Chattisgarh High Court
Lakhan Bandra @ Sarjom vs State Of Chhattisgarh on 30 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 29/8/2022
Judgment delivered on 30/9/2022
Criminal Appeal No.1678 of 2018
Lakhan Bandra @ Sarjom S/o Shri Vijay Bandra, Aged
About50 years, R/o Village Sahni, Opposite Padampur
School, Uranv Mohalla, Police StationChakradharpur,
District Chaibasi (Jharkhand)
Appellant
(In Jail)
Versus
State of Chhattisgarh, Through - Police Station
Kotraroad, District - Raigarh (CG)
Respondent
For Appellant: Mr.Rishi Rahul Soni, Advocate
For Respondent/State: Mr.Sudeep Verma, Deputy Government
Advocate with Mr.Anmol Sharma,
Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 30.10.2017 passed by the learned Second Special Judge (POCSO), Raigarh, in POCSO Act 2012/18/2016, by which the learned Special Judge has convicted and sentenced the appellant in the following manner: 2 Conviction Sentence Section 363 of the IPC RI for three years and fine of Rs.1000/, in default, additional RI for six months.
Section 370(5)/34 of Imprisonment for life and the IPC fine of Rs.5000/, in default, additional RI for one year. Section 374/34 of the RI for six months and fine IPC of Rs.500/, in default, RI for one month.
2. Case of the prosecution, in brief, is that 67 months before 21.1.2016 the appellant took victim No.1 / (PW5) (daughter of Surender Gagrai) from Kirodimal Nagar, Raigarh to Delhi by practicing fraud, deception and inducement and she was sold to coaccused Champai Munda and thereafter coaccused Champai Munda took victim No.1 / (PW5) to the house of Monika Chawla where victim No.1 / (PW5) was engaged as maid servant and she was compelled to perform household works, cleaning etc. and thereby victim No.1 / (PW5) was exploited within the scope of Section 370(1) of the IPC. Further case of the prosecution is that the appellant also kidnapped the victim No.2 / (PW17) (daughter of Bhola Mudliya), aged about 10 years to Delhi where she was sold to coaccused Champai Munda and thereafter coaccused Champai Munda took the victim No.2 / (PW17) to the house of Shanti Golcha where victim No.2 / (PW17) was forcefully engaged as 3 maid servant and she was compelled to perform household works, cleaning etc. and she was harassed and exploited. Thereafter, FIR was lodged on 21.1.2016 (Ex.P8) by Kalyani (PW4) (mother of victim No.2 PW
17) and consequently on 27.1.2016 victim No.1 / (PW5) was recovered by baramadgi panchnama (Ex.P12). Similarly, victim No.2 / (PW17) was recovered on 27.1.2016 by baramadagi panchnama vide Ex.P10. Their MLC was conducted vide Exs.P15 and P16 respectively. After due investigation, the appellant only was chargesheeted for offences under Sections 363/34, 370/34, 374 and 107 of the IPC and Section 12 read with Section 17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as 'POCSO' Act) (other four persons are absconded). The accused / appellant abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 20 witnesses and exhibited 31 documents Exs.P1 to P31. However, the appellant / accused examined none in his defence and no document has been produced in his support.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.10.2017 while acquitting the appellant for offence under Section 12 read with 4 Section 17 of the POCSO Act convicted him for offence under Sections 363, 370(5)/34 and 374/34 of the IPC and sentenced for the aforementioned, against which, this criminal appeal has been preferred before us.
5. Mr.Rishi Rahul Soni, learned counsel for the appellant, would submit as under:
(i) That, ingredients of offence under Section 363/34 of the IPC are absolutely missing.
(ii) That, the prosecution has miserably failed to prove the offence of trafficking under Section 370(5) of the IPC. Therefore, it is liable to be quashed.
(iv) That, similarly offence under Section 374/34 of the IPC is also not made out. Therefore, the appeal deserves to be allowed.
6. On the other hand, Mr.Sudeep Verma, learned Deputy Government Advocate with Mr.Anmol Sharma, learned Panel Lawyer for the respondent/State, would support the impugned judgment and submit that trafficking of a person that too two minors is extremely serious offence and in view of evidence adduced on behalf of the prosecution, the trial Court is absolutely justified in convicting the appellant for the aforesaid offences by adducing legal evidence of clinching nature on record and as such, the criminal appeal deserves to be dismissed.
7. We have heard learned appearing for the parties and 5 considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ?
9. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under: "361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
10.The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients: (1) Taking or enticing away a minor or a person 6 of unsound mind.
(2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
(4) Such taking or enticing must be without the consent of such guardian.
So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and
(iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.
11. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and further held that if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as 1 AIR 1965 SC 942 7 under: "It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."
12.Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC and as well as the principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is quite vivid that victim No.1 has been examined as PW5. In her statement before the Court she (PW5) has categorically stated that the appellant had taken her on the pretext of serving at Delhi by train and she was employed in the house of Monika Chawla where she worked for four months, but no such money was given by Monika Chawla to her. However, in cross examination, she has also stated that while going to Delhi, the appellant, his wife and her friends mousi 8 was also accompanying her and for the purpose of working and getting Rs.4000/ she had gone to Delhi. Mother of victim No.1 Raimuni Gagrai has also been examined as PW11. Though in para2 of her statement she has stated that the appellant had sold her daughter at Delhi, but in her crossexamination, she has clearly stated that her daughter had gone to Delhi on her own will and the appellant had not kidnapped her. She has also stated that the appellant had not kidnapped daughter of Kalyani (victim No.2 PW17)). Similarly, victim No.2 (PW17) has stated in her statement before the Court that the appellant had taken her from Kirodimal Nagar to Raigarh and Raigarh to Delhi for roaming here and there. In para10, she has clearly stated that the appellant has not forced her to accompany her and go to Delhi. Similarly, Kalyani (PW4) (mother of victim No.2) has clearly admitted on being asked leading question on behalf of the prosecution that for the purpose of learning some work, the appellant had taken her daughter to Delhi and on being asked by her, the appellant had informed her, that after learning work she will come back after one month. She has also stated in para14 that the appellant had gone to Police Station Kotra Road for lodging report and helped her.
13.A careful perusal of the statements of two victims (PW5 and PW17) and their mothers Raimuni Gagrai 9 (PW11) (mother of victim No.1 PW5) and Kalyani (PW4) (mother of victim No.2 PW17), it cannot be held that the appellant had taken or enticed two victims within the meaning of Section 361 of the IPC and therefore, conviction recorded and sentence awarded to the appellant for offence under Section 363 of the IPC is liable to be set aside.
14.The appellant has also been convicted for offence under Section 370(5) of the IPC.
15.In order to consider as to whether conviction of the appellant under Section 370(5) of the IPC is justified or not, it would be appropriate to notice the provisions contained in Section 370(1) and (5) of the IPC which states as under: "370. Trafficking of person.(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by First. using threats, or Secondly. using force, or any other form of coercion, or Thirdly.by abduction, or Fourthly.by practising fraud, or deception, or Fifthly.by abuse of power, or Sixthly.by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation1.The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the 10 forced removal of organs.
Explanation 2.The consent of the victim is immaterial in determination of the offence of trafficking.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine."
16.Trafficking was brought in statute book as a offence under the Indian Penal Code by Criminal Law (Amendment) Act, 2013 w.e.f 3.2.2013. By bringing in the said amendment, the legislature has enlarged the scope of the offence under Section 370 of the IPC and included within its purview not just mischief of slavery, but trafficking in general of minors as also adults and also forced or bonded labourer, prostitution, organ transplantation and to some extent child marriages.
17.For the purposes of this new offence, the offender has been classified into five categories, thus covering every aspect of the commission of such offence. A person can be held liable within the mischief of this offence, if he either (i) recruits or (ii) transports,
(iii) harbours, (iv) transfers or (v) receives, a person or persons.
18.Exploitation is at the core of this new offence of trafficking. This exploitation can be deciphered from either of the following course of conduct: 11
(i) use of threats upon the victim who is being trafficked.
(ii) use of force, or any other form of coercion upon the victim who is being trafficked.
(iii) by means of abduction of the victim who is being trafficked.
(iv) by practising fraud, or deception upon the victim who is being trafficked.
(v) by abuse of power upon the victim who is being trafficked.
(vi) by inducement of the victim who is being trafficked, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received.
19.The first explanation that is added to this Section, further adds to the meaning of exploitation, any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude or forced removal of organs. The second explanation added to this Section, takes away the possibility of the accused from taking a defence of consent of the victim to any act of physical exploitation or other form of sexual exploitation, slavery or practices similar to slavery, servitude or 12 the forged removal of organs.
20.By order dated 24.6.2016 charge was framed against the appellant including for offence under Section 370/34 of the IPC, which states as under: "¼2½ rqeus mlh fnukad le; o LFkku es vo;Ld vfHk;ksD=h dqekjh 'khry eqnqb;k ,oa dqekjh lqdklh xxjkbZ mez dze'k% 10 o"kZ ,oa 14 o"kZ dks izdj.k ds Qjkj vfHk;qDrx.k ds lkFk fufeZr lkekU; vk'k; ds vxzlj.k ls 'kks"k.k ds iz;kstu ds fy, diV dk iz;ksx djds ;k izoapuk }kjk ;k mRizsj.kk ds }kjk ifjogu xzke fdjksMhey uxj ls mUgs fnYyh ys tkdj vkjksih pEibZ eq.Mk dks csp dj mudk nqZO;kikj fd;kA vkidk mDr d`R; /kkjk 370@34 Hkk-n-fo- ds rgr naMuh; gS ,oa bl U;k;ky; ds laKku esa gSA"
21.A careful perusal of the aforesaid charge framed by the learned trial Court against the appellant that prior to 21.1.2016 he in furtherance of common intention along with absconded coaccused persons for the purpose of exploitation and practising fraud/deception/inducement had transported victims No.1 / (PW5) and 2 (PW17) from Kirodimal Nagar to Raigarh and Raigarh to Delhi and sold them to coaccused Champai Munda and thereby committed the offence.
22.In order to convict a person for offence under Section 370 of the IPC i.e. trafficking a person, it is sine qua non that offence must have been committed for the purpose of exploitation. A person must have been transported, recruited, harboured or received for the purpose of exploitation. Explanation 1 also provides that the expression "exploitation" shall include any 13 act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
23.In the instant case, there is no allegation of sexual exploitation, slavery or practices similar to slavery, servitude or the forced removal of organs, if any, of the two victims.
24.The sole allegation is that the appellant had compelled victim No.1 and 2 to undertake the household works in the house of Monika Chawla and Shanti Golcha as maid servant. Kalyani (mother of victim No.2) has been examined as PW4. The prosecution has been allowed to ask leading questions from her. In para6 of her statement before the Court, she has clearly stated that the appellant had taken her daughter / victim No.2 to learn some work and on being asked by her, the appellant has also informed to her that her daughter will come after one month after learning work. In her crossexamination, she has also stated that the appellant had taken her daughter for the purpose of roaming here and there / for learning work. Similarly, Raimuni Gagrai (PW11) (mother of victim No.1) has stated that for the purpose of getting employment, the appellant had taken her daughter to Delhi and thereafter sold her. The prosecution has been permitted to ask leading questions, where she has 14 clearly stated that her daughter had gone to Delhi on her own will and the appellant had not forcefully taken her daughter to Delhi. She has further stated that the appellant had taken her daughter for earning Rs.4000/ per month. Similarly victim No.1 (PW5) has stated that the appellant had taken her to Delhi and she was asked to work in the house of Monika Chawla and she was worked for four months in the house of Monika Chawla, but no such payment was given to her by Monika Chawla. In para12, she has clearly stated that on the pretext of getting Rs.4000/ per month, she was taken to Delhi. Similarly victim No.2 (PW17) has also been examined. She has stated in her statement before the Court that for the purpose of roaming Delhi, she was taken to Delhi from Kirodimal Nagar, Raigarh, where she has asked to work in the house of Shanti Golcha and on being unwell, she was allowed by her employer to call her mother on the telephone. It is not the case of this victim that she was not paid any money. In para10, she has clearly stated that she was not forced to come from Raigarh and go to Delhi. She voluntarily joined for the purpose of moving and roaming.
25.A careful perusal of statements of the victim No.1 and 2 (PW5 & PW17) and their mothers i.e. Raimuni Gagrai (PW11) and Kalyani (PW4), it is quite vivid that though two victims were transported / transferred 15 from Raigarh to Delhi and they were asked to work as servant in the house of their respective owners, but there is no evidence on record to hold that they were taken to Delhi using threats or using force or any kind of coercion or by abducting them or by practising fraud or deception as their statements would show that both victims were though admittedly minors had gone to Delhi of their own for the purpose of learning some work / to move here and there or for the purpose of roaming. Though they were allowed to work, but only victim No.1 was not given salary for 45 months against her work, which she worked as maid servant, but there is no evidence on record that they were taken to Delhi for the purpose of exploitation, which is sine qua non for conviction for offence under Section 370(1) of the IPC.
26.The word "exploitation" has been defined in Black's Law Dictionary, Sixth Edition as under: "Exploitation. Act or process of exploiting, making use of, or working up. Utilization by application of industry, argument, or other means of turning to account, as the exploitation of a mine or a forest. State Finance Co. v. Hamacher, 171 Wash. 15, 17 P.2d 610, 613. Taking unjust advantage of another for one's own advantage or benefit (e.g. paying low wages to illegal aliens)."
27.Similarly, the word "exploitation" has been defined in Longman Dictionary of Contemporary English Edition as under: 16 "exploitation 1 a situation in which you treat someone unfairly by asking them to do things for you, but give them very little in return - used to show disapproval: [+of] The film industry thrives on the sexual exploitation of women. 2 the development and use of minerals, forests, oil etc for business or industry :
[+of] the controlled exploitation of resources | commercial/economic exploitation 3 the full and effective use of something : [+of] greater exploitation of these data 4 an attempt to get as much as you can out of a situation, sometimes unfairly : [+of] the exploitation of religion for political ends."
28.Reverting to the facts of the present case in light of aforesaid discussion, it is quite vivid that admittedly, two victims (PW5 & PW17) were taken from Kirodimal Nagar, Raigarh to Delhi, but they have joined the company of the appellant of their own for the purpose of getting employment / for the purpose of roaming at Delhi, which is apparent from the statements of their mothers Kalyani (PW4) (mother of victim No.2) and Raimuni Gagrai (PW11) (mother of victim No.1) and they were asked to perform household works, but the prosecution has failed to bring home the offence that they were exploited within the meaning of Section 370(1) of the IPC particularly there was no allegation of physical exploitation or sexual exploitation or they have been subjected to slavery or practices similar to slavery, servitude or forced removal of organs. However, salary of one of the victim (victim No.1) has not been paid, she was entitled for that, but the appellant cannot be convicted for offence under Section 370(5) of the IPC. 17
29.In view of aforesaid legal discussion, we are unable to hold that the appellant has kidnapped two minor victims (PW5 & PW17) for the purpose of exploitation within the meaning of Section 370(1) of the IPC and therefore, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 370(1) read with Section 370(5) of the IPC. However, his conviction and sentence under Section 374/34 of the IPC are hereby maintained as the prosecution has clearly established the offence under Section 374/34 of the IPC.
30.Consequently, criminal appeal preferred by the appellant is partly allowed. Conviction and sentences of the appellants under Sections 363 & 370(5)/34 of the IPC are hereby set aside. He be released forthwith unless required in any other case.
31.However, it is made clear that any observation made in this judgment is only for the purpose of deciding the appeal filed by Lakhan Bandra @ Sarjom and any observation made herein shall not be construed as an opinion with regard to role of other coaccused persons who are absconding or they are being tried separately in the same crime number.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/