Guman Mal Lodha, J.
1. Flesh trade' of minor girls, kidnapping prostitution, confinement and concealment of a kidnapped girl are some of the important facts of socio-legal debate in this appeal where, the accused-appellant. Mst. Banno and Mst. Khurshid, who are prostitutes by profession, are also facing notice for enhancement of sentence along with their appeal against their conviction by the trial court.
2. The Sessions Judge, Sawaimadhopur, Camp: Gngapur City, vide judgment dated 25th January, 1978 conviced and sentenced these two lady-appellants as under:
Under Section 366A, IPC--14 years rigourous imprisonment under Section 358, IPC--2-1/2 rigorous imprisonments. Both the sentences were ordered to run concurrently.
3. The episode starts from Hindaun-city, a town of Sawai-Madhopur district of Rajasthan State. Mst. Prem d/o Kirori Nai PW 7 minor girl of 13-14 years of age, is the victim of this social crime of serious magnitude.
4. Rameshwar Nai s/o Chauthe Nai of Hindaun-city who, is still absconding enticed the girl from Hinduan on 24-6-1975 to Agra. The investigation revealed that Mst. Prem PW 7 was recovered from the house of there two lady-appellants at Mathura on 5-8-75 vide recovery memo Ex.P 3. The medical examination of Mst. Prem PW 7 reveals that she is 15-16 years of age vide Ex.P 4 it was revealed that the prostitutes Mst. Bano and Khurshid (appellants) had a prostitute home at Mathura and Agra and, both purchased Mst. Prem PW 7 for Rs.300/-. When Mst. Prem PW 7 came to know of it, she started crying but she was threatened by a knife for being killed and was compelled to accompany these lady appellants from Agra to Mathura.
5. It is not necessary to mention, in details the other facts as the prosecution case is proved by the evidence of Ganesh PW 1, the brother of Mst. Prem PW 7, Suraj PW 2 who also went in the search of Prem PW 7 to Sarotta and Agra: Babulal PW 3 maternal uncle of Mst. Prem Dr. D.N. Sharma PW 4 and Dr. G.K. Chaudhary PW 6 who conducted the medical examination and X-ray of Mst. Prem; and Harphool Singh PW 5, the Investigating Officer.
6. Before I proceed to discuss the submissions of Shri N.L. Tibrewal, the learned Counsel for the accused-appellants who has vehemently pleaded for acquittal of these two lady appellants and also opposed the notice for enhancement of sentence which was issued on April 21, 1986 exercing the sou moto revisional powers of this Court under Section 377, 386, and 401 Cr. PC and the reply given by S.B. Mathur and Shri K.N. Shrimal, the learned Public Prosecutors on behalf of the State, in would be useful to mention the story as given by Mst. Prem PW 7, the unfortunate victim in this case.
7. She (Mst.Prem) has appeared before the trial court as PW 7 when she was examined she stated that she was 14 years of age. The incident had happened about one and half year earlier. According to her version as per the court's statement, she was going to Sarotta to meet her maternal uncle from Hindaun and boarded a bus from Hindaun; in that bus, Rameshwar Nai was also there, who used to work at the shop of her brother Ganesh; that, when he made enquiries, she answered that she is going to Sarotta where she got down from the bus and met Babulal, her maternal uncle who told her to come with him for the home, thereafter he went away; that, Rameshwar at that time in the absence of her maternal uncle told her that she may accompany him to see Tajmahal at Agra where her Mousi (her mother's sister) is living; Rameshwar took her in train to Agra and promised her to come back after two-three days; that after reaching Agra in the evening, Rameshwar took her to a house where his Mousi was living and she found these two ladies, Mst. Bano and Mst. Khurshid to whom, he introduced as his Mousi who took her inside, that the appellants had talk with Rameshwar who left the place saying that he is returning back but, never returned, that, she then made enquiries from Mst. Khurshid and Mst. Bano why Rameshwar had not come back; that, at this stage, both the accused told her that she has been sold to them for Rs. 300/- and they are not Mousies of Rameshwar, that then she started crying but the accused took out a knife and threatened her, she, therefore, could not do anything due to fear, that, next day in the morning these two accused Mst. Bano and Mst. Khurshid took her in a car from Agra to Mathura, that, in Sadar Bazar, the accused-appellants, have got a house where she was confined and locked up; that these accused told her that she would learn music and dance and if she would not learn that she would be finished; that, her name was also changed to Najma; her dress was also changed, one person used to keep watch on her, she was confined in a room for about 1-1/2 months, she was not allowed to go out anywhere; that, after one and half months her brother Ganesh came with the police and rescued her from the crucial house, and that, when she saw her brother, she started crying and weeping and thereafter she was got released.
8. Though, the lengthy cross-examination has been done but nothing useful has come to reveal on which it can be said that her testimony is unreliable. The version of the girl finds support from her brother Ganesh's statement and the Investigating Officer who recovered her and, it is established that the girl was taken away in the manner alleged above. The accused who sold the girl, Mst. Prem PW 7 is absconding.
9. The curial question which requires adjudication is whether the offence is of Sections 366A and 368 IPC under which these two lady appellants have been convicted, and have been proved guilty. Sections 366A and 368, IPC read as under:
366-A. Prosecution of Minor girl--Who ever, by any means what so ever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or reduced to illicit intercourse with a other person, shall be punishable with imprisonmet which may extend to ten years, and shall also be liable to fine.
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person: Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Ganesh PW 1 brother of the girl Prem PW 7 made the complaint to the police in the form of Ex. P. 1 which reads as under:
Jheku Fkkusnkj lkgc fgUMkSu] Jheku lsok es fuosnu gS fd esjh cfgu izse mQZ fiEek vk;q 12&13 lky dh gS tks fnukad 24&6&1975 dks jkes'oj iq= pkSFkh ukbZ fgUMkSu cgdk Qqlyk dj mls dgh cspus o mlds lkFk cqjk dke djus dh fu;r ls lqjksB gksdj cl es cSBdj c;kuk dh rjQ ys x, gS AlqjksB cl LVS.M+ ij ckcw ukbZ lqjksBokyks us ns[kk gS A c;kuk ry'k fd;k x;k rks vkxjs ds lekpkj feys o rkjh[k 3&7&1975 dks vkxjk igqapus ij ghax dh e.M+h ls ckcw] Ik= ls pqUuh ukbZ ds ;gka Bgjus dk irk yxk fdUrq ge ogka x;s rc muds irs ugh yxs vc Hkh ge ryk'k djus es yxs gq, gS blfy, vc fjiksZV dh tk jgh gS A vr% Jheku ls fuosnu gS fd yM+dh izse cjken dh tkos o eqyfte ds f[kykQ dk;Zokgh tkIrk dh tkos
10. The recovery of the girl from the house of the accused at Mathura is well proved by the evidence of Ganesh PW 1 and Harphool Singh, SHO PW 5. According to Ganesh PW 1 on 5-8-1975 he along with the police force went to the house of the appellants and recovered her sister, Mst. Prem PW 7 there, in the presence of the appellants. The recovery memo Ex. P. 3 bears the signature of Ganesh, the dress of her sister was changed as she was wearing Salwar and Kurti. At that time, her sister told him that she was being prepared for prostitution by giving training for music and dance and was not allowed to move out of the house by these two accused. Harphool Singh PW 5 has stated that on 5-8-1975, he recovered Mst. Prem PW 7 from the house of these accused and prepared memo Ex, P. 3. Mst. Khurshid and Mst. Bano were present and they were arrested at that time vide arrest memo Ex. P. 5 and P. 6, Before this arrest, efforts were made out to trace Mst. Prem PW 7 and search parties were sent to Gwalior, Delhi Agra and Lucknow.
11. Shri N.L. Tibrewal, the learned Counsel for the accused-appellants, submitted that Mst. Prem PW 7 came out of the house of the accused on calling her and that shows that there was no restraint and confinement. In my opinion, the girl of a tender age of 14-16 years after having been taken at a far distant place from her own house of Hindaun and having been threatened in Agra by these prostitutes; was living in Mathura helplessly with nervous break down, moral crack down. In such cases of helpless girl, the living in a house under duress and threat with constant fear, cannot be called voluntary. Even if the girl would have tried to run away sometime in Mathura, she would have been in a trap of other miscreants as a young girl of Hinduan town of Rajasthan would not have been able to rescue herself from the clutches and evil designs of antisocial elements who, always want to encash youth girl for 'flesh trade' or for satisfaction of sexual lust or for trafficking by sale of such girls as has already been done earlier. Such helpless surrender to confinement and forced living in house though without shutters and closed doors cannot be called as a free-will voluntarily residing. The confinement, detention or unlawful keeping need not be in the closed doors of a room. If psychological conditions are created where a helpless girl cannot dare to move out and run away or she has no place to run away as she apprehends all around some such anti-social elements which would result in her life to be worst between falling in a ditch and falling in a well, no inference can be drawn that the confinement or detention or custody was free and not illegal, or without force. It is established on record that both the accused, Mst. Banno and Khurshid, are prostitutes. In their statements before the Court, they have not made any secret of it and have stated that while describing their profession and by caste as 'Vaishaya' (Prostitutes) and profession as 'singing dancing'. That being so, the purpose and the object of purchasing a girl of tender age of about 14-16 years was obviously for dancing so that she can serve the customers for prostitution.
12. Shri Tibrewal, confronted with the above obvious, patent and clear evidence, submitted that the girl was not proved to be below 18 years of age. Here again the evidence that she was below 18 years, is clinching and is of medical expert in addition to the relatives. Two medical experts have been examined viz. Dr. DM. Sharma PW 4 and Dr. G.K. Chaudhary PW 6 Dr. D.M. Sharma PW 4 Medical Officer Hindaun examined Mst. Prem and mentioned that she had 28 teeth and according to him, the age of 15 to 17 years and in no case she was 18 years. The last molar has not appeared in any jaw. He referred the case for X-ray examination and received report for the determination of the age. The clinical examination is supported by the X-ray findings.
13. Yet another Dr. G.K. Chaudhary PW 6 Radiologist was examined. According to him, epiphyseal union has taken place in humesal epicondyle and there was no union of epiphysis in distal end of radious ulna. The age was determined to be above 14 years but below 18 years vide Ex.P 9 Dr. Chaudhary (PW 6) stated in the cross-examination that his opinion is based on several medical jurisprudence including that of Modi's.
14. Mst. Prem PW 7, herself, has given her age as 14 years. According to Babulal PW 3 and Ganesh PW 1, at the time of the incident the age of Prem PW 7 was about 15 years.
15. It would thus be seen that it is conclusively proved that her age was not above 18 or 18 but some where in between 14 or 15 years to years to 17. The important feature of the case is sale of the girl for Rs 300/-and purchase by these accused-appellants.
16. Obviously, there cannot have been any evidence except circumstantial and direct evidence or the girl herself who was told by these accused that she has been captived after having been purchased for Rs. 300/-. The fact that she was taken away from Agra to Mathura and kept for 1-1/2 months in confinement and custody, and was given training of music and dance, and was made to change her clothes to become more attractive and this all happened when the purchasers are admittedly prostitutes; clearly shows that there is no element of doubt but it is proved beyond reasonable doubt that she was taken away by these two accused with intent to purchase of girl and offering her for sexual intercourse with others.
17. It is true that it has not been proved that she was actually utilised for prostitution but this could not happen because she was rescued by her alert vigilant painstaking brother Ganesh PW 1 to send the police party to different places like Agra, Gwalior, Delhi and Lucknow where trafficking of women is taking place in a big and ultimately to Mathura where she was confined in a home of prostitutes.
18. I have yesterday directed Shri Tibrewal to show cause why the sentences should be not enhanced in case the accused cannot be acquitted and are found to be guilty of these offences.
19. Shri Tibrewal has submitted that the person who sold the girl to these accused appellants was the real accused because these appellants never went to the market to purchase girl and, therefore the sentences should be reduced rather than enhanced or increased. I am unable to appreciate this distinction which is not based on any difference in commission of crimes of such anti-social nature like trafficking of women more so of minor girl by purchasing them for making her dancing girl and prostitute far away from her home as has happened in the instant case because the girl was taken to Mathura from Agra, both the seller and the purchaser are committing the same heinous crime with no difference. The purchaser was knowing it well that the girls are being purchased for being utilised them as dancing girls and prostitutes as they were not chattel or articles in the market to be sold and purchased. It was a pure and simple case of 'flesh trade' which violates all women dignity and is society rocking, nerve breaking and shocking and is serious challenge to the entire womanhood. The founding fathers of the constitution of India took pains to prohibit all such and even bonded labour and slavery was prohibited by the constitutional mandate in order to place the human dignity at a higher level. The women were even provided much more protection to emancipate them from age old evils, social crime, social apathy, social indifference and the handicap of economic dependence.
20. Article 23 of the Constitution reads as under:
23. Prohibition of traffic in human beings and forced labour:
(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence publishable in accordance with law.
(2) X X X
21. The Constitutions of almost all progressive countries have provided protection to women.
22. Supreme Court of America in Muller v. Oregon (1908) 208 U.S. 412 and recently in Kahan v. Shevin (1974) 416 US 351, while advocating discrimination in favour of women said that women's physical structure and the performance of the maternal functions placed her at a disadvantage in the struggle for assistance and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race.
23. Article 2 of the declaration of Human Rights in United Nations also speaks for equality among all, and runs as under:
Every one is entitled to all the rights and freedom set forth in this declaration without distinction of any kind, such as race, colour, sex language, religion, political or other opinion, property or other status or national or social origin
24. Japan's constitution also states for equality and says 'There shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin'.
25. In USSR women are accorded equal rights with men in all fields of economic, cultural, social and political life. In USSR the realisation of these rights of women is enforced by affording women the right to work, payment of work, rest, social insurance and education equally with men, by state protection of the interest of the mother and child, granting pregnancy leave with pay and by the provisions of a wide net work of maternity homes, nurseries and kinder gardens.
26. Article 103 of the declaration, on Elimination of Discrimination Against Women, 1967 says--
Measures taken to protect women in certain types of works, for reasons inherent in their physical nature shall not be regarded as discriminatory.
27. Framers of the Constitution of India were seized of the situation. The framers were knowing the facts that inspite of the 14th Amendment guaranteeing equal protection of the law was not found sufficient in the US to prevent social discrimination in various segments of the American social and political life. The framers keeping this factor in mind feared that inspite of the prohibition in Article 14 discrimination on the basis of religion, race, caste, sex or place of birth might be legitimated by the Courts on the basis of reasonable classification' it was with a view to forestaling such an eventuality that the Constituation in clause (1) of the Article 15 expressly provided that, 'the State shall not discriminate against any citizen on ground only of religion, caste, race, sex, place of brith or any of them' But at the same time Clause (3) of Article 15 empowers the State to make laws in favour of women. Article 15, clause (3) says, 'Nothing in Article 15, clause (i) shall prevent the State from making any special provision for women and children'.
28. Article 39 also requires the State to direct its policy towards insuring economic equality to wowen by declaring that men and women equally have the right to adequate means of livelihood, that they be given, equal wages for equal work as men etc.
29. The preamble of the Constitution proclaimed Justice social, economic, political and equality of status and opportunity. The dignity of the individual was assured in the fraternity proclamation.
30. What a serious indignity, inhumanity, barbaric shameful act is performed when a girl is purchased and sold in a worst manner than 'chattel' for being forced to become a dancing girl and prostitute:
;= uk;ZRr iwT;Urs jeUrs r= nsork
Is the Vedio recognition of the great respect, reverence worship to women who are source of strength power and the women was also glorifiec with reverence and a respectful partner in India by Jayshanker Prasad:
^^ ukjh rw dsoy J`)k gks] fo'okl jtr ux ix ry es A
ih;w'k L=ksr lh cgk djks ] thou ds lqUnj leery es AA^^
The vedio verse recital exhorts for worship when it proclaims, MATRA DEVO BHAVH, but, Jayashanker Prasad, himself, realised that weaker sex is feeling indignity and handicap, and sometimes, helplessness inspite of glorification and respect when he said:
1 ;g vkt le> rks ik;h gS
eS nqCkZyrk es ukjh gwa A
vo;o dh dksey lqUnjrk ]
ysdj eS lc ls gkjh gaWw A
2 ijeu Hkh D;ks bruk
vius gh gksrk tkrk gS
?ku';ke lh vka[kks es
D;ks lglk ty Hkj vkrk gS A
3 eS tHkh rkSyus dk djrh
mipkj Loa; rwy tkrh gS
Hkt yrk QWlkdj ujr: ls
>wys lh >kS[ks [kkrh gwW A
Jayashanker Prasad further realized that:
vkWlw ds Hkhxs vkWpy ij
eu dk lc dqN j[kuk gksxk A
Maithli Saran Gupta, the national poet of great eminence was compelled to accept hard reality that 'Sati Durga' woman of this country has been reduced to 'Abla' when he said that:
vcyk thou gk; rqEgkjh ;gh dgkuh A
vkWpy es gS nw/k vkW[kks es gS ikuh AA
31. It was on account of the above that the preferential treatment was permitted under Article 15 to emancipate them and even in U.S.S.R. in Article 103 of the Declaration. On Elimination of Discrimination Against Women, 1967, it was provided that the protection would be provided to women.
32. The preferential treatment in favour of women was made a universal phenomenon to make them equal as to certain matters they are handicapped and unequal. Articles 42, 39, 23 and 16 of the Constitution of India all were alive to the above.
33. Even then, the object to emancipate all the women has not succeeded. When the question arose before the Apex Court for grant of probation in cases of abduction of a girl, V.R. Krishna Iyer, J., D.A. Desai and A D. Koshal, JJ., came out heavily against it. The case was of teen-age girl, Parvati who was swooped down with diabolic design from Sitalpur in Bihar to Dhanbad and further on, to destination Haryana where satellite industries in female flesh flourish, she was offered for material sale to affluent lacherous youths. The sentence was 3 years and the plea was to grant probation. Their lordships of the Apex Court in Devki v. State of Haryana : 1979CriLJ1309 observed as under:
Counsel dared to urge that the Probation of Offenders Act should be extended to this abominable culprit who had shown sufficient expertise in the art of abduction and sale of girls to others who offer a tempting price. The features of this case show that the petitioner suddenly descended in a taxi-cab and kidnapped the young woman, and when she cried out, administered the injunction which rendered her unconscious. Further more, a well laid-out plan is discernible when we see the geographical spread of the crime. From a small town in Bihar, the girl is despached to Dhanbad and from there, via Delhi to Haryana, lodged in a house where young men were asked to view her for obvious immoral purposes. It is an insulting stultification of the amerlicreatory legislation, viz., Probation of Offenders Act to extend its considerate provisions to such anti-social, specialist criminals. All that we can do is to reject the plea with indignation and follow it up with an appeal to the State Governments of Bihar and of Haryana to put a special squad on the trail and bound out every such offender so that the streets of our towns and cities may be safe after sunset for Indian womanhood.
34. The conscience of the Supreme Court was hurt and shocked when Kamla's flesh trade came to limelight by a public interest litigation. Their Lordships of the Supreme Court earlier in Bishambar Dayal v. State of Punjab Criminal appeal No. 14 of 1957, decided on 8-5-1958 S.C. Digest Vol. 1(OPC) by Surendra Malik, Edition 10-3-1982, page 517 (26990) upheld the enhancement of sentence by High Court from 2 years' R.I. to 5 years' R.I. Under Section 366 and Section 368 IPC on the ground that the crime was result of wide-spread criminal activities of kidnapping and abduction and inter-State commerce of unfortunate girls.
35. Obviously streaks and cries of unfortunate girls, their tragic and pathetic plight in auction of their flesh have attracted the Apex Judges of the Apex Court's conscious and they have exhibited great concern for it, time and again.
36. What ever glimpses of the heinous and serious magnitude of the social crime and the judical conscious recognitions to them have been extracted above leads to one conclusion and one only that whenever, such pathatic and tragic nerve-shocking society rocking cases comes to limelight of traffic in women mostly minor girls for the immoral and illegal purposes like compelling them to become dancing girls and prostitutes, as has been proved by the tangible record of evidence, it would not only be misplaced leniency but virtually abatment to social crimes where exemplary punishments are not given. In Devki v. State (supra), the girl taken to Dhanbad could not be sold find before that she was rescued and yet the Supreme Court appreciated the enhancement of the sentence made by the High Court from 2 years R.I. to 5 years R.I.
37. A survey by Stiphen Barley Hindi Digest--Navneet, August, 1995, Bhartiya Vidhya Bhawan Kulpati, Munshimarg, Bombay, page 113 of the world 'flesh trades' revealed under the book, 'the Slave Traffic in women today' revealed that upto 1970 the number of poor unfortunate girls in this 'fllesh trade' was 25 lacs as per the figures of U.N.O. but, Anti-Slavery Committee put it at 3 crores.
38. According to the news papers of Paris, every year, 40, 000 Asian African and South American girls are placed in the prostitutes' homes for satisfying the sexual lust after their sale in Europe to such sexual thirsty people who are fed-up of European girls.
39. The highest number of prostitutes' homes are in Spain as per the survey of 1956 where in Warsilona only there are 29,000 teenager prostitutes who are purchased at Rs. 200-250/- per girl. The above all unfortunate young immature teenager girls are auctioned for 'flesh trade' throughout the word and the great humanist and reformists of the world inspite of several laws and resolutions have not been yet able to either stop it or even curtail its growth. This is thus crime of international apathy and abhorance which should shock and rock the world's conscience and the society as a whole.
40. The present one is case where two lady appellants who, according to their own versions are prostitutes and performing the profession of dancing girls, gave a bid for purchasing human flesh and got it at Rs. 300/- and then after keeping Mst. Prem PW 7 and then taking her from Agra to Mathura for preparing her by giving training of dancing and music after change of dress for making her more attractive so that she may be sold like 'hot cake' to the 'sexual vultures' who pounce upon beautiful young girls for satisfying their 'sexual lust' having big purses and nasty unethical, 'sexual overtones.'
41. The two appellants are therefore liable for exemplary punishment to curb widespread menace of traffic in women and kidnappings sale for prostitution and flesh trade of scacred daughters of this soil who at one time were inspiring the world with example of 'Sita Savitri'. The crime of purchasing girls and confining them for being made dancing girls in their teenage, immature age, is a 'slur' on womenhood, the present civilisation and is poor homage to the Constitution, where inspite of all protection we have not been able to eradicate it. This stigma and black spot deserve deterrent and exemplary punishment. Consequently, the sentence 2/1-2 year's R.I. is grossly inadequate and is enhanced to 5 years under each count.
42. In the result, this appeal fails and is here by dismissed and under the powers of the suo moto revision the sentence for the offences under Section 366A and 368 IPC recorded by the trial court is enhanced from 2-1/2 years' R.F. to 5 years R.I. and both the substantive sentences of imprisonment shall run concurrently and to that extent impugned judgment of the trial court is modified.
43. The accused appellants are on bail and they shall surrender to their bail bonds. The trial court is directed to take steps to get the accused-appellants arrested after forfeiture of their bail bonds and send them to jail to serve out the sentence enhanced as above by this Court.