KANCHAN CHAKRABORTY,J. - (1.) THE challenge in this appeal is to the judgment dated 26.05.2010 passed by the learned Additional District & Sessions Judge, Fast Track Court No. 9, Bichar Bhawan, Calcutta in Sessions Trial No. 1 (1) of 2010 (corresponding to Sessions Case No. 117 of 2009) thereby convicting the appellant for commission of offences punishable under Sections 372/373/34 of the Indian Penal Code and sentencing her to undergo rigorous imprisonment for seven years for both the offences under Sections 372 and 373 of the Indian Penal Code and to pay fine.
(2.) THE factual aspects of the prosecution case, on the basis of which the trial commenced in the learned Trial Court, in short, is stated below: On 29.08.2009, Dilip Kumar Ghosal, S.I., I.T. Section of Detective Department, submitted a report before the Deputy Commissioner of Police, Detective Department, Lalbazar, Kolkata stating therein that on the self same date at about 11.25 hours, a woman called up at this office of I.T. Section, Detective Department, Lalbazar and identified herself as sex worker of Sonagachi area and informed that a minor girl was brought at 5, Imam Box Lane and detained in the room of Chutki Saha, on the first floor since 26.08.2009 for the purpose of prostitution. After receiving that information, S.I. Dilip Kumar Goswami, I.T. Section, Detective Department, left the office with permission of his superior towards the place of occurrence along with Additional O/C., I.T. Section, P.R. Sikdar. S.I. of Police and two lady constables. After reaching the place of occurrence, Sri Goswami found two lady NGO members were present there. Thereafter, they all proceeded towards the place of occurrence and found one girl, namely Sweety Khan alias Soumi Nag (16 years) appearing to be minor, was in the room of Chutki. In course of examination, with the help of N.G.O. members, the girl narrated the incident and it appeared to Dilip Kumar Goswami that a racket was involved and some unknown persons and the landlord were also connected with the matter. He recorded the statement of the victim girl, Sweety Khan alias Soumi Nag. On the basis of the said information, the Deputy Commissioner of Police, Detective Department, endorsed the report to S.I., P.K. Sikdar, for starting a case and, accordingly, the case was registered as Burtalla P.S. Case No. 330 of 2009 dated 29.08.2009 under Sections 372/373/34 of the Indian Penal Code against Chutki Saha, landlord of 5, Imam Box Lane, Kolkata 700 006 and other unknown accused persons. The case was investigated into. In course of investigation, the victim girl made statement under Section 164 of the Code of Criminal Procedure and on the basis of her statement, the appellant, Pinky Das alias Rehana Khatoon alias Rina Mitra was arrested. Chutki Saha and Pinky Das alias Rehana Khatoon alias Rina Mitra were arrayed to face charges under Sections 372/373/34 of the Indian Penal Code of which they pleaded not guilty and, accordingly, the trial commenced. Prosecution examined as many as 11 witnesses in course of trial. The Rescue Memo, statement of the victim girl under Section 164 of the Code of Criminal Procedure, seizure list and signatures thereon, labels and signatures thereon, one bank passbook, medical report, draft sketch map of the place of occurrence, written complaint, D.D. Entry and formal First Information Report were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined from the side of the defence. Upon consideration of the evidence on record, oral and documentary, the learned Judge found that the prosecution brought home charge against Chutki Saha and Pinky Das alias Rehana Khatoon alias Rina Mitra under Sections 372/373/34 of the Indian Penal Code and recorded their conviction and sentence, which is impugned in this appeal, mainly, on the following grounds: (a) that the learned Court was oblivious of the fact that there is no mention of the name of the appellant Pinky Das alias Rehana Khatoon alias Rina Mitra in the First Information Report; (b) that the learned Court did not also consider that the father of the victim did not mention the name of the appellant Pinky Das alias Rehana Khatoon alias Rina Mitra at any point of time; (c) that the learned Court also failed to consider that the mother of the victim, who would have been one of the best witnesses in the case was tendered by the prosecution only and her examination was withheld; (d) that the learned Court also failed to consider that the P.W. 9, Dilip Kumar Ghosal, categorically stated in his examination-in-chief that the minor girl who was rescued, failed to recall the name of the appellant when interrogated immediately after her rescue; (e) that the learned Trial Court did not take into consideration that the P.W. 11, Prakash Ranjan Sikdar, the Investigating Officer of the case, stated categorically that neither G.D. Entry, nor the statement given by the victim girl disclosed the name of Pinky Das alias Rehana Khatoon alias Rina Mitra; (f) that the learned Court failed to consider also the statement of the P.W. 4, Smita Singh, a social worker, who accompanied the P.W. 9, S.I. Dilip Kumar Goswami to the spot at the time of rescue of the victim girl, that she saw the victim girl at Liluah Home 2/3 weeks ago prior to the date of incident; (g) that the learned Court failed to appreciate the evidence on record in its proper and true perspective as far as this appellant, Pinky Das alias Rehana Khatoon alias Rina Mitra is concerned and that the learned Court erred in recording conviction against the appellant on the basis of uncorroborated testimony of the victim girl who was having a very bad track record. Mr. Chatterjee, learned advocate for the appellant contended that the learned Court believed the sole testimony of the victim and recorded the conviction without seeking corroboration of the same from the testimonies of other witnesses. He contended that conviction can well be recorded on the sole testimony of the victim of a case of like nature if, and only if, the testimony is found consistent, credible and trustworthy. It is not a rule of law that in all the cases Court has to accept sole testimony of the victim regardless to the facts and circumstances, antecedents of the victim and inconsistency in her statement. He had stated further that the name of the appellant was disclosed for the first time after recording of the statement of the victim girl under Section 164 of the Code of Criminal Procedure. Prior to that the victim girl was rescued on 29.08.2009. According to the prosecution case, she was in the primness at 5, Imam Box Lane since 26.08.2009. The statement under Section 164 of the Code of Criminal Procedure was recorded on 04.09.2009. In the meantime, she was interrogated, but she did not disclose the name of the appellant, Pinky at any point of time to anyone. There is no extra-judicial confession or confessional statements of two accused wherefrom the name of the appellant can be traced out. The statement under Section 164 of the Code of Criminal Procedure of the victim was marked as exhibit-2. It says that Pinky, i.e., the appellant was dealing in sari business and became acquainted with the victim in that connection. Pinky told her mother that she wants to take the victim so that she can also do business in sari. As the landlord of the house was not willing that victim reside in that house, mother of the victim permitted Pinky to take the victim with her. Pinky took the victim in her house at Sreerampur. Thereafter, she had taken her to different hotels at Digha and Konnagar. She was compelled to do nasty things. She confined her in the room and did not make any payment. Pinky used to scold her and, thereafter, took her to one Chutki at Sonagachi. Chutki compelled the victim to do nasty things by using force and earned Rs.2200/-. Thereafter, the police officials rescued her. She did not want to go Home, as the Home did not provide good food.
(3.) MR. Sur, learned advocate for the prosecution, contended that it was not the prosecution case that the convict, Sweety, reported her father and mother that the appellant Pinky Das alias Rehana Khatoon alias Rina Mitra had taken her to the hotels at Digha and other places and compelled her to participate in sexual intercourse. Naturally, undisclosure of the name of Pinky Das alias Rehana Khatoon alias Rina Mitra by the father of the victim, does not discard the evidence of the victim. It is true, he contended, that mother would have been a very valuable witness in this case, but, non-examination of the mother of the victim does not necessarily demolish the prosecution case because statement of the victim corroborated her earlier statement made before the learned Magistrate under Section 164 of the Code of Criminal Procedure (exhibit-2). He contended further that whatever the nature and character of the victim was, the provisions of law envisaged in Sections 372 and 373 of the Indian Penal Code applies to each and every if other essentials are established. When the evidence of the victim makes it clear that she was well acquainted with the appellant, who used to go to her mother for selling sari, therefore, he contended, the learned Court had rightly passed order of conviction against the appellant. It is true that Sweety, the victim, was not having a good track record, rather she left her house on many occasions and rescued thereafter. She was in Homes and sometimes arrested by police also. But, only because of that, it cannot be said that the provisions of Sections 372 and 373 of the Indian Penal Code cannot be attracted to her. The offence under Sections 372 and 373 of the Indian Penal Code are set out below: "372. Selling minor for purpose of prostitution, etc. � Whoever sells, lets to hire, or otherwise disposes 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to find. Explanation I. � When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation II. � For the purpose of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation. 373. Buying minor for purposes of prostitution, etc. � Whoever buys, hires or otherwise obtains possession 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, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation I. � Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. Explanation II. � "Illicit intercourse" has the same meaning as in section 372." ;