Manojit Mandal, J.
1. These two appeals are directed against the judgment and order of conviction dated 13.02.2015 and 16.02.2015 passed by the learned Additional District and Sessions Judge, Fast Track, 1st Court, Kontai, Purba Medinipur in Sessions Trial No. 03 (September, 2011) arising out of Sessions Case No. 221 (August, 2011) convicting the appellants under Section 366/366(A)/367/372/34 of the Indian Penal Code and under Sections 3/4/5/6 and 9 of the Immoral Traffic (Prevention) Act and sentencing the appellants Laxmikanta Maity @ Laxmi Maity and Nakul Bera to suffer rigorous imprisonment for ten years and to pay a fine of Rs.20,000/- in default to suffer rigorous imprisonment for a further period of one year for the offences under Sections 366/366(A)/367/372 of the Indian Penal code, and the appellants Chandan Pramanik and Sukdeb Laiya are sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 20,000/- each in default to suffer rigorous imprisonment for a further period of one year for the offences under Sections 366/366(A)/367/372 of the Indian Penal Code; the appellants are also sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.2,000/- each in default to suffer rigorous imprisonment for a further period of one month each for the offence under Section 3 of the I.T.P Act; the appellants Laxmi Maity and Nakul Bera are sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for a further period of one month for the offence under Section 4 of the Immoral Traffic Prevention Act, while the appellants Chandan Pramanik and Sukdeb Laiya are sentenced to suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for a further period of one month each for the offence under Section 4 of the Immoral Traffic Prevention Act; the appellant Laxmikanta Maity and Nakul Bera are sentenced to suffer rigorous imprisonment for ten (10) years and appellants Chandan Pramanick and Sukdev Laiya are sentenced to suffer rigorous imprisonment for seven(7) years and to pay fine of Rs.2000/- each i.e. to suffer rigorous imprisonment for two (2) months each under section 5 of ITP Act; the appellants Laxmi Maity and Nakul Bera are also sentenced to suffer rigorous imprisonment for a further period of six months for the offence under Section 6 of the Immoral Traffic Prevention Act, while the appellants Chandan Pramanik and Sukdeb Laiya are sentenced to suffer rigorous imprisonment for seven years each and to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for the offence under Section 6 of the Immoral Traffic Prevention Act; the appellants Laxmi Maity and Nakul Bera are further sentenced to suffer r
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igorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment of a further period of one month for the offence under Section 9 of the Immoral Traffic Prevention Act, while the appellants Chandan Pramanik and Sukdeb Laiya sentenced to suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment for a further period of one month for the offence under Section 9 of the Immoral Traffic Prevention Act. All the sentences were ordered to run concurrently.
2. In order to appreciate the rival contentions advanced by the parties and issues involved, it is necessary to set out the facts of the case which give rise to the present criminal appeal:-
PW 1 Subhas Sengupta, Inspector of Police, P.O.W.C. Cell, CID, West Bengal received a secret information to the effect that some girls were procured from different areas and were trafficked to Digha by a Maruti Van bearing no. WB 30B 6106 of commercial sexual exploitation trade by some miscreants. The said matter was informed to the superiors and as per order of superiors a team of CID, West Bengal, consisting of PW 1, de facto complainant along with Inspector N.K. Sarkar (PW 17), S.I. Swapna Ghosh (PW 4), S.I. Aparna Sarkar (PW 10), LWCT Soma Chakraborty (PW 5) and WCT Subir Dey with due assistance of N.G.O. Sanlaap's namely Smt. Tapati Bhowmick (PW 2), one independent witness Prasenjit Das (PW 7) and PW 14, Smita Singh of International Justice Mission an N.G.O. left for conducting raid at Digha on 20.04.2009 in the morning after due contract with the source. As per source information PW 1, PW 4, PW 5, PW 10, PW 17 and force of Ramnagar Police Station detained the vehicle bearing no. WB 30B-6106 (White Maruti) at Ramnagar Mahakal Canal Bridge near Ramnagar Police Station and rescued the victim girls (PW 6, PW 8 and PW 11 and two others).
It is further alleged that during interrogation of the victim girls (PW 6, PW 8 and PW 11 and others) by PW 4, PW 5, PW 2, PW 10 and PW 14, it was revealed that said victim girls were produced from different areas on the pretext of good job and confined at hotel 'Ma Kali' at Uttar Kasimnagar, NH 41 Road, by the male members of Maruti car bearing no. WB 30B-6106 and others. It is also alleged that male members and others trafficked the victim girls to Digha for selling them for commercial sexual exploitation, for their monetary gain. PW 1, accordingly, arrested the appellants, namely, Bapan Pramanik, Chandan Pramanik @ Bapi and Sukdeb Laiya. During interrogation the said three appellants also confessed that they have procured the victim girls (PW 6, PW 8, PW 11 and others) for the purpose of commercial sexual exploitation and they were being taken to Digha for the purpose of commercial sexual exploitation trade for financial gain in connivance with the appellants, namely, Bapan Pramanik, Chandan Pramanik and Sukdeb Laiya and others. The raid was outcome of a secret source of information regarding commercial sexual exploitation for monetary gain by the said appellants and others associated with them since long. It is further alleged that after receiving the said victim girls, the victim girls were segregated from the appellants with the help of PW 4, PW 10, PW 5 and PW 2, CID lady officers and other officers and other women representing N.G.Os. Seizure was made in respect of mobile phone (Mat Exbt. 1), vehicle (Exbt. 1) by which the victim girls were being transported. It is further alleged that victim girls were handed over some condoms and those were duly seized by preparing seizure list (Exbt. 2) by them.
3. After that the informant (PW 1) lodged a First Information Report (for short the "F.I.R.") (Exhibit 1) before the Officer-in-charge, Ramnagar Police Station, Purba Medinipur, who registered the case for commission of offence punishable under Sections 365/366/366(A)/367/372 read with Section 34 of the Indian Penal Code (for short "IPC") and under Sections 3/4/5/6 and 9 of the Immoral Traffic (Prevention) Act (for short "ITPA") against the appellants and another.
4. The investigation of the case was entrusted to the Inspector of Police, P.O.W.C., CID, West Bengal, (PW 17). PW 17 examined the victim girls with the help of and in presence of lady officers and members of NGO's present thereat and recorded their statements under Section 161 of Cr P.C. Hecollected the ossification test reports of the victim girls from Kontai Sub- Divisional Hospital (Exbt. 4/1, Exbt. 5, Exbt. 6, Exbt. 7 and Exbt. 8). PW 17 completed the investigation and, thereafter, submitted charge sheet against the appellants and other.
5. Charge under Sections 365/366/366(A)/367/372 read with Section 34 of the IPC and Sections 3/4/5/6 and 9 of the ITP read with Section 34 of the IPC was framed against the appellants and another.
6. The present appellants and another denied the charge and claimed to be tried.
7. Prosecution examined 17 prosecution witnesses and marked several documents as exhibits. In conclusion of trial, the learned trial Judge by judgment and order dated 13.02.2015 and 16.02.2015 convicted and sentenced the appellant as aforesaid.
8. The learned Counsel appearing for the appellants submitted that learned Court below committed an error of fact and also of law in convicting the appellants. It was submitted that the prosecution has measurably failed to produce a single independent witness from the place of occurrence to justify their case. It was further submitted that PW 6, PW 8 and PW 11 were involved in the profession at their own will and their parents used to visit them regularly at the premises of the appellants, namely, Laxmikanta Maity @ Laxmi Maity and Nakul Bera. It was further submitted that victims were major at the time of the alleged incident. So, the learned lawyer for the appellants erred that the prosecution case cannot be accepted as true.
9. Having heard the learned Counsels appearing for the parties, I now proceed to analyze the entire evidence on record so as to ascertain whether the conviction and sentence passed against the appellants would and would be upheld.
10. PW 1 Subhas Sengupta is the informant in this case. It is his first evidence that on 20.4.2009 he received a source information to the effect that some miscreants have somehow managed to collect some girls/women and procured them for sexual offence and were proceeding towards Digha and he reported the same to his superiors. Getting instruction from his superiors, he proceeded towards Digha. Prior to departure, they had informed N.G.O.s, namely, Sanlaap and IJM. A raiding team was formed consisting of himself along with PW 2, PW 4, PW 5, PW 7, PW 10 and PW
14. With the help of police Ramnagar Police Station, their team reached the place at Mahakal Bridge at Kontai Digha Road. As per their source of information, they found one Maruti Van being No. WB 30B 6106 was proceeding towards Digha and they intercepted the vehicle and found the victim girls (PW 6, PW 8, PW 11 and two others) and the appellants, namely, Bapan Pramanik, Chandan Pramanik and Sukhdeb Laiya. With the help of PW 2, PW 4, PW 5 and PW 10, they separated the said victims from the said three appellants and they were interrogated. The victim girls disclosed to them that they were forced to submit themselves for sexual exploitation at "Ma Kali" Hotel at Mahisadal and appellants gave false promise for better job etc. It is his further evidence that he seized vehicle and some condoms ( Mat. Exbt. I) which were supplied by the said appellants to the victim girls. They interrogated the appellants and arrested them there. This witness had identified three accused persons successfully. This witness was cross-examined at length by the defence. On scrutiny of the evidence of PW 1, I find that he had taken prompt action immediately after receiving the secret information and he has fully corroborated his earlier statement made in the ejahar (Exbt. 3).
11. PW 2 Tapati Bhowmik was an employee of the N.G.O, namely, 'Sanlaap'. She was in the raiding party. She deposed that on April 20, 2009, she participated in one rescue operation within P.S. Ramnagar, Purba Medinipur and it was organized by CID, Kolkata, West Bengal. They took their position near Mahakal Bridge within the Police Station. They were accompanied by police officials, CID people and police personnel from Ramnagar Police Station. In between 12:00 to 12:15 p.m. the police intercepted one white colour Maruti Van having five (5) girls and three (3) male members including driving. They became sure that these girls were minor and being trafficked towards Digha. They took the girls from that vehicle to the vehicle of CID people and 3 male persons were separated from them. On being asked they came to know that these girls were collected from different parts of West Bengal and particularly stayed at 'Ma Kali' Hotel and 'Saheb' Hotel at Haldia and they also disclosed that they were being used for sexual exploitation and on that day they were being used for sexual exploitation and on that day they were being taken to Digha for the same cause. They learnt from the minor girls that they were collected and were being kept at 'Ma Kali' hotel on the promise to employ them in different sectors. Their names were Papiya, Sahanara, Aparna and Choton. This witness, however, deposed that some condoms were recovered from the girls while police recovered from some mobile phones etc. from the accused persons. This witness has identified the appellant Chandan Pramanick and Sukhdeb Laiya who were present in the said 'Ma Kali' hotel at the time of interception. This witness was also cross- examined by the defence at length. On scrutiny of her evidence, I find nothing to shake the credence of her evidence.
12. PW 6 is one victim girl in this case who was aged about 20 years at the time of giving of her evidence and she deposed that 5 years ago she was married to one Samir Mandal but the marriage tie did not survive. Her husband used to torture her and drove her out from his house and she took shelter in his mother's house at Kestopur, Baguihati. During her stay with her mother's house she fell in love with one Babu who took her to marry. The said Babu took her to "Ma Kali" Hotel at Haldia and sold her to appellant Nakul Bera, the owner of that hotel. From that night she stayed at 'Saheb' Hotel under lock and key in a room and she was forced to have wine/alcohol and also forced her to sexual intercourse with Nakul Bera and many other persons against her will. There were other girls too. They were also forcibly involved in similar activities of sexual work. Being incumbent with the circumstances and under fear of being tortured, she along with other girls compelled to indulge in sexual acts with different customers at the hotel against her will. Sometimes the hotel was raided by the police and they managed to escape and stayed in a two-storied 'kachcha' house, a little away from the hotel. They stayed at the house under the instruction of appellant Nakul Bera. This witness identified the appellant Nakul Bera on dock as the owner of the hotel, namely, 'Saheb'. This witness also identified the appellant Chandan Pramanick by saying that this accused used to manage the day-to-day affairs of the hotel 'Saheb'. This witness also identified the appellant Sukhdeb Laiya on dock as the accused who is associated with the hotel 'Ma Kali' and the appellant Sukhdeb Laiya brought them to Digha on the date of incident. This witness also identified on dock Laxmikanta Maity by saying that Laxmikanta Maity is the owner of the hotel 'Ma Kali' and he took her along with two other girls to his hotel wherein they stayed. She has further deposed that when the raid was conducted by the police, they were also taken to hotel 'Puja' and hotel 'Saheb' was sealed by the police and in hotel 'Puja', they were also forced to indulge in sexual activity and after staying in hotel 'Puja', they were taken to hotel 'Ma Kali' where they were forced to do the same sexual activity under compulsion at hotel. She further deposed on the date of incident, they were booked by the customers of Digha under the active interference of the appellants Nakul Bera and Laxmikanta Maity and they were travelled to Digha on that date. There were 5 girls in the said Maruti Car. The appellants Chandan Pramanick and Sukhdeb Lohia were the escort with them. She further deposed that the names of girls were Marjina, Munmun, Priya and Bipasa. She further deposed that on the way near Ramnagar Bridge they were intercepted and detained there by the police.
13. PW 8 is another victim girl who duly corroborated the statement of PW 6 by saying that she was intercepted and helped by the police on a bridge while going towards Digha from hotel 'Ma Kali' as the five (5) girls were booked by the customers at Digha for sexual work. In that vehicle, there were five (5) girls and three (3) male members including driver. She further deposed that she was trapped by local people be brought her to 'Saheb' hotel and sold her thereat. She further deposed that on the very first day she was detained at hotel 'Saheb' and was forced to consume alcohol and while she was confined in a room, she was raped by the appellant Nakul Bera, the owner of the hotel. She further deposed that various customers used to come to that hotel and used to enjoy sex with them while they were compelled to do that act under the active involvement of the manager and they were compelled to involve in the sexual activity to entertain the customers out of fear of the hotel owners and managers. Hotel 'Saheb' was raided by the police and they were, therefore, took shelter at Hotel 'Ma Kali' under the guidance of the management of the Hotel 'Saheb'. At Hotel 'Ma Kali', they were also compelled to involve in similar activity of sexual work. This witness had identified the appellants Sukhdeb Laiya and Chandan Pramanick. This witness had identified that appellants Sukhdeb Laiya and Chandan Pramanick. This witness also identified that appellant Sukhdeb Laiya as the staff of hotel 'Ma Kali' and Chandan Pramanick as the staff of hotel 'Saheb'. This witness identified the appellant Nakul Bera on dock by saying that he is the owner of the hotel. She also identified the appellant Laxmikanta Maity on dock by saying that Laxmikanta Maity was the owner of the hotel 'Ma Kali.'
14. PW 11 is the another victim girl who has duly corroborated the statements of PW 6 and PW 8 by saying that nearly 3 years ago she was intercepted and apprehended by the police near Ramnagar Bridge under P.S. Ramnagar and she was then accompanied by other four (4) girls and three (3) male members. She further deposed that five (5) girls including herself were taken to Digha from 'Ma Kali' hotel situated at Kapasbaria, Haldia. She further deposed that they were told by hotel owner to move to Digha for sexual work as they were booked by customers at Digha. She further deposed that out of five (5) girls, two (2) of them stayed at hotel 'Ma Kali' and three (3) girls stayed at hotel 'Saheb' at Haldia. At hotel "Ma Kali" she was force to do sexual work at behest of hotel owner. This witness identified the appellant Laxmikanta Maity on dock as the owner of the hotel 'Ma Kali'. This witness also identified the appellants Chandan Pramanick and Sukhdeb Laiya on dock. PW 11 were subjected to extensive cross-examination. On scrutiny of the evidence of the victim girls, I find, nothing to shake credence of their evidence. Considering the evidence of PW 6, PW 8 and PW 11 it is apparent that they have duly corroborated each other.
15. PW 3, Santimay Nandi, is S.I. of police, PW 4 is the lady constable, Swapna Bose, PW 5 is the lady constable, Soma Chakraborty, PW 7 Prosenjit Das is a member of N.G.O. and he is a senior teacher by profession. PW 10 Aparna Sarkar is Inspector of CID, Bhabani Bhavan. PW 3, PW 4, PW 5, PW 7 and PW 10 duly corroborated the case of the prosecution and they were also present with the raiding party.
16. PW 10 Aparna Sarkar was an inspector and being senior lady police officer, examined the victim girls in presence of PW 1 and witnessed when the victim girls were intercepted along with the appellants and she prepared the seizure list.
17. PW 9 is Dortor Bidhan Sarkar who conducted ossification test of PW 6, PW 8 and PW 11 and other two victim girls. This witness proved the ossification test reports (Exbt. 4/1, Exbt. 5, Exbt.6 and Exbt. 8) into evidence.
18. PW 12 is Doctor Nirapad Jana who examined PW 6, PW 8 and PW 11 in connection with Ramnagar P.S. Case No. 45 dated 20.04.2009 and he opined that all the girls had gone through the process of intercourse for several times. He proved three medical legal reports (Exbt. 9, Exbt. 9/1 and Exbt. 9/2) on proof.
19. PW 13 is another Doctor T.K. Ghorai who examined the victim girls and prepared medical legal reports. He proved the said medical legal reports (Exbt. 9/3 and Exbt. 9/4) into evidence. He opined that both the girls have gone through the sexual intercourse for several times.
20. PW 14 is Smita Singh, who was attached to Jatiya Khirshtiya Prachar Samiti which is a non-profitable organization and it was a N.G.O working for the community development in and around West Bengal. This witness also corroborated the statement of PW 2 and PW 7.
21. PW 15 is S.I. Arun Kumar Khan who is the recording officer and registered the present case at Ramnagar P.S. PW 16 is Arpan Chowdhury (Judicial Magistrate) who recorded the statement of the victim girls under Section 164 of the Cr.P.C. PW 17 is the Nani Krishna Sarkar is the Investigating Officer in the present case.
22. From the above evidence of the prosecution witnesses especially from the evidence of PW 6, PW 8 and PW 11 appears that PW 6 and PW 11 were minor and appellants made the victim girls to cohabit with other persons in lieu of money and victims were sent to Digha for prostitution. It is also proved that PW 6, PW 8 and PW11 were legally incapable of giving consent to prostitution because they were minor.
23. The evidence on record established that the appellants, namely, Laxmikanta Maity and Nakul Bera used to run 'Saheb' hotel and 'Ma Kali' hotel and these two hotels were used as brothels and appellants Chandan Pramanik and Sukdeb Laiya were the brothel managers and they were assisting the brothel transaction with the customers in Digha when the police intercepted them and that the appellants knowingly lives wholly or in part on the earnings of the prostitution and the appellants detained the victim girls in the brothel for the purpose of prostitution.
24. From the testimony of the victim girls (PW 6, PW 8 and PW11) that they were taken to different places for the purpose of seducing them to illicit intercourse and it has also been supported by the evidence of PW 1.
25. The essential ingredients of the offence punishable under Section 366 of the IPC is that when a person had forcibly taken away a minor with the intention as specified in that Section, then the offence is clearly made out. In the instant case, the appellants on 20.04.2009 the appellants were taking the victim girls to Digha with the intention of committing illicit intercourse by customers and as such it fall within the four corners of Section 366 of IPC and the ingredients of the offence are clearly present in this case.
26. The Hon'ble Apex Court in a case reported in SCC (Cri) page 840 Para I (Rajendra v. State of Maharashtra) observed that :-
"32.Where the courts had given cogent and convincing reasons for recording their finding that the accused had kidnapped the victim girl with intent to seduce her to illicit intercourse, conviction of accused under Section 366 was not interfered with."
27. From the evidence of PW 1,PW 2, PW 6, PW 8 and PW 11 it is also proved that the appellants forcibly made the victim girls, i.e. PW 6, PW 8 and PW 11 and others to cohabit that the other persons in lieu of money and they also sent to Digha for the purpose of prostitution. From the evidence on record also established that appellant Chandan Pramanik was keeping and managing hotel, namely, 'Saheb' and appellant Sukdeb Laiya was keeping and managing the hotel, namely, 'Ma-Kali'. The evidence on record also established that Laxmikanta Maity was the owner of hotel 'Ma- Kali' and Nakul Bera was the owner of the hotel 'Saheb'. A brothel has been defined in Clause (a) of Section 2 of the ITP Act and including house, room, conveyance or places or portion thereof which is used for the purpose of prostitution for the gain for another person or for the mutual gain or two or more prostitutes. The evidence also established that the appellants were running brothel at he said two hotels. The prosecution also establishes that the PW 6, PW 8 and PW 11 were forced by the appellants to carry on profession of prostitution at the brothel kept by appellants. So, the offences under Section 3 and 5 of the ITP Act are established against the appellants.
28. The first point raised by the learned Advocate for the appellants is that the prosecution has failed to prove that the victim girls were below 18 years of age to bring the offence. The evidence of PW 6 discloses that she is aged about 20 years when her evidence was recorded on 16.03.2012. The incident occurred on 20.04.2009 and the evidence of this witness was recorded on 14.05.2012. Therefore, it is clear that at the time of incident PW 11 was below 16 years of age and she was minor. From the record I also find that the victim girls were medically examined by the doctor. It appears that medical officer opined that victim girl (PW 8) was aged between 14 to 16 years. Exbt. 5, also discloses that victim Priya Nayek was aged between 17 to 18 years. From the record it appears that the said exhibited documents cannot be disbelieved at all. PW 8 and PW 11 were not cross examined on the point of their age. No suggestion was also thrown to the PW 6, PW8 and PWE 11 that they were not minors at the time of the incident rather, the victims were major. The age of the victim girls should be considered from the first day/date when they were brought to the brothel. In this way, the prosecution case that the victim girls were minor remained unasailed and undisputed. So, the submissions of the learned Advocate for the appellants cannot be accepted.
29. Learned Lawyer for the appellants urged that victim girls were involved in the profession at their own will and their parents used to visit them regularly at the premises of the appellant Laxmikanta Maity @ Laxmi Maity. So, the prosecution case cannot be accepted as proof. I fail to accept such contention of the learned Advocate for the appellants as because of the PW 11 had clearly and categorically stated in her evidence that her mother went to hotel 'Ma Kali' for several occasions but the owner of the hotel did not leave him. Moreover, I find that the victim girls are coming from poor and marginal families of remote villages and their poverty and stringency to have basic needs of life may compel their parents. They are given tacit or expressed consent to force these types of minor girls and children to push into the hell of fresh trade. Moreover, there is nothing on record to believe that the assault evidence of the victim girls is not trustworthy. PW 6, PW 8 and PW 11 stated almost in same tune. So, the evidences of these witnesses are trustworthy. Therefore, the submissions as made by the learned Advocate for the appellants are not believable and acceptable.
30. It cannot be disputed that the offence committed by the appellants is a crime against the society especially against the owner by way of kidnapping, procuration of minor girl, selling minor for the purpose of prostitution and sexual assault, hence, the same is on a different pedestal. Such offence should be dealt with iron hands since the impact of such offence is against the society, as a whole, and the same cannot be lost sight. The act of the appellants have been clearly and explicitly proved by the prosecution beyond all reasonable doubt, based on evidence recorded from the victims (PW 6, PW 8 and PW 11).
31. Therefore, taking an overall view of all facts and circumstances of this case and the evidence on record, I find no ground to interfere with the order of conviction and sentence recorded by the learned Trial Court, holding the appellant guilty of the offence under Sections 366/366(A)/367/372 read with Section 34 of the IPC and under Sections 3/4/5/6 and 9 of I.T.P Act.
32. The present appeal, therefore, deserved to be dismissed which I hereby do the order of conviction and sentence recorded against the appellant is, therefore, upheld.
33. I record my appreciation for the able assistance rendered to this court by Mr. Bibaswan Bhattacharya as amicus curiae for disposal of the appeals.
34. The Lower Court Record along with copy of the judgment be sent to the learned Trial Court below at once for information and taking necessary action.
35. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking.
Joymalya Bagchi, J