In absence of the depositions or the evidence of the victim; conviction u/s. 4 & 5 of the Immoral Trafic (Prevention) Act can not be sustained

PW-4, P.I., Madan Manohar Ballal of Crime Branch, Thane, claimed that at the relevant time, he was attached to A.H.T.C. and the investigation of the present Crime No. I-475 of 2013 of Manpada Police Station was handed over to him and he has received the relevant documents viz. complaint, panchanama, Pre-raid panchanama, raid panchanama, spot panchanama, muddemal and Police statements of witnesses. He claimed that he has obtained the documents of registration of the said flat, which is the place of offence, so also R.C. book of motorcycle. He claimed that he has requested the learned Judicial Magistrate, First Class, Kalyan on 7 th December, 2013 and 13th January, 2014 so as to record the statements of victims under Section 164 of Cr.P.C. vide Exhibit 38 and 39. According to him, he has also sent a letter to Rescue Foundation to produce the victim girls vide Exhibits 40 to 45 for recording the statements of the victim girls under Section 164 of Cr.PC. However, according to him, the victims were sent to Bangladesh through Rescue Foundation, whereas victim no.6, Pinki Mandol was sent to West Bengal.[Para No.20]

    As such from the aforesaid testimony of the investigating officer, what can be gathered is the statement of the victim girls could not be recorded under Section 164 Cr.P.C. though efforts were made as the five victims were sent back to Bangladesh by the Rescue Foundation, whereas victim Pinki to West Bengal. No efforts were made by the prosecution to record the statement of victim girls under Section 164 Cr.P.C. by video conferencing or their oral evidence during the course of trial.[Para No.22]

    Similarly as observed hereinabove the conviction under the provisions of Immoral Traffic (Prevention) Act, 1956 is also not sustainable as it is not established that the accused were either the owner or licensee or as a tenant of the flat in question, which is the place of offence and they were in actual possession of the premises particularly in absence of testimony of the flat owner. Similarly, it is also not established that the vehicle i.e. two wheeler was seized from the custody of or ownership of the accused. That being so, the conviction of the appellants for an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 is not sustainable. In absence of the depositions or the evidence of the victims, it is difficult to even sustain the conviction of an offences punishable under Section 4 of the Act particularly in absence of testimony of the victim girls, so also the conviction under Section 5 as there is no material to demonstrate that the victim girls were procured or by inducing or forcing them for the sake of prostitution.[Para No.30]

Bombay High Court

Kabir Kasim Mandol

Vs.

The State Of Maharashtra

Decided on 19/08/2020