Rita Ram Singh, Sita Ram Shukla and Manju Sukhbahadoor Tamang vs State of Maharashtra

M.L. Tahaliyani, J.—The Appellants feel aggrieved by the judgment and order passed by the Additional Sessions Judge, Pune in Sessions Case No. 420 of 2007. Appellant No. 1 is convicted of the offences punishable under Sections 366A, 373, 344 read with 34 of the Indian Penal Code and Section, 3, 4, 5 and 6 of the Prevention of Immoral Traffic Act. Appellant Nos. 2 and 3 are convicted of the offences punishable u/s 344 read with 34 of the Indian Penal Code and Sections 3, 4, 5 and 6 of the Prevention of Immoral Traffic Act. The prosecution had alleged that the Appellants in furtherance of their common intention had procured minor girls under the age of eighteen years and brought P.W. 5 from Nepal to Pune with intent that P.W. 5 might be forced or seduced to illicit intercourse with other persons. It is further alleged that the Appellants in furtherance of their common intention had bought P.W. 5 Shobha for the purpose of prostitution.

Appellants 2 and 3 have been acquitted of the offences punishable under Sections 366A and 373 read with 34 of the Indian Penal Code whereas, as already stated, Appellant No. 1 has been convicted of these two offences also. The prosecution had examined in all ten witnesses in support of its case. P.W. 1 was the complainant Police Officer. P.W. 2 was a lady Police Constable. P.W. 4 was a panch witness. P.W. 7 and 8 were the Medical Officers who had examined the victim girls. P.W. 9 and 10 were Police Officers involved in the investigation of the case. P.W. 3 Triveni Acharya and P.W. 6 Maya Pandey were social workers. P.W. 4 was a female panch witness and P.W. 5 was one of the victim girls.

What is important to be noted is that more than fourteen girls, some of them minor, were rescued during the operation. Charge framed against the Appellants and the points framed for determination by the Learned Additional Sessions Judge clearly indicate that the offences alleged against the Appellants were in respect of all the girls. However, the prosecution has examined only one victim girl i.e. P.W. 5 Shobha.

I have gone through the evidence and the judgment passed by the Additional Sessions Judge. It is seen that major portion of the evidence is hearsay evidence and the charges particularly the charges under Sections 3, 4, 5 and 6 of the PITA Act are based on the evidence of P.W. 5 only. After having gone through the whole evidence and the judgment, I do not think it necessary to discuss rest of the evidence except the evidence of P.W. 5. P.W. 5 in her examination in chief had stated that she was working at Nepal and was doing embroidery work. One Ms. Manju was her friend and she was also working with her. One lady whose name has not been mentioned in the evidence had brought P.W. 5 and Manju to Pune on the pretext that they would get job at Pune. They reached Pune by train and were accommodated in a lodging house. It is stated by this witness that another lady had come to the lodging house and she had taken P.W. 5 and Manju to the brothel on the pretext that she would buy clothes for them. It is stated by this witness that she was subjected to forcible sexual intercourse at the instance of the lady who has taken her from the lodging house. This witness has also stated that other girls were also subjected to sexual intercourse and that the said lady was collecting money from the persons who had sexual intercourse with P.W. 5 and other girls.

In her cross examination, however, this witness has admitted that she had come to Pune from Nepal. It is not her case that she was brought to Pune from Nepal by some other lady. What is stated in the cross examination is that one more lady had travelled along with them to Pune and she was staying in the same lodge. She has further stated that the police had not recorded her statement. She did not know whether the police from Nepal had come to rescue her. As such, the cross examination has demolished the statement made by this witness in the examination-in-chief. It is seen from the evidence that some social workers were involved in the operation. Therefore, the possibility of P.W. 5 deposing at the instance of some social workers cannot be ruled out. Such a suggestion had been put to her in the cross examination. She has denied that she had been deposing at the instance of Ms. Triveni. The Learned Trial Judge in paragraph 30 of the judgment has dealt with the arguments submitted on behalf of the defence that since other victim girls have not been examined and since the evidence of P.W. 5 has been demolished to a large extent in the cross examination, it was not safe to convict the Appellants for the alleged offence. It appears that the judgment of the Learned Trial Court is mainly based upon hearsay evidence. He has therefore turned down the submissions made on behalf of the Appellants. In my considered opinion, considering the serious nature of the offence and particularly when the names of all the victim girls were available, it was incumbent on the part of prosecution to examine few more victims to support the prosecution case. It appears that the rescued girls were sent to the appropriate places by the police and NGOs and therefore it can be presumed that their addresses were known to the prosecution. If some of other victim girls are not examined, the prosecution owed an explanation to the Court. In the absence of satisfactory explanation for non-examination of material witnesses, the Learned Trial Judge should have drawn adverse inference against the prosecution.

In view of what has been stated by me herein above, I am of the view that it was highly unsafe to convict the Appellants on the basis of solitary evidence of P.W. 5 which has also been demolished to a large extent in the cross-examination. At this stage, it may be mentioned here that the arguments were advanced on behalf of Appellants 2 and 3 only. The learned advocate appearing on behalf of Appellant No. 1 could not make submissions in the absence of her senior. However, after having considered the merits of the evidence, I am of the view that the whole Appeal can be disposed of by passing the following order:

i) The Appeal is allowed.

ii) Appellant No. 1 is acquitted of the offences punishable u/s 344 read with 34 of the Indian Penal Code, 366A and 373 of the Indian Penal Code and Sections 3, 4, 5 and 6 of the PITA Act.

iii) Appellant Nos. 2 and 3 are acquitted of the offences punishable u/s 344 read with 34 of the Indian Penal Code and Sections 3, 4, 5 and 6 of the PITA Act.

iv) All the Appellants be released from prison forthwith if not required in any other case.

The Appeal accordingly stands disposed of.