SONI ALIAS SUNITA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been filed against the appellate judgment of learned Additional Sessions Judge No. 1, Jodhpur Camp Jaisalmer, dated 17 -11 -1978 whereby the learned lower court has upheld the conviction of accused petitioner Mst. Soni under Sections 3(1) and 7(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act of 1956) and has sentenced her to one year's R.I. together with fine of Rs. 200/ - under Section 3(1) and to one month's R.I. for the offence under Section 7(i) of the Act of 1956. Her conviction under Section 4(1)(Kg) of the Rajasthan Prohibition Act has also been maintained and she has been sentenced to 3 month's R.I. together with a fine of Rs. 200/ -. in default of payment of each amount of fine she had been ordered to undergo 15 day's R.I. The learned Sessions Judge has also maintained the conviction of accused Champalal under Section 7(1) of the Act of as also the order of the learned trial court about his furnishing a personal bond and surety bond of Rs. 1000/ - to keep peace and be of good behaviour. Aggrieved against this judgment of the learned Sessions Judge both these accused petitioners have preferred this revision.

(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that on the night intervening between 24th and 25th January, 1975 complainant Mohanlal who happens to be the real brother of accused Mst. Soni approached the Dy. Superintendent of Police, Jaisalmer and told him that he lives in Mohalla Jagripada of Jaisalmer. Just adjacent to his house there is the house of his real sister Mst. Soni. It has been alleged by him that Mst. Soni has been indulging in prostitution and is carrying a brothel in her house. She has been offering herself along with Mst. Kamla and daughter of the complainant Suraj and other ladies for prostitution. He has also alleged that his wife Mst. Mumal also indulges in the prostitution with Mst. Soni. The premises occupied by Mst. Soni is used as a brothel and there all these ladies along with others offer their bodies for prostitution for commercial gain. It is alleged that his nephew Dalip and his two sons Shyam and Amrit along with Champalal brahmin who is driver in Police, help these ladies, to run this brothel. According to him Kamlesh and Ganga Shanker are known to him and they are on visiting terms with his sister and they are also helping Mst. Soni in running this brothel. These person themselves participate in prostitution and help these ladies to earn money out of the prostitution. The house of Mst. Soni is situated within 200 yards of a school and a public temple. He has also alleged that today night Kamlesh Gangashanker and Champalal have paid Rs. 20/ -each to Mst. Soni, Suraj and Kamla and he knows that these persons will indulge in prostitution with these ladies. As the window of his house opened in the house of Mst. Soni he has witnessed all these things. On the basis of this information Shri Pukhraj along with SHO Jaisalmer with some other police officials accompanied by informant raided the house of Mst. Soni. In this raid when they peeped into the rooms from the openings in the doors they found accused Champalal committing sexual inter course with Mst. Soni and in the other two rooms they found Kamla alongwith Gangashanker and Suraj along with Kamlesh naked in their respective rooms which were bolted from inside. Suraj and Kamlesh were found sleeping naked and Gangashanker and Kamla were found naked. As soon as they saw that the police has come they came out naked where they were asked to wear their dresses. All the accused were sent for medical examination. Medical reports were obtained and on the basis of this investigation a challan was filed in the court of learned Chief Judicial Magistrate Jaisalmer. The learned Chief Judicial Magistrate convicted accused appellant Mst. Soni and Champalal as aforesaid. It has also held Kamla, Suraj Ganga Shanker Kamlesh and Champalal guilty for the offence under Section 7(1) of the Act of 1956 but has released them on probation. The learned CJM held accused Soni, Amrit, Shyam, Dalip and Mutual guilty of the offence under Section 3(1) of the Act of 1956 and they were sentenced by him to one year's R.I. with a fine of Rs. 200/ - each. On appeal the learned District Judge has maintained the conviction of Mst. Soni, Champalal, Kamla Suraj, Kamlesh and Gangashanker. However the learned Sessions Judge acquitted Shyam, Dalip, Amritlal and Mumal from the offence under Section 3(1) of the Act of 1956. Mst. Kamla, Suraj, Kamlesh and Gangashanker have not preferred any revision. Only these two accused petitioners, i.e. Soni and Champalal have come up in revision.

(3.) HE has submitted that in this case there is not an iota of evidence that prostitution was carried on in this house for the gain of any other person. There is also not an iota of evidence that the prostitution was carried on in this house for the benefit of two or more persons. Not a single witness has stated that even for the commission of this offence any money was paid. Only an inference has been drawn by the learned trial court that when three ladies are simultaneously offering their bodies for the satisfaction of the sexual lust of different persons of different communities it must be a brothel. It has also taken support from the statement of Mohan Lal that Mst. Soni was indulging in the acts of prostitution in this house. That alone is not enough to treat the premises as a brothel because the prosecution has to prove that the premises are used for prostitution for the gain of another person or for the mutual benefit of two or more prostitutes and that burden has to be discharged according to Mr. Arora by the prosecution and prosecution alone and it can not be shifted on the accused persons and drawing of inference in such matters is not permissible. In this respect he drew strength from certain observations made in Bhula Mia v. State reported in : AIR1969Cal416 where in a Division Bench of the Calcutta High Court has observed that in order to prove that a particular premises is a brothel, prosecution has to prove that it is used for purposes of prostitution for gain of another person or for mutual gain of two or more prostitutes, in other words, prosecution has to prove that in the premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. The onus entirely remains on the prosecution and the legislature has not deemed it fit or necessary to shift any part of the onus on the accused in any circumstances. He has, therefore, submitted that it was essential for the prosecution to have proved that the prostitution that is being carried on in the house of Mst. Soni is for the gain of any other person on for the mutual benefit of Mst. Soni, Kamla and Suraj. He has submitted that it has been held by this court in Mst. Pyari's case (supra) that prostitution by itself has not been made punishable unless it is in any way covered by the provisions of Sections 7 and 8 of the Act of 1956. A woman who prostitutes herself for her own livelihood save in the manner given in Sections 7 and 8 of the Act does not commit any criminal offence under this law which aims at the suppression of Immoral Traffic in Women and Girls for the purpose of prostitution; Similar view has been expressed in Re Ratnamala and another reported in : AIR1962Mad31 . Anantnarayanan, J. observed in this authority that though distinct from the word 'management' occurring there in has to be read ejusdem generis with the latter word and so the scheme of the Act is not such as to render a prostitute herself criminally liable for the mere act of prostitution except under Sections 7 arid 8. Thus, the mere act of prostitution itself has not been made punishable unless it is covered by the provisions of Sections 7 and 8 of the Act of 1956. It was therefore, the duty of the prosecution to prove that Mst. Soni was indulging in the act of prostitution along with other girls either for the benefit of somebody else or for the mutual benefit of herself along with Suraj and Kamla. Mst. Mumal and three other accused who were sleeping outside have been acquitted of the charge. No body has said that any money Was accepted by any of these three women either for the mutual benefit of themselves or for the gain of any body else. It is true that apparently this house is being used as a 'brothel'. It may be true that these ladies were including in prostitution and they have all been held guilty under Section 3(1) of the Act along with three persons but: to prove a charge under Section 3(1) of the Act it has to be proved that the prostitution was being carried on for the gain of any person or for the mutual benefit of the ladies. Unless that ingredient has been proved the charge under Section 3(1) of the Act cannot be held as proved against Mst. Soni.