Bangalore District Court
Narayanaswamy vs Defended By Sri K.T.Thyagaraju on 30 January, 2021
IN THE COURT OF LXXI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-72)
DATED THIS THE 30 th DAY OF JANUARY, 2021
PRESENT
Smt. SANDHYA S. M.A., LL.B., (Spl.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru.
S.C. No.707/2017
BETWEEN
The State of Karnataka
Kodigehalli P S,
Bengaluru. .... COMPLAINANT
(By the learned Public Prosecutor)
AND
Siddanna.D
S/o Devendrappa, a/a 30 years,
R/a Site No.1, Flat No.101,
I Floor, Sapthagiri Nilaya, 4th Cross,
Muneshwara Block, Devinagar,
Bangalore-94. .... ACCUSED
(By K.T.Thyagaraju, Advocate)
Date of offence 10.09.2015
Date of report of offence 10.09.2015
Name of the Sri B.M.
complainant Narayanaswamy,
A.C.P
2
S.C. No.707/2017
Date of commencement 3.8.2018
of recording of evidence
Date of closing of 8.11.2019
evidence
Offences complained of Sec.3,4, 5 & 6 of
Immoral Traffic
Prevention Act and
Sec.370 of IPC
Opinion of the Judge Accused not found
guilty
State represented by Learned Public
Prosecutor
Accused defended by Sri K.T.Thyagaraju,
Advocates.
*****
J UD GME N T This case is the result of charge sheet filed by the complainant Kodigehalli Police against the accused for the offence punishable under Section 370 of Indian Penal Code and Sec.3, 4, 5 and 6 of Immoral Traffic Prevention Act.
2. The prosecution was set into motion against the accused on the complaint of C.W.1 B.M.Narayanaswamy, Assistant Commissioner of Police, Yelahanka Sub-Division, Bangalore. The case 3 S.C. No.707/2017 of prosecution is that on 10.09.2015, when CW.1 was on patrolling duty, he received credible information about running of brothel business at Flat No.101, Sapthagiri Nilaya, situated at Devinagar, within the limits of Kodigehalli P.S., Bangalore. Immediately on the same day, after confirmation of the information, at about 12.10 p.m. along with CW.2 to 10, C.W.1 sent C.W.3 as decoy and got it confirmed. Later along with C.W.2 C.W.3, C.W.7, C.W.11, C.W.12 to C.W.14 raided the said premises. During the said raid, they got to know that accused by giving false assurance and making illegal gain, induced the girls to indulged in brothel business. The complainant police seized condom packets and Mobile phones, used for commission of the said offence and by drawing mahazar, registered the case in Cr. No.272/2015, for the offence punishable under Sec.370 of Indian Penal Code and Sec.3, 4, 5 and 6 of Immoral Traffic 4 S.C. No.707/2017 Prevention Act. The accused was remanded to judicial custody.
3. On 15.09.2015 the accused was released on bail. After completion of investigation, C.W.10 submitted charge sheet against the accused before Chief Metropolitan Magistrate Court, Bengaluru and it was registered as C.C.No.30684/2015.
4. The accused appeared before the learned Magistrate through the counsel and got enlarged on bail. The learned Magistrate furnished copy of charge sheet to the accused and thereby, the provision of Sec.207 of Cr.P.C. was complied with. As the offence charge sheeted against the accused is exclusively triable by sessions Court, the learned Magistrate acting under Section 209 of Cr.P.C, committed this case to the Hon'ble Prl. District & Sessions Judge, Bengaluru. Further, as per the notification bearing No.600/2017, dated:29.07.2017, Hon'ble Prl.City Civil and Sessions Judge Bengaluru, transferred this case 5 S.C. No.707/2017 to this court for disposal in accordance with law. Hence, the matter is taken up before this Court for further proceedings accordingly.
5. As stated herein above, the accused is on bail. In pursuance of service of summons, the accused appeared before this Court through his counsel and got enlarged on bail. After hearing the counsel for accused and also the learned Public Prosecutor and on considering the relevant materials on record, my predecessor has framed charges against the accused on 28.2.2018, for the offences punishable under Section 370 of Indian Penal Code and Sec.3, 4, 5 and 6 of Immoral Traffic Prevention Act, for which the accused pleaded not guilty and thereby he claimed to be tried for the said offences.
6. In support of the case of prosecution, out 10 witnesses cited by the prosecution, they have examined in all 6 witnesses as P.W.1 to P.W.6. The prosecution has marked four documents as Ex.P.1 to 6 S.C. No.707/2017 Ex.P.4 and three properties marked as M.O.1 to M.O.3. After completion of prosecution side evidence, this Court has recorded the statement of accused as provided under Section 313 of Cr.P.C. The accused has denied all the incriminating materials present against him in the evidence of prosecution. Accused has not adduced defence evidence nor produced any documents on his behalf.
7. Heard the argument of the learned Public Prosecutor and also the learned counsel for accused. Perused all the oral and documentary evidence on record. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on 10.09.2015 at about 12.10 p.m. the police have conducted raid at Flat No.101, Sapthagiri Nilaya, situated at Devinagar, in which the accused was doing brothel business by keeping the victim/ C.W.4 and thereby the accused has committed the offence punishable under Section 3 of I.T.P. Act?7
S.C. No.707/2017
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused was doing brothel business by easily earning money and living from the income of the said business and thereby the accused has committed the offence punishable under Section 4 of I.T.P. Act?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place when C.W.1 along with panchas have raided the above said hotel and found that accused by keeping girls as slave for doing brothel business and induced the victim to do prostitution and thereby the accused has committed the offence punishable under Sec.5 of I.T.P Act?
4. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place when C.W.1 along with panchas have raided the above said house and found that accused by keeping girls as slave for doing brothel business and induced the girls to indulge in prostitution and thereby the accused has committed the offence punishable under Sec.6 of I.T.P Act?
5. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, the accused was doing brothel business and living on the earnings of the said business and kept the victim under his custody as slave and induced her for prostitution and thereby the accused has committed 8 S.C. No.707/2017 the offence punishable under Sec.370 of IPC?
6. What order?
8. Having heard the arguments of both the sides and taking into consideration the evidence on record, coupled with the documents, my findings on the above points are as under:
Point No.1: In the negative Point No.2: In the negative Point No.3: In the negative Point No.4: In the negative Point No.5: In the negative Point No.6: As per final order For the following:
REA S ON S
9. Points No.1 to 5: These points are taken up for consideration together for convenience as they are inter-connected and also for avoiding repetition of discussion on the facts of the case and also regarding point of law.
10. The learned Public Prosecutor has vehemently argued that the prosecution has perfectly proved all the ingredients of the charges leveled 9 S.C. No.707/2017 against the accused and hence, the accused be convicted for the offences charged.
11. The learned counsel for the accused, Sri. K.T.Thyagaraju vehemently argued that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused has committed the offence charged against him and hence, he may kindly be acquitted.
12. In order to substantiate the charges leveled against the accused, the prosecution has mainly relied on the evidence of P.W.1 to P.W.6. I have gone through the evidence of P.W.1 to P.W.6 in detail. The prosecution has got marked documents at Ex.P.1 to Ex.P.4 and M.O.1 to M.O.3.
13. On going through the evidence adduced by the prosecution witness, the evidence of P.W.3 who is C.W.1, one by name B. M. Narayanaswamy, who is 10 S.C. No.707/2017 the A.C.P and complainant in this case. He deposed that on 10.09.2015, while he was on patrolling duty, he has received credible information that of running of brothel business at Flat No.101, Sapthagiri Nilaya, situated at Devinagar, within the limits of Kodigehalli P.S., Bangalore. Immediately on the same day, after confirmation of the information at about 12.10 p.m, along with CW.2 and CW.3, who were called as panchas after issuance of notice to them. The notice is marked as Ex.P.4. During the said raid, they got to know that accused, with the false assurance of making illegal gain induced the girls indulged in brothel business. The complainant police seized 3 nirodh packets, 1 man force condom, M.T.S Mobile phones, Potograph of five women and cash of Rs.2000/- used for commission of the said offence and by drawing mahazar Ex.P1 and signature of the witness is at Ex.P.1(c). He further deposed that he went to Kodigehalli P.S., along with the seized articles 11 S.C. No.707/2017 which are marked as M.O.1 to M.O.3 and accused, and handed over to Police Inspector, Satish, along with complaint/ Ex.P2 report and that witness signature is at Ex.P.2(a).
14. During the cross-examination of P.W.3, has deposed that he mentioned the same in the diary, about the information received and has not produced the same. Further deposed that he has not issued memo to the staff and he went to the spot in the jeep and failed to mentioned the vehicle number. Further deposed that he has not sent the decoy to the flat. That there were no ladies in flat No.1. That he has not enquired to the accused about the women in the photo. Further deposed that the women in Ex.P.2 one by name Nandini was not been enquired by him and further that by seeing the photographs he cannot identify who Nandini is. This witness denied other suggestions put to him by the counsel for accused. On considering the evidence of this witness, it goes to 12 S.C. No.707/2017 show that there are many discrepancies in the evidence adduced. That he is not in a position to say who are the women. This creates doubt on the case of the prosecution. Hence the evidence of this witness has to be corroborated by the evidence of other material witnesses only then the guilt of the accused can be said to have been proved beyond all reasonable doubt.
15. The Pancha witnesses are PW.5, who is CW.2, one by name Sarawana.K and PW.6 is CW.3, one by name Shivaraju. They have deposed that they do not know the contents of Ex.P1 Mahazar, and turned hostile to the case of the prosecution. Further the learned Public Prosecutor has conducted the cross-examination of these witnesses. Even during the cross-examination also they have denied all the suggestions put to them. Hence, the evidence of PW.5 and PW.6 is not much help to the case of the prosecution.
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S.C. No.707/2017
16. PW.1 is CW.10, one Satish, who is the Police Inspector and I.O., in this case. He deposed that on 10.09.2015 at about 10.40 a.m. CW.1 Assistant Commissioner of Police asked him to come Devinagar, he and along with his staff CW.4 to 8 went to Devinagar, and there were two panchas along with ACP, the said ACP informed him about the said information, after that they conducted raid over the flat No.101, Sapthagiri Nilaya, situated at Devinagar, and found presence of the accused, and after confirming about running of brothel business, ACP has drawn Ex.P1 mahazar, seized 4 Nirodh packets, photographs of 5 girls, one MTS Mobile, 4 notes of Rs.500/- denomination, in total cash of Rs.2,000/-. The signature of the witness was marked as Ex.P1(a). The seized articles Mobile, Condoms and photos are marked as M.O.1 to M.O.3. He went along with CW.1 to the P S, along with seized articles and accused, ACP submitted report, based on the said report he 14 S.C. No.707/2017 registered a case in Cr.No.272/2015 and submitted FIR to the Court. Complaint is marked as Ex,P.2 and signature of the witness is marked as Ex.P.2(a). FIR marked as Ex.P.3 and signature of the witness as ExP3(a). Witness further deposed that the seized articles were put into PF No.82/2015. He further recorded voluntary statements of accused and statements of CW.2 to 8, and on 11.09.2015 produced the accused before Hon'ble Court, and after completion of investigation he submitted charge sheet to the Hon'ble Court.
17. During the cross-examination of P.W.1, who is the investigating officer in this case. He deposed that and admitted the suggestion that on the sealed cover there is no chit containing the signature. Further deposed that he has not enquired the girls shown in M.O.3-photographs, and has not collected the call details of M.O.1 mobile phone. This witness denied other suggestions put to him by the counsel 15 S.C. No.707/2017 for accused. On considering the evidence of this witness, it goes to show that there are many discrepancies in the evidence adduced. This creates doubt on the case of the prosecution. Hence the evidence of this witness has to be corroborated by the evidence of other material witnesses, only then the guilt of the accused can be said to have been proved beyond all reasonable doubt.
18. Another Police witness is PW.2, who is CW.7, one by name Manjula. She deposed that she accompanied the P.S.I on 10.09.2015 during the raid. That only after she went to the spot, ACP told her, women were used for prostitution,. That the accused was present and no women was present there. Later the photos mobiles were seized and mahazar was drawn. The signature of the witness is marked as Ex.P.1(b). This witness further deposed that she cannot identify the photos and that she has not seen 16 S.C. No.707/2017 condoms and mobile at the spot but saw while P.F was drawn.
19. During the cross examination of PW.2 she deposed that ACP took her for the raid and that CW.1 has not given her any written notice. This witness denied other suggestions put to her by the counsel for accused.
20. Another Police witness is PW.4 who is CW.4, one by name Lakshmaiah. He has deposed that he has accompanied the said raid along with CW.1 and CW.5 to 8 and P.I. A.C.P was with two panchaas. That A.C.P raided the spot and found that prostitution was going on. That accused was present. That the A.C.P wrote the mahazar from 12.10 to 1 p.m and seized 4 nirodh packets, 5 photos of girls, one M.T.S mobile and four notes of Rs.500/- denomination of a total of cash Rs.2000/-. The signature of the witness is marked as Ex.P.1(d) and seized articles are marked as M.O.1 to 3. During the 17 S.C. No.707/2017 cross-examination of PW.4, he has deposed that ACP has not informed them the information through writing and that he does not remember the check- bandi of the spot raided. This witness denied other suggestions put by the counsel for the accused and only by the say of these witnesses the case against the accused cannot be concluded that they have committed the offence charged.
22. On considering the evidence of the witness, as extracted from the depositions of P.W.2. Witness stating that:
" ಪಪಟಟಪಗಳನನ ನ ನನಗ ಗನರನತಸಲನ ಆಗನವದಲಲ. ಕಕಡಟಪಮಮ, ಮಬಬಲನನನ ಸಸಳದಲ ನಟಪಡಲಲಲ. ಪಎಫಹಕನವಗ ನಟಪಡದನನ."
Further, as extracted from the depositions of P.W.5. Witness stating that:
" ಪಲಪಸರನ ನನಗ ಸಹ ಮಡಲನ ಹಪಳದರನ. ನನನ ಸಹ ಮಡದ. ಬರದ ಒಕಕಣ ನನಗ ಗಟತತಲಲ. ಪಲಪಸರನ ನನನ ಸಮಕಮ ಏನಟ ವಶಪಡಸಕಟಳಳಲಲಲ. ."
Further, as extracted from the depositions of P.W.6. Witness stating that:
18
S.C. No.707/2017 " ಆ ದನ ನನನನನನ ಮತನತ ನನನ ಗಳಯರನನ ನ ಪಲಪಸರನ ಕರದರನ. ನಮಗ ಸಹ ಮಡಲನ ದ ಹಪಳದರಕದ ಬರದ ಒಕಕಣ ನನಗ ಗಟತತಲಲ.
ಪಲಪಸರನ ನನನ ಸಮಕಮ ಏನಟ
ವಶಪಡಸಕಟಳಳಲಲಲ."
On considering the evidence of these witness, it goes to show that P.W.2 during the chief examination deposing that she has not seen condoms and mobile at the spot but saw while P.F was drawn. And the panchaa witnesses have completely turned hostile.
Further, the prosecution was not successful to proved their case, beyond reasonable doubt.
23. Further, the definitions of Sec.3, 4, 5 and 6 of ITP Act and Sec.370 of Indian Penal Code in short can be understood as:
Keeping a brothel or allowing premises to be used as brothel, living on the earnings of the prostitution, prostitution and in or in the vicinity of public place, whoever imports, exports, removes buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave.
24. The above explanations of the definitions have to be strictly proved for any case against the 19 S.C. No.707/2017 accused, falling under Sec.3, 4, 5 and 6 of I.T.P. Act and Sec.370 of IPC. But in the case on hand, it is important to note that no victim was cited as witness in the charge sheet, so that she could explain her grief and prosecution has not taken the evidence of independent witnesses in and around the vicinity of the raided spot. Further the amount of money seized by the I.O, is not at all produced before the court. These offences are against the dignity of woman and health of society. Hence, care has to be taken while deciding such cases on Immoral Traffic Prevention Act. The examined witness P.W.1 to PW.4 are all official witness and P.W.5 and P.W.6 who are panchaa witness have turned hostile to the case of the Prosecution and Panchanama is not proved. Basing only on the say of the official witnesses, the charges do not stand proved against the accused. Thus the prosecution was not successful to prove the charges against the accused, beyond all reasonable doubt. 20
S.C. No.707/2017
25. Further, on considering the evidence of all the witness on record, it is relevant to note that the evidence of public servants cannot be disbelieved that they are interested in the success of prosecution. But the various discrepancies in the evidence of the complainant makes it doubtful to believe the version of the prosecution in toto. Based only on the evidence of these official witnesses, P.W.1 to 4, the guilt of the accused cannot be concluded. Further, P.W. 5 and 6 are independent panchaa witness, who have completely turned hostile. Also that, no neighbor or independent witness have been made witness in this case, creates doubt on the prosecution case. The I.O. has not examined the adjacent owners of the flat nor recorded their statements. Again, as per the provisions of Immoral Traffic Prevention Act Under sec.15(2) of wherein, one woman pancha has to be secured, was also not complied with. Moreover, the adjacent owners are not examined by the prosecution, 21 S.C. No.707/2017 which creates doubt. It is to be noted that although the Property form mentions about the Rs. 500/- denomination, 4 currency notes, total cash of Rs.2,000/-, but the prosecution has failed to bring forward the said notes during the evidence and not got them marked, in order to show that these notes only were seized from the spot. Thus non-marking of currency notes leads the prosecution case fatal.
26. The evidence on record does not prove that the accused was carrying on brothel business on the date of alleged raid by the Police Inspector and his staff. Hence, this court is of the opinion that the prosecution has utterly failed to bring home the guilt of the accused beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused has committed the offence charged against him. Accordingly, I answer points No.1 to 5 in the Negative.
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S.C. No.707/2017
27. Point No.6: From the discussion made herein above, it is clear that the accused deserves to be acquitted of the offences charged against him in this case. In the result, therefore, I proceed to pass the following:
O RDE R Acting under Section 235(1) of Cr.P.C., accused is acquitted of the offences charged against him under Sections 3, 4, 5 & 6 of Immoral Traffic Prevention Act and Sec.370 of Indian Penal Code. The bail bond executed by the accused and the surety bond shall stand canceled.
He is set at liberty forthwith.
The properties at M.O.2 and 3 being worthless is ordered to be destroyed after the appeal period is over.
The property at M.O.1 shall be confiscated to the Government.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in open Court on this the 30th day of January, 2021) (SANDHYA S.) LXXI Addl. City Civil & Sessions Judge, Bengaluru, (CCH 72) 23 S.C. No.707/2017 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1 : K. G. Satish
P.W.2 : Manjula
P.W.3 : Narayanaswamy
P.W.4 : Lakshmaiah
P.W.5 : Sharavana
P.W.6 : Shivaraju
List of Documents exhibited on behalf of
Prosecution:
Ex.P.1 Mahazar
Ex.P.2 Complaint
Ex.P.3 FIR
Ex.P.4 Notice
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:
M.O.1 Mobile Phone
M.O.2 Condoms
M.O.3 Photographs
(SANDHYA S.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH 72)