Bangalore District Court
Police Registered This Case Against The ... vs Has Been Produced Before This Court. He ... on 28 May, 2018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 28th DAY OF MAY 2018
PRESENT
Sri. T.N. INAVALLY, B.A.L., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
S.C. No.1454/2017
BETWEEN
The State of Karnataka
Suddaguntepalya Police Station,
Bengaluru. .... COMPLAINANT
(By the learned Public Prosecutor)
AND
Badibanga Magic Tshimanga, S/o Tshimanga,
Aged about 28 years,
R/at No.20, 1st Cross, S.G. Palya,
Bengaluru city.
Native Address:
A.V. Baboro N 2 BIS, Q/YOLO - SUD
C/Kalamu, Kinshasa, Congo Country. .... ACCUSED
(By Sri. K.S. Vishwanath, Advocate)
*****
JUDGMENT
This case is the result of charge sheet filed by the complainant Police against the accused for the offence punishable under Sections 354-A, 354-B, 354, 370-A (2) of Indian Penal Code ('IPC' for short), Sec.4, 5 and 9 of Immoral Traffic Prevention Act ('the ITP Act' for short) and Sec.14 of Foreigners Act ('the Act' for short). 2 S.C.No.1454/2017
2. The prosecution was set into motion against the accused on the complaint of C.W.1 Ms. Sudha D., the daughter of Devarajulu ('the victim' for short). The case of prosecution is that the accused is the citizen of Republic of Congo. He being unemployed was residing with the victim in the house bearing No.20, 2nd Cross, Venkateshwara Layout within the jurisdiction of complaint police station. The accused induced the victim that he would marry her and the accused knowingly and having reason to believe that the victim had been trafficked and engaged her for sexual exploitation compelling her to have sexual activities with other persons and demanded the victim for sexual favour compelling her to sleep with his friends against her wish. The accused also seduced the victim and abetted her to carry on prostitution. Further, the accused induced the victim sexually for the sake of prostitution and thereby he was living on the earning of such prostitution in the said place. Thereafter on 12.07.2017 at about 10.45 p.m. the accused compelled the victim for sexual exploitation. When the victim resisted his act, the accused picked up quarrel with the victim and dragged her by holding her tuft and assaulted her by using criminal force. The accused also abused the victim with filthy language and outraged her modesty. Moreover, the accused being citizen of Congo, unauthorisedly and unlawfully remained in Bengaluru within India from 31.07.2014 inspite of the fact that his VISA period had 3 S.C.No.1454/2017 already expired on 31.07.2014 and thereby the accused contravened the relevant provisions of Foreigner's Act. Accordingly, the accused has committed the offence charge sheeted against him.
3. At the initial stage, the accused was arrested and hence, he has been in judicial custody. On the complaint of C.W.1, the complainant police registered this case against the accused for the said offence as per their Cr.No.135/2017 and took up investigation. After completion of investigation, the complainant police filed charge sheet against the accused before the concerned Magistrate for the offence punishable under Section 354, 354-A, 354-B, 370-A (2) of IPC and Sec.4, 5 and 9 of the ITP Act and Sec.14 of the Act.
4. The accused was produced before the learned Magistrate in the case. The copy of charge sheet was furnished to the accused and hence, the learned Magistrate has complied with the provision of Sec.207 of Cr.P.C. As the offence charge sheeted against the accused is exclusively triable by this Court, the learned Magistrate acting under 209 of Cr.P.C. has committed the case to this Court for further proceedings. Hence, the matter is taken up before this Court for trial accordingly.
5. As stated herein above, the accused has been in judicial custody. In pursuance of the direction issued by this Court, the 4 S.C.No.1454/2017 accused has been produced before this Court. He has appeared through counsel. After hearing the counsel for accused and also the learned Prosecutor, this Court has framed charge against the accused for the offence punishable under Section 354-A, 354-B and 370-A (2) of IPC and Sec.4, 5 and 9 of the ITP Act and Sec.14 of the Act, to which the accused has pleaded not guilty and thereby claimed to be tried of the said offences.
6. In support of the case of prosecution, the prosecution has examined 5 witnesses as P.W.1 to P.W.5. The prosecution has also produced 11 documents at Exs.P.1 to P.11. After closing the evidence of prosecution witnesses, this Court has recorded statement of the accused under Section 313 of Cr.P.C., in which the accused has denied incriminating materials forthcoming against him in the evidence of prosecution witnesses as false. However, the accused has admitted that his VISA had already expired, but he has not chosen to adduce any defence evidence on his behalf.
7. Heard the argument of the learned Prosecutor and also the counsel for accused. Perused 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 the accused induced the victim that he would marry her and thereby knowingly and having reason to believe that the victim had been trafficked, engaged her for sexual exploiting by compelling her to 5 S.C.No.1454/2017 have sexual activities with other person and demanded the victim for sexual favour compelling her to sleep with his friends against her will and seduced the victim and abetted her for prostitution and thereby the accused has committed offence punishable under Section 354-A and 370-A(2) of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused exploited the victim sexually inducing her for the sake of prostitution and thereby he was lived on the earning of such prostitution engaging the victim in prostitution and thereby the accused has committed the offence punishable under Section 4, 5 and 9 of ITP Act?
3. Whether the prosecution proves beyond all reasonable doubt that the accused compelled the victim for sexual exploitation and when the victim resisted the accused, on 12.05.2017 at about 1.45 p.m. in the house of victim the accused picked up quarrel with the victim and dragged her by holding her tuft assaulted her using criminal force, abused her with filthy language and outraged her modesty with intention and thereby the accused committed offence punishable under Section 354-B of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that the accused being citizen of Congo Country unauthorisedly and unlawfully remained in Bengaluru within India from 31.07.2014 in spite of the fact that his VISA period had already expired on 31.07.2014 and hence, the accused has contravened the relevant provisions of Foreigners Act and thereby the accused has committed the offence punishable under Section 14 of the Foreigners Act?
4. What order?
8. After hearing the argument of both the parties and on considering the oral and documentary evidence on record, my findings on the above points are as hereunder:
Point No.1: In the negative
Point No.2: In the negative
6 S.C.No.1454/2017
Point No.3: In the negative
Point No.4: In the affirmative
Point No.5: As per final order,
For the following:
REASONS
9. Points No.1 to 3: These points are taken up for consideration together for convenience and also for avoiding repetition of discussion on the facts of the case and also regarding point of law.
10. As discussed herein above, the prosecution was set into motion against the accused on the information of the victim. The fact that the accused is citizen of Congo country is not in dispute. Hence, the fact that the accused is Foreigner is not in dispute. The victim has been examined as P.W.1. But in the evidence in chief-examination itself even though the victim has admitted that the accused was residing with her for about 7 years at Suddaguntepalya within the jurisdiction of complainant police station, she has denied that the accused picked up quarrel with her at any time.
11. Further, the P.W.1 has also denied that the accused exploited her sexually and assaulted her. The evidence of P.W.1 in her chief-examination is that there was misunderstanding between her and the accused in the month of March 2017 and thereafter for 2½ months the accused was not in talking terms with her and hence, she 7 S.C.No.1454/2017 told C.W.6 Seema Diwan for advising the accused regarding the same properly. She came to know about C.W.6 through the accused. At that time as the C.W.6 compelled her, she wrote complaint at Ex.P.1. But the P.W.1 has denied that she gave any such complaint to the police as per Ex.P.1. The P.W.1 has also denied that police came to the spot and drawn mahazar at Ex.P.2 at the spot of incident.
12. However, the P.W.1 has identified the passport of the accused and same is marked at Ex.P.3. Therefore, except regarding the passport at Ex.P.3, the evidence of P.W.1 is quite contrary to the prosecution case and hence, she is treated hostile. Even in the evidence in cross-examination the P.W.1 has denied the alleged incident that the accused picked up quarrel with her and assaulted her with any sexual intent. She has also denied that the contents of Ex.P.1 were written by her voluntarily and she gave such complaint to the police against the accused. Therefore, there is absolutely no evidence forthcoming against the accused in the evidence of the victim to make out any case that the accused sexually exploited the victim and assaulted her with intention of outraging her modesty.
13. The C.W.6 Seema Diwan has been examined as P.W.2. As per her evidence, the victim and the accused were in live-in relationship. There was dispute between the accused and the victim regarding adjustment and hence, the victim came to her for settling 8 S.C.No.1454/2017 the matter. At that time she gave letter to the police as per Ex.P.4. She also got written the allegation of victim in intake Form as per Ex.P.5 and as per her letter at Ex.P.4 the victim gave complaint to the police against the accused. But in the evidence in chief-examination itself the P.W.2 has stated that she did not know what step the police took against the accused on such complaint. However, when the victim herself has denied that she gave any complaint at Ex.P.1 voluntarily to the police against the accused, the evidence of P.W.2 and the documents at Exs.P.4 and P.5 do not merit consideration to make out any case against the accused for the offence punishable under Section 354-A, 354-B, 370-A(2) of IPC and Sec.4, 5 and 9 of the ITP Act.
14. The P.W.4 Mohammed Akbar is alleged to be the attester to the spot mahazar at Ex.P.2. It is true that the P.W.4 in his evidence has deposed that the police called him to the spot at house of victim regarding quarrel between the victim and the accused and drew mahazar at Ex.P.2 and took his signature to the said mahazar as per Ex.P.2(b). But the victim has denied the case of prosecution regarding mahazar at Ex.P.2. Therefore, even if the evidence of P.W.4 is taken into consideration that the prosecution has proved mahazar at Ex.P.2, unless the prosecution proves the incident alleged in the complaint at Ex.P.1 through the evidence of P.W.1/ victim, the evidence of P.W.4 and the mahazar at Ex.P.2 are in no way helpful to the case of 9 S.C.No.1454/2017 prosecution to make out any case against the accused for the alleged offence.
15. The P.W.3 Prabhu Gowda is the then PSI of complainant police station. According to his evidence, on 13.07.2017 as per the direction of Police Inspector, he along with C.W.14 Girish, the then Police Constable, arrested the accused and produced him before the Police Inspector and gave report as per Ex.P.6. In the cross- examination the case of the counsel for accused is that on the relevant day from the morning till 8.30 p.m. the accused was in the police station and the evidence of P.W.3 and the report at Ex.P.6 regarding the arrest of the accused is false. However, even it is accepted that P.W.3 arrested the accused as stated in the report at Ex.P.6, unless the prosecution proves the alleged incident, no case can be made out against the accused for the offence charged on the basis of evidence of P.W.3 and the report at Ex.P.6.
16. The C.W.14 Girish B.P., the then P.I. of the complainant police station, is allegedly registered the case and took up investigation and after completion of investigation he filed charge sheet against the accused. The C.W.14 has been examined as P.W.5. As per the evidence of P.W.5, on 13.07.2017 at about 7.00 p.m. the victim came to the police station and gave complaint at Ex.P.1 and accordingly, he registered this case as per FIR at Ex.P.7. On the same day he visited 10 S.C.No.1454/2017 the spot and drew mahazar at Ex.P.2 in the presence of P.W.4 Mohammed Akbar and C.W.3 Mohammed Ishak. He appointed P.W.3 PSI and P.C. 5124 for apprehending the accused and accordingly on the same day at 9.00 p.m. the P.W.3 produced accused before him and gave report as per Ex.P.6. The accused produced his passport and the said passport was seized as per mahazar at Ex.P.8. The seizure of the said passport was reported to the learned Magistrate as per P.F. at Ex.P.9. The P.W.5 has also deposed that on the same day he recorded the statement of C.W.4 Mohammed Joheb, C.W.5 Salman Pasha, P.W.3 Prabhu Gowda and C.W.7 Bangllashisha Dkhar. He also recorded the statement of C.W.12 Veerabhadrappa.
17. It is also the evidence of P.W.5 that on 14.07.2017 he issued request letter to FRRO, Shanthi Nagar, Bengaluru as per Ex.P.10 and on the same day he received letter from the concerned FRRO as per Ex.P.11, in which it is stated that the VISA of the accused already expired on 31.07.2014. Thereafter, he arrested the accused and sent him to the Court with remand application for remanding him to judicial custody. It is also deposed by P.W.5 that on 15.05.2017 he recorded the statement of C.W.10 Manjunath R., who is owner of the house of victim. On 20.07.2017 he recorded the statement of C.W.9 and thereafter on completion of investigation he filed charge sheet against the accused.
11 S.C.No.1454/2017
18. However, as stated herein above, the P.W.1 has denied that she gave any complaint to the police as per Ex.P.1. Except C.W.6, who has been examined as P.W.2, no other witnesses mentioned in the evidence of P.W.5 have turned up. Hence, those witnesses cannot be examined in this case. The mahazar at Ex.P.2 is also not proved by the evidence of victim. Hence, if the cumulative effect of the evidence forthcoming on record is taken into consideration, it is clear that there are absolutely no eye witnesses to the alleged incident.
19. Moreover, when the victim herself has turned hostile to the case of prosecution, any circumstantial evidence by way of oral evidence of P.W.2 and 4 and the documents at Exs.P.2, P.4 and P.5 are in no way helpful to the case of prosecution to prove the alleged incident beyond all reasonable doubt. It is well settled principle of law that the accused is entitled to the benefit of such doubt. There is no material forthcoming form the prosecution to show why the victim has turned hostile to the case of prosecution. Therefore, the prosecution has failed to prove beyond all reasonable doubt the alleged incident. Further, there is absolutely no evidence to prove that the accused sexually exploited the victim and used her for the purpose of prostitution and he was making his livelihood on the basis of income derived from any such prostitution. Therefore, the prosecution has 12 S.C.No.1454/2017 failed to prove points No.1 to 3 and hence, the points No.1 to 3 are answered in the negative.
20. Point No.4: As discussed herein above, it is not in dispute that the accused is the citizen of Congo country. Further, the P.W.1 in her evidence has admitted that the passport produced in this case at Ex.P.3 is the passport of the accused. The P.W.5 Girish, who investigated the case has also deposed that the said passport was seized from the accused under the mahazar at Ex.P.8. Moreover, the accused in his statement recorded under Sec.313 of Cr.P.C. has admitted that the passport at Ex.P.3 is belonging to him and his VISA period expired on 31.07.2014.
21. Moreover, as per the evidence of P.W.5/ Investigating Officer, he wrote letter to FRRO, Shanthi Nagar, Bengaluru as per Ex.P.10 and the FRRO issued letter to him as per Ex.P.11, in which it is clearly stated that the accused was registered with the said office to study at Christ University and his RP was extended up to 31.07.2014. It is not in dispute that even after expiry of VISA period of the accused on 31.07.2014 he has continued to be in Bengaluru within India till the date of alleged incident. Therefore, from the oral and documentary evidence forthcoming on record and also from the admission of the accused in his statement under Sec.313 of Cr.P.C., it is clear that the accused has remained in India exceeding period for which the VISA 13 S.C.No.1454/2017 was issued to him. Therefore, the accused has contravened the relevant provisions of the Act and thereby he has committed offence punishable under Section 14 of the Act.
22. It is true that the counsel for accused has relied on the following decisions reported in:
AIR 1972 SC 2166 (State of Assam Vs Jilkadar Ali) 1973 Crl.L.J. 1471 (State of Uttar Pradesh Vs Ahsan Ali) (Allahabad High Court) Crl.A.No.335/2012 of Hon'ble High Court of Delhi (Nwadike Ugo Ben Vs State) decided on 05.10.2012 Decision of our Hon'ble High Court of Karnataka as per order dated 12.04.2017 in Crl.P.No.1305/2017 (Mr. Junia Erastus Mayemba Vs The Bureau of Immigration & another) and Order dated 16.09.2016 in Crl.P.No.5508/2016 of our Hon'ble High Court of Karnataka (Mr. Freddy Tshimanga Kanyama Vs The Bureau of Immigration & Others).
Meticulous consideration of the facts of the cases of the decisions of the Hon'ble Supreme Court and the Hon'ble High Court of Allahabad, it is clear that the facts of the said decisions are different from the facts of the case on hand. Moreover, the above said decision of our Hon'ble High Court of Karnataka in Crl.P.No.1305/2017 is regarding quashing of the proceeding initiated against the concerned accused under Sec.14 of the Act. The above referred order of Hon'ble High Court of Karnataka in Crl.P.No.5508/2016 is regarding bail application filed by the concerned accused for regular bail in the case for the offence 14 S.C.No.1454/2017 punishable under Section 376, 506 of IPC and Sec.14 of the Act. Hence, those decisions are not applicable to the case on hand.
23. However, on the basis of the above referred decisions of Hon'ble Supreme Court and Hon'ble High Court of Allahabad, the submission of the counsel for accused is that lenience may be shown to the accused, if he is convicted for the offence punishable under Section 14 of the Act. But, as stated herein above, the facts of the said cases are quite different from the facts on the case on hand. Further, any of the decisions relied on by the counsel for accused does not merit consideration in the case on hand to disprove the case that the accused has contravened the relevant provisions of the Act and thereby committed the offence punishable under Section 14 of the Act. Consequently, the prosecution has proved beyond all reasonable doubt that the accused committed offence punishable under Section 14 of the Act. Hence, the point No.4 is answered in the affirmative.
24. Point No.5: From the discussion made herein above, it is clear that the prosecution has proved beyond all reasonable doubt that the accused has committed offence punishable under Section 14 of the Act. But, as discussed herein above, the prosecution has utterly failed to prove beyond all reasonable doubt that the accused has committed any of the offences punishable under Section 354-A, 354-B, 370-A (2) 15 S.C.No.1454/2017 of IPC and Sec.4, 5 and 9 of ITP Act. Hence, the accused is found guilty of the offence punishable under Section 14 of the Act and consequently, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C. the accused is hereby convicted of the offence punishable under Section 14 of Foreigners Act.
However, acting under Section 235(1) of Cr.P.C. the accused is hereby acquitted of the offences punishable under Sections 354-A, 354-B, 370-A(2) of Indian Penal Code and Sec.4, 5 and 9 of Immoral Traffic Prevention Act.
After hearing both the parties on sentence, the order regarding sentence will be passed accordingly.
(Dictated to the Stenographer, transcript corrected by me and then pronounced in open court on this the 28th day of May, 2018) (T.N. INAVALLY) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 16 S.C.No.1454/2017 28.05.2018 ORDER ON SENTENCE The accused is present. His counsel is also present. Heard the accused and his counsel and also the learned Prosecutor appearing for the complainant police regarding order on sentence.
2. The accused submits that he has not committed any offence and hence lenience may be shown to him while imposing sentence.
Further, the counsel for accused submits that the accused has been in judicial custody for the period of more than 10 months and there is no any antecedent of accused that he committed similar offence or any offence earlier and hence, considering the materials on record, leniency may be taken on imposing punishment against the accused and the period already undergone by the accused as under trial prisoner may be considered as period of punishment.
3. However, the learned Prosecutor appearing for the complainant police submits that the accused is foreign national and he committed is convicted of the offence punishable under Section 14 of Foreigners Act. There is threat by the accused to the internal security to our country and external relationship of our country with the country of the accused. Hence, no leniency can be shown to the accused and the adequate and proper sentence should be imposed on the accused.
4. The submissions of both the parties are taken into consideration in the circumstances of the case and also from the materials on record, it is clear that the accused is convicted for the offence punishable under Foreigners Act and hence, if any leniency is shown to the accused, it is threat to the internal security of our country. Any leniency is shown to the accused will give wrong message 17 S.C.No.1454/2017 to our country in particular and the entire society at large. The accused has committed heinous offence. Hence, in the circumstances of the case, the accused is not entitled to any leniency in imposing sentence.
5. It is well settled principle of law that the Court should weigh the sentence with reference to the crime committed and circumstances of the case and not with reference to anything. The relevant facts to be considered before awarding appropriate sentence to the accused are the motive, intention of the accused to commit offence, the gravity, dimension and nature of injury, the age and general health condition of the accused etc. Such circumstances are only illustrative and not exhaustive. Further, imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The offences involved in national security, which have great impact on social order and public interest, cannot be lost sight of any per se required exemplary treatment. Any liberal approach in posing meager sentences or taking too sympathetic view is against societal interest which needs to be cared for and strengthened by imposing proper and adequate sentence on the accused.
6. In the result, therefore, in view of the facts and circumstances of the case, I proceed to pass the following:
ORDER The accused is sentenced to undergo simple imprisonment for one year and he shall also pay fine of Rs.25,000/- for the offence punishable under Section under Sec.14 of the Foreigners Act, in default to pay the fine, the accused shall undergo further imprisonment for 3 months.
The period of imprisonment already undergone by the accused as under trial prisoner in this case shall be 18 S.C.No.1454/2017 given set off towards the punishment of sentence of imprisonment imposed herein.
In pursuance of provision of Sec.363 of Cr.P.C. the copy of judgment is furnished to the accused free of cost.
The passport at Ex.P.3 shall be returned to the accused after the expiry of appeal time.
In the circumstances, the complainant police shall make necessary arrangement through the concerned authority as per the procedure under law to deport the accused from out of India to his native country immediately after completion of the period of imprisonment of sentence imposed on the accused. (Dictated to the Stenographer, transcript corrected by me and then pronounced in open court on this the 28th day of May, 2018) (T.N. INAVALLY) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Sudha P.W.2: Seema Diwan P.W.3: Prabhu Gowda P.W.4: Mohammed Akbar P.W.5: Girish B.P. List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Complaint Ex.P.2: Spot mahazar Ex.P.3: Passport 19 S.C.No.1454/2017 Ex.P.4: Letter of P.W.2 issued to police Ex.P.5: Intake Form Ex.P.6: Statement of P.W.3 Ex.P.7: FIR Ex.P.8: Seizure Mahazar Ex.P.9: P.F.No.44/2017 Ex.P.10: Letter issued to FRRO Ex.P.11: Letter from FRRO to the I.O.
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:
NIL (T.N. INAVALLY) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46)