K P Kirankumar @ Kiran Vs State by Peenya Police

SMT. MEENAKSHI AGED ABOUT 28 YEARS, WIFE OF KIRAN KUMAR, RESIDING AT NO.207/2, DEVANNA BUILDING, GANESHA SAW MILL ROAD, T. DASARAHALLI, BANGALORE 560 057

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(BY SRI. N. RAMAKRISHNA, ADVOCATE)

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…APPELLANTS

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AND:

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STATE BY PEENYA POLICE, BANGALORE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA,

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HIGH COURT BUILDING, BANGALORE 560 001

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R/STATE; SRI. ANIL KUMAR H., ADVOCATE FOR COMPLAINANT)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C. PRAYING

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TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 25.07.2013/08.08.2013 PASSED BY THE C/C P.O., F.T.C.X, BANGALORE CITY IN S.C.NO.425/2011, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 366A AND 373 R/W 34 OF IPC AND SEC.3,4,5 AND 6 OF IMMORAL TRAFFIC (PREVENTION) ACT, 1956. THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I. FOR 7 YEARS EACH AND PAY FINE OF RS.2,500/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO S.I. FOR A PERIOD OF 6 MONTHS EACH FOR THE OFFENCE P/U/S 366A OF IPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard further arguments of Sri. Ramakrishna, learned counsel for the appellants and learned HCGP.

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Appellants are accused Nos.1 and 2 who have been convicted in S.C.No.425/2011 vide judgment dated 25.07.2013, and order on sentence dated 08.08.2013, for the offences punishable under Sections 366A, 372, 373 r/w Section 34 of IPC and Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956, and sentenced as under:

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"A-1 and A-2 are sentenced to undergo rigorous imprisonment of seven years each and a fine of Rs.2500/- each and in default of payment of fine, they shall under go simple imprisonment for a period of six months each, for the offences punishable u/s.366 A of I.P.C.

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Further, A-1 and A-2 are sentenced to undergo rigorous imprisonment of seven years each and a fine of Rs.2500/- each and in default of payment of fine, they shall under go simple imprisonment for a

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period of six months each for the offences punishable u/s.373 of I.P.C.

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Further, A-1 and A-2 are sentenced to undergo rigorous VILA Imprisonment of one year each and a fine of Rs.1000/- each and in default of payment of fine, they shall under go simple imprisonment for a period of three months each for the offences punishable u/s.3 of Immoral Traffic (Prevention) Act, 1956.

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Further, A-1 and A-2 are sentenced to undergo rigorous Imprisonment of seven years each for the offences punishable u/s. 4 of Immoral Traffic (Prevention) Act, 1956.

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Further, A-1 and A-2 are sentenced to undergo rigorous imprisonment of three years each and a fine of Rs.1000/- each and in default of payment of fine, they shall under go simple imprisonment for a period of three months each for the offences punishable u/s. 5 of Immoral Traffic (Prevention) Act, 1956.

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Further, A-1 and A-2 are sentenced to undergo rigorous imprisonment of seven years each and a fine of Rs.2500/- each and in default of payment of fine, they shall under go simple imprisonment for a period of six months each for the offences punishable u/s. 6 of Immoral Traffic (Prevention) Act, 1956.

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Further, all the above sentences shall run concurrently.

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The period undergone in judicial custody by A-1 and A-2 is set off as provided u/s.428 of Cr.P.C.

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The MOs 1 and 2 shall be confiscated to the State and M.O.3 and 4 shall be returned to A-1 and A-2 and M.O.5 shall be destroyed after the appeal period is over."

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Facts in brief which are most essential for

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disposal of the appeal are as under:

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A charge sheet came to be filed by the Police Inspector of Peenya Police Station, Bangalore alleging that the appellants have committed offences punishable under Sections 366A, 372, 373 r/w Section 34 of IPC and Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956. The material facts which resulted in filing the charge sheet against the appellants are that the appellants took a house on rent situated near Ganesha Saw Mill within the limits of Peenya Police Station and in the said rented house, they were conducting prostitution by securing young girls. One such young girl is examined as PW-13 (hereinafter referred to as the victim girl) who was

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rescued by the raid team. On credible information, Peenya Police formed a raid team and they raided the house belonging to CW-22, Rangappa on 22.11.2010, from 6 p.m. to 7.30 p.m., along with independent panch witnesses and sub-staff of Peenya Police Station. At the time of raid, the victim girl was rescued from the brothel house and on enquiry with the appellants, they have revealed that the victim girl has been purchased from her guardians and she had been subjected to prostitution. Cash of Rs.3,622/- was seized from the custody of the appellants and mobile telephones which were used to procure the customers were also seized by the Head of the raid team in the presence of mahazar witnesses and substaff and a report was submitted in that regard.

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Based on the report, Peenya Police registered a case for the aforesaid offences and after thorough investigation, the investigation agency was satisfied that the appellants did indulge in procuring young girls and

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they were used for prostitution and filed charge sheet as aforesaid.

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Learned Trial Magistrate, on receipt of the charge sheet, took cognizance of the offences and registered a criminal case in C.C.No.5438/2011. Presence of the accused persons was secured from the judicial custody and after compliance of Section 207 of the Cr.P.C., case was committed to the Court of Sessions for further trial by passing suitable orders under Section 209 of the Cr.P.C.

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On committal, learned Sessions Judge secured the presence of the appellants and framed charges for the aforesaid offences. The accused persons pleaded not guilty. Therefore, trial was held.

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In order to bring out the guilt of the appellants, prosecution proceeded to examine 16 witnesses as PW-1 to PW-16, comprising of Head of the raid team, sub-staff, informant, victim girl, mahazar witness and investigation officers. Prosecution also placed on record 13 documents

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which were marked as Ex.P1 to P13, comprising of report by PW-1, mahazar, birth certificate of victim girl, 5 more reports with regard to age and other details and FSL report.

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Seized cash, mobile phones, condom packet

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and the samples from the victim girl were marked as MO-1 to MO-10. On conclusion of recording of prosecution evidence, learned Sessions Judge proceeded to record the accused statement as is contemplated under Section 313 of the Cr.P.C., wherein appellants have denied all the incriminatory circumstances put to them which were found in the case of the prosecution. Appellants neither placed any written submission on record as is contemplated under Section 313(4) of the Cr.P.C., placing their version about the incident, nor there was any defence evidence placed on record on behalf of the accused.

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Subsequent thereto, learned Trial Judge heard

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the parties in detail and on consideration of the oral and documentary evidence placed on record by the prosecution

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in a cumulative manner, convicted and sentenced the appellants as aforesaid.

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Being aggrieved by the same, appellants have

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filed the present appeal on the following grounds:

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That the impugned judgment of conviction and sentence passed by the Court below is contrary to the facts and circumstances of the case. Hence, the same is liable to be set-aside.

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That the Court below while passing the Impugned Judgment assigned certain reasons which are erroneous illegal and improper. Hence, it has reached to a wrong conclusion.

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The Court below gravely erred in convicting and sentencing the Appellants for the charged offences holding that the prosecution proved the case beyond reasonable doubt even though there are contrary version among the prosecution witnesses regarding place of alleged incident, time of alleged raid and the alleged raid, which are goes to root of the case still the court below by ignoring all these mechanically convicted and sentenced the Appellants is bad in law.

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The Court below failed to take note of the fact that the manner in which alleged raid was conducted as

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per the prosecution witnesses is contrary to each other PW1 says @ 3.00 p.m. PW11 and CW15 came to his office and informed about the alleged illegal activities and he and his staff PW2, PW3, PW4, PW5 and PW6 had been to spot @ 4.45 p.m. and confirm the house through PW5 and PW11 and inform the same to Panchayatdars and send PW8 and PW11 as decoy witnesses and after receipt of missed call from PW8 they raided the house, PW3 depose that on 22.11.2010 @ 3.00 p.m. PW1 and other staff had been to spot and @ 4.00 p.m. they raided the house and noticed in that house Al and A2 and PW13, PW5 deposed that @ 3.00 p.m. PW1 told that there is a information from Justice and Care Institution based on that information members of Justice and Care Institution People took them to House No.207/2, PW6 deposed PW1 secured staff and informed that the members of Justice and Care Institution informed that in a house situated at T. Dasarahalli one minor girl was kept and carrying prostitution and secured the panchayatdar and proceeded to spot, PW8 deposed that @ 4.00 p.m. PW11 made a call to him and informed about the illegal activity and asked him to come to CID Office and he reached CID Office @ 4.30 p.m. and on request accepted to act as decoy witness and remained in CID Office about 1 hour afterwards they left CID Office, PW11 deposed that

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@ 22.11.2010 @ 2.00 p.m. they received information that one minor girl is used for prostitution in a house near Peenya Police Station, he and CW15 gone to CID Office and informed the same to PW1 and in turn PW1 secured his staff and PW12 and CW10 as panchas, PW1 in his crossexamination he deposed that justice and care people are not met him at CID Office, but they narrated to his higher officials in turn his higher officer informed the same, it clearly goes to show among raiding party there is material contradiction on major aspect which creates strong doubt about the prosecution case, but the court below ignoring all these aspects and convicted and sentenced the Accused which is against to the cannon of appreciation.

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The Court below gravely erred in convicting and sentencing the appellants for the offences punishable under Section 366(A) and 373 of I.P.C. holding that prosecution established the case that PW13 is a minor as per Ex.P3, even though PW13 stated in her evidence that she completed S.S.L.C. in the year 2009 and between 1st Standard to S.S.L.C. she failed twice and the alleged incident on 22.11.2010, if the evidence of PW13 taken into consideration she is above the age of 18 years as on the date of alleged raid in addition to that the

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prosecution has not subjected the victim for ossification test and radiology test to determine the age of the victim but the court below simply relying on the Ex.P3 and ignoring other evidence on record about this aspect is highly unsustainable in law.

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• The Court below gravely erred in convicting and sentencing the appellants for the charged offences holding that PW13 evidence is sufficient to hold the accused are guilty of the offence even though, there is no corroboration to the evidence of PW13 and the evidence of PW13 is full of contradiction and unnatural conduct and PW13 depose that Police Peoples came to the house at 11.00 a.m. and the house where she was alleged to kept is consist of one hall, two bed rooms, one kitchen and one bath room which is contrary to Ex.P2 mahazar, in which it is referred raided house consists of a room, kitchen and a bathroom is clearly goes to show that PW13 is planted against the Appellants with an ulterior motive at the instance of building owner and unnatural conduct of the victim throws doubt about the prosecution case still the court below hold that prosecution proved case beyond reasonable doubt is not at all holds good.

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The court below gravely erred in holding that Ex.P2 proved even though, no local witness secured as panchas to Ex.P2 even though available, and there

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is a contrary version with regard to who secured panchas, as per PW1 panchas were secured by PW5 as per PW5, PW6 secured panchas and as per PW6 PW1 secured panchas and other raiding party witnesses ignorant about who secured panchas and particularly PW12 who alleged to act as pancha to Ex.P2 clearly stated he signed Ex.P2 at Police Station, it clearly goes to show Ex.P2 came into existence in the Police Station.

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• The Court below failed to take note of the fact that as per prosecution the primary information furnished by PW11 and CW15 who are alleged members of Justice and Care Institution who are alleged to participate in the alleged raid from beginning to end, but to show that they have participated in the alleged raid no proof produced and they have not attested Ex.P2 to show that they were present in the raiding, if PW8 and PW11 and CW15 really accompanied PW1 and his team they could have definitely attested Ex.P2 Mahazar. It clearly establish that Ex.P2 not came into existence as explained by the Prosecution and it is created for the case, but the court below ignored this important aspect is highly unsustainable in law.

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The Court below failed to take note of the fact that, MO1 to 5 alleged to be seized at the time of drawing Ex.P2 and they are incriminating material

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objects and the said MO1 to 5 even though alleged to be seized under Ex.P2 not packed and sealed and they were in the custody of Police. Hence, no credence attached to MO1 to 5 non-packing and sealing of MO1 to 5 and non-obtaining the signature on MO1 to 5 falsifies the entire prosecution case still the court below mechanically acted without applying judicial mind is bad in law.

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• The Court below failed to appreciate and take note of the facts that as per Evidence of PW1, PW8 was secured through PW11 to spot and as per PW8, PW11 called him to CID Office and met PW1 at CID Office and amount was entrusted to him and asked to act as panchas, which is contrary to evidence of other prosecution witnesses, and in addition that he has not attested Ex.P2 clearly goes to show he was not participated Ex.P2 proceedings. Still the court below holds that prosecution established the case beyond reasonable doubt is highly unsustainable in law.

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The Court below failed to take note of the fact that as per prosecution case MO1 i.e. Rs.3,000/(500x6) belongs to Government but the prosecution has not placed any document to show that MO1 belongs to Government but the court below ignored this material aspect is bad in law.

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The Court below failed to appreciate and take note of the fact that FIR hit by 162 Cr.P.C. as per PW2 and PW3, PW1 recorded the statement of victim i.e. PW13, if that is the case before FIR came into existence there is already statement of victim was in existence, hence the FIR cannot be treated as First Information Report and it is hit by Section 162 Cr.P.C. and the first statement of PW13 is suppressed, it creates strong doubt about the prosecution case still the court below ignored this important aspect is not at all holds good.

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The testimony of the victim girl do not inspire the confidence of the court and her version is full of contradiction, improvement and unnatural and over all the veracity of victim evidence is suspicious in nature.

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Sri. Ramakrishna, learned counsel for the

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appellant reiterating the grounds urged in the appeal memorandum contended that as on the date of raid, there were no customers found in the place and therefore it was only the presumption of the Head of the raid team that prostitution was going on. He further argued that the confession statement made by the appellants and the

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statement made by the victim girl should not have been made as basis for assuming commission of the offence as referred supra and therefore the very filing of the charge sheet itself is totally unwarranted and trial thereof is also vitiated for want of positive materials placed on record by the prosecution.

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He further pointed out that mere fact that appellants had taken the house on rent and presence of victim girl (PW-13) in the house itself would not make out all ingredients to attract the offence arrayed against the appellants and in the absence of any other cogent evidence placed on record, conviction of the appellants and sentencing them as aforesaid, has resulted in miscarriage of justice and hence sought for allowing the appeal.

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Per contra , learned High Court Government Pleader supports the impugned judgment by contending that the material on record would substantially establish that PW-13 had been purchased by the appellants from

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her legal custodians and she had been used for the purpose of prostitution. He would further contend that admittedly, the victim girl was aged 17 years as on the date of incident who is no way related to the appellants and her presence in the house of the appellants with seized incriminatory materials would sufficiently establish that she had been forced to undergo prostitution on the directions of the appellants herein, which fact has been brought to the notice of the police by examining PW-11 and based on said information, the police raided the place of incident and recovered incriminatory materials which has been rightly appreciated by the learned Trial Judge in the impugned judgment and therefore sought for dismissal of the appeal.

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He further pointed out that mere absence of any customer at the time of raid would not ipso facto result in doubting the case of the prosecution that PW-13 had been put to prostitution by purchasing her from her legal custodians and material evidence placed on record

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would be sufficient enough to conclude the said aspect of the matter, including the oral testimony of PW-13 who had been rescued form the place of incident and thus sought for dismissal of the appeal.

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Sri. Anil Kumar, learned counsel representing the informant and aiding the prosecution, adopts the arguments put forward on behalf of the learned High Court Government Pleader and sought for dismissal of the appeal.

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Having heard the arguments of learned counsel

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for the parties in detail, this Court perused the material on record meticulously. The following points arise for consideration in this appeal:

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(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Sections 366A, 372, 373, r/w Section 34 of the Indian Penal Code and Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956?

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(ii) Whether the appellants makes out a case of legal infirmity and perversity in the findings recorded by the learned Special Judge while convicting the appellant for the aforesaid offences?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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17. REGARDING POINT Nos.1 and 2: On perusal

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of the material on record, following admitted facts would emerge:

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Appellants having taken the house bearing No.207/2, T. Dasarahalli, Bangalore, on rental basis;

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Appellants' presence at the time of raid;

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Presence of PW-13 at the time of raid;

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No physical relationship between PW-13 and one of the appellants;

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Whereabouts of PW-13 is not disclosed by the appellants at the time of raid and false information has been provided to PW-1;

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Recovery of cash and condom packets from the place of incident at the time of raid.

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18. Following disputed facts are also noticed on

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perusal of the material on record:

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Appellants having indulged in running a brothel house by securing young girls and use of mobile telephones marked at MO-3 and MO-4;

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Appellants using young girls for the purpose of prostitution in the house occupied by them on rental basis;

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Appellants' involvement in securing prospective customers for the purpose of prostitution and using the rented house for the said purpose;

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Seized cash and mobile telephones are natural and seizure of condom packet is also natural as appellants are husband and wife.

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In the light of the above admitted and disputed facts on record, when the material on record is reappreciated, PW-1 being the Head of the raid team was intimated by PW-11, Sri. Domnic about running of a brothel house. Based on such information, PW-1 formed a raid team comprising of himself, Head Constable Smt. Prema, Woman Constable Smt. Kavitha and another constable Sri. Prasanna Kumar. Apart from the police

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personnel, independent panch witnesses were also secured and they were made as part of the raid team.

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As per the credible information received from PW-11, the raid team proceeded to the place of incident which is the house owned by CW-22, Rangappa situated near Ganesha Saw Mill, within the limits of Peenya Police Station. On so reaching the place of incident, they raided the house from 6 p.m. to 7.30 p.m. on 22.11.2010. When they so raided, they found the presence of PW-13 in the house. Enquiry made by PW-1 revealed that she was no way related to the appellants and she had been made to leave her house with some unknown persons and she was left in the place of incident wherein appellants were found.

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In the oral testimony of PW-13 (victim girl who had been rescued from the place of raid), she has specifically deposed that appellants 1 and 2 contacted somebody over their mobile telephone and she was forced to have sexual intercourse with him. When she refused, appellants forcibly pushed her and there she was forced to

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have illicit relationship with that unknown person. The date of birth of PW-13 is established by examining the Head Master who issued the 'Date of birth Certificate' and as per that, her date of birth is 24.04.1994, and as such, as on the date of the incident, she was aged 17 years.

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In order to appreciate whether the offence as is contemplated under Sections 366A and 373 of IPC has been committed by the appellants, it is just and necessary for this Court to cull out the aforesaid provisions which reads as under:

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366A. Procuration of minor girl . – Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.

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373. Buying minor for purposes of prostitution, etc. . – Whoever buys, hires or otherwise obtains possession of any person under

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the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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On careful reading of the aforesaid provision, kidnapping of the minor girl with an intention to force her to have illicit relationship with some other person, is the main ingredient that the prosecution has to establish for attracting the offence under Section 366A of the IPC.

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In the instant case on hand, admittedly, appellants are no way related to PW-13 and she has been brought from her custodians and made to have illicit intercourse with third person and therefore the sole testimony of PW-13 would be sufficient to conclude the offence under Sections 366A and 373 of the IPC.

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The material evidence on record also shows

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that the house was not owned by the appellants and house was belonging to CW-22. It is not in dispute that the possession of the house was secured by appellants on rental basis. In the absence of relation established by the appellants insofar as PW-13 is concerned and oral testimony of PW-13, wherein it is clear that she has been forced to have illicit intercourse with three persons who used to be secured by appellants by calling them over their telephones, all the ingredients required to attract the offences punishable under the provisions of Sections 3 to 6 of the Immoral Traffic (Prevention) Act, stands established.

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It is pertinent to note that, none of the prosecution witnesses did nurture any previous enmity or animosity insofar as the appellants are concerned. The witnesses examined on behalf of the prosecution have supported the case of the prosecution. In view of recovery of the material objects, MOs. 1 to 5, as referred to supra,

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under the seizure mahazar and FSL report with regard to MOs.6 to 10, which are placed on record, this Court is of the considered opinion that the prosecution is successful in establishing necessary ingredients to attract the aforesaid offences by placing cogent and convincing evidence on record.

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Moreover, defence did not place their version on record either while answering the incriminatory materials at the time of recording the accused statement nor did they place any written submissions placing their version on record, as is contemplated under Section 313(4) of Cr.P.C.

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It is settled principle of law that recording of accused statement in a criminal case is not an empty formality. It serves dual purpose. Firstly, all the incriminatory materials found in the case of the prosecution must be put to the accused as is prescribed under Section 313 of Cr.P.C. Putting across the incriminatory materials in the case of the prosecution and

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seeking explanation from the accused is mandatory, wherein the accused can offer suitable explanation for the incriminatory materials found in the case of the prosecution.

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Secondly, opportunity may be utilized by the accused for the purpose of not only exhibiting the incriminatory materials but may also place their version about the incident.

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If, in a given case, the accused deliberately fails to make use of such an opportunity in not only denying the incriminatory circumstances but also not placing their version about the incident, then, consequences in law should follow.

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In the case on hand, when the prosecution evidence was concluded, the learned Trial Judge did cull out the incriminatory materials from the oral testimony of the prosecution witnesses which was substantiated by placing material documents on record and having been

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exhibited, put it across to the appellants while recording the accused statement under Section 313 of Cr.P.C.

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Perusal of the answers offered by the accused appellants into the incriminatory circumstances reveals that they have simply denied all the incriminatory materials, but did not choose to offer any explanation or place their version about the incident in writing as is contemplated under Section 313(4) of Cr.P.C.

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This Court is not oblivious of the fact that the prosecution case has to be established by placing cogent and convincing evidence on record and if any answer is found at the time of recording accused statement, the same can only be used for corroboration, if there are different versions.

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In other words, the case of the prosecution stands established by placing positive evidence on record and conviction should not be based only on the answers obtained in the accused statement.

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Keeping said principle of law in the background, when the material on record is re-appreciated, the prosecution is able to place on record not only cogent material evidence, but also the evidence placed on record is overwhelming in nature in establishing the ingredients which are required to attract the offences, as alleged supra .

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Thus, this Court is of the considered opinion that the appellants have not made out any grounds whatsoever to term the impugned judgment as perverse or suffering from legal infirmity. On the contrary, the impugned judgment is based on material evidence placed on record, by sound and logical reasons.

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In view of the foregoing discussion, point No.1 and point No.2 are answered in the affirmative and negative, respectively.

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REGARDING POINT No.3: Learned Trial

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Judge, as referred to supra, has imposed punishment which is minimum prescribed under the provisions of

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Immoral Traffic (Prevention) Act, 1956. Insofar as the offence under Section 366A of IPC is concerned, learned Trial Judge has imposed imprisonment of seven years, which is again, the minimum punishment.

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No mitigating circumstances are available on record so as to consider the question of reduction of the imprisonment period.

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As a feeble attempt, learned counsel for the appellants did fall back on the provisions of the Probation of Offenders Act, 1958. In fact, Probation of Offenders Act being pressed into service by the appellants in the Court below, the learned Trial Judge negated it by passing appropriate order.

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Material on record also discloses that the presence of the appellants was secured before the Trial Judge by issuing body warrant (production and transit warrant). The said aspect pre-supposes that the appellants were also in custody in some other criminal case.

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30 - NC: 2025:KHC:5140 CRL.A No. 860 of 2013

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Therefore, per se , the provisions of the

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Probation of Offenders Act cannot be made applicable to the case on hand. As such, this Court is of the considered opinion that, sentence ordered by the learned Trial Judge for the offences, as referred to supra , does not require any re-consideration. Hence, point No.3 is answered in the

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negative .

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