JUDGMENT
M.C. Jain, J.
1. The appeal has been preferred by the convicted lady Shamshad Bai against the judgment and order dated 24-11-1981 passed by Sri K.S. Dubey, the then VI Additional Sessions Jduge (Metropolitan Area), Kanpur in S.T. No. 252/M of 1980. She has been convicted under Sections 366, IPC, 368, IPC and 376, IPC read with Section 114, IPC. She has been sentenced to four years rigorous imprisonment under Section 366, IPC another four years rigorous imprisonment under Section 368, IPC and five years rigorous imprisonment under Sections 376/114, IPC. All the sentences have been ordered to run concurrently.
2. The facts leading to this appeal are set forth briefly. The genesis of the prosecution case was an FIR lodged on 19-12-1977 at 5-15 p.m. by one Devi Das Arya, a social worker, journalist and the president of local Arya Samaj of Police Station Anwarganj, Kanpur.
3. The vision was a Muslim girl of Mandapali, Madras, named Kamla Bi who became orphan. Her brothers were doing some job at Bombay. She went there, but one Khadir Hasan managed to seduce and bring her to Agra on the pretext of getting her married in some house. However, he sold her to one Fatima for Rs. 2,000/-. Fatima, in her turn, allegedly sold her to the accused appellant at Agra itself. The victim heard the bargain being settled from inside the room in which she was locked. The appellant brought her under Burqa by Taxi to Kanpur and put her in House No. 78/17 Behind Moolganj mosque under strong surveillance of another prostitute Lila and forced her to carry on prostitution attending to a number of customers daily. The money was used to be realised by Lila and appellant Shamshad used to come to collect money from her. She herself resided in another House No. 93/ 143, Anwar Ganj at a little distance. The appellant also practised prostitution. On reluctance or refusal of the victim to attend to the customers, she used to be given good thrashing and threats of cutting her nose and hair. Before coming to Bombay, she had come in contact with one Chhotey Lal. This man got the clue and came to Kanpur and met her. The appellant got him arrested and beaten up by the police. It was Chhotey Lal, who, being sympathized with the victim, passed on the information to the informant who had strong reputation of rendering services in similar cases. He informed the police ‘by means of an FIR and got the victim recovered on 19-12-1977 from House No. 78/ 17 where the appellant was also present. The girl (victim) was sent for medical examination which was conducted on 20-12-1977. She was found to be aged about 19 years and used to sexual intercourse.
4. The appellant pleaded not guilty.
5. The prosecution examined the victim Kamal Bi P.W. 1 and Devi Das Arya. P.W. 2 in support of the case, besides relying on documents.
6. The victim Kamal Bi narrated the prosecution story set forth above and it is not necessary to repeat the same. Devi Das Arya P.W. 2 also narrated his part in getting the victim recovered and also proved the FIR. Later on, he even got the victim married with Chhotey Lal in Arya Samaj Mandir on request of both of them. She has thus come to be rehabilitated with the help of Devi Das Arya P.W. 2.
7. I have heard learned counsel for the appellant in support of appeal and learned A.G.A. in opposition thereof. It has been urged that she has been convicted on insufficient evidence. It has specifically been urged that there was no evidence to prove the charge under Section 376, IPC read with Section 114, IPC. It is significant to point out in this regard that it was admitted to the appellant herself that Lila was her tenant. According to her, she was living in separate house and did not know what Lila and Kamal Bi were doing. But her defence was that she was prosecuted because Chhotey Lal used to visit Karnal Bi and she had objected to it and informed the police, got him arrested and beaten up by the police. The police had also taken Kamal Bi to police station. In the lower Court, she filed a written statement also according to which, she was innocent and resided in House No. 93/143, Anwarganj and not in house No. 78/17 which was occupied by her tenant Lila from whom she used to realize rent every month or every fortnight. Lila had given shelter to Kamal Bi, saying that she belonged to her village. Chhotey Lal used to visit Kamal Bi and get her to practise prostitution on which he reported the matter to the police. Chhotey Lal asserted that he was her husband. People, therefore, got annoyed from her and Chhotey Lal brought in picture Devi Das Arya and got her arrested, though she did not know what profession Lila and Kamal Bi were carrying on and she never realized and money on this Court from them. According to her, Devi Das Arya was a professional witness. It may be pointed out that in her statement under Sections 13, Cr. P.C. she gave her profession as prostitution.
8. On a careful judicial scrutiny of the evidence on record, particularly that of the victim Kamla Bi P.W. 1, it leaves not the slightest doubt that the appellant had actual domination and control over the victim through Lila. She was virtual prisoner and bounded person completely under the dominion and control of the appellant. The appellant was physically present when the victim was recovered by the Police at the behest of Devi Das Arya P.W. 2, The evidence is clinching that the victim had been abducted to compel her to illicit intercourse. She had come under the control and dominion of the appellant only for this purpose and she had purchased her from Fatima like a cattle. It also admits of no doubt that she was wrongfully keeping her in confinement for the purpose aforesaid. Therefore, the conviction of the appellant under Section 366 and 368, IPC is perfectly justified. Technically, however, the offence of Section 376, IPC was not proved for want of specific evidence in this behalf.
9. In the result, the appeal would be partly allowed, so far as the conviction part is concerned.
10. Coming to the sentence part, learned counsel for the appellant has invited the Court’s attention to the statement of the appellant made under Section 313, Cr. P.C. on 22-10-1981 wherein she gave her age as 55 years. She must now be of about 76 years of age. There is under observation of trial Judge also that she was ailing at that time with some chest trouble. Looking to these facts, no useful purpose would be served by sending the aged lady to jail. The ends of justice would be metby sentencing her to pay fine of Rs. 10,000/- for the offence under Section 366, IPC and a sum of Rs. 10,000/-as fine for the offence under Section 368, IPC directing to undergo rigorous imprisonment for two years in default of payment of fine on each count.
11. It is finally ordered as under :–
The appeal is partly allowed.
The conviction and sentence of appellant Shamshad Bai under Section 376, IPC read with Section 114, IPC are set aside. However, her conviction under Section 366 and 368, IPC is maintained. Her sentence for the said offences is modified in this manner that she shall pay a fine of Rs. 10,000/- for the offence under Section 366, IPC and another fine of Rs. 10,000/- for the offence under Section 368, IPC. In default of payment of fine, she shall undergo rigorous imprisonment for two years on each count consecutively. To say in simple terms, she shall pay a total fine of Rs. 20,000/- for the offences aforesaid or shall suffer total rigorous imprisonment for four years in default of payment of fine.
12. Let a copy of this judgment along with record of the case be immediately sent to Court below for necessary compliance under intimation to this Court within two months from the date of receipt.
