State appealed against acquittal in trafficking case. Bench dismissed appeal, upheld acquittal of respondents due to inconsistent evidence, and remanded respondent Sunita to the custody of the police despite previous detention.
The appeal is dismissed. Respondent Sunita is set at liberty forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 APEAL-OJ-227.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.227 OF 2006
The State of Maharashtra.... Appellant
Vs.
1. Sou. Kusum Uttam Kharat-
mohol, Age-30 years,
r/o Zopadpatti,
Near Ox Market, A.P.M.C.
Market, Navi Mumbai.
2. Utsav alias Sunita
Muthyappa Paikarna,
Age-35 years, r/o At &
Post Suno, Taluka Bilgi,
District: Bagalkot,
Karnatak State..... Respondents
Shri J.P. Kharge, Addl. Public
Prosecutor, for the Appellant.
Shri G.M. Savagave for Respondent
No.1.
CORAM: R.C. CHAVAN, J.
DATED: JUNE 29, 2011
ORAL JUDGMENT:
1.This is an appeal by the State against
the acquittal of the respondents for offences
punishable under Sections 372 and 373 r/w
Section 34 of the Indian Penal Code (for short,
�IPC�) as also Sections 3, 4, 6 and 9 of the
2 APEAL-OJ-227.06
Immoral Traffic (Prevention) Act (for short,
�PITA�).
2.The facts which are material for
deciding this case are as under:
On 30-10-2003 Sushan Alexander, a
social worker, had informed Turbhe Police
Station that some minor destitute girls were
roaming on K.K.R. Road. The police claimed to
have gone there along with Sushan Alexander and
found the victim, aged 13 years. On making
enquiries with the girl, it was revealed that
she did not have any relations and therefore
the police found that there was a possibility
of her falling in bad company. Hence she was
taken charge of by the police and lodged in a
remand home at Bhiwandi. Thereafter, on
4-2-2004, after the statement of the victim was
recorded on 7-1-2004 by the Chairman of
Juvenile Welfare Board, offences were
registered against the respondents on the
allegation that the victim had been sold by
her father to respondent Sunita who had forced
the victim into prostitution. Medical
examination of the victim revealed that she was
accustomed to sex and was just 14-16 years of
age. The police arrested respondent Sunita as
3 APEAL-OJ-227.06
well as Kusum, who is alleged to have been
instrumental in sale of the victim to Sunita by
the victim�s father. On completion of the
investigation, charge-sheet was sent in the
Court of Judicial Magistrate, First Class,
Vashi, who committed the case to the Court of
Sessions at Thane.
3.The learned Addl. Sessions Judge to
whom the case was made over, charged the
respondents of the offences punishable under
Sections 372 and 373 r/w Section 34 of the IPC
and Sections 3, 4, 6 and 9 of PITA. The father
of the victim absconded. Since the respondents
pleaded not guilty and claimed to be tried,
they were put on trial at which the prosecution
examined in all six witnesses. The first
witness was the victim herself. PW-2 Salman is
a social worker who is possibly associated with
Sushan Alexander. PWs-3 and 4, Dr. Mhatre and
Dr. Kansara, had examined the victim. PW-5 PSI
Rathod had conducted the raid. PW-6 API Mahajan
conducted the investigation.Sushan Alexander
has not been examined.
4.The learned Addl. Sessions Judge held
that the evidence of the witnesses was
discrepant and there was nothing to show
4 APEAL-OJ-227.06
conclusively that the respondents had sold the
victim for the purpose of prostitution or
bought her with the intent that she should be
used for prostitution. She also held that the
prosecution failed to prove that respondent
Sunita was either running a brothel or was
living on the earning of prostitution or had
seduced the victim into prostitution or had
detained the victim at her place for the
purpose of prostitution. She therefore
proceeded to acquit the respondents. Aggrieved
thereby, the State has preferred this appeal.
5.The learned APP submitted that the
evidence of the victim is very clear. She was
just a minor, aged 13 years, and was brought by
her parents to Turbhe at the house of one
Kusum, respondent No.1. At the house of Kusum,
Sunita had come and there was some talk between
Sunita and the victim�s father. On the next
day, her father took her with Kusum to the
house of Sunita where Sunita�s husband Rashid
was also present. Kusum suggested that Sunita
pay a sum of Rs.6,000/- but Sunita paid only
Rs.4,000/- to the victim�s father and Kusum and
thereafter the victim was initiated into
prostitution till the police rescued her. The
learned APP also submitted that the evidence of
5 APEAL-OJ-227.06
the prosecutrix is duly corroborated by her
report at Exhibit-10 and the report of the
Chairman of the Juvenile Welfare Board at
Exhibit-11, which is based on her disclosure to
the Chairman. The learned APP also submitted
that PW-2 Salman, who was working as a liaison
officer with an International Justice Mission,
also stated that the Mission had specific
information that respondent Sunita was running
a brothel and had detained the victim in the
brothel. He was also present when the victim
was rescued from the house of Sunita. The
learned APP therefore submitted that there was
no reason for the learned Judge to discard this
evidence and record finding of acquittal of the
respondents.
6.The learned counsel for respondent No.
1 submitted that, first, even according to the
victim it was not that respondent No.2 Sunita
had imprisoned the victim. Sunita or Rashid
were not all present, even according to the
victim, when the raid was conducted. The victim
had stated in the cross-examination that Sunita
was not present but a customer was present at
the house. He also pointed out that the victim
had stated in the cross-examination that she
wanted to marry one Viju, who is the brother-
6 APEAL-OJ-227.06
in-law of respondent Kusum and, therefore, came
to know Kusum. But it is not that Viju brought
her to Kusum. The victim�s own parents are
supposed to have come in search of work at
Turbhe, Navi Mumbai. The victim had also stated
that several persons reside in the locality and
for the fifteen days when she stayed at the
house of Sunita, she was using public toilet.
The house is situated on a main road.
Therefore, it cannot be said that the victim
had been detained.
7.The learned counsel further pointed
out that though PW-2 Salman came up with a case
that their Organization had received concrete
information from confirmed sources that the
victim was detained in the brothel of Sunita
and Rashid, in cross-examination he admitted
that he did not remember that Sushan Alexander
had given any information to the police on that
day and stated that he had not given any
information to the police that any brothel was
being run by Sunita and Rashid. Thus, his word
in examination-in-chief is contradicted by him
in the cross-examination. He admitted that he
came to know for the first time on 1-2-2004
about Sunita and Rashid from the complaint of
Poonam. He, too, stated in the cross-
7 APEAL-OJ-227.06
examination that at the time of raid only the
victim was present in the house. Thus, there
can be no question of the victim being
detained.
8.As if these were not enough, the
raiding officer PW-5 PSI Rathod stated in
cross-examination that Sushan Alexander had
given information that minor destitutes were
wandering on K.K.R. Road. He also stated when
he reached the spot, many girls ran from the
hut on the road and the victim was the only one
who was found on the road in front of the house
of Sunita and Rashid. It thus appears that the
entire story about sale of the victim and her
being forced into prostitution is a subsequent
discovery after about three months of detention
of the victim in the remand home. At the time
of the raid, nothing was found to indicate that
the victim was detained for the purpose of
prostitution or had been sold or purchased by
anyone for such a purpose. It cannot,
therefore, be said that the view taken by the
learned Judge is improbable or perverse.
9.The appeal is, therefore, dismissed.
In this case, unfortunately, when action under
Section 390 of Criminal Procedure Code was
8 APEAL-OJ-227.06
ordered, respondent Sunita, who could not
furnish bail, has been detained in prison. She
be set at liberty forthwith.
Sd/-
(R.C. CHAVAN, J.)
State of Maharashtra
Kusum Uttam Kharatmohol
Utsav alias Sunita Muthyappa Paikarna
R.C. Chavan
As recorded by the court registry
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