Partha Sakha Datta, J.
1. The victim aged 16 years belonging to a poor family under Pathar Pratima police station was offered a Job of maidservant at Delhi by the appellant against monthly remuneration of Rs. 1,000/-. Accordingly, with the consent of her parents she was taken by the appellant to Delhi on or about 14th December 2003 but at Delhi she was not given any job in the house of the appellant and after she had spent a few days in the house of the appellant the appellant told the victim to go to different men and if she could please them she would be given handsome amount in return. She was not agreeable to the proposal but she was forced to go to different men so as to fulfill their carnal desire. Things went like this for months but she could not bear It any more and the appellant was compelled to take her to her mother on 15-2-04. Thus allegedly the appellant took the victim to Delhi with the temptation to find out a job for her but tortured her physically and mentally and ruined her.
2. This was the FIR lodged by the victim with the OC Pathar Pratima P.S. on 17-2-04. Pathar Pratima P.S. case No. 10 dated 17-2-04 under Section 366A/372 of the I.P.C. was registered and upon completion of investigation charge sheet was submitted against the appellant under the aforesaid sections of the law.
3. The learned Triad Court upon trial of the appellant under Section 366A/372 of the I.P.C. convicted her under those sections of the law and sentenced her to suffer rigorous imprisonment for 7 years with fine of Rs. 2,000/- with default stipulation on account of the charge under Section 366A, I.P.C. and also the same punishment was awarded on account of the charge under Section 372, I.P.C. with the direction that both the sentences would run concurrently.
4. This Judgment and order of conviction and sentence dated 18-12-2006 passed by the learned Additional District and Sessions Judge, Fast Track 5th Court, Alipore, South 24 Parganas in Sessions Trial No. 5(7)04/Sessions Case No. 34(6)04 is under challenge in this appeal on the ground that there has been a total misappreciation of evidence of the witnesses and the judgment and order of the learned Trial Court accordingly is liable to be set aside.
P.W. 1, the victim who stated her age as 16 years, said in her evidence that the appellant came to her maternal aunt's house in her village and the said maternal aunt of the appellant as also the appellant herself came to her house and advised her father to send her with them to Delhi to work as maid servant in lieu of salary of Rs. 1,000/- per month. As her parents were poor they agreed to send her to Delhi to work as a maid servant. Her father was also ill and bed ridden at the time and she also agreed. On 27th Agrahayan of the year which precedent the year of her giving evidence in Court she was taken to Delhi by the appellant but at Delhi the appellant proposed her to do immoral work by spending nights with different male persons for earning money. Her unwillingness did not prevail with the appellant and as she was threatened with dire consequences and as she was subjected to assault for her refusal to perform such immoral work she was compelled to engage herself in the immoral work and the modus operandi was that the appellant would send the victim to that place only after she would receive telephonic information from the persons concerned for the purpose. The appellant used to receive money from them who would drop at the door of house of the appellant by vehicle whereby the victim was taken to different places so as to allow her flesh to be enjoyed by such persons. She could not bear such type of inhuman torture as she was forced to have sexual intercourse with other persons against her will. Whenever she protested the appellant replied 'I do not like weeping. I only understand money'. Two months passed by. She contacted venereal disease in her vagina. The appellant took the victim to a doctor after putting vermilion on her head for her medical treatment. When her menstruation stopped the appellant took her to another doctor and procured some medicine. When the condition deteriorated, the appellant took her to Howrah from Delhi by a train and at Howrah station she was made to board a bus to go home and accordingly she reached home and reported the incident to her parents and also to the local people. Appellant was confronted with the allegations and she admitted the allegations to be true. The matter was reported to the local police station by a complaint which was written by one Balai Chandra Das (Ex. 1).
5. The major part of the cross examination of PW 1 as I find from the deposition sheet consists of throwing suggestions at random and all such suggestions have been denied by P.W. 1 to be true. It appears from her cross examination that she does not recollect the date of her return from Delhi, she said that she lodged a written complaint before the police station five days after her arrival from Delhi, that she was medically examined locally, that police came to her village on the very date of reporting the incident to police station, that police did not record her statement, that one Hira, resident of a neighbouring village was also taken to Delhi and she also returned with her to Calcutta from Delhi. In fact, the basic fabric of the prosecution case with regard to the charges under Section 366A/372. I.P.C. could not be demolished by the cross examination. The manner of cross examination was like putting denial in the form of suggestions, one after other, to what she had stated in her evidence in chief.
6. In fact, cross examination of P.W. 1 is a parade of suggestions and nothing more. P.W. 2 Sumitra Pradhan is the mother of the victim who corroborates PW 1 and it is of no use to reproduce her evidence. She was told by P.W. 1 as to what had happened to her at Delhi. She said in her examination in chief that on the nipple of her breast of her daughter a disease developed for which she was medically treated. She also speaks of extra Judicial confession of the appellant before the villagers in a meeting called Salish. She stated that she is an Illiterate woman and police Interrogated her and what she saw and heard was narrated to the police.
7. The cross-examination of this witness consists of plethora of suggestions on this and that and what materially transpires from her cross-examination is that police took her daughter to the police station 5/6 days after her return.
8. PW 3 Sanyasi Mondal, a co-villager of PW 1 is a corroborating witness. This witness was present in the meeting but he says that as the problem could not be resolved the victim was sent to the police station to report the incident.
9. PW 4 Urban Bhuina says that after returning from Delhi the victim reported to the villagers that she was used against her will in the trade of flesh and a village meeting was convened but as quarrel developed nothing could be achieved and then the matter was reported to the police.
10. P.W. 5 is a lady Homeguard Sova Roy who on 18-2-04 took the victim to the Judicial Magistrate for recording her statement under Section 164, Cr.P.C.
11. Sri B.N. Singh who is the Judicial Magistrate of Diamond Harbour recorded under Section 164, Cr.P.C. the statement of the victim (Ext. 2/3) PW 7 Sitangshu Sekhar Das is the I.O. of the case. From his cross examination it appears that he had been to Delhi for the purpose of investigation of the case.
12. In the context of the evidence of the seven witnesses as have been reproduced above it appears in unmistakable terms that the victim under 16 years of age was offered a Job of a maid servant at Delhi against a monthly remuneration of Rs. 1,000/- and as the victim came of a poor family and her father was bed ridden she was taken to Delhi by the appellant in her residence but at Delhi she was compelled under threat and assault to offer her flesh for sexual enjoyment by the appellant's customers of different places. She was used to be sent to different people whenever information would come to the appellant over telephone and the modality of the customers was that they would come with the vehicle to the house of the appellant to fetch the victim and she was forced to accompany the people against her will to satisfy the carnal desire of male persons. The victim protested against that behavior which the appellant ignored telling that she would only understand money and would not tolerate weeping. Two months were spent in that way. Then the victim contacted some venereal diseases in her vagina. The appellant took her to a doctor by putting vermilion on her head. But as her menstruation stopped she was taken to another doctor and some medicines were procured but then when her condition deteriorated she was brought back to Calcutta at her home. She narrated the incident to her parents and the local people who then arranged for a meeting whereat the victim allegedly made extra judicial confession but as no justice could be reached in the village meeting the law took its own course through registration of an FIR. These facts as have been vividly narrated by PW 1 in her evidence could not be demolished at all. P.Ws. 2, 3 and 4 corroborated the version of PW 1. PW 2 stated that it was found that on the nipple of her breasts some diseases developed and local doctor was consulted.
13. It has been submitted by Mr. Bagchi, learned Counsel for the appellant that the charge under Section 366A/372 of the I.P.C. could not be established because the primary ingredient that the victim was under 16 years of age could not be proved by the prosecution through ossification test of the victim.
14. Mr. Asimesh Goswami, learned Public Prosecutor submitted in reply that in evidence PWs 1 and 2 have categorically stated that PW 1 was under 16 years of age and there was no reason to disbelieve the testimony and the mere suggestion thrown at random to PW 2 that the victim was not under the age of 16 years does not at all Indicate that the prosecution case has lost its footing. I find that before the learned Trial Court the victim said her age as 16 years and there was no suggestion put to the victim that she was not under the age as 16 years and there was no suggestion put to the victim that she was not under the age of 18 years. PW 2, the mother of the victim corroborated her daughter and it was only to PW 2 that suggestion was put to the effect that her daughter was not under the age of 16 years at the time of the incident. This suggestion to my mind docs not disprove the prosecution evidence. The evidence of PW 1 and PW2 could have been disregarded if it would have come out through their evidence that they were lying on important points in their story. The entire ghastly and shocking story vividly pictured by the victim remains unshaken although and the defence could not catch even a straw. The requirement of age with respect to the charges under Section 366A/372, I.P.C. is that the girl should be minor girl under the age of 18 years. The 16 years of age is not the deadline. It is the minority of the girl that counts. Nowhere it has been suggested in the cross examination of the witness that the girl was major and that there was no inducement to her to go to Delhi. The girl was unmarried minor girl. As the girl was minor the learned Trial Court in order to test her ratiocinative capacity made some preliminary enquiry and having been satisfied that she was able to adduce evidence the learned Trial Court did proceed to record her evidence. Non-holding of the ossification test in the circumstance does not render the case to a naught. It is not that the victim was individually approached by the appellant to go to Delhi or that the victim approached the appellant to find out a job for her. The appellant came with her maternal aunt to the house of the victim where approach was made to the parents of the victim and with the consent of the parents the victim was taken to Delhi by the appellant. I find no reason to say that the victim or her mother has lied with respect to the age of the victim and a random suggestion put to PW 2 only does not demolish the prosecution case.
15. Mr. Bagchi submitted that from evidence in cross-examination of PW 1 we find that a similar girl Hira by name was also taken to Delhi and that girl also was brought back to Calcutta along with PW 1 but the said Hira who belongs to a neighbouring village has not been examined and her examination was necessary so as to appreciate the truthfulness or otherwise of the story narrated by PW 1 in her evidence. Examination of Hira would have been considered necessary if there could be an inkling of suggestion or doubt as to the veracity of the statement of PW 1. The evidence of PW 1 is so convincing, vivid and exhaustive that it does not require any corroborative statement particularly when evidence of PW 1 in material particulars could not be demolished at the least. The girl's hailing from a village, she being unmarred, parents' consent obtained by the appellant to take her to Delhi, the girl having not insisted and appellant of her own volition on taking her to Delhi, are all consistent with her evidence and that of her mother who is the best person to testify to the age of her daughter to the effect that she was under 18 years of age.
16. Thirdly it was argued that the victim stated in her evidence that as she developed some disease in her private parts of the body she was taken to a doctor at Delhi by the appellant after putting vermilion on her forehead and when it appeared that her menstruation stopped she was taken to another doctor there and some medicine were obtained. Further PW 2 stated in her evidence that as some disease developed in the private part of her daughter's body she was examined by a local doctor Biren Banch but neither medical examination of the victim was done by the prosecution after registration of the case nor the local doctor Biren Bansh was examined, nor investigating agency took any steps to contact the doctors of Delhi so as to have their statements recorded under Section 161, Cr.P.C. True it is that this has not been done. But can it be said that non-examination of the doctor would amount to nonfulfillment of the requirement of either of the offences which the appellant has been charged with? There is no reason to doubt the evidence of PW 1 who first disclosed to the appellant at Delhi that she developed some problem in her private part of the body and in order to conceal that she was an unmarried girl the appellant put vermilion on her forehead and then took her to a doctor, and again she was taken to another doctor when menstruation stopped. I do not possess any amount of doubt as to the evidence of PW 1 and PW 2 to that effect. If there was any negligence on the part of the IO for non-examination of the doctor or not undertaking any medical examination of the victim the prosecution case must not fall to the ground on that score alone because on a broad perspective of the case and evidence on record the charges are found to have been brought home to the hilt. In the circumstances I am unable to agree with Mr. Bagchi that for non-examination of the doctor adverse inference has to be drawn. According to Mr. Bagchi PW 2 has stated that police was informed of the incident 5/6 days after the return of PW 1 from Delhi, while FIR was lodged on 17-2-04 and in the FIR it was stated that she was brought back home from Delhi on 15-2-04. This is purely a minor discrepancy and it does not at all touch the genuineness of the prosecution case. It was argued as to which was the first in point of time -- village meeting or the FIR? This question is quite irrelevant for the purpose of answering the charges because in evidence we find that after returning from Delhi the villagers sat and as the village meeting did not fetch any desired result the police was informed of the incident through FIR. Non-examination of the scribe of the FIR Balai Chandra Das is again of no consequence because it has been stated by PW 1 in her evidence that she narrated the incident to Balai Chandra Das who recorded the statement according to her dictation and then she put her signature thereon. If there could have been any discrepancy between the FIR and the evidence of PWs 1 and 2 then the question could have been raised. But when FIR and the 164, Cr.P.C. statement of the victim recorded by the learned Magistrate have been translated into evidence by PW 1 the argument that the scribe of the FIR was not examined is of no effect. That she developed diseases in private parts of her body has been stated in FIR Itself. In the FIR she had stated that she was taken to the doctor by the appellant by putting vermilion on her forehead. It cannot be said in such circumstances, as is argued by the learned Advocate for the appellant, that statement of the victim under Section 164, Cr.P.C. was a tutored one. It was argued that one 'Muti Masi', said to be the maternal aunt of the appellant who allegedly came with the appellant to the house of the victim to secure consent of the victim's parents has not been examined by the prosecution but again I must say that her examination was not an absolute necessity. The learned Advocate for the appellant urges the Court to exonerate the appellant on the ground that it was not a case that the victim was recovered by the police from Delhi, rather it was the appellant herself who brought the victim home. The question is not how the victim could be able to reach her home. The question is whether the appellant committed offences within the meaning of Section 366A/372 of the I.P.C. It was because the appellant found that it was impossible for her to keep the victim at Delhi following her contacting diseases in her private parts of the body that the appellant thought it fit to return the victim to her father and that she did this but by this it cannot be said that the appellant was innocent. Mr. Bagchi speaks of the non-truthfulness of the evidence of PWs 2 and 3 with respect to the extrajudicial confession of the appellant. Yes, all the material prosecution witnesses have spoken of an extrajudicial confession of the victim. The prosecution does not need to lend support to the extra judicial confession so as to bolster the prosecution case because the victim's direct evidence is the corner stone of the prosecution case. It has been urged that no people of Delhi has been examined. This would have been of no use because in an offence like this hardly any outsider would be found to be acquainted with the nature of the offence the appellant had been committing day after day till the victim returned back to Calcutta.
17. At the last leg of the argument Mr. Bagchi submitted that the examination of the accused under Section 313, Cr.P.C. was recorded in such a fashion that material evidence was not put to the appellant which would amount to a legal position that the material evidence had not been there. The decision in Sharad Birdhichand Sarda v. State of Maharashtra : 1984CriLJ1738 has been cited. Mr. Ashimesh Goswami learned Public Prosecutor submitted that all the material evidences transpiring against the appellant have been put to the accused and mere omission put to the age of the victim to the appellant is of no consequences and that omission does not cause any prejudice to the appellant. I find from examination of the accused under Section 313, Cr.P.C. that the appellant was told of her taking the victim to Delhi on the plea of securing a job at Rs. 1,000/- p.m. but instead of putting her in any place of employment she was compelled to engage in trade of flesh by the appellant and in lieu thereof the appellant used to earn money, that because of the appellant engaging the victim in the trade of flesh the victim contracted venereal diseases and by putting vermilion on her forehead the appellant took her to doctor for medical treatment and that when the victim's condition deteriorated she was returned back. The statements of the other witnesses were also put to appellant. The appellant's attention was drawn to the 164, Cr.P.C. statement of the victim by the learned Trial Court. It appears that the material evidence has been put to the appellant and the only omission was that the age of the victim as has been told by PW 1 and PW 2 was not put to the accused. The question is whether such omission to put the age of the victim to the appellant in her examination under Section 313, Cr.P.C. would vitiate the entire trial. I think it would not. The appellant heard all along the oral testimonies of the victim and other witnesses. During the trial she could not demolish the evidence of the victim with respect to her age. Some random suggestions and none but the same could constitute the core of the defence's cross examination. As against establishment of proof of age during trial what the appellant could have said is but denial which was already there is the form of suggestion. If prejudice is not a mere slogan, then it was not at all caused to the appellant. Necessity to put question to the accused under Section 313, Cr.P.C. is always subject to the rider whether the omission to put the question causes miscarriage of Justice or prejudice. Reference in this connection may be had to Vatinder v. State : (1994)1SCC726 and State v. Shyamsunder : (1995)4SCC262 .
18. It was argued that the learned trial Court did not record as to why the appellant could not be proceeded with under Section 360, Cr.P.C. but having regard to the gravity of the offence it was not a case that the appellant should have been dealt with under Section 360 of the Cr.P.C. The learned Judge has himself observed that since the offence was heinous and highly detrimental to the society as well, he was of the opinion that the exemplary sentence should be Inflicted upon her.
19. The learned Judge has taken into consideration that the appellant was also a female and considering all aspects of the matter the appellant was rightly sentenced to suffer imprisonment of 7 years with fine of Rs. 2,000/- with default stipulation.
20. In the circumstances, I find no merit in the appeal and accordingly. I dismiss the appeal. The Judgment and order of conviction and sentence of the learned Trial Court is confirmed.
21. A copy of this Judgment shall be sent to the concerned Correctional Home where the appellant is lodged.