Suseela vs State

Petitioner Suseela was convicted in C.C. No. 16734 of 1978 by the learned XVIII Metropolitan Magistrate, Madras, for an offence under S.

3(1) of the Suppression of Immoral Traffic in woman and Girla Act, 1956, and sentenced to suffer rigorous imprisonment for one year and to pay

a fine of Rs. 300/- in default to suffer rigorous imprisonment for three months.

Against her conviction and sentence, she filed an appeal, C.A. No. 498 of 1979 before the learned Sessions Judge, Madras, The appeal was

dismissed and the conviction and sentence were confirmed.

The instant revision case is filed by the petitioner challenging the correctness of the conviction and sentence passed against her by the lower

appellate Court.

The case against the petitioner was that on 25-10-1978 at about 12-30 p.m. she was running a brothel in the upstairs portion of Door No. 20,

II Lane, Puliyur, Trustpuram, Kodambakkam, Madras, with the assistance of the other two accused girls, Manjula and Lakshmi. A2 Manjula

carried on prostitution in the said premises and A-3 Lakshmi solicited the witness, Kumar, for prostitution in the said premises. The premises is

situate at a distance of 50 yards from a Nursery and Tutorial School as well as Pillayar Temple. The trial Court framed charges against the

petitioner under S. 3(1) of the said Act; against A.2 Manjula under S. 7(1) of the said Act and against A.3 Lakshmi u/s 8(a) of the same Act. All

the three accused pleaded not guilty. During the course of the trial, Accused 2 and 3 had absconded, and hence the case against them was

separated and the case against the petitioner alone was proceeded with.

P.W. 6 is the Assistant Commissioner of Police, Anti Vice Squad, Madras. On receiving information that the petitioner herein was running a

brothel in the premises aforementioned, he verified the same by personally watching over the premises man also through his informants. He was

satisfied that the premises was being used as a brothel. He arranged for a trap and raid. His Inspector arranged for a decoy witness Kumar P.W. 1

and two other witnesses, P.W. 2 and another. The witnesses were informed about the proposed trap and they were willing to assist P.W. 6 therein

P.W. 6 prepared a mahazar in entrusting to P.W. 1 of a hundred rupee currency note M.O. 1 after initialling it. Ex. P. 2 is the mahazar attested by

the witnesses. P.W. 1 was asked to proceed to the house in question to be pointed to him by a constable and thereafter meet the petitioner herein

and arrange with her for providing a girl for prostitution. Accordingly P. W. 1 proceeded to the house and went upstairs where he was met by the

petitioner. P.W. 1 told her the purpose of his visit and when asked how he chose that house and came there. The petitioner informed him that she

was having two girls for prostitution and produced the two girls, Manjula and Lakshmi. Actually the petitioner offered herself for prostitution but

P.W. 1 was not willing as she was aged. When Manjula and Lakshmi were produced for inspection, he chose Manjula and the petitioner

demanded Rs. 100/-. P. W. 1 handed over M.O. 1 to the petitioner.

Manjula took P.W. 1 to the adjacent bed room and the door was bolted from inside. P.W. 1 and Manjula undressed themselves and had sexual

intercourse. Meanwhile, the constable who showed P.W. 1 the house returned to P.W. 6, and informed him that P.W. 1 had appeared to have

succeeded in the mission. Thereupon, P.W. 6 prepared Exhibit P-5 incorporating his grounds for belief that the house in question is being used as a

brothel and he therefore proposed to search the same. Then he proceeded to the house and found the petitioner seated in the entrance hall. Being

questioned by P.W. 6 as to where P.W. 1 was, the petitioner pointed out the bed room. P.W. 6 knocked at the door. P.W. 1 opened it. P.W. 1

as well as Manjula were not properly clothed and the photographer accompanying P.W. 6 took photos of P.W. 1 and Manjula in that state of

undress. After asking P.W. 1 and Manjula to dress themselves properly and come out, P.W. 6 questioned P.W. 1 and thereafter asked the

petitioner to produce the money, M.O. 1. The petitioner produced it from inside a wooden almirah kept in the adjacent room and handed it over

to P.W. 6. When compared, the number of the currency note given by the petitioner tallied with the number already noted in the Mahazar. M.O. 3

underwear worn by P.W. 1 and M.O. 5 skirt worn by Manjula, M.O. 2 the bed sheet and M.O. 4 the pillow were seized by P.W. 6 under Exhibit

P-1 Mahazar which was attested by P.W. 2 and others.

P.W. 1 and Manjula were sent for medical examination. P.W. 4, Doctor examined Manjula and issued Ex. P. 3 certificate to the effect that her

sexual characteristics were normal, that there was no injury on her body and that she was not a virgin. P.W. 5 examined P.W. 1 and found that P.

W. 1 had well developed genital organs smegma being absent. Ex. P-4 is the certificate issued to him.

Ex. P-6 is the rough sketch prepared of the upstairs of the house is question. M.Os. 2 to 4 were sent for chemical examination. After

investigation was completed, charge-sheet was laid against the petitioner.

When examined with reference to the incriminating circumstances appearing against the petitioner in the prosecution case, the petitioner denied

the entire evidence as false. Though at first she has taken time for examination of defence witnesses, ultimately no witnesses were examined on her

behalf.

The Suppression of Immoral Traffic in Women and Girls Act, 1956, is a penal statute and it is a well established rule that the person who is

sought to be made liable under such a statue must be strictly brought within the ambit of the provisions of the Act. The prosecution must therefore,

bring home the guilt of the petitioner within the description of the person mentioned in the Act if she is made liable to penalties.

A number of contentions have been raised before me by the learned counsel for the petitioner. He first contended that, even though P.W. 6 has

spoken to have watched the house in question personally and also through informants before he decided to lay a trap and raid the premises, no

details are given by him as to the facts observed by him during the watch. A neighbour P.W. 3 has been examined to speak about the suspicious

activities observed by him in the said house. But his evidence is of no avail to the prosecution since he had been treated as hostile. Thus we are left

only with what happened on the particular day, i.e. on 25-10-1978 in the house of the petitioner. Accusation was made against the petitioner and

two other girls; the two girls being charged as prostitutes plying their profession in the said house. Therefore unless an offence under S. 7 of the Act

against any one of the girls is established, the charge against the petitioner for an offence under S. 3 cannot be said to be made good. Before

considering whether the petitioner was running a brothel with the help of the said two girls, it is necessary to decide whether either of the two girls

had carried on prostitution in the said premises.

P.W. 1 has spoken as to how he had been approached with a request to act as a decoy witness. There is nothing to suspect that P.W. 1 was

in any way obliged to the police or was willing to falsely depose on their instructions. There is no inherent discrepancy elicited between his

evidence and the evidence of the other witnesses that would throw suspicion on the evidence of P.W. 1. I have gone through the evidence of P.W.

1 and I am convinced that he is speaking of what actually happened that particular day in the house of the petitioner.

P.Ws. 4 and 5 are the doctors who examined P.W. 1 and Manjula. From the certificate given by P.W. 4 it is seen that the girl Manjula

selected by P.W. 1 for intercourse was examined by her and she opines that Manjula is a girl accustomed to sexual intercourse. P.W. 5 the doctor

no smegma on P.W. 1. That would go to show that P.W. 1 had intercourse, at least sometime before he was examined by the doctor. On the

other hand, the presence of smegma would have proved false the case of P.W. 1 that he had sexual intercourse with Manjula. P.W. 5 has further

stated that P.W. 1 is capable of performing the sexual act. No doubt the M.Os. seized from the place and the under garments sent for chemical

examination have not been brought to Court. From the records it is seen that no semen was detected on any of the articles seized. We have to

view this aspect from the evidence of P.W. 1 who deposes that himself as well as Manjula undressed themselves before having sexual intercourse.

Under the circumstance absence of semen on the clothes loses its significance. Nor could it be said that semen should necessarily be found on the

bed clothes if the evidence of P.W. 1 regarding the actual sexual act is considered and accepted. The fact that P.W. 1 and Manjula were not

properly dressed or were almost in a state of nakedness when P.W. 1 opened the door on the knocking of P.W. 6, is another circumstance which

lends support to the version of P.W. 1 that he had sexual intercourse with Manjula.

When P.W. 1 entered the house and informed the petitioner the purpose of his visit, the petitioner first offered herself and later a choice of two

girls. P.W. 1 selected Manjula and the petitioner charged a fee of Rs. 100/- which P.W. 1 paid. This would indicate that two girls were available

for hire, apart from the fact that the petitioner offered herself to P.W. 1 for intercourse. Therefore when P.W. 1 swears that he selected Manjula

and had sexual intercourse with her, there cannot be any doubt that the said Manjula had committed an offence u/s 7(1) of the said Act.

The learned counsel for the petitioner argued that P.W. 1 the decoy witness is an accomplice and therefore his testimony must be

corroborated. P.W. 1 is only a partisan witness interested in the success of the prosecution case because he lent himself as an instrument for the

purpose of raid. The law does not require that his evidence should be corroborated before being accepted as sufficient to sustain the conviction.

The evidence of a partisan witness if it is trustworthy can be acted upon by the Court to convict the accused person. Even if corroboration is

sought for, it could be only for a general way and not for material particulars. In the instant case, the recovery of the currency note M.O. 1 from

the possession of the petitioner is a strong corroboration of the testimony of P.W. 1.

The learned counsel next argued that the provisions of Section 15 of the Act had not been complied with and hence the recovery of M.O. 1

currency note ought non to have been accepted. The evidence of P.W. 6 is that after he had been informed by the constable, the accompanied

P.W. 1 to the house of the petitioner, that P.W. 1 had been accommodated in the petitioner''s house, he prepared Ex-5 mahazar containing the

grounds for embarking on the search and then proceeded to the house in question. His evidence that he could not therefore proceed to obtain a

warrant need not be viewed with suspicion. The learned counsel stressed the point that the provision that, before making the search, the police

officer should call upon two or more respectable inhabitants of which one shall be a woman to attend and witness the search had not been

complied with in the present case. In Bai Radha Vs. The State of Gujarat, , their Lordships of the Supreme Court had held that the entire

proceedings and the trial do not become illegal or vitiated owing to the non-observance of or non-compliance with the direction contained in sub-

sections (1) and (2) of Section 15 of the Act. Unless and until some prejudice is shown to have been caused to the accused person, the conviction

and sentence cannot be set aside. Unless the irregularity or the illegality in the investigation of the trial can be shown to have brought about a

miscarriage of justice, the result is not affected because Section 537 of the Cr.P.C. is attracted. In the present case, the number of the currency

note had been noted in Exhibit P-2 and the same had been entrusted by P.W. 6 and subsequently it has been recovered from the petitioner. Hence

the search and the seizure in the instant case need not at all be doubted. The non-compliance of the provision that two or more respectable

inhabitants in the locality must be called upon to attend the search has not in any way caused prejudice to the petitioner.

The learned Counsel for the petitioner next contended that an offence u/s next contended that an offence u/s 3(1) of the Act had not been

established in this case. To appreciate this argument, it is necessary to examine the provisions of the Act.

Section 2(a) reads as under :

brothel"" includes any house, room conveyance or place or any portion of any house, room, conveyance, or place, which is used for purposes of

prostitution for the gain of another person or for the mutual gain of two or more prostitutes"".

Section 2(f) reads as under :

''prostitution'' means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind, and whether

offered immediately or otherwise, and the expression ''prostitute'' shall be construed accordingly"".

Section 3(1) reads as under :

Any person who keeps or manages, or acts or assists in the keeping or management of a brothel shall be punishable on first conviction with

rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand

rupees ........

A perusal of the above definition of ''brothel'' would clearly show that ''brothel'' is a place which should be used for purposes of prostitution for

the gain of another person or for the mutual gain of two or more prostitution"" would undoubtedly mean more than one instance of prostitution and

solitary instance of prostitution in a place does not make the place a ''brothel''.

In the present case it should be noted that the petitioner offered herself for sexual intercourse at the first instance. But as P.W. 1 would not

have her, another girl was engaged. The fact that the money was received from P.W. 1 by the petitioner alone is no sufficient to hold that the

petitioner is keeping or managing a brothel without any other attendant circumstance. It cannot be ruled out that she made a living on the earnings

of the prostitution of the girl Manjula. In this context it is relevant to note Section 4(1) of the Act which is as under :

Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be

punishable with imprisonment for a term which may extend to two years, or with find which may extend to one thousand rupees or with both.

The prosecution has proved only one instance of prostitution. There is no evidence to show that the house in question was used as a brothel with

any surrounding circumstance sufficient to establish it. The evidence of P.W. 1 alone is not enough to prove that the place satisfied the ingredients

of the term"" for purposes of prostitution"" u/s 2(a) of the Act.

As I have held earlier P.W. 1 had sexual intercourse with Manjula in the premises and parted with Rs. 100/-. But I am not satisfied on the

evidence let in by the prosecution that the petitioner was keeping or managing or acting or assisting in the keeping or managing of a brothel, I think

it will be safer to convict the petitioner for an offence u/s 4(1) of the Act, though the petitioner has been charged u/s 3(1) of the Act. She could be

convicted on the proved facts only u/s 4(1) of the Act even though a charge u/s 3(1) was laid. This has been established in a decision of

Ramakrishnan, J. in In Re: John and Others, .

In the result, I set aside the conviction and sentence of imprisonment imposed on the petitioner for an offence under S. 3(1) of the Suppression

of Immoral Traffic in Women and Girls Act, 1956. Instead, the petitioner is convicted for as offence under S. 4(1) of the said Act and the fine

amount of Rs. 300/- in default to suffer rigorous imprisonment for three months imposed by the lower appellate court is confirmed. With this

modification in the conviction and sentence the Criminal Revision case is dismissed.

Order accordingly.