Bangalore District Court
Along With Panchas And His Subordinate ... vs And Rescued Cw.7 And Cw.8 on 13 March, 2023
KABC010099132016
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 13TH DAY OF MARCH, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.520/2016
BETWEEN
State by Yeshwanthapura P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
3.Ganesh
S/o Thimmaiah, a/a 42 Yrs.,
R/a No.5, Muthyalamma Road,
Doddaballapura, Bangalore Rural District.
(By Sri CVM, Advocate)
(Accused No.1, 2, 4 and 5 split up) ...ACCUSED
******
Date of offence & time 22.01.2016 14.40-16.40 hours
Date of report of offence 22.01.2016 at 17.45 hours
Date of arrest of the accused 23.01.2016
Date of release on bail 11.03.2016
Total period of custody 47 days
Name of the complainant Sri K. L. Krishna
Date of commencement of 7.3.2020
recording of evidence
Date of closing of evidence 16.08.2022
2
SC No.520/2016
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370(A) of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Yeshwanthapura P.S., Bangalore, has filed charge sheet against accused No.3 and others for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370A of IPC in their Crime No.42/2016.
2. The factual matrix of the case is that :-
The accused No.3 and others were running prostitution business in a rented rooms bearing No.305 and 306 Balaji Comfort Lodge situated at 8th Main, BM Colony, Opp. Road of JP Park within the limits of Yeshwanthapura P.S., Bangalore, by trafficking CW.7 and CW.8 with the assurance of providing job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 22.01.2016 at about 2.10 p.m. the complainant along with panchas and his subordinate staffs CW.9 to CW.13 conducted raid over the said house after obtaining credible information from CW.9 decoy and apprehended accused No.2 and 3, who were involved in the prostitution business along with other accused persons, rescued CW.7 and CW.8 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.Sec.370(A) of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.3
SC No.520/2016
3. The concerned police have submitted charge sheet against accused for the offences punishable U/s. Sec.370(2) and 370Aof IPC and U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional XXIV Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused.
4.The charge was framed against the accused No.3 on 13.11.2019 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370A of IPC. The accused pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all two witnesses as PW.1 and PW.2 and got marked documents at Ex.P.1 to P.4, and identifies Mos1 to 3. The learned public prosecutor has given up witnesses CW.10 and CW.11, in view of available evidence of other witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.7 and CW.8, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.7 and CW.8 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.2 to CW.6, in view of the same dropping of evidence of CW.2 to CW.6 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused No.3 as provided U/s.313 of Cr.P.C. on 4.2.2023, and the same was 4 SC No.520/2016 duly recorded. The accused did not claim for defense evidence nor produce any documents to support their case.
7.Heard the arguments on both sides and perused the materials on record.
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable that on 22.01.2016 at 2.10 pm. the accused No.3 in a rented rooms bearing No.305 and 306 Balaji Comfort Lodge situated at 8 th Main, BM Colony, Opp. Road of JP Part within the limits of Yeshwanthapura P.S., Bangalore, by trafficking CW.7 and CW.8 with the assurance of getting job and money induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business and thereby the accused No.3 has committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 22.01.2016 at2.10 p.m. the accused No.3 and others with common intention to run prostitution business by trafficking CW.7 and CW.8 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.3 has committed offence punishable U/s.370A r/w Sec.34 of IPC?
3. What Order?5
SC No.520/2016
9.This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order for the following:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the case of the prosecution that the accused No.3 and others were running prostitution business in a rented rooms bearing No.305 and 306 Balaji Comfort Lodge situated at 8 th Main, BM Colony, Opp. Road of JP Park within the limits of Yeshwanthapura P.S., Bangalore, by trafficking CW.7 and CW.8 with the assurance of providing job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 22.01.2016 at about 2.10 p.m. the complainant along with panchas and his subordinate staffs CW.9 to CW.13 conducted raid over the said house after obtaining credible information from CW.9 decoy and apprehended accused No.2 and No.3, who were involved in the prostitution business along with other accused persons, rescued CW.7 and CW.8 and at that time seized the articles from the spot through panchanama. Thereby the accused is 6 SC No.520/2016 alleged with the offences punishable U/s.Sec.370(A) of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.1, who deposed that on 22.01.2016 at 2.10 p.m. after obtaining credible information regarding prostitution carried out in a rented rooms bearing No.305 and 306 Balaji Comfort Lodge situated at 8 th Main, BM Colony, Opp. Road of JP Park within the limits of Yeshwanthapura P.S., Bangalore, and after obtaining oral permission from his higher officers, he along with his staff CW.9 to Cw.11 and secured the panch witness CW.2 and 3, and issued notice Ex.P1, prepared record of reasons, deputed CW.9 as decoy, and after confirmation he conducted raid over the lodge along with his staff and panchas, apprehended the accused and rescued CW.7 and CW.8, who were made to indulge in prostitution business by the accused persons. It is also the case of the PW.1 that he has drawn mahazar Ex.P3 regarding seizure of material objects No.1 to 3. It is pertinent to note that in the cross-examination PW.1 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. It is equally important to note that before the raid he has not physically verified himself and his staff. This clearly indicates that PW.1 has never taken any steps before raid regarding the materials that has been carried by him and his staff at the time of raid. Further it is also the evidence of PW.1 that after conducting raid he has seized MOs1 to 3 from the possession of accused persons through panchanama Ex.P3 drawn in the presence of the panchas 7 SC No.520/2016 CW.2 and 3. PW.1 further deposed that after apprehension of accused No.2 and 3, rescue of CW.7 and CW.8 along with seized articles MOs1 to MO3 appear before CW.12 and lodged Ex.P4 complaint. At this juncture it is also very important to note that panchas CW.2 and 3, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of CW.2 and CW.3 the contents of Ex.P3 panchanama is also not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused that the complainant PW.1 in spite of densely populated area has not secured any of the female persons residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P3 as mandated by the Act U/s.15(2) of the ITP Act. The pancha CW.2 and CW.3 are the male persons. At this juncture I would like to reproduce the provisions of Se.15(2) of ITP Act, which reads as follows:-
Sec.15(2) before making a search under sub-section(1), the special police officer(or the trafficking police officer, as the case may be) shall call upon two or more respectable inhabitants(at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do:
It is clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates two or more respectable inhabitants of the locality in which the place to be searched is situated has to be called them for panchanama, out of them at least one of 8 SC No.520/2016 them shall be a women residing in the said locality. In the instant case the panch witnesses, who were cited are male persons. From this fact it is clear that the PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurrence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused along with the victims/ CW.7 and CW.8, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 3 is fatal to the case of the prosecution. PW.2 M. K. Shivakumar, Police Constable, who is one of the raiding party member, has deposed in similar way of PW.1 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.7 and CW.8, and producing of accused before SHO. The learned counsel for the accused cross- examined PW.2 and he also denies the suggestions with regard to apprehension of accused and his participation in the raid.
13.In order to prove the allegations against the accused the prosecution has failed to examine the owner of the lodge. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/CW.7 and CW.8 failed to secure the material witnesses before the Court, when the entire case rest on the evidence of victims/CW.7 and CW.9, who according to the prosecution, were indulging in prostitution business by trafficking and the accused No.3 was living on the wrongful gain from the said business. This is fatal for the case 9 SC No.520/2016 of the prosecution, wherein the material witness CW.7 and CW.8 have not been examined, so as to prove the guilt against the accused persons.
14.The victims CW.7 and CW.8 were not examined by the prosecution in spite of opportunity given by this Court. The material witnesses CW.2 to CW.5 have not been examined, so as to prove the guilt against the accused No.3. Therefore, from the above reasons and discussions it is very clear that the prosecution has failed to establish the guilt against the accused No.3 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
15.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused No.3 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370A r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled.
MO1 to 3 shall be preserved, till the disposal of the split up case, as registered against accused No.1, 2, 4 and 5.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 13th day of March, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
10SC No.520/2016 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: K.L. Krishna P.W.2: Shivakumar.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Record of reasons Ex.P.3: Mahazar Ex.P.4: Complaint.
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:-
MO1: Mobile Phone
MO2: Condom packets
MO3 Cash Rs.500/-.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
11
SC No.520/2016
Accused No.3 present
The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.3 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370A r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled. MO1 to 3 shall be preserved, till the disposal of the split up case, as registered against accused No.1, 2, 4 and 5.
For compliance of Sec.437(A) of Cr.P.C., call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.