Bangalore District Court
Hennur P.S vs Kenin Night on 30 August, 2024
KABC0D0002802011
IN THE COURT OF JUDICIAL MAGISTRATE TRAFFIC COURT-I AT
MAYOHALL, BANGALORE.
Present : Neelam Nitin Rao
Judicial Magistrate
Traffic Court-I Bengaluru
DATED 30th DAY OF AUGUST 2024
C.C. No. 928/2011
Complainant: Hennur PS, Bengaluru
(Represented State by Sr. APP)
V/s
Accused : 1. Kevin Knight
S/o. Phillips Knight
Aged about 23 years
R/at No: 22, K.No. 231,
Near Kaliyamma Temple,
Lal Bahadurshasthri Layout
MM Garden, Babusa Palya
Bangalore.
2. B. Satish
S/o. Nagaiah Shetty
Aged about 25 years
R/at: Gullappa's House
9th Cross, Ramaswamypalya
Bangalore
3. Govindaraju
S/o. Anjinappa
Aged about 32 years
Rented House of Naveen
Indira Street
Near Kullappa Circle
RS Palya Bangalore
2
C.C. No. 928/2011
4. Manjula
W/o. Kevin Knight
Aged about 30 years
R/at: 22, K No. 231,
Near Kaliamma Temple
Lal Bahadurshasthri Layout
M.M. Garden
BabusapPalya
Bangalore - 3
5. Sridevi
W/o. Late. Srinivasa
Aged about 35 years
Madhuranagar
Varthur, Whitefield
Bangalore
(Split Up A1, A2, A4 & A5.
A6 absconded)
(Represented by NGP)
1. Date of commission of offence : 29.05.2011
2. Offence alleged : P/U/S.3, 4, 5 & 7 ITP Act
3. Date of recording of evidence : 05.09.2012
4. Date of Judgment : 30.08.2024
JUDGMENT
This case is arising out of charge sheet filed by PI of Hennur Police Station in Crime No. 150/2011 against the accused No.1 to 6 for the offences P/U/S. 3, 4, 5 and 7 of ITP Act.
2. Case of the prosecution in brief is that:
On 29.05.2011, CW.1 received a credible information that within the jurisdiction of Hennur police station, accused 1 & 4 had rented a house at No-22, K.No.231, Babusapalya, MM Garden and involved in illegal activity of prostitution in the said house. CW.1 in the presence of CW-02, CW-03 and CW.04 to 10, conducted raid in the said house and found that accused No.2 to 5 were involved in prostitution. Accused No.1 had facilitated the other accused for 3 C.C. No. 928/2011 prostitution. CW.6 accused was the owner of the said house, which was used for prostitution. CW.1 conducted raid on the said house along with mahazar witnesses and staff. They detained accused No.1 to 5. Accused No.6 absconded from the spot. CW.1 in the presence of mahazar witnesses, conducted mahazar and seized articles. CW.1 thereby lodged complaint against accused persons alleging that they have committed offenses p/u/s. 3, 4, 5 and 7 of ITP Act.
3. After investigation the IO filed Charge Sheet against accused No. 1 to 6 for alleged offences p/u/s 3, 4, 5 and 7 of ITP Act. After receipt of charge sheet, this court considering that there are prima facie materials on record, this court has taken cognizance for the said offences and a criminal case has been registered against accused No. 1 to 6 in register No. III and issued process.
4. Despite granting sufficient opportunities, the IO has unable to secure accused No.6. H ence, the case was spit up against the accused No.6 with direction to IO to file separate charge sheet against the accused No 6 in register No. III. This case is pending against the accused No. 6. Accused No.1 to 5 appeared through counsel. They were enlarged on bail. Copy of prosecution papers were furnished to accused No.1 to 5 as contemplated under Section 207 of Cr.P.C.
5. After hearing the prosecution and accused counsel, it is noticed that there are no grounds to discharge the accused No.1 to 5. On the other hand, there are prima facie materials available against accused No. 1 to 5. Hence, the charge was framed. Read over and explained to accused No.1 to 5 in the language best known to them. They understood the charge. They pleaded not guilty. Hence, the case was posted for prosecution evidence. In the charge sheet, the prosecution has 4 C.C. No. 928/2011 cited as may as 11 witnesses. However, despite granting sufficient opportunities, prosecution has not able to secure all the witnesses. Prosecution examined PW.1 to 6 and closed prosecution evidence.
6. Accused No. 1, 2, 4 & 5 have evaded trial and absconded. Despite granting sufficient opportunities they were not secured hence, for speedy trial, the case was split up against them, with direction to IO to file split up charge sheet against accused No. 1, 2, 4 & 5. Trial in this case proceed against accused No.3.
7. The statement of accused No.3 as required under 313 Cr.P.C is recorded, read over and explained to accused in the language best known to him. Accused No.3 denied all incriminating circumstances appeared in prosecution evidence. However, not chosen to lead defense evidence. Hence, the case was posted for prosecution evidence.
8. Heard learned APP and counsel for accused No. 1 to 5. Meticulously perused documents placed on record.
9. The following points arise for my consideration; Point No.1: Whether prosecution proves beyond all reasonable doubt that on 29.05.2011 at house No-22, K.No.231, Babusapalya, MM Garden, that accused No.3 was keeping brothel or allowed premises to be used as a brothel in order to facilitate for prostitution and accused No.3 was involved in prostitution and thereby, committed the offences punishable under sec.3 of ITP Act ?
5C.C. No. 928/2011 Point No.2: Whether prosecution proves beyond all reasonable doubt that on aforementioned date time and place accused No.3 was involved in prostitution and living on the earnings of prostitution, thereby, committed the offences punishable under sec.4 of ITP Act ?
Point No.3: Whether prosecution proves beyond all reasonable doubt that whether accused no. 3 procured indused or took any person for the sake of prostitutionand thereby, committed the offences punishable under sec.5 of ITP Act ?
Point No.4: Whether prosecution proves beyond all reasonable doubt that whether accused no. 3 was carrying prostitution in or in the vicinity of public place and thereby committed the offences punishable under section 7 of ITP Act ?
Point No.5: What order?
10. My findings on the above points are as follows:
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 the final order
for the following reasons
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C.C. No. 928/2011
REASONS
11. Point No.1 to 4 : It is the case of prosecution that on 29.05.2011, CW.1 received a credible information that accused No. 1 to 4 were running a brothel, within the jurisdiction of Hennur police station, Babusapalya, MM Garden, No. 22, K. No. 231, by taking this house on rent. Accused No.6, who has been absconded from the trial, is the owner of the house. When CW.1 along with mahazar witnesses and his staff CW.2 to 10 conducted raid, they found that accused No. 1 to 5 were involved in prostitution. After inquiry he seized materials by conducting mahazar and filed a report to the jurisdictional police.
12. In the instant case, the burden of proof to prove that accused No.3 keeps or manages or assist or act in management of brothel, lies on prosecution. Similarly the burden to prove that he being a tenant, lessee or occupier or person in charge of any premises uses or knowing allowed any person for prostitution is also lies on prosecution. Further, the prosecution shall prove that accused No.3 is living on the earning of prostitution and he is procuring, inducing or taking person for the sake of prostitution, also needs to be established by prosecution beyond all reasonable doubt. Further more, the prosecution shall establish that the accused No.3 was involved in prostitution in or in the vicinity of public places also lies on prosecution.
13. In order to bring home the guilt of accused beyond all reasonable doubt, prosecution has examined CW.4, Sri. Gopinath as PW.1. In his chief evidence, he deposed that on 29.05.2011, 7 C.C. No. 928/2011 CW.1 received information, on that basis by taking search warrant from ACP, they went to the spot. CW.9 was sent at the place by giving Rs. 500 which was signed by mahazar witnesses to confirm the information. After that, they all went to the information spot and observed that accused No.4 was involved in prostitution and accused No.3 was in kitchen. During his chief evidence, 6 mobile phones which were seized through mahazar were marked as MO. 1 to 6, two 500 rupees notes were marked as MO. 7 & 8. Rs. 1,150/- was marked as MO. 9.
14. During cross examination, it was suggested that accused No.3 is a gas supplier. PW.1 has not denied the suggestion. He deposed that he did not remember the same. However, PW.1 deposed that accused No.3 was in the kitchen. He also admits that accused No.3 was alone in the kitchen. It was suggested that accused was in Khakhi dress on that day also and nothing was seized from him. This witness denied the same. Further, he deposed that he cannot depose the boundaries of incidental spot.
15. The prosecution has examined CW.9, Sri. Rajanayak as PW.2, in his chief evidence, he reiterated contents of complaint. In his chief evidence, he deposed that accused No.3 was in kitchen. This witness also during cross examination submits that he did not know accused is a gas supplier. It was suggested that accused No.3 was fitting gas on the date of raid. However, this witness deposed that accused No.3 was in hall. This statement itself is contrary to his chief evidence. Wherein, he stated that accused was in kitchen.
8C.C. No. 928/2011
16. Prosecution has examined CW.5, N. Krishna as PW.3. In his chief evidence, he also reiterated contents of complaint. In his chief evidence, he has not deposed anything about accused No. 3. He deposed about accused No.1, 2, 4 & 5 only.
17. The prosecution has examined CW.8, D.G. Nanjundappa as PW.4. In his chief evidence, he reiterated contents of complaint. However, he has not deposed anything about accused No.3 whether, he is involved in prostitution or not. Further, prosecution has examined CW.7, Dharma. T. S as PW.5. His chief evidence is nothing but replica of complaint and there is no specific deposition about accused No.3.
18. Lastly, prosecution has examined CW.11, Sri. G. Prabhakar as PW.6. In his chief evidence, he deposed that on 26.06.2011, he received investigation file from CW.1. He deposed that he appointed staff to search house owner. The staff has produced electricity bill and they have not found house owner. Hence, the Electricity bill was annexed to the file. After completion of investigation, he filed charge sheet against accused persons. During cross examination, it was suggested that he is not a primary IO, he denied the suggestion. It was also suggested that he has not inquired any witnesses, he denied the same. PW.6 has not deposed in his chief evidence, as to whose inquiry he has conducted and whose statement he has obtained. It is pertinent to note that PW.6 filed charge sheet in the instant case. However, he has not deposed as to what investigation he has conducted. He merely deposed that as house owner is not available, he taken Electricity bill as 9 C.C. No. 928/2011 evidence. Who has given the Electricity bill to his staff is not forthcoming. Why the owner of the house was not secured or what steps were taken to investigate him is also not forthcoming. When CW.1 lodged a report and PW.6 filed a final report in between what other investigation was conducted by PW.6 is not forthcoming.
19. On over all perusal of oral evidence of prosecution witnesses, it could be seen that they have made a contrary statements. It is not their case that accused No.3 is running or procuring brothel. It is also not their case that he was involved in prostitution. In entire prostitution evidence, it is not forthcoming whether accused No.3 was involved in any sorts of prostitution. The version of prosecution witnesses not corroborated with its case.
20. On perusal of documentary evidence, it is noticed that prosecution has got marked mahazar as Ex.P.1. It is pertinent to note that except raiding party mahazar witnesses were not examined. The seizure of the MO's is not established as only raiding party members were examined and the mahazar witnesses were not examined. Ex.P.2 is the search warrant issued by ACP. Ex.P.4 is the report. Ex.P.3 is the electricity bill. It is pertinent to note that when electricity bill was secured, why the person in whose name the house is standing is not secured and is not forthcoming from the prosecution evidence. Indeed, there is no hard and fast rule not to believe evidence of official witnesses however, corroboration is required.
10C.C. No. 928/2011
21. At this juncture, it is worth to refer Section 3, 4 5 & 7 of ITP Act. It reads as under:
Section 3, 4, 5 and 7 of ITP Act.
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who-
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to sue, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution.
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
(2) Where any person is proved-
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or 11 C.C. No. 928/2011
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1):Provided that no such presumption shall be drawn in the case of a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years.
5. Procuring, inducing or taking woman or girl for the sake of prostitution.
(1) Any person who-
(a) procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution; or
(b) induces a woman or girl to go from any place, with the intent that she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a woman or girl, or causes a woman or girl to be taken, from one place to another with a view to her carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a woman or girl to carry on prostitution; shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than two years and also with fine which may extend to two thousand rupees.
(2) In the event of a second or subsequent conviction of an offence under this section a person shall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (3) An offence under this section shall be triable-
(a) in the place from which a woman or girl is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such woman or girl is made; or
(b) in the place to which she may have gone as a result of the inducement or to which she is taken or caused to be taken or an attempt to take her is made.
7. Prostitution in or in the vicinity of public places.
(1) Any woman or girl who carries on prostitution, and the person with whom such prostitution is carried on, in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police of District Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(2) Any person who-
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or 12 C.C. No. 928/2011
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-
section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees.
22. It is pertinent to note that against accused No.3, there are no allegation that he was procuring prostitution or living on the earnings of prostitution or he is running brothel in a public place. The ingredients of the alleged offenses are not established against accused No.3. Except official witnesses no independent witnesses were examined. Further, before searching the place or persons whether raiding party had searched in person themselves and declared, in this regard is also not forthcoming. There is absolutely no corroborative convincing evidence available on records.
23. It is well settled that when two views are possible one which favours the accused should be considered. In other wards benefit of doubt should go in favour of accused as none of the provision attract any alleged offences against accused No.3. Considering all these aspects, I answer points No.1 to 4 in the negative.
24. Point No.5: For myriad reasons as discussed supra, I proceed to pass the following:
ORDER Accused No. 3 is not found guilty of the alleged offense p/u/s.3, 4, 5 and 7 of ITP Act.13
C.C. No. 928/2011 Acting U/sec 248(1) of Criminal Procedure Code, accused No. 3 is hereby acquitted of the offences alleged against him p/u/s.3, 4, 5 and 7 of ITP Act.
Bail bond and surety bonds of accused stands canceled after completion of appeal period.
As the case is split up against other accused, the property mentioned in mahazar shall be preserved for further trial against them. Hence, no order as to release of the seized properties.
(Dictated to stenographer directly on the computer, corrected and then pronounced by me in the open court on this the 30th August 2024) NEELAMDigitally signed by NEELAM NITIN NITIN RAO Date: 2024.09.05 RAO 15:54:30 +0530 (Neelam Nitin Rao) JMFC, Traffic Court - 1 Bangalore 14 C.C. No. 928/2011 ANNEXURE LIST OF WITNESS EXAMINED ON PROSECUSION SIDE:
1. PW.1 : Sri. Gopinath
2. PW.2 : Sri. Raja Nayak. R
3. PW.3 : Sri. N. Krishna
4. PW.4 : Sri. D.G. Nanjundappa
5. PW.5 : Sri. Dharma. T.S
6. PW.6 : Sri. Prabhakar LIST OF DOCUMENTS MARKED ON PROSECUSION SIDE:
1. Ex.P.1 : Seizure mahazar
2. Ex.P.1(a) : Signature of PW.1
3. Ex.P.1(b) : Signature of PW.2
4. Ex.P.1(c) : Signature of PW.3
5. Ex.P.1(d) : Signature of PW.4
6. Ex.P.1(e) : Signature of PW.5
7. Ex.P.2 : Search warrant
8. Ex.P.3. : Electricity Bill
9. Ex.P.4 : Report LIST OF MO'S MARKED:
1. MO 1 to 6 : 6 Mobiles
2. MO 7 & 8 : Two 500 rupees notes
3. MO 9 : Rs. 1,150/- cash
4. MO 7(a) to MO 9(a) : Xerox attested copies of MO 7 to 9
5. MO 10 : Condoms LIST OF WITNESS EXAMINED AND DOCUMENTS MARKED ON DEFENCE SIDE:
NIL NEELAM Digitally
NITIN
by NEELAM
NITIN RAO
signed
Date: 2024.09.05
RAO 15:54:37 +0530
(Neelam Nitin Rao)
JMFC, Traffic Court - 1
Bangalore