1. ABDULLAH JABIR, J.-This appeal arises out of a judgment passed by Mr. Muhammad Khaliluddin Mian, Additional Sessions judge of Bakerganj convicting the appellants Matiar Rahman alias Abdul Hannan and Rabeya Khatun under section 366-A of Pakistan Penal Code and sentencing each of them to rigorous imprisonment for three years and a fine of Rs. 200.00 each, in default to rigorous imprisonment for six months more. The appellants were also tried alternatively under section 373 of the Penal Code but the learned Additional Sessions Judge did not pass any order under the aforesaid charge.
2. The prosecution case is that P. W.
1. Asia Khatun is a minor girl under the age of 18 years. She lost her parents in her infancy and had no other relative except her brother P. W. 8 Somed Sarder.
3. Sometime in the year 1369 B. S. She started in a Gaina-boat to come to Barisal town to the house of her Nani who lived at Morok-Khola within the Barisal Municipality. She was travelling alone and as she was asleep she could not get down at Morok-Khola but was carried up to Najirer-p.1. On reaching there in the morning she enquired about her Nani's house at Morok-Khola from some persons who had athered near a water-tap and' there she met appellant Matiar abman who told her that he would guide her to the house of her Vani Matiar Rahman took the girl to his own house at Fakirbari Road in the town of Barisal and kept her there with his wife appellant Rabeya Khatun.
4. The girl asked the accused appellant to take her to her Nani's house but he told her that he would take her to that house later on. In fact, 'she was not taken to the house of her Nani and had to remain in the house of the two accused appellants for about two years during which period the appellants did not allow her to go out. There are two huts in the house of the appellants one of which contains two rooms. The two appellants lived in one of those rooms and the girl P. W. I Asia lived in the other room. The other but which is made of Golpata leaves used to be frequented by 'males and females from outside who used to spend time in that but after closing the door of the room and the two appellants used to realise money from them. The two appellants also introduced men into the room of P. W. 1 to outrage her modesty and when she refused to prostrate her--self she used to be beaten by the appellants who used to realise money from the men who outraged her modest. On the night previous to 30th 5ravan, 1371 B. S. Correspond--ing to 16-8-64 the two appellants took liquor and were late in getting up on the following morning and taking advant-- age of it P. W. 1 Asia Khatun fled away from the house and went to the house of a neighbour, namely, P. W. 3 Hasan Imam Chowdhury, a practising lawyer of Barisal Bar, and told him everything.
5. P. W. 3 then called P. W. 9., Md. Abul Hashem, a member of the local Defence Committee and one Ratan Ali and sent the girl with them to the house of P. W. 6 Abdur Rahman Sikdar; Chairman of the Fakirbari Union Com--mittee. He himself also went to the house of P. W. 6 where some other neighbours, namely, P. W. 2 Bazlul Hossain, a practising Muktear of Barisal, P. W. 4 Hemayetuddin Ahmed, Advocate and Vice-President of Barisal Bar Association and P. W. 5 Delwar Hossain, a lawyer practising at Barisal came and heart from the girl how she had been compelled to lead an immoral life by the appellants in their house and how she had fled away from that house. The girl was then taken to the than a where a written information Exh. 1 was given by P. W. 6 at 5-45 p. m. P.
6. W. 14 Abdul Halim, Officer-in-Charge of Kotwali Police Station filled up the F. I.R. Form Exh. 1 (2), took up inves--tigation of the case, examined the girl and took her to the residence of P. W. 12 M. L.
7. Barua, Sub-Divisional Officer of Barisal at 6-30 p.m. For recording her statement under section 164 of the Criminal Procedure Code. Thereafter the girl was sent through P. W. 13 Sher Ali Chowdhury, a constable to the Sadar. Hospital at Barisal where P. W. 7 Dr. H. Khan examined her at 10-30 a.m. On 17-8-64. Thereafter the girl was given in jimma to P.W. 6 who executed a jimma-nama Exh.2. After completing investigation the investigating Officer submitted charge-sheet and there was preliminary enquiry by a competent Magistrate who committed both the appellants to the Court of Sessions for trial under section 366-A of the Pakistan Penal Code At the time of trial the appellants were charged under section 366-A and in the alternative under section 373 of the Penal Code. Both the accused appellants pleaded not guilty to the 'charge. Their case was that they had been implicated at the instance of P. W. 3 and P. W. 6 who wanted to drive away the appellants from the locality and purchase their house. On behalf of the prosecution 14 witnesses were examined but none on behalf of the defence. The learned Additional Sessions judge found the accused appellants guilty under section 366-A, P. P. C. And convicted and sentenced them as stated above.
8. Hence this appeal.
9. P. W. 1 Asia Khatun stated that while coming to Barisal to the house of her Nani in a Ganina boat alone, she fell asleep and could not get down at Morak-Khola but was carried, up to Najirer-p.1 where in the morning she got down from the boat and enquired of people about the house of her Nani at Morak-Khali and there she met the accused appellant Matiar Rahman who told her, that he would take her to the house of her Nani but brought her to his own house at Fakirabari Road and there she remained in the custody of the two appellants for about 2 years during which period she was not allowed to go out. She further stated that the two accused appellants used to introduce men into her room and they outraged her modesty and the two appellants used to realise money from those men. Her further evidence is that the other but in the house of the appel--lants was frequented by men and women who used to spend hours there after closing the doors and they paid money to the appel--lants. Lastly her evidence is that on finding the appellants asleep till late hours on one morning she fled away to the house of her neighbour Hasan Imam Chowdllury and narrated her whole story and from there. She was taken to the house of Abdur Rahman Sikdar and from there to thana. She could not be contradicted on any material point in cross-examination.
10. She admitted that she did not tell to the Magistrate that she fled away as Mati and his wife were asleep after drinking. He evidence in the committing' Court was put in by the defence under section 288 of the Code of Criminal Procedure in which there was no mention that Mati and .His wife had taken liquor and were late in rising. The omission to mention about the drinking by the appellants in the committing Court is not; material contradiction. P. W. 3 is Hasan Imam Chowdhury who, stated that P. W. I Asia Khatoon came to his house at about 7-3i a.m. On 16th August 1964 and she told that she was confines in the house of Matiar Rahman for about two years and was compelled to lead immoral life and that she further stated that she used to be beaten by the accused if she refused.
11. He further stated that on hearing her story lie sent for P. W.
9. Md Abul Hashem and Ratan Ali and sent the girl to Sikder Saheb with them and he himself also went there. In cross examination he denied the defence suggestion that he and Sikder Saheb had brought this case against Mati in order to purchase his house. P. W. 2 Bazlul Hossain, P. W. 4 Hemayet-uddin Ahmed, P. W. Delwar Hossain and P. W. 6 Abdur Rahman Sikder are all residents of Fakirbari Road and their evidences about the occurrence are the same. They stated that on 16-8-1964 they heard from P. W. I Asia Khatoon that the two appellants had compelled her to lead immoral life in their house for about 2 years P. W. 6 filed a written information Exh. 1 at thana on hearing the story of P. W. 1 P. W. 9 Md. Abut Hashem is a member of the Fakirhari Defence Committee and he stated that on being called by P.
12. W. 3 Hasan Imam Chowdhury he and Ratan Ali went to his house where they saw the girl Asia who told them that she was forced to lead immoral life by the appellants. They then took the girl to the house of P. W. 6 where the girl further narrated the occurrence to the persons present, P.W. 10 Abdul Karim was tendered by the prosecution and was cross-examined by the defence. His evidence is not material. P. W. 11 Abdul Hashem is also a resident of Fakirbari Road find lie stated that his wife used to supply water to the house of appellants Lind lie used to know the girl Asia Khatoon. He stated that sometimes the girl used to come out but when confronted with his evidence in the committing Court where lie stated that the girl 'was not allowed to come out, lie stated that he did not remember if he had made that statement in the lower Court. His evidence in the committing Court was put in by the prosecution under section 288 of the Code of Criminal Procedure. The witness further stated that he saw men and women visiting the house of Mati. P. W. 7 is Dr. H. Khan who examined the girl Asia Khatoon and found hymen ruptured and healed up (old). In the opinion of the Doctor the girl might be urged 1 years and site seemed to be habituated to sexual intercourse.
13. There is no dispute that the girl P. W. I Asia Khatun was a minor aged below 18 year,;. Her own evidence supported by the medical evidence of P. W. 7 Dr. H. Khan shows that she was below 12 years old at the time, of the occurrence. The, evidence of P. W. I that she was compelled to lead immoral life by the two appellants receives corroboration from the evidences of P. Ws. 2, 3, 4, 5 and 6 to whom she narrated her story on 16-8-64 after fleeing from the house of the appellants in the morning. According to P. W. 3 the girl went to his house about 7-30 a.m. In the morning and he then called P. W. Md. Abul Hashem and Ratan Ali and when they came he sent the girl to the house of P.
14. W.
6. P. Ws. 4, 5 and 6 heard about the occurrence in the house of P. W. 6 at about 1 p.m. And P. W. 2 went to the house of P. W. 6 about an hour or so thereafter. P. W. 6 lodged a written information Exh.
15. I at the Kotwali Police Station at 5-45 p.m. On.16-8-1964 wherein it was stated that Mati and his wife Rabeya had confined this minor girl Asia with dishonest intention in their house since long and had been earning money by compelling her to adopt prostitution forcibly against her will and that on getting an opportunity that morning she fled away and went to the residence of pleader Hasan Imam Chowdhury and narrated the occurrence.
16. Mr. Abdul Muntaquim Chaudhury, the learned Advocate appearing on behalf of the appellants, contended that the delay in lodging the first information report casts doubt about the truth of the prosecution case and supports the defence con--tention that the appellants were implicated out of conspiracy In the facts and circumstances of the case we do not think that there was any unconscionable delay from which an adverse presumption is warranted. All the witnesses, namely, P. Ws. 2, 3, 4, 5 and 6 are respectable men of the locality and there is nothing to show that they had any grudge against the appel--lants though it appears from the evidence of P. W. 6 that there was a resolution of the local Union Committee against the anti-social activities in the house of the appellants. There is no dispute with regard to the fact that P. W. 1 Asia Khatun lived in the house of appellants for about two years previous to the date of her escape from that house. There is also no challenge to the statement of P. W. 1 that she was forced by the appellants to lead an immoral life in their house. It is-'l true that the evidence of P. W. 1 in cross-examination that she was raped on the previous night and felt pain and her wearing sari was besmeared with blood and semen is not corroborated by any other evidence, but that does not cast any doubt about her evidence, that she used to be outraged by men who were inducted in their house by the appellants. The medical evidence of P. W. 7 Dr. H. Khan lends support to the evidence of P. W. 1 that she had been habituated to sexual intercourse. The learned Advocate appearing on behalf of the appellants invited our attention to the evidence of P. W. 1 in cross-examination to the effect that she had been raped on the previous night and felt pain and to the evidence of the Medical Officer who did not find any injury in the private parts of the girl, and contended-- that the evidence of P. W.
1. On the point has been belied. The mere absence of any injury on the private parts of the girl does not in any way disproves the prosecution case, for ~it is not a case under section 376, P. P. C. Where the offence arises gut of actual rape. The main question that arises in this case is whether P. W. 1 was forced to lead an immoral life in the house of the appellants and, as already stated, her evidence on this point is amply corroborated by a large number of witnesses. Hence on the evidences on record we find that the appellants had forced her to illicit intercourse with men who were inducted into the house by them, It may also be stated here that the evidence of P. W. I that the appellants used to realise money from the men, who outraged her modesty was not challenged. Her further evidence that the appellants allowed men and women from outside to remain in one of the huts with doors closed and realised money from them also remains uncontradicted. P. W. 4 stated that he used to hear row of drunken people coming from the house of the appellants and P. W. 6 stated about the resolution of the Union Committee against the anti-social activities in the house of appellants. All these evidences and cir--cumstances lend support to the prosecution case.
17. The evidence of P. W. 1 that she was taken to the house of the appellant Mati on the plea of taking her to the house of her Nani, has not been contradicted. Thus appellant Mati induced P. W. 1, who is a minor girl to go to his house knowing that it was likely, that she would be forced or seduced to illicit intercourse with another person. We accordingly find that the learned Additional Sessions Judge rightly convicted and sentenced appellant Matiar Rahman under section 366-A of the Pakistan Penal Code.
18. As, regards appellant Rabeya Khatun, the learned Additional Sessions Judge also convicted and sentenced her under section 366-A of the Pakistan Penal Code Mr. A. T. M. Afzal, the learned Advocate appearing on behalf of the State contended that the charge under which Rabe a could be more appro--priately convicted and sentenced is, that under section 373, P. P. C. But, according to Mr. Abdl Muntaquim Chaudhury, there being no evidence that Rabeya obtained possession of the girl from Mati or any other person she cannot be con--victed under section 373, P. P. C. Section 373 of the Penal Code is as follows :- "Whoever buys, hires or otherwise obtains possession or any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprison--ment of either description for a term which may extend to ten years, and shall also be liable to fine.
19. Explanation I-Any prostitute ox any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years, shall, until the contrary is proved, be presumed to have obtained possession of such female with .The intent that she shall be used for the purpose of prostitution.
20. In support of his contention Mr. A. T. M. Afzal has referred to the decision in three cases, viz. King- Emperor v. Vithabai Sukha and others (I L R 52 Bom. 403), Emperor v. Shamsundarbai (I L R 45 Born.
21. 529), and Bhagchand Jasraj Marwadi v. Emperor (AIR 1934 Born. 200). In the first case accused No. 1 took away a minor girl from the service of a Parsee, where accused No. 1 and the minor girl were serving t-- the house of accused No. 2. After a couple of days accused No. 2 took her to a brothel of accused No. 3 and left her therefor 2 or 3 hours for six or seven nights and brought her back to her own house regularly. The earnings of the girl by prostitution were equally divided by accused Nos. 2 and 3. The three accused were charg--ed under sections 373 and 109 of the Indian Penal Code or in the alternative under sections 366-A and 114, I. P. C. It was observ--ed by Madgavkar, J. That "section 373,
1. P. C. Must be read in conjunction with the provisions of section 372 which is its counterpart. The law does not specify the nature of posses--sion nor its duration nor intensity. It merely specifies the object, namely prostitution or illicit intercourse. Whether in each case, the possession is such as to be consistent with the purpose or intention or knowledge of prostitution or illicit intercourse that is the only test which in law is necessary and sufficient". If concluded by saying that on the case as set up, the more appropriate charge would have been as against accused No. 2 under section 372, as against accused No. 1 of abetment .Of the offence under section 372 and as against accused No. 3 under section 373, I. P. C. In the next case, a girl about 15 years old was handed over to the accused, a brothel keeper, by two persons but nothing wrong happened during her stay with the accused for three days. The girl was brought back to her husband's place and from there she herself went back after a week to the accused's house where she led the life of a prostitute. In discussing the nature of possession, requisite under section 373 it was observed that it was "not requisite for the purpose of section 373 that the possession of the minor should be observed a third person. It is enough if it is established that the accused in fact obtained possession of the minor with intent that the minor should be used for oho purpose of prostitution . . . . . Possession should be such as would imply a sufficient control over the minor . . . . .".
22. In the third case, the accused along with another was charged with obtaining possession of a girl under 18 years of age with intent that she should be used 'for the purpose of illicit intercourse. The questions that arose for consideration upon the constructions of section 373 were-what is possession and what amounts to obtaining possession, and it was held that it was not necessary that possession should be obtained from a third party, and upon the question as to what amounts to possession within section 373, it was held that something more is required than such possession as is obtained for the purpose of a single act of sexual intercourse and that possession "denotes definite control over the person of whom possession is obtained".
23. It will be evident from what have been stated heretofore that the words "otherwise obtains possession" occurring in section 373 cannot be construed as referring to possession obtained from any other person. The gist of the offence under the section lies in the exercise of effective control over a person under the age of eighteen years with intent or knowledge that such person will be used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose.
24. The evidence of P. W. 1 corroborated by P. Ws. 2, 5 and 6 shows that appellant Rabeya also exercised effective control over P. W. 1 and forced her to lead an immoral life. Further the evidence of P. W. 1 that Rabaya along with her husband used to take money from persons who outraged her modesty is corroborated by P. W. 2. 11 therefore appears that during the stay of P. W. I in the house of the two appellants. Rabeya also had actual control and possession over P. W. 1 and such Posses- -sion was consistent with the purpose of prostitution and illicit intercourse. Hence we agree with Mr. A. T. M. Afzal that the offence of appellant Rabeya comes more appropriately under section 373 of the Penal Code and we accordingly convert her conviction from section 366-A to section 373, P. P.
25. C. Under which she was charged in the alternative and maintain the sentence imposed by the learned Additional Sessions Judge Subject to the alteration of conviction of appellant Rabeya as above, the appeal of both the appellants is dismissed and the sentences passed against them are confirmed. The appellants are directed to surrender forthwith to their bail to serve out the remainder of the sentences imposed upon them.