I
IN THE COURT OF THE VADDL.METROPOLITAN SESSIONS JUDGE
(MAHILA COURT) AT HYDERABAD.
PRESENT : Smf.T.Rajani, M.A.,B.L,
V Addl. Metropolitan Sessions Judge,
Mania Court, hyderabad.
Dated this the 26th day of June, 2007
SESSIONS CASE NO. 112/2007
PRC.NO.8/2007 ON THE FILE OF X ADDL.CMM. COURT SEC’BAD.
Committed by
Sri. X Addl.Cheif Metropolitan MagistrateScc'bad.
Crime No, & Police Station
297/2006
Name of the complainant
Sub-Inspector of police P.S. Gopalapuram.
Name and description of accused
A.1 Dharmapuri Sridevi @ Sapna W/o Mahaboob
Pathan, age 20 years, Occ : Call girl/Pimp near
Railway station, Secunderabad R/o Uppal,
Hyderabad.
A2. S.Manjunath @ Shankar @ Mental Shankar S/o
Subbaraya Achari, age 26 years, Occ: Pimp/broker,
Railway station, R/o Uppal R/o Bodhgir / Cross
Roads, near Bangalore, Karnataka.
Prosecution conducted by
Sri Ch. Seshi Reddy, Addl.Public Prosecutor
Accused defended by
Sri. V.V.S.Satyanarayana, Advocate.
Offences Charged
366(a) 376IPC and 3,4 and 5 of I.P.T.Act.
Plea of the accused
Pleaded guilty.
Finding of the court
The acccused No.l and 2 are found not guilty for the
offence punishable u/s 3 of The Immoral Traffic
(Provention) Act and Section 366-A IPC and they
are acquitted and they are found guilty for the
offences punishable u/s-4 & 5 of The lmmoral
Traffic (Prevention) Act. A.2 is found guilty for the
offences punishable u/s 376 IPC. And they are
convicted for the said offences u/s 235 (2) Cr.P.C.
Sentence/Order
A1 is sentenced to under go R.I for a period of One
year for the offence Punishable U/S c.4 of the
I.P.T. Act, and R.I for three years and a sum of
Rs.200/- for the offence punishable , Sec .5 of I.P.T.
Act. in default of payment of fine S.I for a period of
One month.
A2 is sentenced to under go R.I. f or years for the
offence punishable under Sec.4 of I.T.P, Act, R.I.
For 5 years and a fine of Rs.2000/- for the offence
punishable U/Sec5 of I.P.T. Act, In default of
payment of fine R.I. For 4 months. A2 is further
sentenced to undergo R.I. For seven years and a fine
Rs.2000/- for the offence punishable U/Sec.376
IPC. and the default of payment of fine R.I for 4
months.
The sentence against both the accused for the above
offence shall run concurrently. The remand period
of any ordered to be set off.
JUDGEMENT
2
This is a case of a girl who came out of the protective wings of her mother and
went into the hands of those people who used her as a means of their extra
income and led her into prostitution for the said purpose.
The brief facts as projected in the charge sheet are that on 10.10.2006 at about
10.30 a.m. L.W.I who is incharge for a social welfare organisation called
"PRAJWAlA" came to the police station and lodged a written English report with
the following facts. The victim girl is a resident of yakuthpura who lost her father
in her childhood . Her mother used to beat her up constantly and one day she
also burnt her leg with a burning rod unable to bear the acts of her mother she
came away from her house and reached Secunderabad Railway station in the
month of january.2006. She worked as a domestic servant in the house of a
woman at Seethaphalmandi till April 2006. As the husband of that woman did
not like her. She left that house also and sat at Secunderabad Station. Then a
woman named Swapna approached her and promised to provide a good job
to her and took her to a person called Shanker. who was standing near the bus
Station. Secunderabad .Shanker took the girl to Chilkanagar. Uppal by paying
Rs.400/- to the said Swapna. He promised to provide her a better living and
asked her to enter into prostitution. He used her. as his keep, and sent her to four
or five customers per day. One day she got an opportunity to escape from his
clutches and somehow approached the complainant. On the strength of the
report given by the complainant the case was registered in Cr.No.297/2006 for
the offence under section 366-A IPC and Sec3,4 & 5 of I.PT.Act. During the
course of investigation the statements of the witnesses were recorded . The
victim was subjected to the medical examination and was diagnised to be
carrying 12 weeks pregnancy. Her statement was also got recorded by a
Magistrate under 164 CrP.C. The accused were arrested .After receiving all the
relevant reports the investigation was concluded and charge sheet was laid for
the same offences.
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On appearance of the accused Nos. 1 and 2 before the committal court, the
committal court duly complied with all the legal formalities and committed the
case to the court of Metropolitan Sessions Division, Hyderabad.
The learned Metropolitan Sessions Judge, Hyderabad, took the matter on
file and made over the same to this court for trial and disposal according to
Law,
On appearance of the accused before this court, this court complied
with all the legal formalities and basing on the prima facie material on record,
framed charges against A.I and A.2 for the offences punishable U/Ss.366-A IPC
and Sec.3,4 & 5 of I.PT.Act and against accused No2 for the offence punishable
under section 376 IPC. The accused pleaded not guilty for the said charges
when they were read over and explained to them and claimed to be tried.
On that this court conducted the trial of the case and examined P.Ws.l to
5 and marked ExPI to P.6 on behalf of the prosecution.
After concluding the prosecution evidence, the accused were
questioned about the incriminating circumstances appearing in the prosecution
evidence. They denied the truth in the prosecution evidence and reported no
evidence on their behalf. On that the arguments of the learned APP and the
defence counsel were heard.
The Learned APP contended that the case of the prosecution stands
proved by the confidence inspiring evidence of not only the victim girl. P.W.2
but also P.W.1 and that the minor inconsistencies pointed out by the defence
are liable brushed aside on the basis of the substratm of the prosecution case
which was proved unmotivatedly .
The defence counsel as rightly contended by the APP has based his
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argument on inconsistencies which do not in any way disturb the basic ring of
truth existing in the prosecution case. Though they need not be mentioned the
same are being mentioned only to be marginalised . It was in the foremost
contended that the residence of P.W.2 as stated by P.W.2 is at Yakuthpura but
as per the case of prosecution, she was residing with P.W.I who is incharge of a
rescue home, that P.W.2 could not give the name of the woman who took her
from the Railway station initially, that L.W.3 who allegedly took. P.W.2 to P.W.I
was not examined by the prosecution. The above contentions made the
defence counsel would be met with by this court while deciding the points
which arise for determination by this court.
Based on the material on record and the arguments extended on either
side this court frames the following points for determination.
1 ):Whether the testimony of the prosecutrix inspires total confidence in the
court.
2) Whether the guilt of the accused for the offence punishable u/s 3 of the
Immoral Traffic (prevention) Act is proved.
3) Whether the prosecution could prove the guilt of the accused
for the offences punishable u/s 4 & 5 of Immoral Traffic (prevention) Act)
4)Whether the guilt of the accused No.2 for the offence punishable u/s 376 IPC is
proved.
5)Whether the prosecution could prove the guilt of the accused for the offences
with which they are charged beyond all reasonable doubt.
6)To what result.
1st - POINT- P.W.2 is the prosecutrix. If the credibility of the proecutrix is upheld
then, by virtue the settled position of law. her testimony can be considered as
sufficient to conclude
the guilt of the accused. As can be seen from her evidence not even a remote
motive exists against her for speaking falsehood, There are no relations between
accused and p.w.2 earlier to the alleged
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episode of offences . Hence, it can not be alleged that she was prompted by
any ulterior motives to speak against the accused. The evidence on record
shows that she had to take shelter in a rescue home where no scope for
personal profits would be left. In the absence of ambitions of personal gains. she
would not be prompted to speak falsehood against the accused. She came
into the world alone and is ultimately left, with what can be appropriately called
as a burden, the child . In such circumstances whatever comes from her
testimony turns to be true.
2nd POINT::- Sec.3 Immoral Traffic (prevention) Act herein after called as I.T.P.Act
prescribes punishment for the persons who keeps or manages or acts or assists in
the keeping or management of a brothel.
The evidence of P.W.2 is that of the victim girl. According to her evidence she
met A.1 at the Railway Station and A.1 took her to A.2. Both the accused took
her to the Secundrabad Railway station and sent her alongwith a person, after
taking money. Both the accused beat her severely and made her continue the
prosecution. The wife of A.2 also used to reside in the house of A.2.lt is the said
wife that rescued P.W.2 and took her to the Rescue Home of P.W.I. Except the
act of A.1 relating to P.W.2 her other activities are not stated by P.W.2. The
evidence of P.W.6 which is that of the inspector of police who registered the
case and investigated it, though shows that there were reports against A.1 in
their Police Station even earlier to this case, the said reports against A.2. The
evidence of P.W.I shows that P.W.2 was brought to their Rescue Home by LW.3,
who is the wife of A.2.LW.3, according to P.W.I has been attending the
counseling sessions of P.W.I's organisation run by them in the area of
Gopalpuram P.S But evidently no reports were given to them either against A.2
;that
they were in the hand of doing and assisting prostitution
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or that they were concerned with the keeping or managing of a brothel.Hence,
the evidence on record does not bring out evidence, sufficient to fix the
complcity of the accused in the offence punisable u/s sec.3 of I.T.P.Act, Hence,
it can be concluded that the prosecution failed to prove the guilt of the
accused for the offence punisable u/s 3 of UP.Act.
3rd POINT:- Section 4 of I.T.P.Act makes the act of any person over the age of 18
years living wholly or in part, on the earnings of prostitution of any person
punishable.The evidence of p.w.2 would amply prove that she was led into
prostitution by A.1 and A.2. There can be no other reason that can be read into
the facts of the case other than the monetory benefit. Even without any
assumption it can be concluded as such, as P.W.2 was categorical in stating
that A.1 and A.2 took money from a stranger before handing over her to the
said person. The evidence of PW.l, though hearsay, also corroborates the said
fact. Leaving aside the proof that A,l and A.2 are guilty of the offence can be
concluded that the guilt which would be proved otherwise would consist of the
financial benefit. The said benefit would form part of the earnings of the
accused and thereby it amounts to living on the earnings of prostitution which is
punishable
u/s 4 of I.T.P Act.
The ages of the accused are shown as 20 and 26 years respectively.
Section 4 makes the act of the accused who are over the age of 18 years alone
punishable. The accused did not deny their ages. Hence, they are attracted by
Section 4 of the I.T.P.Act.
Sec.5 of the I.T.P.Act attracts the act of a person who procures a person
with or without her consent for the purpose of the prostitution and also the act of
a person in taking or attempting to take a person or causing a person to be
taken from one place to another with a view to his/her carrying on or being
brought up to carry on prostitution. The alleged facts are only in respect of the
above ingredients of section 5 of I.T.P.Act.
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Before, proceeding with the appreciation of the evidence on record the
contention of the defence counsel that the prosecution could not prove that
P.W.2 stayed in the house of A.2 .It was also contended that no neighbours from
the place of the accused were examined inorder to prove the said fact and
that L.W.3 who is the wife of A.2 was not examined by the prosecution. It was
urged that the benefit of the above lapses of the prosecution has to be
extended to the accused.ln the considered opinion of this court. .it is only
benefit of a reasonable doubt that has to be extended to the accused, but not
of whimsical and fanciful doubts. The facts of the case would project a clear
situation where no independent witnesses would come forward to give
evidence. In the cases of this sort such efforts would not fulfill in all probabulity.
The failure of the police in not explaining about their efforts to secure
independent witnesses can not at any rate prejudice the victim. When the case
itself stands on highly credible facts calling for independent evidence would
result in a hyper technical approach, which is not warranted.
P.W.I however is an independent witness. The attempt to shatter her
credibility during the cross examination remains unsuccessful. The mere fact that
the organisation of P.W.I is run by the funds which are provided to it based on
the number of victims catered by it can not be taken to infer that every act of it
is motivated by the said benefit. It can not be asumed that such organisations
are started on a profit motive. The basic aim is to help the destitutes It was well
explained by P.W.I that they takeup programmes in which they counsel the
destitutes, rehabilitate several people and provide education to destitute
children; It :can not at any stretch of imagination be their wish that more and
more destitutes should cropup in the society inorder to keep their organization
fruitful: and liable. It is quit the converse situation that has necessitated the
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formation of such organization. Hence the suggestion that P.W.1 has shown
p.w.2 as a member of their rescue home inorder to raise funds is simply
ridiculous.
The reason for not examining L.W.3 as a witness is also easily
understandable. She is a woman who has been putting up with A.2 inspite of the
fact that she did not like his activities. She has a heart and mind to rescue p.w.2
from the clutches of her husband but she cannot be expected to have the
gumption to come to the court and give evidence against him. Hence, the
lapse of the prosecution in not examining LW .3 as a witness does not in any way
effect the case of the prosecution. More over when there is no factual
foundation that could be laid by the accused for his false implication and for
p.w.2 to speak against them there is no reason to doubt the truth in Ihe
evidence of p.w.2.
The evidence of PW.2 vividly picturises the plight of a small girl who left the
home, and entered a world which, not to her knowledge is filled with elements
waiting to trap her. She has likewise taken offence of the behaviour of her
mother and left the house . She came across, a woman who was kind enough
to take her to her house, but. her house unfortunately did not contain persons
who are as good and compassionate as herself. Her husband was not good
enough his behavior made his behaviour made p.w.2 to leave their house, as
can be seen from 164 Cr.P.C.statement made by p.w.2. Though the same is not
corroborated by p.w.2 in the court, she was modest enough to say that she
came out as she was not treated well. After corning out from the above houses,
she met A.2, who took her along and handed her over to A.2, :she was
decorated and sent to Secunderabad Railway Station and was made to do
prostitution. She was handed over to a person who took her away to a place
far away from Secunderabad and she was subjected to sexual intercourse. The
said person,
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after accomplishing his sexual desire, brought her back and handed over to the
accused. P.W.2 has been resisting the acts of the accused. Bui she was beat by
them severely and was made to continue the prostitution.
The evidence of p.w.2 is cogent, which can be seen from the cross
examination that she was subjected to on behalf of the accused. Only one
omission was pointed out that is regarding the pregnancy of p.w.2. It was
argued that p.w.2 did not state about her pregnancy in her 161 and 164
statements. She explained that she could not state about it, as she was not
aware of it by that time. By the date of her examination by the police, she was
not subjected to medical examination. Her statement was recorded on
10.10.2006. She was examined by the doctor on 12.10.2006. Hence, her
explanation holds good for the lapse at the time of her 161 statement. But her
164 statement was recorded on 3.11 .2006 by which time she was subjected to
medical examination. But discarding the entire evidence on the above
immaterial lapse would result in nothing but travesty of justice Even If her
pregnancy is not taking into consideration, her evidence would be sufficient to
prove the guilt of the accused.
The punishment for the offence u/s 5 of I.T.P Act is prescribed separately
for a minor. child and a major. Hence, the aspect of the age of p.w.2 also
becomes material. The age of p.w.2 was got assessed through p.w.4 who is the
Civil Assst. Surgeon. Forensic Department, Gandhi Medical College. According
to p.w.4 PW.2 was examined on 12.10.2006 at the requisition of the police,
Gopalapuram for determination of her age. By virtue of the general, physical
and dental examination the age was assessed to be 17 years. The said age is
admitted to be prone to an error of plus or minus one year. The calculation with
the above error would make the age of p.w.2 either 16 or 18 years. The
interpretation favourable to the accused has to be made in cases of
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ambiguity. Such interpretation would make p.w.2 a major.
With the above discussion, it can be concluded that the prosecution
could prove the guilt of the accused for the offences punishable u/s 4 & 5 of the
I.T.P Act.
4th POINT: The discussion under point No.l has concluded that the testimony of
p.w.2 inspires confidence and can be made a basis for holding the accused
guilty. Her evidence shows that A,2 apart from using her as a tool for prostitution
has also used her as a tool .to satisfy his own lust. She has categorically stated
that A.2 used -to rape her at his house. Hence, this court does not wish to lose
any time before concluding that A.2 has committed rape against p.w.2.
5th POINT: A charge u/s 366-A is framed by this court, but as the age of the girl
was concluded to be 18 years the above provision would not get attracted.
Even for the acts of the accused to be taken within the purview of section 363
IPC the facts of the case do not show that the accused have kidnapped p.w.2.
A.I casually came across p.w.2 at the Railway Station. The element of taking
and enticing which are the ingredients of Sec36l IPC. which is punishable under
section 363 IPC. do not exist beyond doubt in the prosecution story. Hence, the
benefit of the above doubt can be extended to the accused. In view of
discussion under the above points. this court opins that the prosecution could
prove the guilt of A.I and A.2 for the offences punishable u/s 4 & 5 I.T.P.Act and
of A.2 for the offence puniable u/s 376 IPC.
6th POINT: In the result the accused No.l and 2 are found not guilty for the
offence puniable u/s 3 of The Immoral Traffic (Prevention) Act and Section 366-A
IPC and the are acquitted and they are found guilty for the offences
punishable u/s 4 & 5 of The Immoral Traffic (Prevention) Act A.2 is found guilty for
the offence punishable u/s 376 IPC. And they are convicted for the said
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offences u/s 235(2) Cr.P.C.
Dictated to Bench Typist, corrected and pronounced by me in the open court
on this the 26th day of June, 2007.
V.ADDL.METROPOLITAN SESSIONS JUDGE
(MAHILA COURT)-CUM-XIX ADDLCHIEF JUDGE,
AT HYDERABAD.
The accused is appraised of the finding of the court and is questioned about the
sentence. 1st Accused did not choose to submit any thing, but A2 submit that
he has'parents and wife who are dependent on him. But the above submission is
considered as only a routine submission calling for no lenient view. If necessity
can be read into the word weakness then as said by the Hon'ble High Court of
Gujarat in Gajanand Magalal’s case it is either human weakness or wickedness
which may be the cause of the sexual offences. The fact would show that it is
the necessity for money that has prompted the accused to commit the
offences. But an element of wickedness exists in executing their deeds of
necessity. A1 being a woman laid the chastity of PW.2 at stake by preserving her
own physical chastity (as she is proved to be 'mentaiy un chaste) while A2 has
used PW.2 not only as a means of fulfilling his financial necessity but also his
concupiscence. Hence the weakness of A2 is on a higher plane than that of A1.
Considering the above , A1 is sentenced to under go R.I for a period of One
year for the offence punishable U/Sec.4 of the I.P.T. Act. and R.I for three years
and a fine of Rs.200/- for the offence punishable U/Sec.5 I.P.T. Act; In default of
payment of fine S.I. for a period of One Month.
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A2 is sentenced to under go R.I. for 2 years for the offence punishable
under Sec.4 of I.P.T. Act. R.I. For 5 years and a fine of Rs.2000/- for the offence
punishable U/Sec.5 of I.P.T. Act. In default of payment of fine R.1. For 4 months.
A2 is further sentenced to undergo R.I. For seven years and a fine of
Rs,2000/- for the offence punishable U/Sec.376 IPC. and the default of payment
of fine RI for 4 months.
The sentence against both the accused for the above offence shall run
concurrently. The remand period of any is ordered to be set off. The unmarked
properly if any is ordered to be destroyed after appeal time.
V.ADDl.METROPOLITAM SESSIONS JUDGE
(MAHILA COURT)-CUM-XIX ADDL.CHIEF JUDGE.
AT HYDERABAD.
Appendix Of Evidence
Witnesses Examined For Prosecution:P.W. l. Dr.Sunitha Krishnan.
P.W. 2. Begum Sania
P.W .3. Dr.T.Satyavathi.
P,W.4. Dr.T.Vikramaditya.
P.W.5. Ghouseuddin.
P.W.6. Mohd.Ismail
For Defence:-NIL
Ex.P.1.Complaint
Ex.P.2. Medical Certificate
Ex.P.3.Final Opinion
Ex.P.4.Potency Certificate
Ex.P.5.Age Certificate
Ex.P.6.FIR
M.Os.MARKED:NIL.
V Addl.Melropolitan Sessions Judge:Curn:
XIXAddl.Chief Judge, City Criminal Courts,
At Hyderabad