Khali Sahu vs State of Orissa

G.K. Misra, C.J.—Laxmi Martha. Paramananda Martha, Khali Sahu and Sahajada Bibi were tried by the Assistant Sessions Judge, Nayagarh. Laxmi and Paramananda were convicted u/s 366/34, Indian Penal Code and each of them was sentenced to R.I. for 2 years and to pay a fine of Rs. 200/ - in default to R.I. for one month more. Khali was convicted u/s 366/109, Indian Penal Code and sentenced to R.I. for 2 years and to pay a fine of Rs. 200/ - in default to R.I. for one month more. Sahajada Bibi was convicted u/s 201, Indian Penal Code and sentenced to R.I. for 6 months and to pay a fine of Rs. 50/ - in default to R.I. for 10 days more. Sahajada Bibi did not file any appeal before the Sessions Judge and the order of conviction and sentence passed by the Assistant Sessions Judge against her has become final. Laxmi and Paramanda filed one appeal while Khali filed a separate appeal. Both the appeals were dismissed by the learned Sessions Judge on 12-3-1974. He made an observation that the sentences imposed by the Assistant Sessions Judge were lenient. Criminal Revision No. 146 of 1974 has been filed by Khali Sahu while Criminal Revision No. 148 of 1974 has been filed by Laxmi and Paramananda. Criminal Revision No. 146 of 1974 was admitted by Acharya. J. on 4-4-1974. He did not issue any notice of enhancement while Panda. J. issued notice of enhancement on Laxmi and Paramanda in Criminal Revision No. 148 of 1974 at the time of admission on 8-4-1974. Both the criminal revisions arise out of the same case and have been heard together.

Prosecution case may be stated in short. Khali Sahu is a resident of village Durgaprasad. Laxmi and her foster son Paramananda are residents of village Manikagoda. Both the villages are not far off from each other and are in the sub-division of Nayagarh in the district of Puri. Khali traffics in girls. His wife Surabala and Lumi are sworn friends. There was thus intimacy amongst Laxmi, Paramananda and Khali. Kanakalata Sahu (P.W.11) is the daughter of Dinabandhu Naik (P.W. 17) who had a large number of children, but no means. P.w. 17 is a labourer and extremely poverty-stricken. While P.W. 11 was about 15 years old she was taken in as a foster daughter by Khali. This is how, though the surname of P.W. 11 should have been ''Naik'', it is ''Sahu''. Taking advantage of the helplessness of P.W. 11 Khali got her married to Dhaneswar Kar (P.W.13) on acceptance of Rs. 740/ - as bride''s price. Dhaneswar Kar is a Brahmin. It was given out at the time of marriage that P.W. 11 was a Brahmin though in fact she was a Chasa (cultivating class). P.w. 11 was ill-treated by P.W. ] 3. She left P.W. 13''s house and took shelter under Khali who again got her married to Pitambar Panda (P.W.2) on acceptance of about Rs. 900/ - as bride''s price. On the occasions of both the marriages, p.W. 11 was asked by Khali, to give her name as Subarna and to say that she was a Brahmin girl. The marriage with P.W. 2 was negotiated by Surabala, wife of Khali, and Khira Dei. After p. w: 11 remained for some time with P.W. 2, Khira Dei disclosed that P.W. 11 was not a Brahmin. P.w. 11 was chastised by P.W. 2 and she left his house and again took shelter under Khali. While she was with Khali, Laxmi and Paramananda came to the house of Khali and had some secret talks with him. They suggested to P.W. 11 that she should come with them and see Calcutta. P.w. 11 was pregnant then. She was extremely reluctant to go to Calcutta. At this juncture Khali persuaded her and almost compelled her to go to Calcutta in the company of Laxmi and Paramananda. Out of fear for Khali she agreed to go to Calcutta. Laxmi gave the proposal that P.W. 11 would go up to Khurda Road in the company of Paramananda and thereafter they would go together. On 13-5-1971 P.W. 11 went upto Bbubaneswar in the company of Paramananda as they did not find Laxmi at Khurda Road. From Bhubaneswar all the three went together by train to Calcutta and reached the building 15-F in Durga Charan Mitra Street in Calcutta (Sonargachhi) and P.W. 11 was lodged in room No. 4.. There she learnt from other inmates of that house that Laxmi was running a brothel by procuring several girls, some of whom were from Orissa. P.w. 11 was not taken to any other part of Calcutta for sight-seeing. On the contrary Paramananda left Calcutta for the village soon after without giving any intimation to P.W. 11 when she wanted to know the whereabouts of Paramananda, Laxmi falsely gave out that he had gone to bazar. A few days thereafter two Punjabees were introduced into room No. 4 in a particular night for having sexual intercourse with P.W. 11 on their paying Rs. 40/ - to Laxmi. The door was hinged from outside and Laxmi was guarding there. The two Punjabees stripped P.W. 11 off her clothes and attempted to have sexual intercourse with her. P.w. 11 protested and her protest invited the attention P.W. 6 and P.W. 15. At the instance of P.W. 15, P.W. 11 was rescued and the Punjabees went away after taking refund of Rs. 40/ - from Laxmi. On 30-5-1971 when Laxmi was busy in cooking,. P.W. 11 with the assistance of the landlady of the house Pramilabala Banerjee (P.W.7) and Jaharlal Roy (P.W. 15) who was looking after the affairs of P.W. 7 escaped. At the Howrah Station she got into a compartment of the Howrah-Hyderabad Express in which Shrimati Prabhamayi Devi (P.W.1), the President of the Orissa Branch of Association of Moral and Social Hygiene, was travelling for Cuttack. P.w. 11 narrated the entire story to P.W. 10. At Cuttack P.W. 11 was kept by P.W. 1 in their Association House. P.w.11 became seriously ill and had an abortion. P.w. 1 submitted a report to the Police-Ext.1 dated 16-6.1971. P.w. 11 filed a report (Ext. 8) dated 3-8-1971 which was treated as the F.I.R.

Khali Sahu in his statement u/s 342, Code of Criminal Procedure admitted that he was the foster father of P.W. 11 and got her married to P.W. 13; that after the marriage with P.W. 13 he had no further information about P.W. 11; and that in having the marriage she did not accept any money as bride''s price. Laxmi and Paramananda took the plea that P.W. 11 went to Calcutta of her own accord and stayed with them, but as Laxmi turned down her request for helping her to have an induced abortion and as she took exception to the objectionable association of P.W. 11 with P.W. 15, Kanakalata (P.W.11) resented and filed the false case.

Both the Courts below held that the evidence of P.W. 11 was wholly trust-worthy even without corroboration. They, however, found that ample corroboration had been furnished by the evidence of PWs. 1. 2. 6, 7, 13, 14 and 15 who were independent and reliable witnesses. On the evidence of these witnesses both the Courts below recorded the following concurrent findings:

(i) Khali was trafficking in girls;

(ii) P.w. 17 was very poor, had a number of children and was unable to maintain them. P.w. 11 took shelter under Khali at the age of 15 who treated her as a forster daughter;

(iii) Khali got P.W. 11 married to P.W. 13 on receipt of Rs. 740/ - towards bride''s price. Khali took away P.W. 11 about 2 years after when P.W. 13 illtreated her and gave her in marriage to P.W. 2 by accepting some money;

(iv) P.w. 11 was Chasa by caste. On both the occasions she married a Brahmin. Khali asked her to represent herself as a Brahmin and gave out her name as Subarna;

(v) P.w. 11 left the house of P.W. 2 being assaulted by him after Khira Dei disclosed that she was not a Brahmin;

(vi) After coming back from P.W. 2''s place P.W. 11 was taking shelter with Khali. It is then there was a secret conspiracy amongst Laxmi, Paramananda and Khali to take P.W. 11 to Calcutta for prostitution;

(vii) P.w. 11 was asked by Laxmi and Paramananda that she should come with them to see Calcutta. P.w. 11 showed her utter reluctance. She was also pregnant then. Khali persuaded and almost compelled P.W. 11 to go to Calcutta with Laxmi and Paramananda. Out of fear for Khali P.W. 11 had to go to Calcutta;

(viii) P.w. 11 went in the company of Paramananda upto Bhubaneswar and from there she went in the company of both Laxmi and Paramananda;

(ix) After arrival in Calcutta, all of them went to a building 15-F in Durga Charan Mitra Street. P.w. 11 was lodged in room No. 4. P.w. 11 learnt from P.W. 6 that Laxmi was running a brothel in that house by bringing girls for prostitution.

(x) Two Punjabees were introduced to her room one night by Laxmi after accepting Rs. 40/ - from them. When the Punjabees wanted to have forcible sexual intercourse by unclothing her she protested. She was rescued on the intervention of P.W. 15;

(xi) On 30-5-1971 she escaped from Laxmi''s house with the assistance of PWs. 7 and 15. At the Howrah Station she got into a compartment of Howrah-Hyderabad Express in which P.W. 1 was travelling to Cuttack;

(xii) P.w. 11 narrated the entire story to P.W. 1 who gave her shelter in the Association House at Cuttack of the Association of Moral and Social Hygiene:

(xiii) Khali wanted to take back P.W. 11, but she refused saying that Khali would again hand her over to Laxmi.

On these findings ordinarily there will be no room for argument on facts in revision. As the case, however, is of a peculiar nature I head the two revisions as if they were appeals and gave full freedom to the learned advocates for the parties to place the evidence at length after having heard the learned Counsel I am satisfied that the Courts of fact made a correct appreciation of the evidence and there is no room for interference. The evidence of P.W. 21 and P.W. 1 was rightly discarded by the trial Court and was not pressed into service by the appellate Court.

The case against Laxmi is a cast iron one. P.w. 6, 7 and 15 deposed in a straight-forward manner that Laxmi runs a brothel in the aforesaid house at Sonargachhi. P. ws. 6 and 15 also testify to the fact that on acceptance of Rs. 40/ - from two Punjabees Laxmi introduced those persons to have illicit intercourse with P.W. 11 who protested and P.W. 15 ultimately rescued her. The Punjabees went away after taking refund of Rs. 40/ - from Laxmi. These witnesses are independent and reliable witnesses and nothing substantial has been brought to my notice as to why their evidence should be discarded. Even without corroboration from them the evidence of Laxmi is acceptable. Law is well settled that a conviction can be well based on the uncorroborated testimony of a victim girl provided the Court of fact keeps the legal position in mind, assesses the evidence accordingly and finds the victim girl quite reliable and trustworthy. In this case P.W. 11 appears to be quite trust-worthy and her evidence is acceptable without corroboration. She was given shelter by Khali from her 15th year as her natural father was unable to maintain her. Khali also got her married twice. Even though Khali accepted consideration for the marriage and got the marriages with P.W. 2 illegally performed as the marriage with P.W. 13 had not been dissolved, on each occasion when P.W. 11 faced difficulties she came back to Khali for shelter. There is no reason why P.W. 11 would falsely implicate Khali in the nefarious allegation that at her instance Laxmi and Paramananda took her to Calcutta for the purpose of prostitution.

P.w. 11 was admittedly in the house of Laxmi at Sonagachhi. P. ws. 6, 7 and 15 narrated as to how P.W. 11 left the house stealthily when Laxmi was busy in cooking. At the Howrah Station when P.W. 11 met P.W. 1, she narrated the entire story. P.w. 1 is a lady of high status. No motive can be ascribed to her as to why she would be a party to false statements implicating Laxmi in using P.W. 11 for the purpose of postitution. It was contended that P.W. 11 did not refer to the Punjabees in her statement Ext. 1. In cross-examination P.W. 1 has offered a satisfactory explanation that though the incident was narrated to her she forgot to mention it in her report. It was not necessary to give every detail in material particulars in Ext. 1. Her explanation is satisfactory and acceptable. Similarly it has been commented that P.W. 6 had deposed that P.W. 11 had told her that she had been brought to Calcutta for marriage with Paramananda. This version was not put to P.W. 1 in cross-examination. She got no opportunity of giving explanation as to whether she made such a statement to P.W. 6. It seems that P.W. 6 has made this statement out of confusion. Similar such minor criticisms have been advanced in relation to the evidence. I do not consider it necessary to reassess the evidence as in appeal as both the Courts below have properly appreciated the evidence. They have also in course of their discussion referred to the discrepancy with regard to stripping of the clothes of P.W. 11 and they have not attached any importance thereto, as such, minor contradictions are likely to occur in the evidence of witnesses. I am therefore satisfied that Laxmi attempted to use P.W. 11 for prostitution, but failed.

The concurrent finding that P.W. 11 was brought by Laxmi and Paramananda to Calcutta is unassailable. P.w. 11 is a rustic girl. There is no evidence that she had visited Calcutta at any time earlier. Her evidence therefore inspires thorough confidence that she had gone to Calcutta in the company of Laxmi and Paramananda. She had been beguiled. She was given the impression that as well-wishers and friends Laxmi and Paramananda were taking her for seeing Calcutta. There is no particular reason why Laxmi and Paramananda became so generous in incurring certain expenditure for the purpose of taking P.W. 11 to Calcutta. Even if P.W. 11 had gone to Calcutta alone, it is difficult to explain how she went to the house at 15-F in Durga Charan Mitra Street where Laxmi and Paramananda were residing.

The evidence of P.W. 11 that Laxmi and Paramananda had secret talks with Khali before her departure for Calcutta inspires confidence in the context of events that P.W. 11 had ultimately to go to Calcutta and was found in the company of Laxmi in a brothel. Khali was the godfather of P.W. 11. He persuaded her to go to Calcutta and ultimately compelled her. Khali denies this fact. P.w. 11''s version is consistent with the facts of her going to Calcutta to Laxmi''s house. P.w. 11''s further version that there was a secret talk amongst those three persons before she was persuaded and compelled fits in with the broad probabilities and circumstances of the case. Khali is not as innocent as he pleads. He has taken full advantage of the utter helplessness of P.W. 11 and at every point of time has gained material advantage in dealing with P.W. 11. P. ws 13 and 14 deposed that when Khali got P.W. 11 married to P.W. 13 Rs. 740/ - was accepted from P.W. 14 who is a relation to P.W. 13. P. ws. 13 and 14 have not failed in cross-examination. They are quite independent and reliable and they have no axe to grind against Khali. Even if the evidence of P.W. 16 is discarded that Khali was -in the habit of trafficking in girls, the evidence of PWs. 13 and 14 cannot be brushed aside which directly implicates Khali in accepting bride''s price in the marriage of P.W. 11. Similarly p w. 2 is an independent witness and there is no reason why his evidence that money was received by Khali when P.W. 11 was given in marriage to him would be discarded.

The evidence of P.W. 1 is admissible u/s 157 of the Evidence Act which lays down that in order to corroborate the testimony of a witness, any former statement made by such witness, relating to the same fact, at or about the time when the fact took place, may be proved. At the earliest opportunity P.W. 11 narrated her story from the point when she started in the company of Paramananda from the house of Khali till she got out of the clutches of Laxmi and met P.W. 1. P.w. 11''s statement to P.W. 1 her former statement made at or about the time when the fact took place. This is admissible u/s 157 of the Evidence Act to corroborate her testimony in Court. What probative value would be attached to such statement would depend on the facts and circumstances of each case. P.w. 1 is a lady of high status and her evidence is wholly acceptable. Her testimony lends credence to the evidence of p. w 11.

Ext. 23 is a letter addressed by Paramananda to Laxmi in her Calcutta address at 15 F Durga Charan Mitra Street, therein he has made reference to Khali as not making the person available though he had taken advance money. He narrates in the letter that he approached Khali''s wife and told her that unless the contractual obligation is discharged, Khali should give either his wife or daughter. The letter does not clearly indicate that there was agreement between Paramananda and Khali for supply of girls, but it gives a clear indication that Paramananda had association wIth Khali. This letter is not binding on Khali as it is not his ad mission, but is binding on Paramananda that he had transactions with Khali and they were in business dealings.

Ext. 25 dated 16-7-1971 is a letter addressed by Paramananda to Laxmi in the same Calcutta address. In this letter he states that P.W. 11 has run away from their house in Calcutta and is staying in Cuttack and there is a police investigation. Paramananda suspected Khali as having disclosed to the police about Kanakalata (P.W.11) and her stay with Laxmi and Paramananda. Paramananda advised Laxmi to make false statements and not to disclose the truth. This letter is again not binding on Khali, but so far Laxmi and Paramananda are concerned it throws light that the affairs they had with P.W. 11 was integrally connected with Khali.

It is not necessary for me to discuss all the evidence at length. I took some pains to indicate the salient features of the evidence only to show that both the Courts below have properly assessed the evidence and a different view cannot be taken in revision.

Section 362, Indian Penal Code defines "abduction":

Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.

Section 366, Indian Penal Code, so far as relevant, prescribes that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The intention to abduct is to be gathered from conduct. Affirmative proof is not always possible. It is to be inferred from the facts and circumstances of each case. So also abetment by conspiracy or aid can be inferred from circumstances and conduct. From the concurrent findings recorded it is clear that Laxmi and Paramananda took P.W. 11 to Calcutta for the purpose of prostitution. They, however, adopted the deceitful means inducing her that she should go wIth them to see Calcutta and it is by this means they induced P.W. 11 to go from village to Calcutta. Their conviction u/s 366/34. Indian Penal Code is well founded.

Khali knew that P.W. 11 was not anxious to see Calcutta. He had secret talks with Laxmi and Paramananda and thereafter he persuaded and more or less compelled her to go to Calcutta. As has already been said, Laxmi is the sworn friend of Surabala, wife of Khali. Though Laxmi belongs to village Manikagoda in the Nayagarh sub-division, she mostly remains in Calcutta and Paramananda looks after her properties in the village. With full knowledge that P.W. 11 is being taken for the purpose of prostitution Khali by deceitful means said that she should go to Calcutta, and should get better clothes and food and by so saying induced her to go. His conviction u/s 366/149, Indian Penal Code is well founded.

As I have already stated, notice of enhancement was issued on Laxmi and Paramananda, but no notice of enhancement had been issued on Khali. In the circumstances I do not consider it desirable to enhance the sentence only of two without interfering with the sentence of the other. Khali is more to blame. He was the god-father of P.W. 11 and is supposed to look to her welfare. He betrayed the trust reposed in him. If his sentence cannot be enhanced, I find no justification to enhance the sentence of the other two. The notice of enhancement is discharged.

Dismissed Both the revisions have no merit and are accordingly.