Karnataka High Court
Noor Jan vs State Of Karnataka on 8 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2024:KHC:25903
CRL.A No. 546 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 546 OF 2014
BETWEEN:
1. NOOR JAN
W/O BABU
AGED ABOUT 40 YEARS
RESIDENT OF NEAR DANA PALACE
TUMKUR - 572 101.
2. BABU
S/O SYED HUSSAIN
AGED ABOUT 42 YEARS
AUTO DRIVER
RESIDENT OF IN FRONT OF DANA PALACE
TUMKUR - 572 101.
3. AMEENA
W/O LATE GULAB JAN
AGED ABOUT 42 YEARS
RESIDENT OF NEAR DANA PALACE
Digitally signed by TUMKUR- 572 101.
LAKSHMINARAYANA ...APPELLANTS
MURTHY RAJASHRI
Location: HIGH
COURT OF (BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
KARNATAKA SRI. KARIAPPA N A, ADVOCATE)
AND:
STATE OF KARNATAKA ,
BY TILAK PARK POLICE STATION
TUMKUR - 572 101.
REPRESENTED BY STATE
PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI. B LAKSHMAN, HCGP)
-2-
NC: 2024:KHC:25903
CRL.A No. 546 of 2014
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:13.3.2014 PASSED BY THE
PRINCIPAL DISTRICT AND S.J., TUMKUR IN S.C.No.31/12 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 366A, 372 OF IPC AND U/S
5(1)(a) (b) AND (c) OF THE IMMORAL TRAFFIC (PREVENTION)
ACT, 1956 AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the appellants - accused Nos.1 to 3 praying to set-aside the judgment of conviction and order on sentence dated 13.03.2014 passed in S.C.No.31/2012 by the Principal District and Sessions Judge, Tumakuru. The appellants - accused Nos.1 to 3 have been convicted for the offences under Sections 366A and 372 of the Indian Penal Code, 1860 (for short hereinafter referred to as "IPC") and Sections 5(1) (a) (b) and (c) of the Immoral Traffic (Prevention) Act, 1956 (for short hereinafter referred to as "the I.T.P Act"). The appellants - accused Nos.1 to 3 have been sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs.5,000/- each, for the offence under -3- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 section 366A of IPC; further sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs.5,000/- each, for the offence under Section 372 of IPC and to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.1,000/- each, for the offences under Sections 5(1) (a) (b) and (c) of the I.T.P Act. The Trial Court has ordered that all the sentences to run concurrently.
2. The factual matrix of the prosecution case in brief is that; eight months prior to 11.02.2011, all the appellants - accused Nos.1 to 3 induced PW5 - Prosecutrix, who was a girl under the age of eighteen years, without her consent, knowing that she may be posed to illegal sexual activities, took her from Tippu Nagar, Tumakuru and handed over her to two other persons who were unknown to the Prosecutrix, with an intent that the Prosecutrix be employed or used for the purpose of prostitution or for illicit intercourse with a person knowing it to be likely that -4- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 such minor would be employed or used for any such purposes and committed the offences as noted supra.
3. After receipt of records from the Committal Court, the Trial Court framed the charges for the aforesaid offences. The prosecution in order to prove the charge, has examined PWs.1 to 7 and got marked Exs.P1 to P7. The statement of the accused persons came to be recorded under Section 313 of Cr.P.C. The Trial Court after hearing the arguments has formulated the points for consideration and after appreciating the evidence on record has convicted the appellants - accused Nos.1 to 3 as noted supra, by the impugned judgment, which is challenged in this appeal.
4. Heard learned senior counsel for the appellants - accused Nos.1 to 3 and learned High Court Government Pleader for the respondent - State.
5. Learned senior counsel for the appellants - accused Nos.1 to 3 would contend that the prosecution has not -5- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 proved that the Prosecutrix was under the age of eighteen years as on the date of the offence. In order to attract the ingredients of Sections 366A and 372 of IPC, the prosecution has to establish that the Prosecutrix was under the age of eighteen years. The prosecution has not produced any document to establish her age. The Prosecutrix who was examined as PW5, has stated her age as 26 years and her evidence came to be recorded on 28.02.2013, but in her evidence, she has stated her age as seventeen years as on the date of the offence. The age determination of the Prosecutrix was not done by the radiological examination or by ossification test. PW6 - doctor who examined the victim girl has stated her age as eighteen years. He contends that parents of the Prosecutrix have not filed any missing complaint of the Prosecutrix even though she was missing for a long period of eight months. There was no intention on the part of the appellants - accused Nos.1 to 3 to drive the Prosecutrix for prostitution or to the brothel and they intended to give her a job as Maid servant and on an earlier occasion also -6- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 at their instance, she had worked as a Maid servant in Bengaluru for some period. PW5 - Prosecutrix has not stated before the doctor that she was lodged in brothel. In order to establish the offence under section 366A of IPC, the prosecution has to prove that the victim is a minor and there was kidnap from the lawful guardian. The victim was alleged to have taken in the train from Bengaluru to Delhi by two unknown persons and there is no investigation in that regard. The victim has not been taken to Delhi by the Investigating Officer, so as to ascertain as to whether she was there in the brothel for a period of eight months. There is no investigation with regard to the offences under sections 372 of IPC and Sections 5(1) (a) (b) and (c) of the I.T.P Act. The evidence of PW5 - Prosecutrix is not of sterling quality, but the Trial Court relied on her testimony. PW5 - Prosecutrix was a very shrewd person which can be ascertained from the very reading of her deposition. The Investigating Officer has not collected any train tickets from the Prosecutrix even though she was alleged to have -7- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 travelled from Delhi to Bengaluru in the train, two days prior to filing of the complaint. There is no corroboration to the evidence of the Prosecutrix. After recording the voluntary statements of the accused persons, they were not taken to the spots namely Tumakuru, where the incident is alleged to have taken place and the railway station in Benglauru. Considering the evidence on record and the allegations, there is no role of accused No.3 for the alleged offences. There are no antecedents of the appellants - accused Nos.1 to 3 of they driving the girls to the prostitution. Learned senior counsel has placed reliance on the decision of the Hon'ble Apex Court in the case of Santosh Prasad alias Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443, on the point that sole testimony of the Prosecutrix should be of sterling quality.
6. Learned High Court Government Pleader for respondent - State has supported the reasons assigned by the Trial Court and contended that the Trial Court on -8- NC: 2024:KHC:25903 CRL.A No. 546 of 2014 appreciating the evidence on record has rightly come to the conclusion that the appellants - accused Nos.1 to 3 have committed the offences leveled against them. The Prosecutrix, stated her age in the evidence and that has been relied upon by the Trial Court in holding that the prosecution has proved her age. The Prosecutrix was made to believe that she would get a good job by the appellants - accused Nos.1 to 3 and under that guise, she was taken from Tumakuru to Bengaluru. The evidence of PW5 - Prosecutrix is trustworthy. On these grounds, he prayed for dismissal of the appeal.
7. Considering the grounds urged, the points canvassed and on perusal of the impugned judgment and the Trial Court records, the following point arises for my consideration;
"Whether the Trial Court erred in convicting the appellants - accused Nos.1 to 3 for the offences under Sections 366A and 372 of IPC and Sections 5(1) (a) (b) and (c) of the I.T.P Act?"-9-
NC: 2024:KHC:25903 CRL.A No. 546 of 2014
8. My answer to the above point is in the Affirmative, for the following reasons;
The charge sheet has been filed against the accused persons for the offence under Section 366A of IPC. During the course of evidence, the Trial Court has framed the additional charges for the offences under Section 372 of IPC and Sections 5(1) (a) (b) and (c) of the I.T.P Act. In order to prove the ingredients of Sections 366A and 372 of IPC, the prosecution has to establish that the Prosecutrix was aged below eighteen years, as on the date of the alleged offences. Ex.P5 is the complaint filed by the Prosecutrix and it was filed on 11.02.2011. As per the averments of the complaint, the incident had taken place eight months prior to the date of the complaint. In Ex.P5
- complaint, age of the Prosecutrix is mentioned as seventeen years. The Porsecutrix has been examined as PW5 and while describing herself, she has stated her age as twenty six years and the same has been noted in the preamble of her deposition. In her chief examination, the
- 10 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014 Prosecutrix has stated that she was aged seventeen years when she was sent in train to Delhi. In the cross examination, the Prosecutrix has stated that her age as on that date was twenty years and she do not know about her date of birth and she is not having any document to show her age. Her mother has stated her age to the doctor when she was examined by the doctor and she has denied the suggestion that she was aged 20-23 years. The doctor
- PW6 who examined the Prosecutrix on 11.02.2011 has mentioned the age of the Prosecutrix in her report as eighteen years. PW6 - doctor who examined the Prosecutrix has not stated in her evidence, as to what was the age of the Prosecutrix. Except the oral evidence of the Prosecutirx, no other evidence is placed on record either by document or by oral evidence, to establish the age of the Prosecutrix that she was less than eighteen years, as on the date of the offences.
- 11 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014
9. Sections 366A and 372 of IPC reads thus;
"366A. Procuration of minor girl. - Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
"372. Selling minor for purposes of prostitution, etc.- Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine."
10. In order to establish the above two offences, the prosecution has to establish that the Prosecutrix was a minor girl under the age of eighteen years. The
- 12 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014 prosecution has not placed any document to prove the age of the Prosecutrix. There is no medical test conducted to ascertain the age of the Prosecutrix, in the absence of any document to prove her age. Therefore, the prosecution has not satisfactorily established the age of the victim girl.
11. PW5 - Prosecutrix has deposed that earlier accused Nos.1 and 2 had got the job of Maid to her in Bengaluru and she did work as a Maid in Bengaluru for some period and after that she came back to Tumakuru. Even the said aspect has also been stated in the complaint - Ex.P5. As per the evidence of PW5 - Prosecutrix, accused Nos.1 and 2 took her to Bengaluru, in order to get a good job for her at Bengaluru and took her to railway station and made her to sit in the railway station along with a person aged sixty years and a lady aged 50 years and they said to her that they will take her to get a good job for her. Who are those two persons who were aged sixty years and fifty years?, has not been investigated. Whether the appellants
- accused Nos.1 to 3 have received any consideration for
- 13 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014 giving this Prosecutrix to those two persons?, has also not been investigated. Whether the Prosecutrix was taken to Delhi and she stayed for eight months there?, has also not been investigated. The Investigating Officer has not taken the Prosecutrix to Delhi to ascertain as to whether she was lodged in the brothel for a period of eight months. Unless the prosecution establishes that the Prosecutrix was lodged in a brothel at the instance of these appellants - accused Nos.1 to 3, the offences under Sections 366A and 372 of IPC, are not attracted. Even the prosecution has not placed on record, the stay of the Prosecutrix in the lodge / brothel, to attract the offences under Sections 5(1)
(a) (b) and (c) of the I.T.P Act.
12. PW6 - doctor who examined the victim girl gave a report - Ex.P6, wherein she has stated that the Prosecutrix has been infected with the sexually transmitted disease and there was a lesion measuring 12 x 10 cm. and it has covered her vagina. In the cross examination, PW6 has stated that the Prosecutrix had
- 14 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014 sexual intercourse with a person affected with the sexual disease. Therefore, there are chances of she getting the said sexual disease. Considering the said aspect, it cannot be said that the Prosecutrix had been lodged in a brothel and she has been sexually abused continuously for a period of eight months.
13. On reading of the entire evidence of PW5, it is clear that her testimony is not of sterling quality, to solely rely upon her testimony. Considering all these above aspects, it is clear that the prosecution has failed to establish the charges leveled against the appellants - accused Nos.1 to
3. The Trial Court without appreciating the evidence on record properly, has erred in convicting the appellants - accused Nos.1 to 3 for the offences under Sections 366A and 372 of IPC and Sections 5(1) (a) (b) and (c) of the I.T.P Act. in the result, the following;
ORDER The appeal is allowed. The impugned judgment of conviction and order on sentence dated 13.03.2014
- 15 -
NC: 2024:KHC:25903 CRL.A No. 546 of 2014 passed in S.C.No.31/2012 by the Principal District and Sessions Judge, Tumakuru is set-aside. The appellants - accused Nos.1 to 3 are acquitted of the offences under Sections 366A and 372 of IPC and Sections 5(1) (a) (b) and (c) of the I.T.P Act.
In view of the above, the N.B.W issued against the appellants - accused Nos.1 to 3 is recalled and accordingly, I.A.No.1/2024 is allowed.
Sd/-
JUDGE GH List No.: 1 Sl No.: 9