Chandrasekaran and 4 others vs State

David Annoussamy, J.—This is a revision petition filed by the accused. The charge against the accused were as follows:

Firstly That you A1 and A2 on or about the 28th day of June, 1979 at about 5 P.M., at No. 28, Karpagammal Nagar, Kottivakkam, Madras-41, who had leased the above premises for rent were found running the said premises as a brothel by engaging Anitha alias Sumathi to have sexual intercourse with one T. Khan on payment of Rs. 1,000 and thereby committed an offence punishable under S. 3(1) of the S.I.T. Act and within my cognizance.

Secondly: That you A3 and A4 at the same time and place and in the course of the same transaction were found acting as touts and pimps for prostitutes on behalf of Chandrasekaran and Indirakumari and thereby committed an offence, punishable under S. 4(2)(c) of the S.I.T. Act.

Thirdly: That you A5 at the same time and place and in the course of the same transaction, was found engaged in prostitution with one T. Khan in the said premises which is within a distance of 200 yards from the Koteeswaralingam temple and Besant Nursery School at Kottivakkam and thereby committed an offence, punishable under S. 7(1) of the S.I.T. Act.

The trial Court, namely, the Sub-Divisional Judicial Magistrate, Poonamallee, upon perusing the evidence of the prosecution consisting of the depositions of six witnesses, nine exhibits and five material objects and after hearing both the parties, found that A1 and A2 were guilty under S. 4(1) of the Act and the rest were found guilty of the charges framed against them and accordingly convicted them and sentenced A1 to A4 to undergo rigorous imprisonment for a period of one year and a fine of Rs. 1,000 and sentenced A5 to undergo rigorous imprisonment for a period of three months. The appeal preferred before the Sessions Judge of the Chengalpattu was dismissed by judgment, dated 26th October, 1983. As against that judgment, the present revision is filed. Though the revision was filed originally by all the accused, it is now reported that A1 and A2 are dead and that the revision is, therefore, pressed only in respect of the remaining accused.

As far as A3 and A4 are concerned, it is contended on behalf of the revision petitioners that the evidence discloses only that those two persons were present in the premises and there is not an iota of evidence that they have been acting as a tout or a pimp on behalf of the prostitute so as to incriminate them under S. 4of the Act.

As per the provisions of S. 4(1), a person is punishable for living on the earnings of prostitution. The fact of earnings of prostitution may be proved directly if such roof is available to the prosecution. But usually such proof will be difficult to obtain and hence the law-maker has given the prosecution three possibilities of proving the fact of living on the earnings of prostitution. If the prosecution is able to prove any of the facts mentioned in sub-S.(2) of S. 4, it shall be presumed that a persons knowingly living on the earnings of prostitution In this case, as the charges show, the prosecution has chosen to prove the charge under S. 4 by saying that A3 and A4 were acting as tout and pimp, that is to say, one of the possibilities under S. 4(2). But for the purpose of convicting the accused, the fact that they were acting as tout or pimp on behalf of a prostitute should be proved. The mere fact that they were present in a premises where one act of prostitution bas been attempted to be proved by the prosecution, would not be enough and, therefore, the proof is inadequate to bring home the offence to the accused.

Learned Counsel representing the learned Public Prosecutor contended that since they were found to be present in the premises, it was for them to explain that they were present there, otherwise than as tout or as a pimp. This argument is hard to accept. The law has not extended the presumption to that extent. S. 4(2) clearly says that the fact of acting as a pimp or as a tout on behalf of the prostitute should be proved. Therefore, there should be some positive act proved from which it could be inferred that A3 and A4 were acting as touts or pimps. Hence it is clear that in this case the evidence on the side of the prosecution is inadequate to sustain the conviction of A3 and A4.

As far as the conviction against A5 is concerned, it is assailed by the Learned Counsel for the revision petitioner on three grounds. (1) The distance between the place of occurrence and the nearby temple has not been shown to be within 200 yards. (2) Even if the act of intercourse in this case is held to be proved, a single act would net amount to prostitution. (3) The intercourse is not adequately proved.

As far as the first point is concerned, the investigating Officer has not give a any evidence regarding the distance but the Village Munsif, P.W. 3, was pressed into service to tender evidence regarding this point. In chief-examination he states that the premises was within 400 feet from the temple. But in cross-examination he accepted that he cannot say actually whether the distance was 700 feet or more or less. The prosecution finding therefore, that the evidence on that point was inadequate filed a petition before the trial Court inviting the court to make a local inspection in order to ascertain the distance. That petition was dismissed by the Court. Such being the state of affairs, it is clear that the distance between the place of occurrence and the place of religious worship is not proved fully in this case.

As far as the second point is concerned, one essential ingredient of the offence is promiscuous sexual intercourse, that is to say, proof of one sexual intercourse is not enough. It should be proved that the person concerned indulges in indiscriminate sexual intercourse with several persons. Even if the several acts of intercourse are not directly and fully proved, there should be material to show that the person is in the habit of having indiscriminate sexual intercourse. Regarding this aspect, there is nothing in the evidence to disclose that A5 is a person who was in the habit of promiscuous sexual intercourse. Therefore, this ingredient of the offence is also not clearly proved.

As far as the third point is concerned the only person to speak regarding this aspect is P.W. 1. His version is that he had intercourse with A3. As per S. 7(1) he is equally guilty of the act as the intercourse cannot be accomplished without his active participation Therefore, the question arises as to in what capacity he is called upon to tender evidence and whether his evidence is acceptable. Another subsidiary question which arises also is whether it is possible for prosecution to single out any two of the partners equally guilty in the commission of the offence taking into account the special nature of this offence in which the participation of both of them is essential for the completion of the offence. It is unnecessary in this case to go into all these points since it is found that two essential ingredients for proving the offences under S. 7(1) are found to be clearly missing and that the conviction is not otherwise sustainable.

In the result, the revision is allowed as far as A3, A4 and A5 are concerned and the conviction and sentence against them are set aside.