Karnataka High Court
Sushila vs The State Of Karnataka on 1 September, 2023
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CRL.A No.100022/2014
C/W CRL.A.No.100250/2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.100022 OF 2014
C/W
CRIMINAL APPEAL NO.100250 OF 2014
IN CRIMINAL APPEAL NO.100022 OF 2014
BETWEEN:
SUSHILA PARUSHRAM HUNDRE
AGE:69 YEARS, OCC: HOUSEHOLD WORK
R/O. YAMKANMARADI
NOW AT SHAHPUR, BELGAUM
...APPELLANT
CHANDRASHEKAR
LAXMAN
KATTIMANI (BY SRI. VISHWANATH V.BADIGER, ADV.)
AND:
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
THE STATE OF KARNATAKA
PRESENTED BY ITS
STATE PUBLIC PROSECUTOR, (APMC, P.S)
HIGH COURT OF KARNATAKA, DHARWAD BENCH
AT: DHARWAD
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., SEEKING TO CALL FOR THE RECORDS IN S.C.NO. 109/2013
ON THE FILE OF THE FAST TRACK COURT-III, AND MACT, BELGAUM,
PURSUE THE SAME, ALLOW THE APPEAL AND SET ASIDE THE ORDER
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CRL.A No.100022/2014
C/W CRL.A.No.100250/2014
OF CONVICTION AND SENTENCE DATED 24.01.2014 PASSED
AGAINST THE APPELLANT/ACCUSED NO.3 AND PUNISHING HER FOR
THE OFFENCES P/U/S 372, 373 R/W SEC. 34 OF IPC AND SEC. 3, 4,
5 & 6 OF ITP ACT AND ACQUIT THE APPELLANT/ACCUSED NO.3.
IN CRIMINAL APPEAL No.100250 OF 2014
BETWEEN:
BASAVARAJ DEVAPPA GUDADANNAVAR
SURNAME IS WRONGLY MENTIONED AS GUDLENNAVAR
AGE: 29 YEARS, OCC: AGRICULTURE
R/O: BARADUR, TQ: MUNDARAGI
DIST: GADAG
...APPELLANT
(BY SRI. S.S.YADRANI, SENIOR COUNSEL FOR
SRI. GIRISH V BHAT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BELGAUM APMC POLICE
REP. BY STATE PUBLIC PRESENTER
HIGH COURT OF KARNATAKA
DHARWAD BENCH
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 24.01.2014 PASSED BY THE P.O., FAST TRACK
COURT-III, BELGAUM, IN S.C.NO.109/2013 AND ACQUIT THE
APPELLANT, OF ALL THE CHARGES LEVELED AGAINST HIM.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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CRL.A No.100022/2014
C/W CRL.A.No.100250/2014
JUDGMENT
Appellant/accused No.1 filed Crl.A.No.100250/2014 and appellant/accused No.3 filed Crl.A.No.100022/2014 feeling aggrieved by the judgment of Trial Court on the file of Fast Track III Court, Belgaum, holding charge by IV Additional District and Sessions Judge, Special Judge (PCA), Belgaum in S.C. No.109/2013 dated 24.01.2014 preferred these two appeals.
2. Parties to both the appeals are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to both the appeals can be stated in nutshell to the effect that complainant Nagajayashree d/o Venkataraman Amula origin of Andhra Pradesh was residing in Kangrali K H. Patil Galli, Belgaum. Accused No.1 was known to complainant while she was residing with her mother in Mangaluru for earning livelihood. Accused No.1 induced the complainant and her mother with the assistance of one Murali who played fraud -4- CRL.A No.100022/2014 C/W CRL.A.No.100250/2014 on complainant and promised that accused No.1 will marry the complainant. On such assurance, accused No.1 brought the complainant to Belgaum about 4 1/2 years back from the date of complaint and they stayed in a rented house at Kangrali K H Patil Galli. Accused Nos.1 and 2 with their common intention called accused Nos.3 and 4 to the rented house of accused No.1. Thereafter, complainant was left in the house of accused No.3 who is the aunt of accused No.1. It is accused No.3 forcibly engaged the complainant for prostitution in her house on the pretext that she has purchased the complainant from accused No.1 for Rs.40,000/-. Accused Nos.3 to 5 made the complainant to do the prostitution in Mangaluru, Hubli, Belgaum and other places, thereby they were earning income from the complainant out of the profession of prostitution. Complainant after delivery of a female child, after escaping from illegal confinement on 12.05.2012 filed the complaint. On these allegations made in the complaint, the Investigating Officer on completing investigation filed the charge sheet.
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4. In response to summons, accused appeared through their counsel. The Trial Court on being prima facie satisfied of the charge sheet materials framed the charge against all the accused for the offences alleged against them. Accused have pleaded not guilty and claimed to be tried. Prosecution to prove the allegations made against the accused relied on the oral evidence of PWs.1 to 10 and documents Ex.P.1 to P.9, Exs.D.1 to D.3 are marked through evidence of PW.7 and 8.
5. On closure of prosecution evidence, statement of the accused under Section 313 of Cr.P.C. came to be recorded. Accused have denied all the incriminating material evidence appearing against them. The Trial Court after appreciation of evidence on record, acquitted accused Nos.2, 4 and 5 from all the charges leveled against them. However, convicted accused Nos.1 and 3 for the offences punishable under Section 372, 373 r/w 34 of IPC and Section 3, 4,5 and 6 of the Immoral Traffic (Prevention) -6- CRL.A No.100022/2014 C/W CRL.A.No.100250/2014 Act, 1956, (for short 'ITP Act') and further accused No.1 is also convicted for the offence under Section 420 of IPC.
6. The State has not challenged judgment of acquittal of accused Nos.2, 4 and 5. It is only convicted accused Nos.1 and 3 have challenged the judgment of conviction and order of sentence for the aforesaid offences.
7. Appellants/accused in both the appeals challenging the judgment of Trial Court contended that there is no any acceptable evidence placed on record by the prosecution to prove the age of victim complainant to attract penal action in terms of Section 372 and 373 of IPC. The evidence of victim PW.7 would go to show that they have been permanently staying at Belgaum since 2005 and therefore, there is no question of accused No.1 carrying victim from Mangaluru to Belgaum on the false promise of marriage or to sell her to accused No.3 who in turn engaged the victim for prostitution. The victim has also admitted in her cross-examination that she is already booked in two cases under the ITP Act. The victim PW.7 -7- CRL.A No.100022/2014 C/W CRL.A.No.100250/2014 was having every opportunity to complain about she being forced to engage herself for prostitution, but did not choose to do the same. The alleged independent witnesses PWs.4, 5 and 8 have not supported the case of prosecution. The approach and appreciation of oral and documentary evidence and the findings recorded by the Trial Court in holding accused Nos.1 and 3 guilty for the offences alleged against him are contrary to law and evidence on record. Therefore, prayed for allowing both the appeals and consequently, to acquit accused Nos.1 and 3 from the charges leveled against them.
8. In response to the notice of both the appeals, learned HCGP has appeared for the respondent.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that accused No.1 is alleged to have developed contact with the complainant while she was staying in Mangaluru -8- CRL.A No.100022/2014 C/W CRL.A.No.100250/2014 with her mother. On account of such acquaintance, accused No.1 induced the complainant and her mother with the assistance of one Murali and by playing fraud assured that he will marry complainant brought her to Belgaum about 4 1/2 years back from the date of filing complaint. Accused No.1 and complainant were staying in a rented house at Kangrali K H Patil Galli, Belgaum. Accused Nos.1 and 2 conspired with each other and brought the complainant to the house of accused No.3 who in turn forced the complainant for prostitution in her house on the pretext that she has purchased the complainant for Rs.40,000/- from accused No.1. Accused Nos.3 to 5 together engaged complainant for prostitution not only in the house of accused No.3 but also at Mangaluru, Hubli, Belgaum and other places, further they were earning on the income of complainant out of profession of prostitution.
11. The prosecution to substantiate the aforementioned allegations against accused mainly relies on the evidence -9- CRL.A No.100022/2014 C/W CRL.A.No.100250/2014 of PWs.1 to 4 and 9 to speak on the fact that complainant and accused No.1 resided together in Kangrali K H Patil Galli, Belgaum. The prosecution also relies on the evidence of PW.5 owner of the lodge in front of Shivaji Garden, Belgaum, to prove that accused Nos.3 to 5 engaged the complainant for prostitution. The main witnesses of prosecution are victim PW.7 and her foster mother PW.8. The said evidence is sought to be corroborated by the evidence of Investigating Officer PW.10. Whether the said material evidence placed on record by the prosecution is sufficient to prove charges leveled against accused or not has to be re-appreciated in the light of grounds urged in both the appeal memo.
12. The evidence of PWs.1 and 2 would speak about drawing panchanama Ex.P.1 in the house of Smt. Renuka Yellappa Patil of Kangrali village. However, they have not supported the case of prosecution. PW.1 who is working as a Post Master claimed that Belgaum APMC Police took his signature on Ex.P.1 while he was in the office. Further,
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 he has denied that complainant has carried himself and PW.2 to the house of Renuka Patil who shown the place of incident and accordingly, the panchanama at Ex.P.1 was prepared. The owner of the house Renuka Patil is examined as PW.3 and she has deposed to the effect that accused no.1 was her tenant and was residing along with his wife on rent of Rs.1,000/- per month. She further claimed that she believed that the lady with accused No.1 was his wife. Since she has not fully supported the case of prosecution regarding the allegation of accused No.1 engaging complainant for prostitution in the said house and girl child was born to complainant, she has been declared as hostile witness. PWs.4 and 9 are the residents of Kangrali village and they have deposed to the effect that accused No.1 was residing with one woman in the house of Renuka Patil at Kangrali village on rental basis. The same is also the evidence of PW.9, therefore PWs.4 and 9 have also been declared as hostile witnesses. If for the sake of arguments even if the evidence of PWs.3, 4 and 9 is to be believed then their evidence would only
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 speak to the effect that accused No.1 was tenant under PW.3 Renuka and he was residing along with a woman. However, their evidence does not speak anything about any of the charges leveled against the accused as per the case of the prosecution.
13. PW.5 is the owner of the lodge situated in front of Shivaji Garden of Belgaum and PW.6 is Manager of Lakshmi Lodging at Hubli. The prosecution alleged that complainant was forced to engage in prostitution in the above said lodges at Belgaum and Hubli. However, PWs.5 and 6 have also not supported the case of prosecution. Therefore, now only remains the evidence of victim/complainant- PW.7 and that of her foster mother PW.8.
14. The victim/complainant- PW.7 in her evidence claims that she came in contact with accused while she was in Mangaluru along with her genetive mother. Accused No.1 was working in Siddharth lodge at Mangaluru and developed contact with complainant. Accused No.1
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 promised to marry complainant and assured to give decent life. However, the genetive and foster mother of complainant did not agree for the same, but she quarreled with them and left Mangaluru with accused No.1. Thereafter, accused No.1 kept her in a rented house at Kangrali village, Belgaum, and in the said house, against the wish of the complainant committed forcible sexual intercourse with her for about four to five months. Accused No.1 brought complainant to the house of accused No.3 situated at Shahapur, Belgaum, who in turn forcibly engaged the complainant for prostitution with the assistance of accused Nos.4 and 5 on the pretext that accused No.3 has purchased complainant from accused No.1 for Rs.40,000/-. Thereafter, she was forced to do prostitution not only in the house of accused No.3, but also at various places, further accused Nos.3 to 5 were earning on the income of the complainant out of profession of prostitution. Thereafter, while she was pregnant of six to seven months, accused Nos.3 discontinued engaging complainant for prostitution. PW.1
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 informed the said fact to her mother who on coming to Belgaum shifted to hospital and after three months of delivery filed the complaint at Ex.P.6.
15. PW.8 the foster mother of complainant has deposed to the effect that complainant left Mangaluru with accused No.1 who was working in Mangaluru Hotel and thereafter, she was having no contact with the complainant for about five years. PW.1 over phone informed about her pregnancy who in turn informed the same to the genetive mother of the complainant and she came to Belgaum. PW.8 further deposed to the effect that PW.7 revealed before her that she was forced to do prostitution. since PW.8 did not fully support the case of prosecution, she was declared as hostile witness and during the course of cross-examination by learned Public Prosecutor she has admitted all the suggestions put to her as per the case of prosecution.
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014
16. It has been elicited in the cross-examination of PW.7 that she was having her own mobile right from the time she came to Belgaum. PW.7 further admitted Ex.D.1 and states that since 2008 herself with mother and brother Nagasai were residing in Belgaum. The genetive mother of complainant and her brother Nagasai have ration card and while they were staying in Joshi Galli Belgaum, her brother died in Chennai. The said admission of PW.7 herself would go to show that complainant along with her genetive mother and brother were residing in Belgaum since 2008. The complaint ExP.6 itself was filed after more than five years even according to the complainant from the time she alleged to have stayed with accused No.1 in Belgaum. The victim complainant PW.1 for all these years was having every opportunity to complain against accused Nos.1 and 3 about she being forcibly engaged in prostitution profession. However, she kept quiet for all these years without complaining to anybody. Indisputably, complainant was having her own mobile and she could have complained to her genetive mother and
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 foster mother about she being forcibly engaged in prostitution profession nor made any attempt to inform to the police. PW.1 has also categorically admitted in her cross-examination that since 2005 she is residing in Belgaum. PW.1 has further admitted that there were two cases against her under ITP Act in 2006 itself. Therefore, there is no question of accused No.1 bringing the complainant from Mangaluru to Belgaum on the false promise of marrying complainant and then selling her to accused No.3 who in turn engaged the complainant for prostitution.
17. It has been elicited in the cross-examination of PW.8 that she has never resided in Mangaluru. Therefore, there is no question of complainant moving with accused No.1 from Mangaluru to Belgaum against the advise of this witness and that of her genetive mother. PW.8 has admitted in her cross-examination that she is police informant and also informed to TV-9 over phone. It has also been further elicited that prior to three days of filing
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 the present complaint, complainant had filed complaint in Mundargi. However, there is no any evidence on record to prove the said fact and the evidence of Investigating Officer PW.10 does not speak anything about PW.7 having filed complaint in Mundargi. PW.8 has categorically admitted that she has never resided either in Hubli or Mangaluru along with complainant and her genetive mother. She has further admitted that she came to know about the incident through PW.7 and she has no any personal knowledge. If the evidence of PWs.7 and 8 is tested with reference to the above referred admissions in their cross-examination in the light of case of prosecution then it will have to be said that their evidence is not in consonance with the complaint allegations Ex.P.6 and the case made out by the prosecution.
18. In order to attract the penal action, in terms of Section 372 and 373 of IPC, the prosecution has to necessarily prove the selling and buying of minor for the purpose of prostitution. In the present case, the
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 prosecution is required to prove that victim complainant PW.7 was minor as on the date of incident. Other than the allegation that victim/complainant PW.7 was minor, as on the date when accused No.1 alleged to have brought the complainant from Mangaluru to Belgaum, there is absolutely no any evidence placed on record by the prosecution to prove the age of victim/complainant PW.7. PW.7 in her evidence claimed her age as 23 years as on the date of giving evidence before the Court on 09.12.2013. The complaint allegations Ex.P.6, it is claimed that she was 22 years as on the date of filing complaint on 12.05.2012. It is true that PW.7 in her cross-examination has stated that she is not educated and do not remember her date of birth. However, the evidence of Investigating Officer PW.10 is also totally silent having made any attempt to collect the documents relating to age proof of complainant. The Investigating Officer also has not made any attempt to get ossification test to determine the age of PW.7. Therefore, the
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 inconsistent oral evidence of PW.7 is unsafe to rely to hold that PW.7 was minor as on the date of incident.
19. The prosecution alleges that complainant PW.7 was forced to engage in the profession of prostitution by accused persons. Therefore, they were charged for the offence under Section 3, 4, 5 and 6 of ITP Act. Learned counsel for the appellant has argued that entire investigation in this conducted by PSI who is not a special officer empowered under the Act to investigate and file charge sheet. In terms of Section 13(2) of the ITP Act, it is only the special officer not be below the rank of an inspector of police is only empowered under the Act to investigate the offences alleged under the ITP Act. In this context, reference can be made to the judgment of the Hon'ble Apex Court in Delhi Administration vs. Ram Singh reported in AIR 1962 SC 63, wherein the Hon'ble Apex Court by majority judgment held that the special officer is competent to investigate and that he and his assistant police officers are the only persons competent to
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 investigate offences under the Act and that police officers not specially appointed as special officers cannot investigate the offences under the Act even though they are cognizable offences. This judgment was considered in subsequent judgment of Hon'ble Apex Court in R.A.H. Siguran vs. Shankare Gowda alias Shankar and another reported in (2017)16 SCC 126, wherein the judgment of this Court in Shankare Gowda vs. State reported in ILR 2016 Kar. 3067 came to be reversed holding that even if investigation is not conducted by authorized officer, the trial is not vitiated unless a prejudice is shown. In the present case, the judgment of conviction after trial is under challenge, therefore at this point of time, unless it is demonstrated that any prejudice is shown to have caused to the accused, the trial is not vitiated. Therefore, the contention of learned counsel for the appellant that in terms of Section 13(2) of ITP Act, investigation being not conducted by special officer not below the rank of Inspector of Police cannot be legally
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 sustained, since it cannot be a ground to acquit the accused for the offences alleged under the ITP Act.
20. In the present case, on careful perusal of the entire material on record, it would go to show that other than evidence of PW.7 that she was forced to engage herself the profession of prostitution in the house of accused No.3 and lodges at Belgaum and Hubli, there is absolutely no evidence placed on record by the prosecution to substantiate the said allegation. PWs.5 and 6 have not supported the case of prosecution that PW.7 was found engaged in their lodge for doing prostitution. The house of accused No.3 situated at Shahapur, Belgaum is a residential locality and no any alleged incident of the said house being used for doing prostitution, nor there were any complaints of the local residents that accused No.3 is using her house for doing prostitution. In view of the reasons recorded as above, the evidence of complainant PW.7 itself is not found trustworthy in view of her admissions in the cross-examination. The prosecution has
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 not placed any material evidence on record to corroborate the statement of PW.7 that accused No.3 has allowed her premises to be used as a brothel. Similarly, the allegation of PW.7 that accused No.1 with the assistance of accused No.2 left complainant PW.7 in the house of accused No.3 and she forced PW.7 to engage herself in the profession of prostitution, so also accused No.3 revealing that she has purchased complainant PW.7 from accused No.1 for Rs.40,000/-, further accused Nos.3 to 5 were living on the earning of complainant out of the profession of prostitution is not supported by any evidence on record. The prosecution has not placed any concrete evidence on record to prove that accused Nos.1 and 3 were running brothel house and living on the earnings of complainant out of prostitution profession, further detained complainant for doing prostitution, so as to attract penal action in terms of Section 3, 4 , 5 and 6 of ITP Act. Therefore, it will have to be held the prosecution has failed to prove beyond all reasonable doubt that accused No.1 on the false promise of marrying complainant brought her
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 from Mangaluru to Belgaum and thereafter left complainant PW.7 in the house of accused No.3, further accused Nos.1 and 3 knowing fully well that complainant PW.7 is minor was forced to engage herself in the profession of prostitution.
21. The finding of the Trial Court in holding that complainant PW.7 is minor is based on it's own calculation by virtue of the age stated in the complaint Ex.P.1 and the one stated while giving evidence without there being any age proof document of complainant PW.7. It is also pertinent to note that on the same set of evidence accused Nos.2, 4 and 5 have been acquitted for the charges under Sections 372, 373 r/w Section 34 of IPC and Sections, 3, 4, 5 and 6 of ITP Act. However, convicted accused Nos.1 and 3 for the said offences. Therefore, the observations and finding recorded by the Trial Court in holding accused Nos.1 and 3 guilty of the offences alleged against them cannot be legally sustained and the interference of this
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CRL.A No.100022/2014C/W CRL.A.No.100250/2014 Court is required. Consequently, proceed to pass the following:
ORDER Appeal filed by appellant/accused No.1 in Crl.A.No.100250/2014 and the appeal filed by the appellant/accused No.3 in Crl.A.No.100022/2014 are hereby allowed.
The judgment of the Trial Court on the file of Fast Track III Court, Belgaum, holding charge by IV Additional District and Sessions Judge, Special Judge (PCA), Belgaum in S.C. No.109/2013 dated 24.01.2014, is set aside.
Accused Nos.1 and 3 are acquitted for the offences punishable under Sections 372, 373 r/w Section 34 of IPC and Sections 3, 4, 5 and 6 of ITP Act, further accused is also acquitted under Section 420 of IPC.
The fine amount, if any, paid by accused Nos.1 and 3 is ordered to be refunded.
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C/W CRL.A.No.100250/2014 The bail bonds of accused No.1 and that of accused No.3 shall stand discharged.
Registry to send back the record to Trial Court with a copy of this order.
SD/-
JUDGE gsr/mv