1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1055 OF 2004 WITH CRIMINAL APPEAL NO. 1097 OF 2004 CRIMINAL APPEAL NO. 1055 OF 2004 Smt. Narmada Govind Kamble ) Aged about 40 years ) Residing at Room No.2/3, Plumber Chawl, ) P.B.Marg, Mumbai 400 004. ) At present in Jail. ).. Appellant Versus The State of Maharashtra ... ) (At the instance of V.P.Road Police Station ) vide their C.R.No.215/02). ).. Respondent WITH CRIMINAL APPEAL NO. 1097 OF 2004 1) Ambadas Yashwant Gaikwad ) residing at Sangameshwar Nagar ) Akkalcot Road, Tal. Solapur. ) District – Solapur. Age 35 years. ) in jail at Yerwada Central Divi Pune).) 2) Sunita Prabhakar Kale ) residing at Sangameshwar Nagar ) Akkalcot Road, Tal. Solapur. ) District Solaur Age 38 years, ) (In Jail at Yerwada Central Divi. Pune)..Appellants (Orig.Accused Nos. 2 & 3) Versus 2 The State of Maharashtra ) (At the instance of V.P.Road Police ) Station vide their C.R.No.215/02). ).. Respondents. Shri P.R.Dave, Advocate, for the appellant. Smt. R.V.Newton, APP, for the State. CORAM: J.H.BHATIA, J. DATE : 3rd December, 2009. ORAL JUDGMENT: 1. Both these Appeals arise out of the common Judgment passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.864 of 2002. 2. Appeal No.1055 of 2004 is filed by the original accused No.1, who was convicted for the offence punishable under Sections, 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1966 (PITA) and under Sections 373 and 368 of the Indian Penal Code. For the offence punishable under Section 3 of PITA, she was awarded sentence of rigorous imprisonment for three years with fine of Rs.1,000/-, while for each of the remaining charges, she was sentenced to undergo R.I. For ten years and to pay fine of Rs.1,000/-. Criminal Appeal No. 1097 of 2004 is filed by original accused No.2 Ambadas, who was convicted for 3 the offence punishable under Section 366A read with Section 34 I.P.C., Section 372 of I.P.C. and under Section 5 of PITA and was sentenced to undergo R.I. For ten years and to pay fine of Rs.1,000/- on each count. Accused No.3 was convicted for the offences punishable under Section 366A and Section 5 of PITA read with Section 34 of I.P.C. and was sentenced to undergo R.I. for ten years and to pay fine of Rs.1,000/- on each count. 3. The prosecution case, in brief, is that on 3.5.2002, Simon George Pillai (P.W.5), who was working for International Justice Mission, an NGO, reported at the V.P.Road Police Station that accused No.1 – Narmada Kamble was running a brothel in Shantabai Chawl and a girl Vaishali Ghodake, who was previously rescued from the very brothel, was again working as a prostitute in the same brothel and that she was a minor girl. He reported that as per the information collected by him, two girls were kept in that brothel for carrying on the prostitution. On the basis of the report lodged by him, PW.6 – ACP Suresh Jadhav along with police party raided the room of the accused No.1 Narmada in the said Shantabai Chawl at about 1.30 a.m. The room was shown to police party and panchas by P.W.5. On entering the room, it was found that there were two cots lying in the room separated by a curtain between the two. Two girls viz. Vaishali Ghodake and Renuka Basavaraj Swami Hiremath were sitting in the room 4 with full make-up on their persons. On enquiry with the girls, ACP Suresh Jadhav (PW.6) was satisfied that both the girls were minor and he took them in custody under a panchnama. After medical examination, the girls were referred to rescue home known as. “Kasturba Mahila Wastigarh”, Deonar. Vashali was the same girl, who was previously also rescued from the said brothel and her age was about 15 – 16 years, while Renuka was found to be aged 17 to 18 years. Both were found to be accustomed to sex. The present case is restricted to P.W.1 Renuka alone. Initially, she had made a statement before the police that she was voluntarily in the prostitution. However, after she had settled in the rescue home, she informed P.W.3 Niru Sharma, the Probation Officer, who was in charge of that rescue home, that one Sunita, accused No.3, had allured her to go to Mumbai where she could get about Rs.2,000/- per month for the domestic work, but she had advised Renuka not to disclose to her mother that she was going to Mumbai. As per her advice, she went to Tuljapur Naka at Solapur, where Sunil, son of accused No.3 Sunita and one Ambadas, who is accused No.2, were present. Sunil explained that his mother i.e. accused No.3 Sunita was indisposed and she would be coming to Mumbai after two days. After that talk, accused No.2 Ambadas put Renuka in a truck and he also accompanied her in the said truck and they had reached Mumbai at about 3 p.m. That was the incident which had taken place about 5 to 6 months prior to the police raid.. According to her, after 5 reaching at Mumbai, she was taken from Dadar to a hotel in Bombay Central where accused No.2 Ambadas told her that he would contact the people, who were to employ her, by telephone and saying so, he left the hotel. After sometime, accused No.2 Ambadas, accompanied by one more person, came back by taxi and then they took her to Bhendi Bazar by taxi. Finally, she was taken to a house, where one old lady was present. Ambadas, Renuka and that old lady were present in the room for some time. She was given food by that old lady. Within a short time, accused No.1 Narmada came there and she straightaway told Renuka that she did not require any maid servant, but she would have to do prostitution. Accused No.1 Narmada took her to another room, where already two more girls viz. Juile and Vakishali were present. They asked Renuka to take bath and to change her clothes. Then some make-up was put on her by some beautician and accused No.1 Narmada told her to go out from the room and stand and make signs to invite the customers. According to her, she was frightened, but she was forced into the prostitution by accused No.1. Initially, when she protested, the accused No.1 Narmada told her that she had paid Rs.10,000/- to accused Ambadas and for that consideration he had sold Renuka to her. She also informed that she was forced to indulge in prostitution and everyday some customers were brought to her by accused No.1 Narmada. On the basis of this information given by P.W.1 Renuka, P.W.3 – Niru Sharma, Probation Officer 6 prepared a written statement and obtained thumb mark of P.W.1 Renuka. That written statement was submitted at the V.P. Road Police Station on 20.7.2002 by P.W.5 Simon . On interrogation by police, she verified that the said written statement was correct. After the investigation, the police filed charge-sheet against in all five persons. Accused Nos. 4 and 5 were implicated on the ground that they had knowingly provided the accommodation to accused No.1 Narmada for carrying on the business of prostitution. All the five accused persons were put to trial. However, accused Nos. 4 and 5 were acquitted for want of sufficient evidence to connect them with this incident or with the business of prostitution, but accused Nos. 1, 2 and 3 were convicted and sentenced as stated above. 4 Mr. Dave, learned Counsel appearing for all the appellants, vehemently contended that the prosecution evidence is not sufficient to prove any offence. As per the initial stand of P.W.1 Renuka, she was aged about 20 years and she was in the prostitution voluntarily. She took about 75 days to make a statement implicating accused Nos. 1, 2 and 3 in this offence. He contended that her statement was never recorded by the police after her written statement was submitted to the police by P.W.5. No independent witness was examined to find any corroboration to her testimony. In view of the information which she had given at the time of her medical examination, she was not minor and therefore 7 charges under Sections 366-A, 368, 372 and 373 I.P.C. could not stand. The learned Counsel contended that P.W.5 Simon was working for an NGO based in U.S. and was getting funds from that country and just to show that he was doing some work, he must have created this false case with the help of P.W.3 Niru Sharma. He further contended that as far as the accused No.3 – Sunita is concerned, there is no evidence that she had actually sold Renuka or that she had conspired with accused No.2 Ambadas to sell her. He also contended that for want of corroboration to the testimony of Renuka and due to long delay in her statement against the accused after the raid, she could not be relied upon. He further contended that the trial court committed serious error in awarding the maximum sentence prescribed under the law for each of the charges. 5. On the other hand, Mrs. Newton, the learned APP strongly supported the conviction as well as sentence awarded by the trial Court. 6. To prove the offence and to bring home the guilt to the accused, the prosecution examined in all 8 witnesses and placed on record several documents. In her evidence, P.W.1 Renuka supported the prosecution story fully. Her evidence shows that she belongs to Solapur District and she was residing there with mother, father, two brothers and one sister. She was working as a maid 8 servant and earning Rs.800/- per month. Accused No.3 – Sunita happened to be a friend of her mother. Accused no.3 Sunita told her that in Mumbai one could earn upto Rs.2,000/- for domestic work. After having said so, accused No.3 – Sunita told P.W.1 Renuka that she should not tell her mother that she was going to Mumbai. Accused No.3 Sunita asked Renuka to come to Tuljapur Naka on the next day. Accordingly, P.W.1 Renuka went there and was waiting for Sunita. Within a short time, Sunil, son of Sunita and the accused No.2 Ambadas came there. She asked Sunil as to why her mother had not come and he explained that she was indisposed and that she would come to Mumbai after two days. After that accused No.2 Ambadas took Renuka in a truck and also accompanied her and took her to Mumbai. Her evidence shows that she reached Mumbai at 3 p.m. and initially from Dadar, she was taken to a hotel at Bombay Central. There accused No.2 Ambadas told her that he would contact on phone some people who was to employ her and saying so, he left the hotel. Within a short time, he came back by taxi along with one more person and then they took her to Bhendi Bazar by taxi. She narrated the whole story that initially one old woman was present in the room. She served her food. Within a short time, accused No.1 Narmada came there and she clearly told Renuka that she would not get any work as a maid servant, but would have to do prostitution. Saying so, accused no.1 Narmada took her to another room where already two girls Juile and Vaishali were present. 9 They asked her to take bath and change clothes. Thereafter some make up was put on her and accused No.1 Narmada asked her to stand outside and make signs to men to invite the customers. According to her, she was frightened, but was forced into prostitution. Accused No.1 – Narmada told her she had paid Rs. 10,000/- to accused No.2 Ambadas as price. She also deposed that Narmada used to collect money from the customers and she would keep a watch on her so that she could not leave the place and at times she also used to assault her and threaten her. According to her, almost everyday 5 – 6 customers were sent to her and she was required to entertain them. She deposed that whenever police would come to that place, she wouldl not be allowed to go out. She deposed that on 2nd May, at about 12 mid-night, police came to the room where she was detained. At that time, she was scared and did not give any information to the police. Then she was taken to Deonar. Later on, at the rescue home at Deonar, she told the real story and the facts to P.W.3 Niru Sharma, Probation Officer in charge of the rescue home and on that basis Niru Sharma prepared a report and obtained her thumb mark. 7. The evidence of P.W.5 Simon reveals that P.W.5 was working for an NGO i.e. International Justice Mission which was working for the rescue and rehabilitation of the women who were in the prostitution. As per his evidence, on 10 the previous occasion, on the information given by him, one minor girl Vaishali was rescued from the brothel run by accused No.1 Narmada at Shantabai Chawl. However, he had come to know that Vaishali had again returned to same brothel. After confirmation of that information, he went to V.P.Marg Police Station and lodged a report Ex.29. On the basis of that report, on 3.5.2002 at 1.15 a.m. Crime No.827/2002 was registered. On the basis of this report, P.W.6 ACP Suresh Jadhav along with PSI Pail, panch witnesses and P.W.5 Simon raided the premises of Narmada i.e.accused No.1 in Shantabai Chawl. When they went to the room, it was locked from inside. After some attempts, it was opened. When they entered into the room, two girls, who appeared to be minors, were found. They were scared and their names were disclosed as Vaishali and Renuka. Vaishali was the same girl who was rescued earlier about 3 months before and P.W.1 Renuka is the second girl who was found there. Both these girls were taken into custody under a panchnama Exhibit 27 which is proved by P.W.6 ACP Suresh Jadhav and P.W.4 Banubee who is a panch witness. It may be stated that P.W.4 Banubee resides just near the Police Station and it appears that whenever required by the Police, she would accompany them to act as a panch witness and for that she was paid. Therefore, it appears that she is a habitual and professional panch witness. Anyhow, taking into consideration the facts and circumstances of the case, much importance cannot be given to this aspect. It is impossible to find a 11 respectable woman to accompany police for raid on a brothel at midnight and it is possible that due to this reason, police had taken Banubee as a panch witness. Even though much importance is not given to evidence of Banubee, fact that Renuka and Vaishali were found in that room at about 1.30 a.m. on 3.5.2002 is proved not only by P.W.5 Simon and P.W.6 ACP Suresh Jadhav, but it was also proved by P.W.1 Renuka herself. There is no serious challenge to the prosecutin case that P.W.1 Renuka was found in the room at Shantabai Chawl on 3.5.2002 at about 1.30 a.m.and at the same time Vaishali Ghodake was also found there. There is no dispute that Renuka was also taken to medical officer for medical examination and thereafter she was taken to the rescue home at Deonar. 8. In the cross-examination of P.W.1 Renuka as well as P.W.7 PSI Arun 7atil, it was proved that on 3.5.2002 itself, statement of Renuka was recorded at the V.P. Marg Police Station and in that statement, she had disclosed her age to be 18 years and she had stated that because of poverty, voluntarily she was working as a prostitute to earn her livelihood and that nobody had forced her into prostitution. It appears that even though the offence was registered on the basis of the report lodged by P.W.5 Simon, in view of the statement made by P.W.1 Renuka before the police on that day, police did not take any action for quite some time. Only after the statement of Renuka was recorded and prepared by P.W.3 Niru 12 Sharma, Probation Officer and submitted at the Police Station on 20.7.2002, police made further investigation. P.W.3 Niru Sharma deposed that when Renuka was first brought to the shelter home in May 2002, she was in a very traumatic condition and subsequently after counseling, she got relaxed. On 18.7.2002, Renuka disclosed the facts and on the basis of that P.W.3 Niru Sharma recorded her statement. She prepared the statement in English and according to her, she explained the same to Renuka in Hindi and she confirmed that it was correctly recorded and then she put her thumb mark on the same. This statement was marked “X” for identification. According to her, she forwarded the said statement to the Child Welfare Committee, who in turn forwarded to V.P. Road Police Station. In that statement, the complete prosecution story is narrated. It may be noted that initially this document was given Exhibit 25. However, after hearing the learned Counsel for the parties, the trial Court de-exhibited the document on the ground that the real FIR was Exhibit 29 lodged by Simon on 3.5.2002 itself and this was only a statement submitted by Niru Sharma and could not be admitted in evidence. It is not necessary to enter into that question and the decision of the trial Court in this respect appears to be correct. 9. The learned Counsel for the accused-appellants vehemently contended that Niru Sharma had no right or power to record the statement of the 13 prosecutrix because that power is vested only in police. According to him, police had not recorded her statement and as per the evidence of P.W.8, PI Achutrao Yadav, he had only verified from Renuka that her statement was correctly recorded. It may be noted that in the evidence of P.W.8 Achutrao Yadav, no question was put to him whether he had not recorded the statement of renuka nor it was suggested to him that her statement was never recorded by police except on 3.5.2002. On perusal of the record, I find that along with the charge-sheet, the original statement of Renuka dated 3.5.2002 and her supplementary statement recorded on 20.7.2002 were submitted. In the supplementary statement, also she had repeated the story which was narrated in the statement recorded by Niru Sharma. Therefore, I find no substance in the contention of the learned Counsel that statement of Renuka was never recorded by the Police after 3.5.2002. 10. As far as delay in disclosing the facts is concerned,it appears from the record that Renuka was brought from Solapur to Mumbai sometime in December or January and for about 5 – 6 months, she was living in the brothel working as prostitute till 3.5.2002 when she was rescued by the police from the brothel of Shantabai Chawl. The admission of the Investigating Officer shows that during the investigation at Solapur, he did not find any missing report about 14 her. This indicates that even though she had left the house, her parents had not bothered even to lodge a missing report with police. It is difficult to imagine the reasons for not lodging such a report. It may be possible that her parents were also aware that she was being taken to Mumbai for the purpose of prostitution, though this fact may not have been disclosed to her. Fact remains that immediately after she was brought to Mumbai, she was taken to the brothel and her evidence shows that she was handed over by accused No.2 Ambadas to accused No.1 Narmada at the same brothel and accused No.1 Narmada had clearly told that she could not provide any work of maid servant, but she wouold be required to work as prostitute. From that day till she was rescued by police, she was working as prostitute. During that period, she must have been well washed not to disclose the true facts to Police. It could be because of the watch by the brothel-keeper or the other inmates or she might be under the influence of the circumstances in which she was put. The evidence of P.W. 5 Niru Sharma clearly shows that when Renuka was brought to the shelter home, she was in a traumatic condition and she opened up and disclosed the facts after she had settled due to counselling and frequent contacts with P.W.3 Niru Sharma. It is true that she did not disclose the facts immediately and she took a long period The learned Counsel for the appellants contended that in several authorities of the Supreme Court and the High Courts, because of delay in lodging the report of rape, the evidence 15 of prosecutrix was discarded or not relied upon and benefit of doubt was given to the accused. This is not a rape case in strict sense. She was put in the profession of prostitution and she was totally dependent on the accused no.1 when she was rescued by the police. It appears that her parents also did not bother about her after she had left the house. Therefore she could not believe that she would get shelter back at her parents’ house. Therefore, in such circumstances, merely because of the delay, her evidence cannot be discarded. 11. The next question is about her age. P.W.1 Renuka stated her age to be 16 years at the time of recording her evidence and according to her, she was aged about 14 years when she was brought to Mumbai. As noted earlier, initially, in her statement dated 3.5.2002, she had given her age to be 18 years. The evidence of P.W.2 Dr. Baburao Damawale, the Medical Officeer at the J.J.Hospital, reveals that on 6.5.2002, he was called to the Police Hospital Nagpada for emergency duty and on that day, he examined Vaishali Ghodake and Renuka Basavraj – P.W.1. She had disclosed that she was in the prostitution for 5 years voluntarily and that her age was about 20 years and she had attained menses about 8 or 9 years before. However, the medical officer on her physical examination and on the basis of Ossification test came to conclusion that her age was about 17 to 18 years. In the clinical examination, he found that her height 16 was of 4 ft. 11 inches, weight 40 kg., Public hair/axillary hair appear sub adult type and her breasts were sub adult type. In view of these findings and the ossification report it appears that the opinion of the medical officer about her age must be correct. It appears that initially she had not given true facts either before the police or the medical officer about herself. She had told the police that her age was 18 years, while before the medical officer, she told that she was 20 years old and she had attained menses about 8 to 9 years before. If that be so, her age could be more than 20 years. She told the doctor that she was in Mumbai and in the prostitution for about five years. This information was also wrong. For the reasons noted earlier, it appears that she had not given true facts either before the police or the medical officer and therefore, the information, recorded by the medical officer on the basis of what she had stated need not be relied upon. The medical officer opined that her age was 17 to 18 years. This takes care of margin of error also. Even if it is presumed that she was 18 years of age at that time, she was brought in the prostitution about 5 to 6 months before that and therefore it can be held that she was minor at the time when she was first put in the prostitution. 12. Taking into consideration the