Recovery Of Non-Biological Children From Accused Doesn't Automatically Mean He's Involved In Sex Trade: Telangana HC Orders Discharge

The Telangana High Court has held that recovery of non-biological children from the custody of accused does not automatically mean that he is involved in kidnapping/ illegally trafficking minor girls into sex trade, particularly in absence of any material indicating the commission of any alleged offence.

While allowing a revision petition for discharge of the petitioner-accused, Justice N. Tukkaramji said,

"The claim of the prosecution is that as the DNA reports are indicating that the accused are not biologically related to the rescued girls, the accusation of trafficking can be inferred, is not found acceptable, for the reasons that merely as there is variance in the DNA finding, trafficking or commission of any sexual offence or the intention of the accused to commit the offence cannot be presumed unless there is prima facie material supporting the foundational facts."

The Bench relied upon Union of India v. Prafulla Kumar Samal and another and Manjit Singh Virdi v. Hussain Mohammed Shattaf to note that while deciding a discharge petition, filed after the stage of filing the chargesheet, the Court is bound to accept the evidence placed on record by the prosecution as true and if no prima facie case is made out the petition can be allowed. After which, the evidence was categorically analyzed and decided in favor of the accused/revision petitioner.

“Even in contrast if the accused are taking care of a child as of their own and taking all the care including imparting education does not per se make them offenders until a situation within the scope of any offence is made out. The materials collected in the investigation are not leading to any such fact or circumstance. In the absence of any other material showing that the minor girls were illegally procured or trafficked by the accused, exclusively relying on DNA variation presuming the alleged offence by the prosecution would be untenable.”

The prosecution had contended that upon receiving credible information, they raided the house of the accused and upon enquiring, the accused admitted that they had purchased the minor girls from one Kamsali Shanker with the intention of getting the minor girls into prostitution by injecting them with hormonal injections. Based on the said confessions, crimes were registered, D.N.A. tests were conducted and evidence was gathered by questioning witnesses.

The D.N.A. tests of the accused and the minor girls did not match and some witnesses deposed that the were involved in the sex trade and ran brothels.

A sessions case was initiated and when the accused filed for discharge, the trial court dismissed the petition holding that prima facie offence was made out owing to the confession, the D.N.A test results, and the minors being found in the custody of the accused. It was also held that the residence of the accused was a brothel on account of condoms being recovered from the premise.

In the revision before the High Court, the counsel on behalf of the revision petitioners/accused Advocate Vasudha Nagaraj contended that an F.I.R. registered based on a police confession is hit by Section 25 of the Indian Evidence Act and becomes inadmissible ab initio. She added that condoms being found at the residence of the accused will not automatically mean that the premise is a brothel and that to establish the same, sex work needs to be established.

It was also vehemently argued that the custody of non-biological children will not automatically mean kidnapping/ trafficking merely because established ways of adoption were not followed. She added that the lower court failed to appreciate that the minor girls were being educated and provided for, a fact deposed by the minors themselves.

Justice Tukharamji noted that the F.I.R was registered based on a confession statement, making the FIR a confessional first information report. Referring to Aghnu Nagesia v. State of Bihar, the Court held that when an F.I.R is registered on the basis of a confession, the entire FIR is hit by Section 25 of the Indian Evidence Act except for the portion admissible under Section 27.

“This being the settled legal position the statements of the accused which is in the nature of confession, cannot be proved against him. Therefore, this material is not of any use to prove any fact against the accused,” Court said.

On recovery of condoms, the bench held that it does not prove even by a far stretch of imagination that the house was a brothel.

Further, the Bench held that although some witnesses had referred to the accused by name to state that they used to run a brothel, their source of knowledge was not discovered and the case of the prosecution was non-existent. Additionally, statements of minor girls did not prove any sexual assault or use of growth medication.

“Though the statements are referring to the accused, nothing is pointed showing source of their knowledge particularly the evidence collected by the police is not making out any fact or circumstance to presume the commission of alleged offence by the accused or conduct of brothel or prostitution by the accused. In such circumstances, the rhythmic statements of the witnesses in all the cases are not giving rise to any grave suspicion to proceed against the accused.”

The revisions were thus allowed and the accused were discharged.

Counsel for petitioner: Vasudha Nagaraj

Counsel for respondent: C. Pratap Reddy (P.P)

CrlRc: 479 of 2022 & batch.

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