Shaik Noorjahan vs The State Of Telangan,
2022 Latest Caselaw 6503 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

          CRIMINAL REVISION CASE No.223 OF 2015


ORDER:

This Criminal Revision Case is filed by the petitioner-accused

No.1 aggrieved by the order dated 11.02.2015 in Crl.A. No.1056 of

2014 on the file of the Metropolitan Sessions Judge, Hyderabad

confirming the order dated 27.10.2014 in CC No.215 of 2013 on the

file of the Special Judicial Magistrate for Excise Cases, Hyderabad in

convicting the petitioner-accused for the offence under Section 3 (2)

(a), 4 and 5 of the Immoral Traffic (Prevention) Act, 1956.

2. The case of the prosecution in brief was that A1 was running a

brothel house at Flat No.401, Prashanth Towers, Musheerabad,

Hyderabad, by procuring the victim and providing her to customers,

by collecting money from them and was living on the earnings of

prostitution.

3. As per the charge sheet filed by the Inspector of Police,

Musheerabad Police Station, on 23.10.2013 at 6.30 PM, while the

police constables were on patrolling duty, they received information Dr.GRR,J

about running of a brothel in Flat No.401, Prashanth Towers,

Musheerabad. On that, one of the constables kept watch on the said

flat. while the other constable proceeded to the police station and

lodged a report. Basing on the said report, the Inspector of Police

registered a case in Crime No.290 of 2013 for the offences under

Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for

short 'the Act'). The Inspector secured the panch witnesses and

proceeded to the spot. He found A1 and A3 in the hall of the said flat

and A2 in compromising position with the sex worker inside a room

and took them into custody and seized Rs.2,000/-, two cell phones and

condoms from the possession of A1, one Samsung cell phone and

Rs.500/- cash from A2 and one Samsung cell phone and cash of

Rs.1,000/- from A3 under the cover of panchanama. After

investigation, he filed charge sheet against A1 to A3 for the offences

under Sections 3, 4 and 5 of the Act. The Special Judicial Magistrate

of First Class, Excise Cases, Hyderabad had taken cognizance of the

case and on appearance of the accused, framed charges against A1 for

the offence under Section 3 (2) (a), 4 and 5 of the Act and as A2 and

A3 were arrayed as customers, framed charge for the offence under

Section 7 of the Act against them.

Dr.GRR,J

4. During the course of trial, the prosecution examined PWs.1 to 6

and got marked Exs.P1 to P5 and MOs.1 to 8. No oral or

documentary evidence was adduced by the accused.

5. On considering the oral and documentary evidence on record,

the trial court acquitted A2 and A3 for the offence under Section 7 of

the Act, but convicted A1 for the offence under Section 3 (2) (a), 4

and 5 of the Act and sentenced her to undergo simple imprisonment

for a period of two years and to pay a fine of Rs.1,000/- in default of

payment of fine, to undergo simple imprisonment for a period of three

months for the offence under Section 3 (2) (a) of the Act; to undergo

simple imprisonment for a period of two years and to pay a fine of

Rs.1,000/-, in default of payment of fine, to undergo simple

imprisonment for three months for the offence under Section 4 of the

Act and further sentenced her to undergo rigorous imprisonment for a

period of three years and to pay a fine of Rs.2,000/-, in default of

payment of fine, to undergo simple imprisonment for four months for

the offence under Section 5 of the Act and directed all the sentences to

run concurrently.

Dr.GRR,J

6. Aggrieved by the said conviction and sentence imposed by the

trial court, A1 preferred an appeal before the Metropolitan Sessions

Judge, Hyderabad. The learned Metropolitan Sessions Judge vide

Crl.A. No.1056 of 2014 dated 11.02.2015 dismissed the appeal

confirming the judgment of the trial court.

7. Aggrieved further, the petitioner-A1 preferred this revision

contending that the judgments of the courts below were not based on

facts and evidence on record but was based on assumptions and

presumptions. The lower appellate court failed to observe that the

appellant-A1 had not indulged in any unlawful business of prostitution

and she was victimised by the respondent police for statistical

purpose. The lower appellate court failed to observe that the alleged

victim, owner of the premises and also the neighbour of the premises

were not examined and there were no substantial witnesses to support

the version of the prosecution case. The prosecution failed to conduct

medical examination of the victim and failed to examine any

independent witness and prayed to set aside the judgment of the

Metropolitan Sessions Judge in Crl.A. No.1056 of 2014 dated

11.02.2015.

Dr.GRR,J

6. Heard learned counsel for the revision petitioner - A1 and the

learned Assistant Public Prosecutor.

7. The learned counsel for the petitioner-A1 argued on the same

lines as raised in the grounds of revision.

8. The learned Assistant Public Prosecutor, on the other hand,

submitted that both the trial court as well as the lower appellate court

rightly appreciated the evidence on record and recorded the conviction

against A1 which would require no interference by this Court and

prayed to dismiss the revision.

9. Perused the record. The record would disclose that the trial

court had discussed the evidence of the witnesses in detail and

answered all the points raised with regard to the competency of the

Investigating Officer, non-examination of the victim-sex worker, non

examination of the owner/landlord and non-compliance of the

mandatory provisions for conducting panchanama, the discrepancies

in the evidence of the witnesses and all other aspects by referring to

the case law on the said points and came to the conclusion about the Dr.GRR,J

guilt of A1 for the offence punishable under Sections 3 (2) (a), 4 and 5

of the Act.

10. With regard to the contention of the revision petitioner about

non-examination of the victim-sex worker, it was observed that the

victim was a native of Punjab State and though the trial court

dismissed the petition filed by one Jitender Srivastava, describing

himself as brother of the victim, seeking her custody, as per the orders

of the appellate court, the victim was given into custody to him. But,

she fled away and escaped from further proceedings violating the

undertaking given by her to the court. The trial court observed that

the custodian Mr. Jitender Srivastava was also not available and

inspite of best efforts by the concerned police to produce her as a

witness, they failed to produce her and noted serious repercussions of

non-availability of the victim-sex worker on the case pending and the

need to keep her in Rescue/Protection Home atleast until the victim

was examined as a witness.

11. But, however, considering the other available evidence on

record, wherein PW.3-panch witness, PW.4-police constable and the

woman police constable examined as PW.5 and PW.6-Inspector of Dr.GRR,J

Police who stated about finding the sex worker and A2 in a

compromising position in the bed room and that they also found the

used condoms under the cot and the cash of Rs.2,000/- two cell

phones and two condom packets seized from the possession of A1 and

none of the accused A2 and A3 were related to A1 or the victim sex

worker and it was a case where one of the accused was in a closed bed

room with the sex worker at the time of raid, came to the conclusion

that it was clear case of promiscuous sexual intercourse on hire and

the money seized from the accused and use of cell phones by the

accused for the commission of offence would prove the running of

brothel and non-examination of the victim-sex worker would not

affect or dilute the prosecution case.

12. With regard to the non-examination of the owner of the

premises also, the trial court considering the suggestions given to the

witnesses in the cross-examination by A1, observed that from the said

suggestions it could be culled out that there was no dispute with

regard to possession of A1 as occupier of Flat No.401, Prashanth

Towers, Musheerabad, Hyderabad by the date of raid, non-

examination of the owner of the flat who was an old aged woman of Dr.GRR,J

78 years was not fatal to the prosecution case. This Court does not

find any illegality or impropriety in the observations of the trial court

in the said regard.

13. With regard to non-conducting the medical examination of the

victim, the lower appellate court observed that failure to examine the

victim medically would not affect the case, the medical examination

might prove the sexual intercourse but, even if there was no sexual

intercourse, the fact that she was found along with A2 in a

compromising position, their intention is explicit to have sexual

intercourse. Whether they already had it or not was the aspect which

would be proved by the medical examination, but even if it was not

accomplished by then, A1could not get any benefit from the said fact.

This Court is of the view that the purpose of medical examination of

the victim is to provide any medical aid to her, if she was suffering

with any sexually transmitted diseases but not to provide evidence of

proof of sexual intercourse and hence, the objection by the learned

counsel with regard to non-conducting the medical examination of the

victim would not give any benefit to the accused.

Dr.GRR,J

14. With regard to failure of the prosecution to examine the

independent witnesses, both the trial court and the lower appellate

court observed that it would be difficult in such cases to secure

woman panch witness as it would stigmatize them in the society and

the Investigating Officer had rendered cogent explanation for his

failure in securing female panch witnesses, no prejudice was caused to

the accused by virtue of the said failure, as such, the same could not

be taken into consideration in holding the accused guilty.

15. With regard to the discrepancies in the evidence of the

witnesses, on the number of inmates found at the time of raid, the date

of raid, the trial court rightly observed that the discrepancies were

minor in nature and they would not go to the root of the prosecution

case, when all the witnesses consistently deposed about the manner of

raid, seizure and involvement of A1 to A3.

16. Thus, both the trial court and the lower appellate court

appreciated the evidence of the witnesses in detail and came to a

conclusion with regard to the guilt of the accused. The observations

of the courts below are not based on assumptions and presumptions

but based upon the facts and evidence on record. This Court does not Dr.GRR,J

find any illegality or impropriety in the observations of the courts

below to set aside the same. As such, this court does not find any

merit in the contention of the learned counsel for the revision

petitioner on the aspects raised in the grounds of revision.

17. In the result, the Criminal Revision Case is dismissed

confirming the judgment of conviction and sentence dated 11.02.2015

passed against the petitioner-A1 in Crl.A.No.1056 of 2014 by the

Metropolitan Sessions Judge, Hyderabad. The bail granted to the

petitioner - A1 shall stand cancelled and she is directed to surrender

before the trial court forthwith and in case she fails to do so, the trial

court shall take appropriate steps to take the petitioner-A1 into

custody.

Pending miscellaneous petitions, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 06, 2022 KTL