Karnataka High Court
Choodamani W/O Mariswamy @ Swamy vs The State Of Karnataka on 19 June, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1560/2005
BETWEEN:
1. CHOODAMANI
W/O.MARISWAMY @ SWAMY
AGED ABOUT 41 YEARS
2. MARISWAMY @ SWAMY
S/O.ALUGUDDAIAH
AGED 50 YEARS
BOTH ARE RESIDING AT:
NO.83, 3RD CROSS,
LOKANAYAKANAGARA,
METAGAHALLY POST,
MYSORE.
... APPELLANTS
(BY SMT. SANDHYA JAMADAGNI, &
SRI. N. SATISH KUMAR ARADHYA, ADVS.`)
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF
NAZARABAD POLICE STATION,
MYSORE.
... RESPONDENT
(SRI. G.M.SRINIVASA REDDY, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 CR.P.C. AGAINST THE JUDGMENT DT.
23.08.2005 PASSED BY THE P.O., F.T.C.-III. MYSORE
IN S.C.NO.315/2002, CONVICTING THE APPELLATNS-
ACCUSED 1 AND 2, FOR THE OFENCE P/U/S.366
R/W 34 OF IPC AND SECS:4 AND 5 OF THE
EIMMORAL TRAFFIC (PREVENTION) ACT, 1956 AND
ETC.,
THIS CRIMINAL APPEAL COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated 23.08.2005 passed by the Presiding Officer, Fast Track Court-III, at Mysore, in S.C.No. 315/2002 convicting the appellants of the offence under Section 366 r/w Section 34 IPC and under Section 4 and 5 of Immoral traffic ((Prevention)) Act, 1956 and sentencing them to undergo RI for three years and to pay a fine of Rs.1,000/-, in default, to undergo SI for two months for the offence under Section 366 r/w Section 34 of IPC and further sentencing each of them to undergo RI for six months for the offence under Section 4 of Immoral Traffic (Prevention) Act, 1956 and further sentencing them to undergo RI for three years and to pay fine of 3 Rs.2,000/- each in default to undergo SI for three months for the offences under Section 5 of the Immoral Traffic (Prevention) Act, 1956.
2. It is the case of the prosecution that the appellants on 12.08.2002, at about 4.00 PM near the park situated near Basappa Memmorail hospital within the jurisdiction of Jayalakshmipuram Police Station with an intention to induce minor girls by name Madhu and Sheela to go from place to place seduced them to illicit intercourse with other men by means of criminal intimidation, thereby they are alleged to have committed offence under Section 366A and 366 IPC r/w section 34 of IPC.
3. It is the further case of the prosecution that on the aforesaid place, date and time, both the appellants procured CW8 and CW9 from the above said place in a car and took them to J.C. Engineering College for prostitution and took an advance of Rs.4,000/- from one CW3 Nagaraju, knowingly that they would live on 4 the said amount thereby they have committed an offence under Section 4 of Immoral Traffic (Prevention) Act. It is the further case of the prosecution that on the aforesaid place, date and time, both the appellants procured the CWs8 and 9 and took them in car for the sake of prostitution after taking an advance amount of Rs.4,000/- from CW3 Nagaraju. Therefore, they are alleged to have committed an offence under Section 5 of the of Immoral Traffic (Prevention) Act.
4. The prosecution in order to prove the case, has examined in all 13 witnesses and got marked exhibits P1 to P11 and produced Mos 1 to 3. The defence of the accused is one of total denial. They have got marked Ex. D1 being the statement of one Bharathi PW8.
5. The learned Sessions Judge after having heard the counsel for the appellants and the respondent herein, found the accused guilty of the offences mentioned above and sentenced them as above said. It 5 is the aforesaid judgment of conviction and sentence which has been challenged by the appellants in this case.
6. The Women Police Station, Mysore received a complaint from the Director of Odanadi Seva Samsthe, Mysore, on 12.08.2002 at about 15.50 hours. In the said complaint the complainant has stated that the said institution is working for the last 10 years against the sexual exploitation of women and children and also prevented transportation of women and children and they had already exposed about 10 such scams/illicit gangs with the help of police, within the legal frame work. They are working against the prostitution in the city of Mysore and one Chudamani, who is also called as Mobile Chudamani and one Swamy who is an employee of Vikranth Tyres were carrying on prostitution and were inducing the men for procuring persons for sexual use and hence after having received the information for the previous six months from the public they have been trying to fix them in the legal 6 frame work. It is stated in the complaint that in order to bring them within the legal frame work, the complainant's institution had laid a trap and by requesting one Bharathi who is a field worker in the said organization, to contact Chudamani and informing the accused that they are in need of personnel for the purpose of some industrialists and foreigners and also informing that they require small girls for the said purpose and that they would give more money. They had sent the said Bharathi to the accused. Hence posing Nagaraj as a customer, the aforesaid Bharathi introduced herself to Chudamani and offered a sum of Rs.10,000/- per girl and requested the accused for sending two girls for the said purpose. The aforesaid Chudamani gave her mobile No. 6844119971 and requested to contact her through the said mobile phone and on 12.08.2012 Choodamani informed her (Bharathi), that she would bring the girls near BMS Hospital. Accordingly, at about 4.00PM on 12.08.2002 the aforesaid Nagaraj contacted Choodamani in phone 7 No. 9845110607 and also 460581. The complainant stated that Nagaraj while going to the said spot has taken a sum of Rs.4,000/- in the form of 38 Nos. Rs.100/- notes and 4 Nos. of Rs.50/- notes and he has noted down the serial numbers. The said numbers are found in the complaint. Thereafter it is informed that the complainant would be arriving in a vehicle No.KA 09 8879 and accordingly when they arrived at the spot, Chudamani had brought two minor girls along with her and as per the previous discussion, a sum of Rs.4,000/- was given to her and the girls were made to sit in the car which went ahead on the Hinkal Road. One Swamy who posed himself as husband of the Chudamani was following the car in his Kinetic vehicle. It is mentioned in the complaint that in this connection the complainant has already informed Jayalakshmipuram Police Station and after knowing the importance of the said matter one P.C. No. 859, Shanthashetty was sent in the civil dress along with them. When the car was going towards J.C. Engineering College, the police 8 surrounded the said vehicle and all the inmates along with the car were brought to the police station. On questioning the minor girls, they informed that they are from Sathanur in Mandya District and from Raichur respectively and that they have been already put into the business and that they are staying in the house of the appellant Chudamani. Some of the notes given to Chudamani contained signature of Stanely. A mobile set was found in the hand of the aforesaid accused. It is stated that she had brought the girls by promising them to join them in the cinema field and she was inducing them. Hence suitable action is prayed for taking further steps in respect of the girls by name Sheela and Madhu who were apprehended by the police. It is also stated that the girls were kept in unlawful custody and the accused were making use of them for the purpose of prostitution and thus securing profit and eking their livelihood. The said complaint has been signed by Stanley David and also one Parashuram, Smt. Shobha, advocate and one Sri. Nagaraju. The women's Police 9 Station, Mysore on receipt of the above complaint in writing registered the same as Crime No.113/2002 for offence under Section 366, 366A of IPC read with Sections 4 and 5 of Immoral Traffic (Prevention) Act.
7. PW12 K.M. Arifulla, the Inspector of Police, was the in-charge of the women's police station during the said period. On 12.08.2002, at about 19.50 hours on receipt the complaint from the Odanadi institution along with the accused and the victims, he registered the above case in Crime No. 113/02. The complaint has been marked as Ex.P4. Thereafter he has seized Rs.4,000/- found in the possession of accused No.1 and also one mobile phone and a Mahazar has been drawn in this connection, which is marked as Ex.P1.
8. On 13.08.2002 the girls by name Sheela and Madhu were sent for medical examination and also for determining their age, to the Cheluvamba Hospital along with one staff. Both accused Nos. 1 and 2 were subjected to production before court who were 10 remanded to custody. The inspector thereafter visited the scene of occurrence and prepared a panchanama as per Ex.P5. Thereafter he visited the place near J.C.Engineering College where the incident took place and prepared a Mahazar as per Ex.P7. PW12 has thereafter recorded the statement of the minor girls and also the other witnesses connected with the case. On 14.08.2002 he has recorded the statement of witness Bharthi and secured the details of mobile phone used by Bharathi in this case. On 19.08.2002, PW12 has questioned one Prabhu PW7(b). On 22.08.2002, PW7 Stanely produced one audio cassette before the investigating Officer, said to be containing the discussion between the accused and the complainant which has been seized as per Ex.P6. The said cassette was subjected to PF. It is marked as MO3 before the court. On 13.09.2002 on receipt of the call details of the mobile MO1 which is marked as Exs.P12 and P13 and after obtaining the medical certificate in respect of the victim girls, PW12 has filed the charge sheet and 11 produced the accused before the court. Since the offence was exclusively triable by the court of Sessions, the third Additional CJM, Mysore, committed the case to the court of Sessions on 22.10.2002. The learned Fast Track Court-III, Mysore on receipt of the said case framed the charge against the accused persons for which they have pleaded not guilty.
9. PW1 is one Purushotham, who has stated that he is a director of Odanadi Seva Samsthe, Mysore and that he knows accused Nos. 1 and 2 and also the witnesses in this case. He has stated that one Smt. Shobha is the legal advisor of the said organization. He has also stated that he knows CW8 Sheela and Madhu. It is in the evidence of PW1 that on 12.08.2002 and about two weeks earlier they have received certain information that some scam is organized regarding sale of minor girls for the purpose of prostitution and certain persons are earning from such activities. The Central Government has sanctioned the project to the organization of the complainant by name SWADHAR. 12 Under the said project they were required to take care of the exploitation of the minor girls by unlawful elements. They also received information that accused Nos. 1 and 2 were indulging in the above said act of exploiting the girls in prostitution for earning money. It is in the evidence of PW1 that as per the legal advice of CW4, Smt. Shobha, they have sent one Nagaraju with cash of Rs.4,000/- by making special markings on the currency notes. They instructed the said Nagaraju to trap the accused on 12.08.2002. Nagarju had contacted accused No.1 Chudamani and there was agreement for supplying two girls on payment of Rs.4,000/- as advance and the total amount agreed was Rs.10,000/-. It is further stated by PW1 in the court that accused No.1 had informed him that she would bring the said girls at 4.00PM on that day near BMS Hospial, Mysore and therefore he has informed the same to the Police Inspector of Jayalakshmipuram Police Station. The inspector sent one Shanthashetty, police constable to assist him in conducting the said operation to trap the 13 accused. Accordingly, himself, Shobha, Bharathi and others went near the spot near BMS Hospital in a Santro Car at about 4.00PM. PW2 Nagaraju was present near the spot along with the Santro Car. At that time, both accused Nos. 1 and 2 came on their respective two wheelers along with the two girls. Accused No.1 got down from her motorcycle and boarded the car of PW2 Nagaraju along with the two girls. Accused No.2 Mariswamy was following the said car of PW2 on his own vehicle. PW2 and accused were moved towards Hinkal-Mysore-Hunsur Road. PW1 followed them in his own car at Hinkal, accused No.1 Choodamani got down from the car and from the phone booth she telephoned to somebody and at that time, PW2 informed him through his mobile phone to conduct the raid. Accordingly, they went near the car. At that time accused No.1 had already received Rs.4,000/- from PW2 Nagaraju. On enquiry with the accused No.1, she told that the said two girls brought by her are cinema artists and on demand by PW2 as a film producer she is 14 taking them with PW2 Nagaraju. At that time, PW2 informed the accused that she had agreed to supply the girls for the purpose of prostitution at the rate of Rs.10,000/- per night and that he had paid advance of Rs.4,000/-. PW1 enquired with the girls and they disclosed their names. Thereafter the accused and the girls were brought to Jayalakshmipuram Police station. The inspector asked them to take them to the Mahila Police Station. Accordingly they were taken to the Mahila Police Station, Mysore. During all these operations, one Shanthashetty, police constable was present with them. A complaint was lodged before the Mahila Police Station, Mysore and police seized cash amount of Rs.4,000/- from accused No.1 Chudamani for which a Mahazar has been drawn. In the cross- examination, it is suggested that PW7 Stanely and PW6 Shobha and himself had met together and have prepared a case for falsely implicating the accused. It is further suggested that there is no evidence to show that accused were involved in the prostitution earlier and 15 that there is no evidence of any person who has come forward to say that the accused were involved in such profession. It is further suggested that they have conspired together to file a false case against the appellants in order to show that they have been doing some work in this field and to claim money from the central government. However the said suggestions have been denied by PW1.
10. PW2 Nagaraj is also another witness belonging to Odanadi organization. His evidence is also similar to that of PW1. In so far as the incident of handing over the money is concerned he has stated that when he was in the canteen of the BMS Hospital, amount of Rs.4,000/- was handed over to the first accused Chudamani. According to the case, PW2 is the person who has originally contacted the accused No.1 and had conversed with her over the mobile. It is in his evidence that he had fixed the amount of Rs.10,000/- as the consideration for procuring two girls. It is in his evidence that after giving custody of two girls, the 16 balance was to be paid to the accused No.1 and he had conversed with her about this over the mobile. It is his evidence that he had fixed the amount of Rs.10,000/- as the consideration for procuring the two girls. He has further stated that he had been in his Santro car bearing No.KA 09 8879 and that as on the date of incident i.e., on 12.08.2002 he has handed over a sum of Rs.4,000/- to accused No.1, towards part payment in this transaction. It is in his evidence that the conversation between himself and the first accused has been recorded in audio cassette and the same has been produced before the investigating Officer and the same is marked as MO3 before the court. In the cross- examination it is suggested that, himself and PWs 1 and 3 have falsely implicated the accused and that the accused had never supplied any girls for the purpose of prostitution. He has admitted in the cross-examination that the conversation was recorded while they were in the car and the same was done without the knowledge of the accused. Both the victims and the first accused 17 were inside the said car, the decision to record the transaction in the cassette was taken earlier and the discussion in the car was in respect of giving the girls for prostitution. Thereafter the police had surrounded them. It is elicited that there was no hindrance for handing over cassette MO3 to the police on the same day when the incident happened.
11. PW3 Krishnamurthy is the Inspector of Police at the Jayalakshmipuram Police Station. He has stated that on 12.08.2002 PW1, 2 and 5 approached him with a request for assistance for trapping the accused in a prostitution case. He has sent PW11 Shanthashetty, police constable in civil dress along with the complainant and others. After the trap was conducted, he had directed the complainant and the police to produce the accused before the women's police station.
12. PW4 Dr. Indira Devi, who is the senior Specialist in the Nanjangud Hospital has stated that at the request of the police, she had examined both 18 Sheela and Madhu and she has given certificates as per Exs. P9 and P10 stating therein the age of Madhu is between 17 and 18 years and that of Sheela is between 18 and 19 years.
13. PW5 Smt. Shobha is an advocate practicing in Mysore. She has stated that she is actively involved in the programmes of the complainant's institution, Odanagdi Samsthe, Mysore. She has stated that she has assisted the operation conducted by PW12 and others in respect of this incident.
14. PW6 Srinivas.Y.G. is a contractor who has signed Ex.P5 Mahazar, which is drawn by the police at the scene of occurrence where the prosecution witnesses have alleged that the advance of a sum of Rs.4,000/- was given to the accused.
15. PW7, Stanley, is the Secretary of Odanady Organisation. His evidence is similar to that of PWs 1 and 2. It is in his evidence that he has signed certain 19 currency notes which have been subsequently handed over to the accused.
16. PW8 Bharathi is another functionary of the Odanadi organization. She has stated that herself and her husband namely K.B.Shiva contacted the first accused in her house at Sharadha Nagar about 15 days prior to the incident. She introduced herself as an agent and her husband as a customer and contacted the first accused. She observed two to three minor girls in the house of accused No.1. The girl supplied tea and biscuits to them. Thereafter, she discussed with the accused and it is stated that the first accused informed PW5 that she would procure a girl for Rs.5,000/- per night. At that time, she informed first accused that it is not possible for the customer to pay so much of amount and thereafter she went away by saying that she would get some other customers subsequently. First accused had given her mobile number to PW8.
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17. It is stated in the evidence of PW8 that on 06.08.2007, the first accused was contacted by her stating that some customers have come from Bombay who require some girls. First accused promised her that she would bring girls near hotel Nalapaka near Double Road at Kuvempunagar, Mysore and accordingly on the same day herself along with PW2 Nagaraj went near Nalapaka hotel. The first accused had brought the girls. Thereafter, they conducted a raid for one round and the name of the girl is informed as Kum.Sheela. At that time, PW2 Nagaraj informed her that he has one more friend from Dubai for whom she should procure one girl and the said friend is ready to give any amount, for which the accused agreed.
18. It is stated in the evidence of the PW8 that on 12.08.2002 , a raid was conducted as mentioned by PW1 & PW2 and in the raid, the accused had received an amount of Rs.4,000/- as consideration for supply of two girls. In the cross-examination of PW8, it is elicited that she has come to the Court for the first time and 21 that the institution knows about what work they are doing. It is suggested that she is deposing falsely and that the accused are not carrying on any illegal trade as suggested by PW8.
19. PW9 is a Signatory to Ex.P7 which is a Mahazar drawn by the police near J.C.Engineering College, Mysore. PW10 Dr.Kumar who is working as a Lecturer in Government Medical College, Mysore, has stated that he has examined one Madhu aged about 18 years on 13.08.2002, in order to determine her age. After examining the said Madhu, PW-10 has come to the conclusion that the age of the said girl is between 17 and 18 years. Accordingly, he has issued a certificate as per Ex.P9 and on the same date he has also examined one Kum. Sheela regarding her age and he has opined that Sheela is aged between 18 and 19 years. PW11- Shantha Shetty is a Constable who has assisted in the investigation. PW12-K.M.Arifulla is the Inspector of police whose evidence has been discussed earlier. PW13 Madhu is the victim girl and she has stated that she 22 was working in Archana Nursing Home, Mandya as a maid servant. At that time, she came into contact with one Prabhu who is carrying on cloth shop business in Bangalore. She stayed in the house of Prabhu for one month. At that time, accused Nos.1 and 2 came to the shop in the evening. When she completed her work and went to the house of Prabhu, accused Nos.1 and 2 had come to the house and they had discussion between themselves and Prabhu informed her to go along with accused for about 10 days. Prabhu informed her that accused Nos.1 and 2 would leave her back after 10 days, otherwise he himself would come and take her. However, Prabhu did not inform her as to what is the nature of work to be done in the house of the accused. Thereafter, she came to Mysore along with accused Nos.1 and 2 and remained in the house of the accused. She has stated that there were other persons in the house. She does not know the name of the said girls. On the next day, accused told her that she should be ready by 3.00 p.m., and they also told another girl to be ready. 23 However, they did not inform her as to where they would take her. They were taken in an auto near B.M.Hospital by accused No.1. Accused No.2 Mariswamy came on a motorcycle. Thereafter, they made them eat in a hotel and then they were taken in a car and after going in the car for about five minutes, some persons surrounded the car and she came to know that they belong to some organization and there was also one police among them. Thereafter, they were taken to the police station.
20. It is from the above evidence of the prosecution that the learned Sessions Judge has convicted the accused and sentenced them as aforesaid.
21. Heard Smt.Sandhya Jamadagni and Sri.N.Satish Kumar Aradhya, learned counsel for the appellants and Sri. G.M.Srinivasa Reddy, learned HCGP for the state.
22. Learned counsel for the appellants submit that except the version of members of Odanadi 24 organization, there is no other witnesses examined in this case to prove that the accused were procuring the girls for the purpose of prostitution. It is further submitted that PW13 who had been examined before the Court also did not say as to what purpose she was brought by the accused from Bangalore to Mysore. The prosecution has not examined CW-7(b), Prabhu, who would have thrown light regarding the purpose for which PW2 was procured by accused Nos.1 and 2. In the evidence of PW13, no where it is mentioned that she was being taken for the purpose of prostitution. There are no other witnesses speaking to the fact that accused were carrying on the business of prostitution neither prior to the date of incident nor at the time of the incident. It is further submitted by them that, the only evidence available is that of PW2-Nagaraj and PW8- Bharathi.
23. In the evidence of PW8 Bharathi, it is mentioned that she had contacted the accused by going to the house of accused No.1 and by showing her 25 husband as a customer. At that time the accused had told her that they are going to supply girls for prostitution. Except this version of PW8, Bharathi, there is no direct evidence to prove the aspect that the accused were indulging in procuring girls for prostitution. The evidence of PW2-Nagaraj ought to have been supported by the cassette said to have been produced by him before the police as per MO3. However, the said cassette was not produced on the date of incident. There was no reason why it has not been produced on that date though PW2 was in possession of the same, when he went to the police station. The said cassette was produced after 10 days i.e., on 22.08.2012 by PW2 and therefore there is a possibility of meddling with the said cassette in order to achieve success in their operation. It is also not sealed either on the date of incident or subsequently.
24. It is their further submission that when cassette was produced before the Court, the voice in the cassette was not audible as observed by the Trial Court 26 and hence, the contents of the said cassette will not corroborate the evidence of the prosecution witnesses. Under the circumstances, they submit that entire case of the prosecution is not supported by cogent and clear evidence. Hence they submit that order of conviction against the appellants may be set aside and they may be acquitted by allowing this appeal.
25. Sri. G.M.Srinivasa Reddy, the learned HCGP on the other hand submits that the evidence of PW8 Bharathi is clear on the aspect of the business carried on by the accused Nos.1 and 2. She has categorically stated that when she went along with her husband to the house of accused, accused No.1 informed her that they supply girls for prostitution and that she is ready to supply girls as and when PW8 brings proper customer. The said interaction between the accused No.1 and PW8 was followed by the raid on 12.08.2002 and the accused were receiving an amount of Rs.4,000/- as part payment in consideration of supply of two girls for prostitution. It is further submitted by 27 him that PW13 in her evidence has stated that she had come to know that she was being sold. Hence, he submits that the order of conviction passed by the learned Sessions Judge is based on the evidence on record and does not call for interference in this appeal. Hence, he submits that the appeal may be dismissed.
26. It is also the submission of learned HCGP that the organization of the complainant is a well known organization working for the interest of society and that they have been financed by the Ministry of Human Resource Development, Department of Women and Child Welfare, Government of India and that their task is to combat trafficking of children for commercial and sexual exploitation and the Government has spent huge sum of money supporting the project of the organization in order to eradicate the social evil of prostitution, particularly concerning the minor female children. It is his submission that there is no reason by the evidence of PWs.1, 2, 5, 7 and 8 should be disbelieved and that the learned Sessions Judge has rightly convicted the 28 accused and the said order of conviction and sentence does not warrant interference. Hence he submits that the appeal may be dismissed.
27. I have carefully gone through the entire evidence on record. It is seen that the Odanadi Organization in its strive to assist the society in combating the social evils of prostitution, particularly involving minor girls has been doing yeoman services to society. Pursuing their goal, they have been assisting the police by brining to the notice of the police certain illegal activities. In this direction, the raid as mentioned in this case has been conducted. There is no reason to suspect the bonafides of the organization, more particularly, that of PWs.1, 2, 4, 7 and 8 who have spent their time and energy in this project bringing the social evils to the notice of the law-enforcing authorities. However, insofar as the legal aspect of the matter is concerned, the case should come within the frame work of law and keeping this requirement of law in mind, I proceed to appreciate the evidence on record. It is seen 29 from the evidence of prosecution witness that except the evidence of PWs 2 and 8, the evidence of other witnesses is of no consequence to decide this case. PW8 had approached the accused for the first time in this case and it is PW8 who presented herself as a broker for securing the girls used for the purpose of prostitution. However, on the day when she went to the house of the accused No.1, no transaction took place and PW8 along with her husband returned promising to come back after some time.
28. On the date of incident, PW2 had contacted the accused No.1 and it is stated by PW2 that an understanding was arrived at between accused No.1 and PW2 that accused Nos.1 and 2 would supply girls for the purpose of the prostitution. However, when PW2 was examined before the Court with the specific question regarding the purpose for which the girls were brought, it is deposed by PW2 that the accused No.1 has stated that she has supplied the girls to film industry as junior artist and not for the purpose of 30 prostitution. Nowhere in the evidence of prosecution witnesses except that of PW2 it is mentioned that the girls were supplied for the purpose of prosecution. Now this aspect of the case has been recorded in the cassette MO3 as per the version of PW2. However, instead of handing over the said cassette on the date of incident itself, PW2 did not feel it proper to surrender the cassette atleast immediately after the incident, but it is only on 22.08.2002, after 10 days, he had produced MO3 before the police. The said cassette was neither sealed nor kept in secure custody between 12.08.2002 and 22.08.2002.
29. The learned Sessions Judge further states that the contents of the said cassette is not audible and no clear evidence is produced to disclose the contents of the cassette MO3 and therefore the contents of MO3- Cassette cannot be taken into consideration for the purpose of supporting the case of the prosecution. Therefore, there is only the oral testimony of PW2 which is available on record in support of transaction 31 regarding the allegations that accused Nos.1 and 2 had procured the girls for the purpose of prostitution. So far as PW13, Madhu, the victim is concerned, nowhere in her evidence she states that the accused was carrying on the business of the prostitution. Though she stayed for about one week prior to the incident in the house of the accused, she is unaware as to the purpose for which she was brought from Bangalore to Mysore. Further victim Kum.Sheela has not been examined by the prosecution. Therefore, the evidence of PW13 does not support the case of the prosecution to hold that the accused No.1 was procuring the girls for the purpose of prostitution. PW13 only says that she came to know that she was brought for selling her, but her evidence does not indicate that there was any prostitution carried on in the house of accused No1 when she was staying in the said house.
30. Though the evidence of PW8 indicates that since the accused were carrying on the prostitution a raid was conducted, no other materials are produced by 32 the prosecution to hold that either the accused No.1 or accused No.2 were involved in similar offences earlier to the date of incident. Therefore, the evidence of PW8 in these aspects is only oral testimony and is not supported by any cogent material to hold that as on the date of alleged incident the accused were already carrying on the profession of prostitution.
31. So far as order of conviction by the learned Sessions Judge is concerned, accused are convicted for the offence under Section 366 r/w 34 of IPC. The evidence of the Doctor PW4 Indira Devi and PW10 Dr.Kumar indicates that the age of the victim PW13 is between 17 and 18 years as per the test conducted by him in the person of the said PW13. The Hon'ble Supreme Court has held that there would be a margin of two years either side in respect of the rural girls in respect of determination of the age through medical evidence. If that is taken into consideration and in the absence of any documentary evidence, proving the exact 33 date of birth of PW13, it cannot be held conclusively that the PW13 was a minor on the date of incident to attract an offence under Section 366-A of IPC. The learned Sessions Judge has found the accused guilty for the offence under Section 366 IPC. However the said finding ought to have been supported by the cogent and clear evidence regarding subjecting PW13 to marry any person against her will or subjecting her to illicit sexual intercourse. There is no evidence at all in this case alleging that the victim PW13 had been subjected to illicit sexual intercourse or forced to marry some one. Hence the conviction of appellants for offence u/s 366 r/w Section 34 IPC is bad in law and is liable to be set aside.
32. So far as the offence under the Immoral Traffic (Prevention) Act is concerned, it is relevant to note that the prosecution has not proved that prostitution has been in fact carried on, in consequence of payment of cash and therefore, no one has been injusticed in this case. The act of the accused if at all 34 believed, would amount to only preparation for committing the offence and not even attempt to committee the same.
33. In that view of the matter, I am of the opinion that the findings of the learned Sessions Judge is against the evidence on record and that the learned Sessions Judge could not have legally convicted the accused for the offence under Section 366 of IPC, so also for the offences under Sections 4 and 5 of the Immoral Traffic (Prevention) Act. From what is discussed above, I am of the opinion that the accused are entitled for an order of acquittal. Accordingly, the following ORDER
i) The appeal is allowed.
ii) The order of conviction and sentence passed by the learned Sessions Judge for the offence leveled against the appellants is hereby set aside and they are acquitted of the said offences.
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iii) Bail bonds executed by the appellants is hereby cancelled. Fine amount if deposited, shall be refunded to them.
Sd/-
JUDGE Bsv/VM