Andhra Pradesh High Court - Amravati
Chittaluri Vara Lakshmi Varamma, vs The State Of A.P., Rep By Pp., on 19 April, 2024
APHC010291062009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
FRIDAY ,THE NINETEENTH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE Nos.1289 & 1291 of 2009
Between in Crl.R.C.No.1289 of 2009:
Chintyala Srinivas @ Home Guard Srinu, ...PETITIONER
AND
The Staet Of A P Rep By Pp ...RESPONDENT
Between in Crl.R.C.No.1291 of 2009:
Chittaluri Vara Lakshmi @ Varamma,
...PETITIONER
AND
The State Of A P Rep By Pp ...RESPONDENT
Counsel for the Petitioner in Crl.R.C.No.1289 of 2009:
1. CHALLA SRINIVASA REDDY
Counsel for the Respondent in Crl.R.C.No.1289 of 2009:
1. PUBLIC PROSECUTOR (AP)
Counsel for the Petitioner in Crl.R.C.No.1291 of 2009:
1. VENKATA DURGA RAO ANANTHA
Counsel for the Respondent in Crl.R.C.No.1291 of 2009:
1. PUBLIC PROSECUTOR
The Court made the following:
2
COMMON ORDER:
Assailing the common judgment dated 28.07.2009 in Crl.A.Nos.142 & 147 of 2009 on the file of the Court of learned IX Additional Sessions Judge at Guntur, confirming the conviction and sentence passed against the petitioners/accused Nos.1 and 2 by the judgment dated 15.04.2009 in S.C.No.253 of 2008 on the file of the Court of learned V Additional Assistant Sessions Judge at Guntur, for the offence under section 292 of Indian Penal Code (hereinafter referred to as "IPC"), Section 3, 4 and 5 of Immoral Traffic (Prevention) Act (hereinafter referred to as "IT(P) Act") and Sections 4 and 5 of IT(P) Act respectively, the petitioners/accused Nos.1 and 2 filed the present criminal revision cases under Section 397 r/w.401 of the Criminal Procedure Code, 1973.
2. These revision cases were admitted on 03.08.2009 04.08.2003 respectively and the sentence of imprisonment imposed against the petitioners/accused Nos.1 and 2 was suspended, vide orders in Crl.R.C.M.P.No.1765 and 1768 of 2009 respectively.
3. The shorn of prosecution case is that:
i). On 30.01.2007 on receipt of information about running of brothel house and women trafficking, P.W.13- 3
Inspector of Police, secured the presence of P.W.8-
Vinukonda Gowri and P.W.10 Narne Chandra, conducted rescue operations at the house of accused No.1 situated in between 4th and 5th lines and found accused No.6 with P.W.1, also found P.W.2 and two others in another room.
ii). Basing on the statement of P.W.1, P.W.13 found that accused Nos.1 and 7 are the main traffickers at Guntur and accused Nos.2 to 5, 8 and 9 buying the minor girls and women from accused Nos.1 and 7, transport them to Hyderabad and other places. Then, P.W.13 seized the incriminating material under the cover of mediators report and they rescued P.Ws.1, 2 and two other women from the den of accused No.1.
iii). On the same day, on the information furnished by accused No.1, P.W.13 conducted rescue operation in the house of accused No.7 and found accused No.10 and P.W.4 in a room and arrested accused Nos.7 to 10 under the cover of mediators report and all the accused confessed about the offence committed by them.
4. After completion of investigation, P.W.13 laid charge sheet and the same was taken on file, vide P.R.C.No.4 of 2008 on the 4 file of the Court learned V Additional Judicial Magistrate of First Class at Guntur and committed to the Court of Sessions and numbered as S.C.No.253 of 2008 on the file of the Court of learned V Additional Assistant Sessions Judge at Guntur, after full-fledged trial, found the accused No.1 guilty of the offences under Section 372 and 292 of IPC and Section 3 to 5 of IT(P) Act, found accused No.2 guilty of the offences under Section 372 and 373 of IPC and Section 3 to 5 of IT(P) Act, found accused Nos.3 to 5 guilty of the offences under Section 373 IPC and Section 3 to 5 of IT(P) Act, found accused No.6 guilty of the offences under Section 5(1)(d) and 7 of IT(P) Act, found accused Nos.7 and 9 guilty of the offences under Section 372 IPC and Section 3 to 5 of IT(P) Act, found accused No.8 guilty of the offence under Section 373 and Section 3 to 5 of IT(P) Act, found accused No.10 guilty of the offence under Section 5(1)(d) and Section 7(1) of IT(P) Act and thereby, sentenced accused No.1 to undergo rigorous imprisonment of seven (7) years and also pay fine of Rs.200/-, in default to suffer simple imprisonment of seven (7) days, undergo simple imprisonment of two (2) years and pay fine of Rs.100/-, in default to suffer simple imprisonment of seven (7) days, undergo simple imprisonment of two (2) years and pay fine of Rs.100/-, in default to suffer 5 simple imprisonment of seven (7) days, undergo simple imprisonment of seven (7) years and undergo rigorous imprisonment of seven (7) years and pay fine of Rs.100/-, in default to suffer simple imprisonment of seven (7) days, for the respective offences.
5. Further accused No.2 was sentenced to undergo rigorous imprisonment of seven (7) years and also fine of Rs.200/-, in default to suffer simple imprisonment of seven (7) days, undergo simple imprisonment of seven (7) years and pay fine of Rs.100/-, in default to suffer simple imprisonment of seven (7) days, undergo simple imprisonment of two (2) years and pay fine of Rs.100/-, in default to suffer simple imprisonment of seven (7) days, undergo rigorous imprisonment of seven (7) years and undergo rigorous imprisonment of seven (7) years and pay fine of Rs.100/-, in default to suffer simple imprisonment of seven (7) days, for the respective offences. All the sentences imposed on the accused shall run concurrently.
6. Aggrieved by the same, the petitioners/accused Nos.1 and 2 preferred appeals, vide Crl.A.Nos.142 and 147 of 2009, before the Court of learned IX Additional Sessions Judge at Guntur and the same were allowed in part, vide common judgment dated 28.07.2009, by confirming the conviction and sentence 6 passed by the trial Court against the petitioner/accused No.1 for the offences under Section 292 IPC and Section 3, 4 and 5 of IT(P) Act. However, acquitted the petitioner/accused No.1 for the offence under Section 372 of IPC. Further, the conviction and sentence passed by the trial Court against the petitioner/accused No.2 was confirmed for the offences under Section 4 and 5 of IT(P) Act. However, acquitted him for the offences under Section 372, 373 of IPC and Section 3 of IT)P) Act. Furthermore, the appeals preferred by the remaining accused i.e., accused Nos.3, 5 to 10 were allowed by setting aside the conviction and sentence passed by the trial Court against them.
7. Against the said common judgment of the first Appellate Court, the present criminal revision cases were preferred by the petitioners/accused Nos.1 and 2.
8. Heard Sri Chall Srinivasa Reddy, learned counsel for the petitioner in Crl.RC.No.1289 of 2009, Sri Venkata Durga Rao Anantha, learned counsel for the petitioner in Crl.RC.No.1291 of 2009 and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State.
9. Now the point that arises for determination in this revision is "whether there is any manifest error of law or flagrant 7 miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?"
10. Sri Chall Srinivasa Reddy, learned counsel for the petitioner/accused No.1 in Crl.R.C.No.1289 of 2009 submits that the trial Court as well first Appellate Court erred in placing reliance on the highly interested and discrepant testimonies of P.Ws.1, 6, 8 and 10; that prosecution failed to prove the ingredients to constitute the offence under Section 291 IPC and Section 3 to 5 of IT(P) Act against the petitioner/accused No.1; that the testimony of P.W.1 does not corroborated by any independent testimony and she did not depose anything against the petitioner; that even as per the testimony of P.W.1, she voluntarily doing prostitution and she is a major, as such, the petitioner is not liable for any prosecution; that P.Ws.2 to 5, 7, 9 and 11 did not support the prosecution version; that the alleged scene of offence is very much in dispute as there is variation in the testimonies of P.W.1 and P.W.6 as well Ex.P.6 mediators report and Ex.P.14 F.I.R.; that the testimony of P.W.1 and P.W.6 is not corroborated with each other; that there is no legally valid evidence to find the guilt of the petitioner and convict him for the said offences; that the reasons given by both the Court below for convicting the petitioner is not tenable under law; that 8 the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioner/accused No.1 and the same is liable to be set aside.
11. In addition to the above submissions, Sri Venkata Durga Rao Anantha, learned counsel for the petitioner/accused No.2 in Crl.RC.No.1291 of 2009 further submits that the trial Court erred in believing the testimony of investigating officer, whose evidence is not corroborated by any other witnesses; that none of the witnesses spoke against the petitioner/accused No.2; that the prosecution miserably failed to substantiate its case against the petitioner/accused No.2 and that there is no legally tenable evidence on record to prove the charges leveled against the petitioner/accused No.2, thereby, prays to consider the present revision.
12. As against the same, Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State submits that the entire testimony of P.W.8 is crystal clear that P.W.13 Inspector of Police along with his staff conducted rescue operation in the house of accused No.1 in his presence and seized cell phones, T.V. and blue films cassettes etc.; that even P.W.10, who is another mediator did not support the 9 prosecution version, the testimony of P.W.8 itself sufficient to prove the charges leveled against the petitioners/accused Nos.1 and 2; that the testimony of P.W.13 is corroborated with the testimony of P.W.1 victim; that the trial Court as well first Appellant Court after duly evaluating the material on record rightly convicted the petitioners/accused Nos.1 and 2 for the said offences and that there are not tenable grounds to interfere with the well-articulated judgments of both the Courts below, thereby, prays to dismiss the present criminal revision cases.
13. In view of the above rival contentions, this Court closely perused the material available on record as well judgments of the trial Court and first Appellate Court. As per the testimony of P.W.1, she is resident of Nallacheruvu, Guntur, previously she attended as a worker in a mess at Kannavarithota at Guntur and subsequently attended to a Cotton Mill. Her marriage was solemnized in the year 2002, she blessed with a girl child and thereafter she took divorce due to disputes with her husband.
14. The prime point focused by the learned counsel for the petitioner/accused No.1 in her (P.W.1) evidence is that she narrated that on 29.01.2007 in the evening hours when she was in Ravindara Nagar second line Railway track, while doing prostitution, police Pattabhipuram apprehended her and she 10 stated that petitioner/accused No.1 called her to second line of Ravindra Nagar to do prostitution and to comply the directions of petitioner/accused No.1, she went there. By that time, she was financial not sound and require some amount.
15. Learned counsel for the petitioner/accused No.1 submits that no-where in the evidence she testified that while the said raid was conducted by Pattabhipuram Police, petitioner/accused No.1 also at the scene of offence. It might be true, the counsel for the accused No.1 did not cross examine her. But, prosecution heavily relied upon the testimony of P.W.1 to prove the presence of petitioner/accused No.1 at the scene of offence.
16. P.W.8, who is none other than the mediator at the time of raid, observation of scene of offence and in whose presence Exs.P.6 and P.7 mediator reports were prepared, during chief examination testified that they proceeded to 4/5 Ravindra Nagar to the third house from last house of the said lane and went to Sai Nilayam and the doors of said Sai Nilayam was in closed condition. On knocking the doors by the Inspector of Police, one person opened the door and they found two ladies in the first room and at that time, S.I. of Police found four ladies in the said 11 house and also seized cell phones and other material found in the said house.
17. The same witness (P.W.8) again testified in the chief examination itself that S.I. of Police in her presence did not seize any books and consistently deposed that she does not know whether the T.V. shown to her in the Court is the self- same T.V. seized on that day by the S.I of Police as well she did not identify the cell phones and cassettes said to be seized are one and the same or not.
18. The more interesting aspect, which is culled out from her (P.W.8) testimony is that, she categorically testified that, she did not witness the accused No.1 at the time of their visit and she has seen accused No.1 for the first time in the Court. Whereas, the prosecution case is for all times that accused No.1 lured P.W.1 and other women to do prostitution at his rented house and he said to have supplied ladies to the prostitution house on commission basis and as per prosecution version, when the raid was conducted, accused No.1 was also at the scene of offence in particularly at Sai Nilayam, 4/5 of Ravindranagar, Guntur.
19. As already discussed supra, P.W.1 not stated anything about presence of accused No.1 at the scene of offence. The independent mediator P.W.8 categorically stated that accused 12 No.1 not at all there and the remaining witnesses turned hostile and did not support the prosecution case.
20. Even the house owner, who was examined as P.W.6 and said to be leased out the said house, where the so called prostitution is going on, to Tennuluri Srinivasa Rao, who is Ex- Service Man and whose wife working as a teacher in Kennedy High School at Guntur and two years back he saw him and he cannot identify him at present. During cross examination, he testified that none of the neighbours in that locality complain against accused No.1 at any point of time that accused No.1 used his house for prostitution.
21. So, it all goes to show that except the evidence of investigating officer as P.W.13, who deposed that on seeing him, accused No.1 tried to run away and his staff caught hold him, no other testimony was placed on record by the prosecution to connect the accused No.1 and prove his presence at the scene of offence. P.W.13 also stated that four women are available in that drawing room of the said house and when he asked the said women, they revealed their names.
22. During the cross examination of P.W.13, it is categorically found rather elicited that P.W.1 did not state before him that on the instructions of accused No.1 she went to Ravindra nagar 13 and participated in prostitution. He did not mention about receipt of information i.e., type of information in the concerned general diary. He specifically stated that there is no specific door number to the said house, which was they visited at Ravindranagar. It is further found from his testimony that in the charge sheet it is mentioned that scene of offence is situated at second line of Ravindranagar, but, whereas, in the mediators report, it is mentioned as scene of offence is situated at fourth and fifth line of Ravindranagar.
23. It is the specific contention of the prosecution that they have seized the articles at the scene of offence, in particularly from the so called rented house of accused No.1. But, nothing was mentioned in Ex.P.14 F.I.R. that they seized the material objects. Furthermore, as stated supra, there is inconsistency about the place of offence that P.W.13 and P.W.1 stated different from that of P.W.8 and as mentioned in the mediators report. Reading all together, there is lot of discrepancy in the prosecution case.
24. One more important aspect, which is found from the testimony of P.W.10, who said to be shifted the victim from the so called scene of offence to Help Organization/Rescue Home at Machavaram that according to Exs.P.6 and P.7 all the accused 14 were shifted to Rescue Home from the place of offence, whereas P.W.10 stated that they were taken to Arundelpet Police Station from there to Rescue Home. So, there is inconsistency over the prosecution case.
25. The prosecution mainly relied upon the evidence of P.W.1, whose evidence does not inspire confidence of the Court that she is speaking truth. Thereby, both the trial Court as well first Appellate Court did not appreciate the material on record in proper lines.
26. In fact, it is held by the trial Court as well first Appellate Court that accused No.1 called P.W.1 for doing prostitution and she complied his directions. But, in the above paragraphs, this Court categorically found that her evidence is not consistent, not cogent and unreliable.
27. Admittedly, P.Ws.8 and 9, who said to be mediators, belongs to Help Organization as volunteers and in their presence police conducted alleged rescue operation and in particularly P.W.8 stated that S.I. of Police asked her to act as mediator and all of them proceeded to Ravindranagar 4/5 line, third house and went to Sai Nilayam and according to her, C.I. of Police tapped the doors of the house and one person open the door and found two ladies in the first room hall of the said 15 house and S.I of Police apprehended four women from the said house and she cannot identify them whether they were included among the accused. Further she does not know whether the cell phones as well cassettes said to recovered by the police and which were shown in the Court are one and the same or not.
28. When this fact of detailed statement of P.W.8, who consistently testified that, at the time of their visit, accused No.1 was not at the place of offence in-order to see him, which is totally contra to the prosecution version, so, absolutely there is no evidence on record, except the self-serving and interested testimony of P.W.13 regarding participation of accused No.1 in the offence.
29. It is the case of the prosecution that police conducted rescue operation in the rented house of accused No.1, whereas so called owner of accused No.1 testified that no one complains about using of his house for unlawful activities by accused No.1. The another mediator P.W.10 not at all supported the prosecution version. In this case, admittedly, P.Ws.1 to 4 who are majors and married women, and it is settled law that before convicting a person under Sections 366 and 372 of IPC, it has to be conclusively proved that the victim was below the age of eighteen (18) years as on the date of occurrence and she was 16 minor. Thereby, this Court relied upon a judgment of this Court in Shaik Ramjan v. State rep.by S.I. of Police, Eluru II Town Police Station1.
30. This Court already noticed supra that the testimony of P.W.1 coupled with P.W.8 not corroborated with the testimony of P.W.13 about the presence of accused No.1 in the alleged scene of offence or merely basing on the sole interested testimony of P.W.13, this Court is of the considered opinion that, prosecution failed to prove the guilt of the accused No.1 beyond all reasonable doubt.
31. Now, coming to the case against accused No.2, she was only convicted for the offences under Section 4 and 5 of IT(P) Act. In-order to invoke Section 4 of IT(P) Act, the prosecution must prove that the person over the age of eighteen (18) years knowingly lives, wholly or in part, on the earnings of the prostitution of any other person, which is liable for punishment upto two (2) years or with fine, which may have extended to one thousand rupees.
32. Section 5 speaks any person, who procures or induce for the purpose of prostitution and if the said person is proved to be induced by any person shall be punishable with rigorous 1 1999 Crl.L.J. 2161 17 imprisonment not less than three (3) years and upto seven (7) years.
33. On close reading of the entire evidence on record, admittedly, the prosecution mainly relied upon evidence of P.W.1 and P.W.13. So far as testimony of P.W.1 is concerned, it is no-where related to the accused No.2. So far as P.W.13 Investigating Officer is concerned, his evidence is not corroborated with the any of the witnesses examined on behalf of the prosecution. None of the victim speaks against accused No.2.
34. Even to believe the mediators report, it is not properly prepared in-order to show the participation of accused No.2 either for inducement of women for prostitution or doing prostitution by herself. It is specific allegation made by the learned counsel for the petitioner/accused No.2 that the alleged statement and mediators report were not supplied to the accused when the learned Magistrate examined them nor to their dependents in this regard.
35. When this Court closely perused the testimony of prosecution witnesses, as already stated supra, P.W.1 categorically testified during cross examination that date of her acquaintance with accused No.2 cannot be stated and 18 consistently stated in her cross examination that she got development with accused No.2 when she went to Sri Ram Nagar to sell sarees along with her mother.
36. In particularly, regarding the offences under Section 4 and 5 of IT(P) Act allegedly committed by accused No2, when questioned P.W.1, she testified that she does not know residential address and family affairs of accused No.2. She cannot give the exact date when she went to Hyderabad for doing prostitution and testified that the incident occurred in the month of January, 2007.
37. P.Ws.2 to 5, 7 and 9 turned hostile and not at all supported the prosecution case. So far as evidence of P.W.6 is concerned, he is nothing to do against accused No.2, because according to prosecution P.W.6 is the owner of the house situated in Rajendranagar. Therefore, his testimony has no role to determine the offence alleged against accused No.2.
38. Coming to the testimony of P.W.8, who said to be acted as mediator, did not state anything in particularly about accused No.2. His entire testimony is relating to the offence said to be taken place at the rented house of accused No.1. Nothing found in his testimony against accused No.2.
19
39. P.W.10 said to be another mediator also not supported the prosecution case. The only testimony remains for consideration is P.W.13. Except the sole self-serving testimony of P.W.13, no material on record to found that accused No.2 is committed the offences under Section 4 and 5 of IT(P) Act. When there is no specific material on record to prove the guilt of the accused No.2, both the trial Court as well first Appellate Court misread the evidence on record and erroneously convicted the accused No.2 for the said offences.
40. Now, at this juncture, it is required to be noted the provision under Section 13 of the IT(P) Act as follows:
"13. Special police officer and advisory body.--(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that government for dealing with offences under this Act in that area. (2) The special police officer shall not be below the rank of an inspector of Police.
(2-A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:"
20
41. In view of the above, this Court is of the opinion that the special police officer is competent and that he and his assistant police officers are the only persons competent to investigate the offences under the Act and that police officers, who were not specially appointed as special police officers cannot investigate the offences under the said Act even though they are cognizable offences. In the present case on hand, nowhere it is stated that, P.W.13 is also designated as Special Police Officer to investigate the offence under this Act. Thereby, in view of the above guidelines under the Act, the raid and investigation conducted by P.W.13 has no sanctity at all.
42. Even, as discussed supra, when appreciation of evidence is totally against the principles of law by the Courts below and their evidence is not consistent, not cogent and unreliable and basing on the said testimony convicting the petitioners/accused Nos.1 and 2 is not at all proper in the eye of law. Thereby, viewing from angle, the conviction and sentence passed against the petitioners/accused Nos.1 and 2 for the said offences is not tenable under law.
43. Having regard to the above discussion, this Court is of the considered opinion that the trial Court as well first Appellate Court failed to appreciate the evidence in proper perspective and 21 there is manifest error of law and flagrant miscarriage of justice in the findings recorded by the trial Court as well first Appellate Court, thereby, the present criminal revisions have merits and liable to be considered.
44. In the result, both the Criminal Revision Cases are allowed. The conviction and sentence passed against the petitioners/accused Nos.1 and 2, vide judgment dated 15.04.2009 in S.C.No.253 of 2008 on the file of the Court of learned V Additional Assistant Sessions Judge at Guntur, as confirmed in the common judgment, dated 28.07.2009 in Crl.A.Nos.142 & 147 of 2009 on the file of the Court of learned IX Additional Sessions Judge at Guntur, are hereby set aside and thereby the revision petitioner/accused Nos.1 and 2 are acquitted of the offences under Section 292 of IPC, Section 3, 4, and 5 of IT(P) Act and Section 4 and 5 of IT(P) Act respectively. The fine amount paid by the petitioners/accused Nos.1 and 2, if any, shall be refunded to them.
Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ JUSTICE V.SRINIVAS Date: 19.04.2024 Krs 22 188 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE Nos.1289 & 1291 of 2009 DATE: 19.04.2024 Krs