The appellant/defendant A.T. stood accused of abducting the victim, a minor girl named M, and bringing her to Calcutta from Nepal, inducing her to come to Calcutta with the offer of a job. M was thereupon forced to engage in prostitution in A.T.’s brothel on Mitra Street, Calcutta. The Immoral Traffic Section of the Detective Department received a tip and conducted a raid of the brothel, during which M was rescued and A.T was arrested. Medical examination of the victim revealed that she had been habituated to sexual intercourse and was, based on bone ossification test, between 15 and 17 years old. M could not speak Bengali, spoke broken Hindi, but was able to answer questions in Nepali. Trial court accepted ossification test as basis for girl’s age as below 17, however Appellate court held that the two-year variation inherent to the test prevented the finding that she was indeed below 17.
India
Nepal1st Instance:
Judgment dated May 12, 2008 passed by the learned Additional Sessions Judge, VIth Fast Track Court, Bichar Bhawan, Calcutta in Sessions Trial No. 3 of September, 2007 arising out of Sessions case No. 75 of 2005. Court convicted Appellant under Section 373 of the IPC. Court ruled that victim was a minor based on age as determined from ossification report. Court held harmless the minor differences in address, which was corrected promptly with leave of the court, and discounted prosecution witnesses who turned hostile during the trial. Court found sufficient evidence to support contention that appellant had brought the victim, a minor girl, to Calcutta from Nepal and forced her into prostitution. Sentenced appellant to 8 years rigorous imprisonment and Rs. 3000 in fines under Section 373.
2nd Instance:
Found that lower court had erred in relying on ossification record as to age of victim as there could be a two-year variation in determination of age from ossification record. Held that Appellant should have been convicted under Section 366 and not under Section 373. Held that it was within the power of the court to recast the charge even at the Appellate Stage if it is established that essential requirements of the proposed Penal Section have been satisfied from corroborative evidence on record without causing prejudice to Appellant. Imposed sentence of 8 years rigorous imprisonment and Rs. 3000 in fines under first part of Section 366 of IPC.
Appellate Court ruled that the prosecution had, through witness testimony evidence subjected to rigorous cross-examination and corroborated by other testimony, established that the victim was induced by the appellant to enter a red-light area through deceitful means and thereafter forced to engage in illegal sexual activity for a period of at least one month. The trial court’s finding of these facts was justified. However, because the victim’s age was not reliably established to be under 18 years, the appellant could not be convicted under section 373 of the IPC, but could instead be convicted under section 366 of the IPC. The elements of section 366, most notably the requirement that the appellant acted with the intent of forcing the victim into illicit prostitution, were clearly established by both direct and circumstantial evidence. The prosecution also failed to establish a claim under section 366 B of the IPC, which would have required proof that the victim was imported into India from Nepal (transnational trafficking).
Section 373 Indian Penal Code
Section 366 Indian Penal Code
2nd instance:
Found that lower court had erred in relying on ossification record as to age of victim as there could be a two-year variation in determination of age from ossification record. Held that Appellant should have been convicted under Section 366 and not under Section 373. Held that it was within the power of the court to recast the charge even at the Appellate Stage if it is established that essential requirements of the proposed Penal Section have been satisfied from corroborative evidence on record without causing prejudice to Appellant. Imposed sentence of 8 years rigorous imprisonment and Rs. 3000 in fines under first part of Section 366 of IPC.
High Court at Calcutta, Criminal Appellate Jurisdiction
Asha Tamang v. State of West Bengal - CRA No. 398 of 2008 [2011] INWBKOHCA 52603 (28 September 2011)
Appellate Court noted that it had the power to recast the charge to reflect the appropriate section of the Indian Penal Code even at the appellate stage if it found that the essential requirements of the proposed penal section had been satisfied.