RUPA GOVIND NEPALI AND ANR.versusTHE STATE OF MAHARASHTRA

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                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                         REVISION APPLICATION NO.482 OF 2004
                      1)Mrs. Rupa Govind Nepali,
NAVNATH
SITARAM               Age: 35 Yrs., Occu.: Housewife,
WAGHMARE
                      R/at - 994, Budhwar Peth,
Digitally signed by
NAVNATH SITARAM
WAGHMARE              Pune- 411002.
Date: 2026.08.31
20:33:53 +0530

                      2. Mrs. Rita Jithbahadu Thapa
                      Age 45 Yrs., Occu.: Housewife,
                      R/at- 994, Budhwar Peth,
                      Pune 411002.
                      (presently at Yerwada Central Prison, Pune).        ... Applicants
                                     Versus
                      The State Of Maharashtra                            ...Respondent

                                                        ****
                      Mr. Anay Joshi a/w Mr. Digvijay S. Kachare i/b K.S. Patil for the
                      Applicants.
                      Mr. D.J. Haldankar, APP for the Respondent/State.
                                                        ****
                                                CORAM : M.M. SATHAYE, J.
                                                   DATE : 29th AUGUST, 2026
                      ORAL JUDGMENT :

                      1.      Invoking Section 397 read with Section 401 of Criminal
                      Procedure Code, 1973 ('CrPC' for short), the Revision Applicants
                      (original accused) are challenging judgment and order dated
                      14.12.2004 passed in Criminal Appeal No. 139 of 2004 by 1st Ad-hoc
                      Additional Sessions Judge, Pune dismissing the said appeal filed by the
                      Applicants and confirming the conviction as well as sentence passed by
                      the 9th Ad-hoc Assistant Sessions Judge, Pune in Sessions Case No. 68
                      of 2004 holding the Applicants guilty of offence punishable under


                      Navnath Waghmare                                                      1
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Section 373 of Indian Penal Code, 1860 ('IPC' for short) and sentencing
them to undergo rigorous imprisonment of 3 years with fine of Rs.
500/- each and in default sentence to undergo of rigorous
imprisonment of 6 months. By the impugned orders, the Applicants
have been acquitted of the offence punishable under Section 3, 4 and 5
of the Immoral Traffic (Prevention) Act, 1956 ('PITA Act' for short).

2.      The case of the prosecution in short is that on 12.12.2003,
information was received by the Complainant - PSI Shailesh S. Sankhe
(PW-1) attached to the Samarth Police Station, that a brothel is being
run in building No. 994, Budhwar Peth, Pune (the 'said building' for
short) where minor girls were used for prostitution. Accordingly, the
said building was raided along with two panchas. When the raiding
party reached second floor, they notice that there were number of girls
present with Applicant No.1 in Room No. 14-B and Applicant No.2 in
Room No 11-B, wooden compartments were found where beds were
arranged. Panchnama was drawn. Some of the girls were minors. The
girls were taken to Samarth Police Station, complaint was lodged and
Crime No. 3562 of 2003 came to be registered. Investigation was
handed over to Mr. Sonba Panchundekar (PW-9), who was acting as
Police Inspector at the relevant time.

3.      Statement of the girls were recorded and they were sent for
medical examination at Sassoon Hospital, Pune. They were examined
clinically and radiologically. The concerned Medical Officer/Doctor has
issued certificates. Based on material gathered, chargesheet was filed
against the Applicants. The Applicants pleaded not guilty and claimed
to be tried.

4.      The prosecution examined as many as 10 witnesses, viz. PW-1
Shailesh Sunil Sankhe who was attached to Samarth Police Station as


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PSI at the relevant time, PW-2 Mr. Shivaji Laxman Chavan who is a
panch witness, PW-3 Shrirang Sampat Pawar who was attached as
Assistant Sub-Inspector at Samarth Police Station, PW-4, PW-5 and PW-
6 are victim girls, PW-7 Ramkrishna Govindrao Bhusale who is a
professor in B.J. Medical College, Sassoon Hospital at Pune, PW-8 Dr.
Deepali Gandhale, who was attached to B.J. Medical College, Pune at
the relevant time, PW-9 Mr. Sonba D. Panchundekar, the Investigating
Officer, PW-10 Mr. Ashok Jagannath Bhoi, who was incharge Police
Inspector of Samarth Police Station. The statements of the Applicants
under Section 313 of CrPC were recorded. Their case is of complete
denial.

5.      Learned 9th Ad-hoc Assistant Sessions Judge, Pune who heard
and tried the said case, on appreciation of evidence held that the
offence under Section 3 and 4 of the PITA as not proved. However, it
was held that accused had obtained possession of minor girls with
intent of their use for prostitution or illicit intercourse with another
person and therefore, convicted the Applicants under Section 373 of the
IPC. The Applicants filed Criminal Appeal No. 139 of 2004, which has
been dismissed by the impugned order dated 14.12.2004.

6.      In these circumstances, the Applicants have filed present revision
Application challenging concurrent findings. The revision is admitted on
10.02.2005 and the revision Applicants were granted bail on the same
terms on which they were on bail before the lower Court.

                                 SUBMISSIONS

7.      Learned Counsel Mr. Joshi appearing for the Applicants submits
that out of 2 panch witnesses, only one was examined who has turned
hostile and therefore the panchnama is unreliable. He submitted that
there is material discrepancy /contradictions in the statements made by


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PW-1 Mr. Sankhe and PW-3 Mr. Pawar about presence of female panch
and about who prepared panchnama. He submitted that evidence has
been led within a short period of 2-3 months therefore, there is no
justification for such discrepancy and therefore their evidence is
doubtful. He further submitted that no photographs were taken during
the raid. He submitted that no female police officer was present while
conducting the raid/arrest and it was contrary to the prevailing
guidelines/directions issued by this Court as well as Supreme Court. He
further submitted that PW-7 Mr. Bhusale has admitted that he is not a
radiologist as such his opinion in respect of ossification test is not
reliable.

8.      On the other hand, learned APP Mr. Haldankar appearing for the
State, supported the impugned order contending inter alia that the PW-
7 is a Medico Legal Expert and even though he is not a radiologist, his
opinion based on clinical examination as well as X-ray cannot be
doubted. He submitted that it is sufficient to indicate that at least some
of the girls, found during raid/arrest, were minors. He submitted that 3
prosecution witnesses are victim girls who have stood up in support of
the prosecution case, stating that the Applicants were charging money
from the customers for their use in prostitution and part of money was
paid to victims, which clearly established ingredients of Section 373 of
IPC. So far as the argument about the requirement of female police
officer’s presence during raid/arrest is concerned, he submitted that
there was no such statutory requirement at the relevant time in
December 2003 and the amendment is introduced in Section 46 of the
CrPC much later in December 2009.            He further submitted that
ingredients of offence are clearly proved and in given circumstances
absence of female police officer is not fatal. He further submitted that if



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cross-examinations are perused then no such suggestion has been given
before the courts below. He submitted that already lenient view has
been taken and punishment of only 3 years of rigorous imprisonment
has been awarded. Lastly, he submitted that considering the nature of
offence and concurrent findings, no interference is required.

                              REASONS AND CONCLUSION

9.      I have considered rival submissions and perused the record.

10.     At the outset, it must be noted that the revisional jurisdiction of
this Court is limited and this Court cannot re-appreciate the evidence to
come to a contrary conclusion. Useful reference can be made to
Paragraph No. 5 of State of Kerala Vs. Puttumana Iiiath Jathavedan
Namboodiri and Paragraph No. 16 of State Vs. Manimaran (2019) 13
SCC 670.

11.     I have perused the oral evidence of various witnesses including
that of the victims.

12.     PW-7 Professor Bhusale has been working as Medico Legal Expert
mainly dealing in ascertaining the age of persons on clinical and
radiological examination. This witness has stated that he has examined
all the girls who were brought for medical examination. He has stated
that he has examined the girls clinically and radiologically. In respect of
one of the victims, he has clearly stated that on clinical and radiological
examination the age is found to be 13 to 15 years.

13.     In Vinod Katara Vs. State of Uttar Pradesh (2023) 15 SCC 210,
the Hon'ble Supreme Court has observed as follows:

                   “61. The bone ossification test (hereinafter "the ossification
                   test") is a test that determines age based on the "degree of


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                   fusion of 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.”

14.     Therefore, it is necessary to note that in ossification test there is
nothing else but an X-ray of the concerned person and medical opinion
of the doctor involved. In the present case, PW-7 has clearly stated that
he has examined the victims both clinically and radiologically. In that
view of the matter, even if PW-7 is not a radiologist, his medical opinion
on clinical and radiological examination about age of the victim, cannot
be doubted. He has identified and proved medical certificates issued by
him at Exh.18 to 26.

15.     PW-8 Dr. Gandhale has also stated in her evidence that about 9
girls were produced before her for medical examination where she has
found that the girls were subjected to habitual sexual intercourse. She
has proved the medical certificates Exh.35 to 41

16.     One of the victim has been certified as 13 to 15 years old.
Therefore, assuming error margin of 2 years plus or minus, still one of
the victims is found to be minor.




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17.     PW-4 victim has stated that Applicant No. 1 used to beat her and
force her to engage in prostitution. This witness has identified Applicant
No. 1 as the woman who compelled her to do prostitution. This witness
has also stated that Applicant No. 1 took money from the customer and
part of it was paid to the victim. PW-5 victim has stated that Applicant
No. 1 was compelling her to engage in prostitution activity, who was
charging each customer Rs. 80/- and giving the victim Rs.10/- per
customer. PW-6 victim has also stated that Applicant No. 2 was forcing
her to engage in prostitution and on her refusal, Applicant No. 2 would
beat her.

18.     In view of such clearly corroborating evidence coupled with one
of the victims being clearly found minor, all the necessary ingredients of
Section 373 of IPC of buying, hiring or otherwise obtaining possession
of a person under the age of 18 years with intent that such person shall
be employed or used for the purpose of prostitution or illicit intercourse
with any person or for any unlawful and immoral purpose, are made
out and proved.

19.     So far as the argument about absence of female police officer at
the time of raid/arrest of the Applicants, is concerned, judgments of the
Christian Community Welfare Council of India and Anr. Vs. Government
of Maharashtra and Anr. 1994 Mh.L.J. 1769 and State of Maharashtra
Vs. Christian Community Welfare Council of India and Anr. (2003) 8
SCC 546 are relied upon by the learned counsel for the Applicants
contending inter alia that even in December 2003, though Section 46 of
CrPC was not amended, however, guidelines issued by this Court were
in place.

20.     In this respect, it is material to note that at the relevant time in


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December 2003, proviso to Section 46 of CrPC (introduced w.e.f.
31.12.2009) was not on the statute book. As such, there was no
statutory requirement of female police officer’s presence at the time of
arrest. So far as guidelines relied upon by learned counsel for the
Applicants is concerned, the Hon'ble Supreme Court in State of
Maharashtra Vs. Christian Community Welfare Council of India (Supra)
has observed that notwithstanding the object behind the directions
issued by this Court, strict compliance with the said direction, in a given
circumstance, would cause practical difficulties to investigating agency
and might even give room for evading the process of law by
unscrupulous accused. The Hon'ble Supreme Court has therefore
directed that while arresting a female person, ‘all efforts should be
made’ to keep a lady constable present but in the circumstances where
arresting officers are reasonably satisfied, that such presence of a lady
constable is not available or possible and/or delay in arresting caused
by securing the presence of lady constable would impede the course of
investigation, such arresting officer for reasons to be recorded either
before the arrest or immediately after the arrest, be permitted to arrest
a female person for lawful reasons at any time of the day or night
depending on the circumstances of the case even without presence of a
lady constable.

21.     Firstly, it is important to note that no such contention was raised
before the Trial Court as well as Appellate Court. The Hon'ble Supreme
Court's observation are only directory and not mandatory, in as much
as, the Hon’ble Supreme Court has stated that ‘all efforts should be
made’. In that view of the matter, in the teeth of concurrent findings
and considering the nature of offence involved, such contention raised
for the first time in revisional jurisdiction, is not sufficient for


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interference in the order of conviction.

22.     Same is the case with the submission about raid not being
photographed. No such contention is raised before the Trial Court or
Appellate Court. Therefore, it cannot be held sufficient to interfere in
revisional jurisdiction.

23.     Trial Court has considered that though the panch witness
examined by the prosecution has turned hostile, the prosecution has
examined witness PW-10 In-charge PI Mr. Ashok Bhoi who has prepared
the panchnama. The Trial Court has held that this witness has
effectively proved the panchnama, which reveals about the factual
position of the room and arrangements therein for the purpose of
running prostitution business. The panchnama is signed by this witness
and it is at Exh-47. This witness has identified his signature on the
panchnama. I have perused cross-examination of this witness. A
question was put to this witness in cross-examination which led to the
answer that the raiding team had made enquiry with the prostitutes
who were standing at the ground floor for their readiness to act as
panch, but they had refused. He has clearly denied a suggestion that
panchnama was prepared in police station. He has also denied
suggestion that no such raid was conducted in the concerned
building/room. He has also denied suggestion about minor girls not
being found in the rooms.

24.     While testing the veracity of the prosecution's case about the raid
conducted, the Appellate Court has rightly held that the police officials
who were members of the raiding party (PW-1, PW-3 & PW-10) have
unanimously stated that on 12.12.2003 the said building was raided. All
of them have testified that during the said raid, the said two rooms


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were searched and they are consistent on the point that Applicants were
found in the said rooms. The Appellate Court has further considered
that according to the statements of these police officers, they noticed
number of cabins with beds and the girls on enquiry disclosed that they
were compelled by both the Applicants to engage in prostitution. In
view of such consistent statements made by said prosecution witnesses
who were part of raiding party, minor discrepancies about presence of
lady pancha has been held not sufficient to discard the evidence.

25.      In offences, where prostitution is involved and brothels are
raided, often the victims who are rescued are not in a position to give
clear statements. For obvious reasons they 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 evidence of prosecution
witnesses cannot be held as fatal to the prosecution case. The Trial
Court at the end of paragraph No.11 has rightly held that in cases of
such raids, no independent witness is expected to remain present.

26.     In the present case, though the panch witness has turned hostile,
the Courts below have found PW-10 as a reliable witness.

27.     In that view of the matter, the submission about panchnama
being unreliable does not have any merit. The alleged contradictions
and discrepancies between statements of PW-1 and PW-3 about
presence of lady panch witness, cannot be held to be fatal. They do not
amount to material contradictions, in the facts and circumstances of this
case.

28.     Viewed in the light of what is observed above, when the



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judgments of the Trial Court and Appellate Court are considered, in my
view, there is no perversity. Concurrent findings of facts do not require
any interference in the limited revisional jurisdiction of the this Court.

29.     Learned APP has rightly submitted that the Courts have already
taken lenient view in as much as the offence under Section 373 of IPC
provides for maximum imprisonment for a term of 10 years. However,
Applicants have been awarded only 3 years of rigorous imprisonment.
Hence, no fault can be found with the sentence as well.

30.     In the the aforesaid facts and circumstances and for reasons
indicated above, there is no reason to interfere. The criminal revision
application is accordingly rejected. The Applicants’ bail bonds are
canceled and they are granted 4 weeks time to surrender before the
concerned police station.




                                         (M.M. SATHAYE, J.)




Navnath Waghmare                                                         11