(Prayer: Criminal Appeals filed under Sections 374(2) and 386 of Criminal Procedure Code, praying to set aside the judgment of conviction and sentence dated 26.07.2021 made in S.C.No.37 of 2025 on the file of the Special Judge for POCSO cases, Chennai.)

Common Judgment:

M. Jothiraman, J.

1. These criminal appeals filed by Accused Nos.1 to 4 as against the judgment of conviction and sentence dated 26.07.2021 made in S.C.No.37 of 2025 on the file of the Special Judge for POCSO cases, Chennai, in and by which A1 to A4 were convicted and sentenced as under:

                  

                 

                  Aggrieved over the aforesaid judgment of conviction and sentence, A1 and A2 have preferred Crl.A.No.437 of 2021, A3 has preferred Crl.A.No.502 of 2021 and A4 has preferred Crl.A.No.304 of 2022.

2. The case of the prosecution, briefly narrated, is as under:

                  2.1. PW1-John Victor, Inspector of Police, on recipt of information from a social worker on 14.10.2014, registered the same in the General Diary. He set up a decoy customer with consent. He gave Rs.4,000/- after noting its numbers to decoy. He sent two independent witnesses along with the decoy. On 14.10.2014 at about 15.55 hours, the said decoy contacted him over phone, as he was in Nellai Chettinadu Hotel at Priyadharshini Park Hotel. A1, A2 and the victim / PW2 were all with him.

                  2.2. On demand made by A1 and A2, sent the victim girl along with decoy for prostitution. He gave decoy money to them. PW1 raided the spot along with Women Sub Inspector of Police. He examined PW2, A1 and A2 and brought them to police station. He gave Special Report to the Superintendent of Police under Ex.P1.

                  2.3. PW2 / victim girl deposed that after the death of her mother, her father PW2 went to Chennai for his work. She initially stayed in her maternal aunt's house along with her sister and brother. After two months, they went along with her father and stayed in platform of old Moore Market. From there, she used to go to school. At that time, one Latha, PW1's aunty stated that there is no safety in the platform and called her to come with her. Then the said Latha took PW2 into her sister's house / A1's house. While staying there she attained majority. A1 compelled PW2 to come to the house of one Geetha. The said Geetha sent PW2 for physical relationship with third parties.

                  2.4. Thereafter, PW2 called A1 over phone and then took her to her house. A1 called A4 and allowed him to have sexual intercourse with PW2. A3 came to the house of A1 and A1 made PW2 to have sexual intercourse with him. Likewise, A1 allowed all the customers to have sexual intercourse with PW2. On coming to know that the house owner instructed A1 to vacate the house, A1 and A2 shifted their house to Kutty Thampuran Street. One day afterwards, a man came to their house and talked with A1. Thereafter, A1 and A2 called PW2 to get ready and then two or more persons came and enquired A1 and A2. A1 requested them to stand outside. One person took photograph of PW2 in his mobile phone and afterwards, then PW2 along with A1 and A2 went to a hotel. One person took her outside of hotel and when they came out of the hotel, police took PW2 to custody. Thereafter, PW2 was taken to Kellys home and examined in the hospital.

                  2.5. PW2 was shifted to MCCSS Hostel, where she met one Fathima. PW2 eloped from the said home along with the said Fathima. Fathima also used PW2 for prostitution. Fathima sent PW2 to Tuticorin on contract. After one week, PW2 returned back to Sholinganallur to the house of Fathima and then PW2 became pregnant. Thereafter, PW2 was handed over to Kellys Home in the year 2014. PW2 came statement before the Court.

                  2.6. PW3-Mr.Meshak - Social Worker / decoy deposed that he is working in the home for the welfare and to rescue young women used for prostitution and for their rehabilitation. On 14.10.2014, he along with Julie Jane went to the police station and gave information about A2 doing brothel. The said Julie Jane died on 29.04.2015. The complaint given by the said Julie Jane is Ex.P3. He acted as per the instructions given by PW1. PW3 called A2 over phone and asked a girl for prostitution. On instructions given by A2 at about 2.30 p.m. he went to the hotel along with 2 independent witnesses. A2 introduced PW2 and asked whether PW2 was ok for him and demanded Rs.4,000/-, for that PW2 gave decoy money for Rs.4,000/- to A2 in the presence of witnesses. When he came out from the hotel along with PW2, women police in mufty caught PW2. Then police examined and enquired A1 and A2 and took them to police station and arrested them.

                  2.7. PW4 is the independent witness deposed in corroboration with the evidence given by PW3, as he accompanied with PW3. PW17-Sub Inspector of Police, accompanied PW1 to arrest A1 and A2.

                  2.8. PW18 - Inspector of Police, on 14.10.2018, on receipt of Special Report given by PW1, registered a case in Crime No.3/2014 under Sections 366(A), 370(4), 373, 376(1), 376(d) r/w. 109 and 120B IPC, Sections 3(2)(a), 4(1, 5(1), 6(1), 7(1)(a), 9 of ITP Act and Section 4 of POCSO Act, 2012. The registered FIR is Ex.P26. She took up the case for investigation and examined PW2 and the same was photographed by PW16-Photographer. PW18 arrested A1 and A2 in the presence of PW4.

                  2.9. PW18 recorded the confession statement of A1 and on the basis of the confession statement, she recovered M.O.1 - Cellphone along with the SIM Card under Seizure Mahazar under Ex.P8. She has also seized Rs.4,000/- and M.O.2 - Cell Phone from A2 under Seizure Mahazar-Ex.P9. The admissible portion of the confession statement given by A2 is Ex.P7. Mahazar for seizure of bike / two-wheeler - M.O.3 seized from A2 is Ex.P10. Rs.5,000/- seized from A2 is M.O.4 series. PW18 prepared Observation Mahazar - Ex.P4 in the presence of PW4 and drawn the Rough Sketch Ex.P27. On 15.10.2018, he sent A1 and A2 to judicial custody and sent the material objects to the Court and also produced PW2 to the Court and also gave a requisition for medical examination of PW2.

                  2.10. On 16.10.2014, PW18 sent PW2 for medical examination to Rajiv Gandhi Government Hospital. PW18 also gave requisition to record the statement of PW2 under Section 164 CrPC. On 20.10.2024, statement under Section 164 CrPC has been recorded by the learned Judicial Magistrate. PW18 then proceeded to the alleged house used by A1 and A2 for prostitution at Nagathammal Kovil Street and prepared Observation Mahazar and Rough Sketch under Ex.P28. She examined the witnesses and recorded their statements.

                  2.11. In continuation of the investigation, on 08.12.2014, PW18 arrested A4 and recorded her statement and sent A4 for medical examination. On 15.12.2014, PW18 gave requisition for conducting test Identification Parade for A4 and after conducting test identification parade, PW18 handed over PW2 to the home.

                  2.12. PW6 is the father of the victim girl / PW2 and he deposed that PW2 has studied 7th standard in CSI middle school and thereafter, she has not continued her studies. PW6 identified PW2 and also identified A1 in the Court and also deposed that she is the sister of PW2's maternal uncle's second wife and A2 is the husband of A1.

                  2.13. PW7- Headmaster of CSI middle school, Choolai deposed that on 11.06.2012, PW6 admitted PW2 in their school for 6th standard. Her admission form is Ex.P11. The Bonafide Letter regarding the date of birth of the victim girl given by her father / PW6 for her admission in school is Ex.P12. Her record sheet is marked as Ex.P13. From 10.06.2013, PW2 did not come to the school.

                  2.14. PW8 is the House Owner of the house in Door No.44, Nagathamman Koil Street, Puliyanthope, who deposed that the house belonged to him was let out on rent to A1, wherein A1 was running Biriyani shop and A2 was working in plywood shop and two girls also resides along with A1. Due to continuous quarrel between A1 and A2, PW8 asked them to vacate the house.

                  2.15. PW9 is the provision shop owner and neighbour of PW8. He identified that A1 and A2 are residing in a portion of the house belonging to PW8. PW10 is the sister of PW2. After the death of PW2's mother, PW10 brought Pw2 and that that time, PW6 took PW2 to Chennai.

                  2.16. PW11 is the doctor who examined PW2 and issued the Certificate - Ex.P14 and Ex.P15. On examination PW11 found no strain in her dress, no external injuries anywhere on her body, no discharge. Her demeanor and IQ is normal. PW2 is not having HIV infection and not having any other STD. On physical examination and radiology examination, PW11 is aged above 16 years and below 17 years and the girl was not pregnant according to the scan report. Smear taken from vagina and swaps taken from cervix were sent for forensic examination. PW11 gave opinion that the girl is accustomed to sexual intercourse. The Physical Examination Report is Ex.P14 and certificate of examination for sexual offence is marked as Ex.P15. Age of the certificate given by forensic medicine department is marked as Ex.P16. The report for medical examination of rule out STD for PW2 is marked as Ex.P17. The Ultra Sound report of PW2 is Ex.P18. The Forensic Lab Report is Ex.P19.

                  2.17. PW13 is the learned Judicial Magistrate, who conducted Test Identification Parade for A3. The copy of file is Ex.P20 and the Report is Ex.P21. The learned Metropolitan Magistrate deposed that on 17.10.2014, he recorded the statement of the victim under Section 164 CrPC. The file relating to the proceedings is marked as Ex.P22. PW15 is the Nodal Manager of Aircel Limited. He received a requisition under Ex.P23 The call details for the mobile numbers along with the Customer Application is Ex.P24. He had issued a certificate under Section 65 of the Indian Evidence Act under Ex.P25. He states that Mobile No.9841546088 stands in the name of one Ilangovan and the same was activated on 17.10.2014. The Mobile No.9710001860 stands in the name of one Krishnaveni and the same was activated on 18.12.2018.

                  2.18. PW18, upon completion of investigation, laid down final report against all the accused under Section 366(A), 370(4), 373, 376(i), 376(D) r/w 109 & 120B of IPC, and 3(2)(a), 4(1), 5(1), 6(1), 7(1)(A), 9 ITP Act and Section 4 of POCSO Act @ u/s.366A, 370(4), 370A(1), 372, 373, 376(2)(i), 376 r/w. 120B IPC and Section 3(2)(a), 4(1), 5(1), 6(I), 7(I), 7(1-A), 9 of ITP Act, 1956 and Section 4 r/w. 17 of POCSO Act, 2012.

                  2.19. To prove the charges framed against A1 to A4, on the side of the prosecution, PWs.1 to 19 were examined, Exs.P1 to P28 were marked and also produced 5 material objects. Upon completion of the prosecution side evidence, the accused were examined under Section 313 CrPC, for which the accused denied the allegations levelled against them as false. No defence witness was examined and no document was marked on the side of the accused. Upon hearing either side and on appreciation of evidence and documents, the trial Court convicted and sentenced them as above. Aggrieved over the same, these appeals have ben preferred by A1 to A4.

3. The learned counsel appearing for A1 and A2 / appellants in Crl.A.No.437 of 2021 would submit that the offence under Section 6 of POCSO Act, 2012 is not made out against A1 and A2. The alleged victim girl / PW2 in her cross examination deposed that one Geetha only used for for the alleged prostitution when she was in Ekattuthangal and A1 and A2 having used for the alleged prostitution and therefore, conviction under Section 370(4) IPC and section of POCSO Act is unwarranted. The alleged occurrence took place on 14.10.2014 at Priyadharshini Hotel has not been proved by the prosecution, since the Manager of the hotel namely PW5 has not supported the case of the prosecution. Non-examination of the first informant one Julie Jane - alleged social worker who gave information to the police is fatal to the prosecution. There is no medical evidence against A1, A2 as PW11 - Doctor who examined the alleged victim girl states that there is no semblance of secret sexual intercourse and therefore, A1 and A2 cannot be convicted under Section 370(4) IPC. A1 and A2 have not involved in aggravated sexual assault of PW2 and hence, the conviction under Section 6 is illegal. The alleged victim girl / PW2 in her cross examination clearly states that A1 and A2 having housed her for prostitution at the relevant point of time and she was initially used for prostitution by one Geetha and the same is major contradiction to the chief examination of PW2. PW4 is the stock witness and the evidence of PW3, the alleged decoy who is claiming as social worker is an interested witness would always support the cae of the prosecution. The trial Court failed to consider the First Information Report given by one Julie Jane and therefore, FIR can be registered on the basis of the first information of the said Julie Jane, but in this case FIR came to be registered based on the special report given by PW1 and the same is illegal. PW8 the alleged house owner of the premises where the victim girl was stayed and not at all stated about the use of the accused for brothel.

4. The learned counsel appearing for A3 / appellant in Crl.A.No.502 of 2021 would submit that A3 was neither arrested nor subjected to test Identification Parade and he made his presence to the Court only when the summon was issued to him. A3 did not know anything about the case or his involvement in the offence. PW2 / victim girl identified the appellant / A3 only in the trial Court and not earlier. Despite A3 was continuously present before the trial Court, after being summoned PW2 did not identify A3 by his correct name, instead PW2 was referred to by his name as Nawas Khan. This discrepancy clearly establishes that PW2 identifying A3 was unreliable. The trial Court failed to note that the charge against A3 naming as Nawaz Khan by PW2 without giving any proper reasons.

5. The learned counsel appearing for A4 / appellant in Crl.A.No.304 of 2022 would submit that A4 was not present in the place of occurrence. The victim herself admitted that she does not know A4. The learned Magistrate who recorded the statement of the victim girl under Section 164 CrPC deposed that the victim girl does not speaks about the name of A4.

6. Heard the learned counsel for the parties and perused the entire materials available on record.

7. It is the case of the prosecution that the victim girl / PW2 is a native of Tiruvannamalai. A1 and A2, for the purpose of sexual exploitation, trafficked her Tiruvannamalai to Chennai by inducing her of taking care of herself while she was stayed in the platform at Moore market along with her father / PW6. Further, A1 and A2 used to premises situated in Door No.44, Nagathamman Kovil Street, Puliyanthope, where they reside as tenant and utilized the same for doing prostitution. A1 and A2 exploited PW2 by inducing her for prostitution and they were living on the income derived out of prostitution. A3 and A4 are customers of the prostitution and they have committed the aggravated penetrative sexual assault on PW2, for which A1 and A2 acted as abettors.

8. In order to ascertain the age of the victim girl / PW2, the school admission form of PW11 and bonafide certificate under Ex.P12 given by PW6 at the time of admission in the school and regarding the date of birth, school record sheet under Ex.P13 were relied. Exs.P11 to P13 are the documents relating to the school in which PW2 studied immediately before the alleged occurrence. As per Ex.P11- Admission Form, her date of birth was mentioned as 30.09.2000. In order to corroborate Exs.P11 to P13, PW7-Headmaster of CSI Middle School, Soolai was examined. He deposed about the genuineness of the aforesaid documents. As per the evidence of PW7 and as per Exs.P11 to P13, the prosecution has established that the date of birth of the victim girl is 30.09.2000. The age of the victim girl / PW2 at the time of occurrence is only 14 years and above. In this regard, PW11-Doctor, who conducted physical examination and after obtaining Radiologist Report under Ex.P18, opined that on the date of examination of PW2, she was aged about 16 to 17 years. PW11 was examined on 16.10.2014. A1 to A4 have also not disputed the age of the victim girl at the time of the alleged occurrence and therefore, the prosecution has proved that the victim girl is a minor.

9. According to the prosecution, the police has received information from one Julie Jane - Social Worker. PW1 set up PW3 as decoy, who is also related to the institution where Julie Jane worked as Social Worker. PW3 called A2 and asked a girl for prostitution and on PW3's request, A1 and A2 brought PW2 in a hotel and they handed over PW2 to the decoy / PW3 for prostitution, after getting money from PW3. At that time, PW1, PW17 and PW18-Inspector of Police, along with his team, conducted the raid and secured PW2. PW1 gave Special Report under Ex.P1 to PW18. Based on Ex.P1, PW18-Inspector of Police registered a case and she conducted further investigation. According to the prosecution, the said Social Worker - Julie Jane died prior to the commencement of the trial. The person who was working along with the said Julie Jane was acting as decoy as PW3 in this case. PW3 identified the signature of the said Julie Jane. Therefore, non-examination of the said Julie Jane is not fatal to the prosecution.

10. PW2-Victim girl deposed that she used to stay along with her father PW6 in the platform of old Moore market and from the platform, she used to go to school. PW2 deposed that A1 and A2 were residing as tenant under PW8 where A1 and A2 detained her and arranged customers including A3 and A4 to commit penetrative sexual assault on PW2. It is seen from the records that PW2 - Victim girl was examined in chief in the year 2016 and she was subjected to cross examination in the year 2018. On perusal of the cross examination of PW2, it seems that she was compelled to say "Yes" for some questions asked on the side of the defence. Nothing elicited in her cross examination to discord the evidence given by her in the chief examination against A1 and A2. In her statement recorded under Section 164 CrPC, she categorically deposed about the involvement of the accused 1 and 2. As regards the involvement of A1 and A2, the evidence of PW2 is very clear, cogent and trust worthy and it is also corroborated with her earlier statement.

11. According to the learned counsel appearing for the appellant / A3, the evidence of PW2 does not stand against A3 and he has not mentioned the name of A3 correctly as Nawas and instead, mentioned his name as Nawas Khan. PW2, in her chief examination, deposed that A3 -Nawas Khan has come to the house of A1 and she had sexual intercourse with him. A perusal of the statement recorded under Section 164 CrPC., it has been stated that in Ex.P2, one Nawas has arrived to the house of A1. The victim/PW2 even wrongly mentioned the name of A3 in her evidence as Nawaz Khan instead of Nawaz. In this regard, the victim has identified A3 in the Court. It is seen from the evidence of PW2 that the victim girl specifically identified A3 by mentioning his name as Nawaz Khan. Though the name of A3 was wrongly mentioned, but PW2 has identified A3 only in the Court.

12. It is the contention of the appellant that without conducting any Test Identification Parade, identification of A3 before the Court itself is not sufficient to connect A3. The victim girl / PW2 deposed that A3 is the friend of A2. During the cross examination, a question was posed to the victim girl in her cross examination as if the victim girl is mentioning the name of A3. Since police has tutored her to see and identify A3. At the point of time, the victim was crying. The Trial Court, after noting the demur of the victim, has recorded that "Before answering the said question, the witness in a confusing state of mind has answered Yes. In the meantime, the witness started crying". In this regard, on perusal of records, when A3 was examined under Section 313 CrPC on the basis of the evidence given by the victim, it is specifically asked by PW2 that A3 visited the house of A1 and A3, introduced PW2 to have sexual intercourse with him. On A1 inducing, PW2 had sexual intercourse with A3. For that A3 simply denied as false. There is no specific explanation was given by him as his name as not Nawas Khan, but only Nawaz. The explanation was also not mentioned that he has not visited the house of A1.

13. PW2 / victim girl deposed that A4 visited the house of A1. PW2, on A1 inducing, had sexual intercourse with him and therefore, PW2 had sexual intercourse with him. PW2, in her statement recorded under Section 164 CrPC, stated that A4 frequently visited the house of A1 and A2. Though in her statement recorded under Section 164 CrPC., have not mentioned about the sexual assault made by A4, wherein in her examination before the Court she has categorically deposed that A3 and A4 are friends of A2. They both had committed penetrative sexual assault on her once.

14. PW5, who is one of the witness accompanied by PW3, deposed about the raid conducted by PW1 and about his act as the decoy and about the decoy money and the arrest, confession statement and seizure of decoy money, cellphones and motor bike from A1 and A2. It is seen from the records that PW4 was examined in the month of February 2016, but in the year 2018 she was called for cross examination and cross examination was closed on production of VAO certificate, wherein it has been stated that his whereabouts are not known. The victim girl herself deposed about the raid and involvement of all the accused and about the occurrence.

15. PW11, who examined the victim girl and issued Forensic Department Physical Examination Report-Ex.P14 and certificate of examination for sexual offence, marked as Ex.P15 and found that there was no injuries found on any where of the body of the victim girl. The contention of the appellant that medical evidence have not supported the case of the prosecution and the same is fatal to the prosecution. As per the evidence of PW2 / victim girl, she was used for prostitution by A1 and A2 and utilized the customers including A3 and A4. Therefore, A3 and A4 have committed the offence of penetrative sexual assault against the victim girl during some period of time. Thereafter only the victim girl was subjected for medical examination.

16. On medical examination by PW11-Doctor, it was found that the vagina and vulva of the victim girl looked normal and her hymen at 3' O clock, 6' O Clock and 8'O Clock position revealed that the victim girl is subject to penetrative sexual assault continuously. PW11 gave opinion under Ex.P15 that the victim girl was accustomed to sexual intercourse, even though as per Ex.P14 - Medical Report there is no external injuries found on the body of the victim girl. It is not to be considered that she is not subjected to penetrative sexual assault and the position of hymen proved the fact of penetrative sexual assault committed against her. Therefore, the contention of A3 and A4 is that the medical evidence not supported the case of the prosecution, is not acceptable one. Thus, A3 and A4 not only having actively involved in using the victim girl / PW2 for brothel, but also committed the offence of penetrative sexual assault while the victim girl was used for brothel.

17. Charges were framed against A3 and A4 under Section 6 of the POCSO Act for the offence of penetrative sexual assault repeatedly against the victim girl. As per the evidence of PW2/victim girl, they have committed the said offence once i.e., only on one occasion. PW2 has not stated anything against A3 and A4 that they both had committed the said offence repeatedly against her. In view of the above, the Trial Court has altered the charges. Though the charges were framed against them under Section 6 of POCSO Act for commission of the offence under Section 5(1) of POCSO Act, the same has been altered to minimum charge of Section 4 of POCSO Act for penetrative sexual assault. Under Section 3 of POCSO Act, to prove the said charge, the prosecution has to establish a prima facie case. Where the accused has been prosecuted for commission of offence under Section 3 of POCSO Act, for which the Court shall presume under Sections 29 and 30 of POCSO Act that the accused committed the said offence, unless the contrary is proved.

18. This Court cannot remain a silent spectator to the looming threat of immoral trafficking and exploitation of vulnerable individuals, especially women and children. The immoral trafficking, particularly when it involves innocent children, strikes at the very core of our constitutional values and erodes the moral conscience of society.

19. As observed by the Hon'ble Supreme Court in Vishal Jeet v. Union of India and Others [(1990) 3 SCC 318], prostitution and trafficking are a running sore in the body of civilisation, which erodes the moral values and the sanctity of human values. The Hon'ble Apex Court further emphasised that the eradication of this evil requires not only the stringent enforcement of the law but also a preventive, rehabilitative, and humane approach by the government and society alike. Relevant portion as follows :

                  "5. No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.

                  12. In spite of the above stringent and rehabilitative provisions of law under various Acts, it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of Ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring most rational measures to weed out the vices of illicit trafficking. This malady is not only a social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.

                  14. This devastating malady can be suppressed and eradicated only If the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The courts in such cases have to always take a serious view of this matter and inflict condign punishment on proof of such offences. Apart from legal action, both the Central and the State Governments who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction"

                  Therefore, it becomes the solemn duty of every adjudicating authority to approach such cases not only with legal precision but with a moral and constitutional conscience. The law must serve as both a shield for the victims and a sword against those who perpetrate such depravity. The enforcement agencies and social institutions must adopt a multi-pronged, preventive, and rehabilitative approach to ensure that justice is not only done but also felt by restoring dignity, compassion, and hope to those who have been wronged by this heinous trade.

20. The victim girl / PW2, in her evidence clearly deposed that A1 has taken her from Tiruvannamalai while she was in custody of one Geetha and A1 and A2 taken her from the custody of Geetha and done prostitution by keeping them in a house rented by both and therefore, trafficking the minor girl for the purpose of exploitation is proved by the evidence of PW2. Thus, the offence under Section 370(4) IPC has been established by the prosecution.

21. A1 and A2 were charged under Sections 3(2)(a) of Immoral Trafficking Act for using and keeping the premises for brothel. As per the evidence of PW8 / house owner deposed about the rental occupation of A1 and A2 along with 3 girls in a particular portion of the house belonging to him for rent and not about the use of the same as brothel by A1 and A2. PW8 insisted A1 and A2 to vacate the house due to frequent quarrel held between A1 and A2. PW8 has not stated anything about the house used for brothel. A1 and A2 allowed the customers to have sexual intercourse including A3, A4 and other customers. Therefore, the prosecution has failed to prove that the house in which brothel said to have been done by A1 and A2 from the house of PW8. The usage of the said house for brothel is not established by the prosecution.

22. A1 and A2 were also charged under Section 4(l) and 5(l) of ITP Act. A1 and A2 received money from others to let the victim girl to have sexual intercourse with them in the house of PW8. As per the evidence of PW8, A1 is running a biriyani stall and A2 is working in Plywood shop. The prosecution has failed to establish that A1 and A2 are knowingly living on the earning of prostitution of another person / victim girl alone. Hence the offence under Section 4(l) of ITP Act has not been proved by the prosecution. From the evidence of PW2 / victim girl, A1 and A2 abetted the offence of penetrative sexual assault by A3 and A4. Since the victim girl was subjected to penetrative sexual assault repeatedly by several persons, more specifically A3 and A4 on one occasion even as per the evidence of PW8/victim girl, the abetment of offence under Section 6 r/w. 7 of POCSO Act, 2012.

23. In view of the above discussion, the conviction and sentence imposed by the Trial Court on the appellants/A1 and A2 under Sections 4(1), 5(1), 6(1) of ITP Act are set aside and the sentence imposed under Section 370(4) IPC and Section 6 r/w. 17 of POCSO Act is modified.

24. In the light of the above discussions and reasoning, this Court is inclined to modified the conviction and sentence imposed on the appellants / A1 and A2 and the conviction and sentence imposed on the appellants/A3 & A4 is confirmed, which are tabulated as follows:

                 

                  

25. In the result, the criminal appeals filed by the appellants /A1 and A2 in Crl.A.No.437 of 2021 is partly allowed as stated supra and the judgment of the conviction and sentence dated 26.07.2021 made in S.C.No.37 of 2025 on the file of the Special Judge for POCSO cases, Chennai is modified as above. The appeals filed by A3 and A4 in Crl.A.No.502 of 2021 and Crl.A.No.304 of 2022 are dismissed.