Ramu vs State

Rengasamy, J.—These revisions for admissions, have been filed against the Order of conviction and sentence imposed by the learned 4th

Additional Sessions Judge, Madras, in C.A. No. 150/94 confirming the conviction imposed by the 14th Assistant Sessions Judge, Madras, for the

offence U/S. 366, Indian Penal Code to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/- each. The first accused has

filed Crl. R.C. No. 74/95 and accused 2 and 3 have filed the other revision.

The case of the prosecution is that somewhere in June 1992, the first accused falsely promised to P.Ws. 1 to 3 that in Kalyan near Bombay,

employment opportunities are available as Domestic Servants with good salary and free meals and P.W. 3 also knowing this through P.W. 1

agreed to be employed in Kalyan, that all these revision petitioners took these women and one Parvathi to Kalyan where they were sold to Banu

and Susheela for prostitution, that these women were forced to submit to the prostitution after the sale to these persons, that P.Ws. 1 and 3

escaped from them and on the complaint of P.W 1, P.W. 4 was rescued from the brothel house. The prosecution has examined 7 witnesses of

whom P.Ws. 1, 3 and 4 have spoken the manner in which they were taken to Kalyan in Maharashtra State. P.Ws. 1 and 4 have deposed that as

they were working as coolies in the construction works they came across the first accused (revision petitioner in Crl. R.C. 74/95) who informed

that she was providing jobs in Kalyan near Bombay as domestic servants and this was informed to P.W. 3 also who was working in a Soap

Company.

All these three witnesses have narrated that the first accused took them to Central Railway Station the other accused joined and where they were

taken by all these revision petitioners to Kalyan, that from there to the house of one Banu, who was carrying on the brothel house and the sale of

P.W. 1 to her by these revision petitioners and the sale of P.W. 1 to her by these revision petitioners and the sale of P.Ws. 3 and 4 to Susheela.

These three witnesses have spoken that as they were not aware that they were brought for prostitution, they refused to submit to the prostitution,

but the brothel keeper tortured them and demanded back the money she had given to these petitioners, to have them released from her, they had

to submit to her command. P.W. 1 would state that when she had been to the common lavatory, she scaled the wall and escaped to the Railway

Station from where she reached Madras and P.W. 3 also has stated that hearing that P.W. 1 had escaped, she had also escaped from their

clutches. It is also the prosecution case that as P.W. 1 gave a written complaint to the police, P.W. 7 was deputed for rescuing P.W. 4 and that

P.W. 5, Uncle of P.W. 4, identified P.W. 4 in Kalyan and she was rescued. P.W. 6 is the Police Officer attached to C.B.C.I.D. Branch, Bombay,

and he has deposed that on the request of P.W. 7 Inspector of Police from Madras, he went to the place known as Sonapur along with P.W. 5

and that P.W. 4 was rescued from the house of Yunak Banak.

The learned counsel for the revision petitioners in Crl. R.C. No. 68/95 (Accused 2 and 3) contended that these accused did not have direct

contact with the witnesses even as per the prosecution evidence and they simply went to Bombay along with the first accused Muniammal and

therefore they cannot be convicted for the offence u/s 366, Indian Penal Code. But P.Ws. 1 and 3 have narrated that all these three accused took

them from Central Railway Station to Bombay, that as the travel was very much tedious, when they questioned, all the three accused tried to beat

them as they were brought under their control and after reaching the house of the brothel housekeeper Banu, all these three accused were

conversing with her. P.W. 1 has further stated that when she was staying in the house of Banu some time later, the second accused brought a girl to

that house. Therefore, the evidence of all these witnesses show the conjoint action of these petitioners and even though accused 2 and 3 did not

have any direct contact with these witnesses till they met them in the Central Railway, their subsequent conduct shows that all these three accused

had already planned to take these poor women to Bombay for the purpose of forcing them to prostitution.

The learned counsel Mr. Madangopal pointed out a few discrepancies in the evidence with regard to the place where the accused-2 and 3

joined these witnesses and the women who was actually rescued by P.Ws. 6 and 7 in Bombay. Even though P.W. 1 in her evidence has stated

that the first accused took them to Toll Gate that the first accused took them to Toll Gate from where they went to Central by auto-rickshaw and

accused 2 and 3 joined them in the Central Railway Station, P.W. 3 in her evidence has stated that even when they reached Toll Gate accused 2

and 3 also were present there and they also joined them from that place up to Bombay. P.W. 4 repeats what was spoken by P.W. 1. As the

occurrence took place in 1992 whereas they were examined in 1994, it appears that P.W. 3, because of loss of memory, might have stated that

accused 2 and 3 had joined them even in Toll Gate. The evidence discloses that 7 tickets were purchased including for accused 2 and 3, who had

accompanied these women up to the house of the brothel house keeper in Bombay. Therefore, the minor discrepancy will not affect this case.

Another discrepancy pointed out by the learned counsel is the evidence by P.W. 5. P.W. 5 is the Uncle of P.W. 4. P.W. 4''s mother and the

wife of P.W. 5 are sisters. P.W. 5 in his evidence has stated that as P.W. 4 was found missing in June 1992, her mother Poongothai was searching

for her and somewhere in September 1992, they came to know through P.W. 1 that P.W. 4 is at Bombay in a brothel house., P.W. 5 would state

that on the request of his wife''s sister, he also started to Bombay to identify P.W. 4 and along with the Police Officers, he went to the brothel

house and he identified P.W. 1 and one Gomathy. His evidence is that he went to rescue his wife''s sister''s daughter P.W. 4 but while deposing he

has stated that the Police rescued P.W. 1 and one Gomathy. This is the contradiction pointed out by the learned counsel Mr. Madan Gopal. But

on a perusal of the entire evidence, the word P.W. 1 found in the evidence of P.W. 5 seems to be a typographical error for P.W. 4. It is the

evidence of P.W. 5 that P.W. 1. Who was at Madras, informed them that P.W. 4 was in a brothel house at Bombay and therefore he came to

Bombay to rescue his wife''s sister''s daughter P.W. 4 P.Ws. 6 and 7. the Police Officers also in their evidence have stated that they rescued P.W.

4 from the brothel house on the identification of P.W. 5 and P.W. 4 also would state that her uncle P.W. 4 and police officers rescued her from the

house of Banu. So, when all these witnesses have stated that P.W. 4 was rescued by the police officers it appears that while the evidence of P.W.

5 was typed, this typographical error had occurred as P.W. 1 for P.W. 4. Further when P.W. 5 says that on the information furnished by P.W. 1

at Madras he went to Bombay to rescue P.W. 4, he would not have stated that P.W. 1 was rescued on his identification in a brothel house at

Bombay. Therefore, certainly, it is only a typographical error, which cannot be given any weight.

The learned counsel Mr. Madhana Gopal submitted that P.W. 1 in her evidence has stated that complaint given by her was not read over and

u/s 154 Code of Criminal Procedure, the statement of the complaint should be read-over and as this provision was not properly complied with, the

prosecution had not complied with the provision of law. Section 154 of the Code refers to any statement by the complainant, which shall be

reduced into writing. But in this case, P.W. 1 would state that she gave written complaint to the police. Therefore, there was no question of reading

over the written complaint given by P.W. 1. It was also argued that the delay in filing the complaint has not been explained by the prosecution.

P.W. 1 says that she escaped from the brothel house only two months after reaching Bombay and only on the advise of some one, she gave the

written complaint to Police. As P.W. 1 had escaped and got herself released from the clutches of the brothel house, in Bombay, she might not have

interested to lodge any complaint to police to avenge for the atrocity on her at Bombay. But as some other women also were entrapped in

Bombay, probably taking pity on them, on the advice of someone, it appears that she gave the written complaint in Mylanpore Police Station. As

this is clear from the evidence. The prosecution cannot be blamed that it has not explained the delay.

One other legal plea raised by the learned counsel for the revision petitioners is that the offence alleged against these petitioners falls u/s 5(c) of

Suppression of Immoral Traffic in Women and Girls Act, 1956. Which is triable by a Magistrate, but without invoking the provisions of the Act,

which is a special enactment, the prosecution ought not to have filed this case against the petitioners u/s 366. Indian Penal Code which is triable by

a Sessions Court and therefore, the whole proceedings was illegal. The learned counsels further submitted that when the is special enactment for a

particular offence, that alone should be invoked to prosecute for the offence of that type without resorting to the general provision of law. But on a

perusal of Section 5(c) of the Suppression of Immoral Traffic in Women and Girls Act, this section relates to procuring, inducing or taking the

women or girl for the sake of prostitution and if a person takes or attempts to take a women or a girl from one place to another place with a view

to his carrying on or being brought up to carry on prosecution, it will amount to an offence and even if the victim woman or girl consented to

prostitution by inducement this section can be invoked, because the section reads that if a person was induced for prostitution or taken to another

place for that purpose, that becomes an offence. On the other hand, Section 366, I.P.C. is kidnapping or abducting a woman either by force or by

deceitful means, inducing her to leave a place and thereafter force her for illicit intercourse or compel her to marry another person. u/s 366, I.P.C.

the inducement to leave the place and also the knowledge of the abductor that the victim would be compelled to marry any person against her will

or seduced to illicit intercourse are the elements of the Section. Therefore, these two provisions have different approach. Further, Section 366.

Indian Penal Code falls under Chapter XVI of the Indian Penal Code dealing with the offences to the human body. Therefore, it cannot be

contended that the prosecution of these petitioners u/s 366, Indian Penal Code is illegal. Further u/s 26 of the General Clauses Act, when an act

becomes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those

enactments leaving it to the discretion of the Prosecutor and the only restriction is that for the same offence, he shall not be punished twice.

Therefore, when such a liberty is given to the Prosecutor, the illegality alleged for the prosecution u/s 366, Indian Penal Code, has no substance.

In both revisions, the learned counsels pleaded mercy for these petitioners, to reduce the sentence. The offence they have committed is a social

pestiline demoralizing the society and they have lured the poor women and girls by false promises. Such persons do not deserve any sympathy and

the determent punishment for such persons will be a warning to others. Therefore, I am not inclined to interfere with the punishment also.

In the result, both the revisions are dismissed in the admission stage.

Petition dismissed.