Rita Dilip Ghosh vs The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

REVISION APPLICATION NO. 227 OF 2003
Smt. Rita Dilip Ghosh
aged 42 yrs. residing at Corner Room, 3rd Floor,
Rele Building, Shamrao Vithal Marg, Mumbai. ...Applicant
Versus
State of Maharashtra
(D.B. Marg Police Station) ...Respondent

Mr. Himanshu Indise a/w Mr. Sujay Shingade & Mr. Abhishek Kunchikor
for the Applicant.
Ms. Manisha R. Tidke, APP for the Respondent/State.
Mr. Deepak Pol, PSI, Investigating Officer, Dr. D.B. Marg Police Station,
Mumbai.

CORAM : M.M. SATHAYE, J.
rd
DATE : 03 JULY, 2026
JUDGMENT :
1. This is a case involving human trafficking of two minor girls.
2. The Applicant is original accused, who has filed this criminal
revision, challenging order dated 07.04.2003 passed by Additional
Sessions Judge, Greater Mumbai in Criminal Appeal No. 16 of 2003.
By the said impugned order, the appeal filed by Applicant is dismissed,
thereby confirming the judgment and order dated 16.01.2003 passed
by Metropolitan Magistrate, 18th Court, Girgaon, Mumbai in CC. No.
44/P/97. The learned Magistrate has convicted the Applicant for
offence punishable under Section 6 of Immoral Traffic (Prevention)
Act, 1956 (‘PITA’ for short) and sentenced her to suffer rigorous
imprisonment (RI) for 2 years and to pay fine of Rs. 3,000/- and in
default, to undergo simple imprisonment (SI) for 3 months. Set off
under section 428 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'
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for short) has been given to the Applicant. The Magistrate has
acquitted the Applicant of the offence punishable under Section 41 of
Juvenile Justice Act, 1986.
3. The case of the prosecution in short is that on 26.08.1996,
Officers of Dr. D.B. Marg police station received information about
brothel being run at Rele /Rai building, S.V. Marg, Mumbai (‘the said
Building’ for short). Accordingly, one of the officers Shri. Jadhav called
two panchas who were informed about the brothel and the proposed
raid. That the police authority with the panchas raided the said
building. That on 3rd floor, they found two minor girls in one room
with the Applicant. That minor girls were rescued, Applicant was
arrested and on investigation, the Applicant was charge-sheeted. The
allegation is that minor girls were found with the Applicant in the said
building which was used for the purpose of prostitution and that they
were minor girls treated with cruelty.
4. The Applicant pleaded not guilty and her defence is of total
denial.
5. The prosecution examined PW-1 - Smt.Lata Manoj Gohil who
is a panch witness and also a DHMS doctor, PW-2 -Kiran Dashrath
Kabadi is a police sub-inspector (PSI) attached to the concerned police
station on the date of the raid, PW-3 is Mr. Khemsingh Laxman Jadhav
who is Senior Police Inspector (Sr. PI) of the concerned police station
on the date of the raid and PW-4 is a doctor- Ramramrao Tukaram
Kendre, who was attached to Nagpada Police Hospital at the relevant
time as R.M.O.
6. On appreciation of evidence, the learned Magistrate found the
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Applicant to be guilty of offence punishable under section 6 of PITA
only. The Applicant filed the said appeal and by the impugned order,
the conviction as well as sentence passed by the Magistrate has been
confirmed.
SUBMISSIONS
7. Learned counsel for the Applicant submitted as under:
7.1 That the allegations leveled against the Applicant are not proved
beyond reasonable doubt. That there is material contradiction in
evidence because PW-1 has stated that she was called as panch witness
on 27.08.1996, however, the case of the prosecution is that raid was
conducted on 26.08.1996 as per statements of PW-2 and PW-3.
7.2. That ingredient of brothel being run by Applicant is not proved
beyond reasonable doubt.
7.3. That PW-2 has stated that there is delay of 24 hours in
registration of the First Information Report ('FIR' for short) on account
of victims not being medically examined, but PW-3 has stated that
there is no delay in filing of F.I.R. and time is incorrectly mentioned as
12:30 Hrs instead of 00.30 Hrs. That, therefore, there is material
contradiction about reason for delay in filing F.I.R. That the
prosecution has failed to explain delay in filing the F.I.R.
7.4. That PW-3 has given contradictory statements about victims being
found in custody of the Applicant.
7.5. That PW-4 Medical Officer has not conducted ossification test to
come to conclusive finding about age of victims and opinion about age
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is given on examination of private parts and higher secondary
characters of the victims along with X-rays.
7.6. That the statements of victims are not recorded to corroborate the
allegations and the prosecution has deliberately chosen not to record
statements of victims as the same would have otherwise revealed the
truth and therefore, adverse inference be drawn.
7.7. That the prosecution has not placed any other evidence to
indicate that any cruelty was inflicted upon the victims and the
statement of PW-4 - medical officer about old burn marks on the lower
part of leg of one of the victim is not supported and corroborated.
7.8. That only a Special Officer is empowered to take action in
connection with provisions under PITA as per Section 15 thereof and
the case of the prosecution that ACP- Gawali was present at the time
of conducting raid has not been proved. That prosecution has failed to
record the statements of ACP- Gawali. That panch does not mention of
the said ACP- Gawali being present.
7.9. That the entire case of the prosecution is based on circumstantial
Sharad
evidence which does not pass the test laid down under
Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. He relied
on the following judgments in support of Applicant's case :
(i) Noor Aga Vs. State of Punjab and Anr. ( 2008) 16 SCC
417.
(ii) Ganesh Bhavan Patel and Anr. Vs. State of Maharashtra
(1978) 4 SCC 371.
(iii) Mussauddin Ahmed Vs. State of Assam (2009) 14 SCC
541.
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(iv) P. Sasikumar Vs. State represented by the Inspector of
Police (2024) 8 SCC 600.
(v) Chandrappa and Ors. Vs. State of Karnataka (2007) 4
SCC 415.
(vi) State of Madhya Pradesh Vs. Anoop Singh (2015) 7
SCC 773.
(vii) K. Chinnaswamy Reddy Vs. State of Andhra Pradesh
and Anr. AIR 1962 SC 1788.
(viii) Sharad Birdichand Sarda vs. State of Maharashtra
(1984) 4 SCC 116.
8. On the other hand learned APP supported the impugned order
for both, conviction as well as sentence. She submitted as under.
8.1. That the Applicant is the owner of the said building which was
raided.
8.2. That the Courts below have rightly considered that since the
victim girls were sent to their native places by the Juvenile Board,
their statements could not be recorded and they could not be
examined in Court.
8.3. That the alleged contradictions are not material because in any
case, FIR was filed within 24 hours. That PW-2 has only admitted that
there was delay of about 24 hours and PW-3 has stated that time
mentioned in the FIR should have been 00:30 Hrs. That in this case,
the raid has taken place from 26.08.1996 throughout the night till
early hours of 27.08.1996, as can be seen from panchnama and
evidence of PW-1 and the alleged contradictions are not material,
considering that the victims where to be medically examined and
handed-over to the Juvenile Justice Board and it required formalities
to be completed.
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8.4. That the testimony of the witnesses inspire confidence and
medical evidence also supports that the victims were minors.
8.5. She strongly objected to the argument about absence of
ossification test contending that X-rays are considered by the medical
officer and therefore it cannot be said that ossification test has not
taken place.
8.6. She submitted that argument about dates mentioned by PW-1
and PW-2 & PW-3 was never advanced earlier. That the argument
about case of circumstantial evidence is factually incorrect because
three prosecution-witnesses have seen the minor girls in the said
building with the Applicant.
8.7. She submitted that the offence is very serious and concurrent
finding of conviction and sentence requires no interference in the
limited revisional jurisdiction of this Court.
REASONS AND CONCLUSION
9. I have carefully considered the rival submissions and perused
the record.
10. At the outset, it is pertinent to note that there is no merit in
the argument of learned counsel for the Applicant that statements of
the victims were not recorded. I have perused the record and
proceedings, which contain statements of victims at D-51 and D-52.
However since those statements are recorded by the police and the
said victims have not entered the witness box before the Court, those
statements are not being considered in order to ensure fair and legal
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consideration.
11. It is necessary to note that the offence under PITA is a very
serious offence which is against humanity and the society at large.
Human trafficking involves brutal methods adopted by the traffickers
including kidnapping, abduction, torture, threat to life, confinement
and many other inhuman treatment of the victims involved. The
offence of trafficking when perpetrated against minors makes it even
worse and heinous. Often, the victims who are rescued are suffering
from trauma and are not in a position to given clear statements. For
obvious reasons as the victims fear for their own lives and lives of their
near-ones, are not willing to give statements to police, much less stand
in the Court for that. Therefore, much depends on the prosecution
witnesses such as police officers and panchas. Therefore, ‘minor
contradictions’ in the evidence of prosecution witnesses can not be
held as fatal to the prosecution’s case.
12. PW-1 Smt. Lata Gohil is a panch witness, who has stated that
on 27.08.1996 she was called as panch witness and when she reached
the 3rd floor of the said building she was shown there, two minors
girls who were residing there and the Applicant/accused (present
before the Court) was also shown to her in that room who was present
with two minor girls. In cross examination, she has stated that one old
woman , who was another panch witness was also present.
13. This witness is incidentally a DHMS doctor who has stated in
the cross-examination that the girls were minor on appearance. It is
material to note that advocate for the Applicant-accused has himself
asked this question inviting this statement from PW-1.
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14. PW-2 – PSI Kiran Kabadi has stated that on 26.08.1996 he
received information about brothel being run in the said building. He
has further stated that two panchas were called for the purpose of
raid. He has further stated that the police team with ACP Gawali along
with two panchas proceeded to 3rd floor of the said building and they
found two minor girls in one room. He has stated that the said girls
informed that Applicant is the owner of the building. He has stated
that thereafter the girls were sent to children home and the Applicant
was arrested. The suggestion that ACP Gawali was not present with
them, has been specifically denied by this witness.
15. PW-3 Sr. PI Jadhav has stated that on 26.08.1996 he was on
duty when he received information that two minor girls are kept in the
said building on the 3rd floor. He has stated that the police team
visited the spot. He has stated that they rescued two minor girls and
he came to know that prostitution was being run in the said place by
the Applicant. He has identified Applicant who was present in the
Court. He has also stated that the girls were rescued and were sent to
the children home. This witness clearly stated that both victim girls
are not traceable as they were sent to their respective native place by
the Juvenile Board. It is material to note that this evidence is recorded
in September, 2002.
16. Perusal of the panchnama (Exh. P1) shows that PW-1 Smt.
Lata Manoj Gohil and Smt. Prabhavati Namdeo Randive were
panchas, who have signed it. Panchnama is recorded between 1.00 hrs
to 2.00 hrs on 27.08.1996. It is recorded in presence of panchas. It is
recorded that police searched 3rd floor of the said building where two
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minor girls were found who were taken in custody. It is also recorded
that girls were residing with the Applicant. Names of the girls are
written in panchnama.
17. Combined reading of evidence of PW-1, PW-2 and PW-3
alongwith panchnama clearly shows that tip/information was received
on earlier day i.e. 26.08.1996 and by the time panchas came and the
rd
3 floor of the said building was searched, it was post midnight and
therefore date was 27.08.1996. That is why the panchnama is
recorded between 1.00 hrs to 2.00 hrs. That is why PW-1 panch
witness has stated date as 27.08.1996 and PW-2 and PW-3 have
started their evidence with 26.08.1996. This is further corroborated by
FIR being registered on 27.08.1996 at 12.30 hrs.
18. For the aforesaid reasons, assuming that the FIR was filed at
12:30 Hrs. on 27.08.1996, so called delay of 24 hours is well
explained. Considering the fact that it was necessary to send the
minors for medical examination and to the Children's home, because
they were minors. It is obvious that this procedure requires formalities
to be completed and therefore, the delay (if at all) is sufficiently
explained.
19. Under section 6(2) of PITA, there is presumption against the
accused that if he or she is found with a child in a brothel, it should be
presumed, unless contrary is proved, that he or she has committed an
offence under section 6(1). This presumption is rebuttable however
for that, evidence is necessary.
20. In the present case PW-4 -medical officer is an MBBS doctor.
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He has entered witness box and has stated that in September, 1996 he
was attached to Nagpada Police Hospital as R.M.O and on 10.09.1996,
the concerned police station referred 9 girls for age verification out of
which 8 were examined by him. He has stated that on history being
asked, one of the victims in the present case stated that ‘she was sold
by the Applicant’ in the concerned building. He has stated that on the
basis of physical examination of private parts and higher secondary
characters and after obtaining X-rays, the age of the victim was about
13 to 14 years. The concerned certificate has been identified by the
witness. He has further stated that he has examined the other victim
also on the same day, who also said of being asked history, that ‘she
was sold to the Applicant’ in the said building. He has stated that this
victim complained about torture by burns. He has further stated that
old burn marks were found on the left leg of this victim. He has stated
that on clinical examination of private parts and from the X-rays, her
age was certified to be 13 to 14 years. He has also identified the
concerned certificate issued.
21. Now let us consider the argument that no ossification test was
conducted. ‘Ossification’, as per Dorland’s Illustrated Medical
Dictionary means - ‘The formation of bone or of a bony substance; the
conversion of fibrous tissue or cartilage into bone or a bony
substance’.
22. In Vinod Katara Vs. State of Uttar Pradesh (2023) 15 SCC 210,
Hon’ble Supreme Court has recently observed as follows :
“61. The bone ossification test (hereinafter "the ossification test")
is a test that determines age based on the "degree of fusion of
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bone" by taking the X-ray of a few bones. In simple words, the
ossification test or osteogenesis is the process of the bone
formation based on the fusion of joints between the birth and
age of twenty-five years in an individual. Bone age is an
indicator of the skeletal and biological maturity of an individual
which assists in the determination of age. The most common
method used for the calculation of the bone age is radiography
of the hand and wrist until the age of 18 years beyond which the
medial age of clavicle is used for bone age calculation till the
age of 22 years as the hand and wrist bone radiographs cannot
be computed beyond 18 years of age as the elongation of the
bone is complete after adolescence. However, it must be noted
that the ossification test varies slightly based on individual
characteristics, therefore the ossification test though is relevant
however it cannot be called solely conclusive.”
( emphasis supplied )
23. Therefore it is necessary to note that in ossification test, there
is nothing else but an X-ray of the concerned person and the medical
opinion of the doctor. In the present case, PW-4 doctor has given his
opinion about age on the basis of an X-ray in case of both victims apart
from clinical examination of their private parts and higher secondary
characteristics. Admittedly, X-rays are considered by the doctor. Even
then, learned counsel for the Applicant has advanced an argument
that no ossification test was conducted. This argument is contrary to
the facts. This has resulted in precious judicial time being wasted.
24. Coming back to the case, assuming margin of plus-minus 2
years, and considering age on the higher side as per PW-4 (14 years),
at the most the victims were 16 years old at the relevant time, still
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minors.
25. Combined reading of PW-1, PW-2 and PW-3, out of whom PW-
1 is an independent panch witness, I find sufficient corroboration in
the case of the prosecution that during raid, the victims were found in
the said building with Applicant therefore, presumption under Section
6(2) of PITA runs with full force against the Applicant. The
presumption under Section 6(2) has not been rebutted. The Applicant
has not led any evidence. Applicant has not entered witness box.
Applicant’s case is of total denial. Therefore presumption is not
rebutted. Therefore I have no hesitation to hold that the guilt is
proved beyond reasonable doubt.
26. In the light of the aforesaid evidence, when the impugned
orders are perused, both the Courts have considered the evidence on
record and concurrently found that necessary ingredients are made
out since minor girls are found in a place of prostitution along with
Applicant. The presumption runs against the Applicant. It is therefore
not necessary to prove beyond reasonable doubt the aspect of
detention under Section 6 (1) of the said Act as contended by learned
counsel for the Applicant.
27. The argument of learned counsel for the Applicant is that only
Special Officer is empowered as per Section 15 of the PITA to take
action and participation of such Special Officer is not proved and
prosecution has failed to record statement of Assistant Commissioner
of Police ('ACP' for short) - Gawali. In this respect, it is material to
note that the ACP-Mr. Gawali as a Special Police Officer was
appointed by the State Government under PITA. PW-2 has stated in his
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evidence that at the time of raid ACP-Mr. Gawali was present, who
participated in the raid. This evidence has been believed and found to
be sufficient by the Court's below. In my view, in the revisional
jurisdiction it is not possible to re-appreciate this evidence to come to
a contrary conclusion. In that view of the matter, the said argument
has not merit.
28. Now let us consider various judgments relied upon by the
learned counsel for the Applicant.
29. In Noor Agha (Supra), the Hon’ble Supreme Court was dealing
with the constitutionality of Sec. 35 and 54 of Narcotic Drugs and
Psychotropic Substances Act, 1985 ('NDPS' for short) . This judgment is
relied upon in support of the submission that foundational facts must
be proved before statutory presumption is triggered. In Paragraph No.
58 of the said judgment, the Hon’ble Supreme court has observed that
Presumptions contained in the NDPS Act would operate in the Trial
only in the event the circumstances contained therein are fully
satisfied. In the present case at hand, the foundational facts are clearly
and completely satisfied by the prosecution, where the victims were
clearly found with the Applicant in a brothel. Thus this judgment
would not advance the case of the Applicant.
30. In Ganesh Bhavan Patel (Supra), the three judges bench of the
Hon’ble Supreme Court was dealing with a matter which pertained to
‘appeal against acquittal’ and the powers of the High court to reverse
the decision. The Hon’ble Supreme Court was dealing with a case in
which the statement of the informant (treated as FIR) was purportedly
recorded at midnight but his sign was obtained at 3:00 am. In the
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present case at hand, the delay in filing of FIR is well explained and it
is not fatal to the case of the prosecution. Thus, this judgment will also
not advance the case of the Applicant.
31. In Mussaudin Ahmed (Supra), the Hon’ble Supreme Court has
held that if the parties do not advance their best possible evidence
which could throw light on the issue in controversy, the Court may
draw adverse inference under Sec. 114(g) of the Indian Evidence Act,
1872. The argument of the learned counsel Applicant, in the present
case is that the victims’ statement have not been recorded and they
have not been examined, therefore adverse inference should be
drawn. Firstly, it is a matter of judicial discretion in the facts and
circumstances of each case. As already held above, in cases where
minor girls are involved in immoral traffic, such as the present one,
the victims hesitate to be examined and do not in most cases remain in
the forefront throughout the litigation. In view of the other
corroborating evidence, this is not a fit case to draw adverse inference.
Therefore, this judgment also does not help the Applicant.
32. In P. Sasikumar (Supra), the Hon’ble Hon’ble Supreme Court
was dealing with a matter involving Sec. 302 of IPC in which the
accused had killed a 14 year old and was directly identified by the
prosecution witness in the Court without a formal Test Identification
Parade ('TIP' for short) being conducted. It was held that where
accused is a ‘stranger to the witness’ and there is no TIP, Courts have
to be cautious. In the present case at hand, the panchas and the police
officers have seen the Applicant and have found the minor girls in the
custody of the Applicant during raid. Therefore it can not be said that
Applicant is stranger to the witnesses. The witnesses have identified
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the Applicant in the Court. Therefore on facts, this judgment will not
help the Applicant.
33. In Chandrappa and Others (Supra), the Hon’ble Supreme
Court has laid down the principles and the Powers of the ‘Appellate
Court’ to re-appreciate, review or reconsider evidence and interfere
with ‘acquittal’ under Sec. 378 in cases of appeal against acquittal. In
Paragraph No.43, Hon’ble Supreme Court considered that prosecution
had failed to examine certain persons who could have unfolded the
genesis of the case. This judgment is relied upon for arguing if there
are material contradictions, benefit of doubt is to be extended to the
accused. In the present case at hand, it is already held on facts that
there are no material contradictions. Thus this case would also not
advance the case of the Applicant.
34. In State of Madhya Pradesh Vs. Anoop Singh (Supra), the
Hon’ble Supreme Court was dealing with a matter under Sec. 376 of
the IPC considering the evidentiary value of Ossification test and held
that it is not the sole criterion for determination of date of birth. In the
present case at hand, the advocate for the Applicant himself invited a
statement from PW-1 (panch) that she is a DHMS doctor, who testified
that two girls found in the brothel were minor on appearance. This in
fact corroborates with medical evidence in the present case. Thus, this
case is clearly distinguishable on facts and will not advance the case of
the Applicant.
35. In K. Chinnaswamy Reddy (Supra), the three judges bench of
the Hon’ble Supreme Court, has laid down the scope and powers of
the revisional court. In Paragraph No.7, the Hon’ble Supreme Court
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has held that the High Court’s revisional jurisdiction should be
exercised judiciously, only in exceptional cases when there is some
glaring defect in procedure or manifest error of law resulting in
flagrant miscarriage of justice. No such defect or error exists in the
present case. Therefore, this judgment supports the Respondent /
prosecution.
36. Lastly, so far as the judgment of Sharad Birdichand Sarda
(supra) is concerned, combined reading of evidence of PW-1, PW-2
and PW-3 alongwith panchnama clearly shows strong circumstance
against the Applicant / accused and the chain of evidence is found
complete.
37. In the aforesaid facts and circumstances and for the reasons
indicated above, this is not a fit case to interfere in concurrent
findings. There is no merit in the revision. The Revision Application is
dismissed. Rule is discharged. Bail bonds and sureties, if any, stand
cancelled.
38. The concerned Trial Court is directed to take appropriate steps
to secure presence of Applicant in accordance with law.
(M.M. SATHAYE, J.)
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