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2022 Supreme(Cal) 440
IN THE HIGH COURT OF CALCUTTA
Debangsu Basak, Bibhas Ranjan De, JJ.
Khadem Sk @ Sekh Khadem - Appellant
Versus
State Of West Bengal And Others - Respondent
CRA 181 of 2020 With CRAN 1/2020 (Old No. CRAN 3384/2020) With CRAN 2 of 2020
Decided On : 12-08-2022
Mr. Jayanta Narayan Chatterjee, Adv, Ms. Nandini Chatterjee, Adv, Mr. Nazir Ahmed, Adv, Ms. Jayashree Patra, Adv, Ms. Sreeparna Ghosh, Adv, Ms. Dipanwita Das, Adv, for the Appellant; Mr. Sudip Ghosh, Adv, Mr. Apurba Kumar Datta, Adv, for the Respondent
The main legal point established in the judgment is that the lack of independent witnesses and disputed ownership of the hotel did not negate the evidence presented by the prosecution, and the raid, search and seizure, and the connection between the appellant and the hotel were sufficient to establish guilt.
Headnote:
Conviction - Indian Penal Code, 1860 - Immoral Traffic (Prevention) Act, 1956 - Sections 370/373 - 3 (2)/4 (1) (2)/5 (1) (a)/6/7/9 - The judgment discusses the appellant's conviction under Sections 370/373 of the Indian Penal Code, 1860 and Sections 3 (2)/4 (1) (2)/5 (1) (a) and Sections 6 and 7 of the Immoral Traffic (Prevention) Act, 1956. The court analyzes the evidence presented by the prosecution and the defense, including the lack of independent witnesses, disputed ownership of the hotel, faulty search and seizure, and contradictions in the statements of the victims. The court also considers the legal provisions and their interpretations, ultimately affirming the judgment of conviction and order of sentence.
Fact of the Case:
The appellant was convicted under Sections 370/373 of the Indian Penal Code, 1860 and Sections 3 (2)/4 (1) (2)/5 (1) (a) and Sections 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 for offenses related to procuring and kidnapping women for flesh trade. The police case was initiated on the basis of a first information report, and the trial resulted in the conviction of the appellant while others were acquitted.
Finding of the Court:
The court found that the prosecution failed to bring forth independent witnesses and establish the ownership of the hotel. However, the court concluded that the evidence presented by the prosecution, including the raid, search and seizure, and the connection between the appellant and the hotel, was sufficient to establish the appellant's guilt. The court also considered the involvement of minors in the brothel and affirmed the judgment of conviction and order of sentence.
Issues: The issues included the lack of independent witnesses, disputed ownership of the hotel, faulty search and seizure, and contradictions in the statements of the victims. The court also considered the authority of the Inspector who conducted the raid and the involvement of minors in the brothel.
Ratio Decidendi: The court held that the lack of independent witnesses and disputed ownership of the hotel did not negate the evidence presented by the prosecution. The court also found that the raid, search and seizure, and the connection between the appellant and the hotel were sufficient to establish guilt. Additionally, the court considered the involvement of minors in the brothel and affirmed the judgment of conviction and order of sentence.
Final Decision: The court affirmed the judgment of conviction and order of sentence, dismissing the appeal and remitting the trial court records to the appropriate court.
JUDGMENT
Debangsu Basak, J. - The appellant has assailed the judgement of conviction dated March 2, 2020 and the order of sentence dated March 4, 2020 passed by the learned Additional Sessions Judge, FastTrack Court, Haldia in Sessions Trial No. 96 of 2016 arising out of Sessions Case No. 06 (03) of 2016.
2. By the impugned judgement of conviction and the order of sentence, the appellant has been convicted under Sections 370/373 of the Indian Penal Code, 1860 and under Sections 3 (2)/4 (1) (2)/5 (1) (a) and Sections 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 for various period of rigorous imprisonment and various amounts of fine. The sentences had been directed to run concurrently.
3. The impugned judgement of conviction and order of sentence have been rendered in respect of a police case which was initiated on the basis of a first information report being Mahisadal Police Station Case No. 283 of 2015 dated August 24, 2015. The first information report had been lodged against 5 accused persons inter alia on the allegation that the accused persons were procuring and forcibly kidnapping women and coercing such women to participate in flesh trade. The police had submitted a charge sheet being No. 323 dated November 18, 2005 and a supplementary charge sheet being No. 01/16 dated January 21, 2016. The trial Court had framed charges against nine accused for offences punishable under Section 368/370/370A/373/376/120B of the Indian Penal Code, 1860 and Sections 4/6/7/9 of the Act of 1956. The appellant and the other accused persons had pleaded not guilty before the trial Court and claimed to be tried. They had been tried. Eight out of the nine accused persons had been acquitted. The appellant had been convicted.
4. Learned advocate appearing for the appellant has submitted that, numerous circumstances and situations surfaced during the examination of the prosecution witnesses which suggest that the prosecution failed to bring home or substantiate the allegations against the appellant. Broadly speaking, he has classified such circumstances and situations to be, absence of independent witnesses, disputed ownership of the hotel, hotel, the composition of the raiding team and as to whether, all the persons claiming to be part of the team raiding the place were actually there, faulty search and seizure, and contradictions in the statements of the victims.
5. Elaborating on the contention that, the prosecution has failed to bring forth any independent witnesses, learned advocate appearing for the appellant has submitted that, since the prosecution did not bring forth any independent witnesses, their evidence should be discarded. He has classified the witnesses into 3 categories. He has contended that, the witnesses examined by the prosecution can be classified as a police personnel, hostile witnesses and other witnesses. None of the witnesses, according to him, can be said to be independent witnesses.
6. Learned advocate appearing for the appellant has submitted that, the place where the raid and search and seizure was carried out was inhabited. He has submitted that, there was a place of worship, a school, a primary school, a public building and a public thoroughfare well within 200 m of the place of occurrence. Despite the place of occurrence being within a populated area, the prosecution has failed to produce any independent witnesses. He has submitted that none of the neighbours of the place of occurrence had been examined at the trial. He has referred to the listing of prosecution witness No. 13 who stated that, there were two independent witnesses namely Chiranjit Roy and Rabin Pal. However, none of them have been examined at the trial.
7. Referring to the hotel cum brothel he has submitted that, the prosecution has not placed any evidence to show that the appellant was the owner of the same. He has referred to the evidence of the prosecution witness No. 2 who is the Block Land and Land Reforms Officer who stated that, the land be
