On 1st October, a bench of Delhi High consisting of Justice Manoj Kumar Ohri held that for proving an offence under Section 3 of the Immoral Traffic (Prevention) Act, 1956 it follows that it must be proved that the accused was managing/keeping the place with the knowledge that same is being used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.
Facts of the case:
The present appeal has been preferred under Section 374 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 27.01.2020 and the order on sentence dated 30.01.2020 passed by the learned Special Judge (POCSO Act)/ASJ-05 (Central), Tis Hazari Courts, Delhi. After completion of investigation, the Trial Court vide order dated 06.02.2018 framed charge against the appellant under Sections 109/370/366A/373/370A/376(2)(n)/506/344 IPC read with Section 120B IPC, Sections 6/16 of the POCSO Act, Sections 3/4/5/6 of the ITP Act read with Section 120B IPC and Sections 23/26 of the Juvenile Justice (Care & Protection of Children) Act, 2000 read with Section 120B IPC.
Contention of the appellant:
The following contention has been submitted by the appellant:
- It was submitted that the appellant was acquitted of all the other offences and was convicted only for the offences punishable under Sections 3 and 4 of the ITPAct.
- It was also submitted that that the prosecution has failed to connect the appellant with the case inasmuch as the child victim has not identified the appellant as the person who had purchased her or forced to do the work of prostitution.
- It was also further submitted that that the prosecution has neither examined the boy whose phone was used by the child victim to make the alleged call nor were any CDR details collected.
- It was urged that that the independent witness Deen Mohd. nowhere stated that he was the fufa (uncle) of the child victim nor did the child victim or her father state that Deen Mohd. was the said fufa (uncle).
Observation and judgement of the court:
The following observation has been made by the hon'ble court:
- Section 3 of the ITP Act provides punishment for keeping a brothel or allowing the premises to be used as brothel. The provision makes it obligatory on the part of the prosecution to show from evidence that a person accused of an offence thereunder was (i) keeping or managing, or acting or assisting in the keeping or management of, a brothel, or (ii) was allowing the particular premise to be used as a brothel.
- To establish the commission of the offence under Section 3 of the ITP Act against the appellant, the prosecution is required to prove the basic ingredients.
- A perusal of the Trial Court Record would show that neither any oral evidence was led nor any document was placed on record to establish the charge. Admittedly, co-accused Saira was never arrested. The appellant was not even present at the kotha at the time of rescue of the child victim.
- The investigating agency has neither cited Rekha as a witness from whom the child victim was allegedly purchased for Rs.50,000/- nor the boy from whose mobile phone the child victim is stated to have called her father.
Keeping in view the above analysis of the evidence available on record, this Court was of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Thus the appeal was allowed and the judgment of the trial court was set aside.
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SOURCE ; latestlaws.com
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