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Smt. Bindo Ganesh Patil (In Jail) vs The State Of Maharashtra Thr. … on 14 August, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Criminal Appeal No.303 of 2018

Smt. Bindo Ganesh Patil,
Aged about 45 years, Occ.-Business,
R/o.-Badnapura Area, near house of Pritam,
Police Station Purani Chhavani, Motizeel,
Distt. Gwalior (Madhya Pradesh).
(presently in Central Jail, Nagpur) …. Appellant.

-Versus-

The State of Maharashtra,
Through P.S.O. P.S. Lakadganj, Nagpur City, Nagpur.
…. Respondent.

Shri Shashibhushan Wahane, Counsel for appellant.
Mrs. Geeta Tiwari, APP for State.

Coram : Manish Pitale, J.
Date of reserving the judgment : 18 July, 2018.
th

Date of pronouncing the judgment : 14 August, 2018.
th

J U D G M E N T

The appellant has challenged judgment and order dated
24-04-2018, passed by the Sessions Court, Nagpur (trial Court) in
Sessions Trial No. 381 of 2015, whereby the appellant was convicted and
sentenced for the offences punishable under Sections 366-A, 344, 373 of
the Indian Penal Code (IPC) and Sections 3, 4, 5, 6 and 7 of the Immoral
Traffic (Prevention) Act, 1956 (PITA). She was sentenced to various
periods of imprisonments for conviction under the said provisions and since
the sentences were directed to run concurrently, she was required to

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undergo imprisonment of 7 years. The appellant is in jail.

2] The prosecution case in brief is that (PW-2) Satyajeet Desai, a
social worker, approached the Police Station Lakadganj, Nagpur with the
information that minor girls had been brought in the area of Ganga Jamna
in the city for the purpose of prostitution. This information was submitted in
the form of a letter dated 18-11-2014 (Exhibit-28). The said (PW-2)
Satyajeet Desai represented a social organization called “Freedom Firm”
having its office at Pune.

3] On the basis of the said information, the Police arranged for
two social workers to participate in a team for conducting raid in the said
area, for which, two panch witnesses and lady Police Constable were also
called for participation. At about 6 pm, the raiding party reached Sudhakar
building, Bhaskar Galli, Ganga Jamna area of the city. They found one
lady sitting in front of the building. Upon (PW-2) informing the Police that
this was the place where the minor girls were being used for prostitution,
the lady sitting at the gate was apprehended and the raiding party knocked
the door of a room. Upon opening of the room, a customer fled away while
the victim (PW-1) was found in the room. Upon being questioned, the
victim (PW-1) informed that she was originally from a village called
Dabsura, Tahsil Pohari Bhana, Gowardhan, District Shivpuri (Madhya
Pradesh). She further informed that she had been detained for last 1 ½
years by the appellant-accused for prostitution. On the basis of the said
raid, a panchanama was prepared and since the lady sitting at the gate
was the appellant herein, she was arrested and offences were registered
against her under the aforesaid provisions of the IPC and PITA. Upon

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completion of investigation, charge-sheet was submitted and the appellant
was charged with having committed the aforesaid offences.

4] In support of its case, the prosecution examined 7 witnesses.
(PW-1) was the victim herself, (PW-2) Satyajeet Desai was the Social
Worker who provided information for the raid, (PW-3) Rajesh Karanduke
was a panch witness who had accompanied the raiding party, (PW-4)
Suresh Madavi was the Police Inspector who conducted the raid, (PW-5)
Rajesh Chintalwar was the Medical Officer who had examined the victim
and deposed regarding her age, (PW-6) Ravitabai was the mother of the
victim and (PW-7) Satyanarayan Jaiswal was the Investigating Officer.

5] The trial Court considered the oral and documentary evidence
on record and it found that the prosecution had been able to prove that the
victim (PW-1) was less than 16 years old when the offences were
registered against the appellant. The trial Court further found that there
was sufficient material on record to demonstrate that each and every
offence under the provisions of the IPC and the PITA, for which the
appellant had been charged, stood proved against her. On this basis, by
impugned judgment and order, the trial Court convicted and sentenced the
appellant.

6] Shri Shashibhushan Wahane, learned Counsel appearing on
behalf of the appellant, submitted that the judgment of the trial Court was
unsustainable. Firstly, because the prosecution had failed to place on
record any cogent material to prove that the age of the victim (PW-1) at the
relevant time was less than 16 years. It was submitted that even if the

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evidence of Doctor (PW-5) was taken into consideration, it could not be
concluded that the age of the victim (PW-1) was less than 16 years. On
this basis, it was submitted that the appellant could not have been held
guilty of the offences for which she was charged. Secondly, it was
submitted by the learned Counsel for the appellant, that even on merits
there was insufficient material on record to hold that the appellant was
guilty of the said offences. It was submitted that the prosecution had
miserably failed to bring on record any material to connect the appellant
with the room or the building in which the victim (PW-1) was found. The
prosecution failed to show either that the appellant owned the said
room/building or that she was a tenant therein. It was further submitted
that the room could not be said to be a “brothel” as defined under Section
2(a) of the PITA and further there were discrepancies in the evidence of
victim (PW-1) that falsified the case of the prosecution. It was further
submitted that even if the evidence of the victim (PW-1) was taken into
consideration; two persons namely Ranjeet and Savitribai could be held
responsible and that there was no material to show the involvement of the
appellant. It was further submitted that the letter dated 18-11-2014
(Exhibit-28) submitted by the social worker (PW-2) stated that the social
workers of the organization “Freedom Firm” had reported about prostitution
business in the said area, but none of such social workers were examined.
The very initiation of investigation in the present case was, therefore,
doubtful. On this basis, the learned Counsel submitted that the judgment
of the trial Court deserved to be set aside.

7] On the other hand, Mrs Geeta Tiwari, learned APP appearing
on behalf of the State, submitted that the evidence of the victim (PW-1)

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was truthful and trustworthy. She had specifically identified the appellant
as the person who used to collect money while the victim (PW-1) was
forced into prostitution. It was submitted that even though the names of
two aforesaid persons were also taken by the victim (PW-1), that by itself
could not absolve the appellant for her role in the present case. It was
submitted that when no document in the form of Date of Birth Certificate or
School Leaving Certificate was available to indicate the age of the victim
(PW-1), the medical tests relied upon by the prosecution were sufficient to
demonstrate that the victim (PW-1) was less than 16 years of age at the
relevant time. On this basis, it was submitted that the judgment of the trial
Court deserved to be upheld.

8] Heard leaned Counsel for the parties and perused the record.
In the present case, for conviction of the appellant for the offences
mentioned above, it is necessary that the victim (PW-1) is found to be less
than 16 years of age at the relevant time. Therefore, the question of
determination of age of the victim (PW-1) assumes significance. In the
present case, the trial Court has found that the prosecution has proved the
age of the victim (PW-1) as less than 16 years, on the basis of ossification
test, physical examination and X-ray test. The trial Court has relied upon
the evidence of the (PW-5) doctor to hold that the age of the victim (PW-1)
was between 15 to 16 years at the relevant time. According to the trial
Court, the defence has failed to bring on record any adverse evidence to
disbelieve the opinion of the doctor (PW-5).

9] A perusal of the evidence of the victim (PW-1) shows that she
has not stated anything about her date of birth or age in her examination-

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in-chief and therefore, there is no cross examination on the question of
age. The mother of the victim (PW-1) i.e. (PW-6) Ravitabai has stated that
at the relevant time her daughter i.e. victim (PW-1) might have been 16 or
17 years of age. This witness also stated that she had sent her daughter
i.e. victim (PW-1) with the said Ranjeet and Savitribai for the purpose of
marriage and further that in her community the marriage of daughter used
to be performed after attaining the age of 20 years. The Doctor (PW-5)
stated about the physical examination of the victim (PW-1) and advised
X-ray test for giving opinion regarding the age. He stated that on the basis
of physical examination and reports of the X-ray and OPG report, he had
issued certificate stating that the age of the victim (PW-1) was between 15
to 16 years. But in cross examination the said witness conceded that the
exact age could not be determined on the basis of the said reports. It is
also relevant that the X-ray plates on the basis of which the report was
submitted were not exhibited or placed on record before the trial Court.
The radiologist who conducted the X-ray tests was also not examined.
Considering the evidence of the aforesaid witnesses and the material on
record, it has to be considered whether the opinion given by the doctor
(PW-5) about the age of the victim (PW-1) being 15 to 16 years, was
reliable or not.

10] In the case of Jaya Mala vs Home Secretary,
Government of Jammu and Kashmir, reported at (1982) 2 SCC 538, the
Hon’ble Supreme Court has considered reliability of radiological
examination for determining the age of a person. It has been held in the
said judgment of the Hon’ble Supreme Court that such radiological
examination test for determination of age was notorious and that one can

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take judicial notice that the margin of error in age ascertained by
radiological examination is two years on either side. Applying the
aforesaid margin of error to the facts of the present case, it is found that
the age of the victim (PW-1) would go to the threshold of 18 years. This
Court in the case of Smt. Firoza vs State (Criminal Appeal No.534 of
2010) also disbelieved the case of the prosecution on the question of age
of prosecutrix when X-ray plates were not produced before the Court and
the deposition of the doctor was in general terms, like in the present case.
In the said case also there was no documentary evidence like Birth
Certificate or School Leaving Certificate to indicate the date of birth of the
prosecutrix and this Court disbelieved the case of the prosecution
pertaining to the question of age.

11] In the present case, the victim (PW-1) did not state anything
about her age while her mother (PW-6) stated that her age could be
between 16 to 17 years, while at the same time stating that the girls in her
community were married after attaining the age of 20 years and that her
daughter i.e. victim (PW-1) in the present case was sent by her with the
said Ranjeet and Savitribai for the purpose of marriage. In this backdrop, it
is evident that there was no reliable material on record to come to a
specific conclusion that the victim (PW-1) was less than 18 years of age
at the relevant time. The trial Court committed an error in relying upon only
the medical evidence and opinion of the doctor (PW-5) to hold that the
victim (PW-1) was minor. The trial Court failed to appreciate the margin
of error that was required to be factored into the process of determining
the age of victim (PW-1) on the basis of the X-ray reports. In any case,
the X-ray plates were never exhibited or placed on record before the trial

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Court, thereby rendering the medical evidence wholly unreliable. Thus, the
finding rendered by the trial Court regarding the age of the victim (PW-1) in
the present case was unsustainable. The direct impact of this finding is
that the conviction of the appellant for offences under Sections 366-A and
373 of the IPC was rendered unsustainable.

12] Therefore, it remains to be examined as to whether the
appellant could be held guilty of having committed offences under Section
344 of the IPC (wrongful confinement) and Sections 3, 4, 5, 6, and 7 of the
PITA. In order to arrive at findings for the said offences, the evidence of
victim (PW-1) assumes significance. A perusal of the evidence of the
victim (PW-1) shows that she was brought from her village by the said
Ranjeet and Savitribai to Nagpur. Ranjeet and Savitribai were the persons
who brought the victim (PW-1) to the place from where she was recovered
by the Police when the raid was conducted. She stated that the said
Ranjeet and Savitribai left her in the custody of the appellant. It is stated
by the said witness that during the day time she used to reside with the
appellant in the place in question and during night hours she used to
reside at the house of Ranjeet and Savitribai. She has also categorically
stated that she resided at the place, where she was found, for about 2 to 3
months with the appellant. It is also stated by her that the appellant and
the said Ranjeet and Savitribai forced her to carry out bad work indicating
prostitution. She has also stated that the place from where she was made
to do the bad work was of the appellant.

13] The learned Counsel for the appellant has emphasized on
omission in the evidence of the victim (PW-1) to the effect that when she

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refused to do bad work, the appellant used to call Savitribai who then used
to beat her. The other sentence on which emphasis is placed on behalf of
the appellant is that the victim (PW-1) stated that the appellant used to tell
the said Savitribai that she (appellant) would not get bad work done from
the victim (PW-1). On the basis of the said omission and the statement, it
was emphasized that the real culprits in the present case were the Ranjeet
and Savitribai and the appellant had no role to play, to make her liable for
the aforesaid offences.

14] A perusal of Section 344 of the IPC shows that whoever
unlawfully confines any person for 10 days, shall be punished with
imprisonment which may extend to three years. Section 340 of the IPC
provides that whoever unlawfully restrains any person in such a manner so
as to prevent that person from proceedings beyond certain circumscribing
limits, is said to “unlawfully confine” that person. In the present case, the
victim (PW-1) has specifically stated that she was forced to live with the
appellant during the day time and that the appellant used to get bad work
done from her. She categorically stated that she had stayed at the place
where she was found by the Police, for about 2 or 3 months with the
appellant. Thus, the ingredients of offence under Section 344 of the IPC
against the appellant were clearly made out on the basis of the evidence of
the victim (PW-1). The alleged omission in the evidence of the victim
(PW-1) has not discredited the said evidence showing that the appellant
had indeed unlawfully confined the victim (PW-1). Thus, no error is found
in the conviction and sentence imposed by the trial Court against the
appellant under Section 344 of the IPC.

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15] Section 3 of the PITA pertains to punishment for keeping a

brothel or allowing premises to be used as a brothel. Section 2(a) defines
brothel as follows :-

“2(a) “brothel” includes any house, room, [conveyance]
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 of two or more
prostitutes;”

16] The evidence of victim (PW-1) shows that she was made to
entertain customers and she was forced to indulge in prostitution in the
room from where she was recovered by the Police. The fact that she was
recovered from a room from one Sudhakar Building was amply proved by
the evidence of (PW-2) Satyajeet, (PW-3) Rajesh and (PW-4) Suresh. The
evidence of the said witnesses also shows that the victim (PW-1) was
made to carry out the said activity of prostitution by the appellant. This
clearly demonstrated that the appellant was guilty of offence punishable
under Section 3 of the PITA.

17] Section 4 of the PITA pertains to punishment for living on the
earnings of prostitution. In this regard the evidence of victim (PW-1) amply
describes how she was forced to entertain customers and carry out the
work of prostitution, while the appellant used to collect money for the
same. The said witness has categorically stated that the customers used
to pay amount to the appellant and the said Savitribai. When the raid was
conducted, the victim (PW-1) pointed towards the appellant as being the

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person who was getting the work of prostitution done from her. The
evidence of PW-3 shows that an amount of Rs. 380/- was indeed
recovered from the appellant at the time when the raid was conducted.
The spot panchanama regarding the said fact is also proved by the
prosecution before the trial Court. Therefore, it is evident that offence
under Section 4 of the PITA stood proved against the appellant.

18] Section 5 of the PITA pertains to procuring, inducing or taking
[person] for the sake of prostitution. This offence is complete when a
person procures another person for the purpose of prostitution or induces
such person to go from any place with intent that such person becomes the
inmate of a brothel or to take such a person from one place to another with
a view to carrying on prostitution. In the present case, the evidence on
record shows that such activities were in fact carried out by the said
Ranjeet and Savitribai. The appellant was the person in whose custody
the victim (PW-1) was left throughout the day and activity of prostitution
was carried out. Although the appellant did not induce the victim (PW-1)
to go from one place to the other for carrying out the activity of prostitution,
but she certainly caused the victim (PW-1) to carry on prostitution.
Therefore, the appellant was clearly guilty of the said offence under Section
5(1)(d) of the PITA. But, since the victim (PW-1) could not be said to be
child or minor, as the proof of age was not conclusively brought on record
by the prosecution, the proviso to Section 5(1) would not apply. Yet, the
evidence on record clearly shows that the appellant was indeed guilty of
offence under Section 5(1)(d) of the PITA.

19] Section 6 of the PITA pertains to an offence of detaining a

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[person] in premises where prostitution is carried on. The evidence of

victim (PW-1) shows that she was detained by the appellant in the room
where she was found by the Police, throughout the day for carrying out
prostitution. The victim (PW-1) has clearly stated that although she was
taken in the night by Ranjeet and Savitribai, during the day she was kept in
the room by the appellant where she was made to work as a prostitute.
Thus, the said section is also applicable in the present case against the
appellant.

20] Section 7 of the PITA pertains to prostitution in or in the vicinity
of public places. In this regard the spot panchanama at Exhibit-31 shows
that the place from where the victim (PW-1) was recovered was about 50
metres from Hanuman temple. The said provision lays down that if the
premises where prostitution is being carried out is within a distance of two
hundred metres of any place of public religious worship, the said section
would apply. The spot panchanama (Exhibit -31) was proved by the
prosecution through the evidence of (PW-3) Rajesh. Therefore, offence
under Section 7 of the PITA is also made out.

21] In the present case, as found above, the prosecution did fail to
prove the issue of age of the victim (PW-1) and therefore, it could not be
conclusively said that she was less than 18 years of age at the time of the
incident. Therefore, the conviction and sentence imposed by the trial Court
under Section 366-A and 373 of the IPC is found to be unsustainable. But,
the conviction and sentence imposed by the trial Court under Section 344
of the IPC and Sections 3, 4, 5, 6 and 7 of the PITA is clearly based on
proper appreciation of the evidence and material on record and it is found

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to be sustainable.

22] The learned Counsel for the appellant contended that when
the evidence and material on record indicated involvement of Ranjeet and
Savitribai, the conviction of appellant was not justified. The said contention
is found to be without any merit because the prosecution successfully
placed on record sufficient material to prove the guilt of the appellant in the
facts and circumstances of the present case. For reasons best known to
the prosecution, Ranjeet and Savitribai were not arrayed as accused in the
present case. But, only for that reason, the appellant cannot be given
benefit of doubt. In any case, failure of prosecution to proceed against the
said Ranjeet and Savitribai cannot accrue to the benefit of the appellant,
when the evidence and material on record clearly proves her guilt insofar
as Section 344 of the IPC and the aforesaid provisions of PITA are
concerned.

23] In the light of the above, the instant appeal is partly allowed in
the following terms :-

(a) The impugned judgment and order of the trial Court
is set aside to the extent of convicting and
sentencing the appellant under Sections 366-A and
373 of the IPC. The appellant is acquitted of
offences under the said provisions.

(b) The rest of the impugned judgment and order of the
trial Court is found to be sustainable and it is upheld.

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Consequently, the conviction and sentence imposed
by the trial Court on the appellant for offences under
Section 344 of the IPC and Sections 3, 4, 5, 6 and 7
of the PITA, is confirmed and upheld. It is directed
that the sentences imposed by the trial Court on the
appellant under the said provisions shall run
concurrently and she shall also be liable to pay fine
as imposed on her for offences under the said
provisions.

24] Accordingly, appeal is disposed of in above terms.

JUDGE

Deshmukh

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