IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE (MAHILA COURT) AT HYDERABAD PRESENT: Smt. T. Rajani, M.A., B.L. V Addl. Metropolitan Sessions Judge, Mania Court, Hyderabad Dated this the 26 th day of June, 2007 SESSIONS CASE NO. 112/2007 PRC. NO. 8/2007 ON THE FILE OF X ADDL. CMM. COURT SECUNDERABAD Committed by: Sri. X Addl. Chief Metropolitan Magistrate, Secunderabad Crime No, & Police Station: 297/2006 Name of the complainant: Name and description of accused: Sub-Inspector of Police, P.S. Gopalapuram A1 Dharmapuri Sridevi @ Sapna W/o Mahaboob Pathan, age 20 years, Occ: Call girl/pimp near Railway station, Secunderabad R/o Uppal, Hyderabad A2 S. Manjunath @ Shankar @ Mental Shankar S/o Subbaraya Achari, age 26 years, Occ: Pimp/broker, Railway station, R/o Uppal R/o Bodhgir / Cross Roads, near Bangalore, Karnataka Prosecution conducted by: Accused defended by: Offences Charged: Plea of the accused: Finding of the court: Sri Ch. Seshi Reddy, Addl. Public Prosecutor Sri. V. V. S. Satyanarayana, Advocate 366(a) 376 IPC and 3, 4 and 5 of I.T.P. Act Pleaded guilty The accused No. l and 2 are found not guilty for the offence punishable u/s 3 of The Immoral Traffic (Prevention) Act and Section 366-A IPC and they are acquitted and they are 1 P a g e
found guilty for the offences punishable u/s 4 & 5 of The Immoral Traffic (Prevention) Act. A2 is found guilty for the offences punishable u/s 376 IPC. And they are convicted for the said offences u/s 235 (2) Cr. P.C. Sentence/Order: A1 is sentenced to under go R.I for a period of One year for the offence punishable U/Sec. 4 of the I.T.P. Act, and R.I for three years and a sum of Rs. 200/- for the offence punishable u/ Sec. 5 of I.T.P. Act. In default of payment of fine S.I for a period of One month. A2 is sentenced to under go R.I. for Two years for the offence punishable under Sec. 4 of I.T.P, Act, R.I. for 5 years and a fine of Rs. 2000/- for the offence punishable U/Sec. 5 of I.T.P. Act. In default of payment of fine R.I. for 4 months. A2 is further sentenced to undergo R.I. for seven years and a fine of Rs. 2000/- for the offence punishable U/Sec. 376 IPC, and the default of payment of fine R.I for 4 months. The sentence against both the accused for the above offence shall run concurrently. The remand period if any ordered to be set off. JUDGEMENT This is a case of a girl who came out of the protective wings of her mother and went into the hands of those people who used her as a means of their extra income and led her into prostitution for the said purpose. The brief facts as projected in the charge sheet are that on 10.10.2006 at about 10.30 a.m. L.W.I who is in-charge for a social welfare organization called "PRAJWALA" came to the police station and lodged a written English report with the following facts. The victim girl is a resident of Yakuthpura who lost her father in her childhood. Her mother used to beat her up constantly and one day she also burnt her leg with a burning rod. Unable to bear the acts of her mother she came away from her house and reached Secunderabad Railway station in the month of January 2006. She worked as a domestic servant in the house of a woman at Seethaphalmandi till April 2006. As the husband of that woman did not like her, she left that house also and sat at Secunderabad Station. Then a woman named Swapna approached her and promised to provide a good job to her and took her to a person called Shanker who was standing near the bus station, Secunderabad. Shanker took the girl to Chilkanagar Uppal by paying Rs. 400/- to the said 2 P a g e
Swapna. He promised to provide her a better living and asked her to enter into prostitution. He used her as his keep, and sent her to four or five customers per day. One day she got an opportunity to escape from his clutches and somehow approached the complainant. On the strength of the report given by the complainant the case was registered in Cr. No. 297/2006 for the offence under section 366-A IPC and Sec. 3, 4 & 5 of I.PT. Act. During the course of investigation the statements of the witnesses were recorded. The victim was subjected to medical examination and was diagnosed to be carrying 12 weeks pregnancy. Her statement was also got recorded by a Magistrate under 164 Cr. P.C. The accused were arrested. After receiving all the relevant reports the investigation was concluded and charge sheet was laid for the same offences. On appearance of the accused Nos. 1 and 2 before the committal court, the committal court duly complied with all the legal formalities and committed the case to the court of Metropolitan Sessions Division, Hyderabad. The learned Metropolitan Sessions Judge, Hyderabad, took the matter on file and made over the same to this court for trial and disposal according to law. On appearance of the accused before this court, this court complied with all the legal formalities and basing on the prima facie material on record, framed charges against A1 and A2 for the offences punishable U/Ss.366-A IPC and Sec. 3, 4 & 5 of I.PT. Act and against accused No. 2 for the offence punishable under section 376 IPC. The accused pleaded not guilty for the said charges when they were read over and explained to them and claimed to be tried. On that this court conducted the trial of the case and examined P.Ws. l to 5 and marked Ex. P1 to P.6 on behalf of the prosecution. After concluding the prosecution evidence, the accused were questioned about the incriminating circumstances appearing in the prosecution evidence. They denied the truth in the prosecution evidence and reported no evidence on their behalf. On that the arguments of the learned APP and the defence counsel were heard. The Learned APP contended that the case of the prosecution stands proved by the confidence inspiring evidence of not only the victim girl P.W. 2 but also P.W. 1 and that the minor inconsistencies pointed out by the defence are liable to be brushed aside on the basis of the substratum of the prosecution case which was proved unmotivatedly. The defence counsel as rightly contended by the APP has based his argument on inconsistencies which do not in any way disturb the basic ring of truth existing in the prosecution case. Though they need not be mentioned the same are being mentioned only to be marginalised. It was in the foremost contended that the residence of P.W. 2 as stated by P.W. 2 is at Yakuthpura but as per the case of prosecution, she was residing with P.W. 1 who is in-charge of a rescue home, that P.W. 2 could not give the name of the woman who took her from the Railway station initially, that L.W. 3 who allegedly took. P.W.2 to P.W. 1 was not examined by the prosecution. The 3 P a g e
above contentions made the defence counsel would be met with by this court while deciding the points which arise for determination by this court. Based on the material on record and the arguments extended on either side this court frames the following points for determination. 1) Whether the testimony of the prosecutrix inspires total confidence in the court. 2) Whether the guilt of the accused for the offence punishable u/s 3 of the Immoral Traffic (Prevention) Act is proved. 3) Whether the prosecution could prove the guilt of the accused for the offences punishable u/s 4 & 5 of Immoral Traffic (Prevention) Act. 4) Whether the guilt of the accused No. 2 for the offence punishable u/s 376 IPC is proved. 5) Whether the prosecution could prove the guilt of the accused for the offences with which they are charged beyond all reasonable doubt. 6) To what result. 1st POINT- P.W. 2 is the prosecutrix. If the credibility of the prosecutrix is upheld then, by virtue the settled position of law, her testimony can be considered as sufficient to conclude the guilt of the accused. As can be seen from her evidence not even a remote motive exists against her for speaking falsehood. There are no relations between accused and P.W. 2 earlier to the alleged episode of offences. Hence, it can not be alleged that she was prompted by any ulterior motives to speak against the accused. The evidence on record shows that she had to take shelter in a rescue home where no scope for personal profits would be left. In the absence of ambitions of personal gains, she would not be prompted to speak falsehood against the accused. She came into the world alone and is ultimately left, with what can be appropriately called as a burden, the child. In such circumstances whatever comes from her testimony turns to be true. 2nd POINT- Sec. 3 Immoral Traffic (Prevention) Act (hereinafter called as I.T.P. Act) prescribes punishment for the persons who keeps or manages or acts or assists in the keeping or management of a brothel. The evidence of P.W. 2 is that of the victim girl. According to her evidence she met A1 at the Railway Station and A1 took her to A2. Both the accused took her to the Secundrabad Railway station and sent her along with a person, after taking money. Both the accused beat her severely and made her continue the prostitution. The wife of A2 also used to reside in the house of A2. It is the said wife that rescued P.W. 2 and took her to the Rescue Home of P.W. 1. Except the act of A1 relating to P.W. 2 her other activities are not stated by P.W. 2. The evidence of P.W. 6 which is that of the inspector of police who registered the case and investigated it, though shows that there were reports against A1 in their Police Station even earlier to this case, the said reports against A2. The evidence of P.W. 1 shows that P.W. 2 was brought to their Rescue Home by LW. 3, who is the wife of A2. L.W. 3, according to P.W. 1 has 4 P a g e
been attending the counseling sessions of P.W. 1 s organization run by them in the area of Gopalpuram P.S. But evidently no reports were given to them either against A2 that they were in the hand of doing and assisting prostitution or that they were concerned with the keeping or managing of a brothel. Hence, the evidence on record does not bring out evidence, sufficient to fix the complicity of the accused in the offence punishable u/s sec.3 of I.T.P. Act. Hence, it can be concluded that the prosecution failed to prove the guilt of the accused for the offence punishable u/s 3 of I.T.P. Act. 3rd POINT - Section 4 of I.T.P. Act makes the act of any person over the age of 18 years living wholly or in part, on the earnings of prostitution of any person punishable. The evidence of P.W. 2 would amply prove that she was led into prostitution by A1 and A2. There can be no other reason that can be read into the facts of the case other than the monetary benefit. Even without any assumption it can be concluded as such, as P.W. 2 was categorical in stating that A1 and A2 took money from a stranger before handing over her to the said person. The evidence of P.W. l though hearsay, also corroborates the said fact. Leaving aside the proof that Al and A2 are guilty of the offence can be concluded that the guilt which would be proved otherwise would consist of the financial benefit. The said benefit would form part of the earnings of the accused and thereby it amounts to living on the earnings of prostitution which is punishable u/s 4 of I.T.P Act. The ages of the accused are shown as 20 and 26 years respectively. Section 4 makes the act of the accused who are over the age of 18 years alone punishable. The accused did not deny their ages. Hence, they are attracted by Section 4 of the I.T.P. Act. Sec. 5 of the I.T.P. Act attracts the act of a person who procures a person with or without her consent for the purpose of the prostitution and also the act of a person in taking or attempting to take a person or causing a person to be taken from one place to another with a view to his/her carrying on or being brought up to carry on prostitution. The alleged facts are only in respect of the above ingredients of section 5 of I.T.P. Act. Before proceeding with the appreciation of the evidence on record the contention of the defence counsel that the prosecution could not prove that P.W. 2 stayed in the house of A2. It was also contended that no neighbours from the place of the accused were examined in order to prove the said fact and that L.W. 3 who is the wife of A2 was not examined by the prosecution. It was urged that the benefit of the above lapses of the prosecution has to be extended to the accused. In the considered opinion of this court it is only benefit of a reasonable doubt that has to be extended to the accused, but not of whimsical and fanciful doubts. The facts of the case would project a clear situation where no independent witnesses would come forward to give evidence. In the cases of this sort such efforts would not fulfill in all probability. The failure of the police in not explaining about their efforts to secure independent witnesses can not at any rate prejudice the victim. When the case itself stands on highly credible facts calling for independent evidence would result in a hyper technical approach, which is not warranted. 5 P a g e
P.W. 1 however is an independent witness. The attempt to shatter her credibility during the cross examination remains unsuccessful. The mere fact that the organization of P.W. 1 is run by the funds which are provided to it based on the number of victims catered by it can not be taken to infer that every act of it is motivated by the said benefit. It can not be assumed that such organizations are started on a profit motive. The basic aim is to help the destitute. It was well explained by P.W. 1 that they take up programmes in which they counsel the destitutes, rehabilitate several people and provide education to destitute children. It cannot at any stretch of imagination be their wish that more and more destitutes should crop up in the society in order to keep their organization fruitful and liable. It is quite the converse situation that has necessitated the formation of such organization. Hence the suggestion that P.W. 1 has shown P.W. 2 as a member of their rescue home in order to raise funds is simply ridiculous. The reason for not examining L.W. 3 as a witness is also easily understandable. She is a woman who has been putting up with A.2 in spite of the fact that she did not like his activities. She has a heart and mind to rescue P.W. 2 from the clutches of her husband but she cannot be expected to have the gumption to come to the court and give evidence against him. Hence, the lapse of the prosecution in not examining L.W. 3 as a witness does not in any way effect the case of the prosecution. More over when there is no factual foundation that could be laid by the accused for his false implication and for P.W. 2 to speak against them there is no reason to doubt the truth in the evidence of P.W. 2. The evidence of P.W. 2 vividly picturises the plight of a small girl who left the home, and entered a world which, not to her knowledge is filled with elements waiting to trap her. She has likewise taken offence of the behaviour of her mother and left the house. She came across, a woman who was kind enough to take her to her house, but her house unfortunately did not contain persons who are as good and compassionate as herself. Her husband was not good enough. His behaviour made P.W. 2 leave their house, as can be seen from 164 Cr. P.C. statement made by P.W. 2. Though the same is not corroborated by P.W. 2 in the court, she was modest enough to say that she came out as she was not treated well. After coming out from the above houses, she met A1, who took her along and handed her over to A2. She was decorated and sent to Secunderabad Railway Station and was made to do prostitution. She was handed over to a person who took her away to a place far away from Secunderabad and she was subjected to sexual intercourse. The said person, after accomplishing his sexual desire, brought her back and handed over to the accused. P.W. 2 has been resisting the acts of the accused. But she was beaten by them severely and was made to continue the prostitution. The evidence of P.W. 2 is cogent, which can be seen from the cross examination that she was subjected to on behalf of the accused. Only one omission was pointed out that is regarding the pregnancy of P.W. 2. It was argued that P.W. 2 did not state about her pregnancy in her 161 and 164 statements. She explained that she could not state about it, as she was not aware of it by that time. By the date of her examination by the police, she was not subjected to medical examination. Her statement was recorded on 10.10.2006. She was examined by the doctor on 6 P a g e
12.10.2006. Hence, her explanation holds good for the lapse at the time of her 161 statement. But her 164 statement was recorded on 3.11.2006 by which time she was subjected to medical examination. But discarding the entire evidence on the above immaterial lapse would result in nothing but travesty of justice Even if her pregnancy is not taken into consideration, her evidence would be sufficient to prove the guilt of the accused. The punishment for the offence u/s 5 of I.T.P Act is prescribed separately for a minor, child and a major. Hence, the aspect of the age of P.W. 2 also becomes material. The age of P.W. 2 was got assessed through P.W.4 who is the Civil Asst. Surgeon, Forensic Department, Gandhi Medical College. According to P.W. 4 P.W. 2 was examined on 12.10.2006 at the requisition of the police, Gopalapuram for determination of her age. By virtue of the general, physical and dental examination the age was assessed to be 17 years. The said age is admitted to be prone to an error of plus or minus one year. The calculation with the above error would make the age of P.W. 2 either 16 or 18 years. The interpretation favourable to the accused has to be made in cases of ambiguity. Such interpretation would make P.W. 2 a major. With the above discussion, it can be concluded that the prosecution could prove the guilt of the accused for the offences punishable u/s 4 & 5 of the I.T.P Act. 4th POINT: The discussion under point No. l has concluded that the testimony of P.W. 2 inspires confidence and can be made a basis for holding the accused guilty. Her evidence shows that A2 apart from using her as a tool for prostitution has also used her as a tool to satisfy his own lust. She has categorically stated that A2 used to rape her at his house. Hence, this court does not wish to lose any time before concluding that A2 has committed rape against P.W. 2. 5th POINT: A charge u/s 366-A is framed by this court, but as the age of the girl was concluded to be 18 years the above provision would not get attracted. Even for the acts of the accused to be taken within the purview of section 363 IPC the facts of the case do not show that the accused have kidnapped P.W. 2. A1 casually came across P.W. 2 at the Railway Station. The element of taking and enticing which are the ingredients of Sec 36l IPC, which is punishable under section 363 IPC do not exist beyond doubt in the prosecution story. Hence, the benefit of the above doubt can be extended to the accused. In view of discussion under the above points this court opines that the prosecution could prove the guilt of A1 and A2 for the offences punishable u/s 4 & 5 I.T.P. Act and of A2 for the offence punishable u/s 376 IPC. 6th POINT: In the result the accused No. l and 2 are found not guilty for the offence punishable u/s 3 of The Immoral Traffic (Prevention) Act and Section 366-A IPC and they are acquitted and they are found guilty for the offences punishable u/s 4 & 5 of The Immoral Traffic (Prevention) Act. A2 is found guilty for the offence punishable u/s 376 IPC. And they are convicted for the said offences u/s 235(2) Cr. PC. 7 P a g e
Dictated to Bench Typist, corrected and pronounced by me in the open court on this the 26th day of June, 2007. V. ADDL. METROPOLITAN SESSIONS JUDGE (MAHILA COURT)-CUM-XIX ADDL CHIEF JUDGE AT HYDERABAD The accused is appraised of the finding of the court and is questioned about the sentence. 1st Accused did not choose to submit any thing, but A2 submitted that he has parents and wife who are dependent on him. But the above submission is considered as only a routine submission calling for no lenient view. If necessity can be read into the word weakness then as said by the Hon'ble High Court of Gujarat in Gajanand Magalal s case it is either human weakness or wickedness which may be the cause of the sexual offences. The fact would show that it is the necessity for money that has prompted the accused to commit the offences. But an element of wickedness exists in executing their deeds of necessity. A1 being a woman laid the chastity of PW. 2 at stake by preserving her own physical chastity (as she is proved to be mentally unchaste), while A2 has used PW. 2 not only as a means of fulfilling his financial necessity but also his concupiscence. Hence the weakness of A2 is on a higher plane than that of A1. Considering the above, A1 is sentenced to under go R.I for a period of One year for the offence punishable U/Sec. 4 of the I.P.T. Act. and R.I for three years and a fine of Rs. 200/- for the offence punishable U/Sec.5 I.P.T. Act; In default of payment of fine S.I. for a period of One Month. A2 is sentenced to under go R.I. for 2 years for the offence punishable under Sec. 4 of I.P.T. Act. R.I. For 5 years and a fine of Rs. 2000/- for the offence punishable U/Sec.5 of I.P.T. Act. In default of payment of fine R.1. For 4 months. A2 is further sentenced to undergo R.I. for seven years and a fine of Rs. 2000/- for the offence punishable U/Sec.376 IPC and the default of payment of fine RI for 4 months. The sentence against both the accused for the above offence shall run concurrently. The remand period if any is ordered to be set off. The unmarked properyy if any is ordered to be destroyed after appeal time. V. ADDL. METROPOLITAN SESSIONS JUDGE (MAHILA COURT)-CUM-XIX ADDL.CHIEF JUDGE AT HYDERABAD 8 P a g e
Appendix of Evidence Witnesses Examined For Prosecution:- P.W. l. Dr. Sunitha Krishnan P.W. 2. Begum Sania P.W.3. Dr. T. Satyavathi P,W.4. Dr. T. Vikramaditya P.W.5. Ghouseuddin P.W.6. Mohd. Ismail For Defence:-NIL Ex.P.1. Complaint Ex.P.2. Medical Certificate Ex.P.3. Final Opinion Ex.P.4. Potency Certificate Ex.P.5. Age Certificate Ex.P.6. FIR M.Os. MARKED: NIL V Addl. Metropolitan Sessions Judge Cum: XIX Addl. Chief Judge, City Criminal Courts, At Hyderabad 9 P a g e