Criminal Appeal (SJ) No.315 of 2007 With Criminal Appeal (SJ) No.377 of 2007 ---- Against the judgement and order of conviction dated 12.2.2007 passed by Sri Avinash Kumar Sinha, Ist Additional Sessions Judge, Darbhanga, in Sessions Trial No.208 of 2005. ---- Suraiya Khatoon (Cr.A.No.315/77) Md. Ashraf Ali (Cr.A.No.377/07) … Appellants. Versus State Of Bihar . Respondent(in both appeals). ---- For the Appellants : Mr. S.N.Prasad (in both appeals) (Amicus Curiae.). For the Respondent : Mr.Ajay Mishra, A.P.P. ---- P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. These two appeals have been preferred by Suraiya Khatoon and Md. Ashraf Ali against the Judgment dated 9.2.2007 passed by the learned Ist Additional Sessions Judg, Darbhanga, in Sessions Trial No.208 of 2005 by which the appellants, namely, Md. Ashraf Ali and Suraiya Khatoon were held guilty for the offence under section 366A/34 of Indian Penal Code and each of them, after being heard on sentence, were directed by order dated 12.2.2007 to undergo R.I. for seven years on the above count. 2 2. On the basis of the written report of P.W.6, Marni Devi, Keoti P.S. Case No.30 of 2005 was registered by drawing up the F.I.R. (Ext.5). It was alleged in the written report that Mamta Kumari aged 14 years and Reena Kumari aged about 10 years, respectively daughters of P.W.6 and one Rajendra Ram, had gone to scrap grass near the Primary Health Centre. They did not return. After hectic search also, neither of them could be traced out. It came into knowledge of the relatives of the two minor girls through P.W.7, Jaya Devi, that two girls had been seen talking to acquitted accused Amina Khatoon. It was further learnt that Mamta Kumari and Reena Kumari, two victims who were examined in the trial court as P.Ws.8 and 10 were seen boarding a Maxi which was coming from Rahika side and was likely to proceed to Darbhanga. 3. On these informations P.W.6 suspected that both Mamta and Reena had been taken away by the accused persons for being sold. 3 4. It appears that after drawing up the F.I.R., Ext.5 the investigation was taken up by S. I., Lalit Lakra P.W.13 and during that course it came to light that the two victims were in company of accused persons somewhere in Delhi. Raiding team under the leadership of P.W.13 consisting of a lady constable, namely, Sheela Kumari, C.W.1, was dispatched to Delhi, to Keshavpuram Police Station to be exact, and with the help of local police in Delhi a search was made in house No.61A in Rampura Lane No.4 and the two appellants were arrested from inside that room along with the two victims. The victims and the two appellants were brought to Darbhanga on 21.3.2005 and produced before the C.J.M., Darbhanga on 22.3.2005. The statements of the victims were recorded under section 164 Cr.P.C. Those statements have been marked Exts.3 and 3/1 respectively. The victims were produced before the Assistant Professor, Department of Forensic Science, Darbhanga, for their respective medical examinations and the report submitted by 4 Dr.P.K.Das, P.W.9, are indicative of the fact that Reena Kumari was aged in between 10- 12 years whereas Mamta Kumari was also aged in between 15 – 16 years.The statements of the victims as also witnesses were recorded by the police and finding sufficient materials, the two appellants along with the acquitted accused, namely, Nargish Khatoon and Amina Khatoon, were sent up for trial. 5. The defence of the appellants was of complete denial of their participation in commission of the offence and further that they had been falsely implicated by Kewal Yadav, P.W.1 and others. 6. During trial, 13 witnesses were produced by the prosecution. The court also summoned and examined C.W.1, a lady constable Sheela Kumari. Out of the 13 witnesses the court rejected the evidence of P.W.1 Kewal Yadav, P.W.2 Rajgir Yadav, P.W.3 Ram Kumar Sah, P.W.4 Mishri Ram, as also P.W.7 Jaya Devi who had given evidence on different parts 5 of the story of taking away of the two victims by the accused persons. The main reason assigned by the learned trial Judge for rejecting the evidence of the above named witnesses was that their evidence did not inspire confidence because some of them appeared having not seen any part of taking away of the two victims. So far as the evidence of P.Ws.5 and 6, i.e., Somani Devi and Marani Devi, respective mothers of the two victims is concerned, they were also not eye witnesses, but their evidence is relevant to the extent that they have deposed to the fact that their respective daughters went missing when they had gone to scrap grass and in spite of hectic search and making all possible efforts, they could not be traced out. Lastly, the police recovered them somewhere in Delhi and brought them to Darbhanga, where they were kept in Hajat. 6. As regards the evidence on taking away, the learned trial Judge has relied upon circumstantial evidence which appeared from the evidence of P.W.13, the investigating officer 6 and C.W.1, lady constable Sheela Kumari, as also the evidence of the two victims, P.Ws.8 and 10. P.Ws.8 and 10 were informing the trial court in their evidence that they had been picked up by Amina and Suraiya Khatoon and were taken to different places and lastly, to Delhi where they were confined in a room. 7. In way up to Delhi, the two victims, namely, Mamta Kumari and Reena Kumari, were to be sold out for which negotiations were carried on even in the train compartment as it appears from the evidence of the witnesses, i.e., the two victims when picked up the attempt of the two appellants, namely, Md. Ashraf Ali and Suraiya Khatoon on the sale of the two victims to different persons who approached them in the very compartment of the train they were travelling in and when they started making noise, they were calmed down and were immediately transferred to another bogey. The victims have clearly stated that Mamta was to be sold for Rs.85,000/- though the price demanded was Rs.2,00,000/- for each of the girls and Reena was to fetch 7 Rs.55,000/- from their prospective purchasers. There is evidence of two victims on being taken away and being bartered for sale as the purpose of they being taken away from their respective unlawful guardianship; for being pushed into prostitution so that they could be offered or subjected to illicit sexual intercourse for earning money. This inference naturally comes out of the evidence of the two victims on the attempt of the appellants to sell them out. Thus, the evidence of the two victims was itself sufficient to make out a case that Md.Ashraf Ali and Suraiya Khatoon had taken them away only with a purpose of selling them so that they could be offered for prostitution or both of them could be subjected to illicit sexual intercourse. The above are the ingredients which constitute the offence under section 366A of the I.P.C. 8. The recovery of the two victims is established beyond doubt. The evidence of P.W.13, coupled with the evidence of the two victims which is now supported by C.W. 8 1, the lady constable Sheela Kumari particularly would leave no room for doubt that a team of police personnel was dispatched by the S.P., Darbhanga, as stated by C.W.1 and P.W.13 on some tip off that the victim had been taken away to Delhi, where they were confined somewhere within the jurisdiction of Keshavpuram Police Station. P.W.13 and C.W.1 could say that they reached Delhi, contacted the Officer of Keshavpuram Police Station and with the assistance of the personnel of that police station searched house no.61A in Ram Pur Lane to find two victims in the custody of appellants Suraiya Khatoon and Md. Ashraf Ali. The evidence of P.W.13 and C.W.1 is about discharging the public function of the two officials which public functions were enshrined upon each of them. It may not simply be possible to reject their evidence. The girls, namely, Mamta Kumari and Reena Kumari , P.Ws. 6 and 10, also supported the two police personnel, i.e., P.W. 13 and C.W.1 that they had been recovered from that particular house on account of being found in the 9 company of the two appellants and were brought from Delhi to Darbhanga where they were produced before the Chief Judicial Magistrate and thereafter before Magistrate and then before the doctor for their respective medical examination. The evidence of all the witnesses clearly established the fact, by raising direct inference or inference through circumstances. It can be the two appellants, Md. Ashraf Ali and Suraiya Khatoon who were involved in taking away of the two victims to Delhi only with a purpose as stated by the two victims on the point of their admitted sale to different customers while they were traveling through the railways. 9. I find from the lower court Judgment that a charge under section 372 of I.P.C. was also framed, but the learned Judge took a view that that offence was not established and acquitted the appellants of that charge. But, on evidence which I have just discussed, I am of the opinion that it would be a fit case in which that offence was duly made out. It is difficult 10 for this Court to justify the acquittal of the two appellants for the charge under section 372 of I.P.C. which relates to selling of letting on hire or otherwise disposing of any person under the age of eighteen years with intent that such person shall be employed or used for the purpose of prostitution or illicit inter course with any person or for any unlawful and immoral purposes, or knowing it to be likely that such person will at any age be employed or used for any such purpose, on the ground of want of evidence to constitute ingredients of the offence under section 372 I.P.C. The evidence of P.Ws. 8 and 10, i.e., two victims itself was sufficient to establish the fact that a serious attempt was made by the two appellants in route to Delhi and particularly at Kanpur, when two persons approached the two appellants in the railway bogey to barter with the appellants, who asked for Rs.2,00,000/- for each girl whereas the respective prices offered were Rs.85,000/- for Mamta Kumari and Rs.55,000/- for Reena Kumari. 11 10. No one could draw an inference other than that selling of the girls would have no other purpose that spoken of spoken of by the offence under section 372 I.P.C. It is true that there is no appeal against acquittal of the appellants for that particular offence under section 372 I.P.C., but I do not see any harm if I hold that the acquittal of the appellants for offence under section 372 I.P.C. was quite illegal. 11. After having said what I have, after considering the relevant evidence, I find no merit in the two appeals and the same are dismissed. 12. The Court appreciates the assistance of Sri Prasad in the hearing of these two appeals and records its appreciation that if Sri Prasad would not have assisted the Court the appeals would not be disposed of. Let the High Court Legal Services Committee pay one fee of hearing in each of the appeals to Sri S.N.Prasad, Advocate. For that purpose a copy of the first and last page of the 12 Judgment be made over to Sri S.N.Prasad. Patna High Court, The 11th of August,2011, AnilKrSinha/N.A.F.R. (Dharnidhar Jha,J.)