Dindori Police Station
as Police Inspector at the relevant time. Initially, on 22 nd February,
2013, C.R. No.00/2013 was registered with Bhadrakali Police
Station which was transferred to Dindori Police Station. This
witness had directed P.S.I Shaikh to register a crime and to conduct
investigation. However, this witness himself conducted further
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investigation in this case. Spot panchanama was prepared which is
at Exhibit - 20. The evidence of this witness is relevant only to the
aspect as to how the investigation was conducted and nothing more
in light of the proof of other material facts.
34. Extract of attendance register of the Ashram School which is
at Exhibit 24 proved the fact that the victim was absent from the
School at the relevant time.
35. The impugned judgment is perverse and is in total ignorance
of the clinching evidence of the victim as well as P.W. 3 - Sushila
Ghanwate, P.W. 4 - Latabai Kapse and P.W. 5 - Alka Gurav as the
learned trial Court has not correctly appreciated and discussed the
testimonies of these important witnesses. The learned Judge, though
in paragraph 9 of the impugned judgment, while describing the
admitted facts that the respondent had brought the victim to Nashik
and took her to Thakare Galli at the brothel, conveniently ignored
this important aspect in later part of the judgment as to why the
respondent took the victim in the red light area where Brothels
were situated. The learned trial Judge has committed a grave error
in observing that as prosecution did not examine brother of the
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victim and his wife and, therefore, concluded that it was the victim
who voluntarily accompanied the respondent to Nashik. According
to the learned Judge, the respondent - accused could not get an
opportunity to bring the fact on the record that brother of the
victim himself had asked the respondent to take her with him. The
learned Judge, on that count, raised doubt about the authenticity of
the evidence of the victim to the extent of her kidnapping by the
respondent. No acceptable and plausible reasons were assigned by
the learned Judge to disbelieve the testimony of the victim as well as
P.W. 3 - Sushila Ghanwate, P.W. 4 - Latabai Kapse and P.W. 5 - Alka
Gurav.
36. The view taken by the trial Court, in no circumstance, can be
said to be possible and probable view on the basis of the evidence
adduced by the prosecution. It would be apposite to place reliance
on a judgment of the Supreme Court in the case of Hakeem Khan
and others Vs. State of Madhya Pradesh, 1 wherein the the Supreme
Court has held that;
"Reiterated, possible view denotes an opinion
which can exist or be formed irrespective of
the correctness or otherwise of such an
opinion - A view taken by a court lower in
1 (2017) 5 Supreme Court Cases 719
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hierarchical structure may be termed as
erroneous or wrong by a superior court upon a
mere disagreement - But such a conclusion of
the higher court would not take the view
rendered by the subordinate court outside the
arena of a possible view - Correctness or
otherwise of any conclusion reached by a court
has to be tested on basis of what superior
judicial authority perceives to be correct
conclusion - A possible view, on the other
hand, denotes a conclusion which can
reasonably be arrived at regardless of the fact
whether it is agreed upon or not by the higher
court - The fundamental distinction between
the two situations have to be kept in mind - So
long as the view taken by trial court can be
reasonably formed, regardless of whether the
High Court agrees with the same or not, view
taken by trial court cannot be interdicted and
that of High Court supplanted over and above
the view of trial court."
37. It is well settled that the High Court shall not interfere with an
order of acquittal merely because it opines that a different view is
possible or even preferable. The High Court can interfere in an appeal
against acquittal only if appreciation of the evidence by the trial Court is
capricious or it's conclusions are without evidence that the High Court
may reverse the order of acquittal. The impugned judgment and order of
acquittal by the trial Court is indeed not in accordance with law and the
approach of the trial Court has in fact, led to miscarriage of justice.
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38. I am fully satisfied that the incident in question cannot be
explained except on the basis of the guilt of the respondent and is
inconsistent with his innocence. I am also conscious of the fact that
there is presumption of innocence in favour of the respondent.
However, the impugned judgment is based on surmises and
conjunctures. The Court below has ignored cogent, trustworthy and
reliable evidence of the victim, P.W. 3 - Sushila Ghanwate, P.W. 4 -
Latabai Kapse and P.W. 5 - Alka Gurav.
39. As such, the view taken by the trial Court is an impossible
view in the given set of facts and circumstances. Having re-
appreciated and reviewed the entire evidence on record, I am
constrained to take a view that the decision of the trial Court will
have to be reversed by interdicting to meet the ends of justice.
There is every likelihood of the respondent being a pimp. However,
there is absolutely no scope of any doubt creeping in, in the light of
the discussion made hereinabove.
40. The respondent, therefore, is found guilty and stands
convicted of the offences punishable under sections 363 and 366A
of the I.P.C and Section 5 of the Act of 1956.
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41. The respondent will have to be heard on the point of sentence
before awarding the same.
[PRITHVIRAJ K. CHAVAN, J.]
15TH JANUARY, 2024
42. The respondent - accused is produced before me today at
2.30 p.m by an Officer of Dindori Police Station. Unfortunately, on
the last date i.e on 12th January, 2024, when this matter was fixed
for hearing the respondent - accused on the point of sentence,
Counsel appearing for the respondent - Mr. Parab was absent. Even
today, the learned Counsel representing the respondent is absent
which is not a healthy practice.
43. I heard the respondent - accused on the point of sentence. He
submits that he has four children aged about 24, 21, 14 and 10. He
is the only earning member of the family. This is his first offence.
He, therefore, prays for a lenient view and to award minimum
sentence.
44. Learned A.P.P, on the other hand, submits that looking to the
nature and seriousness of the offence, the respondent - accused be
awarded maximum sentence.
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45. The offences committed by the respondent - accused are
indeed serious and have it's impact on the society. He took the
victim under the garb of buying clothes and chappals for her in the
red light area of Nashik and made an attempt to put her into the
business of prostitution. It appears that the victim had reposed trust
upon the respondent - accused since she used to call him as Mama.
46. Of late, there is a rise in the cases under The Immoral Traffic
(Prevention) Act, 1956. The said Act is a stringent legislation in
order to curb the menace of human trafficking, especially, when a
child or minor is induced or carried for the purpose of prostitution.
There respondent - accused herein had indeed committed the
aforesaid offences and, therefore, he does not deserve sympathy. In
order to curb such social evil, some deterrence is required and,
therefore, having considered the entire evidence and the facts on
record, following sentence would meet the ends of justice.
:ORDER:
(a) Appeal is allowed.
(b) The Judgment and order dated 9 th December,
2013 passed by the Additional Sessions Judge, Nashik in
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Session Case No.201 of 2013 is reversed and set aside.
(c) Respondent - Accused - Vijay Bhika Dive is
convicted of an offence punishable under Section 363 of
the I.PC.
He is sentenced to undergo rigorous
imprisonment for seven (7) years and shall pay a fine of
Rs.25,000/-.
In default of payment of fine, he shall undergo
simple imprisonment for six (6) months;
(d) He is convicted of an offence punishable under
Section 366A of the I.P.C.
He is sentenced to undergo rigorous
imprisonment for ten (10) years and shall pay a fine of
Rs.25,000/-.
In default of payment of fine, he shall undergo
simple imprisonment for six (6) months;
(e) He is convicted of an offence punishable under
Section 5 (1) (i) of the Immoral Traffic (Prevention) Act,
1956.
He is sentenced to undergo rigorous
imprisonment for ten (10) years;
(f) The substantive sentences shall run concurrently.
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(g) Whole of the fine amount be paid to the victim as
a compensation in view of Section 357 (1) of the Cr. P.C, if
recovered;
(h) Registry is directed to certify the judgment to the
Sessions Court, Nashik;
(i) Sessions Court, Nashik shall thereupon make further
compliance as per sub-section (2) of Section 388 of the Cr. P.C;
(j) Record and Proceeding be remitted to the
Sessions Court, Nashik.
(k) Appeal stands disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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