REKHA  Vs THE STATE OF NCT OF DELHI

CRL. A. 518/2016 & 555/2016 Page 1 of 21
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.01. 2021

+ CRL. A. 518/2016

REKHA …..Appellant

Versus

THE STATE (N.C.T.) OF DELHI …..Respondent
Advocates who appeared in th is case:
For the Appellant : Mr Sumer Kumar Sethi and Ms Dolly
Sharma, Advocates.
For the Respondent :Mr Ravi Nayak, APP for State with SI
Suman , PS Mandawali.

+ CRL. A. 555/2016 & CRL. M. (BAIL) 722/2020

SUBHASH PANDIT …..Appellant

Versus

THE STATE (N.C.T.) OF DELHI …..Respondent
Advocates who appeared in th is case:
For the Appellant : Mr Ankur Sood with Ms Romila Mandal,
Advocate.
For the Respondent :Mr Ravi Nayak, APP for State with SI
Suman , PS Mandawali.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
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1. The appellant s have filed the present appeal, inter alia ,
impugning a judgment dated 30.03.2016 passed by the ASJ-01(East),
Karkadooma Courts, New Delhi, whereby they were convicted of the
offences for which they were charged . Rekha ( the appellant in Crl. A
518/2016) was convicted for the offence s punishable under Section
109 read with Section 376 of the Indian Penal Code, 1860 ( hereinafter
‘IPC’) and Section 5 of the Immoral Traffic (Prevention) Act, 1956
(here inafter ‘ITP Act’) and Subhash ( the appellant in Crl. A No.
555/2016) was convicted for committing offences punishable under
Section s 366A, 376 and Section 109 read w ith Section 376 of the I PC
and Section 5 of the ITP Act .
2. The appellant , Rekha , impugns an order on sentence dated
26.04.2016 , whereby she was sentenced to (i ) four years of rigorous
imprisonment along with a fine of ₹1,000/ – and in default of payment
of fine, to undergo simple imprisonment for a period of one month for
committing the offence punishable under Section 109 read with
Section 37 6 of the IPC; and (ii) seven years of rigorous imprisonment
along with a fine of ₹1,000/ – and in default of payment of fine to
undergo simple imprisonment for a period of one month for
committing an offence punishable under Section 5 of the ITP Act . All
the sentences were di rected to run concurrently.
3. The appellant , Subhash , impugn s an order on sentence dated
26.04.2016 , whereby he was sentenced to undergo (i) four years of
rigorous imprisonment along with a fine of ₹1,000/ – and in default of
payment of fine , to undergo simple imprisonment for a period of one
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month for committing an offence punishable under Section 366A of
the IPC; (ii) ten years of rigorous imprisonment along with a fine of
₹5,000/ – and in default of payment of fine , to under go simple
impriso nment for a period of six months for committing an offence
punishable under Section 376 of the IPC; (iii) seven years of rigorous
imprisonment along with a fine of ₹5,000/ – and in default of payment
of fine , to undergo simple imprisonment for a period of six months for
committing an offence punishable under Section 109 of the IPC and
(iv) ten years of rigorous imprisonment along with a fine of ₹1,000/ –
and in default of payment of fine , to undergo simple imprisonment for
a period of one month for committin g an offence punishable under
Section 5 of the ITP Act. All sentences were directed to run
concurrently.
4. The father of the victim (here inafter ‘the complainant’) had
alleged that his daughter/victim aged about 12 years (here inafter ‘the
prosecutrix’) – who was a student in fourth standard in a Government
School in Mandawali – had gone to school on 29.01.2011 but had not
returned back. Pursuant to his complaint , FIR bearing no. 31/2011 was
registered at PS Mandawali under Section 363 of the IPC. The
prosecut rix could not be found, however, on 05.09.2011 the
prosecutrix returned back and thereafter, the complainant brought her
to the Police Station. Thereafter, s he was medically examined and her
statement under Section 161 of the Cr .PC was recorded. On
06.09.2011, t he statement of the prosecutrix under Section 164 of the
Cr.PC was recorded .
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5. The prosecution’s case rests almost entirely on the testimony of
the pro secutrix. It is , thus, important to examine her testimony as well
as her statements recorded earlie r
6. The statement of the prosecutrix under Section 161 of the Cr .PC
was recorded on 05.09.2011. She stated that about seven -eight months
ago, she went to the house of her friend Pooja without informing her
parents. She stated that the father of her friend Pooja (that is, the
accused – Subhash) took her to Kolkata and came back after leaving
her in a village. She stated t hat she did not like it there ( gaon mein
mera man nahi laga ). She informed a Baba, who was a resident of that
village , about the same . The Baba called the accused , Subhash , and
thereafter, the accused took her back to Delhi. She stated that the
accused an d his wife Reeta had changed their house and shifted to a
new house in Delhi. They invited people from outside and they used to
do gande kaam with her . She also stated that the accused Subhash ,
also used to do gande kaam with her. She stated that Pooja’s mother,
Reeta and her mausi used to get her ready and confine her to the house
(mujhe taiyar karti th i gharmain band karke rakhti thi ).She stated that
in the morning (that is, the morning of 05.09.2011), the accused had
gone to drop his daughter Pooja to school after bolting the door from
outside. But he had not locked it. She stated that she sought help
from a boy , who was roaming outside and escaped from th e house.
She then reached home by asking directions from strangers and
narrated the incident s to her father who thereafter, took her to the
Police Station.
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7. The statement of the prosecutrix was recorded under Section
164 of the Cr .PC on 06.09.2011. She stated that she d id not remember
the date, but it was winter season when she had gone to the house of
Pooja without informing and without the consent of her parents. She
stated that she along with Pooja and Pooja’s father whose name was
Subhash , stayed at Pooja’s house and thereafter, went to their village
in Kolkata. She stated that in the village, she started missing her
parents and wanted to go back home. The villagers called Pooja’s
father and thereafter, Pooja, her father and she came back to Delhi.
She stated that she st ayed at Pooja’s house for two -four days.
Thereafter, o utsiders started coming to their house and Pooja and
Pooja’s parents used to make her do gande kaam . She stated that the
outsiders used to remove her clothes and the n used to do gande kaam
with her. She also stated that the accused Subhash also used to gande
kaam with her and had raped her. She stated that boys in drunken
condition used to come at night and they also used to do bad acts with
her. The accused had locked her in a room for days. She stated that,
the day before (that is, on 05.09.2011), when the accused had gone to
drop his daughter to school, he forgot to lock the door from outside
and simply latched the door. She stated that she got the door opened
from outside from a boy and after that she reached her house and told
her father about the entire incident. She stated that when she was on
her way to her house, she met Pooja. She slapped Pooja and told her
that she was going to her house. She also stated that when she was
leavi ng from their house, they had torn her clothes and that is why she
came home wearing Pooja’s clothes.
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8. The prosecutrix was examined as PW -2. She deposed that she
did not remember the exact date, however, one day her friend Pooja
had asked her to get clothe s as they were going somewhere for an
outing. They went to the house of Pooja, where the appellant (Subhash
Pandit) , who is the father of Pooja , met her. Thereafter, the appellant
took her to Kolkata. Her friend Pooja also accompanied her. She
stated that she told the appellant Subhash that she wanted to go back
to her house, however , he told her that her parents had died. She
stated that after one month, she came back to Delhi and was locked in
the house. She deposed that Subhash Pandit and his wife Reeta and the
Mausi of Pooja (Rekha ) all used to reside in the house. She also
testified that they used to beat her and had confined her in the house.
She further deposed that the appellant and his wife Reeta used to
forcibly make her establish sexual relations with other persons, and if
she resisted, they used to beat her and threaten her that they would
throw her outside the house without any clothes. She stated that the
appellant , Subhash Pandit , also had sexual intercourse with her on
three to four occasions , without her consent. She stated that she was
daily forced to establish sexual relation s with four persons. She also
stated that the accused Rekha and her friend Pooja also used to
entertain customers. She testified that one day when the accused had
gone to drop Pooja to her school, he had failed to lock the door of the
house and had only bol ted the door from outside. She asked a boy ,
who was playing outside, to open the door. Thereafter, she fled from
there and returned to her house. She told her father about the incident
and she was taken to the Police Station , where her statement was
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record ed by the police. She was then taken to the hospital and her
medical examination was conducted.
9. In her cross -examination, she deposed that she had not told any
of her family members that her friend Pooja had asked her to bring her
clothes. She stated that she was taken to the railway station in an auto.
She stated that she did not tell anything about the incident to the TSR
driver as the accused had covered her mouth with a cloth. She also
stated that there were public persons at the railway station, howev er,
she did not disclose the facts to any one of them. She testified that
there were houses adjoining the house where she was kept in Kolkata.
The mohalla people saw them while they were going to the house,
however, she did not complain to anyone. She exp lained that t his was
because the accused used to scold her after holding her hand. She
stated that when she returned from Kolkata she tried to inform a
person, however, the accused tried to close her mouth. At the railway
station, she again tried to inform a lady, however, the daughter of the
accused threatened her. She stated that the Police Station is ten
kilometers from her house and reached the police station by foot. She
for the first time disclosed about the incident to the police and at that
time the y did not record any statement. She stated that from the police
station she returned back to her house and informed her father about
the incident. She deposed that her father initiated legal proceedings.
She also deposed that her father was not friends wit h the accused ,
Subhash Pandit. She denied further that her father had taken any loan
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of ₹ 10,000/ – on 22.12.2010 from the accused in the presence of one
person named Udal.
10. The father of the prosecutrix was examined as PW -1. He
testified that the prosecutrix was thirteen – fourteen years ( 13-14 years )
of age and she was studying in third/fourth class at the time of the
incident. He testified that about one /one and a half years prior to the
date ( the date of his examin ation in chief ), the child victim went to her
school but did not return back. He stated that the next day he went to
the Police Station and made a complaint (Ex. PW1/A). He continued
searching for his daughter but could not find her. He testified that afte r
about eight -nine months, the prosecutrix returned to her house and
thereafter, he took her to the Police Station. He deposed that the
prosecutrix had told him that her friend Pooja, had taken her to her
house from school and s he was detained by her and her father.
Thereafter, she was taken to Kolkata by Pooja’s father and was forc ed
into prostitution. The prosecutrix was taken to the hospital for her
medical examination. She was produced before the concerned court
and her statement was recorded under Section 164 of the Cr.PC. He
stated that he was called to PS Mandawali , when the accused persons
Subhash Pandit and Rekha , were arrested and his daughter/ prosecutrix
had accompanied him. The prosecutrix identified the accused and
thereafter, both the accused were arrested.
11. In his cross -examination, PW -1 deposed that he could have
mentioned the incorrect age of the victim in his affidavit furnished to
her school , which may indicate that she was underage. He d enied that
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the prosecutrix had eloped with a boy named Muttu. He also de nied
the suggestion that he had borrowed ₹30,000/ – from the appellant
(Subhash Pandit) or there was any quarrel between him and the
appellant Subhash , when the appellant Subhash demanded the said
amount.
12. HC Kaushilya deposed as P W-3. He stated that on 05.06.2013,
he along with the IO, SI Vijay Kumar (PW-6) went searching for the
co-accused Rekha. The accused Subhas h Pandit was also with them.
He stated that the accused Subhash took them to a room at Subzi
Mandi Shakarpur , which was locked . While they were returning back,
they found the co-accused Rekha standing near Aggrawal Sweets, near
Shakarpur flyover with a child in her lap. The c o-accused , Rekha , was
identified by the accused Subhash. She was apprehended and was
brought to the Police Station. He deposed that the co -accused Rekha
was arrested vide arrest memo (Ex. PW3/A) and her personal search
was conducted vide memo (Ex. PW3/B). He also deposed that the co –
accused was then taken to LBS Hospital and she was medically
examined.
13. Ct. Rajesh Kumar was examined as PW -5. He stated that on
04.06.2013, he along with SI Vijay Kumar (PW -6) and the
complainant (PW -1) reached the flyover near Ganesh Nagar Chowk.
He stated that SI Vijay Kumar (PW -6) had received information from
an informer regarding the presence of the accuse d, Subhash Pandit. He
stated that after the identity of the accused was established through his
identity card, the accused was interrogated by the IO. He deposed that
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the accused Subhash was arrested (arrest m emo Ex. PW5/A) and his
personal search was also conducted (memo Ex. PW5/B). He also
deposed that he took the accused to LBS Hospital and he was
medically examined.
14. SI Vijay Kumar was examined as PW -6. He testified that on
29.01.2011, the complainant , Jagdish (PW -1) had made a complaint at
the Police Station that his daughter (that is, the prosecutrix/victim) had
gone to school in the morning but had not returned. He stated that his
statement was recorded (Ex. PW -1/A) and rukka (Ex. PW -6/A) was
prepared . The rukka was handed over to the duty officer for
registration of the FIR. Thereafter, he along with the complainant
made efforts to search the prosecutrix, however , they were unable to
locate her. He deposed that on 05.09.2011, the complainant along wit h
the prosecutrix came to the Police Station and the complainant told
him that the prosecutrix had returned home by herself. He deposed
that the prosecutrix was kept in the custody of Lady Ct . Rajshree and
was interrogated. He deposed that the prosecutrix was taken to LBS
Hospital for her medical examination along with her father. Next day,
the statement of the prosecutrix was recorded under Section 164 of the
Cr.PC before the Ld. MM. He stated that on 14.09.2011, he received
secret information about the co -accused R eeta and she was arrested.
He also stated that on 04.06.2013, on the basis of secret information,
the accused , Subhash Pandit , was arrested. He also stat ed that the co-
accused , Rekha , was apprehended the next day from Shakarpur near
Aggarwal Sweet s, at the instance of the accused Subhash . He stated
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that the accused Subhash was taken for his medical examination to
LBS Hospital. He stated that on 05.06.2013, the prosecutrix came to
the Police Station and identified the accused persons. He stated that
the exhibits were sent to the CFSL and the FSL report received during
the trial of co -accused R eeta indicated that no traces of semen w ere
found on the exhibits of the prosecutrix. He stated that he prepared the
supplementary chargesheet and filed the same in court.
15. As is apparent from the above, apart from the testimony of the
prosecutrix, there is no evidence to convict the appellants. The Trial
Court had also noted that the prosecutrix was the star witness. The
Court found that the examination -in-chief of the prosecutrix was clear
and unambiguous and therefore, proved the charge against the accused
(the appellants herein). The Trial Court further observed that the
prosecutrix was a student of fourth standard and was aged about
twelve years on the day when she was reported missing in January
2011. The court further took note of a judgment dated 06.03.2013 ,
whereby the co -accused ( Reeta ) had been convicted of the charges
framed against her. The court proceeded on the basis that since the age
of the prosecutrix was noted as twelve years in the said judgment, it
was established that she was a child as defined under the ITP Act.
16. However, no evidence was led in this case to establish the age
of the prosecutrix. Undisputedly, there is a serious controversy as to
the age of the prosecutrix. This is so because in her statement recorded
under Section 161 of the Cr.PC, her age was mentioned as twenty
years. The prosecutrix was examined under Section 164 of the Cr.PC
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and in that statement , her age is recorded as about eighteen years.
While , the father of the prosecutrix (PW -1) had stated that the age of
his daughter was about thirteen to fourteen years ; in his cross –
examination, he conceded that he “ may have mentioned the wrong age
of the victim showing her under age ”. Despite the controversy
regarding the age of the prosecutrix, the prosecution did not lead any
credible evidence with regard to her age.
17. Mr. Nayak, learned APP who appeared for the State also fairly
conceded that there was a lapse on the part of the prosecution and the
evidence before the Trial Court did not establish that the age of the
prosecutrix w as below sixteen years. Thus, the prosecutrix could not
be considered as a child within the meaning of Clause (aa) of Section
2 of the ITP Act.
18. The second aspect of the matter is the lack of any tangible
evidence. Although the charges made against the app ellants are
serious, there is no evidence to su pport most of the allegations . It is
apparent that the Investigation Agency did not conduct investigation
of any material value to establish the allegations against the
appellants. It is alleged that the prosecutrix had been confined to a
house , which was visited by numerous persons , who had established
physical relations with her. However, there is no evidence as to the
description of the said premises. None of the neighbours had been
identified to estab lish that the premises in question , where the
prosecutrix was allegedly kept , was visited by various persons. Thus,
apart from the statement of the prosecutrix that she had been confined
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to a house, where at least three to four persons would establish
phys ical relations with her on a daily basis, there is no material
whatsoever to establish the same. In addition, the prosecutrix had also
stated that the accused Rekha used to also engage in establishing
physical relationships with various visitors and so di d her friend . If the
said statement is correct, then there would be at least half a dozen
persons visiting the premises on a daily basis. Yet there is no material
that this fact was verified.
19. The prosecutrix was allegedly taken to a village in Kolkata,
however , there is no evidence as to the identity of the village or
locality where the prosecutrix was housed in Kolkata . There is no
evidence whatsoever as to the identity of the Baba to whom she had
expressed her desire to go back to Delhi. There is also no evidence
that the appellant Subhash or his family had any house in Kolkata . If
the statements made by the prosecutrix are correct, there would be
ample corroborative evidence to support the same. However, as
noticed above, there is no corroborative ev idence of any of the
allegations made by the prosecutrix.
20. The prosecutrix has alleged that her friend, Pooja ,had also
accompanied her to Kolkata , however, the investigation agency has
not produced any evidence to establish the same. The attendance
record of Pooja has also not been placed on record to establish that she
was absent from her school immediately after the prosecutrix was
reported missing.
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21. Plainly, if in normal course sufficient evidence ought to have
been available to support the case set up by the prosecution but the
same is not led, an adverse inference ought to be drawn.
22. However, in the present case, the testimony of the prosecutrix
has remained uncontroverted. Undeniably, there are inconsistencies in
the statement made by the prosecutrix. T he principal question to be
addressed is whether the said inconsistencies are significant to raise
doubts on the allegations made by her.
23. In her initial statement recorded under Section 161 of the
Cr.PC, she had alleged that her friend’s mother (R eeta) and her
maternal aunt ( mausi ) used to get her ready and would confine her to
the house ( mujhe taiyar karti thi t atha mujhe ghar me band karke
rakhti thi ). She did not allege that the appellant Rekha used to beat her
or force her to have sex with strangers. However, in her statement
recorded under Section 164 of the Cr.PC, she affirmed that her
friend’s maternal aunt ( mausi ) and her mother used to force her to do
galat kaam . In her examination -in-chief, the prosecutrix alleged that
the accused (the appellan ts) and the co -accused R eeta, used to force
her to have sex with other persons and if she resisted, she was beaten
and threatened that she would be thrown out without any clothes. She
alleged that the accused Rekha used to prepare her for customers.
Howeve r, there was no allegation that the appellant had confined her
in any manner. An allegation to the aforesaid effect was made against
the accused Subhash. The prosecutrix alleged that on one occasion he
had locked her in a room for two -three days.
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24. Admittedl y, the prosecutrix had left her home voluntarily. She
had also carried her clothes , which clearly indicate that she intended to
stay away from her home for more than a day. In her initial statement
recorded under Section 161 of the Cr.PC, the prosecutrix s tated that
the accused Subhash (her friend’s father) had taken her to Kolkata and
had left her in the village. However, she was not happy there ( mera
man nahi laga ). The prosecutrix did not make any allegation of being
taken to Kolkata against her will or being confined there against her
will. On the contrary , she stated that she did not feel happy there and
had told one ‘ Baba’, who was a resident of the said village that she
wanted to go back to Delhi. He had called Subhash, who brought her
to Delhi.
25. In her statement recorded under Section 164 of the Cr.PC, she
reiterated that she had gone with her friend Pooja to her house and the
appellant, Subhash had taken her to a village in Kolkata, however, she
added that he had given her jeans to wear. She did not allege that she
was taken to Kolkata against her will. No such allegation was made by
her in her examination -in-chief as well.
26. In her statement recorded under Section 164 of the Cr.PC, the
prosecutrix did not make any allegation that the appellant Rekha used
to confine her in any manner. She alleged that after her return from
Kolkata, she stayed in her friend’s house for a few days and thereafter ,
her parents made her do ganda kaam. Subseq uently , she added that
Pooja’s mother and maternal aunt ( mausi ) also forced her to do galat
kaam . She further alleged that P ooja’ s mother also asked her to do
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galat kaam with Pooja’s maternal and paternal uncles ( mama –
chacha ), when they came back from the ir village and they did so
despite her refusing to do so. It is material to note that no such
allegation was made by the prosecutrix either in her earlier statement
recorded under Section 161 of the Cr.PC or in her testimony before
the court.
27. It is also material to note that the prosecutrix had not name d the
accused Rekha in either her statement recorded under Section 161 of
the Cr.PC or under Section 164 of the Cr.PC but only mentioned her
friend Pooja’s mausi . Apart from the prosecutrix’s testimony that
Rekha also resided in the premises, there is no evidence to the
aforesaid effect. As noticed above, there is no site plan or a layout
plan of the premises or the material particulars of the premises where
the p rosecutrix was allegedly kept.
28. The version of the prosecutrix as to how she had escaped from
the premises where she was kept is also contradictory. In her statement
recorded under Section 164 of the Cr.PC , the prosecutrix affirmed that
on one day, the appe llant Subhash forgot to lock the house from
outside when he went to leave his daughter Pooja to school. She stated
that he had merely bolted the door and she persuaded a boy , who was
roaming outside , to open the bolt. However, she went on to state that
she met her friend Pooja on her way back home and slapped her. She
also explained that they (the accused) had torn her clothes while she
was leaving so she wore the clothes of her friend Pooja. If the
prosecutrix was confined in the house and had escaped as s he alleged,
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there would be no occasion for anyone to tear her clothes while she
was leaving and certainly no time for her to change into a fresh set of
clothes.
29. In her cross examination, the prosecutrix made a further
allegation that while she was returnin g from Kolkata , she had
attempted to inform another person but , the accused (Subhash) had
closed her mouth and her friend Pooja had also threatened her. She did
not make any such allegation either in her statements recorded earlier
or in her examination -in-chief.
30. It is necessary to bear in mind that the train journey from Delhi
to Kolkata is a long one and most trains take more than a day. Yet, the
prosecutrix neither remembered the date of the journey nor the name
of the train.
31. Having noted the above, thi s Court is of the view that the
inconsistencies in the statements made by the prosecutrix and her
testimony are not material. This is because she has been consistent in
her core allegation that she had been raped and had been compelled to
engage in sex wit h various other persons. As noticed above, in her
initial statement, she had alleged that Pooja’s mother and her mausi
used to prepare her and keep her confined inside the house. In her
statement under Section 164 of the Cr.PC, she had stated, in
unambiguous terms , that Pooja’s mausi and her mother used to force
her to do galat kaam . She also testified before the court that the
accused Rekha used to force her to do galat kaam (sex) with
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‘customers ’. She further alleged that the accused Rekha used t o
prepare her for the ‘customers’.
32. In view of the above, this Court is unable to find fault with the
decision of the Trial Court to convict the accused Rekha of
committing an offence punishable under Section 109 of the IPC read
with Section 376 of the IPC.
33. The learned counsel appearing for the appellants had contended
that there was no evidence to establish any commercial angle to the
alleged offences. They submitted that there is no evidence on record to
establish that either of the appellants had accepted any consideration
for the prosecutrix allegedly engaging in sex with various persons and
therefore, the offence punishable under Section 5 of the ITP Act was
not established.
34. At this stage, it is relevant to refer to Section 5 of the ITP Act,
which is set out below:
“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 t o 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
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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 wit h fine which may
extend to two thousand rupees and if any offence under
this 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 term of
fourteen years:
Provid ed that if the person in respect of whom an offence
committed under this sub -section, —
(i) is a child, the punishment provided under this sub –
section shall extend to rigorous imprisonment for a term of
not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub –
section shall extend to rigorous imprisonment for a term of
not less than seven years and not more than fourteen years;
35. As is apparent from the plain language of Section 5 of the
ITP Act , any person who procures or attempts to prepare a
person, whether with or without his consent, for the purposes of
prostitution would be liable to be punished for an offence
punishable unde r Section 5 of the ITP Act. In terms of Clause (d)
of Section 5(1) of the Act, any person who causes or induces a
person to carry on prostitution would be punishable under the
said Section.
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CRL. A. 518/2016 & 555/2016 Page 20 of 21
36. The term ‘prostitution’ is defined under Clause (f) of
Section 2 of the ITP Act as under:

“2(f) ‘Prostitution’ means the sexual exploitation or
abuse of persons for commercial purposes, and the
expression “prostitute” shall be construed accordingly.”

37. Although , there is no direct evidence that the persons with
whom t he prosecutrix was allegedly compelled to engage in sex had
paid any consideration (whether in money or in kind) to the
appellants ; the prosecutrix had referred to the said persons as
‘customers’. This testimony of her had remained unshaken. The
prosecutrix had clearly testified that the accused used to compel her to
engage in sex with various persons and as many as four persons a day.
She had also referred to them as ‘customers ’.
38. In view of the above, there can be little doubt as to the nature o f
her allegation s. A meaningful reading of her statements and testimony
would clearly indicate that the prosecutrix had alleged a commercial
angle to her being compelled to engage with, customers.
39. In view of the above, this Court also finds no fault in th e
decision of the Trial Court to convict the appellants for committing /
abetting an offence punishable under Section 5 of the ITP Act.
40. The testimony of the prosecutrix had also proved the charges
made against the accused Subhash.
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CRL. A. 518/2016 & 555/2016 Page 21 of 21
41. In view of the above, this Court also finds no reason to
interfere with the decision of the Trial Court in convicting the
appellants for the offences for which they were charged.
42. Insofar as the sentence s awarded to the appellant s are
concerned, the appellant Rekha has already served her sentence.
Insofar as the appellant Subhash is concerned, the Trial Court had
while sentencing him not ed that he was a handicap person and had
suffered a disability due to a paralytic attack. He also has three
children , who are dependent on him. It is also not disputed that the
appellant Sub hash has clean antecedents and is not involved in any
other case. He has already served more than eight years and eight
months of his prison sentence. In view of the mitigating
circumstances, this Court consid ers it apposite to reduce the sentence
awarded to the appellant Subhash to the period already served. The
said appellant would be released from custody on payment of the fines
as directed. In the event of his failure to pay the fines as imposed
under Sect ion 376 of the IPC and under Section 109 of the IPC read
with Section 5 of the ITP Act, the appellant would undergo a simple
imprisonment for a period of one month (instead of six months) as
awarded by the Trial Court.
43. The appeals are disposed of in the aforesaid terms. The pending
application is also disposed of.

VIBHU BAKHRU, J
JANUARY 25, 2021 /RK
2021:DHC:268