B T PANI Vs. STATE

JUDGEMENT

(1.) AS far as the second revision petitioner, Kanthamma, who was the third accused in the court of the learned Third Presidency Magistrate, is concerned, I think that the strictly legal argument should prevail that, on the record, the charge against her under Section 7 (1) of Act 104 of 1956 (the Suppression of Immoral Traffic in Women and Girls Act) has not been established. Section 7 (1) is itself an unusual section, which, unlike other provisions of the statute, makes prostitution per se indictable, and not merely this, it makes it an offence both in respect of the woman or girl who carries on prostitution, and in respect of the person with whom such prostitution is carried on. In the present case, the prosecution has certainly established that any act of prostitution within the premises concerned would amount to the offence under Section 7 (1), because it is within the prohibited distance of a place of public religious worship, the temple in the Srinlvasa-Gandhi Nilayam.

(2.) BUT learned Counsel for the second revision, petitioner, who was A3 at the trial, justifiably urges that this offence has not been established, with regard to her. "prostitution" under the definition in Section 2 (f) of the Act, means "the act of a female offering her body for promiscuous sexual intercourse for her". There was another girl, by name, Sujatha, with whom the act of prostitution was actually carried on by Varadarajan, P. W. 1. She certainly offered herself for prostitution, and she is punishable under Section 7 (1), but her case is not now before me. As regards this revision petitioner, Kanthammal, the evidence is that she was not the girl with whom P. W. 1 carried on any act of prostitution. Further, the record does not show that, either by verbal offer or by gesture, she offered herself for prostitution. She was merely available in the premises, and it was the first revision petitioner who said that P. W. 1 could have either the girl Sujatha, or the present second revision petitioner, for the act of prostitution, within the premises, upon payment of consideration of Rs. 60, It is difficult to resist the moral conviction that the favours of the second revision petitioner were also available for hire, and that she would by no means have been unwilling to make the offer, if P. W. 1 had selected her. But the legal ingredients should be strictly proved, and cannot rest upon a mere presumption or inference of this kind. Hence I allow the revision petition, with regard to the second revision petitioner, and acquit her accordingly.

(3.) AS regards the first revision petitioner, at the first blush I considered that the argument of learned Counsel for the first revision petitioner also was plausible and deserving of every consideration. For the first revision petitioner has been convicted under Section 4 (1) of Act 104 of 1956. To sustain this charge, the prosecution should make out that he lived or was living, on the earnings of the prostitution of a woman or girl. Now, there is some general evidence that these premises were probably being used as a brothel, and that the first revision petitioner, who was related to both the girls, was using the girls as prostitutes for hire, and earning monies by such infamous means. But that evidence is vague and inconclusive. The conviction really rests upon the testimony of P. W. 1 with whom A. 1 had dealings that day. If the evidence of P. W. 1 is to be accepted that he paid Rs. 60 to A. 1, who entered into the contract, and enjoyed the favours of the other girl, who is not before court, then the offence under Section 4 (1) would be established. But the interesting argument is that P. W. 1 is an accomplice, because he himself carried on prostitution within the prohibited premises, and his conduct is within the mischief of Section 7 (1) of the Act. That is indisputably the case here. Hence, as an accomplice, his evidence requires corroboration in material particulars, before it could be accepted and acted upon. But, in my view, such corroboration is forthcoming with reference to the charge against the first revision petitioner. For not merely was the amount of Rs. 60 recovered from the first revision petitioner, who produced it, when the raid by the police officer took place, but the police officer who made the - raid corroborates P. \v. 1 regarding his presence, and his emergence from the room along with the prostitute with whom he was carrying on prostitution in the premises. P. W. 2 is a friend of P. W. 1, and an independent witness. He swears that P. W. 1 did tell the police officer Immediately on emerging from the room, that he had hired the girl on a contract with A. 1, and paid Rs. 60 for the contract. It was after this that A. 1 himself produced Rs. 60 from his own possession. The Inference is irresistible that, even regarding P. W. 1 as an accomplice, his evidence is corroborated in the material particular of the contract entered into between A. 1 and P. W. 1 for hire of the girl and the fact that A. 1 received Rs. 60 from P. W. 1, which amount he produced before the police. No doubt, the notes were not marked, but it is an irresistible inference from the facts that the monies must have been just previously delivered to A. 1 by P. W. 1. The conviction is justified, and must be confirmed.