M.R. Verma, J.@mdashThis appeal is directed against the judgment dated 12.9.2003 whereby the Appellant-accused (hereafter referred to as ''the accused'') has been convicted and sentenced by the learned Sessions Judge, Kinnaur Sessions Division at Rampur, as under:
| Section under which convicted | Sentence imposed |
| 1. Section 365 read with Section 34, IPC | Rigorous imprisonment for 7 years and fine of 5,000 and in default of payment of fine further rigorous imprisonment for one year. |
| 2. Section 368 read with Section 34, IPC | Rigorous imprisonment for seven years and fine of 5,000 and in default of payment of fine further rigorous imprisonment for one year. |
| 3. Section 109 read with Rigorous 376, IPC | Rigorous imprisonment for seven years and fine of 5,000 and in default of payment of fine further rigorous imprisonment for one year. |
| 4. Section 5 of Immoral Traffic (Prevention) Act, 1956 | Rigorous imprisonment for seven years and fine of 2,000 and in default of payment of fine further rigorous imprisonment for one year. |
| 5. Section 6 of Immoral Traffic (Prevention) Act, 1956 | Rigorous imprisonment for seven years and fine of 2,000 and in default of payment of fine further rigorous imprisonment for one year. |
2. Case of the prosecution in brief is that Golu Ram (PW-1) on 29.3.2002 lodged FIR Ex. PW1 /A at Police Station Jhakri complaining that his daughter (PW-13), who was married to Govind Singh (PW-8) four or five years before and had two daughters, used to reside with her husband in village Mori in Solan. Co-accused Shiv Chand Negi, a resident of Meeru village in Kinnaur also used to reside with them. On 8.10.2001, the prosecutrix alongwith said Shiv Chand came to her in-laws house as per the wishes of PW-8. The prosecutrix resided in her in-laws house till 11.11.2001 and on 12.11.2001 proceeded to her Bua''s house alongwith one of her daughters but disappeared at the behest of co-accused Shiv Chand Negi. On 29.3.2002, PW-1 was informed by his villagers on the basis of a newspaper report that his daughter and daughter''s daughter were in Mumbai in some prostitution centre. On the basis of the FIR, investigation followed and a police party headed by ASI Puran Chand (PW-18) proceeded to Bombay where he requisitioned the assistance of Bombay Police and with such assistance the premises known as Room No. 101 (Kotha) in Street No. 12, Kanthipura, were raided. On search of the premises, the prosecutrix (PW-13) was recovered from the Kotha alongwith her minor daughter. The prosecutrix and her daughter were identified by Parshotam Dass (PW-12) and a Memo. Ex. PW 3/A was accordingly prepared. The custody of the prosecutrix and her daughter was handed over to PW-12 vide Memo. Ex. PW 4/A. Accused Lalita Tamang was arrested vide Memo. Ex. PW 3/B. Search of the residential premises of co-accused Shiv Chand Negi was conducted and during such search photographs marked ''A'' to ''C and letters Ex. PW 10/A to 10/ D were taken in possession vide Memo. Ex. PW 10/E. The prosecutrix was got medically examined and the MLC about such examination conducted by Dr. Hemant Kumar (PW-11) is Ex. PW 11/A. The co-accused Shiv Chand Negi was also arrested and was got medically examined and the MLC about such examination is Ex. PW 7/A. The investigation reveals that the prosecutrix was enticed by co-accused Shiv Chand Negi with the help of certain other accomplices whose identity does not appear to have been established was removed to Bombay. After committing rape on her by co-accused Shiv Chand Negi she was handed over to one Maya who further handed her over to Kalpana and she was finally brought to Kotha No. 101 to Bombay in which she was confined and forced into the flesh trade by accused Lalita Tamang. One Bhagta Bahadur was also found as an accomplice but sufficient evidence was not available against him. On the basis of the material collected, the Investigating Agency found involvement of co-accused Shiv Chand Negi in the commission of offences punishable under Sections 365, 376, IPC and Section 5 of Immoral Traffic (Prevention) Act, 1956 and the accused was found having committed offences punishable u/s 368, IPC and Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956. Accordingly, a charge-sheet was submitted against the accused and her co-accused Shiv Chand Negi. Co-accused Shiv Negi absconded at the stage of committal, therefore, after committal only the accused was tried on a charge under Sections 365 and 368 read with Section 34, IPC, Section 109 read with Section 376, IPC and Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956.
3. To prove the charge against the accused, prosecution examined as many as 18 witnesses. The accused was examined u/s 313, Cr.P.C, wherein she admitted her arrest by the police but denied the correctness of the prosecution case and claimed to be innocent and having been falsely implicated in the case. The accused, however, did not lead any defence.
4. On consideration of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Hence, this appeal.
5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the Respondent-State and have also gone through the records.
6. It was contended by the learned Counsel for the accused that there is no cogent, reliable and confidence inspiring evidence on record to prove the charge against the accused and in fact the conviction is based on ''no evidence'', therefore, the impugned conviction and sentence cannot be sustained.
7. On the other hand, the learned Deputy Advocate General, while supporting the reasoning and the conclusions of the trial Court, as given in the impugned judgment, contended that the charge against the accused is fully proved and the impugned conviction and sentence do not call for any interference.
8. It may be pointed out at the very outset that conviction and sentence of the accused under Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (hereafter referred to as ''the Act'') cannot be sustained and are liable to be set aside for the reason that investigation in these offences has not been conducted by the officer authorised and competent to investigate such offences.
9. Section 13 of the Act reads as under:� .
13. Special police officer and advisory body.�(1) There shall be for such area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.
(2) The special police officer shall not be below the rank of an Inspector of Police.
(2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:
Provided that no such power shall be conferred on�
(a) a retired police officer unless such officer at the time of his retirement, was holding a post not below the rank of an Inspector;
(b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer;
(3) For the efficient discharge of his functions in relation to offences under this Act�
(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.
(4) The Central Government may for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.
10. It is evident on a bare reading of the above provisions that the Act provides for investigation of the offences thereunder by special police officer(s) appointed by the Central Government or the State Government or invested with the powers of a special police officer by the concerned District Magistrate and, thus, makes special provisions for investigation of the offences under the Act.
11. In the case in hand, investigation has admittedly been carried out by A.S.I. Puran Chand (PW-18) who neither held the rank of an Inspector nor he is appointed or invested with the powers of a special police officer u/s 13 of the Act nor he is shown to be assisting a special police officer in conducting the investigation. Thus, the investigation into the offences under the Act by PW-18 is violative of the provisions of Section 13 supra.
12. It was contended by the learned Deputy Advocate General that in the matter of investigation by an officer other than those contemplated by Section 13 the conviction will not be bad unless prejudice is shown to have been caused to the accused. To support his submission, he has relied on
13. In Mainabai''s case (supra), the Bombay High Court held as under:�
There is nothing in this Act which makes Section 156(2) and Sections 529 and 537 of the Code inapplicable. This being so, we must hold that illegal or improper investigation and arrest does not in any manner affect the jurisdiction of the Magistrate to take cognizance of the offence. This aspect of the case was not presented before their
14. A contrary view, however, has been taken by the Allahabad High Court in Gita and Ors. v. State of Uttar Pradesh and Anr. 1966 (2) Cri.L.J. 161, wherein it was held as under:�
18. I also do not agree with the contention of Sri Kamal Narain Singh that even if Sri Bhupendra Singh was not competent to take action against the Petitioners the charge-sheet submitted by him could not be quashed and the proceedings pending before the City Magistrate, Allahabad are not vitiated."
15. In
14. The Act creates new offences provides for the forum before which they would be tried and the orders be passed on conviction of the offenders. Necessary provisions of the Code of Criminal Procedure have been adopted fully or with modifications. The Act provides machinery to deal with the offences created and its necessary implication must be that new machinery is to deal with those offences in accordance with the provisions of the special Act and, when there is no specific provision in such Act, in accordance with the general procedure and that no other machinery is to deal with those offences. It does not appear reasonable that the investigation of offences would have been left unprovided and was to be done by the regular police, in accordance with the regular procedure laid down under the Code."
It was further held:�
22. If the power of the special police officer to deal with the offences under the Act, and therefore to investigate into the offences, be not held exclusive, there can be then two investigations carried on by two different agencies, one by the special police officer and the other by the ordinary police. It is easy to imagine the difficulties which such duplication of proceedings can lead to. There is nothing in the Act to co-ordinate the activities of the regular police with respect to cognizable offences under the Act and those of the special police officer.
23. The special police officer is a police officer and is always of the rank higher than a Sub-Inspector and therefore, in view of Section 551 of the Code, can exercise the same powers throughout the local area to which he is appointed as may be exercised by the officer in charge of a police station within the limits of his station.
24. We are therefore of the opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences. The result is that this appeal by the Delhi Administration fails and is hereby dismissed.
16. In view of the above position in law, as laid by the Apex Court the conviction of and sentence awarded to the accused under Sections 5 and 6 of the Act is invalid and cannot be sustained.
17. The accused has been convicted u/s 376 with the aid of Section 109 IPC. To sustain a conviction with the aid of Section 109 IPC it has to be proved that the accused had instigated the commission of the offence or had communicated with one or more other persons in a conspiracy to commit such offence and pursuant to that conspiracy some act or illegal omission had taken place or he had intentionally added the commission of an offence by an act or illegal omission. In the case in hand, the substance of the head of charge u/s 109 read with Section 376 IPC is that the accused abetted the'' commission of the offence u/s 376 in furtherance of common intention with co-accused Shiv Chand and abetted the prosecutrix to commit illicit intercourse against her will and consent. The head of charge, as framed, apparently is partially absurd because in the facts and circumstances of the case or in law "to abet the prosecutrix to commit illicit sexual intercourse against her will and consent" will not amount to abetting the offence punishable u/s 376 IPC. The abetment must be of the accused and not of the victim. In any case there is not even an iota of evidence that the accused in any manner whatsoever by any act or omission or her part abetted the co-accused to commit rape on the prosecutrix. There is stray statement of the prosecutrix that co-accused Shiv Chand committed rape on her at Bombay. However, before the alleged commission of the rape by co-accused Shiv Chand he is not shown to have ever met the accused at any point of time. What emerges from the evidence in this regard even if believed to be true is that co-accused Shiv Chand enticed the prosecutrix, took her to Bombay, committed rape on her and then handed her over to one Maya. Said Maya handed over the prosecutrix to one Kalpana and Kalpana further brought her to the Kotha of the accused at Bombay. There is not even an iota of evidence that the accused had any connection or concern with co-accused Shiv Chand or he was acting on her behalf or on her asking. Thus, the conviction of the accused u/s 109 read with Section 376 IPC is illegal and liable to be set aside.
18. The accused has been convicted u/s 365 with the aid of Section 34 IPC. The dominant feature of Section 34 IPC is the element of participation in actions and common intention which implies acting in concert, thus, it requires a pre-arranged plan. Before a person can be vicariously convicted u/s 34 for the criminal act of another, the act must have been done in furtherance of the common intention of the accused persons, therefore, it has to be established that there had been a prior meeting of minds. There must be general intention shared by all persons concerned in the commission of the offence. It follows that common intention is an intention to commit a crime actually committed and everyone of the accused should have participated in that intention. There will be no liability by reason of Section 34 IPC when there is no common intention to commit a particular offence which was actually committed. There can hardly be any direct evidence to prove intention of a person, therefore, intention has to be inferred from his act or conduct or other relevant circumstances of the case.
19. In the case in hand, as already stated hereinabove, there is not even an iota of evidence to prove that the alleged enticing of prosecutrix by co-accused Shiv Chand was in furtherance of the common intention of the accused and co-accused Shiv Chand. There is no evidence that they have ever met or planned the alleged abduction of the prosecutrix either by discussing it face to face or by way of communications addressed to each other. What cuts at the roots of the alleged common intention between the accused and the co-accused apart from the above is that even after co-accused Shiv Chand had taken the prosecutrix to Bombay he is neither shown nor alleged to have ever met the accused before or after having committed the alleged offence of abducting the prosecutrix and raping her at Bombay. He handed her over to one Maya. Said Maya is not shown to be an agent of the accused or acting for and on behalf of the accused. Thus, if at all there was a common intention of abducting the prosecutrix, on the basis of the statement of the prosecutrix herself, it is attributable to co-accused Shiv Chand and Maya and cannot be attributed to the accused who was the third person to receive the prosecutrix in her Kotha from one Kalpana to whom the prosecutrix was handed over by Maya. Thus, in the absence of any cogent and reliable evidence on record even by an inferential process it cannot be said that the prosecutrix was abducted by co-accused Shiv Chand in furtherance of common intention shared by him and the accused. Therefore, even the conviction and sentence of the accused u/s 365 read with Section 34 IPC is unsustainable.
20. The accused has further been convicted u/s 368 read with Section 34 IPC. The head of charge on this count, as framed by the trial Court, is that the accused and her co-accused Shiv Chand in furtherance of their common intention concealed and confined the prosecutrix who was kidnapped and abducted in furtherance of their common intention in Kotha No. 101, Street No. 12, Kamathipura, Police Station, Nagpara, Bombay with the intention to force her to indulge in illicit sexual intercourse.
21. For the reasons stated hereinabove, the accused could not be convicted under this head of charge with the aid of Section 34 IPC because there is no evidence that while she confined the prosecutrix in the Kotha she shared any common intention with co-accused Shiv Chand. It seems to be a case of framing of charge without due application to the material on record because according to the prosecution case the accused knowing it that the prosecutrix was an abudcted woman kept her concealed/confined in the Kotha to force her to indulge in illicit sexual intercourse. It is not the case of the prosecution at all that the accused had any common intention with co-accused Shiv Chand in wrongfully concealing or confining the prosecutrix. However, all the essential constituents of an offence punishable u/s 368, IPC, are contained in the head of charge i.e. that the prosecutrix was kidnapped/abducted woman and so knowing the accused concealed and confined her in the Kotha. Furthermore, the accused who had received the copies of the charge-sheet including the supporting material thus was fully aware that one of the allegations against her was that knowing that the prosecutrix was abducted from District Solan, confined her in the Kotha. Therefore, if these allegations are proved by the prosecution on record and no prejudice thereby is shown to have been caused to the accused, the mere absurdity in framing the charge as pointed out hereinabove, will not invalidate the conviction of the accused for the offence u/s 368, IPC.
22. Section 464 of the Code of Criminal Procedure clearly provides that mere error, omission or irregularity in the charge will not invalidate the findings, sentence or order of a Court of competent jurisdiction unless it is shown that such error, omission or irregularity has caused prejudice to the convicted person. Even vagueness in the charge will not render the trial illegal in the absence of prejudice to the accused. Once a charge is understood by the accused and the accused had not complained at any stage of the trial about his not having understood, as to what for he was tried, the findings, sentence or order will not be rendered illegal. It is only in a case where the charge framed was such which created confusion and be wilderness in the mind of the accused to understand it correctly that prejudice can be said to have been caused to the accused in defending him and findings, sentence or order on such charge will be invalid.
23. In
Indeed, the particulars and details were all on the record before the charges were framed and A1 could not have been misled in any way. The fact that he had no difficulty in knowing what case he had to meet is fully proved by the fact that no grievance was made by him or his Advocate on this score before the Special Tribunal. In our judgment the High Court was clearly right in holding that the irregularity complained of did not cause any real prejudice to the Appellant and did not vitiate the trial."
24. In
6. Before adverting to the submission with regard to the question of sentence we would like to point out that there is misjoinder of charges on account of a joint trial of these two Appellants with Ravi Shankar. As rightly pointed out by Mr. Tewatia, no objection to the joint trial has been raised by these two Appellants either at the trial stage or at the appellate stage or even before this Court, nor the Appellants had shown any prejudice having been caused to them by such a trial. However, as contemplated u/s 464 Cr. P.C. in absence of proof that failure of justice had occasioned by the joint trial, the finding and the sentence recorded by the competent Court cannot said to be invalid.
25. In
26. In the case in hand, as already stated hereinabove, the case of the prosecution as per the charge-sheet submitted is that the accused knowing that the prosecutrix was an abducted woman, confined her in the Kotha. These essential ingredients of an offence punishable u/s 368, IPC, are mentioned in the relevant head of the charge framed against her on the basis of the allegations of confinement of the prosecutrix by her. There could not be any confusion in the mind of the accused regarding the allegations against her, constituting an offence u/s 368, IPC, because she had already been supplied the copies of the charge-sheet containing the allegations constituting the said offence. At the trial she or her counsel had not objected of any confusion or their having been misled by the charge as framed. But for certain superfluous contents the head of charge contained all the material particulars constituting the offence. Therefore, there being no prejudice to the accused merely because of the absurdity in the head of the charge, and the conviction of the accused u/s 368, IPC, will not be rendered invalid if otherwise it is proved that she has committed an offence u/s 368, IPC.
27. According to the prosecution, the prosecutrix was recovered from the Kotha at Bombay which was managed by the accused and where she was running a brothel. The fact that at the relevant time prosecutrix was in Bombay has not been disputed in the cross-examination of any material witness. On the contrary, the suggestion put in the cross-examination of the material witnesses including the prosecutrix is that the prosecutrix had gone to Bombay voluntarily. These suggestions have been denied by the witnesses. The prosecution case that on search of Kotha No. 101 managed and used as brothel by the accused finds full support from the statements of the prosecution witnesses in this regard. HC Dilbagh Singh (PW-3) has stated that the police party recovered the prosecutrix and her minor daughter from Kotha No. 101 and she was identified by Parshotam brother of the prosecutrix. Said Parshotam (PW-12) has stated that he accompanied the police officials to Bombay where they went to Kotha No. 101, Gali No. 12. The Kotha was run by the accused and his sister, the prosecutrix, was recovered from the Kotha alongwith her daughter and he identified her regarding which Memo. Ext. PW 3/A was prepared and her person was handed over to him by the police at Jhakri vide Memo. Ext. PW 1/A. This version is corroborated by the prosecutrix (PW-13) about her recovery from the Kotha. Sunil Vasudev (PW-15), who was declared hostile, also admits in his cross-examination that on search of the Kotha of the accused one girl was recovered who was brought to Himachal Pradesh by the H.P. Police officials though he could not identify the girl so recovered. The prosecution version about the recovery of the prosecutrix from the said Kotha by the police is further supported by ASI Puran Chand (PW-18). It may be pointed out here that it has not been suggested to any of these witnesses that the prosecutrix was not recovered by the police from the Kotha.
28. It is stated by the prosecutrix that she could not state about the person who used to reside in the house adjoining the Kotha because she was not allowed to go outside the Kotha. She has further stated that she could not even state about the storeys of the building in which she was kept because she was not allowed to leave the Kotha. She has further stated that she was taken outside the Kotha room only once and she did not see the entire building because she was escorted by other women. There are certain suggestions in the cross-examination of the witnesses that the Kotha was used as a dancing place for entertainment purposes only but the suggestions have been denied by the witnesses. It is, however, not suggested in the cross-examination of the prosecutrix that she was not confined in the Kotha or there were no restraints on her movement and she was free to go*anywhere she liked. Thus, the statement of the prosecutrix that she was not permitted to move out of the Kotha and when once she was taken out she was escorted by other women remained unchallenged. In view of this evidence it is established that the prosecutrix was confined in Kotha No. 101.
29. At the time of the search, the accused was arrested from the said Kotha. Neither any contrary suggestion has been put to the material witnesses nor the accused in her statement u/s 313, Code of Criminal Procedure has disputed her arrest from the Kotha nor she has claimed in her statement that she had nothing to do with the Kotha. The trend of the cross examination is that the Kotha was used as a dancing place for entertainment for which the licences are issued, however, no such licence has been produced. Thus, it is also established that the accused was in control and management of the said Kotha and thus the prosecutrix was confined in the Kotha as alleged by the prosecutrix.
30. Now the question arises whether the accused was aware that the prosecutrix had been abducted by co-accused Shiv Chand and she confined the prosecutrix having this knowledge. There is no evidence showing complicity or acquaintance between co-accused and the accused but the recovery of the prosecutrix from the confinement of the accused by itself is indicative of the fact that the prosecutrix was not a voluntary lodger in her Kotha.
31. For practical and legal purposes "knowledge" means the state of mind entertained by a person with regard to the existing facts which he has himself observed or the existence of which has been communicated to him by persons whose veracity he has no reason to doubt. The accused may or may not know the actual abductor by name because in cases of kidnapping done by a gang it may not be possible to pinpoint the abductor but the accused must know that person whom he is wrongfully confining or concealing was kidnapped or abducted. This can be a matter of proof or presumption being a mental state and it can be proved by the evidence of the kidnapped person or may be inferred from the facts evidencing the kidnapping/abduction.
32. It is indisputably established that the prosecutrix remained in the Kotha for considerable time. If the accused had no knowledge that the prosecutrix had been abducted there was no reason for her to confine the prosecutrix as stated hereinabove. In the facts and circumstances, it cannot be inferred that it was because of mercy and with a view to protect the prosecutrix, that the accused had given shelter to her in the Kotha. It is improbable to conceive that the accused never came to know that the prosecutrix belonged to Himachal Pradesh and the accused never made inquiries from Maya or Kalpana with whom the prosecutrix was kept for some time as to how the prosecutrix was procured. From all these circumstances it can be legitimately inferred that the accused knew that the prosecutrix had been abudcted from Himachal Pradesh and had been handed over to Maya who handed her over to Kalpana who in turn handed over her to the accused and it was the fear of divulging the commission of offences against her by the-prosecutrix and the treatment meted out to her in the Kotha which led to her confinement by the accused.
33. The prosecutrix has stated that for one month she was kept by accused Lalita Tamang in the Kotha without any work and then forced her to commit ''galat kaam''. Men used to visit the Kotha for ''galat kaam'' and the accused used to take Rs. 210 for ''galat kaam'' for a single time and in case the duration was of one hour she used to charge Rs. 300. On refusal of the prosecutrix to indulge in sexual intercourse (galat kaam) with the males who visited the Kotha she was beaten up by the accused. She has further stated that there were about 12 other girls in the Kotha indulging in the flesh trade. In this regard no contrary suggestion has been put to the prosecutrix except that the Kotha was not owned by the accused. However, it has already been held hereinabove that the Kotha in question was under the control and management of the accused. The statement of the prosecutrix that the girls detained in the Kotha were forced into flesh trade by the accused is fully corroborated by Shanta Devi (PW-7) who had suffered the ordeal of being forced into flesh trade. The purpose of confinement of the prosecutrix, thus, evidently was to force/ compel her to commit sexual intercourse without her consent and against her will with the visitors to the Kotha for which the accused would charge money from the visitOrs.
34. In view of the above, all the essential ingredients of an offence punishable u/s 368, IPC, are made out though this offence is not proved to have been committed in furtherance of the common intention of the accused and co-accused Shiv Chand. The accused, therefore, cannot escape punishment for the commission of an offence punishable u/s 368, IPC.
35. In view of the above discussion, the accused is liable to be acquitted of the other heads of charge but liable to be convicted and sentenced for the offence punishable u/s 368, IPC.
36. As a result, this appeal is partly allowed and the impugned conviction and sentence as imposed by the trial Court are set aside but the accused is convicted u/s 368, IPC and is sentenced to rigorous imprisonment for 7 years and fine of Rs. 5,000 and in default of payment of fine to further rigorous imprisonment for one year.
