Bombay High Court
Maya Nema Sharpa And Ors vs The State Of Maharashtra on 24 April, 2019
Author: Sadhana S. Jadhav
Bench: Sadhana S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 644 OF 2013
WITH
CRIMINAL APPLICATION NO. 1282 OF 2013
1 Maya Nema Sharpa,
Age: 40 years,
2 Seeta @ Anita Rambahadur
Tamang, Age: 45 years.
3 Pasang Laxman Sharpa,
Age : 65 years.
All residing at Kani-Kasturi Building,
Hanuman Tekadi, Bhiwandi,
Thane. ..Appellants.
v/s.
The State of Maharashtra,
Through Bhiwandi Police
station, Bhiwandi, District-Thane.
(C.R. NO. I-9/2009). ..Respondent.
Ms. Nasreen S.K. Ayubi, advocate for appellants.
Mr. S.S. Pednekar, APP for State.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : APRIL 24, 2019.
JUDGMENT :
1 The appellants are convicted for the ofence punishable under section 372, 366(A). 373 read with section 34 of the Indian Penal Code and under section 3, 4, 5, 6, 7(1)(b), 9 of Immoral Trafc (Prevention) Act, 1950 vide Judgment and Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 2 914.apeal644.13.doc Order dated 12/2/2013 passed by District Judge-4 and Addl. Sessions Judge, Thane in Sessions Case No. 147 of 2009. The appellants are sentenced to sufer R.I. for 7 years each and to pay fne of Rs. 1,000/- each I.d. to sufer S.I. for one year each under section 366(A) r/w. 34 of the Indian Penal Code. The appellants are also sentenced to sufer R.I. for 7 years each and to pay fne of Rs. 1,000/- each I.d. to sufer S.I. for one year under section 373 r/w. 34 of the Indian Penal Code. The appellants are sentenced to sufer R.I. for 3 years each and to pay fne of Rs. 2,000/- each, I.d. to sufer six months imprisonment each for ofence punishable under section 3(1) of Immoral Trafc (Prevention) Act, 1956. The appellants are also sentenced to sufer R.I. for a period of 7 years and to pay a fne of Rs. 1,000/- each I.d. to sufer one year S.I. for ofence punishable under section 4 of Immoral Trafc (Prevention) Act, 1956. The appellants are further sentenced to sufer R.I. for 7 years and to pay fne of Rs. 2,000/- each I.d. to sufer S.I. for one year for ofence punishable under section 5 of Immoral Trafc (Prevention) Act, 1956. The appellants are hereby sentenced to sufer R.I. for 7 years and to pay fne of Rs. 1,000/- each I.d. to sufer S.I. for one year each for ofence under section 6 of Immoral Trafc (Prevention) Act, 1956. The appellants are also Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 3 914.apeal644.13.doc sentenced to sufer R.I. for 7 years in view of Sec. 7(1-A) of the Act and to pay fne of Rs. 1,000/- each I.d. to sufer one year S.I. in relation to ofence u/s. 7 of Immoral Trafc (Prevention) Act, 1956. The appellants are also sentenced to sufer R.I. for 7 years with fne of Rs. 2,000/- each I.d. to sufer S.I. for one year in relation to ofence punishable under section 9 of Immoral Trafc (Prevention) Act, 1956. Hence, this appeal. 2 Such of the facts necessary for the decision of this appeal are as follows :
(i) That Non-Governmental organization namely Justice and Care International Mission has approached Bhiwandi Police Station and disclosed that the appellants herein were indulging into prostitution in a building namely, Kani-Kasturi, situated in Hanuman Tekadi area, Bhiwandi.
(ii) Sr. P.I. Tayde informed P.I. Sushil Javle P.W. 8 about the same. Two teams were formed. One headed by Mr. Javle and another headed by Sr. P.I. Tayde. A decoy customer was summoned. The building was raided at about 10.15 p.m. on 7/1/2009. Two ladies namely Pasang Sharpa and Seeta Tamang were sitting outside the room, in which the decoy customer had Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 4 914.apeal644.13.doc taken the victim girl. The girl was rescued.
(iii) Upon enquiry, she disclosed her age as 14 years. 9 other minor girls were found in the premises. Thereafter, complaint was lodged by ACP Londhe. The accused were prosecuted under the provisions of Prevention of Immoral Trafcking Act (hereinafter referred to as PITA Act).
(iv) After fling of the charge-sheet, case was committed to the Court of Sessions and registered as Sessions Case No. 147 of 2009. The prosecution examined 10 witnesses to bring home guilt of the accused.
3 P.W. 1 Ms. X is one of the victim. She was residing there for 2 months. According to her, 6 to 8 other girls were also residing in the said building and they were indulging into prostitution. According to the victim, accused Maya, Anita and Seema were running brothel and that the girls were forced to indulge into prostitution. That they were not given any money, but were only provided food and shelter. Her native place was Champati in West Bengal. According to her, one day she had come in contact with a woman namely, Sonali, who was the Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 5 914.apeal644.13.doc neighbour of her maternal aunt. The said woman called Sonali had forcibly taken the victim to village Goria and by Hawrah Railway she was brought to Pune. At Pune, the victim was handed over to the sister of Sonali and from there she was taken to a brothel. From there she had accompanied with unknown person to Kasturi building. She had identifed the accused in court, as the women who were running brothel. Sonali and Geeta are not accused in the present case and were not before the court in Sessions Case No. 147/2009. The victim has denied that she is more than 20 years old. She has also admitted that the accused Nos. 1 and 2 namely, Maya and Seeta were residing in Kasturi building at the time of incident. There are certain omissions, which are not material. 4 P.W. 2 is also a victim. She has identifed all the three accused before the court and she has reiterated the contentions of P.W. 1. She denied the suggestion that she was indulging into prostitution voluntarily to support her family and that she had sent money-order to her parents at the native place. She was aware that the police has raided Hanuman Tekdi area on several occasions. She has admitted that she had not complained to the police about her detention in the said Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 6 914.apeal644.13.doc building for the purpose of prostitution, although she had seen the police visiting the said area quite often. Two boys had brought her from Singur railway station and one Nepali woman had brought her from Pune to Bhiwandi and the said Nepali woman is not an accused in the present case. 5 P.W. 3 Viraj Londhe was working with Justice and Care International Mission. The NGO had information about running of brothel in Bhiwandi area and therefore, on 7/1/2009 he alongwith 2 lady employees namely, Shanan Dosar and Divya Salis had approached ACP Mr. Niphad and lodged the report. According to him, panchas summoned by the police were Nvel Salvi and Anita Jambhale. He has deposed before the Court about raid that had been conducted on 7/9/09. According to him, at the time of raid, lady accused namely, Maya had escaped from the premises and fed. He has denied the suggestion that the panchas as well as decoy summoned by the police were attached with NGO. He has identifed the accused before the Court. He has also admitted that accused Maya was not found. She had escaped from the rear side of the building from the rear side stair case. He was knowing Maya Sherpa even prior to raid. He had not seen her feeing from the Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 7 914.apeal644.13.doc building. He had personally enquired with the victim. He has proved the contents of the FIR lodged on 7/1/2009 and the same is marked as Exh. 39.
6 P.W. 4 Manoj Gurani was summoned to act as decoy customer. He has specifcally admitted that in the month of January, 2009. He was working as Social Worker i.e. NGO Justice and Care International Mission. Needless to state that the decoy customer was not an independent person but was provided by the NGO. He had admitted that he has no knowledge as to whether 2 teams were formed. He has also admitted that both the lady panches namely Shanan and Divya were working in the same organisation. In short, he has contradicted P.W. 3 Viraj Londhe in material aspect. He has also admitted that he had met Viraj Londhe and other members of the raiding party directly at the brothel. This would clearly indicate that the money was also provided by the NGO. It is pertinent to note that there is an admission by the witness that Kani Kasturi building is within a range 1 and half km. from the ofce of ACP, Bhiwandi. He has specifcally admitted that Rs. 200/- were given to him by police inspector Mr. Jaware. 7 P.W. 5 Anita Jambhale was called upon by Mr. Niphade Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 8 914.apeal644.13.doc to act as a panch. She has identifed all the three accused. She has proved the panchanama which is at Exh. 46 and which gives description of the spot where the raid was conducted. 8 P.W. 6 Anuradha Sutar was the lady police constable who was a party of the raiding team.
9 P.W. 7 Shantaram Tayde was ofciating as Sr. P.I. at Bhiwandi Police Station on 7/1/2009 and by that notifcation dated 14/3/2006, he was authorised to investigate cases under PITA. According to him, Crime No. 9 of 2009 registered at Bhiwandi Police Station was handed over to him for investigation. He verifed the complaint of Viraj Londhe at Exh. 39 and on 6/1/2009 he was summoned by ACP Bhiwandi and it was agreed to conduct a raid on the said building. This by itself would show that the said NGO had reported to the police on 6/1/2009 as the complaint was verifed by P.W. 6 on 6/1/2009. He has admitted that when he attended the ofce of ACP, panchas namely, Avinash Londhe, Manoj Gurani, Nobel Sharad Salvi and Anita Ramchandra Jambhale were present in the ofce of ACP. He has also admitted that prior to the raid, his team had not visited Bhiwandi Police Station. Panchas and witnesses were brought by ACP ofce.
Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 9 914.apeal644.13.doc 10 P.W.8 Sushil Javle was also attached to Bhiwandi Police Station as P.I. He has also corroborated the evidence of P.W. 6 and 7. However, according to him, the girls who were taken in custody were referred for medical examination and except Manisha @ Riya Mandal. All other girls had attained majority and the said contention is supported by certifcate issued by Indira Gandhi Memorial Hospital, which are at Exh. 85 to 93. 11 P.W. 9 Dr. Babasaheb Sorte working in IGM hospital and he has proved the certificate issued by Dr. M.G. Pandit, who was bed-ridden as he was a victim of paralysis. He has proved the certifcates which are at Exh. 85 to 93. 12 P.W. 10 Dr. Jayashri Mhaske had examined the patient at IGM on 8/1/2009. She has proved that Priya Mandal was minor i.e. 16 years old. She has reiterated that except Priya Mandal, all other girls were major.
13 There is no doubt that there are lacunas in investigation in as much as the complainant claimed to be a social worker. The witnesses, panchas and the decoy customer were provided by the NGO and therefore, it cannot be said Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 ::: 10 914.apeal644.13.doc prima facie the investigation was conducted by the police department as such. However, the evidence on record would indicate that the victims had identifed the accused persons in the brothel. It is clear that the accused/appellants were in fact running the brothel and living on the earning of the prostitution. The beneft of lapses in investigation in the present case cannot be extended to the accused.
14 It is true that the said building is situated within close vicinity of the police station. However, cognizance was taken by the police only on a report fled by NGO. It also appears that the appellants are in custody since 2013. That prior to the raid conducted on 7/1/2009 also they were prosecuted. A report was called from the jail authorities to verify the period undergone. However, it appears that they were in custody during the trial i.e. since 7/1/2009 and were released after completion of sentence on 4/5/2015. The appellants have undergone the substantive imposed upon them by the Sessions Court. There is no serious challenge to the merits of the matter. Hence, appeal deserves to be dismissed.
15 Hence, following order is passed
Talwalkar
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ORDER
(i) Appeal stands dismissed.
(ii) In view of dismissal of Criminal Appeal, the Criminal
Application does not survive. The same is accordingly disposed of.
(iii) Learned counsel Ms. Nasreen Ayubi is appointed to espouse the cause of the appellants. She has put in best of his eforts to espouse the cause of the appellants. Her professional fees are quantifed as per rules to be paid by the High Court Legal Aid Services Committee, within three months. 16 The appeal stands disposed of accordingly.
[SMT. SADHANA S. JADHAV, J.] Talwalkar ::: Uploaded on - 17/12/2019 ::: Downloaded on - 07/04/2020 17:09:44 :::