The State of Maharashtra v. Vijay Bhika Dive

16. P.W. 1 – first informant is the father of the victim. His evidence indicates that he was acquainted with the respondentaccused and his children used to call him as “Mama” (maternal uncle). His evidence further reveals that he came to know about the incident on 22nd February, 2013 when he received a phone call from his son Rajendra. He approached Bhadrakali Police Station where the victim and the respondent-accused were sitting. The victim narrated the incident as to how she came to the Police Station. His evidence is of hearsay nature, however, he categorically testified that his daughter informed him as to how she was brought to Nashik by the respondent when, in fact, the respondent’s wife had informed the victim that they would be going to Vani on the following day. She also narrated the fact that she was brought to Nashik under the pretext of purchasing clothes and chappal. However, the respondent took her to Thakare Galli and thereafter women from the Social Organization noticed the frightened victim 8 of 30 and, therefore, she was brought to the Police Station. During his cross-examination, nothing has been elicited which would render his evidence unbelievable. The cross reveals that at the time of the incident, victim and her sister were staying at Kochargaon with her brother Rajendra. This witness, however, denied a suggestion that the victim was sent with the accused by his son Rajendra and his wife. He also stated that there was no dispute between him and the respondent-accused prior to the incident.

17. Evidence of the victim would be important in this case who was 14 years old at the time of giving evidence. She testified that at the relevant time, she was in 9th standard in a Ashram School situate at Gayachi Wadi. Her brother Rajendra was resident of Kochargaon. Since it was a Saturday, the 16th of February, 2013, she had been to the house of her brother Rajendra. As already stated, the victim used to call the respondent as Mama and, therefore, on 21st February, 2013, she along with her sister had been to his house. Wife of the respondent had informed that they would be going to Vani on the next date. The victim told her that she would bring her younger sister, upon which, the respondent asked her not to bring her younger sister. The victim thereafter informed her brother’s 9 of 30 wife about her plan to accompany the respondent to Vani. On the next date, she visited the house of the respondent. The respondent asked the victim to walk up to a bridge and thereafter he would come and pick her up. Accordingly, the respondent arrived on a motorcycle and asked her to occupy it. The respondent took her to Village Girnare. At Girnare, the victim and the respondent noticed cousin of the victim. The respondent asked the victim not to show herself to her cousin. The respondent thereafter brought her to Nashik in a Jeep. He thereafter took her to a building in an unknown area after passing through lanes. There was a woman to whom the respondent had stated that he had brought a girl with him. The woman asked the respondent to bring her. The respondent took the victim to the said woman. The said woman thereupon abused the respondent by saying that “dk; js eq[kkZ] tkLr ektyk dk\" The respondent thereafter slapped on the head of the victim. The respondent had demanded a room on rent from another woman and asked the victim to enter into the said room immediately. Upon entering into the said room, the victim noticed several cots over there. She got scared and started running away from that place, however, five to six women intercepted and inquired with her, whereupon she told them about the incident. 10 of 30 Thereafter, some persons arrived over there and had beaten the respondent and was taken to the Police Station.

18. In her cross-examination, the victim admits that on the day of the incident, she accompanied the respondent on a Motorcycle which belonged to one Ashok Lilke who is her uncle. It has been reiterated that the respondent took the victim towards Village Girnare. The mens rea of the respondent is writ large which is evident from the evidence of P.W.[3] – Sushila Ghanvate.

19. The cross-examination further reveals that from a river near Village Kochargaon, the respondent took the victim to Girnare on another Motorcycle of one Karanjalikar. From Village Girnare, the respondent took the victim in a Jeep wherein there were 15 to 16 passengers. The victim further testified that two children of the respondent were taking education at Ashram School at Nashik, however, she denied a suggestion that the respondent – accused had been to Nashik to take his children since those were holidays viz: Saturday and Sunday. It is further suggested that the respondent wanted to purchase clothes for his children and that the victim had also asked him that she wanted to purchase clothes from Nashik. 11 of 30

20. Cross-examination of the victim further indicates that she had not asked the Driver of the Jeep as regards fare and place where the Jeep was going. After reaching Nashik, all the passengers alighted from the Jeep. The victim was unaware of the place at Nashik where she had alighted. The cross further reveals that the respondent took her to Thakare Galli after about one hour. She denied the suggestion that while they were walking, few women obstructed them and started snatching mobile from the pocket of the respondent. She also denied the suggestion that the respondent stated that they all were bad persons and that the victim should accompany with him fast.

21. Thus, it can be seen even from the cross-examination of the victim that instead of taking her to Nashik, the respondent took her to Village Girnare first and thereafter to Nashik in a Jeep. If the respondent was to visit Saptashrungi Vani, it is difficult to digest as to how he would take the victim to Nashik and that too, in an area which is known as “Thakare Galli”. It is admittedly a red light area where Brothels are run. Even if the story of the respondent that the victim, despite his reluctance, voluntarily accompanied him would not absolve him from the offence of kidnapping her from lawful 12 of 30 guardianship as provided in Section 361 of the I.P.C as it is evident from the evidence of the victim itself that she was admittedly below 16 years of age and she was enticed by the respondent without the consent of her lawful guardians namely her brother Rajendra and his wife. This is for the simple reason that the respondent had asked the victim to accompany him on a Motorcycle near a bridge and not directly from his house. It is not the contention of the respondent that he took the victim in good faith and was indeed taking her to Saptashrungidevi temple as it has not been suggested to any of the witnesses by the defence. Since the victim was 14 years of age, her act of alleged voluntarily accompanying with the respondent would be insignificant as it would indeed amount to kidnapping from her lawful guardianship. As such, the offence of kidnapping from the lawful guardianship has been established and proved by the prosecution.

22. Having considered the evidence of the victim as well as other witnesses, it is explicit that the respondent had an intention right from the beginning to bring the victim to Nashik in order to procure purpose of her prostitution in the red light area. It is evident that on 21st February, 2013 itself when the victim expressed 13 of 30 her desire to accompany with the respondent along with her younger sister, the respondent asked her not to accompany with her sister. Secondly, if the victim was to be taken to the temple of Goddess Saptashrungi at Vani, why she was taken to Nashik. Thirdly, why the respondent asked the victim to walk up to the bridge and, thereafter, carried her on a motorcycle. Fourthly, upon noticing cousin of the victim at Village Girnare, why respondent asked the victim not to show herself to the cousin. The motive of the respondent, his preparation as well as his previous conduct in view of section 8 of the Evidence Act is quite relevant in the given set of circumstances. These are all the relevant facts which cannot be lightly brushed aside. The intention and mens rea of the respondent is writ large which is even evident from the evidence of P.W 3 – Sushila Ghanwate and P.W. 4 – Latabai Kapse. The respondent is not an innocent person as tried to be demonstrated by the defence in light of the fact that he has been frequent visitor of the red light area of Nashik where he used to bring women for trafficking.

23. To that end, testimony of P.W. 3 – Sushila Ghanwate would be relevant. She testified that she is a resident of Thakare Galli, Nashik 14 of 30 where she has been running a Brothel for 35 years. The respondent always used to bring women. At the relevant time, the respondent had brought the victim around 11.00 a.m to 12.00 noon who was aged about 14 to 15 years. Her evidence further indicates that the said girl was frightened and was weeping. At that time, the respondent had asked for a room whereupon this witness called P.W. 4 – Latabai Kapase and one Parvin Shaikh. P.W. 3- Sushila Ghanwate informed them that the respondent had brought a girl. At that time, one Alka Gurav was also present. They called the Police by making a phone call. Evidence of this witness further indicates that when she asked the victim as to the place from where she was brought, the victim informed her that the respondent had brought her under the pretext of purchasing chappal for her. Thereafter, Police had obtained phone number of the victim’s father and brother and they were called. This witness along with other women accompanied the victim and the respondent to the Police Station where their statements were recorded.

24. Interestingly, it has been substantiated in the crossexamination that P.W. 3 – Sushila Ghanwate has been running a Brothel illegally for 35 years. She also admits that the Police always 15 of 30 used to conduct raids at her Brothel and there are several cases against her for which she was required to attend the Courts. She admits that she has good relations with the Police. It was suggested to this witness that she has falsely deposed against the respondent as regards bringing the victim and asking for a room. She also denied the suggestion that she had falsely deposed about the frequent visits of the respondent to the Brothel who used to bring women. She admits in the cross-examination that at the opening of Thakare Galli, there are stalls of clothes on the road. She also admits that she used to give rooms to other girls. She has denied a vital suggestion that if a person refuses to become her customer, she would snatch his money.

25. Her evidence has not been shattered in the cross-examination in so far as the fact of bringing the victim to her Brothel and the conversation which she had with the respondent at the relevant time. It has also been proved that the respondent not only took the victim at the red light area, especially to the said witness, but even asked for a room. This act, indeed, would attract ingredients of Section 5 of the Act of 1956, which reads thus; 16 of 30 “5. Procuring, inducing or taking [person] for the sake of prostitution.- (1) Any person who - (a) procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or (b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) takes or attempts to take a [person], or causes a

[person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or

(d) causes or induces a [person] to carry on prostitution;

[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a terms of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section,-

(i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and 17 of 30

26. The evidence of P.W. 3 – Sushila Ghanwate coupled with the evidence of the victim and the evidence of P.W.[4] – Latabai Kapse who spoke in tune with P.W. 3 – Sushila Ghanwate would precisely attract ingredients of Section 366A of the I.P.C as it has been established that the respondent induced the victim by taking her with an intention to seduce her to illicit intercourse. There is every reason to construe that the respondent had full knowledge and intention that because of his conduct of procuring the victim, she would be likely to be seduced to illicit intercourse with another person.

27. Even, P.W. 4 – Latabai Kapse, a Social Worker with Disha Sevabhavi Sanstha testified that she received a call in February, 2013 from Alka Gurav to which P.W. 3 – Sushila Ghanwate had already made a reference informing this witness about the incident in Thakare Galli. This witness reached Thakare Galli within 10 minutes. She had seen the victim with the respondent. Other women present over there told this witness that the accused was demanding a room on rent and, therefore, the said women called this witness. Thereafter, this witness along with those women, victim and the respondent had been to the Police Station. The 18 of 30 victim told the Police about the incident as to how she was brought to Nashik by the respondent on the pretext of purchasing Chappal and clothes. The victim was quite frightened. Subsequently, she has given phone number of her father.

28. Evidence of P.W. 4 – Latabai Kapse also remained unshattered and un-rebutted during cross. Rather, it has been substantiated that P.W. 4 – Latabai Kapse is a Secretary of Disha Sanstha which was a registered organization. She always visits Police Station in connection with social work. The defence has tried to suggest that this witness was an accused in a crime for which she was in Central Jail, Nashik for 20 days, which she had denied in clear terms. Interestingly, it is suggested to this witness that she was lodged in Central Jail at Nashik, she had a visit with the respondent which essentially means that the respondent was also in Nashik Jail, perhaps in connection with a crime involving women trafficking or some other crime which strengthens the testimony of P.W. 3 – Sushila Ghanwate as regards his frequent visits to her brothel with women. It can reasonably be inferred from the facts and evidence as well as from the attending circumstances that he is not at all an innocent person. He rather feigned innocence. 19 of 30

29. P.W. 5 – Alka Raghu Gurav is another important witness who testified that on 22nd February, 2013 around 11.00 a.m, the respondent had brought a girl in Thakare Galli. This witness is also resident of Thakare Galli, Nashik. Admittedly, this witness is also a prostitute for last 30 years. Her evidence further reveals that the respondent was demanding a room from P.W. 3 – Sushila Ghanwate. The victim was about 13 to 14 years of age which is an undisputed fact. When P.W. 3 – Sushila Ghanwate called this witness and informed about demand of the accused, who had brought a girl, this witness had called some other women. They gave a call to Disha Sanstha and thereafter Parvin Shaikh and P.W. 4 – Latabai Kapse came over there. They had called the Police. She categorically testified that the respondent tried to escape from the spot but he was caught and thereafter was handed over to the Police. This witness had also categorically deposed that the victim had informed them that she was brought by the respondent to Nashik under the pretext of purchasing clothes and Chappals. This witness had signed panchanama which was prepared by the Police at the house of P.W. 3 – Sushila Ghanwate which is at Exhibit – 20. 20 of 30

30. Merely because certain crimes were registered against P.W. 5 - Alka Gurav by the Police in light of her profession of prostitution does not ipso facto mean that her evidence is to be viewed with suspicion as I find no reason to disbelieve her. Rather, it is praiseworthy and laudable that despite being in the profession of prostitution, these witnesses namely P.W. 3 – Sushila Ghanwate, who was aged about 65 years, P.W. 4 – Latabai Kapse who was 42 years and this witness who was 45 years at the time of recording evidence successfully prevented a futile attempt of the respondent to put the victim into the business of prostitution who was just 14 years of age. The candor with which the witnesses testified leaves no doubt in my mind about the veracity and truthfulness of their evidence, if juxtaposed with the evidence of the victim and the attending circumstances.

31. The fact that the victim was enticed and brought to Nashik under the pretext of purchasing clothes and Chappals is proved to be an omission, nevertheless, it would not be a material omission in view of discussion made hereinabove. 21 of 30

32. P.W. 6 – Aarati Khetmali was working as P.S.I at the relevant time with Bhadrakali Police Station. The sum and substance of her evidence is that on 22nd February, 2013, pursuant to receipt of a phone call from the workers of one Disha Sanstha in connection with the victim and the respondent, she had sent some Policemen, who brought the respondent and the victim at the Police Station. This witness inquired with the victim and also obtained phone number of her father. The complaint was written by this witness which is proved at Exhibit – 27. She identified the respondent to be the same person with whom the victim accompanied. The crime was subsequently transferred to Dindori Police Station. Transfer letter is at Exhibit 28. There is nothing in her cross-examination by the defence except the admission that there were chapter cases against the said Disha Sanstha at Bhadrakali Police Station.

33. P.W. 7 – Vilas Kohinkar was attached to Dindori Police Station as Police Inspector at the relevant time. Initially, on 22nd February, 2013, C.R. No.00/2013 was registered with Bhadrakali Police Station which was transferred to Dindori Police Station. This witness had directed P.S.I Shaikh to register a crime and to conduct investigation. However, this witness himself conducted further 22 of 30 investigation in this case. Spot panchanama was prepared which is at Exhibit – 20. The evidence of this witness is relevant only to the aspect as to how the investigation was conducted and nothing more in light of the proof of other material facts.

34. Extract of attendance register of the Ashram School which is at Exhibit 24 proved the fact that the victim was absent from the School at the relevant time.

35. The impugned judgment is perverse and is in total ignorance of the clinching evidence of the victim as well as P.W. 3 – Sushila Ghanwate, P.W. 4 – Latabai Kapse and P.W. 5 – Alka Gurav as the learned trial Court has not correctly appreciated and discussed the testimonies of these important witnesses. The learned Judge, though in paragraph 9 of the impugned judgment, while describing the admitted facts that the respondent had brought the victim to Nashik and took her to Thakare Galli at the brothel, conveniently ignored this important aspect in later part of the judgment as to why the respondent took the victim in the red light area where Brothels were situated. The learned trial Judge has committed a grave error in observing that as prosecution did not examine brother of the 23 of 30 victim and his wife and, therefore, concluded that it was the victim who voluntarily accompanied the respondent to Nashik. According to the learned Judge, the respondent – accused could not get an opportunity to bring the fact on the record that brother of the victim himself had asked the respondent to take her with him. The learned Judge, on that count, raised doubt about the authenticity of the evidence of the victim to the extent of her kidnapping by the respondent. No acceptable and plausible reasons were assigned by the learned Judge to disbelieve the testimony of the victim as well as P.W. 3 – Sushila Ghanwate, P.W. 4 – Latabai Kapse and P.W. 5 – Alka Gurav.

36. The view taken by the trial Court, in no circumstance, can be said to be possible and probable view on the basis of the evidence adduced by the prosecution. It would be apposite to place reliance on a judgment of the Supreme Court in the case of Hakeem Khan and others Vs. State of Madhya Pradesh,[1] wherein the the Supreme Court has held that; “Reiterated, possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion - A view taken by a court lower in 1 (2017) 5 Supreme Court Cases 719 24 of 30 hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement - But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view - Correctness or otherwise of any conclusion reached by a court has to be tested on basis of what superior judicial authority perceives to be correct conclusion - A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court - The fundamental distinction between the two situations have to be kept in mind - So long as the view taken by trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, view taken by trial court cannot be interdicted and that of High Court supplanted over and above the view of trial court.”

37. It is well settled that the High Court shall not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court can interfere in an appeal against acquittal only if appreciation of the evidence by the trial Court is capricious or it’s conclusions are without evidence that the High Court may reverse the order of acquittal. The impugned judgment and order of acquittal by the trial Court is indeed not in accordance with law and the approach of the trial Court has in fact, led to miscarriage of justice. 25 of 30

38. I am fully satisfied that the incident in question cannot be explained except on the basis of the guilt of the respondent and is inconsistent with his innocence. I am also conscious of the fact that there is presumption of innocence in favour of the respondent. However, the impugned judgment is based on surmises and conjunctures. The Court below has ignored cogent, trustworthy and reliable evidence of the victim, P.W. 3 – Sushila Ghanwate, P.W. 4 – Latabai Kapse and P.W. 5 – Alka Gurav.

39. As such, the view taken by the trial Court is an impossible view in the given set of facts and circumstances. Having reappreciated and reviewed the entire evidence on record, I am constrained to take a view that the decision of the trial Court will have to be reversed by interdicting to meet the ends of justice. There is every likelihood of the respondent being a pimp. However, there is absolutely no scope of any doubt creeping in, in the light of the discussion made hereinabove.

40. The respondent, therefore, is found guilty and stands convicted of the offences punishable under sections 363 and 366A of the I.P.C and Section 5 of the Act of 1956. 26 of 30

41. The respondent will have to be heard on the point of sentence before awarding the same. [PRITHVIRAJ K. CHAVAN, J.] 15TH JANUARY, 2024

42. The respondent – accused is produced before me today at

2.30 p.m by an Officer of Dindori Police Station. Unfortunately, on the last date i.e on 12th January, 2024, when this matter was fixed for hearing the respondent – accused on the point of sentence, Counsel appearing for the respondent – Mr. Parab was absent. Even today, the learned Counsel representing the respondent is absent which is not a healthy practice.

43. I heard the respondent – accused on the point of sentence. He submits that he has four children aged about 24, 21, 14 and 10. He is the only earning member of the family. This is his first offence. He, therefore, prays for a lenient view and to award minimum sentence.

44. Learned A.P.P, on the other hand, submits that looking to the nature and seriousness of the offence, the respondent – accused be awarded maximum sentence. 27 of 30

45. The offences committed by the respondent – accused are indeed serious and have it’s impact on the society. He took the victim under the garb of buying clothes and chappals for her in the red light area of Nashik and made an attempt to put her into the business of prostitution. It appears that the victim had reposed trust upon the respondent – accused since she used to call him as Mama.

46. Of late, there is a rise in the cases under The Immoral Traffic (Prevention) Act, 1956. The said Act is a stringent legislation in order to curb the menace of human trafficking, especially, when a child or minor is induced or carried for the purpose of prostitution. There respondent – accused herein had indeed committed the aforesaid offences and, therefore, he does not deserve sympathy. In order to curb such social evil, some deterrence is required and, therefore, having considered the entire evidence and the facts on record, following sentence would meet the ends of justice.: O R D E R: (a) Appeal is allowed. (b) The Judgment and order dated 9th December, 2013 passed by the Additional Sessions Judge, Nashik in 28 of 30 Session Case No.201 of 2013 is reversed and set aside.

(c) Respondent – Accused - Vijay Bhika Dive is convicted of an offence punishable under Section 363 of the I.PC. He is sentenced to undergo rigorous imprisonment for seven (7) years and shall pay a fine of Rs.25,000/-. In default of payment of fine, he shall undergo simple imprisonment for six (6) months;

(d) He is convicted of an offence punishable under

Section 366A of the I.P.C. imprisonment for ten (10) years and shall pay a fine of Rs.25,000/-. In default of payment of fine, he shall undergo simple imprisonment for six (6) months; (e) He is convicted of an offence punishable under Section 5 (1) (i) of the Immoral Traffic (Prevention) Act, 1956. imprisonment for ten (10) years; (f) The substantive sentences shall run concurrently. 29 of 30 (g) Whole of the fine amount be paid to the victim as a compensation in view of Section 357 (1) of the Cr. P.C, if recovered; (h) Registry is directed to certify the judgment to the Sessions Court, Nashik;

(i) Sessions Court, Nashik shall thereupon make further compliance as per sub-section (2) of Section 388 of the Cr. P.C; (j) Record and Proceeding be remitted to the Sessions Court, Nashik. (k) Appeal stands disposed of. [PRITHVIRAJ K. CHAVAN, J.]