(1.) THE State represented by the Public Prosecutor has preferred this appeal challenging the legality and correctness of the order of acquittal of both the accused, who were charged for offences under Secs. 3 (1)and 7 (1) of the Suppression of Immoral Traffic in Women and Girls Act, by the learned IV Metropolitan Magistrate. , Madras. THE accused were tried for offences under Secs. 3 (1) and 7 (1) of the suppression of Immoral Traffic in Women and Girls Act (hereinafter referred to as the Act) on the allegation that the first accused, who is the father of the second accused, being the occupier of the premises bearing door No,8, Second crescent Park Road, Gandhi Nagar, Adyar, was keeping a brothel in the said premises and collected a sum of Rs. 1,000 from one Vasu for gain and mutual benefit for himself and his daughter, the second accused, and allowed the second accused to offer her body for sexual intercourse for hire with the said Vasu in the bed-room in the said premises and further, the second accused carried on prostitution by offering her body for sexual intercourse for hire with the said vasu, P. W. 1, within the above premises, which is situated 200 meters from Rajah muthiah High School and the Church, on 19th July, 1980 between 5. 30 and 6 p. m. In support of the above charges, the prosecution examined P. Ws. 1 to 14, filed exs. P1 to P17 and marked M. Os. 1 to 7.
(2.) THE case of the prosecution as disclosed from the oral and documentary evidence can be briefly stated as follows: P. W. 14, Assistant commissioner of Police, Anti-Vice Squad, on receipt of information that the premises bearing door No. 10 (new) , Second Crescent Park Road, Gandhi Nagar, adyar is used for the purpose of prostitution by the first accused with the assistance of his daughter, the second accused, verified the information on different dates and confirmed that the said premises is being used as a brothel. He collected further information that a sum of Rs. 1,000 was collected from every visitor for sexual intercourse with the second accused by the first accused for mutual benefit and gain of both. He collected P. W. 1, a decoy witness, who is the manager of Singapore Lodge, Egmore. P. W. 1 agreed to assist p. W. 14 in the detection of the case. P. W. 1 at 2 p. m. on 19th July, 1980 phoned up to the house of the accused and asked for a time for his visit to the said brothel house for having sexual intercourse with the second accused. THE reply was to the effect that P. W. 1 was asked to come near the petrol bunk near Adyar and that they would pick him up in a car to the house. THEreafter, P. W. 14 secured the presence of two witnesses, P. Ws. 2 and 9. He gave a sum of Rs. 1,000 which consisted of 10 hundred-rupee notes, marked as M. O. 1 series, duly signed by P. W. 14, to P. W. 1. P. W. 14 asked P. W. 1 to give the amount to the first accused in the house for having sexual intercourse with the second accused. THE mahazar ex. P1 was prepared at the Assistant Commissioner' ; s office regarding the handing over of M. O. 1 series to P. W. l by P. W. 14. It was attested by P. Ws. l, 2 and 9. P. W. 14 also signed. After having made all arrangements, P. W. 14 along with his party and P. W. 1 and witnesses went to the petrol bunk. P. W. 1 was sent in a separate car, while P. W. 14 and other followed in different motor vehicles. As already planned, P. W. 1 reached the petrol bunk at Adyar, and telephoned to the accused' ; s house from there. At about 4. 30 p. m. the accused sent a car bearing registration number PYP 9483 and picked up P. W. 1 to the house of the accused. P. W. 14 and party followed the same and stood near the southern side of the junction of the first and second road of Gandhi Nagar, Adyar. It was about 5. 30 p. M. when P. W. 1 reached the house of the accused. Accused 1 and 2 were present at the house, P. W. 1 introduced himself to the first accused as the person who had telephoned already and that he had come for having intercourse with the second accused. So saying, he gave M. O. 1 series to the first accused. After receiving the same, the first accused asked P. W. 1 to go inside the room where the second accused was available. P. W. 1 went inside the said room and after talking to the second accused for some time, had sexual intercourse with her. In the meantime, P. W. 14 sent for P. W. 3, Sarojini Rao, who is an edcationalist and a member of the social health organisation and secured her presence. Waiting for sometime after P. W. 1 went inside the house, P. W. 14 came to know of the accommodation of the decoy witness in the house of the second accused. He prepared the grounds of belief, Ex. P14 since there was no time to get warrant of search. He proceeded to the house of the accused with his party. P. W. 14 tapped the bed room of P. W. 1. P. W. 1 opened. the door, P. W. 14 and party found p. W. 1 and the second accused in a half naked condition. P. W. 4 is a photographer and he attempted to take snap of the situation. THE second accused pushed aside the camera and it was struck up. Hence he could not take any snap. At that time, P. W. 1 was wearing the jetty M. O. 2, while the second accused was wearing the skirt M. O. 3. P. W. 14 recovered M. Os. 2 and 3 also the bed sheet M. O. 4 under cover of mahazar Ex. P3. THE first accused was not available at that time. About half an hour later, he came there. P. W. 1 identified the first accused before p. W. 14 and party. P. W. 14 recovered nine hundred rupee notes from the first accused. In all those hundred rupee notes the signature of P. W. 14 were found and that the number of the currency notes also tallied with the one already noted in the mahazar Ex. P1. After coming to know from the first accused that he had given one hundred-rupee-note to the T. U. C. S. shop at Adyar for the purchase of whisky bottle M. O. 5, M. O. 5 was seized under cover of mahazar Ex. P4 attested by the same witnesses. P. W. 14 directed the Inspector P. W. 13 to go and seize the currency note from the said shop. Accordingly P. W. 13 went to the t. U. C. S. shop and seized one hundred-rupee-note under cover of mahazar Ex. P13 attested by P. Ws. 10 and 11, employees of the shop, P. W. 14 arrested accused 1 and 2 on the same day at 7. 30 p. m. , and brought them to the station at 8. 15 p. m. He registered a case in Crime Nos. 637 and 638 of 1980 under Secs. 3 (1) and 7 (1) of the Act. He sent P. W. 1 and the second accused for medical examination.
(3.) ACCORDING to the learned Government Advocate, P. W. 1 cannot be treated as accomplice witness; but he is only a decoy witness, and that the Court below erred in rejecting his evidence on the sole ground that he has given different addresses in regard to his residence. In fact he has pointed out that P. W. 1 has only stated that he worked as a Manager in a lodge at Egmore and was residing at Whannels Road and there is no contradiction in respect of his residential address. It is brought to my notice that though in chief-examination he has stated that he was the manager at Singapore Lodge, egmore, in his cross-examination it was elicited that he was residing at no. 172, Royapettah High Road, Madras and that he can not say who is the owner of the property or the nature of the building. When he was examined by the investigating Officer he has stated that he was residing at No. 9, Whannels road, Egmore and even the letter which was received by him contained the same address. He also admitted that he used to give information often to the anti-Vice Squad. It was also elicited from cross-examination that it was the first occasion he went to the house of accused 1 and 2 in order so have sexual intercourse with the second accused. Further, he has mentioned the name of the lodge where he was working as the. South India Lodge, in his 162 Statement. It was also pointed out that he was a witness in a prior case filed by the same investigating Officer, P. W. 14, Mr. Krishnamurthi, under the Suppression of immoral Traffic in Women and Girls Act as is evidenced by Ex. D2, where he has given his address as the son of' ; Raju' ; and not' ; Appu' ; and his address is no. 10, Tippu Sahib Lane, Triplicane Main Road. That was 12 days prior to this occurrence, namely 7. 7. 1980. As such, it is clear that witness is capable of giving different addresses at different times and he has no regard for truth. It is also pointed out by the learned counsel for the respondents that though he has stated to the police that the Sub-Inspector, Ramachandran called him on the same day morning at 10 AM. , he now pleaded ignorance about the name of the sub-Inspector, and deposed that he did not know the name of the Sub-Inspector who called him. Though it is stated that when P. W. 4 attempted to take photo, the second accused pushed the camera and the same was struck up and hence photo was not taken, this witness P. W. 1 has not referred to anything in his respect in his evidence, learned Government Advocate argued that this witness is not expected to know all these things and he can only say about the part played by him and he need not give the entire occurrence. Such an argument cannot be accepted. In order to find out whether he is speaking the truth or not, it has to be seen whether he has given the correct version of the events which took place inside the house. The fact that he figured as a mahazar witness in the previous case and now a decoy witness does not make any difference in view of the admitted fact that he is an informant to the police regarding the cases under the Suppression of Immoral Traffic in Women and Girls Act. The investigating officer admitted that P. W. 1 stated that he is an informant. In this connection, the learned counsel for the respondents drew my attention to the decision of the Supreme Court reported in Panalal v. State of Maharashtra, (1979) 4 S. C. C. 526: 1979 Crl. L. J. 936: A. I. R. 1979 S. C. 1191, wherein it was held that a bribe giver is also an accomplice and the evidence of the Complainant is in no better position than accomplice and that corroboration in material particulars is necessary. As such he admittedly being a decoy witness and his evidence being in the nature of accomplice, his evidence should be corroborated in respect of material particulars and the learned Magistrate has rightly not accepted the evidence of P. W. 1, on the ground that his evidence clearly establishes that he is a witness obliged to police. Further, he is unreliable and there is absolutely nothing to interfere with the finding of the learned magistrate as far as the evidence of P. W. 1 is concerned. Coming to the evidence of P. Ws. 2, 10 and 11, it is seen that they turned hostile and hence it is not helpful to the prosecution. As regards P. W. 3, the learned Magistrate rejected her evidence on the ground that she herself has admitted that she was a witness in similar cases for police from 1968. She has also asserted that the aim of her Association is to assist police to eradicate evils of such matters. Her evidence is also contradictory to the evidence of P. W. 1. P. W. 1 has deposed that some work was going on and two or three workers were working in the adjoining hall of the scene place, while P. W. 3 has denied the same and stated that she did not see anybody working there. ACCORDING to P. W. 3, when P. W. 4, photographer attempted to take photographs, the lense was broken, while the evidence of p. W. 4 photographer and the repairer of the camera, P. W. 5, is to the effect that the lense was not broken. The learned Magistrate relying on this portion of the evidence of P. W. 3 observed that she is person who would say anything to help the police and that the trial Magistrate is not impressed with her evidence. In this connection, reliance was placed on the decision reported in Hira Lal v. State of Haryana, 1971 Crl. L. J. 290. A. I. R. 1971 S. C. 356, wherein it was held that where a person appears as prosecution witness four or five times in police cases pertaining to particular police witness, the evidence of such witness does not carry any value. Relying on the above decision, the learned Magistrate has held that P. Ws. 1 and 3 who are admittedly stock witnesses for police and appeared in several cases do not deserve any credence. The learned Government advocate submitted that P. W. 3 is aged 72 years, that she is a respectable lady and that the reasons assigned by the Court below for rejecting her evidence are not tenable. On going through the evidence, I find that her evidence does not carry value. She has categorically stated that she has been a witness in many cases for Anti-Vice Squad and vigilance in City Civil Court and also witness for police in such cases from 1968. She has also stated that she has assisted mofussil police and used to be witness for C. I. D. police also and that she cannot say exactly as to the number of cases for which she was taken to the commissioner' ; s office from her house. She has further admitted that the aim of the association, namely, Cultural Organization for Social Health in which she is a member, is to eradicate evils of such matters and her duty is also eradicate such evils and as such her duty is to assist police in such cases and give evidence. Further, when she was cross-examined, she has stated that after 5. 30 p. M. , everything was over and thereafter at 6 O' ; Clock she and others left for Commissioner' ; s office and by 6. 30 P. M. they were in the Commissioner' ; s Office. It is her further evidence that from the Commissioner' ; s office she went to her house in police car. The learned counsel for the respondents drew my attention to the fact that though she is a witness to exs. P3 and P4, she has specifically stated that she does not know the contents of Exs. P3 and P4 and that she does not know Tamil. It is also brought to my notice by the learned counsel for the respondents that though it is stated by p. W. 3 that by 5. 30 P. M. everything was over and mahazar was prepared and seizure was Completed and they left the scene place and reached the office of the Deputy Commissioner at 6. 30 P. M. , it is seen that Ex. P3 was prepared at 6. 35 P. M. , at the scene place and Ex. P4 at 7 P. M. , according to the prosecution. It is seen from the evidence of P. Ws. 13 and 9 and the mahazar ex. P13 that Ex. P13 mahazar was prepared at 7. 30 P. M. at T. U. C. S. Stores, Adyar and thereafter P. W. 13 returned to the scene house and thereafter they returned to the office. Relying on the circumstances, the learned counsel for the respondents submitted that the evidence of P. W. 13 is highly contradictory to the case of the prosecution and it leads us to conclude that she (P. W. 3) is not speaking the truth. It is also brought to my notice that though she had stated that she was examined by the Assistant Commissioner at the scene place, the investigating Officer, namely, the Assistant Commissioner denied having examined her at the scene place. Further, though she has now stated that she saw the first accused coming with liquor bottle and that she told the same to the police, it was elicited from the Investigating Officer that she has not stated so. From these circumstances, it cannot be said that the learned trial magistrate has not acted properly on the evidence of P. W. 3. I am of the opinion that he has rightly rejected her evidence. Reliance was placed on the evidence of P. W. 9 who is an attestor to Ex. P1 mahazar and who also accompanied the raiding party to the house of the accused and attested the mahazar Ex. P4. It is elicited in cross-examination that he came to the office of the Assistant commissioner at 3. 15 or 3. 30 P. M. and the amount of Rs. 1,000 was given to P. W. 1 at about 3. 45 or 4. 00 P. M. , and Ex. P1 was prepared. But, On the other hand, ex. P1 was prepared at about 2. 30 P. M. at the office of the Assistant commissioner P. W. 14. Thus, his evidence is contradictory to Ex. P1 to which he has attested. Next it was pointed out that it is the positive evidence of this witness (P. W. 9) who is the driver of the car which was lent by his master to the Commissioner, that he was staying in the car in front of the yard of the house of the accused, near the front gate, for about 20 minutes, and when P. W. I entered into the house and till the police subsequently entered into the house, nobody either went inside the house or came out of the house and that there is only one gate for the house. That portion of the evidence is contradictory to the case of the prosecution that P. W. 1, immediately after entering the house, paid the amount of Rs. 1,000 to the first accused and after receipt of the money, he (first accused) came out of the house to purchase whisky in T. U. C. S. Stores and after the police party entered into the house and were effecting raid, he came subsequently with whisky bottle. As such, the evidence of P. W. 9 that he was present is highly improbable. Further, P. W. 9 is very definite in his evidence that from the first accused M. O. 5 whisky bottle, M. O. 7 permit and Ex. P5 receipt for purchasing whisky were seized and nothing else was seized from him. But it is the case of the prosecution that a sum of Rs. 900 was also seized from him. Though he has now stated in evidence that he told the police that the first accused was not there when police came, P. W. 14 denied his version. His evidence that the Assistant Commissioner took the first accused to the T. U. C. S. Stores is also contrary to the case of the prosecution. From all these circumstances, his evidence was not accepted by the learned Magistrate and as such there is nothing to hold that the said reasoning is perverse or improbable.