1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 457 of 2005. Shakila Gulam Rasul Mukhi, age 42 years, Muslim, adult, resident of room No. 537, Chawl No. 67, Motilal Nagar No.1, Goregaon (West), Mumbai at present Yerwada Central Prison. .. Appellant/Original Accused No.1. Versus. The State of Maharashtra at the instance of Goregaon Police Station Vide C.R.No. 382/02. .. Respondent. Mr Ashish Barasekar, Advocate i/b Lalla and Lalla for the Appellant. Mrs M.H. Mhatre, A.P.P., for the State. CORAM : A.R. JOSHI,J. DATED : 2ND MAY,2009. ORAL JUDGMENT: 1.In the present appeal, original accused no.1 – ( hereinafter referred to as “the appellant” ) has challenged her sentence of conviction for the offence punishable under Sections 368, 373, 327 of the Indian Penal Code and punishable under Sections 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as the “the said Act” for short). The impugned judgment and order came to be 2 passed by the learned Additional Sessions Judge, Greater Bombay on 6.8.2004 in Sessions Case No. 1122 of 2002. In the said Sessions Case total six accused persons were put to trial including the appellant. 2. At the threshold, it must be mentioned that original accused no.4 has preferred a separate appeal and it was independently heard and disposed of by the another Bench. The said appeal has been dismissed. Accused no.4 was found guilty for the offences for which he was charged, However, the quantum of sentence was reduced to which he has already undergone. So far as original accused nos. 2, 3, and 5 are concerned, they were acquitted of all the charges except the charge for the offence under Section 6 of the said Act. 3. In the present appeal, this Court is concerned with the sentence of the appellant for the offence under Section 368 of the I.P.C., under which she was sentenced to suffer R.I., for 3 years and fine of Rs. 1,000/- in default for one month. Under Section 373 she was sentenced to suffer R.I.,for ten years and fine of Rs. 2,000/- in default R.I., for two months. Under Section 327 of the I.P.C., she was sentenced to suffer R.I.,for ten years and fine of Rs. 2,000/- in default R.I.for one month. For the offence under Section 4 of the said Act, the appellant was sentenced to suffer R.I.,for two years. Further, for the offence under Sections 5 and 6 of the Act, the appellant was sentenced to suffer 3 R.I.for seven years and fine of Rs. 2,000/- on each count. 4. Being aggrieved by the above judgment and order and sentence of imprisonment, dated 6.8.2004, the present appeal came to be filed by the appellant-accused no.1. 5. Heard rival submissions at length on previous date and also today. 6. Perused the evidence led before the learned Additional Sessions Judge, Greater Bombay ( “the Trial Court” for short). 7. The substantive evidence of the prosecution consists of six witnesses i.e. P.W.1 Dr. Dound, who examined the prosecutrix girl, P.W.2. P.W.3 is a Special Executive Officer who conducted test identification parade. P.W.4 is the witness who assisted P.W.2 to lodge a complaint with the police. P.W.5 is the panch witness, concerning house search panchnama of the present appellant (accused no.1) conducted on 26.8.2002. P.W. 6 is the I.O.,who carried the investigation. 8. Before appreciating the rival arguments, the case of the prosecution can be narrated, in a nutshell, as under: 9. The victim girl P.W.2 Sofia had a quarrel with her sister's son. Therefore, she had left house from her native place and came to Mumbai by train and travelled without ticket. She got 4 alighted at Andheri railway station, and allegedly met with accused no.4 who on the pretext of helping the said girl, took her to Goregaon at the house of the appellant. There for two days she was asked to work as maid servant. Thereafter, she was forced and compelled to indulge in the prostitution and immoral trafficking by the appellant with active connivance of accused Nos. 2, 3 and 5. She was confined in the premises of accused no.1 at Goregaon for about two months and also she was subjected to assault. In short, she was kept in the brothel run by the appellant and was forced to be a prostitute. After about two months, on the pretext of taking the clothes for washing, the victim left the house and could escape from the brothel and met P.W.4 who assisted her and subsequently she lodged complaint with Goregaon Police Station. After registering the crime on the basis of complaint lodged by the victim girl, investigation started. Accused Nos. 1 to 3 were arrested from the said brothel. Lateron accused Nos. 4 and 5 were also arrested. Spot panchnama was prepared at the brothel, which is the house search panchnama of accused no.1. It was conducted on 22.8.2002. Admittedly, from the same date, appellant accused no.1 is in jail till today. 10. On completion of investigation charge sheet was filed and requisite charges were framed and after considering the substantive evidence of P.W.1 5 to 6 and considering mainly the evidence of P.W.no.2 the impugned judgment and order came to be passed. 11. The learned counsel appearing on behalf of the appellant-accused no.1 is that the story of the prosecution as to the victim girl coming from her native place by train and alighting at Andheri Railway Station and meeting accused No.4 does not stand to reason and appears to be concocted. It is further submitted that during the medical examination of the girl conducted by Dr. Dound P.W.1 did not show that she had sustained any injuries on her person, though allegedly it is her case that she was subjected to physical torture and also the sexual assault; and more so, when according to her story, she is of the age of 13 to 14 years. The age of such victim is in fact fortified by the substantive evidence of P.W.1. On the other hand, learned A.P.P. appearing for the State argued that not finding any injuries of assault on the person of the victim girl is not of much significance, as in fact, her examination was conducted after two months of her stay at the house of accused no.1 and that only after she could managed to escape and lodged the complaint, her medical examination was conducted. Evidence of P.W.no.1 and the medical report specifically show that said girl was subjected to sexual intercourse, in asmuch as hymen was ruptured and that her age was hardly 13 to 14 6 years. In the opinion of this Court, considering such medical evidence as to subjecting said girl to sexual intercourse is of much significance, than not finding any other assault injuries on her person. 12. Another argument advanced on behalf of the appellant is that there is nothing in the substantive evidence of P.W.2 that she took the police party to the house of accused no.1 and there is nothing to suggest how the house of accused no.1 could be traced by the police. On this aspect, again the substantive evidence of P.W.2 is required to be construed. Her first information report is at Exh.18 and that she had given the details regarding the sexual assault on her during the period she was staying at the house of accused no.1. Thirdly, it is argued that it is doubtful whether P.W.4 had really assisted P.W.2 victim girl and how she could find out and met P.W.4 when she allegedly came out of brothel of accused no.1. It is further argued that instead of seeking any police help, it is doubtful that she goes to the local news channel office. By pointing out such circumstance it is tried to argue that a possibility of false involvement of the accused persons and mainly accused no.1 cannot be ruled out and such false involvement could be taken at the hands of some local news channel in order to have a scoop and to get commercial benefit out of alleged story. 7 13. On careful scrutiny of the substantive evidence of the prosecutrix, hardly it can be said that for even preponderence of probability that there was such a intricate concoction of the story involving five accused persons and in which story of the prosecution reveals that for about two months a girl was kept in the brothel and subjected to sexual assault and forced her into prostitution. 14. It is also argued on behalf of the appellant that substantive evidence of P.W.5 regarding house search panchnama of accused no.1 on 22.8.2002 did not reveal anything as to the actual commission of offences for which the appellant was convicted. In fact, in the opinion of this Court, considering the allegations and the offences levelled against the appellant and other co-accused, hardly there could be any material available for substantiating such offence except the version of P.W.no.2 i.e., the victim girl and report of her medical examination. Another factual position cannot be lost sight of that the alleged sexual assault and torture and compelling her to prostitution occurred for about two months and when the victim found chance to escape then only such situation came to light and in fact it was the activity going on from the house of the appellant and as such whatever might be the evidence by way of any objects to be found at such place could have 8 been destroyed and taken care of. All the same, in the opinion of this Court, not finding any incriminating things in the house search panchnama cannot be taken as a circumstance mitigating to the case of the prosecution. 15. It is also argued that according to the case of victim she was given cold drink which was laced with drugs and allegedly for the first occasion she was compelled to forcible sexual intercourse with two customers. However, there is nothing brought before the Court that what was such cold drink which was laced with drugs and how the said incident occurred. On this aspect it is submitted on behalf of the State that such alleged incident occurred within two days when she was staying in the house of the appellant on the pretext that she was to work in the house as maid servant and in fact complaint came to be lodged after two months and as such there could hardly be any trace of such evidence as to any addition of laced drugs substance being administered to the victim. In the absence of any such evidence, it cannot be treated as mitigating circumstance to the case of the prosecution. 16. Considering the substantive evidence of mainly the victim girl P.W.2, it must be said that the prosecution has reached to that standard of proof which is required to prove the guilt beyond 9 reasonable doubt and hence defences putforth on behalf of the appellant cannot be accepted. In the result, there is nothing to interfere with the impugned judgment and order so far as the conviction and sentence of the appellant is concerned and as such the present appeal must fail. 17. In the above view of the matter, the appeal is dismissed and disposed of accordingly. Sd/- (A.R. JOSHI,J)