Full Judgment
1. Appellant Bunni Khatoon was tried with co-convict Md. Iliyas by the learned Additional Sessions Judge, III Court, Jehanabad after being charged with committing offence under Section 372 of the Indian Penal Code and by judgment dated 21.03.2001 was held guilty of committing that offence. The learned trial Judge heard the appellant under Section 235 of the Code of Criminal Procedure on sentence and directed her to suffer rigorous imprisonment for a period of six years. Appellant Bunni Khatoon challenges the judgment of conviction and the order of sentence passed against her by preferring the present appeal.
2. P.W. 8 Baby Devi was the daughter of informant Chaurasiya Devi (P.W. 1). It appears from the First Information Report that she was found missing while she had gone to a well to take her bath. Hectic search was made for her but she could not be found out. The informant stated in her Fardbeyan that reporting to the police would have caused denting of the family prestige in the estimates of the general public, as such, no report was lodged. But the informant learnt that a man in the police uniform had been seen loitering around her house for the last 3-4 days and probably he had enticed Baby Devi away.
3. On 14.01.1996, P.W. 1 the informant learnt that her daughter had been kept confined in the house of this appellant Bunni Khatoon in Mohalla Thakurbari in Jehanabad and had pushed her daughter into flesh trade. The informant along with others of the Mohalla came to the house of this appellant and found this appellant along with her daughter Baby Devi (P.W. 8) and co-convict Md. Iliyas in the house. Md. Iliyas was beaten up by the people.
4. The informant gave her Fardbeyan (Ext. 3) and on that basis the first information report of the case (Ext. 5) was drawn up and investigation ensued upon it. The Investigating Officer has not been examined but what appears from the evidence of P.Ws.1, 7 and 8, as also some of the documents which were admitted in evidence, like, the seizure memo (Ext. 1) that the house of this appellant was searched and police uniform along with a belt, a pair of shoes, gumboots, etc. were recovered and the same were seized by preparing the seizure memo. P.W. 8 Baby Devi was sent for her medical examination and it appears that she was examined by Dr. (Mrs.) P. Prasad, Civil Assistant Surgeon, Sadar Hospital, Jehanabad on 15.01.1996 and the report (Ext. 2) was furnished by the doctor examining her. Again the doctor has not been examined, but what appears from the medical report was that the lady was assessed aged about 16 to 17 years on 15.01.1996 and the features, both physical and radiological, indicated that she was habituated to sex and as may appear from her own evidence, she was already married prior to the date she was found missing from the well. At any rate, charge-sheet was laid in the Court below and the two accused Md. Iliyas and this appellant Bunni Khatoon, were put to trial which ultimately ended in the impugned judgment.
5. During the course of hearing of this appeal, except that the defence of innocence and false implication no further plea was raised. There does not appear much resistance to the prosecution story that Md. Iliyas and Baby Devi were found together in the house of the present appellant on search of.
6. The prosecution examined as many as twelve witnesses out of whom P.Ws. 2 and 10 were formal in nature. P.Ws. 3 to 6 had turned hostile by giving one line evidence that they did not know anything of the occurrence. P.W. 1 the mother of the victim Baby Devi and the informant of the case had supported the facts narrated by her in her Fardbeyan and one of her relatives P.W. 7, namely, Nagina Yadav, who was married to the sister of P.W. 1, also supported the prosecution story by stating that after having come to know that Baby Devi was in the house of this appellant Bunni Khatoon in Mohalla Thakurbari, he along with P.Ws. 1 and 6 went there to find Baby Devi (P.W. 8) and Md. Iliyas there whereafter the case was lodged after rescuing Baby Devi.
7. As regards Baby Devi she stated that she had left her parentsŸhouse for going to her matrimonial house by a bus and she was brought down by three persons from the bus and was taken away to Jehanabad railway station from where she was brought to Patna and from Patna she and Md. Iliyas went to Bettiah. In cross-examination she stated that she travelled with Md. Iliyas by rickshaw to reach the railway station for boarding the train. Thus, what appears is that the basic prosecution story that the victim had disappeared from the well where she had gone to take her bath was not being supported by her. What appears from her statement was that she had left her motherŸs house out of her own volition and had moved from one place to the other and had stayed with Md. Iliyas at different places where she had physical relationship with the accused. While staying at different places and at Jehanabad, she did not complaint of anything as was subsequently stated by her that she had been pushed into the flesh trade or was offered for illicit sexual intercourse to other persons by the accused persons. It was only when she had gone, as per her evidence, to Jehanabad and stayed in the house of this appellant Bunni Khatoon that she alleged being pushed into the flesh trade by being offered to different clients besides being sexually exploited by Md. Iliyas. While making that allegation, P.W. 8 stated that this appellant Bunni Khatoon was helping Md. Iliyas by allowing him to reside in her house and also using the same as the place where she was sexually exploited.
8. The facts as appears stated by P.W. 8 at the first blush may appear making out a case of voluntary elopement with the accused, but then the law, as formulated by Section 372 of the Indian Penal Code, does not distinguish between anything which could primary be or initially be voluntary act of a lady to get out of her ordinary place of residence and then being subjected to sexual intercourse or exploitation. A bare perusal of Section 372 of the Indian Penal Code indicates that whoever had sold or had let to hire, or had otherwise disposed of any person under 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 such purpose committed the offence punishable under that Section. The two explanations appended to the main provision raises statutory presumption against the person who sells, lets to hire or disposes of otherwise a person which as spoken of by the main part of the provision. But on consideration of those explanations what appears is that Explanation No. 1 relates to selling, letting for hire or disposing of a lady for the purpose of prostitution, may be to a person who maintains and runs a brothel. When the provision is considered with Explanation No. 1 appended thereto then some of the terminologies or words which appear in that Explanation No. 1 have to be appreciated for appropriately appreciating the scope and ambit of the main provision of Section 372 of the Indian Penal Code. Two words which very importantly appear in Explanation No. 1, is that the person sold or let for hire or otherwise disposed of has to be a prostitute and then it should be to a person who manages a brothel or keeps it. The Indian Penal Code does not define either the term žprostituteŸor žbrothelŸ. The two words have been defined by the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as žthe ActŸ) and as per Section 2(a) of the Act, brothel includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. Thus, what appears is that a person may not be a prostitute but still be running a brothel but that running should be for material gains in order to allowing the sexual exploitation of a person by the other. The word œprostitution? has been defined by Section 2(f) of the Act to mean the sexual exploitation or abuse of persons for commercial purposes, and the expression œprostitute? shall be construed accordingly. Thus, even if there is no person to run the brothel as per Section 2(a) of the Act, many persons who themselves are prostitutes may also be running the brothel as appears from combined reading of Section 2(a) and 2(k) of the Act, provided in both the cases the primary aim has to be to gain material or in other words to allow the sexual exploitation of a lady or of a person only for the gain of another person besides also for the mutual gain of two or more prostitutes. Thus, what appears from the definition of the words œbrothel? and œprostitute? is that it could be something like a system created by persons, indeed running the brothel, and also of those persons who are really exploited or abused sexually. What I find after considering the words œbrothel? and œprostitution? is that the two terms are inter-linked so inseparably with each other that no concept of the act of immoral traffic for which the particular Act has been formulated is to be conceived and in that light what I further find is that the same meaning has to be imported into the present case in order to understanding the scope and ambit of Section 372 of the Indian Penal Code. In other words, what I want to note is that selling a minor or letting him or her to hire or disposing him or her in any manner as indicated by Section 372 of the Indian Penal Code could not in itself be an offence unless the person has been offered for the purposes of prostitution at any age and has been subjected to sexual intercourse and that should be done only for the purpose of gaining materially. If there is no evidence material gain then the offence could not be said to be committed or constituted.
9. Coming to the evidence available to the Court, as regards complicity of this appellant Bunni Khatoon, it is true that the victim (P.W. 8) was found in her house with Md. Iliyas, the other co-convict. It also appears that P.W. 8 was per her own evidence sexually exploited and she was also asked to have sex with other persons but there is complete lack of evidence that she had been offered to different clients for materially gaining something and further that the house of this appellant was used as a brothel or that this appellant was running her house as brothel. Evidence merely suggests that the present appellant would have allowed P.W. 8 and Md. Iliyas to live in the house till they were finally found out by the family members of P.W. 8.
10. While making submissions, the attention of the Court was drawn to the evidence of P.W. 8 and also the evidence of P.Ws. 1 and 7 from which it is apparently clear that the house of this appellant was not unknown to either P.W. 1 or to P.W. 7. P.W. 8 appears stating that she had moved to the police station also as appears from paragraph 15 of her cross-examination when she stated that she had herself visited the police station one day prior to having been recovered from the house of this appellant. The evidence of P.W. 1, the mother of P.W. 8 also indicates as if she were quite known to this appellant and she had probably visited her house also. So far Md. Iliyas was concerned, it was admitted from the evidence that he was not unknown to the family, rather he used to visit and meet P.W. 8. P.W. 8 had herself stated that she was married for many years prior to the day of occurrence and she had, as appears from the evidence of P.W. 1 her mother, come a few days back from her matrimonial house. This evidence appears in paragraph 18 of cross-examination of P.W. 1.
11. The initial prosecution story was that P.W. 8 had gone to take her bath at a well but she was found having disappeared from there and ultimately what P.W. 8 stated was that she was travelling in a bus and she was brought down the vehicle to be taken away. There is no evidence that this appellant Bunni Khatoon was running a brothel or was running the racket of prostitution and as such the victim was yet another addition to that band of ladies, who could have been pushed into the trade for pecuniary benefit. In view of the evidence which was available to the Court below what I find is that the ingredients of Section 372 of the Indian Penal Code were not established as was required to be established by admissible and acceptable evidence. In my considered view it was a case in which appellant Bunni Khatoon ought to have been acquitted after being extended the benefit of doubt.
12. Accordingly, the appeal is allowed. The judgment of conviction and the order of sentence passed upon appellant Bunni Khatoon is set aside and the appellant is acquitted of the charge she had been found guilty of. The appellant is on bail. She shall stand discharged from the liability of her bail bond.