Bangalore District Court
Along With Panchas Cw.2 And Cw.3 And His vs No.1 To 3 on 2 March, 2023
KABC010174302018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 2nd DAY OF MARCH, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1084/2018
BETWEEN
State by Hennur P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
2.Fayaz
S/o Basha Peer, a/a 38 Yrs.,
R/a No.89, Makkan Road, Bhaathinagar,
Bangalore City.
(By Sri SA, Advocate)
(Accused No.1 split up
Accused No.3-quashed) ...ACCUSED
******
Date of offence & time 2.8.2016 17.00 - 19.45 hours
Date of report of offence 2.8.2016 at 20.45 hours
Date of arrest of the accused 2.8.2016
Date of release on bail 12.8.2016
Total period of custody 10 days
Name of the complainant Sri T. Srinivas
Date of commencement of 7.3.2020
recording of evidence
2
SC No.1084/2018
Date of closing of evidence 16.08.2022
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Hennur P.S., Bangalore, has filed charge sheet against accused No.2 and another for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in their Crime No.262/2016.
2. The factual matrix of the case is that :-
The accused No.2 and another were running prostitution business in a lodge by name Reddys' Hotel bearing No.1072, Near Nagawara Signal, I Stage Nagawara, 5th Block, HBR Layout within the limits of Hennur P.S., Bangalore, by trafficking CW.4 with the assurance of providing job, induced and indulged her in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. And on 2.8.2016 at about 18.20 hours the complainant along with panchas CW.2 and CW.3 and his subordinate staffs CW.5 to CW.10 conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 3, who were involved in the prostitution business , rescued CW.4 and at that time seized the articles from the spot through panchanama. Thereby the accused No.2 is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against accused for the offences punishable U/s. Sec.370 3 SC No.1084/2018 ofIPC and U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional XI Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused.
4.The charge was framed against the accused No.2 on 02.12.2021 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all four witnesses as PW.1 to PW.4 and got marked documents at Ex.P.1 to P.6, and identifies Mos1 to 4. The learned public prosecutor has given up witnesses CW.6 and CW.8 to CW.10, in view of available evidence of other witnesses. Further the prosecution has not taken any steps to secure the witnesses CW.2 and 3, in view of the same dropping of evidence of CW.2 and CW.3 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused No.2 as provided U/s.313 of Cr.P.C. on 11.01.2023, and the same was duly recorded. The accused did not claim for defense evidence nor produce any documents to support their case.
7.Heard the arguments on both sides and perused the materials on record.
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable that on 2.8.2016 at about 18.20 hours 4 SC No.1084/2018 the accused No.2 and others in a lodge by name Reddys' Hotel bearing No.1072, Near Nagawara Signal, I Stage Nagawara, 5th Block, HBR Layout within the limits of Hennur P.S., Bangalore, by trafficking CW.4 with the assurance of getting job and money induced and indulged her in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business and thereby the accused No.2 has committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 2.8.2016 at 18.20 hours the accused No.2 and others with common intention to run prostitution business by trafficking CW.4 forcibly induced her to indulge in prostitution business for wrongful gain at Reddys' Hotel bearing No.1072, Near Nagawara Signal, I Stage Nagawara, 5th Block, HBR Layout within the limits of Hennur P.S., Bangalore and thereby the accused No.2 has committed offence punishable U/s.370A r/w Sec.34 of IPC?
3. What Order?
9.This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order 5 SC No.1084/2018 for the following:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the case of the prosecution that the accused No.2 and another were running prostitution business in a lodge by name Reddys' Hotel bearing No.1072, Near Nagawara Signal, I Stage Nagawara, 5th Block, HBR Layout within the limits of Hennur P.S., Bangalore, by trafficking CW.4 with the assurance of providing job, induced and indulged her in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. And on 2.8.2016 at about 18.20 hours the complainant along with panchas CW.2 and CW.3 and his subordinate staffs CW.5 to CW.10 conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 3, who were involved in the prostitution business , rescued CW.4 and at that time seized the articles from the spot through panchanama. Thereby the accused No.2 is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant-PW.4, who deposed that on 2.8.2016 at 18.20 hours after obtaining credible information regarding prostitution carried out in Reddys' Hotel bearing No.1072, Near Nagawara Signal, I Stage Nagawara, 5 th Block, HBR Layout within the limits of Hennur P.S., Bangalore,, and 6 SC No.1084/2018 after obtaining permission from his higher officers, he along with his staff CW.5 to CW.10 and secured the panch witness CW.2 and 3, and issued notice Ex.P3, deputed CW.7 as decoy, and after confirmation he conducted raid over the lodge along with his staff and panchas, apprehended accused persons and rescued CW.4, who was made to indulge in prostitution business by the accused persons. It is also the case of the PW.4 that he has drawn mahazar Ex.P2 regarding seizure of material objects No.1 to 4, returned to P.S., along with the seized articles, victim and accused persons, prepared the report Ex.P4 and registered Ex.P5 FIR, forwarded to the Jurisdictional Court, brought the seized articles into PF No.83/2016, recorded statements of panchas, his staff and victim, and handed over the victim to the custody of her relatives, after recording voluntary statement of the accused persons produced before the Court, and after completion of investigation submitted charge sheet before the jurisdictional Court. It is pertinent to note that in the cross-examination PW.4 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. It is equally important to note that before the raid he has not physically verified himself and his staff. This clearly indicates that PW.4 has never taken any steps before raid regarding the materials that has been carried by him and his staff at the time of raid. Further it is also the evidence of PW.4 that after conducting raid he has seized MOs1 to 4 from the possession of accused persons through panchanama Ex.P2 drawn in the presence of the panchas CW.2 and 3. At this juncture it is also very 7 SC No.1084/2018 important to note that panchas CW.2 and 3, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of CW.2 and CW.3 the contents of Ex.P2 panchanama is also not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused that the complainant PW.4 in spite of densely populated area has not secured any of the female persons residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P2 as mandated by the Act U/s.15(2) of the ITP Act. The pancha CW.2 and CW.3 are the male persons. At this juncture I would like to reproduce the provisions of Se.15(2) of ITP Act, which reads as follows:-
Sec.15(2) before making a search under sub-section(1), the special police officer(or the trafficking police officer, as the case may be) shall call upon two or more respectable inhabitants(at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do:
It is clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates two or more respectable inhabitants of the locality in which the place to be searched is situated has to be called them for panchanama, out of them at least one of them shall be a women residing in the said locality. In the instant case the panch witnesses, who were cited are male persons. From this fact it is clear that the PW.4 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is 8 SC No.1084/2018 equally important to note that though the place of occurrence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused along with the victim/CW.4, induced her indulging in committing prostitution and failure to prove seizure of MOs1 to 3 is fatal to the case of the prosecution. PW.2 Panchaksharaiah, Police Head Constable, who is one of the raiding party member and PW.3 Prakash Rathod, Police Constable, decoy and one of the raiding party member have deposed in similar way of PW.4 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.4. The learned counsel for the accused cross-examined PW.2 and PW.3 and they also denies the suggestions with regard to apprehension of accused persons and their participation in the raid.
13.In order to prove the allegations against the accused the prosecution has failed to examine the owner of the lodge. It is also very important to note that the prosecution in spite of issuing summons and warrants to the panchas CW.2 and CW.3, failed to secure the material witnesses before the Court.
The the entire case rest on the evidence of victim/CW.4, who according to the prosecution, was indulging in prostitution business by trafficking and the accused No.2 was living on the wrongful gain from the said business. PW.1/CW.4 Shobha @ Fathima, who being the victim has turned hostile and not supported the case of the prosecution. She denies the statement given to the I.O., marked as Ex.P1. This is fatal for 9 SC No.1084/2018 the case of the prosecution, and failed to establish the to prove the guilt against the accused No.2 .
14.The material witnesses CW.2 to and CW.3 have not been examined, so as to prove the guilt against the accused No.2. Therefore, from the above reasons and discussions it is very clear that the prosecution has failed to establish the guilt against the accused No.2 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
15.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused No.2 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled.
MO1 to 4 shall be preserved, till the disposal of the split up case, as registered against accused No.1. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 2nd day of March, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
10SC No.1084/2018 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Shobha @ Fathima P.W.2: Panchaksharaiah P.W.3; Prakash Rathod P.W.4: T. Srinivas.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Statement of PW.1 Ex.P.2: Mahazar Ex.P.3: Notice Ex.P.4: Complaint Ex.P.5: FIR Ex.P.6 Arrest Warrant.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:-
NIL List of Material Objects marked on behalf of Prosecution:-
MO1: Condoms
MO2 to 4: Mobile phones.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
11
SC No.1084/2018
Accused No.2 present
The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.2 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/ w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled.
MO1 to 4 shall be preserved, till the disposal of the split up case, as registered against accused No.1.
For compliance of Sec.437(A) of Cr.P.C., call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.