IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.716 OF 2007 CRIMINAL APPEAL NO.716 OF 2007 CRIMINAL APPEAL NO.716 OF 2007 IN IN IN SESSION CASE NO.87 OF 2007 SESSION CASE NO.87 OF 2007 SESSION CASE NO.87 OF 2007 Smt.Khushboo Rajesh Singh ) aged about 28 years, R/o Gate No.7) Squater Colony, Room No.354, ) Malad (West), Mumbai-400 095. )..Appellant Org.Accused no.1 Versus The State of Maharashtra ) through S.S.Branch, Mumbai )..Respondents ---- Mr.C.K.Talekar for the appellant. Smt.M.H.Mhatre APP for the Respondent/State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 27.08.2008. Judgment :- 1. This is an appeal filed by one Smt.Khushboo Rajesh Singh (hereinafter referred to as the "accused"). By this appeal, the accused impugns a judgment and order dated 19.7.2007 passed by the Adhoc Assistant Sessions Judge, Greater Bombay, in Sessions Case No.87 of 2007. By the impugned judgment and order, the trial Court has convicted the accused for an offence punishable under Section 4 of the Immoral Traffic (Prevention) Act, 1956 and on this count, he has sentenced her to suffer RI for 2 years and to pay a fine of Rs.1000/-, in default, to suffer SI for 3 months. She has been further : 2 : convicted for committing offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 and on this count, she has been sentenced to suffer RI for 4 years and to pay a fine of Rs.2000/-, in default to suffer SI for 6 months. It may be mentioned here that accused no.2 Rajesh Chotelal Singh (Thakur) who was the husband of accused no.1 was however, acquitted and accused no.3 Ganesh Thakur was shown as absconding and hence his trial was separated. 2. The brief facts of the prosecution case were as under :- (a) That PW-1 Manohar Premji Waghela worked for International Justice Mission. This organisation rescued minor girls from prostitution and initiates the action against the persons involved in prostitution with the help of the police. That in September-2006, organisation received information that the accused Khushboo and her husband were conducting the activity of involving the minor girls in the business of prostitution. Manohar Waghela (PW-1) therefore, contacted Rajesh Thakur on a telephone and requested him to supply some minor girls. Rajesh Thakur told him that he was doing the work alongwith his wife Khushboo and one Ganesh Thakur. He stated that his wife Khushboo will be accompanying the girls to the place as it appears : 3 : normal and nobody doubts the same. Manohar then contacted Khushboo on mobile phone and requested her to provide minor girls for the purpose of sex. She informed Manohar that she could furnish minor girls but the rate required to be paid was very high i.e. Rs.40,000/- per girl. Manohar accepted the proposal and one hotel by name Adi Ashray was agreed upon to be the place of meeting. (b) Manohar booked their 3 rooms in Adi Ashray hotel which is situated at Dahisar. The rooms were booked on 19.9.2006 for 21.9.2006 and the meeting was fixed on 21.9.2006. The rooms were booked in the name of a ficticious person. The number of the rooms were 102, 103, and 107 and an amount of Rs.1000/- was paid as an advance for the booking of these rooms. It was decided that PW-5 Lajras Barse who was at that time, also a member of the same organisation, would act as a bogus customer. (c) After making the booking of the hotel, Manohar and Lajras Barse PW-5 went to the Social Service Branch on 21.9.2006 and met Police Inspector Agarkar and informed him about the events. PI Agarkar decided to conduct the raid and two persons were summoned to act as panchas. The police took several blank papers of the size of a Rs.100/- currency note and prepared two bundles. One genuine currency note was kept at the top and one was kept at the bottom : 4 : of the bundle. These two bundles were given in the possession of Lajras Barse PW-5 and he was instructed to hand over these bundles to the person who brought the girls to the hotel. It was agreed that after bundles of notes were handed over, the bogus customer would go to another room alongwith one girl and then he should inform the police on mobile phone to enable them to conduct the raid. (d) PW-2 Dolly Singh was a young girl aged 17 years who had come to reside with her elder sister Sheetal. Her sister Sheetal was working as a waiter. She came to know that the accused Khushboo was residing in the locality. One of her sister was admitted in the hospital and she was in need of money. Dolly Singh met accused and told her that she can do any work. Accused Khushboo told her that she will have to accompany some persons to a hotel for doing wrong work. (e) PW-3 Latasha Vinodkumar Samant was yet another girl aged about 18 years. She was from Rajastan. She was working in the same bar where the present accused was also working as a bar girl. According to her on 21.9.2006 in the afternoon the accused asked her as to whether she would accompany her for lunch. It is the prosecution case that on 21.9.2006 in the afternoon the accused Khushboo, accompanied by PW-3 Latasha, PW-2 Dolly Singh and sister of : 5 : Dolly Singh by name Sheetal went to Adi Ashray hotel at Dahisar. In the hotel PW-1 Manohar, PW-5 Lajras Barse and male panch were sitting in room no.103. On meeting, these persons asked the accused whether the girls were aware about for what purpose they had come to the accused. Accused informed them that they knew that they had come for the purpose of sex. Out of the 3 girls, Lajras Barse took one girl to room no.107. He called the police and the police party alongwith panch came to room no.107. They caught the accused alongwith 2 girls who were in room no.103 and later on Latasha was taken into custody who was in room no.107. The bundles of notes as well as 2 mobile phones which were found in the possession of the accused were seized. Amount of Rs.1000/- which was allegedly paid as an advance was also seized from the counter. Police also took a zerox copy of the entry of the register to evidence the name of the person who had booked the room. Police then returned with the accused and the girls to the police station and FIR came to be lodged by PW-1 Manohar Waghela. Investigation commenced and in due course charge-sheet came to be filed. 3. At the stage of the trial, prosecution examined 8 witnesses to prove its case. Reference to most of the important witnesses have already been made by me here-in-above. There was no defence evidence. From : 6 : the cross-examination of the accused and 313 statement, it appears to be the case of the defence that they were framed by Mr.Manohar to extract money. It was also defence that the husband of the accused has published some articles against the police and it is for this reason, a false case was made out against them. 4. After hearing both sides and on perusing the record, I am of the view that in the facts of the case, conviction under Section 5 of the Immoral Traffic (Prevention) Act, 1956 cannot be sustained but conviction under Section 4 needs to be upheld. On the factum of the raid, there is consistent evidence of PW-1 Manohar Waghela, PW-4 Shankar Kamble, PW-5 Lajras Barse and PW-8 Hanumant K.Mulik, Police officer. Some attempt was made on behalf of the defence to show that their evidence was fabricated but I do not find much in the cross-examination of these witnesses to discard their evidence in toto. It was contended on behalf of the defence that amount of Rs.1000/- could never be seized by the police at the time of the raid as the advance was paid two days back. The argument is pausible but it is not necessary that the two notes of Rs.500/- seized were the same notes which were given at the time of booking. It is quite possible that police must have seized an equivalent amount on the day of the raid. It was contended that nobody : 7 : would accept the bundles containing 400 notes where 398 were just plain papers. It must be remembered that the bundles were only handed over to the present accused who was immediately accosted. The factum of the accused going to the hotel alongwith three girls is also supported by the victim PW-3 Latasha Samant and there is no reason to dis-card her evidence. Once it is accepted that accused had in fact accompanied the girls to the hotel then there is no reason to discard the evidence relating to the raid and the seizure of notes from the person of the present accused. 5. The question however, remains as to the nature of the offence. Sections 4 & 5 of the Immoral Traffic (Prevention) Act, 1956 are in the following terms :- "4. Punishment for living on the earnings of prostitution- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with : 8 : imprisonment for a term of not less than seven years and not more than ten years] (2) Where any person over the age of eighteen years is proved - (a) to be living with, or to be habitually in the company of, a prostitute ; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section(1)] ; 5. Procuring, inducing or taking [person] for the sake of prostitution- (1) Any person who - (a) procures or attempts to procure a [person], whether with or without [his] : 9 : consent, for the purpose of prostitution ; or (b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel ; or (c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or (d) causes or induces a [person] to carry on prostitution ; [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years. 6. It can be seen that under Section 5 what is : 10 : required is procurement, inducement or taking. All these actions necessarily indicate some initiative from the accused person. In the present case it can be seen that Latasha has not supported the prosecution at all. She turned hostile. Her version was accused had invited her only for a lunch. The evidence of Dolly Singh is however, in the following words :- " My sister was admitted in the hospital. I was in need of the money. I met accused Khushabu. I told Khushabu that I can do any work. She told me that I will have to accompany some persons. I agreed as I was in dire need of money. She informed me that I will have to accompany the person to a hotel for a wrong thing." . From the above evidence it appears that it was Dolly Singh who went and met the accused. The accused had not taken any initiative whatsoever to procure the presence of Dolly Singh. The evidence of Dolly Singh indicates that her elder sister Sheetal also went with her to the hotel. In her cross-examination she further stated that she had taken the accused to the hotel because she was not knowing the hotel. The trial Court has held that all girls were majors. This finding was based on the fact that there could be error in fixation of : 11 : age by an ossification test and other documents to evidence age were not produced by the prosecution. It does appear from the facts of this case that the entire initiative was taken by the victim. In the peculiar facts situation of this case, it would be dangerous to sustain conviction under Section 5 of the Immoral Traffic (Prevention) Act, 1956 as it appears that the act of the accused was only to make a suggestion, on being approached by Dolly Singh. It is clear from the evidence that it was Dolly Singh who took the entire initiative and first approached and propositioned the accused. In these circumstances, in the peculiar facts situation of this case, I feel that it would be dangerous to sustain conviction of the accused for an offence under Section 5 of the Immoral Traffic (Prevention) Act, 1956. 7. In so far as section 4 of the Immoral Traffic (Prevention) Act, 1956 is concerned, it is clear from the evidence that after accompanying the girls the accused accepted money as consideration for sexual services of the girls. She can therefore, be said to be acting as a tout or pimp on behalf of the prostitute. The conviction under Section 4 can therefore, safely be confirmed on the basis of the evidence led by the prosecution. The conviction under Section 4 is therefore, sustained. : 12 : 8. On the question of sentence it appears from the record that there is no previous offence registered against the accused Khushboo. The evidence of Latasha indicates that she was working in the same bar with the accused. The accused was only 25 years of age at the relevant time. It appears that this entire episode has occurred on the initiative taken by PW-2 Dolly Singh. I am informed that she has already undergone about 1 year and 2 months of her total sentence. It is seen that the maximum sentence is of 2 years. Though the trial Court has sentenced her for 2 years, I feel that this being the first instance, it may not be a fit case for imposing a maximum sentence and the sentence has to be modified. 9. In the net result the following order is passed O R D E R (A) Appeal is partly allowed. (B) The conviction and sentence of the accused under Section 5 of the Immoral Traffic (Prevention) Act, 1956 is quashed and set aside ; (C) The conviction and sentence of the accused under Section 4 of the Immoral Traffic (Prevention) Act, 1956 is however, sustained. The sentence is : 13 : however, reduced and it is directed that on this count that she will suffer rigorous imprisonment for one year and 6 months and will pay a fine of Rs.1000/- in default, she will suffer simple imprisonment for a period of 3 months. The fine if any, paid for the offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 will be adjusted and if there is any balance, the same has to be refunded. (D) The accused will be entitled to set off of the imprisonment already undergone. . Appeal stands disposed off accordingly. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J) : 14 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.716 OF 2007 CRIMINAL APPEAL NO.716 OF 2007 CRIMINAL APPEAL NO.716 OF 2007 IN IN IN SESSION CASE NO.87 OF 2007 SESSION CASE NO.87 OF 2007 SESSION CASE NO.87 OF 2007 Smt.Khushboo Rajesh Singh ).. Appellant Org.Accused no.1 Versus The State of Maharashtra )..Respondent ---- Mr.C.K.Talekar for the appellant. Smt.M.H.Mhatre APP for the Respondent/State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 27.08.2008. Operative part :- . For the reasons separately recorded in the judgment, I proceed to pass the following order :- O R D E R (A) Appeal is partly allowed. (B) The conviction and sentence of the accused under Section 5 of the Immoral Traffic (Prevention) Act, 1956 is quashed and set aside ; (C) The conviction and sentence of the accused under Section 4 of the Immoral Traffic (Prevention) : 15 : Act, 1956 is however, sustained. The sentence is however, reduced and it is directed that on this count that she will suffer rigorous imprisonment for one year and 6 months and will pay a fine of Rs.1000/- in default, she will suffer simple imprisonment for a period of 3 months. The fine if any, paid for the offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 will be adjusted and if there is any balance, the same has to be refunded. (D) The accused will be entitled to set off of the imprisonment already undergone. . Appeal stands disposed off accordingly. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)