ORDER Shiv Dayal, J. Munshilal and Parvati, Petitioners in this revision, were tried by the Magistrate, First Class, Ambah, under Sections 372 and 373 respectively of the Indian Penal Code. The charge was that Munshilal sold a girl named Nargis alias Asha to Parvati for the purpose of prostitution. Munshilal and Parvati were both convicted for the offences of which they were charged and each of them was sentenced to suffer rigorous imprisonment for six months and to pay a line of Rs.100. The conviction and sentence of each of them have been maintained by the Additional Sessions Judge, Morena. This revision was filed by both the accused, but Shri Gupta, Learned Counsel for the Petitioners, informs me that Munshilal has since died, and, therefore, he presses this petition only in respect of Parvati. It is common ground that Parvati was a prostitute at one time. It is also an undisputed fact that Parvati obtained possession of Nargis, a girl of about six years from Munshilal. The defence was that Parvati had long before the transaction abandoned her vocation of a prostitute and that the girl was not bought or sold, but was given in adoption by Munshilal to Parvati. The trial Magistrate held that adoption was invalid in the eye of law and the registered deed of adoption was of no effect. The appellate Court held that a girl could be validly adopted, but presumption under Explanation (1) to section 373, Indian Penal Code was attracted and as such the conviction was good. To my mind all discussion in the Courts below whether the adoption was valid in law or not was unnecessary. The express words used in Section 373 are "whoever buys, hires or otherwise obtains possession". Even a valid adoption would be covered by the expression 'otherwise obtains possession'. Therefore, it is of no consequence whether Parvati could or could not adopt Nargis and whether the alleged adoption was valid and effective. Two points have been canvassed before me: (1) Whether Parvati was a prostitute within the meaning of Section 373 on the date of adoption and (2) whether presumption under the first Explanation to Section 373 remains unrebutted. Therefore, it is of no consequence whether Parvati could or could not adopt Nargis and whether the alleged adoption was valid and effective. Two points have been canvassed before me: (1) Whether Parvati was a prostitute within the meaning of Section 373 on the date of adoption and (2) whether presumption under the first Explanation to Section 373 remains unrebutted. The learned Courts below have held as proved, by the prosecution witnesses Kaptan Singh (P. W. 8), Ramchand (P. W. 5), Gyasia (P. W. 2), Jalsu (P. W. 3) and Nathu Rao (P. W.12), that Parvati was once a prostitute. The appellate Court has further observed that even the defence evidence supports that fact. After having held so, the appellate Court has observed "She may not be practising that profession now, but the evidence of Ramehand, Kaptan Singh, Krishna Kumar and Nathuram shows that she had in her house young girls Shanti and Musho and Mst. Parvati acted as Naikin. That means Mst. Parvati is maintaining a brothel and earning money on these girls. Exactly to the same effect is the finding of the trial Magistrate. To my mind this is a composite finding holding, (a) that Parvati was a prostitute at one time and (b) at the material date she was keeping a brothel. I very much doubt whether the distinction between being a prostitute and maintaining a brothel was present in the mind of the Court at the time the charge was framed. The charge merely accused Parvati that she purchased Nargis for the purpose of prostitution. If the presumption was to be raised under Explanation 1 to Section 373, Indian Penal Code, it should have been indicated in the charge. At any rate she was described as "Jati Bedni" in the charge. Kaptan Singh (P. W. 8) stated that Parvati was not carrying on the business of a prostitute for 18 or 20 years. The statement of Ramchand (P. W. 5) is to the same effect although the period mentioned by him is 10 or 15 years. The statements of these two prosecution witnesses are sufficient to indicate the fact that Parvati was not a prostitute at the time of the occurrence and the Courts below also must be taken to have held that she was at the relevant time acting only as Naikin and keeping or managing a brothel. The statements of these two prosecution witnesses are sufficient to indicate the fact that Parvati was not a prostitute at the time of the occurrence and the Courts below also must be taken to have held that she was at the relevant time acting only as Naikin and keeping or managing a brothel. Shri Gupta challenges the finding of the Courts below that Parvati was keeping or managing a brothel, as one not warranted from the record it have quoted the finding of the appellate Court verbatim and that shows that two things were mixed together. Kaptan Singh and Ramchand nowhere say in their statements that Parvati was managing or keeping a brothel. Therefore, a plain reading of the said finding gives one an impression that it is perverse and based on misstatement of facts. Similarly, in her examination under Section 342 of the Code of Criminal Procedure she was put a jumbled question in these words. Sakshiyan Gyasia, Jalsu Ram, Ramchand, Kaptan Singh, Krishna Kumar Pandey ne apne kathno men bataya hai ke tumhare ghar naika ka pesha hota hai pahle tum randi ka pesha karti thin Chawri Bazar Lashkar men ka pesha karti hai aur tum mahla Shanti wa Musso ke pas rahkar naika ka kam karti ho. Is babat tumhara kya kahna hai. Here again Kaptan Singh and Ramehand were mentioned, who in fact did not say that the accused was acting as Nayaka. It has, therefore, become necessary to go through the evidence to see whether the finding of the Courts below is proper. Gyasia (P. W. 2) stated in his examination-in-chief that the accused was usually residing at Lashkar where her girls also resided and carried on the business of a prostitute. The prosecution case as developed in the course of the trial was that Ram Pyari, a near relation of Parvati resided at Lashkar and there a brothel was maintained. Gyasia is a resident of Ambah, a shephard by caste and agriculturist by vocation. It does not appear from his statement what his source of information was as to all these facts. In cross-examination he admitted that he had never been to the house of Parvati or Rampyari. Gyasia is a resident of Ambah, a shephard by caste and agriculturist by vocation. It does not appear from his statement what his source of information was as to all these facts. In cross-examination he admitted that he had never been to the house of Parvati or Rampyari. On being further questioned the witness stated that Parvati was not carrying on the 'dhanda' (business) for the last 10 or 15 years, that in Dohri Rampyari and Parvati had separate houses, that it was not known to him who resided in the house of Parvati, and that he could not name the girls used by her for the business. It is clear from all this that the witness is utterly useless to support the prosecution case. Great deal of stress is laid by the learned Deputy Government Advocate on the statement of Jalsu Ram (P. W. 3). He was a witness from Lashkar and a Bedia by caste-in fact a brother of Munshilal accused. According to this witness the accused was a resident of Lashkar and in her house Ram Pyari and a niece of the accused were residing. That niece was a prostitute, Parvati ki bhatiji tawayaf ka pesha karti hai. Gana bajana ka pesha karti hai. Parvati apni bhatiji ke yahan naika ka kam karti hai. This witness did not name the niece which shows the shallowness of his information. But what is more, the witness did not stop after saying that the niece was carrying on the business of a prostitute. He explained it by saying that she was doing the business of singing, dancing etc. What 'et cetera' meant is not known. It was the duty of the prosecution to have asked him precisely what he meant by the word 'et cetera'. The fact remains that it was not the statement of the witness that the niece was subjecting herself to promiscuous sexual intercourse for hire. In cross-examination, the witness stated his source of information thus: There was a hotel in front of Rampyari's house where he used to sit. He used to see men going in that house and also used to hear music from the hotel. He could not name the persons visiting that house and negotiating with the accused. He never heard any talk between the accused and those persons. He used to see men going in that house and also used to hear music from the hotel. He could not name the persons visiting that house and negotiating with the accused. He never heard any talk between the accused and those persons. The only thing that emerges from his statement is that the witness knew the house of Rampyari and heard musical notes coming from that house. Since he did not visit Rampyari's house himself, even once, it is difficult to infer from his statement that Parvati was keeping or managing a brothel, all the more so when he stated that she also resided in that house. In order to prove that the accused was acting as a Naika it was for the prosecution to prove that she was either keeping or managing a brothel. All the persons residing in the house of a prostitute cannot necessarily be termed Naikas. Rampyari herself is an old woman of 60 years. She was produced as a defence witness and she stated that the accused never acted as a Naika. Here it must be mentioned that in the first, information report Dohri (Pargana Ambah) has been named as the residenee of the accused. In the charge-sheet submitted by the police to the Court she is again described as a resident of Dohri. Ramchand (P. W. 5) is a Patel of Dohri. His statement is that the accused was an agriculturist, Parvati ke yahan kashtkari hoti hai wa pesha hota hai. Nachna gana yeh pesha hota hai. Parvati ke yahan randi berni ka dhanda 10/15 varsh se band hai. Parvati ne hamare yahan se randi berni ka dhande ke liye aj tak koi larki nahin li. Similarly, Kaptan Singh (P. W. 8) is a member of Village Panchayat of Dohri. According to this witness also Parvati was a permanent resident of Dohri; formerly Parvati used to do the business of singing and dancing, but she had abandoned it for the last 18 or 20 years. These facts have come out from the prosecution side itself and, therefore, the case that Parvati was carrying on the business-of a Naika at Lashkar was altogether a new one. For these reasons the evidence of Jalsuram is not at all convincing. These facts have come out from the prosecution side itself and, therefore, the case that Parvati was carrying on the business-of a Naika at Lashkar was altogether a new one. For these reasons the evidence of Jalsuram is not at all convincing. The prosecution produced one more witness, namely Nathurao, Station House Officer, Janakganj, Lashkar to say that Shanti and Musso were doing the business of singing and dancing while Parvati and Rampyari acted as Naikas. When asked in cross-examination this witness stated that there was a register maintained at the Chawri Police Chowki, and in that register were entered the names of the prostitutes together with their respective Naikas. It is surprising that that register was never produced and it is not ex-plained why. Withholding such an important documentary evidence raises a presumption against the prosecution, and at any rate the benefit of the doubt must go to the accused. The argument of the learned Deputy Government Advocate is that such a woman who was once a prostitute must prove by positive evidence what her present vocation is, and if she does not do so, it must be presumed that she continues to be a prostitute or is at least carrying on an allied business, namely that of a Naika. Shri Gupta vehemently questions this proposition; to quote his words, "there is no presumption once a prostitute always a prostitute." I find myself unable to accept the argument of the Deputy Government Advocate. There is positive evidence in this case that the accused was an agriculturist and that for some years past before the material date she had been actively working for reform amongst the Bedi community; she had been appealing to the Bedias to stop indulging in prostitution. These facts have been proved by prosecution witnesses Ramchand and Kaptan Singh themselves. Shri Gupta invites my attention to the following observations of the appellate Court and challenges the same as perverse: If she was really doing the work, she could have obtained evidence in that respect, and a number of witnesses would have come forward from other communities if they had known that Parvati was doing such a work of reformation. The contention is correct. The contention is correct. The fact of the matter is that apart from the two prosecution witnesses who admitted that fact in their cross examination, Parvati did examine Khusia D. W. 2, Ramsingh D. W. 3 (both Bedias), Kriparam D. W. 4 (Brahmin), Jimipal Singh D. W. 5 (Thakur) and Sardar D. W. 6 (Chamar). They have all stated that Parvati was doing the work of reform in her community. Kriparam, Jimipal and Sardar belonged to Dohri village. It was a different matter whether these witnesses were believed or not by the Court, but it was not proper for it to have completely overlooked the statements of these witnesses and to have meant to say that no such witness was produced. In order that a presumption under Explanation 1 to Section 373, Indian Penal Code could be raised against Parvati, it should have first been proved either that she was a prostitute or that she was keeping or managing a brothel. Leaving aside the evidence of defence witnesses, it has emerged as an undoubted fact that she had given up her immoral trade very many years ago. The statements of Ramchand and Kaptan Singh leave no escape from the conclusion that she had been carrying on for a number of years before the occurrence a propaganda for the uplift of the Bedia community by appealing to it not to indulge in prostitution. With this fact on the record, no adverse presumption under Section 373 can stand. Apart from the fact that Ramchand and Kaptan Singh were witnesses for the prosecution, the former was a member of the Village Panchayat and the latter, the village Patel. As such, their evidence carries weight. Neither of the two Courts below has held them unreliable. Before me also nothing could be urged by the Learned Counsel for the State how to get out of their testimony. I do not understand how this part of the evidence could be skipped. Greatest sinners sometimes turn their lives upon new leaves and if Parvati changed herself it was not inconsistent with human ways. Likewise, there is no evidence that Parvati kept or managed a brothel. The finding of the Courts below that she was acting as a Naika is based on very vague and unsatisfactory evidence, as discussed by me above. Greatest sinners sometimes turn their lives upon new leaves and if Parvati changed herself it was not inconsistent with human ways. Likewise, there is no evidence that Parvati kept or managed a brothel. The finding of the Courts below that she was acting as a Naika is based on very vague and unsatisfactory evidence, as discussed by me above. For these reasons, no presumption can be made against Parvati under Section 373, Explanation 1, of the Penal Code. And, since the prosecution has not proved that Nargis alias Aslia was purchased or adopted for the purpose of prostitution or illicit intercourse or for an unlawful or immoral purpose or knowing it to be likely that she would at any age be employed or used for such purpose, the conviction is neither proper nor legal. In the result, this revision is allowed, the conviction and sentence passed against the Petitioner Parvati are set aside and she is acquitted. She shall be. Bet at liberty forthwith. Nargis alias Asha, who was seized from the custody of Parvati, shall be put back in her possession. Petition allowed