Madras High Court
Mariakutty @ Thangam vs State Of Tamil Nadu on 7 June, 2002
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/06/2002
Coram
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
CRIMINAL APPEAL NO.62 OF 1992 AND CRIMINAL APPEAL NO. 64 OF 1992
C.A.No.62 of 1992:
Mariakutty @ Thangam .. Appellant
vs.
State of Tamil Nadu,
Udhagamandalam Town Police
Station. .. Respondent
C.A.No.64 of 1992:
D.Ethiraj .. Appellant
Vs.
State by the
Deputy Superintendent of Police,
C.B.C.I.D., Coimbatore .. Respondent
Criminal Appeal against the Judgment dated 24.1.1992 in S.C. No.11 of
1989 on the file of the District and Sessions Judge, Uthagamandalam.
!For Appellant in : Mr.J.I.Rajkumar Roberts
C.A.No.62/1992
For Appellant in : Mr.Hameed Ismail
C.A.No.64/1992
^For Respondent : Mr.O.Srinath,
in both C.As. Govt. Advocate.
:JUDGMENT
Mary Kutty alias Thangam (A1) kidnapped Sasikala (P.W.2) and Vijaya (P.W.3), the young girls from Ooty and took them in a bus to take them to Madras with an intention to engage them in prostitution. Santa Cruz (P.W.1), the father of P.Ws.2 and 3 gave a complaint to the police that his daughters were missing. On the information given by Ooty Police, the Salem Police intercepted the bus in which A1, P.W.2 and P.W.3 were travelling and rescued P.Ws.2 and 3 and arrested A1. During the course of investigation, it was revealed that Ethiraj (A2) being the Deputy Superintendent of Police at Ooty claiming to be the husband of A1 abetted the act of A1 Mary Kutty in kidnapping the said two girls from Ooty to Madras.
2. Both were charge sheeted and tried for the offences under Section 5(1)(b) of the Immoral Traffic (Prevention) Act 1956 (hereinafter referred to as "the Act") and under Sections 366, 419 and 119 I.P.C.
3. After trial, Mary Kutty (A1) was convicted for the offence under Section 5(1)(b) of the Act and under Sections 366 and 419 I.P.C. and sentenced to undergo R.I. for one year and to pay a fine of Rs.500/- for the offence under Section 5(1)(b); R.I. for three years and to pay a fine of Rs.2,000/- for the offence under Section 366 I.P.C. and R.I. for two years for the offence under Section 419 I.P.C. Ethiraj, D.S.P. (A2) though was acquitted in respect of 5(1)(b) of the Act, was convicted for the offences under Sections 366 read with 109, 419 read with 109 and 119 I.P.C. and sentenced to undergo R.I. for three years for the offence under Section 366 read with 109 I.P.C., R.I. for one year for the offence under Section 419 read with 109 I.P.C. and R.I. For 1 « years for the offence under Section 119 I.P.C. Challenging the same, both the accused have filed these separate appeals in C.A.Nos.62 and 64 of 1992 respectively.
4. The short facts of the case leading to the conviction are as follows:
"(a) P.W.1 served as a Supervisor at Cordite Factory, Aruvangadu and retired in the year 1985. He has got three sons and three daughters. They were residing in Wellington, situate near Ooty. P.W.2 Sasikala is his eldest daughter and P.W.3 Vijaya is his younger daughter. P.W.2 Sasikala finished her Plus Two and was at home. P.W.3 Vijaya after finishing her 9th Standard, learnt sewing and used to earn some income by stitching clothes for known people. P.W.14 Philip Doss is the uncle of P.Ws.2 and 3. He secured a contract for P.W.3 to stitch clothes from the Tamil Nadu Welfare Centre situated in Botanical Garden, Ooty.
(b) On 5.4.1987, P.W.14 informed P.W.3 that she could collect the amount for the stitching already done by her for Noon Meal Scheme, as the same was available for disbursement with the Centre. So, on 6.4.1987 at about 10 A.M., both P.Ws.2 and 3 went to the Welfare Centre at Botanical Garden at Ooty to receive money. They were told that the concerned Clerk had not yet come and they could come later. They came out and spent their time in the Botanical Garden. At that time, A1 Mary Kutty sitting in a stone bench called both of them to come near her. She enquired about them. After enquiries, she told them that she is the wife of the D.S.P. working in the local area and she has come from Madras to Ooty to see her husband. She further said that she is running a hotel and plastic company at Madras and she would be able to provide job to them. Since A1 is a Malayalee, P.Ws. 2 and 3 who are also Malayalees, believed her words and told her that they would come to Madras after informing their father.
(c) Then, A1 took both P.Ws.2 and 3 to the Room No.30 at Sanjay Lodge, Ooty where she stayed telling that he would introduce them to her husband (A2), who is working as a D.S.P. at Ooty. From the lodge, she phoned up to A2 and asked him to come to the lodge. Accordingly, he came. Then, A1 introduced A2 to P.Ws.2 and 3 as her husband. She also asked A2 to go to the parents of P.Ws.2 and 3 to get their permission to take them to Madras. But, A2 told that the time is short, since the Madras bus leaves Ooty at 4.00 P.M. on that day and told P. Ws.2 and 3 that they need not worry about anything and their parents would be intimated subsequently. P.W.4 Krishnan, Sub Inspector, C.R. B. working under A2 also came at that time. At the request of A1, he also promised P.Ws.2 and 3 that he would inform their parents, as their parents are already known to him. Then, on the direction of A2, P.Ws.2 and 3 wrote a letter addressing to their parents mentioning that they were leaving Ooty to Madras along with a woman to get job at Madras.
(d) Accompanied by P.W.4 Sub Inspector, C.R.B., P.Ws.2 and 3 went to the Botanical Garden and met P.W.5 Pushpa, a Teacher working in the Welfare Centre and requested her to hand over the letter to their parents at Wellington. Then, they came to the bus stand at 3.45 P.M. as instructed by A1. At that time, A1 and A2 were present waiting for them at the bus stand.
Then, A2, while the bus was about to move, informed the driver that A1 is his wife and other girls are his relatives and asked him to take care of them. Then, the bus started at 4.00 P.M. It came to Erode at 10.00 P.M. At Erode bus stand, they got down and took tiffen and again got into the bus. The bus reached Salem at about 11.00 P.M.
(e) In the meantime, P.W.1, the father of P.Ws.2 and 3 received the letter from P.W.5. Since he smelt a rat, he came to the Police Station at Ooty and gave a complaint that his daughters were missing. The Ooty Police registered the case as 'woman missing case'. On the information given by the Ooty Police, the Salem Police stopped the bus at Salem and secured A1, P.W.2 and P.W.3 and brought to the Station.
(f) When P.W.1 along with P.W.14, his relative came to the Ooty Police Station next day, they were informed that his daughters were secured and they are at Salem Town Police Station. Immediately, P.W.1 and P.W.14 accompanied by the Ooty Sub Inspector (P.W.13) went to the Salem Police Station. P.W.12, Sub Inspector of Police of Salem produced the victims and A1 to P.W.13, Sub Inspector of Police of Ooty. Thereafter, on 7.4.1987 at 3.00 P.M., they started from Salem and came to Ooty on that night.
(g) On 8.4.1987, P.W.15, the Inspector of Police, Ooty enquired P. Ws.2 and 3. On 9.4.1987, the Deputy Superintendent of Police, Coimbatore (P.W.50) at Ooty took up investigation. He sent a requisition to (P.W.39), the Chief Judicial Magistrate, Coimbatore to record the statements under Section 164 Cr.P.C. from P.Ws.2 and 3. As instructed by the Chief Judicial Magistrate, their statements were recorded by P.W.41, the Additional Second Class Magistrate No.1, Coimbatore on 22.4 .1987. P.W.50 D.S.P., Crime Branch C.I.D. sent another requisition to the Chief Judicial Magistrate (P.W.39) to record the confession of Krishnan, the Sub Inspector working under A2 D.S.P. Accordingly, his statement under Section 164 Cr.P.C. was recorded on 26.6.1987 by P. W.38 Judicial First Class Magistrate, Coonoor. Further, the prosecution requested the Chief Judicial Magistrate to conduct pardon proceedings in respect of the said Krishnan. Accordingly, the said Krishnan was granted pardon by the Chief Judicail Magistrate, Coimbatore (P.W.39) by order dated 31..7.1987.
(h) In the meantime, the statements under Section 164 Cr.P.C. of various witnesses were recorded by the Magistrate concerned. After finishing the investigation, P.W.50 Deputy Superintendent of Police filed a charge sheet against both the accused for the offences referred to above.
(i) During the course of trial, P.W.1 to P.W.50 were examined and Exs.P1 to P35 were marked and on the side of the defence, D.W.1 was examined and Exs.D1 to D3 were marked.
(j) When the first accused Mary Kutty was questioned under Section 313 Cr.P.C., she said that she did not intend to kidnap P.Ws.2 and 3 and that she only took them to Madras to give them job at their request, since they told her that they were suffering from poverty. The second accused Ethiraj stated that he helped A1 in getting accommodation in Ooty and other places, since she was earlier known to him and she came to Ooty as a Tourist and that he had never helped A1 for the alleged kidnapping. He further stated that he took A1 to various places, since he was entrusted with the investigation of a case relating to rape and murder which took place in an area where most of the people residing are Malayalees and in order to get the clue, he sought the help of A1 as an informant, as she is also a Malayalee.
(k) On analysing the materials, the trial Court convicted A1 for the offences under Section 5(1)(b) of the Act and under Sections 366 and 419 I.P.C. and A2 for the offences under Sections 366 read with 109 , 419 read with 109 and 119 I.P.C. However, A2 was acquitted in respect of the charge for the offence under Section 5(1)(b) of the Act."
5. Both the counsel appearing for these two appeals would make common submissions and also filed common written submissions.
6. The counsel appearing for A1 and A2, while assailing the judgment impugned would make the following contentions:
(i) Though both A1 and A2 were tried for the offence under Section 5 (1)(b) of the Act, A1 alone was convicted and A2 was acquitted. The reasonings for acquittal given for A2 would apply to A1 as well. Moreover, the main ingredient of Section 5(1)(b) of the Act, which relates to conducting of brothel house, is absent. When there is no positive evidence to show that A1 is running a brothel house at the time of the alleged occurrence, the offence under Section 5(1)(b) of the Act is not attracted. Consequently, the offence under Section 366 I.P.C. also would not stand, as it cannot be stated that kidnapping of girls was for the purpose of engaging them in prostitution in a brothel house. Similarly, Sections 419 and 119 I.P.C., which are the offences for the purpose of aiding the commission of the offence under Section 366 I.P.C., would not be made out.
(ii) According to prosecution, P.Ws.2 and 3 were rescued on 6.4.1987 and their statements were obtained by P.W.13 Ooty Sub Inspector of Police, at Salem Police Station. The said statements were not made available, since they are against the prosecution case. The statements of P.Ws.2 and 3 under Section 164 Cr.P.C. were recorded belatedly on 22.4.1987.
(iii) The evidence of the approver (P.W.4) cannot be accepted, since he is not a reliable witness and his statement has not been corroborated by other evidence.
(iv) P.W.4 filed the application for anticipatory bail and the same was dismissed on 20.4.1987 by the High Court. Subsequently, he obtained anticipatory bail from the Sessions Court on 28.4.1987 without mentioning the dismissal order passed by the High Court. He belatedly gave the confession and requested for pardon. So, the evidence of P.W.4 approver cannot be accepted as true and creditworthy.
(v) While A1 was conducting beauty parlour at Madras, she filed a writ petition in the High Court as against the police and obtained interim order and thereby, she antagonised the police. Therefore, false cases were filed against her. None of them ended in conviction. In the absence of any conviction under the Act, A1 cannot be roped for the offence under Section 5(1)(b) of the Act.
(vi) A2 obtained merit certificate. Since he antagonised the police higher ups in the district, a false case had been foisted against him. Therefore, both the accused are entitled to be acquitted."
7. The main plank of the arguments advanced by both the counsel for the appellants is that the evidence relating to the ingredient of Section 5(1)(b) of Act is lacking and consequently, the other allied offences, namely, the offences under Sections 366, 419 and 119 I.P.C. cannot be said to be made out.
8. In elaborating the above arguments, the learned counsel for the appellants, on the strength of Ex.P-29, would submit that A1 was running only a military hotel in the name of her relative and therefore, there is no evidence to show that she was running a brothel house at Madras.
9. In reply to the said submissions, Mr.O.Srinath, the learned Government Advocate appearing for the State, after reading out the relevant depositions and exhibits, would contend that the prosecution has proved the guilty of both the accused and as such, the findings given by the trial Court are perfectly valid and unassailable. He has also filed written submission.
10. I have carefully considered the submissions made by the counsel on either side and gone through the entire records.
11. According to the prosecution, P.W.2 Sasikala and P.W.3 Vijaya were kidnapped by A1 Mary Kutty with the active assistance of Ethiraj (A2), who was working as D.S.P., Crime Records Bureau in Ooty for engaging them in prosecution by making false representation to them that A2 is her husband and she would get respectable job in the plastic industry at Madras.
12. There are three sets of evidence let in by the prosecution to prove the offences for which the appellants (A1 and A2) were tried:
(1) The close association of A1 and A2;
(2) The incidents relating to kidnapping of the witnesses P.Ws.2 and 3 from Ooty in a bus to Madras by A1 with intention to use them for prostitution with the assistance of A2 and securing of girls and arrest of A1.
(3) The various other instances relating to the antecedents and character of A1, who is regularly indulging in procuring girls from various areas for prostitution.
13. Let us now refer to the materials adduced by prosecution in respect of the three sets of evidence as mentioned above.
14. We would first glance through the evidence relating to the close association between A1 and A2.
15. Ethiraj (A2) was Deputy Superintendent of Police in Criminal Records Bureau in Ooty in the year 1987. P.W.16 Chinnappan is the Jeep driver working under A2. On 30.3.1987, A2 informed P.W.16 that next day his "Madam" would come and asked him to give the key of the Jeep to him. On 31.3.1987, P.W.16 was intimated by A2 that he should come and meet him. A2 stayed with his wife A1 in Room No.104 of Savera Hotel. P.W.16 went to the Savera Hotel and saw both A1 and A2 in the said room. He was directed to bring Mr.Krishnan (P.W.4), the Sub Inspector, working under A2 to the hotel. P.W.16 went to the Ooty Police Station and took P.W.4 to the hotel. When P.W.4 went to the Room No.104, he saw both A1 and A2 were together. A2 introduced A1 to P.W.4 as his wife.
16. On 31.3.1987 at about 11.00 A.M., A2 contacted Mr.Krishnamurthy, the Sub Inspector of Police, Emerald Police Station (P.W.17) and instructed him to book a room in Upper Bhavani, as he is visiting Bhavani along with his wife. P.W.17 in turn contacted Head Constable P.W.1 8 to arrange for the same. Accordingly, P.W.34 Madhavan, the Warden of Inspection Bungalow, Electricity Board at Upper Bhavani was contacted and room was booked in the name of A2 and his family.
17. Thereafter, both A1 and A2 left Ooty in the Jeep driven by P.W.16. On the way to Upper Bhavani, they came to Emerald Police Station and took one more Constable (P.W.19) along with them. On that day evening, they came to Upper Bhavani. Both A1 and A2 stayed in a single room. Night food was arranged for them by P.W.34. The entry was made regarding their stay in Ex.P17 register.
18. On 1.4.1987 at about 7.00 A.M., they vacated the room and left Upper Bhavani and came back to Savera Hotel at Ooty. A2 instructed P.W.16 to get at P.W.4 Krishnan. On arrival, A2 directed P.W.4 to arrange some other Lodge as there was no water facility in the Savera Lodge. Accordingly, P.W.4 contacted Sanjay Lodge Manager P.W.6 and informed him that D.S.P. and his wife are coming over there to stay in their Lodge. Then, P.W.7 Varadarajan, Hotel Accountant allotted Room No.30 for both A1 and A2 and both came to the Sanjay Lodge and stayed there. During the day time, P.W.4 as instructed by A1, arranged for getting ticket in a cinema theatre at Ooty and on that date, A1 went to the theatre and saw the picture. Evening, P.W.16 went to the theatre and picked her up and dropped her in the lodge.
19. On 2.4.1987 at about 8.00 A.M., P.W.16 went to the Sanjay Lodge with the Jeep. Along with P.W.16, both A1 and A2 went in the Jeep and reached Ooty Rural Police Station at about 8.30 A.M. At that time, the Inspector and Grade I Constable Haridoss (P.W.23) and other Constables were there. To them, A1 was introduced by A2 as his wife. Then, he asked the Inspector to get the telephone line to Madras. Accordingly, he got the line and handed over the receiver to A1. In the meantime, P.W.24, the Sub Inspector of Police, on coming to know that D.S.P. has come to the Station, came there and paid his respects to him. Then, both of them got into the Jeep and went to Sanjay Lodge.
20. On 2.4.1987, A2 directed P.W.16 to bring P.W.22 Surendar, the Police Photographer. Accordingly, P.W.22 went and met A2. A2 said that his wife has come and therefore, he has to take photos in Botanical Garden. So, as directed, P.W.22 went to Room No.30 of Sanjay Lodge and took A1 to Botanical Garden and took 4 or 5 photos.
21. On 3.4.1987 at about 8.30 A.M., P.W.22 Photographer was again called by A2 and on the direction of A2, A1 was taken to various places of Ooty and photographs were taken. Thereafter, A1 came and sat in the Botanical Garden. At that time, P.W.4 Sub Inspector went and asked her as to why she was sitting there. She said in reply that she is running a Beauty Parlour at Madras and therefore, she requires some ladies for working in the Beauty Parlour. At that stage, he stated to A1 that he already knew her and that she was arrested in an immoral traffic case in the year 1984 by the then Assistant Commissioner of Police, while she was running a Beauty Parlour at Coimbatore and therefore, he may not help in procuring girls. P.W.4 further stated to A1 that as he is in the Police Department, he does not want to involve himself in any problem. A1 immediately said that there would be no problem, as she has got voice in all quarters and she will solve any problem. When P.W.4 asked whether the business she has been conducting is known to A2, she said that he very well knew about it. Thereafter, P.W.4 went to A2 and informed him that A1 wanted to get some ladies. Then, A2 said that she has come all the way from Madras and therefore, they have to procure some ladies to send them along with her within a few days, as she has to start from Ooty on 10.4.1987.
22. On 4.4.1987, P.W.16 was again directed to bring P.W.22 Photographer. After P.W.22 came to the lodge, both A1 and A2 took photographer in the Jeep driven by P.W.16 and went to hill bunk and they had a number of snaps in the Government Guest House, Thamizhagam. Then, as instructed by A2, P.W.22 took photographs of A1 and A2 together in various places. Then, they came to Gudalur and stayed in the hotel upto 5.00 P.M. and then came to Gudalur Government Guest House and both A1 and A2 stayed there together in a single room. For this tour, P.W.27 another Constable also accompanied. P.W.25 is the Watchman of the Gudalur Guest House.
23. P.W.26 Balakrishnan, the Gudalur Inspector of Police, on coming to know that D.S.P. CRB has come with his wife, came to the Guest House and paid his respects and saw both of them together. While A1 and A2 were staying in the Gudalur Guest House, A2 signed in the register Ex.P18 for one day stay with his family.
24. On 5.4.1987 at about 7.30 A.M., they vacated the Gudalur Guest House and left in the Jeep and reached Ooty at 8.30 A.M. After reaching the place, A1 informed that she would leave Ooty on 10.4.1987.
25. On 6.4.1987, A1 and A2 went in the Jeep driven by P.W.16 along with P.W.22 Photographer and went to various places like St. Anthony Church, Sacred Heart Church, etc. and took photos.
26. The evidence of these witnesses and the exhibits referred to above would reveal that A1 came to Ooty and stayed in several places along with A2, a local D.S.P. CRB claiming to be his wife for sight seeing as well as for procuring girls for working in her Beauty Parlour at Madras.
27. Let us now deal with the second set of evidence relating to the incidents of kidnapping of P.Ws.2 and 3, the daughters of P.W.1, by the first accused with the help of the second accused in a bus and subsequent securing of the girls and the arrest of A1.
28. P.W.1, the father of P.Ws.2 and 3 is residing at Staff College, Wellington, near Ooty. P.W.2, who finished her Plus Two and P.W.3, who failed in her 9th Std, were at home staying with their parents, other brothers and sisters. P.W.3 learnt s g and was earning some income by stitching clothes. P.W.14 Philipdoss, uncle of P.Ws.2 and 3, got a contract for P.W.3 for stitching clothes for the Noon Meal Scheme. On 5.4.1987, P.W.14 informed P.W.3 that for the stitching that she had already done, the amount was ready for disbursement and she could collect it from the Welfare Centre situate near Botanical Garden, Ooty.
29. Next day, (i.e.) on 6.4.1987, P.W.3 accompanied by P.W.2 came to Ooty to receive the amount. As the concerned clerk was not available, they were asked to wait for some time. Therefore, they went to the Botanical Garden near the Welfare Centre and were sitting on a stone bench. A1, who was sitting on the next bench called them and enquired about their residence and other particulars. Since A1 happens to be a Malayalee, P.Ws.2 and 3, who are also Malayalees, talked to her freely. A1 told them that she would provide them job at Madras, as she was running hotel and plastic company. They said that they would not come to Madras without permission of their parents, A1 told them that she is the wife of the D.S.P., who is working in Ooty, and that she would introduce him to them.
30. Then, A1 took both of them to Sanjay Hotel and introduced A2, who was asked to come to the hotel as her husband. A1 asked A2 to get permission from the parents of P.Ws.2 and 3 so that she would take them to Madras. Then, A2 told them, as the bus leaves at 4.00 P.M., it may not be possible to go to Wellington and inform their parents. Then, P.W.4 Krishnan, the Sub Inspector of Police, who worked under A2 D.S.P. was called inside the room. He was asked to convince P.Ws.2 and 3.
31. After enquiry with P.Ws.2 and 3, P.W.4 Krishnan told them that he already knew their parents and he would inform their parents that P.Ws.2 and 3 are going to Madras along with D.S.P.'s wife for job. Then, P.Ws.2 and 3 were asked to write a letter on the instruction of A2 addressing to their parents. Accordingly, P.Ws.2 and 3 wrote a letter informing their parents that they are leaving for Madras. Ex.P-1 is the letter. They said that P.W.5 Pushpa, a Teacher in the Welfare Centre at Botanical Garden, Ooty, was known to them. So, they were asked to go there and give the said letter to P.W.5, who in turn would hand over the same to their parents in the evening. Accordingly, P.Ws.2 and 3 accompanied by P.W.4 Sub Inspector of Police went and gave Ex.P-1 letter to P.W.5.
32. Thereafter, they came back to the lodge. A1 gave Rs.20/- to them to take some tiffen and asked them to come to bus stand. Then, P. W.4 Krishnan accompanied them. After taking tiffen, P.Ws.2 and 3 came to the bus stand. Both A1 and A2 were waiting at the bus stand. P.W.16 Chinnappan, the driver of the Jeep, was also present at that time. When P.W.16 casually asked P.Ws.2 and 3 as to why they were accompanying A1 to Madras, A1 gave a signal to P.Ws.2 and 3 not to tell anything about it.
33. In the bus, VIP seats were given to all the three, viz., P.Ws.2 and 3 and A1, at the instance of A2 D.S.P. Then, he informed P.W.11 Kandasamy, Bus Driver, that A1 is his wife and others are his relatives. While the bus started, A2 asked P.W.11 Bus Driver to take and drop them safely at Guindy bus stop in Madras.
34. P.W.5 Pushpa went to Wellington in the evening and handed over Ex.P-1 letter to P.W.1. As P.W.1 suspected over the genuineness of the letter, he rushed to the Ooty Police Station along with P.W.14 Philipdoss and gave a complaint that their daughters were missing. The complaint is Ex.P-2.
35. Meanwhile, the bus stopped at Erode for tiffen. After finishing tiffen and before getting into the bus, A1 told P.Ws.2 and 3 that they could earn Rs.3,000/- per day, if they make the rich people, who come to her house, happy. Then, the bus started and it stopped at Salem. By this time, Ooty Police informed the Salem Police Station about the complaint. P.W.12, the Sub Inspector of Police, Salem, intercepted the bus at Salem and took P.Ws.2 and 3 and A1 to the Salem Town Police Station and informed the same to the Ooty Police Station.
36. Next day morning (i.e.) on 7.4.1987, on receipt of information, P.W.1, P.W.14 and P.W.13 Sub Inspector of Police, Ooty, all went to Salem and saw all the three persons in the police station. Thereafter, all the three were brought to Ooty. P.W.15, the Inspector of Police, Ooty, enquired P.Ws.2 and 3. In view of the seriousness of the case in which A2 the D.S.P. is involved, the Deputy Superintendent of Police, Coimbatore (P.W.50) was directed to take up investigation. Accordingly, he interrogated P.Ws.2 and 3 and sent requisition Ex.P-3 1 on 13.4.1987 to the Chief Judicial Magistrate, Coimbatore, to record the statements of P.Ws.2 and 3 under Section 164 Cr.P.C. On 22.4.1 987, their statements (Ex.P-32) were recorded by P.W.41 Additional II Class Magistrate, Ooty.
37. During the course of investigation, P.W.4 Krishnan, Sub Inspector, who was earlier arrayed as an accused, wanted to give confession. Therefore, on the basis of requisition Ex.P-22, the statement (Ex.P-24) under Section 164 Cr.P.C. from the said Krishnan was recorded on 26.6.1987 by P.W.38 Judicial First Clas s Magistrate, Coonoor. Thereafter, it was decided to treat him as an approver and therefore, on the basis of the requisition, Ex.P-25, pardon was granted to the said Krishnan (P.W.4) by P.W.39 Chief Judicial Magistrate, Ooty on 31.7.19 87. Ex.P-28 is the order granting pardon.
38. The above materials through oral and documentary evidence would reveal that two young girls P.Ws.2 and 3 were induced by A1 and A2 by false representation to accompany A1 in the bus to go to Madras and thereby, they were kidnapped for using them for illegal purpose and on the way to Madras, the police rescued the victims and arrested A1.
39. Let us now go into the third set of evidence relating to the past records about the character of A1 through her involvement in several cases relating to prostitution conducted in various areas.
40. Marykutty (A1), is at present residing at No.126 Cheran Street, Alwarthirunagar, Virukambakkam, Madras. P.W.32 Ulaganathan is residing at Door No.124 in the same street. Since he is a neighbour, he saw the name board as "Beauty Parlour" in front of the house of A1.
41. In 1983, P.W.35 Manokaran was the Inspector of Police in Virukambakkam area. On 25.10.1983, he went and conducted raid in A1's house and arrested A1 and others for the offences under Sections 4(1) and 8(b)of the Immoral Traffic Act and filed charge-sheet.
42. On 17.12.1983, P.W.35 Manokaran again conducted raid in the same house and arrested A1 and five girls for the offences under Sections 4(1) and 8(b) of the Act. On 3.1.1984 also, A1's house was raided and the girls inside were arrested and a case was registered in Crime No.12 of 1984 and charge-sheet was filed against A1 and others.
43. On 31.1.1984, on information that A1 was indulging in prostitution in her house at R.S.Puram, Coimbatore, P.W.49 Saraphjith Singh, the Deputy Superintendent of Police (Law and Order), Coimbatore conducted raid in the said house and arrested A1 and other ladies and registered a case in Crime No.88 of 1984 for the offence under Section 3(1 ) of the Act. After investigation, he filed charge-sheet against A1 and others in C.C. No.274 of 1984.
44. P.W.42 Thangamani, the Inspector of Police, Poonamallee conducted raid in the house of A1 and arrested A1 and others for the offence under Section 8(b) of the Act in Crime No.758 of 1984. After investigation, he filed the charge-sheet. One of the co-accused in the said case paid fine of Rs.200/- on 15.4.1985. The other accused were convicted later.
45. P.W.46 Selvin, another Inspector of Police, Virugambakkam, on 7.6.1985, arrested some of the girls indulging in prostitution and the investigation disclosed that they were doing the brothel business under the supervision of A1. The charge-sheet was filed against A1 also along with other accused persons.
46. P.W.48 Yesurathinam, the Inspector of Police, Virugambakkam ( Law and Order), conducted raid in the house of A1 at Alwarthirunagar on 5.11.1985 and arrested some ladies and the investigation disclosed that the ladies were procured from various areas on the false assurance that job would be provided to them and thereafter, they were used by A1 for prostitution. So, a case was registered against A1 also.
47. P.W.47 Kotteeswaran, Inspector of Police, Poonamallee, on 5.3.19 86 received information that some girls were staying at Kattuppakkam and canvassing for prostitution. So, he went there and arrested those girls and a case was registered. On 9.3.1986 also some girls were arrested near the Beauty Parlour situate at Kattuppakkam belonged to A1. In these cases, A1 was arrayed as one of the accused. P.W.47 raided Sheela Beauty Parlour belonged to A1 and arrested the ladies there and a case was registered against A1 also.
48. P.W.45 Kesavan, another Inspector of Police, Virugambakkam, on 2 7.9.1986 went to the house of A1 and conducted raid and arrested some girls and registered a case under the Act and filed a charge-sheet against those girls as well as A1, being the owner of the said house.
49. Again on 13.8.1987, P.W.45 Inspector of Police, Virugambakkam, went and conducted raid in the house of A1 and arrested the ladies indulging in prostitution and filed charge-sheet against those ladies as well as A1 under the Act.
50. The oral and documentary evidence adduced by the witnesses mentioned above would show that A1 was regularly indulging in the business of prostitution by engaging girls under the pretext of running Beauty Parlour both at Coimbatore and at Madras.
51. Let us first see whether the offence under Section 5(1)(b) of the Act is made out or not.
52. Under Section 5(1)(b) of the Act, any person, who induces a woman or girl to go from any place with the intent that she may for the purpose of prostitution become the inmate of, or frequent a brothel shall be punishable.
53. According to the learned counsel for the appellants, there is no evidence to show that A1 was running a brothel house at a particular place and therefore, Section 5(1)(b) of the Act is not attracted.
54. The reading of the provision of Section 5(1)(b) of the Act would show that there must be an act of the accused inducing a person to go from any place with the intent to use the person concerned for the purpose of prostitution either to make the person, the inmate of a brothel or frequent visitor of a brothel.
55. The word 'brothel' is defined in Section 2(a) of the Act. Section 2(a) would provide that 'brothel' includes any house or any place which is used for the purpose of prostitution, for the gain of another person or for the mutual gain of two or more prostitutes.
56. In this case, P.Ws.2 and 3 were taken to Madras on the assurance of providing job to them in a hotel or in a plastic company run by A1 at Madras.
57. When they were taken to Madras, the bus stopped at Erode. At that time, P.Ws.2 and 3 asked A1 about the nature of the job. Immediately, A1 replied that they would apply make-up on their face and make the big shots happy and enjoyed and they would be able to earn Rs.3,0 00/- per day. When P.Ws.2 and 3 questioned A1 further as to whether it was like the prostitution business conducted at Bombay, A1 replied that it was not like that, but it was done in her bungalow secretly and the same would not be known to others.
58. It is to be noticed in this context that A1 had all along been telling P.Ws.2 and 3 that she would provide job in her hotel and plastic company. After they started from Ooty to go to Madras, A1 for the first time, told P.Ws.2 and 3 that their job is to make customers happy in her house, thereby they would earn large money.
59. If this evidence adduced by P.Ws.2 and 3 is accepted, then it is clear that the intention of A1 was to use them for the purpose of prostitution in her house where brothel was conducted secretly.
60. According to P.Ws.2 to 3, A1 induced them to come with her so as to get job in plastic industry or hotel run by her. They were made to believe those words since she gave a slip containing her house address at Madras and also introduced the local D.S.P. (A2) as her husband. Therefore, initially P.Ws.2 and 3 did not entertain suspicion over the inducement made by A1.
61. Ex.P-1, the letter written by P.Ws.2 and 3 addressed to their parents on the direction of A2 D.S.P, would clearly show that they were to accompany A1 believing the words of A1 to go to Madras for job, since A1's husband happened to be the Police officer working at Ooty. This letter was written by P.Ws.2 and 3 only at the instance of A1, A2 and P.W.4 approver. Both P.Ws.2 and 3 gained more confidence as they were asked to give the letter to their family friend P.W.5 Pushpa working in the Botanical Garden so that she may hand over the letter to her parents.
62. P.W.4 Krishnan stated that A1 was known to him from 1984 onwards and that in 1984, A1 was running a brothel house at Coimbatore in the name of beauty parlour and she was arrested by P.W.49 D.S.P. for the offences under the Act. According to him, A1 requested him to procure two or three girls at Ooty to take them to Madras. When he stated that he was not inclined to do that, A1 assured him saying that she was acquainted well with the Ministers and higher officials and she would look after him and solve the problem, if any.
63. It is also deposed by P.W.4 that A2 told him that A1 had come from Madras and she was to leave Ooty on 10.4.1987 and within that time, they should catch some girls and send them along with her. When A1 and A2 were able to catch P.W.2 and 3 on 6.4.1987, immediately, A2 directed P.W.4 to arrange for their tickets to go to Madras and accordingly, the tickets were arranged through P.W.9 Constable.
64. So, the evidence of P.Ws.2, 3 and P.W.4 coupled with Ex.P-1 would show that P.Ws.2 and 3 were made to believe that A1 is coming from a good family, as she is a Malayala Christian and only for helping P.Ws.2 and 3 by providing job at Madras, they were being taken to Madras thinking that they will be in safe at the hands of A1, since A1's husband is the local D.S.P.
65. In this context, it is to be noticed that earlier, the house of A1 was raided by several police Officers and cases were registered and charge-sheets were filed against those girls including A1 for their being indulged in prostitution. According to P.W.35 Manokaran, Inspector of Police, he charge-sheeted A1 and four girls on 25.10.1983 under Section 8(1)(b) of the Act in Crime No.1253 of 1983. Again on 2 7.10.1983, the same house was raided for similar offence and a case was registered against A1 and 5 others and charge-sheet was filed on 1 7.12.1983.
66. Similarly, P.W.36 Perumal, Inspector of Police, P.W.42 Thangamani, P.W.45 Kesavan, P.W.46 Selvin, P.W.47 Kotteeswaram and P.W.48 Jesurathinam would refer about various dates relating to the raid conducted in the house of A1 in the same address and the cases booked against A1 and other girls.
67. The evidence of P.W.4 Krishnan relating to the raid conducted in A1's house at Coimbatore on 31.1.1984 has been corroborated by the evidence of P.W.49 Sarapjith Singh, Deputy Superintendent of Police and he arrested A1 and other ladies and the case was charge-sheeted in C.C.No.217 of 1984.
68. P.W.37 Nathan would state, while referring to Ex.P21, that there is no plastic company in the name of A1 and they did not issue any licence for hotel in her name. Ex.P-21 is the licence for running hotel in the name of one Thomas Mariya Doss.
69. Furthermore, A1, who was to leave Ooty on 10.4.1987 as per her original plan, had changed her plan and left on 6.4.1987 itself. When A1 asked A2 in the presence of P.Ws.2 and 3 as to whether they could be taken to their house at Wellington for getting permission from their parents, A2 said that as the time was too short, since the bus was to leave by 4.00 P.M., it may not be possible for him to get permission from their parents.
70. Only when they were able to get two girls, A2 instructed P.W.4 to get three tickets. Till then, no arrangements were made for getting tickets to leave Ooty on 6.4.1987. This shows that A1 with the help of A2 had hurriedly made departure with the girls even without allowing them to meet their parents and get permission. These materials would reveal A1's intention to take these girls to her house at Madras for engaging them in prostitution.
71. It is contended that she was not having any house at Madras and in no case, she was convicted.
72. It is not necessary for the prosecution to prove that she has been convicted in any case. If we place reliance on the evidence of the Police Officers, who conducted raid in her house at Coimbatore in 1983-84 and in the present address at Madras in 1985-87, then it could be very well concluded that she used her house, the address of which has been mentioned in Ex.P-1 letter addressed by P.Ws.2 and 3 to their parents, as the place for conducting prostitution and as such, it would attract the definition of brothel house. Therefore, there is no difficulty in concluding that the ingredient of Section 5(1)(b) of the Act is clearly made out as against A1. The reasoning for acquitting A2 in respect of this offence will not apply to A1, since brothel house was conducted by A1 alone and not by A2.
73. With reference to the other offences under Sections 366, 419 and 119 I.P.C., it would be appropriate to make a common discussion as they relate to both the accused.
74. As noted above, the fact that A1 came to Ooty and stayed in Savera Hotel, Sanjay Lodge, Gudalur Guest House and other places along with A2 in a single room for several days that she was introduced to Police Officers and others as his wife has been clearly spoken to by the respective Police Officers and the Managers of the respective lodges and has been established through documentary evidence as well. Furthermore, this aspect of evidence has not been seriously challenged. In fact, A2 himself would admit that he had arranged for her stay in all these places.
75. According to A2, he sought the help of A1 in booking the culprit in a case of rape and murder. There is no basis to establish this defence plea.
76. According to A2, A1 came to Ooty as a tourist. There is no necessity for A1 to be the informant to give clue in a case of rape and murder, which is said to have taken place near Gudalur. It is not the case of the defence that A1 is acquainted with Gudalur area.
77. Furthermore, the evidence of P.W.4 is that A2 told him that she had come from Madras to procure some girls and so, she must catch them before 10.4.1987 on which date she had to leave for Madras.
78. The witnesses who spoke about the stay of A1 and A2 together are P.Ws.4 Krishnan, P.W.6 Sasidaran, Constable, P.W.7 Varadarajan, P. W.8 Srinivasan, P.W.11 Kandasamy, Driver of the Bus, P.W.16 Chinnappan, Driver of the eep working under A2, P.W.17 Krishnamurthi, Sub Inspector, P.W.18 Balakrishnan, Head Constable, P.W.19 Sivasankaran, Constable, P.W.22 Surendran, Police photographer, P.W.23 Haridoss, and P. W.24 Ramakrishnan.
79. Therefore, the false representation made by both A1 and A2, which was also supported by P.W.4 Krishnan, to make P.Ws.2 and 3 to believe that they were being taken to Madras for providing job has been clearly established through the evidence of these witnesses and as such, the offence under Section 366 I.P.C. and other allied offences under Sections 416, 419 and 119 I.P.C. are clearly made out.
80. It is submitted that the police department was hostile to A2 for various reasons. This plea cannot be said to be probable. When D. W.1, a defence witness himself, would state that A2 had got some meritorious certificates while he was working as Inspector of Police, there was no reason for the Police Department to foist a false case against A2, that too, when he was holding a high position as D.S.P. There is nothing to indicate that there was any motive for the senior officials as well as his subordinates to speak falsehood against him.
81. It is contended that the statement under Section 161 Cr.P.C. obtained from P.Ws.2 and 3 earlier by the Ooty Sub Inspector has not been sent to the Court. It is also stated that P.Ws.2 and 3 have made improvement in their deposition.
82. This submission, in my view, would lack substance, since the whole reading of the evidence of P.Ws.2 and 3 coupled with Ex.P-1 would clearly reveal that both P.Ws.2 and 3 were made to believe that they would be safe at the hands of A1, who is said to be the wife of A2, a local D.S.P.
83. It is contended by the defence that P.W.4, the approver, is not reliable and his evidence has not been corroborated by the other evidence. This contention also cannot be accepted. It is true that the evidence of the approver has to pass the twin tests: (1) Reliability; and (2) His evidence has to be corroborated.
84. On going through Ex.P-24 confession statement given under Section 164 Cr.P.C. by P.W.4 before P.W.38, the Judicial Magistrate and the deposition given by him, it is clear that P.W.4 gives out true details about both A1 and A2. His evidence has been sufficiently corroborated not only by P.Ws.2 and 3, but also by other official witnesses both on the aspect of earlier history of A1 as well as in respect of the incidents relating to the kidnapping of P.Ws.2 and 3 from Ooty to Madras to use them in prostitution.
85. It is pointed out that while obtaining anticipatory bail, P.W.4 did not inform the Sessions Court about the dismissal of the application for anticipatory bail by the High Court. P.W.4 would state that he was not aware of the filing of the petition for anticipatory bail before the High Court as well as before the Sessions Court. It is also brought to the notice of this Court that P.W.50 Investigating Officer had stated that he was not informed about the anticipatory bail order granted by the Sessions Court. These things, in my view, would not be sufficient to hold that the evidence of the approver in regard to the incident in question is not reliable.
86. On the other hand, as stated above, the entire deposition of P. W.4 would not only reflect the reliability of the evidence adduced by him, but also the same is corroborated by the evidence of victim witnesses and official witnesses even on minute details.
87. From the evidence available on record, it is clear that A2 actively assisted and facilitated A1 in taking P.Ws.2 and 3 from Ooty to Madras through a false representation. Since the said act would attract the offences under Sections 366, 419 and 119 I.P.C., the trial Court correctly convicted him for the said offences while acquitting him in respect of the offence under Section 5(1)(b) of the Act.
88. In view of the discussion made above, I do not find any merit in these appeals. Therefore, the conviction and sentence imposed upon the appellants by the trial Court are confirmed.
89. In the result, both the Criminal Appeals are dismissed. The trial Court is directed to secure the custody of the appellants/accused in order to undergo the remaining period of sentence.
90. Before parting with this case, it shall be mentioned that A2, who attained several merit certificates while he was working as Inspector of Police as deposed by D.W.1, has unfortunately become an abettor of the prostitution offender after he was promoted as Deputy Superintendent of Police. It is really pained to note that the high ranking official like the Deputy Superintendent of Police, instead of booking the law breakers, had indulged in the activities of a brothel broker. The shocking facts in this case would reveal that A2, the D.S.P. at Ooty, not only dishonestly induced the young girls to accompany to Madras with A1, who wanted to use them for prostitution, but also injured the very institution, which awarded certificates and promotion to him. If higher police officers themselves indulge in these sorts of offences, it is certain that the people will lose faith in the entire institution which would result in the calamitous consequences.
7-6-2002 Index: Yes Internet : Yes mam/dpp To
1. The District and Sessions Judge, Ooty.
2. The Public Prosecutor, High Court, Chennai.
3. Deputy Superintendent of Police, C.B.C.I.D., Coimbatore.
4. The Inspector of Police, Udhagamandalam Town Police Station.
M. KARPAGAVINAYAGAM, J.
mam/dpp Judgment in CRL. APPEAL Nos.62 & 64 of 1992