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1) To suffer Rigorous Imprisonment for two years and fine of Rs.1,000/-

in default to suffer Rigorous Imprisonment for one month more for offence under Section 3 of the ITP Act.

2) To suffer Rigorous Imprisonment for seven years and fine of Rs.5,000/- in default to suffer Rigorous Imprisonment for three months more for offence under Section 5 of the ITP Act.

3) To suffer Rigorous Imprisonment for two years and fine of Rs.1,000/- in default to suffer Rigorous Imprisonment for one month more for offence under Section 7 of the ITP Act.

On completion of investigation the Investigating Officer submitted charge-sheet against the three accused persons named in the FIR under Section 3/4/5/7/8 of the ITP Act and Section 6 of the Protection of Children from Sexual Offences Act. Copies of the documents under Section 207 of the Code of Criminal Procedure were served upon the accused persons and consequently date was fixed for framing of charge.

The learned Special Court on 22.12.2016 after considering the materials available on record was pleased to frame charge under Section 3/5/7/8 of the ITP Act against the Appellant and the owner of the Hotel and Section 6 of the POCSO Act against the accused persons, Pradip Mondal and Mahadeb Ghosh. The contents of the charge were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

Mr. Angshuman Chakraborty, learned Advocate appearing on behalf of the appellant submitted that the learned trial Court erroneously arrived at the finding of guilt so far as the present appellant is concerned, in view of the fact that there are no materials appearing against him in the evidence which has surfaced in course of the trial. Learned advocate submitted that PW12, SI Subhasish Biswas failed to identify the appellant in Court and deposed that he was absent, although from the records it revealed that all the four accused on Court bail were present. He also submitted that PW12 did not support the prosecution as he stated that he had no personal regarding the case as such it can be concluded, that the signatures in documents were subsequently obtained. Drawing attention of the Court to the evidence of PW4 and PW5 learned Advocate submitted that the victim girls did not support the prosecution case and they categorically deposed that because of hot altercation they were arrested and the statement before the learned Magistrate which was recorded under Section 164 of the Code of Criminal Procedure was tutored by the police authorities. Learned trial Court erroneously relied on the evidence of PW8, Dr. Debraj Biswas which is a medical report in respect of the victim girls and it cannot be a foundation for coming to a conclusion that at the Hotel rooms offences were committed under the provisions of ITP Act. It is his submission that the learned trial Court failed to appreciate the very purport of Section 2(f) and Section 2(a) of the ITP Act, 1956. Lastly the learned trial Court erroneously arrived at the finding of guilt so far as the present appellant is concerned. The learned Advocate concludes that as the prosecution has failed to prove the case beyond any reasonable doubt the order of conviction and sentence against the present appellant should be set aside.

I have considered the submissions of the learned Advocates appearing for the Appellant as well as that of the State and I find that the appellant has stressed on the evidence of PW12, Subhasish Biswas, Sub-inspector of police attached as Officer-in-charge of Mayapur Outpost, while challenging the truthfulness of the version of the said witness who deposed that the appellant was absent in Court. To substantiate such contention learned Advocate for the appellant referred to the order dated 19.01.2017 of the learned Trial Court wherein it was written that four accused persons were present. I have assessed the cross-examination on this point and I find that on the issue of the said version of the witness "Manager is absent today", neither there has been any cross-examination or suggestion. Mere clerical mistake cannot be a foundation of non-identification, as such this Court is of the opinion that the Manager on that day was not present in Court. Now so far as the contention of the learned Advocate of the appellant relating to the evidence of PW4 and PW5 are concerned the said two witness are of teen age being 15 and 17 years respectively which is also reflected from the evidence of the Radiologist PW9, Dr. Piu Saha. Their evidence before PW8, Dr. Debraj Biswas reflects that they had sexual intercourse. The statements of victim 'X' under Section 164 of Cr.P.C. before the learned Magistrate reflects that she had been to Hotel along with her friend and two persons wherefrom police arrested them and forwarded them to the police station. PW5, victim 'Y' in her statement under Section 164 of Cr.P.C. before the learned Magistrate stated that she along with her friend and two persons had been to Mayapur, thereafter, they had been to a Hotel, where they occupied room and police arrested and forwarded them to police station. As such the subsequent deposition before the Court that hot altercation took place in a tea stall when PW4 and PW5 were having food is not acceptable, in view of their earlier version before the doctor and the Learned Magistrate. The submissions of the learned Advocate for the State that the victim girls were recovered from the rooms at Raj Hotel are much more believable than the contention of the learned Advocate appearing for the appellant that there is no evidence to suggest that PW4 and PW5 were present at the Hotel. The additional contention of the learned Advocate that the parents and the guardians of PW4 and PW5 being PW6, Rekha Mondal and PW7, Kanchan Mondal also did not support the prosecution case are irrelevant in view of the fact that they were not present either at the time of commission of the offence or when the raid was conducted. The further contention made by the learned Advocate appearing for the appellant that the learned Trial Court has solely relied upon the statement of the doctor whereas in Court separate narration of facts were divulged or disclosed by the victim girls and as such the version before doctors should not be relied upon also do not inspire any confidence in view of the other materials available, particularly the statement of the girls before the learned Magistrate. So far as the contention of the appellant regarding Section 2(a) and Section 2(f) of the ITP Act, 1956 is concerned there the learned Advocate has stressed regarding the definition used in the Act for the term 'Brothel' and 'Prostitution', I am of the opinion that the same definition is clarified from the evidence on record for implicating the present appellant in view of the fact that in Section 2(a) of ITP Act the expression "brothel.....or place or any portion of any house, room, [conveyance] or place, which is used for purposes [of sexual exploitation or abuse] for the gain of another person or for the mutual gain....". The definition contains an interpretation that any room which is allowed to be used for sexual exploitation or abuse and for the purpose of which there is a gain, the said room can be called a brothel. In this case the victim girls were 15 and 17 years, school student and no identification proof were there in the Hotel or the register reflected their presence and were allowed to be used. Thus the term/words used in Section 2(a) of the ITP Act i.e., 'room', 'sexual exploitation', 'abuse' and 'gain of another person' are satisfied in this case. Therefore, the term 'commercial purpose' used in Section 2(f) of the ITP Act cannot have a restrictive meaning and must receive wide interpretation to include hotels where sexual exploitation or abuse is carried out, as such the interpretation of the appellant that the Hotel do not come within the purview of the Act is not acceptable to this Court. In this case none of the documents which were admitted in evidence before the trial Court were contested at the time of admission or any challenge was made regarding the contents of the said documents. The seizure list Ext.1, reflects the place of seizure to be at Hotel Raj, Hulor Ghat, Mayapur, Nabadwip. The said seizure list reflects a register book of Hotel Raj, voter identity card of Mahadeb Ghosh and packet of condom. Ext.2 reflects the place of seizure to be at Hotel Raj at Room no.2, Hulor Ghat, Mayapur, Nabadwip and the seized articles contained voter identity card and PAN card of Pradip Mondal and a packet of condom. Both these seizure list were signed by Mahadeb Ghosh and Pradip Mondal and the witnesses were PW1, PW2, PW15. No questions were raised to PW1 or PW2 regarding the place from where the seizure was effected. There is nothing on record to show also regarding the veracity of the evidence of PW15.