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Judgment
[1] The appellant has challenged judgment and order dated 24Â04Â2018, 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 366ÂA,
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 undergo imprisonment of 7 years. The appellant is in jail.
[2] The prosecution case in brief is that (PWÂ2)Â 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 18Â11Â2014 (ExhibitÂ28). The said (PWÂ2) 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 (PWÂ2) 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 (PWÂ1) was found in the room. Upon being questioned, the victim (PWÂ1) 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 appellantÂaccused 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 completion of investigation, chargeÂsheet was submitted and the
appellant was charged with having committed the aforesaid offences.
[4] In support of its case, the prosecution examined 7 witnesses. (PWÂ1) was the victim herself, (PWÂ2) Satyajeet Desai was the
Social Worker who provided information for the raid, (PWÂ3) Rajesh Karanduke was a panch witness who had accompanied the raiding
party, (PWÂ4) Suresh Madavi was the Police Inspector who conducted the raid, (PWÂ5) Rajesh Chintalwar was the Medical Officer
who had examined the victim and deposed regarding her age, (PWÂ6) Ravitabai was the mother of the victim and (PWÂ7) 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 (PWÂ1) 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 (PWÂ1) at the relevant time was less than 16 years. It was submitted that even if the evidence of Doctor (PWÂ5) was taken
into consideration, it could not be concluded that the age of the victim (PWÂ1) was less than 16 years. Â 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 (PWÂ1) 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 (PWÂ1)
that falsified the case of the prosecution. It was further submitted that even if the evidence of the victim (PWÂ1) was taken into
consideration; two persons namely Ranjeet and Savitribai could be held responsible and that there was no material to show theÂ
involvement of the appellant. It was further submitted that the letter dated 18Â11Â2014 (ExhibitÂ28) submitted by the social
worker (PWÂ2) 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
(PWÂ1) was truthful and trustworthy. She had specifically identified the appellant as the person who used to collect money while the
victim (PWÂ1) was forced into prostitution. It was submitted that even though the names of two aforesaid persons were also taken
by the victim (PWÂ1), 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 (PWÂ1),
the medical tests relied upon by the prosecution were sufficient to demonstrate that the victim (PWÂ1) 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 (PWÂ1) is found to be less than 16 years of age at the relevant time. Therefore, the
question of determination of age of the victim (PWÂ1) assumes significance. In the present case, the trial Court has found that the
prosecution has proved the age of the victim (PWÂ1) as less than 16 years, on the basis of ossification test, physical examination and
XÂray test. The trial Court has relied upon the evidence of the (PWÂ5) doctor to hold that the age of the victim (PWÂ1) 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 (PWÂ5).
[9] A perusal of the evidence of the victim (PWÂ1) shows that she has not stated anything about her date of birth or age in her
examinationinÂchief and therefore, there is no cross examination on the question of age. The mother of the victim (PWÂ1) i.e.
(PWÂ6) Ravitabai has stated that at the relevant time her daughter i.e. victim (PWÂ1) might have been 16 or 17 years of age. This
witness also stated that she had sent her daughter i.e. victim (PWÂ1) 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
(PWÂ5) stated about the physical examination of the victim (PWÂ1) and advised XÂray test for giving opinion regarding the age. He
stated that on the basis of physical examination and reports of the XÂray and OPG report, he had issued certificate stating that the age
of the victim (PWÂ1) 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 XÂray 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 XÂray 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 (PWÂ5) about the age of the victim (PWÂ1) 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 take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.Â
Applying the aforesaid margin of error to the facts of the present case, it is found that the age of the victim (PWÂ1) would go to
the threshold of 18 years. This Court in the case of Smt. Firoza vs State (Criminal Appeal No.534 of 2010) alsoÂ
disbelieved the case of the prosecution on the question of age of prosecutrix when XÂray 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 noÂ
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 (PWÂ1) did not state anything about her age while her mother (PWÂ6) 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 (PWÂ1) 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 (PWÂ1) 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 (PWÂ5) to hold that the victim (PWÂ1) 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 (PWÂ1) on the
basis of the XÂray reports. In any case, the XÂray plates were never exhibited or placed on record before the trial Court,
thereby rendering the medical evidence wholly unreliable. Thus, the finding rendered by the trial Court regarding the age of the
victim (PWÂ1) in the present case was unsustainable. The direct impact of this finding is that the conviction of the appellant for
offences under Sections 366ÂA 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 (PWÂ1) assumes significance. A perusal of the evidence of the victim (PWÂ1) 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 (PWÂ1) 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.Â
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 (PWÂ1) to the effect thatÂ
when she 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 (PWÂ1) stated that the appellant used to tell the said Savitribai that
she (appellant) would not get bad work done from the victim (PWÂ1). 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 (PWÂ1) 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 (PWÂ1). The alleged omission in the evidence
of the victim (PWÂ1) has not discredited the said evidence showing that the appellant had indeed unlawfully confined the victim (PWÂ‐
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.
[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 :Â
“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;â€
[16] The evidence of victim (PWÂ1) 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 (PWÂ2) Satyajeet, (PWÂ3) Rajesh and (PWÂ4) Suresh. The evidence of the said witnesses also
shows that the victim (PWÂ1) 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
(PWÂ1) 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 (PWÂ1) pointed towards the appellant as being the person who
was getting the work of prostitution done from her. The evidence of PWÂ3 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.Â
[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 (PWÂ1) was left throughout the day and activity of prostitution
was carried out. Although the appellant did not induce the victim (PWÂ1) to go from one place to the other for carrying out the
activity of prostitution, but she certainly caused the victim (PWÂ1) 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 (PWÂ1) 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 [person] in premises where prostitution is carried on. The evidence
of victim (PWÂ1) 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 (PWÂ1) 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
ExhibitÂ31 shows that the place from where the victim (PWÂ1) 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 Â31) was proved by the
prosecution through the evidence of (PWÂ3) 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 (PWÂ1) 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 366ÂA 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 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.Â
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 :Â
(a) The impugned judgment and order of the trial Court is set aside to the extent of convicting and sentencing the appellant under
Sections 366ÂA 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.
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.
Accordingly, appeal is disposed of in above terms