Bangalore District Court
State Of Karnataka vs No.1 Smt. Shylu on 23 January, 2021
IN THE COURT OF LXXI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-72)
DATED THIS THE 23 rd DAY OF JANUARY, 2021
PRESENT
Smt. SANDHYA S. M.A., LL.B., (Spl.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru.
S.C. No.1247/2016
Complainant State of Karnataka
By Krishnarajapura P S,
Bangalore.
(By the learned Public
Prosecutor)
V/S
Accused No.1 Smt. Shylu
C/o Late Rikeeb,
Aged about 30 years,
(Split up SC
No.83/2020)
Accused No.2 Francis Xavier,
Aged about 50 years,
R/a No.32, Papnna
Colony, TC Palya,
Krishnarajapura,
Bangalore.
Accused No.3 Muqthiyar Pasha
S/o Raheem,
Aged about 21 years,
C/o Dileeps' House,
Royal School Road,
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S.C.No.1247/2016
Kadugodi, Bangalore.
Accused No.4 Nadim Pasha
S/o Ansar Pasha,
Aged about 20 years,
C/o Moulas' House,
Patalamma Layout,
Kadugodi, Bangalore.
Date of offence 26.06.2015
Date of report of offence 26.06.2015
Name of the complainant Sri Chandrappa H Barki
Police Sub-Inspector
Date of commencement 23.02.2018
of recording of evidence
Date of closing of 30.07.2018
evidence
Offences complained of Sec.3,4 & 7 of Immoral
Traffic Prevention Act
and Sec.370 of Indian
Penal Code
Opinion of the Judge Accused persons not
found guilty
State represented by Learned Public
Prosecutor
Accused defended by Sri. N.Venkatesh,
Advocate
*****
3 S.C.No.1247/2016 J UD GME N T This case is the result of charge sheet filed by the complainant Police, against the accused No.1 to 4 for the offences punishable under Sec.3, 4 and 7 of Immoral Traffic Prevention Act and Sec.370 of Indian Penal Code
2. The prosecution was set into motion against the accused persons on the complaint of C.W.1, Chandrapa.H.Barki, the Police Sub-Inspector of complainant, Krishnarajapura Police Station. The case of prosecution is that C.W.1 on 26.06.2015 at about 4.00 p.m, after having received credible information that the accused No.2 let out his house, bearing No.32 situated at Papanna Colony, TC Palya, within the limits of Krishnarajapura P.S., Bangalore. That accused No.1 with an intention to make illegal gain by running prostitution business. The accused No.1 indulged in brothel business by trafficking girls, 4 S.C.No.1247/2016 by contacting the customers over phone, further she herself indulged in prostitution with the customers whenever the girls were not available. Immediately on the same day, C.W.1 and his staff CW.4 to 7 had conducted raid on the above mentioned address. The pancha witnesses are C.W.2 and 3. During the raid, they found accused No.1, 3 and 4 were indulged in brothel business and they have been arrested. That accused No.1 indulged in making easy money by way of prostitution and seized articles subjected in PF No.64/2015 by drawing mahazar, later went to police station along with the seized articles and accused persons, and lodged complaint before the Police Inspector. Police Inspector registered the case in Cr.No.351/2015 for the offence punishable under Sec.370 of IPC and Sec.3, 4 and 7 of I.T.P Act.
3. After completion of investigation, C.W.8 submitted charge sheet against the accused No.1 to 4 before X Addl. Chief Metropolitan Magistrate Court, 5 S.C.No.1247/2016 Bengaluru and it was registered as C.C.No.54050/2016.
4. The accused persons appeared before the learned Magistrate through the counsel and got enlarged on bail. The learned Magistrate furnished copy of charge sheet to the accused persons and thereby, the provision of Sec.207 of Cr.P.C. was complied with. As the offences charge sheeted against the accused is exclusively triable by sessions Court, the learned Magistrate acting under Section 209 of Cr.P.C. committed the case to the Hon'ble Prl. District & Sessions Court, Bengaluru. As per the notification bearing No.600/2017, dated:29.07.2017, Hon'ble Prl.City Civil and Sessions Judge Bengaluru, this case was transferred to this court for disposal in accordance with law. Hence, the matter is taken up before this Court for further proceedings accordingly. 6
S.C.No.1247/2016
5. As stated herein above, the accused persons are on bail. In pursuance of service of summons, the accused persons appeared before this Court through their counsel and got enlarged on bail. After hearing the counsel for accused and also the learned Prosecutor and on considering the relevant materials on record, my learned predecessor has framed charge against the accused persons for the offence punishable under Sections 370 of IPC and Sec.3, 4 and 7 of I.T.P Act, on 23.01.2018. For which the accused persons have pleaded not guilty and thereby they claimed to be tried of the said offences. Further, this case was split as against Accused no.1 as per the order of this court, dated 23.10.2019. Thereby the case against accused No.1 was split and separate case was registered against accused no.1, in S.C. 83/2020 on 9.1.2020. Thereby this case is taken up for accused no. 2 to 4 alone.
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6. In support of the case of prosecution, in all 5 witnesses have been examined as P.W.1 to P.W.5. The prosecution has marked 3 documents as Ex.P.1 to Ex.P.3 and 7 properties were marked as M.O.1 to M.O.7. After completion of prosecution side evidence, this Court has recorded the statement of accused persons no. 2 to 4, as provided under Section 313 of Cr.P.C. The accused persons no. 2 to 4 have denied incriminating materials present against them in the evidence of prosecution. They have not adduced any defence evidence nor produced any documents.
7. Heard the argument of the learned Public Prosecutor and also the learned counsel for accused No.2 to 4. 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 26.06.2015 the police have conducted raid at No.32 situated at Papanna 8 S.C.No.1247/2016 Colony, TC Palya, within the limits of Krishnarajapura P.S., Bangalore, in which the accused No.1 and 2 were doing brothel business and thereby the accused persons have committed the offence punishable under Section 3 of I.T.P. Act?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place all the accused persons no. 1 and 2 were doing brothel business by easily earning money and living from the income of the said business and thereby the accused persons have committed the offence punishable under Section 4 of I.T.P. Act?
3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the all the accused persons have illegally kept the victim in their custody in the public place and living on the earning of the said brothel business and thereby the accused persons have committed the offense punishable under Sec.7 of I.T.P. Act?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, all the accused persons were doing brothel business and living on the earnings of the said business and kept the girls under their custody as slave and induced them for prostitution and thereby the accused persons have 9 S.C.No.1247/2016 committed the offence punishable under Sec.370 of IPC?
5. What order?
8. Having heard the arguments of both the sides and taking into consideration the evidence on record, coupled with all 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: As per final order
for the following:
REA S ON S
9. Points No.1 to 4: 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. As mentioned supra, the case against accused No.1 was split and separate case was registered against accused no.1, in S.C. 83/2020 on 10 S.C.No.1247/2016 9.1.2020. Hence, this case is pertaining to only accused no.2 to 4. The case of the porsecution is that the complaint of C.W.1, Chandrapa.H.Barki, the Police Sub-Inspector of complainant, Krishnarajapura Police Station. The case of prosecution is that C.W.1 on 26.06.2015 at about 4.00 p.m, after having received credible information that the accused No.2 let out his house, bearing No.32 situated at Papanna Colony, TC Palya, within the limits of Krishnarajapura P.S., Bangalore. That accused No.1 with an intention to make illegal gain by running prostitution business. The accused No.1 indulged in brothel business by trafficking girls, by contacting the customers over phone, further she herself indulged in prostitution with the customers whenever the girls were not available. That accused No.1 indulged in making easy money by way of prostitution and seized articles subjected in PF No.64/2015 by drawing mahazar, later went to police station along with the seized 11 S.C.No.1247/2016 articles and accused persons, and lodged complaint before the Police Inspector. Police Inspector registered the case in Cr.No.351/2015 for the offence punishable under Sec.370 of IPC and Sec.3, 4 and 7 of I.T.P Act.
10. The learned Public Prosecutor has vehemently argued that the prosecution has proved all the ingredients of the charges leveled against the accused persons No.2 to 4 and hence, the accused persons should be convicted for the offences charged.
11. The learned counsel for the accused persons vehemently argued that the prosecution has utterly failed to prove the guilt of the accused persons no. 2 to 4 beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused persons have committed the offence charged against them. Further, argued that A.C.P has to raid and accused no.3 and 4 are 12 S.C.No.1247/2016 customers, accused no. 2 is the owner of the said premises. Hence, they may kindly be acquitted of the offences charged.
12. In order to substantiate the charges leveled against the accused No.2 to 4, the prosecution has mainly relied on the evidence of P.W.1 to P.W.5. I have gone through the evidence of P.W.1 to P.W.5 in detail.
13. P.W.1 is C.W.1, one by name Chandrappa H Barki, who is the P.S.I. He deposed that on 26.06.2015 at 3.30 p.m. when he was at Police Station, he received information from the informant that a women was running prostitution business at house No.32, situated at Papanna Colony, TC Palya, and he brought the same information to A.C.P and obtained oral permission, and conducted raid over the said house along with his staff CW.4 to 7 and panchas PW.2 and 3. He left the office at 3.45 p.m and reached the spot at 4.p.m. Further stated that in 13 S.C.No.1247/2016 the hall one Nadeem pasha was sitting, who is present in the court as accused no.4. That accused no.4 and 3, came to the said house, as there was prostitution going on, and that accused No.3 was in a room with a lady on paying Rs.1,000/-. On entering the room along with the Women Constable one lady by name Shyla was present, who is in the Court as accused No.1. That on enquiring accused No.1, she disclosed that she was into prostitution in order to maintain family, and accused No.2 had lent the house on rental basis. PW.1 further states that accused No.2 was not in the spot. On searching accused No.1, Women Constable found one Nokia Mobile and cash of Rs.1,000/-. On searching accused No.3 one mobile, and cash of Rs.500/- was found. Further in the room there was mat, pillow, three condoms, which were seized. On searching accused No.4, one Mobile and cash of Rs.500/- was found. The articles were seized under mahazar, which are marked as Ex.P1 and the 14 S.C.No.1247/2016 signature of witness is marked as Ex.P.1(a). That later he returned to the Police Station, and handed over the seized articles and accused persons to the Police Inspector and lodged complaint which is marked as Ex.P2.
14. During the cross-examination of P.W.1, he has deposed that he has not issued notice to invite the panchas. That he has not mention the vehicle number in the complaint. That the neighbors were not called as witnesses. This witness denied other suggestions put to him by the defence counsel. Further he deposed that he failed to mention the company names of mobile phones and sim-card numbers. This witness denied other suggestions put by the counsel for the accused. On considering the evidence of this witness alone, the case against the accused persons no. 2 to 4, cannot be concluded that they have committed the offence charged. Hence, the evidence of this witness has to be compared with what 15 S.C.No.1247/2016 other witnesses have to say and much reliance cannot be placed on the say of this witness alone.
15. P.W.4 is CW.2, one by name Zameer, who is an auto driver and the pancha witness. He has deposed that two years back when he visited K.R Pura Police station with regard to other case, the police have obtained his signature. That he does not know anything about this case and he has not gone to any spot, as pancha. The signature of the witness on Ex.P1 was marked as Ex.P.1(a). He was treated as hostile and on cross-examination by the Learned Public Prosecutor, all the suggestions put by the Learned Public Prosecutor was denied by the witness. The statement of the said witness has been marked as Ex.P3. The evidence of PW.4 is not of much help to prove the allegation made against the accused persons 2 to 4.
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S.C.No.1247/2016
16. PW.2 Smt. Uma is CW.4, Women Police Constable. She deposed that P.W.1 is the P.S.I. That she does not know the details of this case, she was treated as hostile and on cross-examined by the Learned Public Prosecution, she deposed and admitted the suggestions that she had been to the raid. Further admitted that on search of accused no.1, they found one Nokia mobile, Rs.1000/- which was seized. This witness admitted the suggestions that she has signed on Ex.P.1 and her signature was marked as Ex.P.1(b). The witness denied other suggestions put to her.
17. During the cross-examination of P.W.2, by the counsel for the accused, the witness deposed that she does not remember the date of the raid. That P.W.1 took her for the raid and that she does not remember the check-bandi and address of the raided spot. This witness denied other suggestions put to her. On considering the evidence of this witness, she 17 S.C.No.1247/2016 was not of much help to the case of the prosecution. So the evidence of PW.2 is not much helpful to prove the allegation made against the accused persons No. 2 to 4.
18. PW.3 is CW.7, one by name Ravichandra who is police constable. He has deposed about the information received by CW.1/PW.1 Chandrappa. H. Barki, P.S.I and after informing the same to the higher offiers and obtaining oral permisson, they went to the spot along with other police persons and P.S.I has raided on the house. That accused no.4 Nadeem Pasha was sitting in the hall. On inquiry of accused persons, he came to know that accused No.3 and accused No.1 were in the room. On searching accused no. 1 and 3, one samsung mobile and Rs.500/- was found, accused no.3 had one carbon mobile and Rs.500/-. Accused no.1 had Rs.1,500/- and one Nokia mobile. All these articles along with one mat, pillow and condom packets were seized. The 18 S.C.No.1247/2016 signature of this witness was marked as Ex.P.1(c). The PSI/PW.1 prepared Ex.P1 mahazar at spot in the presence of panchas and obtained their signatures and thereafter returned to police station and handed over seized articles and accused persons to the Police Inspector and lodged complaint which is at Ex.P.2.
19. During the cross-examination PW.3, has deposed that he has not stated in his statement, on that he was on which duty that day. This witness denied other suggestions put by the counsel for the accused and only by the say of this witness the case against the accused persons No.2 to 4, cannot be concluded that these accused have committed the offence charged against them.
20. PW.5 is C.W.8, one by name Sanjeevarayappa, who is the Police Inspector. He has deposed that on 26.06.2015 at 5.45 p.m. P.S.I/P.W.1, appeared before, him and lodged complaint Ex.P2. That on the basis of said complaint, 19 S.C.No.1247/2016 case was registered in Crime No.351/2015. His signature in marked as Ex.P.(b). He further deposed that FIR was submitted to the Court and the same is at Ex.P.4 and his signature is marked as Ex.P.4(a). That he handed over the accused persons and seized articles along with Ex.P.2 complaint and Ex.P.1 Panchanama. That he brought the seized articles into PF and arrested the accused No.1, 3 and 4, enquired them and recorded their voluntary statements. That the witnesses PW.4, CW.3, CW.2 and CW.5 to 7's statements were also taken down. That on 29.6.2015, he gave a requisition to the Hon'ble court to add sec 370 of I.P.C in the said case. He further deposed that the seized articles are marked as M.O's 1 to 6. That the amount of Rs.2,500/- was marked as M.O no.7. After completion of investigation he submitted the charge sheet.
21. During the cross-examination of PW.5, he deposed that he has not collected EMI Numbers and 20 S.C.No.1247/2016 details of the sim-card. This witness admitted that on the seized articles except his signature there are no signatures of the panchas. Further admitted that MO's. 1 to 7 were also available outside. This witness denied other suggestions put by the counsel for the accused. Only on the say of this witness the case against the accused persons No. 2 to 4, 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.4. Witness stating that:
" ಈ ಕಕಸನಲ ನನಗಕನನ ಗನತತಲಲ. ನನನ ಪಪಚರಗ ಯವ ಸಸಳಕನ ಕ ಹನಕಗಲಲ."
On considering the evidence of this witness who is P.W.4, the only independent pancha witness, he has fully turned hostile and not at-all supported the case of the prosecution. This witness has turned 21 S.C.No.1247/2016 hostile and negatived the case of the prosecution. Further, the panchanama at Ex.P.3 is not proved.
23. Further, it is relevant to note that P.W.1 during the evidence has stated that in total Rs.2000/- was seized during the raid, but P.W.5 has got marked Rs.2,500/- as M.O.7 during his evidence. The Panchanama at Ex.P.1 discloses that an amount of Rs.2,500/- was seized in the raid. Although these discrepancies are present, further, the sole pancha witness has turned hostile to the case of the prosecution and not supported their version. Further, the evidence of public servant cannot be disbelieved that they are interested in the success of prosecution. Hence, I accept the evidence given by this witness. But based only on the evidence of this witness, the guilt of the accused persons cannot be concluded. It is important to note that P.W.1 has not received any written order for conducting raid. No outsider was 22 S.C.No.1247/2016 asked to become pancha. The seizure panchanama is not proved and P.W.4 have turned hostile, there is no much evidence to show that Sec.3, 4 and 7 of I.T.P. act are attracted on the offence charged against accused No.2 to 4. The various discrepancies which arise in the present case, creates doubt on the case of the prosecution and can not be believed in toto. Based on all these points after considering the entire evidence of the witnesses, the case is not proved beyond reasonable doubt by the prosecution. Further again, as per the provisions of Immortal Traffic Prevention Act U/s. 15(2) of wherein, one woman pancha has to be secured, which was also not complied with. Moreover the adjacent owners are not examined by the prosecution, which creates doubt. The evidence on record does not prove that the accused No. 2 to 4 were carrying on brothel business on the date of alleged raid by P.W.1 and his staff. 23
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24. The said police witnesses PW.1, P.W.2, PW.3 and PW.5 have given evidence according to the story of the prosecution as referred above. It is very clear that the P.S.I - PW.1 is not empowered to conduct raid as per the provisions of I.T.P Act. When the PSI has no locus-standi to conduct raid, then the entire procedure carried out by the PSI, has no legal value in the eyes of Law. As such the same can not be acceptable and considered as proper. Moreover the accused No.3 and 4 are the customers. So, it is very clear that the prosecution is not able to prove the guilt against the accused persons No. 2 to 4, beyond all reasonable doubts. Hence, the prosecution case could not be believed in toto. The various discrepancies in the present case, creates doubt on the case of the prosecution which could not be believed in toto. Based on all these points after considering the entire evidence of the witnesses, the case is not proved beyond reasonable doubt by the 24 S.C.No.1247/2016 prosecution. The evidence on record does not prove that the accused No.2 to 4 were carrying on brothel business on the date of alleged raid by P.W.1 and his staff. Hence, I hold that the prosecution has utterly failed to bring home the guilt of the accused persons no. 2 to 4, beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused No.2 to 4 have committed the offence charged against them. Accordingly, I answer points No.1 to 4 in the Negative.
25. Point No.5: From the discussion made herein above, it is clear that the accused No.2 to 4, deserves to be acquitted of the offences charged against them 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., the accused No.2 to 4 are acquitted for the 25 S.C.No.1247/2016 offences charged against them under Section 3, 4 & 7 of Immoral Traffic Prevention Act and Sec.370 of Indian Penal Code.
The bail bond executed by the accused No.2 to 4 and the surety bonds shall stand canceled. They are set at liberty forthwith.
The properties at M.O.1 to 7 shall be retained untill the disposal of the split up case as registered against accused No.1 in S.C. 83/2020.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in open Court on this the 23rd day of January, 2021) (SANDHYA S.) LXXI Addl. City Civil & Sessions Judge, Bengaluru, (CCH 72) ANNEXURE I. List of Witnesses examined on behalf of Prosecution:
P.W.1: Chandrappa S Barki
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P.W.2: Smt. Uma
P.W.3: Ravichandra
P.W.4: Zameer
P.W.5: Sanjeeva Rayappa
II. List of Documents exhibited on behalf of Prosecution:
Ex.P.1 Mahazar
Ex.P.2 Complaint
Ex.P.3 Statement of PW.4
Ex.P.4 FIR
III. List of Witnesses examined on behalf of Accused:
-NIL-
IV. List of Documents exhibited on behalf of Accused:
-NIL-
V. List of Material Objects marked on behalf of Prosecution:
M.O.1 Pillow
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M.O.2 Mat (ಚಪ)
M.O.3 Carbon Mobile
M.O.4 Nokia Mobile
M.O.5 Samsung Mobile
M.O.6 Condoms
M.O.7 Cash Rs.2,500/-
(SANDHYA S.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH-72)