Heard further arguments of Sri. Ramakrishna,
learned counsel for the appellants and learned HCGP.
2. Appellants are accused Nos.1 and 2 who have
Further, A-1 and A-2 are sentenced to undergo
rigorous imprisonment of three years each and a fine
of Rs.1000/- each and in default of payment of fine,
they shall under go simple imprisonment for a period
of three months each for the offences punishable
u/s. 5 of Immoral Traffic (Prevention) Act, 1956.
Further, A-1 and A-2 are sentenced to undergo
rigorous imprisonment of seven years each and a
fine of Rs.2500/- each and in default of payment of
fine, they shall under go simple imprisonment for a
period of six months each for the offences punishable
u/s. 6 of Immoral Traffic (Prevention) Act, 1956.
Further, all the above sentences shall run
concurrently.
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The period undergone in judicial custody by A-1
and A-2 is set off as provided u/s.428 of Cr.P.C.
The MOs 1 and 2 shall be confiscated to the
State and M.O.3 and 4 shall be returned to A-1 and
A-2 and M.O.5 shall be destroyed after the appeal
period is over."
3. Facts in brief which are most essential for
disposal of the appeal are as under:
A charge sheet came to be filed by the Police
Inspector of Peenya Police Station, Bangalore alleging that
the appellants have committed offences punishable under
Sections 366A, 372, 373 r/w Section 34 of IPC and
Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention)
Act, 1956. The material facts which resulted in filing the
charge sheet against the appellants are that the appellants
took a house on rent situated near Ganesha Saw Mill
within the limits of Peenya Police Station and in the said
rented house, they were conducting prostitution by
securing young girls. One such young girl is examined as
PW-13 (hereinafter referred to as the victim girl) who was
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rescued by the raid team. On credible information,
Peenya Police formed a raid team and they raided the
house belonging to CW-22, Rangappa on 22.11.2010,
from 6 p.m. to 7.30 p.m., along with independent panch
witnesses and sub-staff of Peenya Police Station. At the
time of raid, the victim girl was rescued from the brothel
house and on enquiry with the appellants, they have
revealed that the victim girl has been purchased from her
guardians and she had been subjected to prostitution.
Cash of Rs.3,622/- was seized from the custody of the
appellants and mobile telephones which were used to
procure the customers were also seized by the Head of the
raid team in the presence of mahazar witnesses and sub-
staff and a report was submitted in that regard.
4. Based on the report, Peenya Police registered a
case for the aforesaid offences and after thorough
investigation, the investigation agency was satisfied that
the appellants did indulge in procuring young girls and
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they were used for prostitution and filed charge sheet as
aforesaid.
5. Learned Trial Magistrate, on receipt of the
charge sheet, took cognizance of the offences and
registered a criminal case in C.C.No.5438/2011. Presence
of the accused persons was secured from the judicial
custody and after compliance of Section 207 of the
Cr.P.C., case was committed to the Court of Sessions for
further trial by passing suitable orders under Section 209
of the Cr.P.C.
6. On committal, learned Sessions Judge secured
the presence of the appellants and framed charges for the
aforesaid offences. The accused persons pleaded not
guilty. Therefore, trial was held.
7. In order to bring out the guilt of the appellants,
prosecution proceeded to examine 16 witnesses as PW-1
to PW-16, comprising of Head of the raid team, sub-staff,
informant, victim girl, mahazar witness and investigation
officers. Prosecution also placed on record 13 documents
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which were marked as Ex.P1 to P13, comprising of report
by PW-1, mahazar, birth certificate of victim girl, 5 more
reports with regard to age and other details and FSL
report.
8. Seized cash, mobile phones, condom packet
and the samples from the victim girl were marked as MO-1
to MO-10. On conclusion of recording of prosecution
evidence, learned Sessions Judge proceeded to record the
accused statement as is contemplated under Section 313
of the Cr.P.C., wherein appellants have denied all the
incriminatory circumstances put to them which were found
in the case of the prosecution. Appellants neither placed
any written submission on record as is contemplated under
Section 313(4) of the Cr.P.C., placing their version about
the incident, nor there was any defence evidence placed
on record on behalf of the accused.
9. Subsequent thereto, learned Trial Judge heard
the parties in detail and on consideration of the oral and
documentary evidence placed on record by the prosecution
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in a cumulative manner, convicted and sentenced the
appellants as aforesaid.
10. Being aggrieved by the same, appellants have
filed the present appeal on the following grounds:
• That the impugned judgment of conviction and
sentence passed by the Court below is contrary to
the facts and circumstances of the case. Hence, the
same is liable to be set-aside.
• That the Court below while passing the Impugned
Judgment assigned certain reasons which are
erroneous illegal and improper. Hence, it has
reached to a wrong conclusion.
• The Court below gravely erred in convicting and
sentencing the Appellants for the charged offences
holding that the prosecution proved the case
beyond reasonable doubt even though there are
contrary version among the prosecution witnesses
regarding place of alleged incident, time of alleged
raid and the alleged raid, which are goes to root of
the case still the court below by ignoring all these
mechanically convicted and sentenced the
Appellants is bad in law.
• The Court below failed to take note of the fact that
the manner in which alleged raid was conducted as
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per the prosecution witnesses is contrary to each
other PW1 says @ 3.00 p.m. PW11 and CW15 came
to his office and informed about the alleged illegal
activities and he and his staff PW2, PW3, PW4, PW5
and PW6 had been to spot @ 4.45 p.m. and
confirm the house through PW5 and PW11 and
inform the same to Panchayatdars and send PW8
and PW11 as decoy witnesses and after receipt of
missed call from PW8 they raided the house, PW3
depose that on 22.11.2010 @ 3.00 p.m. PW1 and
other staff had been to spot and @ 4.00 p.m. they
raided the house and noticed in that house Al and
A2 and PW13, PW5 deposed that @ 3.00 p.m. PW1
told that there is a information from Justice and
Care Institution based on that information
members of Justice and Care Institution People
took them to House No.207/2, PW6 deposed PW1
secured staff and informed that the members of
Justice and Care Institution informed that in a
house situated at T. Dasarahalli one minor girl was
kept and carrying prostitution and secured the
panchayatdar and proceeded to spot, PW8 deposed
that @ 4.00 p.m. PW11 made a call to him and
informed about the illegal activity and asked him to
come to CID Office and he reached CID Office @
4.30 p.m. and on request accepted to act as decoy
witness and remained in CID Office about 1 hour
afterwards they left CID Office, PW11 deposed that
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@ 22.11.2010 @ 2.00 p.m. they received
information that one minor girl is used for
prostitution in a house near Peenya Police Station,
he and CW15 gone to CID Office and informed the
same to PW1 and in turn PW1 secured his staff and
PW12 and CW10 as panchas, PW1 in his cross-
examination he deposed that justice and care
people are not met him at CID Office, but they
narrated to his higher officials in turn his higher
officer informed the same, it clearly goes to show
among raiding party there is material contradiction
on major aspect which creates strong doubt about
the prosecution case, but the court below ignoring
all these aspects and convicted and sentenced the
Accused which is against to the cannon of
appreciation.
• The Court below gravely erred in convicting and
sentencing the appellants for the offences
punishable under Section 366(A) and 373 of I.P.C.
holding that prosecution established the case that
PW13 is a minor as per Ex.P3, even though PW13
stated in her evidence that she completed S.S.L.C.
in the year 2009 and between 1st Standard to
S.S.L.C. she failed twice and the alleged incident on
22.11.2010, if the evidence of PW13 taken into
consideration she is above the age of 18 years as
on the date of alleged raid in addition to that the
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prosecution has not subjected the victim for
ossification test and radiology test to determine the
age of the victim but the court below simply relying
on the Ex.P3 and ignoring other evidence on record
about this aspect is highly unsustainable in law.
• The Court below gravely erred in convicting and
sentencing the appellants for the charged offences
holding that PW13 evidence is sufficient to hold the
accused are guilty of the offence even though,
there is no corroboration to the evidence of PW13
and the evidence of PW13 is full of contradiction
and unnatural conduct and PW13 depose that
Police Peoples came to the house at 11.00 a.m. and
the house where she was alleged to kept is consist
of one hall, two bed rooms, one kitchen and one
bath room which is contrary to Ex.P2 mahazar, in
which it is referred raided house consists of a room,
kitchen and a bathroom is clearly goes to show that
PW13 is planted against the Appellants with an
ulterior motive at the instance of building owner
and unnatural conduct of the victim throws doubt
about the prosecution case still the court below
hold that prosecution proved case beyond
reasonable doubt is not at all holds good.
• The court below gravely erred in holding that Ex.P2
proved even though, no local witness secured as
panchas to Ex.P2 even though available, and there
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is a contrary version with regard to who secured
panchas, as per PW1 panchas were secured by PW5
as per PW5, PW6 secured panchas and as per PW6
PW1 secured panchas and other raiding party
witnesses ignorant about who secured panchas and
particularly PW12 who alleged to act as pancha to
Ex.P2 clearly stated he signed Ex.P2 at Police
Station, it clearly goes to show Ex.P2 came into
existence in the Police Station.
• The Court below failed to take note of the fact that
as per prosecution the primary information
furnished by PW11 and CW15 who are alleged
members of Justice and Care Institution who are
alleged to participate in the alleged raid from
beginning to end, but to show that they have
participated in the alleged raid no proof produced
and they have not attested Ex.P2 to show that they
were present in the raiding, if PW8 and PW11 and
CW15 really accompanied PW1 and his team they
could have definitely attested Ex.P2 Mahazar. It
clearly establish that Ex.P2 not came into existence
as explained by the Prosecution and it is created for
the case, but the court below ignored this
important aspect is highly unsustainable in law.
• The Court below failed to take note of the fact that,
MO1 to 5 alleged to be seized at the time of
drawing Ex.P2 and they are incriminating material
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objects and the said MO1 to 5 even though alleged
to be seized under Ex.P2 not packed and sealed
and they were in the custody of Police. Hence, no
credence attached to MO1 to 5 non-packing and
sealing of MO1 to 5 and non-obtaining the
signature on MO1 to 5 falsifies the entire
prosecution case still the court below mechanically
acted without applying judicial mind is bad in law.
• The Court below failed to appreciate and take note
of the facts that as per Evidence of PW1, PW8 was
secured through PW11 to spot and as per PW8,
PW11 called him to CID Office and met PW1 at CID
Office and amount was entrusted to him and asked
to act as panchas, which is contrary to evidence of
other prosecution witnesses, and in addition that he
has not attested Ex.P2 clearly goes to show he was
not participated Ex.P2 proceedings. Still the court
below holds that prosecution established the case
beyond reasonable doubt is highly unsustainable in
law.
• The Court below failed to take note of the fact that
as per prosecution case MO1 i.e. Rs.3,000/-
(500x6) belongs to Government but the
prosecution has not placed any document to show
that MO1 belongs to Government but the court
below ignored this material aspect is bad in law.
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• The Court below failed to appreciate and take note
of the fact that FIR hit by 162 Cr.P.C. as per PW2
and PW3, PW1 recorded the statement of victim i.e.
PW13, if that is the case before FIR came into
existence there is already statement of victim was
in existence, hence the FIR cannot be treated as
First Information Report and it is hit by Section 162
Cr.P.C. and the first statement of PW13 is
suppressed, it creates strong doubt about the
prosecution case still the court below ignored this
important aspect is not at all holds good.
• The testimony of the victim girl do not inspire the
confidence of the court and her version is full of
contradiction, improvement and unnatural and over
all the veracity of victim evidence is suspicious in
nature.
11. Sri. Ramakrishna, learned counsel for the
appellant reiterating the grounds urged in the appeal
memorandum contended that as on the date of raid, there
were no customers found in the place and therefore it was
only the presumption of the Head of the raid team that
prostitution was going on. He further argued that the
confession statement made by the appellants and the
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statement made by the victim girl should not have been
made as basis for assuming commission of the offence as
referred supra and therefore the very filing of the charge
sheet itself is totally unwarranted and trial thereof is also
vitiated for want of positive materials placed on record by
the prosecution.
12. He further pointed out that mere fact that
appellants had taken the house on rent and presence of
victim girl (PW-13) in the house itself would not make out
all ingredients to attract the offence arrayed against the
appellants and in the absence of any other cogent
evidence placed on record, conviction of the appellants
and sentencing them as aforesaid, has resulted in
miscarriage of justice and hence sought for allowing the
appeal.
13. Per contra, learned High Court Government
Pleader supports the impugned judgment by contending
that the material on record would substantially establish
that PW-13 had been purchased by the appellants from
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her legal custodians and she had been used for the
purpose of prostitution. He would further contend that
admittedly, the victim girl was aged 17 years as on the
date of incident who is no way related to the appellants
and her presence in the house of the appellants with
seized incriminatory materials would sufficiently establish
that she had been forced to undergo prostitution on the
directions of the appellants herein, which fact has been
brought to the notice of the police by examining PW-11
and based on said information, the police raided the place
of incident and recovered incriminatory materials which
has been rightly appreciated by the learned Trial Judge in
the impugned judgment and therefore sought for dismissal
of the appeal.
14. He further pointed out that mere absence of
any customer at the time of raid would not ipso facto
result in doubting the case of the prosecution that PW-13
had been put to prostitution by purchasing her from her
legal custodians and material evidence placed on record
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would be sufficient enough to conclude the said aspect of
the matter, including the oral testimony of PW-13 who had
been rescued form the place of incident and thus sought
for dismissal of the appeal.
15. Sri. Anil Kumar, learned counsel representing
the informant and aiding the prosecution, adopts the
arguments put forward on behalf of the learned High Court
Government Pleader and sought for dismissal of the
appeal.
16. Having heard the arguments of learned counsel
for the parties in detail, this Court perused the material on
record meticulously. The following points arise for
consideration in this appeal:
(i) Whether the material evidence placed on record would be
sufficient enough to maintain the conviction of the
appellant for the offence punishable under Sections 366A,
372, 373, r/w Section 34 of the Indian Penal Code and
Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention)
Act, 1956?
(ii) Whether the appellants makes out a case of legal infirmity
and perversity in the findings recorded by the learned
Special Judge while convicting the appellant for the
aforesaid offences?
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(iii) Whether the sentence needs modification?
(iv) What Order?
17. REGARDING POINT Nos.1 and 2: On perusal
of the material on record, following admitted facts would
emerge:
• Appellants having taken the house bearing
No.207/2, T. Dasarahalli, Bangalore, on rental
basis;
• Appellants' presence at the time of raid;
• Presence of PW-13 at the time of raid;
• No physical relationship between PW-13 and one of
the appellants;
• Whereabouts of PW-13 is not disclosed by the
appellants at the time of raid and false
information has been provided to PW-1;
• Recovery of cash and condom packets from the
place of incident at the time of raid.
18. Following disputed facts are also noticed on
perusal of the material on record:
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• Appellants having indulged in running a brothel
house by securing young girls and use of mobile
telephones marked at MO-3 and MO-4;
• Appellants using young girls for the purpose of
prostitution in the house occupied by them on
rental basis;
• Appellants' involvement in securing prospective
customers for the purpose of prostitution and
using the rented house for the said purpose;
• Seized cash and mobile telephones are natural and
seizure of condom packet is also natural as
appellants are husband and wife.
19. In the light of the above admitted and disputed
facts on record, when the material on record is re-
appreciated, PW-1 being the Head of the raid team was
intimated by PW-11, Sri. Domnic about running of a
brothel house. Based on such information, PW-1 formed a
raid team comprising of himself, Head Constable Smt.
Prema, Woman Constable Smt. Kavitha and another
constable Sri. Prasanna Kumar. Apart from the police
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personnel, independent panch witnesses were also secured
and they were made as part of the raid team.
20. As per the credible information received from
PW-11, the raid team proceeded to the place of incident
which is the house owned by CW-22, Rangappa situated
near Ganesha Saw Mill, within the limits of Peenya Police
Station. On so reaching the place of incident, they raided
the house from 6 p.m. to 7.30 p.m. on 22.11.2010. When
they so raided, they found the presence of PW-13 in the
house. Enquiry made by PW-1 revealed that she was no
way related to the appellants and she had been made to
leave her house with some unknown persons and she was
left in the place of incident wherein appellants were found.
21. In the oral testimony of PW-13 (victim girl who
had been rescued from the place of raid), she has
specifically deposed that appellants 1 and 2 contacted
somebody over their mobile telephone and she was forced
to have sexual intercourse with him. When she refused,
appellants forcibly pushed her and there she was forced to
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have illicit relationship with that unknown person. The
date of birth of PW-13 is established by examining the
Head Master who issued the 'Date of birth Certificate' and
as per that, her date of birth is 24.04.1994, and as such,
as on the date of the incident, she was aged 17 years.
22. In order to appreciate whether the offence as is
contemplated under Sections 366A and 373 of IPC has
been committed by the appellants, it is just and necessary
for this Court to cull out the aforesaid provisions which
reads as under:
366A. 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.
373. Buying minor for purposes of
prostitution, etc.. - Whoever buys, hires or
otherwise obtains possession of any person under
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the age of eighteen years with intent that such
person shall at any age be employed or used for the
purpose of prostitution or illicit intercourse with any
person or for any unlawful and immoral purpose, or
knowing it to be likely that such person will at any
age be employed or used for any purpose, shall be
punished with imprisonment of either description for
a term which may extend to ten years, and shall
also be liable to fine.
23. On careful reading of the aforesaid provision,
kidnapping of the minor girl with an intention to force her
to have illicit relationship with some other person, is the
main ingredient that the prosecution has to establish for
attracting the offence under Section 366A of the IPC.
24. In the instant case on hand, admittedly,
appellants are no way related to PW-13 and she has been
brought from her custodians and made to have illicit
intercourse with third person and therefore the sole
testimony of PW-13 would be sufficient to conclude the
offence under Sections 366A and 373 of the IPC.
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25. The material evidence on record also shows
that the house was not owned by the appellants and house
was belonging to CW-22. It is not in dispute that the
possession of the house was secured by appellants on
rental basis. In the absence of relation established by the
appellants insofar as PW-13 is concerned and oral
testimony of PW-13, wherein it is clear that she has been
forced to have illicit intercourse with three persons who
used to be secured by appellants by calling them over
their telephones, all the ingredients required to attract the
offences punishable under the provisions of Sections 3 to 6
of the Immoral Traffic (Prevention) Act, stands
established.
26. It is pertinent to note that, none of the
prosecution witnesses did nurture any previous enmity or
animosity insofar as the appellants are concerned. The
witnesses examined on behalf of the prosecution have
supported the case of the prosecution. In view of recovery
of the material objects, MOs. 1 to 5, as referred to supra,
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under the seizure mahazar and FSL report with regard to
MOs.6 to 10, which are placed on record, this Court is of
the considered opinion that the prosecution is successful in
establishing necessary ingredients to attract the aforesaid
offences by placing cogent and convincing evidence on
record.
27. Moreover, defence did not place their version
on record either while answering the incriminatory
materials at the time of recording the accused statement
nor did they place any written submissions placing their
version on record, as is contemplated under Section
313(4) of Cr.P.C.
28. It is settled principle of law that recording of
accused statement in a criminal case is not an empty
formality. It serves dual purpose. Firstly, all the
incriminatory materials found in the case of the
prosecution must be put to the accused as is prescribed
under Section 313 of Cr.P.C. Putting across the
incriminatory materials in the case of the prosecution and
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seeking explanation from the accused is mandatory,
wherein the accused can offer suitable explanation for the
incriminatory materials found in the case of the
prosecution.
29. Secondly, opportunity may be utilized by the
accused for the purpose of not only exhibiting the
incriminatory materials but may also place their version
about the incident.
30. If, in a given case, the accused deliberately fails
to make use of such an opportunity in not only denying
the incriminatory circumstances but also not placing their
version about the incident, then, consequences in law
should follow.
31. In the case on hand, when the prosecution
evidence was concluded, the learned Trial Judge did cull
out the incriminatory materials from the oral testimony of
the prosecution witnesses which was substantiated by
placing material documents on record and having been
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exhibited, put it across to the appellants while recording
the accused statement under Section 313 of Cr.P.C.
32. Perusal of the answers offered by the accused
appellants into the incriminatory circumstances reveals
that they have simply denied all the incriminatory
materials, but did not choose to offer any explanation or
place their version about the incident in writing as is
contemplated under Section 313(4) of Cr.P.C.
33. This Court is not oblivious of the fact that the
prosecution case has to be established by placing cogent
and convincing evidence on record and if any answer is
found at the time of recording accused statement, the
same can only be used for corroboration, if there are
different versions.
34. In other words, the case of the prosecution
stands established by placing positive evidence on record
and conviction should not be based only on the answers
obtained in the accused statement.
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35. Keeping said principle of law in the background,
when the material on record is re-appreciated, the
prosecution is able to place on record not only cogent
material evidence, but also the evidence placed on record
is overwhelming in nature in establishing the ingredients
which are required to attract the offences, as alleged
supra.
36. Thus, this Court is of the considered opinion
that the appellants have not made out any grounds
whatsoever to term the impugned judgment as perverse
or suffering from legal infirmity. On the contrary, the
impugned judgment is based on material evidence placed
on record, by sound and logical reasons.
37. In view of the foregoing discussion, point No.1
and point No.2 are answered in the affirmative and
negative, respectively.
38. REGARDING POINT No.3: Learned Trial
Judge, as referred to supra, has imposed punishment
which is minimum prescribed under the provisions of
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Immoral Traffic (Prevention) Act, 1956. Insofar as the
offence under Section 366A of IPC is concerned, learned
Trial Judge has imposed imprisonment of seven years,
which is again, the minimum punishment.
39. No mitigating circumstances are available on
record so as to consider the question of reduction of the
imprisonment period.
40. As a feeble attempt, learned counsel for the
appellants did fall back on the provisions of the Probation
of Offenders Act, 1958. In fact, Probation of Offenders Act
being pressed into service by the appellants in the Court
below, the learned Trial Judge negated it by passing
appropriate order.
41. Material on record also discloses that the
presence of the appellants was secured before the Trial
Judge by issuing body warrant (production and transit
warrant). The said aspect pre-supposes that the appellants
were also in custody in some other criminal case.
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42. Therefore, per se, the provisions of the
Probation of Offenders Act cannot be made applicable to
the case on hand. As such, this Court is of the considered
opinion that, sentence ordered by the learned Trial Judge
for the offences, as referred to supra, does not require any
re-consideration. Hence, point No.3 is answered in the
negative.
43. REGARDING POINT No.4: In view of the
findings of this Court on point Nos.1 to 3 as above,
following:
ORDER
i) The appeal grounds are meritless and
accordingly, the criminal appeal is dismissed;
ii) The appellants are granted time till
28.02.2025, to surrender before the Trial Court
to serve the remaining sentence.
Office is directed to return the Trial Court records
with a copy of this judgment, forthwith.
Ordered accordingly.
Sd/-
(V SRISHANANDA)
JUDGE
RD,BMV
