The Bombay High Court has quashed and set aside an order of the Additional Sessions Judge, Thane, convicting accused Yellamma Mehatre and Firoja Shaikh under Section 366A (procuration of minor girl) of the Indian Penal Code.
Justice AM Badar also directed the fine imposed on both accused to be refunded to them.
Upon receiving information that minor girls were being compelled to indulge in prostitution in Navi Mumbai, Inspector Jagtap decided to lay a trap to apprehend the accused. Sombling Kamble was taken as a decoy customer.
When the police raided the said premises, the accused fled from the stop. Two victim girls were found. An FIR was lodged against the accused under Section 366A IPC and sections 3, 4, 5 and 6 of the Immoral Trafficking (Prevention) Act, 1956.
Upon examination of all the facts of the case, the trial court held that the accused could not be convicted under the Immoral Trafficking (Prevention) Act, as the mandatory provisions (namely sections 13 and 15) were not complied with by the police.
While S.13 of the said Act mandates the appointment of a Special Police Officer for dealing with offences under the Act, S.15 mandates the officer to conduct search without warrant.
Clearly, the accused were not held guilty under the Immoral Trafficking (Prevention) Act due to non-compliance on part of the police.
It was held that the accused had got the victim girls to Mumbai on the pretext of getting them a job and forced them into prostitution.
Dr. Anilkumar Gondhale, who conducted the ossification test of both victims, concluded that they were aged below 18 years.
Thus, the accused were held guilty under Section 366A and were sentenced to 5 years and asked to pay a fine of Rs. 2000.
Appearing for Firoja Shaikh, Nasreen Ayubi referred to the statement of the victim girls and said they had accepted the fact that the accused were their relatives and, therefore, they cannot be accused of kidnapping the girls.
The court noted how Dr. Gondhale had determined the ages of the victim girls between 16-17 years and 13 -14 years. However, in his cross-examination Dr.Gondhale said the ages may vary by a couple of years.
The court said: “Thus, it is seen that evidence regarding assessment of age of victim girl is a very fragile premise. No attempt was made by the prosecution to procure birth certificates of both these victim girls or to call their parents.”
Due to lack of “cogent evidence” to prove that the victim girls were minor at the time of the offence, Justice Badar held that the accused were entitled to benefit of doubt. Hence, he quashed and set aside the order of conviction and ordered the release of Firoja Shaikh and cancelled the bail bond of Yellamma.