Since careful consideration of the evidence of PW2 and PW3 reveal that
the same do not establish that they were found in compromising position, it is
difficult to find any fault with such a conclusion arrived by the trial Court after
appreciation of their evidence. In the said context the evidence of PW2 reveals
that after taking PW3 in the room he had closed the same from inside and
thereafter he had asked her to remove her clothes and then he has removed his
own clothes and embarrassed her. The evidence of PW1 reveals that the room
in which PW2 and PW3 were found was bolted from inside. The said evidence
thus makes it difficult to accept that the raiding party could have seen both of
them in compromising position as alleged. The same adversely affect claim of
PW4 who deposed that PW2 was in full naked condition and lady was standing
next to him. Significantly PW4 even did not claim of having seen both of them
in compromising position. The close look at the evidence of the said witnesses
and so also that of PW5 reveals irreconcilable variance in their evidence
regarding the situation in which both of them were found. Needless to say that
the evidence of PW3 is adverse to the claim stake by PW2 as she did not accept
that either PW2 had asked her to remove the clothes or they were found in
compromising position. Her evidence is confined to rushing of the persons in
the room and taking them to the police station. The observations made by the
Appellate Court that during the cross-examination of PW3 it was not elicited as
to who was engaged in the prostitution or found in compromising position with
PW2 is also in consonance with her evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 437 OF 1997
The State of Maharashtra ...Appellant
(Orig.Complainant)
vs.
Upkarsing Samshersing Aroara,
CORAM : P.D. KODE, J.
Decided on;24 -8-2012
Citation;2013 CR L J(NOC)261 bombay
State has preferred both the aforesaid appeals against the judgment
and order dated 13th March, 1997 passed by the learned Additional Sessions
Judge, Pune, acquitting of each of the respondent in respective appeal from the
charge of the commission of offence punishable under Sections 3, 4 and 5 of the
Suppression of Immoral Traffic in Women and Girls Act, 1956 by reversing
finding of a guilt for commission of such offences by each of the respondent in
aforesaid appeal arrived by JMFC Court No.3, Pune, in RCC No.136/1995 of
the said Code and awarding sentence of RI for one year with payment of fine of
Rs.1000/- by each of them and in default of payment of fine, ordering them to
suffer RI for three months.
2 The prosecution of each of the respondent for commission of such
offences has arisen out of the chargesheet submitted by PW5 PI Pir Mohammed
Abdul Gaffar Japharbhai of Bund Garden Police Station, Pune, on 27th
September, 1995 for commission of such offences and the offence under
Section 66-B of the Bombay Prohibition Act as a result of the investigation of
CR No.295/95 registered with said police station upon the complaint dated 28th
August, 1995 (Exhibit 29) for commission of such offences lodged by him.
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sat cri.appeals 437-97 and 424-97
3 According to the said complaint, PW 5 while at Bund Garden
Police Station, Pune, received an information from his informant that the
respondent in Criminal Appeal No.437/97 alongwith his wife respondent in
Criminal Appeal No.424/97 by calling and providing young girls to male
customers for illicit intercourse runs a brothel under the guise of massage in
Jogan Beauty Parlour, Koregaon Park, Pune, in a flat in Gurudatta Avenue
Building in front of Popular Heights. PW 5 after verification of the information
appraised Shri D.R. Shejal, ACP of Lakshar area about information received.
ACP Shejal forthwith visited Bund Garden police station and verified about the
information. Immediately one PW 2 Jaykumar Digambar Shinde, resident of
Tarachand Hospital Servant Quarters, Pune, was called for acting as a bogus
customer and he was appraised about the import of the information received.
PW2 showed the willingness for acting as a customer. Two respectable persons
PW1 Maruti Deokar and one Kadir Ahmed Khan passing on the road were
called and appraised about the import of the information received and both of
them agreed to act as panch witnesses. They were asked to take the search of
PW5 and PW2. During the search, no money was found with PW2. PW5 left
the cash amount with him in the office and gave Rs.450/- comprised of four
currency notes of the denomination of Rs.100/- and one of Rs.50/- and bearing
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sat cri.appeals 437-97 and 424-97
numbers as stated in the complaint to PW 2 after obtaining initials of ACP
Shejal and gave PW 2 instructions regarding the raid to be effected including
the timing at which he was to give a signal to PW 5. The panchnama (Exhibit
14) to such effect was drawn in presence of ACP of Lakshar Vibhag. After
drawing of the panchnama, ACP Shejal (PW 5), API Pawar, PSI Patil, PHC
1292 Wahile and PHC 2797 Markad from the Surveillance Squad, unarmed
Lady Police Constables Surekha Kale (PW 4) and Vina Turke, fake customer
PW 2 and panch witnesses in civil dress by police jeep left the Bund Garden
police station and via Mangaldas police chowky went to Yerwada Pumping
Station. After halting the jeep at the said place except the police driver all of
them walked uptil Popular Height building. From the said place, fake customer
was asked to go with money to the beauty parlour and after he had gone,
accordingly, all of them waited nearby the staircase on the ground floor.
4 After some time ACP Shejal and the raiding party members rang
the bell and they explained purpose of the raid to respondent in Criminal Appeal
No.424 of 1997 and asked her to take search of the raiding party member but
she refused and agreed to give the co-operation. Two more girls were present in
the flat. After hearing the signal by fake customer, ACP Shejal and PW5 and
4/10 State
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sat cri.appeals 437-97 and 424-97
Panch witnesses entered in the room and found naked PW2 and one woman –
PW3 Sunita wearing only nicker and bra embarrassing. After as asked they
wear the clothes and came in the front room, police searched them. As PW2
told that he had given marked currency notes to the respondent in Criminal
Appeal No.424 of 1997 siting at the counter, the lady constable searched her
and found an amount of Rs.1960/- within it containing marked currency notes
with her. The said amount was seized by the police. The police also found
some liquor and beer in one room of the said flat denoting that both the
respondents used to sell the said liquor to the customers. The same was seized
by the police by drawing panchanama Exh.14. PW5 arrested the respondents
and charge sheeted them.
5. Both the respondents pleaded not guilty to the charge framed against
them. The prosecution examined the above referred five witnesses at the trial.
The defence of the respondent was that of total denial and false implication.
The trial Court after appreciation of the prosecution evidence by the Judgment
and order dated 15.6.1996 convicted both the respondents and sentenced each
of them to undergo R.I. for one year and pay the fine of Rs.1,000/-. During the
said judgment amongst others trial Court concluded that the evidence of PW1
and PW2 had remained unshaken. In the appeal preferred by the respondents
5/10 State
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sat cri.appeals 437-97 and 424-97
against the said judgment and order, the Appellate Court at Pune by the
Judgment and Order delivered on 13.03.1997 set aside the order of conviction
and acquitted the respondents.
6. Mr. Sandip Shinde, the learned A.P.P. urged that the Appellate Court
without in cogent reasons reversed the order of conviction and sentence passed
by the trial Court. He urged that the Appellate Court gave unnecessary
importance to the discrepancies arising in the evidence of PW1 and PW2 and
discarded their evidence regarding the raid. It was urged that the Appellate
Court failed to appreciate the prosecution evidence in proper perspective and
missed the important circumstances established by the said evidence. He urged
that the judgment given by the Appellate Court cannot be legally sustained and
the same is liable to be quashed and set aside.
7. The learned counsel for the respondents by taking through the evidence
adduced by the prosecution and so also judgment delivered by both the Courts
supported the judgment delivered by the Appellate Court. He urged that the
Appellate Court had properly appreciated the evidence on record and set aside
erroneous finding arrived by the trial Court which was not warranted upon the
evidence surfaced. He urged that since the said judgment given by the
Appellate Court cannot be termed as a perverse or dehorse the record, no
6/10 State
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sat cri.appeals 437-97 and 424-97
interference with the same is required in State appeal against the judgment and
order of acquittal.
8. Thoughtful consideration were given to the submission advanced and the
record and proceedings were carefully considered to ascertain merits of the said
submissions. After such a consideration it is difficult to accept that the
Appellate Court committed an error in coming to the conclusion that the
prosecution evidence and particularly that of PW1 and PW2 is full of
discrepancies and contradictions and fails to establish the case beyond doubt.
Considering the prosecution evidence it is difficult to find fault with the
observations made by the trial Court that the respondent in Criminal Appeal
No.437 was not found in the flat in which the raid was effected. The judgment
delivered by the Appellate Court also reveals that due consideration was given
to the case of the prosecution that ACP Shejal was instrumental and present for
the said raid and said to have signed the currency notes given to PW2 was not
examined by the prosecution nor any explanation was given for his nonexamination. The perusal of the evidence of PW4 who had taken search of
respondent in Criminal Appeal No.424 of 1997 reveals that the Appellate Court
was very much right in observing that the said witness admitted of handing over
the currency notes to ACP Shejal after raid hence it is difficult to find fault with
7/10 State
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sat cri.appeals 437-97 and 424-97
the observation of the trial Court that examination of ACP Shejal was necessary.
9. Since careful consideration of the evidence of PW2 and PW3 reveal that
the same do not establish that they were found in compromising position, it is
difficult to find any fault with such a conclusion arrived by the trial Court after
appreciation of their evidence. In the said context the evidence of PW2 reveals
that after taking PW3 in the room he had closed the same from inside and
thereafter he had asked her to remove her clothes and then he has removed his
own clothes and embarrassed her. The evidence of PW1 reveals that the room
in which PW2 and PW3 were found was bolted from inside. The said evidence
thus makes it difficult to accept that the raiding party could have seen both of
them in compromising position as alleged. The same adversely affect claim of
PW4 who deposed that PW2 was in full naked condition and lady was standing
next to him. Significantly PW4 even did not claim of having seen both of them
in compromising position. The close look at the evidence of the said witnesses
and so also that of PW5 reveals irreconcilable variance in their evidence
regarding the situation in which both of them were found. Needless to say that
the evidence of PW3 is adverse to the claim stake by PW2 as she did not accept
that either PW2 had asked her to remove the clothes or they were found in
compromising position. Her evidence is confined to rushing of the persons in
8/10 State
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sat cri.appeals 437-97 and 424-97
the room and taking them to the police station. The observations made by the
Appellate Court that during the cross-examination of PW3 it was not elicited as
to who was engaged in the prostitution or found in compromising position with
PW2 is also in consonance with her evidence.
10. Similarly, it was rightly contended by the learned counsel for the
respondent that their exists variance regarding the vehicles used for the raid as
Panchanama Exh.15 denotes user of a single Government vehicle while that of
PW5 speaks of user of two Jeeps by all while PW4 claimed of Shejal alone
coming by a separate jeep. Without reproducing the claim stake by each of the
witnessess regarding said aspect it can be safely said that there occurs variance
in their evidence creating a grave doubt of the raid having occurred in a manner
as claimed by the prosecution. The same is the case regarding the evidence of
PW2 and PW1 regarding the place at which and the manner in which currency
notes were initialed by ACP Shejal. There also exists the variance regarding
handing over of the notes to PW2 i.e. ACP Shejal. PW1 and PW2 claimed that
the notes were signed by PW5.
11. Resultantly, the close scrutiny of the prosecution evidence of which only
few illustrations are narrated hereinabove, leads to the conclusion that the
conclusion drawn by the Appellate Court of the said evidence being full of
9/10 State
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sat cri.appeals 437-97 and 424-97
variance of contradictions and not establishing guilt of the respondents beyond
fail of doubt, is apparently correct and based upon proper appreciation of the
prosecution evidence. In the said circumstances, it is difficult to accept the
submission of the learned A.P.P. that the Appellate Court had not properly
appreciated the prosecution evidence and without cogent reasons altered the
judgment and order of conviction passed by the trial Court. As a matter of fact
the perusal of the said judgment reveals cogent reasons recorded by the
Appellate Court in reversing the finding and setting aside the order of
conviction not warranted upon the prosecution evidence and erroneously
arrived at by the trial Court.
12. In the premises aforesaid, there are no merits in the appeal preferred and
the same deserves to be and accordingly is dismissed.
(P.D.KODE, J.)
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Print Page
the same do not establish that they were found in compromising position, it is
difficult to find any fault with such a conclusion arrived by the trial Court after
appreciation of their evidence. In the said context the evidence of PW2 reveals
that after taking PW3 in the room he had closed the same from inside and
thereafter he had asked her to remove her clothes and then he has removed his
own clothes and embarrassed her. The evidence of PW1 reveals that the room
in which PW2 and PW3 were found was bolted from inside. The said evidence
thus makes it difficult to accept that the raiding party could have seen both of
them in compromising position as alleged. The same adversely affect claim of
PW4 who deposed that PW2 was in full naked condition and lady was standing
next to him. Significantly PW4 even did not claim of having seen both of them
in compromising position. The close look at the evidence of the said witnesses
and so also that of PW5 reveals irreconcilable variance in their evidence
regarding the situation in which both of them were found. Needless to say that
the evidence of PW3 is adverse to the claim stake by PW2 as she did not accept
that either PW2 had asked her to remove the clothes or they were found in
compromising position. Her evidence is confined to rushing of the persons in
the room and taking them to the police station. The observations made by the
Appellate Court that during the cross-examination of PW3 it was not elicited as
to who was engaged in the prostitution or found in compromising position with
PW2 is also in consonance with her evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 437 OF 1997
The State of Maharashtra ...Appellant
(Orig.Complainant)
vs.
Upkarsing Samshersing Aroara,
CORAM : P.D. KODE, J.
Decided on;24 -8-2012
Citation;2013 CR L J(NOC)261 bombay
State has preferred both the aforesaid appeals against the judgment
and order dated 13th March, 1997 passed by the learned Additional Sessions
Judge, Pune, acquitting of each of the respondent in respective appeal from the
charge of the commission of offence punishable under Sections 3, 4 and 5 of the
Suppression of Immoral Traffic in Women and Girls Act, 1956 by reversing
finding of a guilt for commission of such offences by each of the respondent in
aforesaid appeal arrived by JMFC Court No.3, Pune, in RCC No.136/1995 of
the said Code and awarding sentence of RI for one year with payment of fine of
Rs.1000/- by each of them and in default of payment of fine, ordering them to
suffer RI for three months.
2 The prosecution of each of the respondent for commission of such
offences has arisen out of the chargesheet submitted by PW5 PI Pir Mohammed
Abdul Gaffar Japharbhai of Bund Garden Police Station, Pune, on 27th
September, 1995 for commission of such offences and the offence under
Section 66-B of the Bombay Prohibition Act as a result of the investigation of
CR No.295/95 registered with said police station upon the complaint dated 28th
August, 1995 (Exhibit 29) for commission of such offences lodged by him.
2/10 State
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sat cri.appeals 437-97 and 424-97
3 According to the said complaint, PW 5 while at Bund Garden
Police Station, Pune, received an information from his informant that the
respondent in Criminal Appeal No.437/97 alongwith his wife respondent in
Criminal Appeal No.424/97 by calling and providing young girls to male
customers for illicit intercourse runs a brothel under the guise of massage in
Jogan Beauty Parlour, Koregaon Park, Pune, in a flat in Gurudatta Avenue
Building in front of Popular Heights. PW 5 after verification of the information
appraised Shri D.R. Shejal, ACP of Lakshar area about information received.
ACP Shejal forthwith visited Bund Garden police station and verified about the
information. Immediately one PW 2 Jaykumar Digambar Shinde, resident of
Tarachand Hospital Servant Quarters, Pune, was called for acting as a bogus
customer and he was appraised about the import of the information received.
PW2 showed the willingness for acting as a customer. Two respectable persons
PW1 Maruti Deokar and one Kadir Ahmed Khan passing on the road were
called and appraised about the import of the information received and both of
them agreed to act as panch witnesses. They were asked to take the search of
PW5 and PW2. During the search, no money was found with PW2. PW5 left
the cash amount with him in the office and gave Rs.450/- comprised of four
currency notes of the denomination of Rs.100/- and one of Rs.50/- and bearing
3/10 State
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sat cri.appeals 437-97 and 424-97
numbers as stated in the complaint to PW 2 after obtaining initials of ACP
Shejal and gave PW 2 instructions regarding the raid to be effected including
the timing at which he was to give a signal to PW 5. The panchnama (Exhibit
14) to such effect was drawn in presence of ACP of Lakshar Vibhag. After
drawing of the panchnama, ACP Shejal (PW 5), API Pawar, PSI Patil, PHC
1292 Wahile and PHC 2797 Markad from the Surveillance Squad, unarmed
Lady Police Constables Surekha Kale (PW 4) and Vina Turke, fake customer
PW 2 and panch witnesses in civil dress by police jeep left the Bund Garden
police station and via Mangaldas police chowky went to Yerwada Pumping
Station. After halting the jeep at the said place except the police driver all of
them walked uptil Popular Height building. From the said place, fake customer
was asked to go with money to the beauty parlour and after he had gone,
accordingly, all of them waited nearby the staircase on the ground floor.
4 After some time ACP Shejal and the raiding party members rang
the bell and they explained purpose of the raid to respondent in Criminal Appeal
No.424 of 1997 and asked her to take search of the raiding party member but
she refused and agreed to give the co-operation. Two more girls were present in
the flat. After hearing the signal by fake customer, ACP Shejal and PW5 and
4/10 State
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sat cri.appeals 437-97 and 424-97
Panch witnesses entered in the room and found naked PW2 and one woman –
PW3 Sunita wearing only nicker and bra embarrassing. After as asked they
wear the clothes and came in the front room, police searched them. As PW2
told that he had given marked currency notes to the respondent in Criminal
Appeal No.424 of 1997 siting at the counter, the lady constable searched her
and found an amount of Rs.1960/- within it containing marked currency notes
with her. The said amount was seized by the police. The police also found
some liquor and beer in one room of the said flat denoting that both the
respondents used to sell the said liquor to the customers. The same was seized
by the police by drawing panchanama Exh.14. PW5 arrested the respondents
and charge sheeted them.
5. Both the respondents pleaded not guilty to the charge framed against
them. The prosecution examined the above referred five witnesses at the trial.
The defence of the respondent was that of total denial and false implication.
The trial Court after appreciation of the prosecution evidence by the Judgment
and order dated 15.6.1996 convicted both the respondents and sentenced each
of them to undergo R.I. for one year and pay the fine of Rs.1,000/-. During the
said judgment amongst others trial Court concluded that the evidence of PW1
and PW2 had remained unshaken. In the appeal preferred by the respondents
5/10 State
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sat cri.appeals 437-97 and 424-97
against the said judgment and order, the Appellate Court at Pune by the
Judgment and Order delivered on 13.03.1997 set aside the order of conviction
and acquitted the respondents.
6. Mr. Sandip Shinde, the learned A.P.P. urged that the Appellate Court
without in cogent reasons reversed the order of conviction and sentence passed
by the trial Court. He urged that the Appellate Court gave unnecessary
importance to the discrepancies arising in the evidence of PW1 and PW2 and
discarded their evidence regarding the raid. It was urged that the Appellate
Court failed to appreciate the prosecution evidence in proper perspective and
missed the important circumstances established by the said evidence. He urged
that the judgment given by the Appellate Court cannot be legally sustained and
the same is liable to be quashed and set aside.
7. The learned counsel for the respondents by taking through the evidence
adduced by the prosecution and so also judgment delivered by both the Courts
supported the judgment delivered by the Appellate Court. He urged that the
Appellate Court had properly appreciated the evidence on record and set aside
erroneous finding arrived by the trial Court which was not warranted upon the
evidence surfaced. He urged that since the said judgment given by the
Appellate Court cannot be termed as a perverse or dehorse the record, no
6/10 State
::: Downloaded on - 23/06/2013 20:47:36 :::Bombay High Court
sat cri.appeals 437-97 and 424-97
interference with the same is required in State appeal against the judgment and
order of acquittal.
8. Thoughtful consideration were given to the submission advanced and the
record and proceedings were carefully considered to ascertain merits of the said
submissions. After such a consideration it is difficult to accept that the
Appellate Court committed an error in coming to the conclusion that the
prosecution evidence and particularly that of PW1 and PW2 is full of
discrepancies and contradictions and fails to establish the case beyond doubt.
Considering the prosecution evidence it is difficult to find fault with the
observations made by the trial Court that the respondent in Criminal Appeal
No.437 was not found in the flat in which the raid was effected. The judgment
delivered by the Appellate Court also reveals that due consideration was given
to the case of the prosecution that ACP Shejal was instrumental and present for
the said raid and said to have signed the currency notes given to PW2 was not
examined by the prosecution nor any explanation was given for his nonexamination. The perusal of the evidence of PW4 who had taken search of
respondent in Criminal Appeal No.424 of 1997 reveals that the Appellate Court
was very much right in observing that the said witness admitted of handing over
the currency notes to ACP Shejal after raid hence it is difficult to find fault with
7/10 State
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sat cri.appeals 437-97 and 424-97
the observation of the trial Court that examination of ACP Shejal was necessary.
9. Since careful consideration of the evidence of PW2 and PW3 reveal that
the same do not establish that they were found in compromising position, it is
difficult to find any fault with such a conclusion arrived by the trial Court after
appreciation of their evidence. In the said context the evidence of PW2 reveals
that after taking PW3 in the room he had closed the same from inside and
thereafter he had asked her to remove her clothes and then he has removed his
own clothes and embarrassed her. The evidence of PW1 reveals that the room
in which PW2 and PW3 were found was bolted from inside. The said evidence
thus makes it difficult to accept that the raiding party could have seen both of
them in compromising position as alleged. The same adversely affect claim of
PW4 who deposed that PW2 was in full naked condition and lady was standing
next to him. Significantly PW4 even did not claim of having seen both of them
in compromising position. The close look at the evidence of the said witnesses
and so also that of PW5 reveals irreconcilable variance in their evidence
regarding the situation in which both of them were found. Needless to say that
the evidence of PW3 is adverse to the claim stake by PW2 as she did not accept
that either PW2 had asked her to remove the clothes or they were found in
compromising position. Her evidence is confined to rushing of the persons in
8/10 State
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sat cri.appeals 437-97 and 424-97
the room and taking them to the police station. The observations made by the
Appellate Court that during the cross-examination of PW3 it was not elicited as
to who was engaged in the prostitution or found in compromising position with
PW2 is also in consonance with her evidence.
10. Similarly, it was rightly contended by the learned counsel for the
respondent that their exists variance regarding the vehicles used for the raid as
Panchanama Exh.15 denotes user of a single Government vehicle while that of
PW5 speaks of user of two Jeeps by all while PW4 claimed of Shejal alone
coming by a separate jeep. Without reproducing the claim stake by each of the
witnessess regarding said aspect it can be safely said that there occurs variance
in their evidence creating a grave doubt of the raid having occurred in a manner
as claimed by the prosecution. The same is the case regarding the evidence of
PW2 and PW1 regarding the place at which and the manner in which currency
notes were initialed by ACP Shejal. There also exists the variance regarding
handing over of the notes to PW2 i.e. ACP Shejal. PW1 and PW2 claimed that
the notes were signed by PW5.
11. Resultantly, the close scrutiny of the prosecution evidence of which only
few illustrations are narrated hereinabove, leads to the conclusion that the
conclusion drawn by the Appellate Court of the said evidence being full of
9/10 State
::: Downloaded on - 23/06/2013 20:47:36 :::Bombay High Court
sat cri.appeals 437-97 and 424-97
variance of contradictions and not establishing guilt of the respondents beyond
fail of doubt, is apparently correct and based upon proper appreciation of the
prosecution evidence. In the said circumstances, it is difficult to accept the
submission of the learned A.P.P. that the Appellate Court had not properly
appreciated the prosecution evidence and without cogent reasons altered the
judgment and order of conviction passed by the trial Court. As a matter of fact
the perusal of the said judgment reveals cogent reasons recorded by the
Appellate Court in reversing the finding and setting aside the order of
conviction not warranted upon the prosecution evidence and erroneously
arrived at by the trial Court.
12. In the premises aforesaid, there are no merits in the appeal preferred and
the same deserves to be and accordingly is dismissed.
(P.D.KODE, J.)
10/10 State
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