Trafficking a 17-year-old to a brothel: Gauhati High Court upholds 20-year POCSO sentences against two convicts

The victim, a minor girl employed as a domestic worker, left home after being induced by Jahanuddin, who represented himself as “Raju Das,” promised to marry her, and obtained her personal and educational documents.

Jahanuddin took her to Siliguri and left her at Salma Begum’s residence, located in a red-light area, where the prosecution alleged that he sold her for prostitution.

The victim stated that Salma assaulted and threatened her and that she was compelled to have sexual intercourse with customers over approximately three days.

Police recovered the victim from Salma’s residence on 4 August 2020; condoms and mobile phones were also seized during the investigation.

The medical examination recorded that the victim had been exposed to sexual intercourse multiple times, although no external injuries were found.

Her birth certificate recorded her date of birth as 5 February 2004, making her below eighteen years of age on the date of occurrence.

The Special Judge (POCSO), Kokrajhar convicted Jahanuddin under Sections 6/17 of the POCSO Act, Sections 366, 370, 370(A), 372 and 419 IPC, and Section 5 of the Immoral Traffic (Prevention) Act, 1956. Salma was convicted under Sections 6/17 of the POCSO Act, Sections 370, 370(A) and 372 IPC, and Sections 3, 4 and 6 of the IT(P) Act.

Both accused appealed against their convictions.

Whether the victim’s age below eighteen years was legally proved through the birth certificate issued under the Registration of Births and Deaths Act, 1969, notwithstanding Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015?

Whether the victim’s testimony regarding her transportation to and confinement in the brothel, and her forced sexual intercourse with customers, was reliable despite alleged contradictions and omissions in her statements under Sections 161 and 164 Cr.P.C.?

Whether Jahanuddin had trafficked or sold the minor victim for prostitution and thereby abetted the aggravated penetrative sexual assault committed against her?

Whether Salma Begum was operating a brothel and had facilitated or abetted the victim’s sexual exploitation?

Whether the absence of external injuries or proof of sexual intercourse between Jahanuddin and the victim weakened the prosecution case?

The Court applied Sections 6 and 17 of the Protection of Children from Sexual Offences Act, 2012, concerning aggravated penetrative sexual assault and abetment; Sections 370 and 370(A) IPC concerning trafficking and exploitation of trafficked persons; Section 372 IPC concerning selling a minor for prostitution; Section 366 IPC concerning inducing or abducting a woman for illicit intercourse; and Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956, concerning keeping a brothel, living on prostitution earnings, procuring a person for prostitution, and detaining a person in premises where prostitution is carried on.

For age determination, the Court held that a birth certificate issued under the Registration of Births and Deaths Act, 1969 could be relied upon notwithstanding Section 94 of the JJ Act, applying Sections 12 and 17 of the 1969 Act and Sections 35, 74, 76, 77 and 79 of the Evidence Act, as explained in Saiful Islam v. State of Assam, Ravinder Singh Gorkhi v. State of Uttar Pradesh, and Birad Mal Singhvi v. Anand Purohit.

The Court further applied the rule that a conviction may rest on the credible, uncorroborated testimony of a prosecutrix; minor discrepancies do not discredit an otherwise reliable witness.

It also relied on Tomaso Bruno v. State of Uttar Pradesh regarding facts within an accused’s special knowledge and on the principle that absence of injury marks does not disprove rape.

The Court found the victim’s testimony consistent and intrinsically credible. Her account that Jahanuddin used a false identity and promise of marriage to take her away, transported her to Siliguri, and left her with Salma was corroborated by her recovery from Salma’s residence in a red-light area, the evidence of the Siliguri police officers, the seizure of condoms, and the medical evidence of recent repeated sexual intercourse.

The omission from the victim’s first Section 161 Cr.P.C. statement was not treated as a material contradiction because her later statement, Section 164 Cr.P.C. statement, and deposition consistently described the sexual exploitation, and the defence had not properly confronted her with the alleged omissions during cross-examination.

The birth certificate, whose contents were not challenged and which had been compared with the original, established that the victim was a minor.

Jahanuddin’s alleged romantic relationship with the victim did not negate trafficking; rather, the Court held that his false identity, promise of marriage, transportation of the victim, and subsequent sale to Salma demonstrated deceitful inducement and the requisite trafficking-related intent.

Salma’s control over the premises, her assault and threats against the victim, the presence of customers, and the recovery of the victim from her residence established her role in operating the brothel and facilitating the victim’s sexual exploitation.

The absence of external injuries was immaterial, and proof of intercourse between Jahanuddin and the victim was unnecessary because his conviction under the POCSO Act was for abetment through sale and facilitation, not for personally committing the sexual assault.

The Court further held that the absence of injuries and the absence of evidence of sexual intercourse between Jahanuddin and the victim did not undermine the convictions.

Accordingly, both criminal appeals were dismissed, the convictions and sentences imposed by the Special Judge (POCSO), Kokrajhar, were upheld, and the trial court record was directed to be returned.

The Court also directed that the Amicus Curiae’s fees be paid by the High Court Legal Services Committee.