1 286.11 Cri.Appeal IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 286 OF 2011 Umesh S/o Kaduba Kathar, Age 23 years, Occu. R/o Rajabazar, Aurangabad. APPELLANT VERSUS The State of Maharashtra RESPONDENT ..... Shri H.F. Pawar, Advocate for the appellant Shri B.J. Sonwane, APP for the respondent / State ..... CORAM : U.D. SALVI, J. DATED : 12 th & 14 th October, 2011. ORAL JUDGEMENT : 1. This is an appeal challenging the judgment and order passed by the learned Additional Sessions Judge, 9th, Aurangabad, in Sessions Case No. 142/2010 for recording the conviction of the appellant/ accused No. 3, under Sections 366-A read with Section 34 of Indian Penal Code, 1860 and 354 of Indian Penal Code, 1860, on 13-05-2011. Two others were also convicted for the commission of offence punishable under Section 366-A read with Section 34 of 2 286.11 Cri.Appeal Indian Penal Code, 1860 along with the appellant/ accused. The appellant/ accused has been sentenced to suffer R.I. for three years and to pay fine of Rs. 5,000/-, in default to suffer further R.I. for six months upon his conviction under Section 366-A read with Section 34 of Indian Penal Code, 1860. Sentence of one year R.I. has also been imposed on the appellant/ accused No. 3 for the commission of offence punishable under Section 354 of Indian Penal Code, 1860. Sentences on both the counts have been ordered to run concurrently. 2. At the outset, the appellant gave up challenge to his conviction for the offence punishable under Section 354 of Indian Penal Code, 1860, and chose to question the sagacity of the learned trial Court in recording his conviction for the commission of offence punishable under Section 366-A read with Section 34 of Indian Penal Code, 1860. 3. It is not in dispute that the prosecutrix lodged complaint dated 02-02-2010 with City Chowk Police Station, Aurangabad, following her interception in company of the 3 286.11 Cri.Appeal accused No. 2 Amrut Patil and the appellant/ accused by the police, while they were returning on motorcycle from Girja Function hall at Aurangabad. According to the prosecution, the prosecutrix made a grievance that taking advantage of her poverty, the accused No. 1, Radha Wani induced her to join flesh trade and for that purpose she had one sitting at the residence of the accused No. 1 Radha Wani situated at Rajabazar, in Navratri of 2009 and accused No. 1 Radha wani was residing with two daughters, one son and accused No. 2 Amrut Patil. She further told the police that on 2nd day of Diwali of 2009, accused No. 2, Amrut Patil for the first time took her on motorcycle around 9.00 p.m. to one house situated, at Garkheda, Shivaji Nagar, where she entertained seven customers and accused No. 2, Amrut Pail earned Rs. 1500/- and gave Rs. 500/- there from to her. She further disclosed the facts concerning her indulgence in prostitution in the house of accused No. 1, Radha Wani and premises of one Prakash Tilwa in State of Gujrat. 4. As regards the appellant/ accused, Umesh Kathar she disclosed that one customer gave call on the telephone 4 286.11 Cri.Appeal of the accused No. 2, Amrut Patil around 8.30 p.m. on 01-02-2010, while she was at the residence of accused No. 1, Radha Wani, and thereafter, she, accused No. 2, Amrut Patil and appellant/ accused Umesh Kathar moved to Girija function hall, Bansilal Nagar, Aurangabad on ‘Passion’ motorcycle bearing registration No. MH-12/DX-8027, and the appellant/ accused and accused No. 2- Amrut Patil waited down stairs and she accompanied by three customers went to a room on the upper floor of Girja function hall, where three customers had physical relations with her. She added that when they were returning to Rajabazar around 11.30 p.m – 11.45 p.m., they purchased Biryani at Kranti Chowk and proceeded to Rajabazar, and she shouted at the appellant/ accused, Umesh Kathar as he misbehaved with her on the motorcycle; and thereupon the police had intercepted them. In her evidence before the trial Court PW-3-prosecutrix gave her age as 17 years having been born on 08-10-1992, and revealed that Radha Wani had induced her to join the flesh trade with a statement that even if she is not mature it makes no difference in sexual intercourse. The place of making this inducement can only be read from it’s prelude revealed in 5 286.11 Cri.Appeal the testimony of the prosecutrix. The prosecutrix deposed that due to leaving of her parents for the village she was not having any means for satisfying her daily needs; and about that time Radha Wani met her and asked her to come to her whenever she was in need of money; and therefore, 2-3 times she had gone to Radha Wani to receive kerosene. She further added in her testimony that the accused No. 2, Amrut Patil, his daughter, brother-Umesh Kathar (appellant/ accused) were residing in the house of Radha Wani. As regards the very incident she deposed that on 1st March Radha Wani sent her to a function hall at Bansilal Nagar on a motorcycle; along with the appellant/ accused No. 2- Amrut Patil and Umesh Kathar (appellant/ accused), where three persons had sexual intercourse with her. She further deposed that they had consumed liquor, and after she came down from the function hall at about 10.30 p.m. the appellant /accused No. 2, Amrut Patil riding the motorcycle took her sitted between him and the appellant/ accused Umesh Kathar. 6 286.11 Cri.Appeal 5. The learned Advocate Shri H.M. Pawar for the appellant/ accused submitted that the only evidence material for deciding the culpability of the appellant/ accused is that of the prosecutrix. The respondent/ State conceded to this fact, Referring to the evidence of the prosecutrix, learned Advocate Shri H.F. Pawar for the appellant/ accused submitted that except the act of providing transport to the prosecutrix to and fro from Girja function hall at material time, there is nothing that can be attributed to the appellant/ accused. According to him, the prosecution ought to have led the evidence regarding the act of inducement of the prosecutrix a minor to move from one place to another or to do any act with intention that such prosecutrix may be, or knowing that it is likely that she will be forced or seduced to have illicit intercourse with another person. According to him, there is no such evidence, and therefore, the learned trial Court ought to have acquitted the appellant/ accused of the offence punishable under Section 366-A read with Section 34 of Indian Penal Code, 1860. 7 286.11 Cri.Appeal 6. The learned APP Shri B.J. Sonwane for the State, submitted that there was evidence of the appellant/ accused residing with the accused No. 1 Radha Wani at the place where the prosecutrix was induced to join flesh trade, and as such the learned trial Court had rightly convicted the appellant/ accused for the crime under Section 366-A of Indian Penal Code, 1860, by invoking the element of common intention in Section 34 of Indian Penal Code, 1860. According to him, without such common intention the appellant/ accused could not have taken the prosecutrix to Girja function hall for engaging herself in prostitution. 7. The evidence of PW-3-prosecutrix reveals that she was indulging in prostitution since long before the incident. Her cross-examination reveals that nobody forced her for adopting the business of flesh trade and nobody had detained her any time, since the time of leaving her parents’ house till lodging of complaint, and she could go anywhere as per her wish. She testified in her cross-examination that she was aware of the immoral acts she was doing. In her testimony there is nothing to suggest that she was induced to join the 8 286.11 Cri.Appeal flesh trade in presence of appellant/ accused. In such situation, it is hard to attribute culpability to the appellant/ accused under Section 366-A of Indian Penal Code, 1860 read in conjunction with Section 34 of Indian Penal Code, 1860. 8. The Hon’ble Apex Court in the case of Ramesh (Ramesh V. State of Maharashtra; reported in 1962 S.C. 1908) made the following observations which can be beneficially used in the present case; “ There are three principal ingredent’s of the offence contemplated by S. 366-A: (a) that a minor girl below the age of 18 years is induced by the accused; (b) that she is induced to go from any place or to do any act, and (c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or to seduced to illicit intercourse with another person. A person merely accompanied woman going out to ply her profession of prostitute, even if she has not attained age of eighteen years, does not thereby commit an offence under S. 366-A. It cannot be said that thereby he induces her to go from any place or to do any 9 286.11 Cri.Appeal act with the intent or knowledge contemplated by the section.” 9. In the instant case the act attributed to the appellant/ accused is of taking prosecutrix to Girija function hall at about 12.30 mid night on 02-12-2010, where there were three customers. Learned trial Court surmised to hold the appellant/ accused guilty of the offence under Section 366-A read with Section 34 of Indian Penal Code, 1860 in the following terms: “ It is true that the role of accused No. 3 appears in the incident of taking prosecutrix to function hall. However, accused No. 3 is the brother of Radha Wani and he took prosecutrix to Girija Function Hall. So he must be knowing about the activities of Radha Wani and Amrut Patil and knowing that illegal activities, took part in those illegal activities. So he cannot be exonerated on the ground that this is an isolated act because Section 366-A does not require that the act must be repeated and continuous. So prosecution established that accused No. 1 to 3 have committed the offence under Section 366-A of the Indian Penal Code.” The learned trial Court erred in attributing culpable knowledge to the appellant with his imagination and filled the 10 286.11 Cri.Appeal gaps in the prosecution evidence, which he ought not to have done. The appeal must therefore, succeed. 10. The appeal is partly allowed. Having not pressed the appeal against the conviction and sentence for the offence punishable under Section 354 of Indian Penal Code, 1860, the appeal in that regard stands dismissed, and the conviction and sentence recorded by the learned trial Court on that count is maintained. The appellant/ accused Umesh Kaduba Kathar, is acquitted of the offence punishable under Section 366-A read with 34 of Indian Penal Code, 1860, and is ordered to be set at liberty unless required in any other case. ( U.D. SALVI, J. ) SDM* October-11