1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.395 OF 2004 1. Mallika Raju Age-Adult, Residing at Room No.67/C-1 Nehru Nagar No.2, Sion Koliwada, Mumbai-37(at present in Thane Central Prison) 2. Sunita Thapa Age-Adult, Room No.14, Devidas Chawl No.5, Opp.Durgamata Mandir Tulshet Pada Pipeline, Bhandup, Mumbai-78.(at present in Yerawada Central Prison, Pune) ..Appellants. V/s. 1. The State of Maharashtra 2. Vijaya @ Menka Kounder 3. Seema @ Savita Devnath Bengali 4. Manju @ Onima Mihir Kavda. ..Respondents. Respondent Nos. 2, 3 & 4 to be served through Sr.Inspector of Police, Bhandup Police Station, Mumbai. Mr.S.V.Kotwal with Mr. M.S.Mohite for appellants. Mr.S.S.Tatkare, APP for Respondent-State. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : NOVEMBER 29, 2006. DATE : NOVEMBER 29, 2006. DATE : NOVEMBER 29, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This appeal by Accused Nos. 2 and 3 takes exception to the Judgment and Order passed by the Additional Sessions Judge, in the Court of Sessions, Greater Mumbai dated January 30, 2004 in Sessions Case No.865 of 2002. The appellants/accused Nos. 2 2 and 3 alongwith one more accused were tried for offence punishable under sections 373, 366A, 368 and 323 of I.P.Code as well as under sections 3 and 4 of Immoral Traffic Prevention Act(PITA). 2. The prosecution case, as per the FIR registered on 11th April, 2001, is that, on information received by PSI Shinde(P.W.10), the duty officer PI-Prasan Yogiraj More (P.W.4) attached to Bhandup Police Station alongwith lady constable went to Sonapur Bhandup for rescuing some girls allegedly engaged in carrying on prostitution in that area. It is stated that one Rekha Greateful attached to N.G.O. alongwith Mr. Khairnar, retired Deputy Commissioner of B.M.C. went to room No.1 Yamunabai Chawl at Sonapur. One Kamakshi Rajan Kounder told the raiding party that she be rescued from the profession of prostitution. Kamakshi, it is alleged, also told the raiding party that one girl Vijaya @ Menaka(P.W.1) Raja Kaunder, a minor was inside the room and also desired to be rescued. Vijaya(P.W.1) then pointed out to one Mallika an eunuch as the person who had confined the girls in her brothel. The said Mallika is accused No.2. Vijaya(P.W.1) also told that another eunuch was involved in this business. It is prosecution’s case that the raiding party received 3 information that near the said brothel there was another brothel where some more girls were trapped and confined for the purpose of prostitution. Accordingly, the raiding party went to that place and two minor girls were found on the spot, namely, Seema @ Kanahya Devnath Bangali(PW.2) and Manju @ Onima Mihir Kawda(P.W.3), who were in the custody of Sunita Kanchan Thapa-accused No.3. On the basis of the statement of Kamakshi Rajan Kounder recorded by PSI Vijay Shinde(P.W.10), FIR came to be registered being C.R.No.82 of 2001. The FIR records that the complainant Kamakshi Rajan Kounder while she was 15 years of age was purchased by Mumtaz Zakir Hussain-accused No.1. It is alleged in the said FIR that one Kumar and his wife from Tamil Nadu had brought Kamakshi Kounder by inducing her that she will be given job and brought her to Sonapur, Bhandup, Mumbai and sold her to the Accused No.1 Mumtaz, who in turn forced her to have intercourse with several unknown persons for the purpose of prostitution. This is the only case spelt out in the FIR. On the basis of this FIR, investigation commenced and eventually charge-sheet came to be filed against the three accused. As the accused pleaded not guilty to the charge, the trial proceeded. The trial Court framed following charges 4 against the accused. "I DR.LAXMI P. RAO do hereby charge you accused. 1. Mumtaz Zokie Hussain Shaikh. 2. Mallika Raju. 3. Sunita Kanchan Thapa. as under. FIRSTLY: That you accused No.1 purchased the (then) minor girl, Kamakshi Rahan Kounder aged 15 years at Room No.1 Yamunabai Chawl, Sonapur Bhandup(W), Mumbai for Rs.500 from one couple named Kumar and Selvi aged 55 years for immoral purpose and you have thereby committed offence punishable u/s. 373 IPC within my cognizance. SECONDLY: At the same place and during the same transaction, you accused No.1 compelled the kidnapped girl Kamakshi to commit illicit sexual intercourse against her wishes with other unknown men and you have thereby committed the offence punishable u/s 366 IPC. THIRDLY: You accused No.1 during the course of the same transaction as here in above were running a brothel at Room No.1 Mumbai Chawl, Sonapur, Bhandup(W), Mumbai and have thereby committed offence punishable u/s. 3 of the Immoral Traffic Prevention Act (P.I.T.A.) and within my cognizance. FORTHLY: You accused No.1 during the course of the same transaction as mentioned here in above were living on the earning of prostitution of the complainant and others and have thereby committed the offence punishable U/s.4 of the P.I.T.A. within my cognizance. FIFTHLY: During the course of the same transaction as here in above and at the same place as mentioned in charge here in above you accused No.1 had wrongfully concealed and kept in confinement an 5 offence punishable u/s. 368 IPC and within my cognizance. SIXTHLY: You accused No.1 were threatening and assaulting said Kamakshi physically and have voluntarily caused her hurt and thereby you have committed offence punishable u/s 323 IPC and within my cognizance. SEVENTHLY: You accused No.2 Mallika bought Vijaya @ Menka Raja Kaunder who was then a minor aged about 14 years from a lady named Laxmi (wanted accused) at Room No.1 Nepali Chawl, Sonapur Bhandup knowing that the said minor girl was kidnapped and you have there committed an offence punishable under section 373 IPC within my cognizance. EIGHTLY: You accused 2(Mallika) forced & seduced Vijaya @ Menka at the same place as mentioned in charge No.7 to illicit intercourse with other unknown men against her wish and you have thereby committed an offence punishable u/s. 366 of IPC within my cognizance. NINTHLY: You accused No.2 were keeping the earnings of prostitution and living on it you have thereby committed an offence punishable u/s 4 of the P.I.T.A. and within my cognizance. TENTHLY: You accused No.2 during the course of the same transaction as here in above and at the same place as mentioned in charge here in above wrongfully concealed and kept in confinement the said Vijaya and you have therefore committed an offence punishable u/s 365 of IPC and within my cognizance. ELEVENTHLY: You accused No.2 were threatening and assaulting said Vijaya physically and have voluntarily caused her hurt and thereby you have committed offence punishable u/s 323 of IPC and within my cognizance. TWELVETHLY: You accused No.3 Sunita bought a minor girl Sarita Kanhaiya 6 Devnath Bengali from one Meena (absconding) knowing that the said minor was kidnapped by her and you have therefore committed an offence punishable u/s 373 of the IPC within my cognizance. THIRTEENLY: You accused No.3 compelled the said kidnapped minor to illicit intercourse with unknown men at room No.1 Singh Chawl, Sonapur, Bhandup (w), Mumbai and you have thereby committed an offence punishable u/s.366 of IPC within my cognizance. FOURTEENTHLY: You accused No.3 during the course of the same transaction as mentioned here in above were living on the earnings of prostitution of the complainant and others and have thereby committed an offence punishable u/s. 4 of the P.I.T.A. within my cognizance. FIFTEENTHLY: Accused No.3 during the course of the same transaction as herein above and at the same place mentioned in charges here in above, you accused 3 had wrongfully concealed and kept in confinement the Seema at room No.1 Singh Chawl and you have therefore committed an offence punishable u/s 368 IPC and within my cognizance. SIXTEENTHLY: You accused No.3 were threatening and assaulting said Seema physically and have voluntarily caused her hurt and thereby you have committed offence punishable u/s 323 IPC and within my cognizance." 3. In support of its case prosecution mainly relied on the evidence of P.W.1, P.W.2 and P.W.3. The prosecution did not examine any independent person. The trial Court on analysing the relevant evidence on record by impugned Judgment and Order acquitted accused No.1 Mumtaz Zakir Hussain Shaikh of 7 all the charges and ordered her to be released forthwith. However, the trial Court convicted the accused Nos. 2 and 3 for offence punishable under sections 373, 366-A, 368 and 323 of the I.P.Code. The trial Court passed following order: "ORDER 1. Accused No.1 Mumtaz Zakir Hussain Shaikh is acquitted for the offences charged and punishable under sections 373, 366-A and 323 of the I.P.C. as well as for the offence charged and punishable under sections 3 and 4 of Immoral Traffic Prevention(PITA). 2. Accused No.1 is ordered to be released forthwith if not required in any other case. 3. Accused No.2 Mallika Raju and accused No.3 Sunita Kanchan Thapa are convicted for the offences charged and punishable under sections 373, 366-A, 368 and 323 of the I.P.C. 4. Accused Nos.2 and 3 are ordered to under go R/I for a term of 5(five) years on each count such as under section 373, 366-A and 368 of the I.P.C. 5) Accused Nos. 2 and 3 are ordered to pay a fine of Rs.10,000/- (Rs.Ten thousand) for each of those section just here in above named. In default of payment of which they shall undergo 6 months of further R/I each of the counts. 6) Each of them accused No.2 and 3 are ordered to undergo a term of 6 months R/I and pay a fine of Rs.1,000(Rs. one thousand) for the offence charged and punishable under section 323 of I.P.C. In default of payment of the fine they are ordered to undergo further one month of 8 R/I. 7) The sentences on all the aforesaid counts shall run concurrently. Accused Nos. 2 and 3 shall be given set off for the period already undergone by them in custody under section 428 of the Cr.P.C. 8) Both the accused Nos. 2 and 3 are given the benefit of doubt for the offence charged and punishable under section 4 of PITA. Hence, both the accused Nos.2 and 4 are acquitted for that charge. 9) Upon the recovery of the said fine amount of Rs.31,000/-(Rs.Thirty one thousand) from accused No.2 Mallika Raju Rs.15,000/-(Rs.Thirty one thousand only) is ordered to be paid to the P.W. No.1 Vijaya and Menka Kounder as compensation the recovery of the fine amount, when recovered under the section 257 of the Cr.P.C. 10) As and when the fine amount of Rs.31,000/-(Rs.Thirty one thousand) on all counts is recovered from accused No.3 Sunita Kanchan Thapa Rs.15,000/- (Rs.Fifteen thousand) there of is ordered to be paid to Seema and Sunita Devnath Bangali (P.W.No.2) and Rs.15,000/-(Rs. Fifteen thousand) is ordered to be paid to Manju and Onima Mihir Kavda(P.W.3) as compensation. 11) Registrar(Sessions) shall keep this court informed and report compliance to this Court of the said order of payment of compensation. 12) Accused Nos. 2 and 3 have been on bail pending the trial. They are ordered to be taken in custody forthwith. Their bail bonds stand cancelled. 13. As I have already dealt with the manner in which the police have investigated this case. Registrar (S) shall send a certified copy of the judgment and order to the Commissioner of police Mumbai as well as to the joint Commissioner of Police (Law and Order) for 9 appropriate inquiry and action against the erring officers P.I. More and PSI Shinde. 14) The Commissioner of Police shall also give a serious introspection for improving standars of investigation and inculcate a sense of .... the job of the law enforcement agency which is observed to be ebbing to a very low standard thereby leaving the plight of the society in such careless and callous hands. 16) Registrar (Sessions) shall comply with this order within four weeks from today and report its compliance to this court. 15) As and by way of suggestion the Commissioner of Police Mumbai and the Joint Commissioner of Police Mumbai (Law and Order) may consider introducing regular work shop to the police officers to even teach them how to record the F.I.R. as well as how to carry out investigation for unless they bring properly investigated case before the court, it is very difficulty for the court to convict and the same gives benefit to the accused and justice is deprived to the victim. 16) Commissioner of Police and Joint Commissioner of Police shall report compliance of the action taken against the aforesaid erring officers as well as regarding the steps taken by them for the betterment of our policing agency. 17) Registrar (S) shall comply with this order within four weeks from today and report its compliance to this court. 18) As the S.C.No.865/2002 is disposed off by a judgment, record and proceedings be sent to the Sessions Department." 4. This Judgment and Order is taken exception to by the accused Nos. 2 and 3, who are appellant Nos. 1 and 2 respectively in this appeal. The principal 10 argument of the appellants is that the trial Court having acquitted all the accused of PITA offence, the evidence which has come on record will be of no avail to the prosecution to prove the guilt against the appellants/acused Nos. 2 and 3 for the offence simplicitor under the provisions of I.P.C.. This submission is pressed on account of the admitted fact that no separate complaints have been lodged either by P.W.1, P.W.2 and P.W.3, whereas FIR registered for I.P.C. offence is only at the instance of Kamakshi Rajan Kounder, who however has not been examined. Besides, the allegation of Kamakshi in the FIR could not be the basis to proceed against the appellants/accused Nos.2 and 3, as she has made no reference about any offence committed by the appellants either in connection with the P.W.1, P.W.2 or P.W.3. It is submitted that in absence of such complaint no chargesheet could have been filed for the alleged offence against the appellants and for that matter no charge could have been framed by the trial Court so as to try the appellants/accused Nos.2 and 3 for any offence in connection with the case of P.W.1, P.W.2 and P.W.3. In any case, contends the learned counsel, that the evidence of P.W.1, 2 and 3 is not trustworthy. Besides, there is no documentary or oral evidence to corroborate the version of the 11 said witnesses P.W.1,2 and 3. If so, their evidence by itself cannot be the basis to proceed against the appellants. It is also argued that the trial court itself having noted several draw-backs in the prosecution case, as highlighted in paragraph-60 of the impugned Judgment, committed manifest error in recording finding of guilt against the appellants/accused Nos. 2 and 3. These are the broad contentions of the appeallants. The appellants would contend that the Judgment under appeal be set aside and they should be acquitted of the alleged offence. 5. The Additional Public Prosecutor on the other hand, would support the reasons which have weighed with the trial Court to record finding of guilt against the appellants. According to him, no interference is warranted in this appeal. 6. I shall first analyse the manner in which the trial Court has examined the matter. The trial Court first adverted to the evidence of P.W.1 and found that the omissions in her evidence were insignificant ones. The trial Court accepted the evidence of P.W.1 as trustworthy. The P.W.1 has spoken against accused No.2-Mallika Raju/appellant No.1. The trial Court 12 then adverted to the evidence of P.W.5 to record finding that age of P.W.1 was less than 18 years. The trial Court then adverted to the Judgment in the case of State of Punjab Vs. Gurmitsingh reported in State of Punjab Vs. Gurmitsingh reported in State of Punjab Vs. Gurmitsingh reported in 1996 Cri. L.J.1728, 1996 Cri. L.J.1728, 1996 Cri. L.J.1728, which has taken the view that where the prosecutrix was raped and investigating agency failed to trace or there was failure on the part of investigating agency, that cannot be the ground to discredit the testimony of the prosecutrix. It is then observed in the said decision that prosecutrix would have no control over the investigating agency, for which reason negligence of Investigating Officer should not affect the credibility of the Statement of the prosecutrix. Essentially, keeping in mind this principle, the trial Court has analysed the evidence on record. The trial Court has then adverted to the decisions in the cases of State of Karnataka Vs. Manjana, reported in State of Karnataka Vs. Manjana, reported in State of Karnataka Vs. Manjana, reported in (2000) Vol.6 SCC and State of H.P. Vs. Mango Ram 2000) Vol.6 SCC and State of H.P. Vs. Mango Ram 2000) Vol.6 SCC and State of H.P. Vs. Mango Ram reported in (2000) 7 SCC 224, State of Rajastan Vs. reported in (2000) 7 SCC 224, State of Rajastan Vs. reported in (2000) 7 SCC 224, State of Rajastan Vs. N.K.reported in (2000) 5 SCC 30 and Kuldeep K. N.K.reported in (2000) 5 SCC 30 and Kuldeep K. N.K.reported in (2000) 5 SCC 30 and Kuldeep K. Mahato Vs.State of Bihar reported in (1998) 6 SCC Mahato Vs.State of Bihar reported in (1998) 6 SCC Mahato Vs.State of Bihar reported in (1998) 6 SCC 420. 420. 420. The trial Court relying on the reported decisions, which essentially deal with the crime of sexual offence, wherein it is observed that prosecutrix’s evidence-that she was subjected to 13 forcible sexual intercourse-should normally be believed, unless there is material leading to an inference of her consent. On that basis, the trial Court proceeded to hold that corroboration of the evidence given by P.W.1 was not necessary. As such, relying on the sole testimony of P.W.1, finding of guilt has been recorded against the accused No.2 for offence under sections 373, 366-A, 323 of I.P.Code. The trial Court has then considered the question whether the charge of Section 4 of the Immoral Traffic Prevention Act(PITA) can be proceeded. It is found that the prosecution has not complied with the essential requirements of section 15 of that Act, for which reason, offence under PITA Act cannot be proceeded against any of the appellants. The trial Court then examined evidence of P.W.2 Seema @ Savita Devnath Bangali and P.W.3-Manju @ Onima Kawada, who have spoken against accused No.3. Both of them have independently alleged that the accused No.3 purchased them for the purpose of prostitution when they were of tender age and that each of them were forced to have sexual intercourse with unknown persons for consideration. Applying the same principle as applied to analyse the evidence of P.W.1, the trial Court proceeded to convict the accused Nos.2 and 3 for the same offence punishable under section 373, 14 366-A, 323 of I.P.Code. In paragraph-59 while considering the point, the trial Court has referred to the reported decisions in the cases of State of State of State of Karnataka Vs. Yarappa Reddy(2000 Karnataka Vs. Yarappa Reddy(2000 Karnataka Vs. Yarappa Reddy(2000 All M.R.(Cr.)348, ll M.R.(Cr.)348, ll M.R.(Cr.)348, Franco D’Souza Vs. State of Goa(2000(4) Mh. L.J.) Franco D’Souza Vs. State of Goa(2000(4) Mh. L.J.) Franco D’Souza Vs. State of Goa(2000(4) Mh. L.J.) and State of U.P. Vs. Hari Mohan & Ors.(2001 All and State of U.P. Vs. Hari Mohan & Ors.(2001 All and State of U.P. Vs. Hari Mohan & Ors.(2001 All M.R.(Cri.) 170), M.R.(Cri.) 170), M.R.(Cri.) 170), to conclude that draw-backs or lapses in the investigation would not affect the prosecution case. In paragraph-60 and 61 the trial Court has observed thus: "60. The following are the serious lapses found by this court in the process of investigation and the same have got to be pointed out to the commissioner of Police. So as to avoid such major lapses in the investigation of such serious cases where in little girls are transported into Cities, kept in dingy places and pressurized into prostitution. Since there is no say for those girls, they comply with the dictates of the madams of the brothels and are abused sexually from a very raw and tender age. In the interest of Society such matters have got to be dealt with a sensitive approach and to uphold the cause of justice. Technicalities have got to be side tracked. It is often observed that cases of the present kind fail merely because of the complicity of the police with the brothel owners. It would not be out of place to mention here that the investigation in this case has been done in a very callus manner which I would like to list here as follows. 1) The cases against three brothels owners/managers are combined into one single complaint instead of having three separate complaints for one accused and one 15 or two victims each. 2) No evidence of any independent witness is brought on record to show that the concerned accused was found on the respective spot. Not a single independent witness is examined to prove that a brothel was running there. 3) The panchanamas of the three spots mentioned by the investigating officer as well as P.W.10 PSI Shinde have not been documented. No customer was arrested from the spot. 4) Panchanama of alleged brothel of accused No.1 was drawn after about 9 to 10 hours after the raid and rescue and it does not mention about her presence there. 5) The panchas also do not depose in the evidence that Mumtaz was present on that spot. There is no other independent witness to say so. 6) Statements of victims are not recorded of law to give greater credence to the prosecution case. Investigating Officer gives plain excuses for not doing so. 7) P.W.8 Jyoti is unnecessarily examined causing delay of and wasting the precious time of the court when she was not a victim in this case nor was she a party to the raid and rescue. 8) The investigating officer did not recorded the statement of social workers who were present during the raid and hence, the same were not brought before the court to be witnesses in the case. 16 9) The provisions of the immoral traffic prevention act was not abided to by the officers and hence, they need to be trained and sufficient special officers have got to be appointed for the purpose of investigation in such matters. 10) The Photographs and videos are not produced in court. 11) Investigating Agency has not charged the traffickers although named. 12) PI More,investigating officer cannot give explanation and substantiate that accused No.1 and 2 arrested on the spot on 11-4-2001, where as Exh.15 a copy of the remand application shows that the accused No.2 and 3 were arrested on 11-7-2001.(four months later) this speaks volumes. 13) The immense delay caused in bringing the witnesses before the court. It is suggested that the witnesses should be kept in shelter home till the cases are disposed off.(Trial tasted for one year). 14) The original papers in this case were misplaced by the investigating officer (P.W.4). His demeanour during his deposition was well noticed. He was unaware of everything during the raid and rescue and displayed total indifference and doubt whether he was ever present during this same. 61. Thus it is apparent that either the police machinery is hand in glove with the brothel keepers and had deliberately committing flaws in the investigation to help them or conversely it is also possible that they were absolutely 17 indifferent and indolent in the process and do not think it necessary to investigate the cases in the manner as contemplated by the provisions of law. This fact is very painful to the present condition of the Society at large and its fast deteriorating standards. Hence I have to give my finding that the Commissioner