Case Note & Summary
The revision application before the Bombay High Court arose from concurrent findings of conviction under Section 373 of the Indian Penal Code, 1860 for buying, hiring or otherwise obtaining possession of minor girls with intent to use them for prostitution. The two revision applicants, original accused, were convicted by the trial court and their appeal was dismissed by the appellate court. On 12 December 2003, police received information that a brothel was being run at building No. 994, Budhwar Peth, Pune, where minor girls were used for prostitution. A raid was conducted along with panchas. On the second floor, girls were found in rooms with wooden compartments and beds. Panchnama was drawn, some girls were found to be minors, and Crime No. 3562 of 2003 was registered. Statements of girls were recorded and they were sent for medical examination at Sassoon Hospital. PW-7, a medico-legal expert, examined the girls clinically and radiologically and certified that one victim was 13 to 15 years old. PW-8, another doctor, found that the girls were subjected to habitual sexual intercourse. The trial court convicted the applicants under Section 373 IPC while acquitting them under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956. The appellate court dismissed the appeal. In revision, the applicants challenged the conviction on grounds that the panch witness turned hostile, there were contradictions between police witnesses, no photographs were taken during the raid, no female police officer was present, and the ossification test was conducted by a non-radiologist. The State argued that the medical opinion of PW-7 was reliable, the victim girls had clearly supported the prosecution case, and there was no statutory requirement for a female police officer at the relevant time. The High Court noted that revisional jurisdiction is limited and evidence cannot be re-appreciated. It held that the ossification test, though not solely conclusive, is reliable when based on clinical and radiological examination by a medico-legal expert; even allowing a margin of error of two years, one victim remained a minor. The testimonies of victim girls PW-4, PW-5 and PW-6 established that the applicants compelled them into prostitution, charged customers money, and paid the girls a portion. The absence of a female police officer was held not fatal because the proviso to Section 46 CrPC was inserted only with effect from 31 December 2009, and guidelines issued earlier were not mandatory. Accordingly, the High Court dismissed the revision application and upheld the conviction and sentence under Section 373 IPC.
Headnote
A) Criminal Procedure - Revisional Jurisdiction - Scope of Sections 397/401 CrPC - High Court cannot re-appreciate evidence to come to contrary conclusion - Code of Criminal Procedure, 1973, Sections 397, 401 - The court noted that revisional jurisdiction is limited and relied on State of Kerala v. Puttumana Illath Jathavedan Namboodiri and State v. Manimaran (2019) 13 SCC 670. Held that the court cannot re-appreciate evidence and must only examine legality, propriety, and correctness of orders. (Paras 10-11) B) Evidence - Age Determination - Ossification Test and Medical Opinion - Indian Penal Code, 1860, Section 373; Code of Criminal Procedure, 1973, Section 53 - PW-7, a medico-legal expert, examined victims clinically and radiologically and certified one victim's age as 13-15 years; even though not radiologist, his opinion was held reliable. Vinod Katara v. State of Uttar Pradesh (2023) 15 SCC 210 was relied to hold that ossification test though not solely conclusive is relevant; applying error margin of plus/minus 2 years, one victim remained minor. Held that conviction could be based on such medical opinion. (Paras 12-16) C) Criminal Law - Section 373 IPC - Buying/Hiring/Obtaining Possession of Minor for Prostitution - Indian Penal Code, 1860, Section 373 - Victim girls PW-4, PW-5, PW-6 testified that applicants compelled them to engage in prostitution, charged customers, and gave them part payment; one victim was minor. Held that all ingredients of Section 373 IPC were proved and conviction upheld. (Paras 17-18) D) Criminal Procedure - Arrest and Search - Female Police Officer Presence - Code of Criminal Procedure, 1973, Section 46 - Proviso to Section 46 CrPC inserting requirement of female police officer for female arrest was inserted w.e.f. 31.12.2009; at incident in December 2003, no statutory requirement existed. Guidelines in Christian Community Welfare Council cases were not mandatory and strict compliance could cause practical difficulties. Held absence of female police officer not fatal to prosecution. (Paras 19-20)
Issue of Consideration
Whether the conviction under Section 373 IPC is sustainable given the unreliability of panchnama, lack of female police officer during raid, and alleged unreliability of ossification test by a non-radiologist; and whether revisional jurisdiction permits re-appreciation of evidence.
Final Decision
Revision Application dismissed; conviction and sentence under Section 373 IPC confirmed.
Law Points
- Revisional jurisdiction under Section 397/401 CrPC is limited and High Court cannot re-appreciate evidence
- Ossification test though not solely conclusive is reliable when based on clinical and radiological examination by a medico-legal expert
- Ingredients of Section 373 IPC include buying
- hiring or obtaining possession of person under 18 years with intent for prostitution or illicit intercourse
- Absence of female police officer during arrest not fatal as proviso to Section 46 CrPC inserted w.e.f. 31.12.2009
- Guidelines requiring female police officer are not mandatory strict compliance
