Bangalore District Court
State By Mahalakshmi Layout vs Rahul @ Mahadevaswamy S/O on 31 March, 2021
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 31st day of March 2021
PRESENT:
Sri Madhvesh Daber, B.Com, L L.B. (Spl.)
Chief Metropolitan Magistrate,
Bengaluru.
Criminal Case No.3730/2014
Complainant : State by Mahalakshmi Layout
Police, Bengaluru.
Versus
Accused : 1. Rahul @ Mahadevaswamy s/o
Shivamadappa, 25 yrs, R/at Rajanna
Building, Preethi Nagara, Laggere,
Peenya 2nd Stage, Bengaluru-02.
2. Mithun @ Mithun Kumar s/o
Rangaramegowda, 24 yrs,
R/at Kadabarahalli, Bellur Cross,
Nagamangala Taluk, Mandya.
3. Likhith - Split Up
4. Dileep Gowda - Split Up
2 CC No.3730/2014
5. Sohan - Split Up
6. Khan - Split Up
Date of offence : 16-05-2013
Offence : U/S 3, 4, 5 and 7 of I.T.P. Act
Plea of the accused : Accused No-1 and 2 pleaded
not guilty
Final order : Accused No-1 and 2 Acquitted
Date of Judgment : 31-03-2021
J U D G M E N T U/S 355 of Cr.P.C.
The Sub-Inspector of Mahalakshmi Layout Police
Station, Bengaluru has filed charge sheet against accused
No-1 to 6 for the offences punishable under Section 3, 4, 5
and 7 of I.T.P. Act.
2. The brief facts of the case of prosecution are that-
On 16/05/2013 at about 2.00 p.m. at No.88, 2nd
Cross, Mico Layout, Mahalakshmi Layout, Bengaluru, the
accused persons were involved in prostitution in the said
house belonging to accused No-4 with the assistance of
accused No-5 and 6 i.e., used the house as a brothel and
carrying on prostitution by engaging C.W.4 Payal and
C.W.5 Priya, by way of collecting money from the
3 CC No.3730/2014
customers, wherein the accused No-1 and C.W.4 were
alleged to be in one room by becoming half naked and in
another room C.W.5 was waiting for the customers to be
brought by accused No-2 and 3. The above said illegal acts
of accused was got raided by C.W.1 S.R.Raghavendra
along with his staff C.W.6 to 9, on the credible
information and by obtaining oral permission from the
A.C.P., by way of sending C.W.6 as decoy. Thereby the
accused committed the alleged offences.
3. Accused No-1 and 2 are on bail. The case against
accused No-3 to 6 was split up on 06/10/2016 and a
separate case in CC No.4352/2017 is registered against
them. After furnishing charge-sheet copies, Charge against
accused No-1 and 2 was framed, read over and explained
to said accused in the language known to them. The said
accused pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has
examined in all four witnesses as P.W.1 to 4, produced
documents as per Ex.P1, 2 and material objects as per
M.O.1 to 10. Thereafter, the statement of accused No-1
and 2 as required under Section 313 of Cr.P.C. was
recorded, wherein they denied the prosecution case in toto
and opted not to adduce any defence evidence.
4 CC No.3730/2014
5. Heard arguments and perused the material on
record.
6. In this case, in all ten witnesses are cited in the
charge sheet. However, the prosecution could be able to
examine only four witnesses as P.W.1 to 4. Except P.W.3
namely Vinayaka who is pancha to the spot cum seizure
panchanama, other witnesses are all official witnesses.
Admittedly the prosecution has not examined the
independent witnesses. However, it is pertinent to note that
only for that reason the evidence of official witnesses
cannot be discarded. But the court has to see whether their
evidence is inspiring confidence in the prosecution case or
not.
7. In the light of above circumstances, if the evidence
on record is meticulously perused, it appears that P.W.1
Raghavendra.S.R., who is then P.I. of Mahalakshmi
Layout P.S. has deposed that on 16/05/2013, he received a
reliable information in the afternoon that prostitution was
going on at Mico Layout in the house named Spandana
bearing No.88. So he informed the said matter to A.C.P. of
Malleshwaram orally and went to the scene of offence
along with C.W.6 to 9. He has deposed that he called
C.W.2 and 3 as panchas. The C.W.6 Nagaraju has been
5 CC No.3730/2014
deputed as decoy and sent him to the house by way of
giving him Rs.1,000/- currency note by putting his
signature as well as of panchas over the same. He has also
deposed that he informed the said Nagaraju to give a
missed call, if it was confirmed that the prostitution was
going on in the said house. According to him, C.W.6 went
inside the house and gave a missed call to his mobile
number. Accordingly they reached the house and accused
Rahul was along with Payal and also found another lady
namely Priya in another room and she was waiting for
accused No-2 and 3, who were about to bring customers.
At that time, two persons namely Mithun and Nikith
entered the said house. On enquiry, it came to know that
the accused No-4 to 6 had given the said house for
prostitution. As such a panchanama as per Ex.P.1 was
drawn and recovered one Nokia Mobile, 2 Nirodh Packets
and Rs.1,000/- currency note, which was given by decoy
from Payal, similarly Priya was searched and recovered
Nokia Mobile and 2 Nirodh Packets. The accused No-2
was searched and recovered one Micromax Mobile, one
Samsung Mobile and cash amount of Rs.14,600/-. The
accused No-1 was searched and recovered one Nokia
Mobile, one Samsung Mobile and one Play Company
6 CC No.3730/2014
Mobile. The accused No-3 was searched and recovered 2
Nokia Mobiles. Similarly a laptop of Acer company, a
laptop of Compact company, Airtel Dongal, MTS Dongal,
Tata Company Dongal and one packet of Nirodh kept near
the bed were also recovered as per the above said
panchanama. Thereafter he gave a detailed report to
C.W.10 as per Ex.P.2. He produced the accused persons,
seized articles before C.W.10. He identified Rs.1,000/-
currency note as M.O.1, Rs.14,600/- as M.O.2 and Sl.No.1
to 10 as M.O.3 to 10. According to him, the 2 laptops and
Micromax mobile were handed over to the concerned as
per order of the court.
8. On perusal of his cross-examination by the learned
defence counsel, it appears that there are several houses in
the neighborhood of said house. Admittedly the local
people have not been taken as panchas. He has not given
explanation as to why he has not taken the local persons as
panchas. Further it is not on record as to why the lady
panchas have not been taken at the time of conducting
raid. It is pertinent to note that C.W.6 is the decoy, who
has not been examined by the prosecution. Further the
general public are also not deputed as decoy. It is the case
of accused that decoy has not at all given any missed call
7 CC No.3730/2014
from his number to the mobile of P.W.1. It is admitted by
P.W.1 that there is no mention in Ex.P.2 that decoy
Nagaraju gave a missed call to the number of P.W.1.
Under such circumstances, in the absence of recording
evidence of Nagaraju, the version of P.W.1 is clouded by
doubt.
9. Similarly it is admitted by P.W.1 that before
conducting raid, they have not conducted their body
search. It is pertinent to note that as per the evidence of
P.W.1, two Nirodh packets were found with Payal,
whereas two Nirodh packets were found with Priya and
another Nirodh packet was found near the bed. So there
were five Nirodh packets found according to the evidence
of P.W.1. But on perusal of the office note dated
24/01/2019, it appears that one box of Moods Condoms
was kept in the safe custody. Therefore suspicion arises
with regard to the brand name of condoms seized i.e.,
either Nirodh or Moods. Admittedly the P.W.1 has
deposed that it is not written in the panchanama as to the
brand name of seized condoms. There is a contradiction in
the evidence of P.W.1 and Office note dated 24/01/2019
mentioned in the order sheet regarding the brand name of
condoms. Under such circumstances, these infirmities
8 CC No.3730/2014
would render the version of complainant doubtful. So in
the light of non-examination of independent witnesses and
decoy would create doubt in the version of P.W.1. Also the
victims namely Payal and Priya who have been cited as
C.W.4 and 5 respectively were not examined by the
prosecution even though sufficient opportunities were
given. So in the light of contradictory evidence of P.W.1
and infirmities elicited by cross-examination, I doubt the
version of P.W.1 and I am of the opinion that his version is
not acceptable one.
10. P.W.2 Shivabasu Malabade is one of the official
witness. His evidence discloses that on 16/05/2013 in the
afternoon, on the basis of reliable information, they raided
the house No.88 of Kurubarahalli, Mico Layout along with
panchas namely Nayak and Basavaraju and sent the decoy
namely C.W.6 Nagaraju along with Rs.1,000/- currency
note. That the complainant told the decoy to give a missed
call after finding out that the prostitution was going on
there. His evidence discloses about raiding the said house
on the basis of missed call given by Nagaraju.
That they found one Payal and Rahul in one room in a
compromising position and Priya and Anil in another
room. It is to be noticed that as per the evidence of P.W.1,
9 CC No.3730/2014
Priya was not along with Anil, but she was waiting for
customers to be brought by accused No-2 and 3. Also no
person named Anil was there as per the evidence of P.W.1,
so also Anil was not made as accused in the present case.
Admittedly Priya and Payal were not examined by the
prosecution. So these infirmities would render his version
doubtful.
11. Similarly the evidence of P.W.2 discloses that the
mobiles, laptops, condom, decoy money and Rs.14,600/-
were recovered from the accused Mithun and identified the
two mobiles and cash of Rs.14,600/- before the court. In
his cross-examination, it was elicited that the independent
persons were not made as panchas. Also the independent
person was not deputed as decoy. Admittedly the decoy
Nagaraju has not been examined by prosecution. This
witness could not say the brand name of condoms. He
could not say the mobile number of C.W.1 and decoy
Nagaraju. He also could not say as to how many rooms
were there in the said house and whether it was single
house or it was having floors. So the very version of P.W.2
regarding the raid is doubtful. As such his version is also
unacceptable one.
10 CC No.3730/2014
12. Admittedly the pancha to the seizure panchanama
P.W.3 Vinayaka has turned hostile and not supported the
prosecution case. In fact the name of co-pancha is
Chandrashekhar. But on perusal of the evidence of P.W.2,
it appears that the panchas namely Nayak and Basavaraju
were taken, which would also create doubt about the
prosecution case.
13. The Lady H.C. namely Busheera Parveez is
examined as P.W.4. She has deposed supporting the
prosecution case in detail regarding the information
received by P.W.1, going to the spot i.e., house No.88
Spandana of Mico Layout, receiving reliable information
from the decoy C.W.6, raiding the house and finding that
accused were doing prostitution by engaging the girls
namely Payal and Priya. Further she has deposed that the
girl Payal was involved in prostitution with one person
named Rahul and another girl Priya was waiting for the
customers. She has deposed regarding the search made and
recovery of condom packets, mobile phones, decoy
amount of Rs.1,000/-, 2 laptops and cash amount of
Rs.14,600/-. She has also deposed regarding the
conducting of panchanama and identified M.O.1 to 10. She
has not at all deposed regarding the role of accused No-3
11 CC No.3730/2014
to 6. She has also not stated in accordance with the
evidence given by P.W.1. The P.W.4 has clearly deposed
that she did not remember as to whether she has stated in
her statement that they went to the scene of offence at 2.30
p.m. Admittedly the general public of locality have not
been taken as panchas. This witness also could not say as
to how many floors were there in the said house. She could
not say from which number the decoy has given missed
call and also admitted that at the time of raid, they have
not conducted body search of themselves. So it is
abundantly clear from the evidence of P.W.4 that her
evidence is not corroborating with the prosecution case.
Further, the evidence of P.W.1, 2 and 4 are contradictory
with each other.
14. Under such circumstances, since there are
contradictions in the evidence of official witnesses, their
evidence cannot be relied upon. In my opinion, in the
absence of evidence of independent witnesses, the
evidence of P.W.1, 2 and 4 cannot be accepted. The
prosecution has failed to prove the guilt of accused No-1
and 2 beyond all reasonable doubt. Hence I am of the
opinion that the benefit of doubt has to be given to the
12 CC No.3730/2014
above said accused. In the result, I proceed to pass the
following-
ORDER
Acting under Section 248(1) of Cr.P.C., accused No-1 and 2 are acquitted of the offences punishable under Section 3, 4, 5 and 7 of I.T.P. Act.
The bail bonds of above accused shall stand canceled after six months from today in view of Section 437A of Cr.P.C.
Office to retain the case papers and properties till conclusion of split case against accused No-3 to 6 in CC No.4352/2017.
(Dictated to the Stenographer, transcribed by him. The computerized print out taken by Steno is revised, corrected and then pronounced by me on this day i.e., 31-03-2021) (Madhvesh Daber), Chief Metropolitan Magistrate, BENGALURU.
13 CC No.3730/2014ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Raghavendra.S.R. P.W.2 : Shivabasu Malabade P.W.3 : Vinayaka P.W.4 : Busheera Parveez List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Mahazar
Ex.P.2 : Report of P.W.1
List of Material objects produced:-
M.O.1 : Currency of Rs.1,000/-
given to decoy M.O.2 : Cash amount of Rs.14,600/-
M.O.3 to M.O.10 : Sl.No.1 to 10 i.e., Mobile Hand Sets, Dongals, Condom Packet and Laptops List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.14 CC No.3730/2014
31-03-2021 Judgment pronounced vide separate sheets.
ORDER Acting under Section 248(1) of Cr.P.C., accused No-1 and 2 are acquitted of the offences punishable under Section 3, 4, 5 and 7 of I.T.P. Act.
The bail bonds of above accused shall stand canceled after six months from today in view of Section 437A of Cr.P.C.
Office to retain the case papers and properties till conclusion of split case against accused No-3 to 6 in CC No.4352/2017.
Chief Metropolitan Magistrate, Bengaluru.