RAMESH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) On May 1,1962, we ordered after arguments were concluded that the appeal be allowed and the conviction of the appellant be set aside. We now proceed to record our reasons in support of the order.

(2.) The appellant Ramesh Amin and seven others were tried in the Court of Session, Aurangabad for offences punishable under Ss. 366, 366A. Indian Penal Code and abetment thereof. The appellant was the third accused at the trial. The Sessions Judge convicted accused Nos. 1 to 4 and 7 of the offences charged against them and sentenced them to suffer rigorous imprisonment for two years for each offence, and acquitted the rest. The High Court of Bombay entertained appeal of accused Nos. 1 to 4 (but not of accused No. 7) and set aside the order of conviction and sentence against them for the offences punishable under S. 366 read with S. 34 and S. 366A of the Indian Penal Code. The High Court, however, convicted the appellant of abetting the seventh accused in inducing a minor girl Anusaya to go with other persons from her residence at Kabadipura to Gulzar Theatre, and then to a house known as Bohori Kathada with intent that she may or knowing that she was likely to be seduced to illicit intercourse, With special leave the appellant has appealed to this Court.

(3.) The seventh accused Patilba is a resident of Aurangabad and the eighth accused is his wife. Anusaya is the daughter of Shankuntala by her husband Kashinath. After the death of Kashinath, Shankuntala brought her infant daughter Anusaya to the house of Patilba and started living with him as his mistress. Sometime later Shakuntala left the house of Patilba and took up residence at Nasik, but Anusaya continued to live with Patilba and was brought up by him. Marriage was arranged by Patilba between Anusaya and one Ramlal, but Anusaya declined to live with her husband, Patilba introduced Anusaya to some "customers" and she started indulging in promiscuous intercourse, for money. It was the prosecution case that on January 13, 1960, the appellant went to the residence of Patilba and asked him to bring Anusaya and one Chandrakala (a woman following the profession of a prostitute) to the Gulzar Theatre, and accordingly, Patilba, the eighth accused, Chandrakala and Anusaya went to the Theatre. At the instance of the appellant, Anusaya and Chandrakala were taken by one Devidas (who has given evidence as an approver) to Bohori Kathada, Sub-Inspector Pagare of the Police Station City Police Chowk, Aurangabad had received information that some persons were consuming illicit liquor in a room at Bohori Kathada and he arranged to raid that house. Pagare found accused Nos. I to 5 and Devidas in a room consuming liquor. He also found Chandrakala and Anusaya in an inner apartment. Persons found in the room were arrested and sent for medical examination to the local Civil Hospital and it was found that Anusaya had not attained the age of 18 years. Pagare then laid an information before the Judicial Magistrate, Aurangabad for offences punishable under the Bombay Prohibition Act 1949 - (we are informed at the Bar that in respect of those offences the accused were acquitted and we are not concerned in this case with those offences) - and also for offences punishable under Ss. 366 and 366A of the Indian Penal Code against nine persons including the appellant, Patilba and Devidas. In the course of proceedings for commitment to the Court of Session, Devidas was tendered pardon on condition of his making a full disclosure of the circumstances within his knowledge. The case was then committed to the Court of Session, Aurangabad for trial. The Court of Session held that accused Nos. 1 to 4 had in furtherance of their common intention kidnapped Anusaya - a girl below the age of 18 years - in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she would be forced or seduced to illicit intercourse, and the seventh accused Patilba had abetted the commission of that offence, and that accused Nos. 1 to 4 and 7 had induced Anusaya to go from her residence to the Gulzar Theatre and from the theatre to Bohori Kathada with intent that she may be or knowing that it was likely that she would be forced or seduced to illicit intercourse. He accordingly convicted accused Nos. 1 to 4 of the offence under S. 366 read with S. 34 of the Indian Penal Code and also of the offence under S. 366A of the Indian Penal Code.