Bangalore District Court
State Of Karnataka vs No.2 Santhosh B.V on 28 March, 2022
IN THE COURT OF LXXI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-72)
DATED THIS THE 28 th DAY OF MARCH, 2022
PRESENT
Smt. SANDHYA S. M.A., LL.B., (spl.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru.
S.C. No.727/2016
Complainant State of Karnataka
By Byatarayanapura
P S, Bangalore.
(By the learned Public
Prosecutor)
V/S
Accused No.2 Santhosh B.V,
S/o Balan,
Aged about 32 years,
R/at No.19,
Vinayakangar, Nr.
Railway Station,
Chikkabanavara,
Bengaluru.
(By Sri. Naveen M.S and
K.N.Purushotham,
Advocates)
Date of offence 16.02.2014
Date of report of offence 16.02.2014
2 S.C. No.727/2016
Name of the Sri.Paul Priyakumar,
complainant Police Officer
Date of commencement 16.03.2018
of recording of evidence
Date of closing of 02.07.2019
evidence
Offences complained of U/sec.367, 370(2) of
Indian Penal Code.
Opinion of the Judge Accused No.2 not found
guilty
State represented by Learned Public
Prosecutor
Accused defended by Sri. Naveen M.S and
K.N.Purushotham
Advocates.
*****
J UD GME N T This case is the result of charge sheet filed by the complainant Byatarayanapura Police against the accused No.2 for the offence punishable under section 367, 370(2) of Indian Penal Code.
2. The prosecution was set into motion against accused No.2 on the complaint of C.W.1 Sri.Paul 3 S.C. No.727/2016 Priyakumar, PSI, Byatarayanapura Police Station, Bangalore. The case of prosecution is that on 15.02.2014 at 7.00p.m on the credible information that accused No.1 had brought one victim by name Kanaka to fetch her a job on 16.02.2014 to the house at Nayandanahalli. Further alleged that accused No.1 had put accused No.2 to take care of the victim and abducted her. Further that C.W1 took C.W.8 to 10 and panchas 5 to 6 around 7.00p.m to the spot and found victim along with accused No.2. Further alleged that accused No.1 and 2 gave assurance to the victim that they will fetch her a job and put her to prostitution. Hence registered the case in Cr. No.118/2015, for the offence punishable under 367, 370 (2) of Indian Penal Code. At the inception of this case, accused was remanded to judicial custody. 4 S.C. No.727/2016
3. After completion of investigation, C.W.13 submitted charge sheet against accused No.2 before Chief Metropolitan Magistrate Court, Bengaluru and it was registered as C.C.No.17361/2015.
4. Accused No.2 appeared before the learned Magistrate through the counsel and got enlarged on bail. The learned Magistrate furnished copy of charge sheet to accused No.2 and thereby, the provision of Sec.207 of Cr.P.C. was complied with. As the offences charge sheeted against accused No.2 is exclusively triable by sessions court, the learned Magistrate acting under section 209 of Cr.P.C, committed this case to the Hon'ble Prl. District & Sessions Judge, Bengaluru. Further, Hon'ble Prl.City Civil and Sessions Judge Bengaluru, transferred this case, to this court for disposal in accordance with law. Hence, the matter is 5 S.C. No.727/2016 taken up before this Court for further proceedings accordingly.
5. As stated herein above, accused No.2 was on bail. In pursuance of service of summons, accused No.2 appeared before this Court through his counsel and got enlarged on bail. After hearing the counsel for accused No.2 and also the learned Public Prosecutor and on considering the relevant materials on record, my predecessor has framed charges against accused No.2 on 16.10.2017, for the offences punishable under Section 367, 370(2) of IPC, for which accused No.2 pleaded not guilty and thereby he claimed to be tried for the said offences.
6. In support of the case of prosecution, out 13 witnesses cited in the charge sheet, prosecution has examined in all 6 witnesses as P.W.1 to P.W.6. The prosecution has marked 07 documents as Ex.P.1 to 6 S.C. No.727/2016 Ex.P.07. After completion of prosecution side evidence, this Court has recorded the statement of accused No.2 as provided under section 313 of Cr.P.C and he has denied all the incriminating materials present against him in the evidence of prosecution as false. Further accused No.2 has not adduced any defense evidence nor produced any documents on his behalf.
7. Heard the argument of learned Public Prosecutor and also the learned counsels for accused No.2 persons. 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 15.02.2014 at 7.00p.m on the information, accused No.1 had brought one victim by name Kanaka to fetch her a job on 16.02.2014 to the house at Nayandanahalli and that accused No.1 had put accused No.2 to take care of the victim and abducted her and thereby accused No.2 has 7 S.C. No.727/2016 committed the offence punishable under section 367 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, accused No.2 brought the victim and kept her under his custody as slave and put her for prostitution and thereby accused No.2 has committed the offence punishable under sec.370(2) of IPC?
3. What order?
8. Having heard the arguments of both the sides and taking into consideration all 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: As per final order For the following:
REA S ON S
9. Points No.1 and 2: Both these points are taken up for consideration together for convenience as they are inter-connected with one another and also for 8 S.C. No.727/2016 avoiding repetition of discussion on the facts of the case and also regarding points of law.
10. The learned Public Prosecutor has vehemently argued that the prosecution has perfectly proved all the ingredients of the charges leveled against accused No.2 and have examined 6 witnesses, hence, accused No.2 be convicted for the offences charged.
11. The learned counsel for accused No.2, Sri. Naveen M.S and K.N.Purushotham Advocates, have vehemently argued that the prosecution has utterly failed to prove the guilt of accused No.2 beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that accused No.2 has committed the offence charged against him and hence, he may kindly be acquitted is the argument of counsel for Accused No.20. 9 S.C. No.727/2016
12. In order to substantiate the charges leveled against accused No.2, the prosecution has mainly relied on the evidence of P.W.1 to P.W.6. I have gone through the evidence of P.W.1 to P.W.6 in detail. The prosecution has got marked documents at Ex.P.1 to Ex.P.7.
13. On going through the evidence adduced by the prosecution witness, the evidence of P.W.2, who is C.W.1 and complainant in this case, one by name Poul Priyakumar. He deposed that on 16.2.2014 on the information given by Shivshankar @ Raju, the staff Ramlingegowda and Women PC Kanthamma who were deputed to produce accused, Mustafa @ Santhosh and they went near House No.280, 1st Main, 2nd Cross and accused Santhosh was present along with a woman. Further deposed that Santhosh on enquiry told his name was Santhosh @ Balan and mentioned 10 S.C. No.727/2016 few days ago Mustafa @ Santhosh was introduced to him who had asked to send girls who were in search of work and to use them for prostitution. Further deposed that on 15.02.2014 at 7.00p.m one woman was brought by Mustafa on the assurance of getting her a good job. Further deposed that on enquiring the woman, her name was Kanaka. Further deposed that panchas and victim women were taken to the police station and gave the report to C.W.11 and panchanama. Panchanama is at Ex.P.1 and witness signature is at Ex.P.1(a) and report of the witness is marked as Ex.P.2.
14. During the cross-examination of P.W.2 he deposed that at the majestic it was 2.00p.m and by the time he reached Mustafa's house it was 5.00p.m. Further deposed that accused Shivshankar showed him Mustafa's house and when they went to Mustafa's 11 S.C. No.727/2016 house. Further deposed that along with accused Santhosh, Kanaka was present. Further deposed that he enquired about Mustafa and Kanaka before Santhosh. Further deposed that on enquiring Kanaka she said Santhosh had brought her to fetch her a work. Further deposed that he drew the mahazar by calling the neighbors regarding Kanaka was residing with accused. Further deposed that the owner of the house was not found and accused was produced before the SHO. Further deposed that he called two panchas to the spot. This witness denied other suggestions put to him as false by counsel for accused.
15. Material witness and owner of the house is P.W.1, who is C.W.7, one by name Shashikala, who has deposed that she is the owner of the two storie building at Nayandahalli. Further deposed that she is 12 S.C. No.727/2016 residing in the first floor and in the ground floor she has given it to one by name Mustaffa about 2-3 years ago. Further deposed that Mustaffa resided for about 6-7 months on rent and he stayed alone. Further deposed that in that house one male and female were residing and they came after Mustaffa left. Further deposed that she does not know for how long they stayed. Further deposed that she came to know only when police came that house about male and female. Further deposed that police had told that they were arresting them and that she does not know the reason why police arrested. Further deposed that she had not seen accused in that house. Further deposed that when police arrested male and female, accused was in the house. Further deposed that male and female were doing rape so police had taken them. Further deposed that Mustaffa was paying Rs.3000/- as 13 S.C. No.727/2016 monthly rent and advance of Rs.30,000/- and no agreement was made. Further deposed that name of female is Kanaka and name of male may be Satish or Mustaffa and that he had kept 3-4 names. Further deposed that Mustaffa was using her house given on rent for rape.
16. During cross-examination of P.W.1, she deposed that she does not remember the year on which she had given on rent. Further deposed that after police took male and female, Mustaffa did not come to rented house. Further deposed that when police had come Mustaffa was also present along with male and female. Further deposed that Kanaka and male are not accused before the Court. Further admitted that whom police had taken along is not accused.
14 S.C. No.727/2016
17. Police witnesses in this case are P.W.3 to P.W.6. Among them P.W.3 is C.W.11 one by name Nanjegowda, who is PSI. He deposed that on 16.02.2014 at 8.00p.m P.W.2 came with the report and along with Kanaka. Further deposed that accused who is present before the court, was produced before him and that Kanaka was sent along with C.W.2 to State home. Further deposed that he registered crime in 208/2014 and FIR was sent before learned Magistrate. The report is Ex.P.3 and witness signature at Ex.P.3(a). FIR is at Ex.P.4 and witness signature at Ex.P.4(a). Further deposed that he handed over the investigation to C.W.12 Muralidhar.
18. During the cross-examination of P.W.3 he deposed that he was in the police station till 8.30p.m on that day and had enquired accused. Further deposed that he got the name and address of accused 15 S.C. No.727/2016 and informed the relatives of accused, that right now he does not remember the relative's name. Further deposed that he has enclosed arrest memo along with remand application and took photos of accused. Further deposed that P.W.2 had earlier itself prepared the report as per Ex.P.3. Further this witness denied other suggestions put to him as false.
19. Another Police witness is P.W.4 is C.W.12 one by name Muralidhar who is PSI, he deposed that on 16.02.2014 he received the case file from P.W.3 and conducted further investigation. Further deposed that he took the statements of C.W.8 and 10. Further deposed that accused was arrested and kept in police station and his voluntary statement was recorded and later was produced before the learned Magistrate. Further deposed that he took the statements of C.W.3 and 5 and on 04.05.2014 he took the statement of 16 S.C. No.727/2016 Kanaka. During the cross-examination of P.W.5 he deposed that on 16.02.2014, he came to know that this case pertains to Byatarayanapura jurisdiction. Further deposed that on 25.03.2014 he took the permission of learned ACMM in order to send it to concerned jurisdictional police station. Further this witness denied other suggestions put to him as false.
20. Another Police witness is P.W.5, who is P.S.I and C.W.13, one by name C.Lakshman. He deposed that on 28.03.2015 he got through proper channel this case as per the jurisdiction at 5.30p.m and registered it under Crime No.118/2015 and registered FIR. Further deposed that Ex.P.3 is the report given by witness and Ex.P.3(b) is his signature. FIR is at Ex.P.5 and witness signature is at Ex.P.5(a). Further on 03.07.2015 he took statements of C.W.7 and further from BBMP office he took the tax paid receipts 17 S.C. No.727/2016 of the house of C.W.7. The said receipts is at Ex.P.6 and Ex.P.7. Further deposed after completing investigation he filed charge sheet and accused No.1 was shown as absconding. During the cross- examination P.W.5 he deposed that even after searching accused No.1 he was not find him and that Madivala Police had arrested accused No.1 and later released is not known to him. Further admitted that he has not conducted the further investigation in this case and denied other suggestions put to him as false.
21. Another Police Witness is P.W.6, who is women Police Constable and C.W.10 one by name M.Kanthamma, who deposed that after receiving the crime from Madival P S, she went to Nayandanahalli to secure accused. She got to know from the friend of Santhosh @ Mustafa, that he stays here and she went to house No.280, wherein P.A. Santhosh was with one 18 S.C. No.727/2016 girl Kanaka. Further deposed that he said his name was Santhosh P.A and on further enquiry he said Santhosh @ Mustafa had told to bring girls in pretext of fetching her a job and then they could sell them, hence he had brought Kanaka from bus stand. Further deposed that she brought Santhosh P.A. and Kanaka at 7.00p.m to Madival P.S and registered crime and produced accused before the PSI. During the cross she deposed that at the Nayanadanahalli house she went along with C.W.8 to 10 staff reached at 5.00p.m and the house was situated in tenement(ವಠರ). Further deposed that she does not know how many floors are there in the house and that the house was in ground floor. Further deposed that in the house accused and Kanaka were present and that Santhosh @ Mustafa @ Babu was not present. Further deposed that during the raid neighbors did 19 S.C. No.727/2016 not come, PSI along with 3 staff were present. Further deposed that accused and victim women were brought to police station. Further witness denied other suggestions put to her by defense counsel as false.
22. On considering the entire evidence of all the witnesses, as extracted from the depositions of P.W.1 Witness stating that:
" JµÀÄÖ ¢£ÀUÀ¼À PÁ® EzÀÝgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. ¥ÉÇðøÀgÀÄ ¨ÁrUÉ ªÀÄ£É §½ §AzÁUÀ¯Éà D ªÀÄ£ÉAiÀÄ°è ºÀÄqÀÄUÀ ºÀÄqÀÄV EgÀĪÀÅzÀÄ UÉÆvÁÛ¬ÄvÀÄ. ºÀÄqÀÄUÀ ºÀÄqÀÄV AiÀÄÁgÉÆà EzÁÝgÉ JAzÀÄ ¥ÉÇðøÀgÀÄ ªÀÄ£ÉAiÀÄ §½ §A ¢zÀÝgÀÄ".
Further that:
"CªÀgÀ£ÀÄß ¥ÉÇðøÀgÀÄ AiÀiÁªÀ PÁgÀtPÉÌ zÀ¸ÀÛVj ªÀiÁrPÉÆAqÀgÀÄ £À£ÀUÉ UÉÆwÛ®è, DgÉÄÁæAiÀÄ£ÀÄß £Á£ÀÄ ¨ÁrUÉ ªÀÄ£ÉAiÀÄ°è £ÉÆÃr®"è.
Further that:
"ºÀÄqÀÄUÀ ºÀÄqÀÄV ªÀÄ£ÉAiÀÄ°è CvÁåZÁgÀ ªÀiÁqÀÄwÛzÁÝgÉAzÀÄ ªÀ±ÀPÉÌ ¥ÀqÉzÀÄ ¥ÉÇðøÀgÀÄ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ".
Further that:
"PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉÆArgÀ°®è. ºÀÄqÀÄVAiÀÄ ºÉ¸ÀgÀÄ PÀ£ÀPÀ , ºÀÄqÀÄUÀ£À ºÉ¸ÀgÀÄ ¸ÀwñÀ CxÀªÁ ªÀÄĸÁÛ¥À EgÀ§ºÀÄzÀÄ".20 S.C. No.727/2016
23. On considering the evidence of the prosecution witness, P.W.1, deposing that Mustaffa resided for about 6-7 months on rent and he stayed alone. Further deposing that in that house one male and female were residing and they came after Mustaffa left. Further deposing that she does not know for how long they stayed. Further deposing that she came to know only when police came that house about male and female. Further deposing that police had told that they were arresting them and that she does not know the reason why police arrested. Further deposing that she had not seen accused in that house. Further deposing that male and female were doing rape so police had taken them. Further deposed that Mustaffa was using her house given on rent for rape, raises doubt on the case of the prosecution. 21 S.C. No.727/2016 Further during cross-examination of P.W.1, she deposing that she does not remember the year on which she had given on rent. Further deposing that after police took male and female, Mustaffa did not come to rented house. Further deposing that when police had come Mustaffa was also present along with male and female. Further deposed that Kanaka and male are not accused before the Court. Further admitting that whom police had taken along is not accused, raises doubt on the case of the prosecution. Further P.W.3 during the cross- examination deposing that he got the name and address of the accused and informed the relatives of accused, that right now he does not remember the relatives name, this aspect also raises doubt on the case of prosecution. Further P.W.5 during the cross-examination deposing that even after 22 S.C. No.727/2016 searching accused No.1 he was not found and that Madivala Police had arrested accused No.1 and later released is not known to him, this aspect also raises doubt on the case of prosecution. Further P.W.6 during the cross examination she deposing that she does not know how many floors are there in the house and that the house was in the ground floor. Further deposing that during the raid the neigbors did not come, PSI along with 3 staff were present, this aspect also raises doubt on the case of prosecution.
24. Further, the definitions of Sec.370(2)of Indian Penal Code reads thus:
"Whoever knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less then three year, but which may extend to five year and shall also be liable to fine."23 S.C. No.727/2016
25. The above explanations of the definitions have to be strictly proved for any case against accused No.2 falling under section 367 and 370(2) of Indian Penal Code. But in the case on hand, it is important to note that although victim were cited as witness in the charge sheet, but prosecution has not examined any one, so that she could explain her grief and prosecution has not taken the evidence of independent witnesses in and around the vicinity of the raided spot. These offences are against the dignity of woman and health of the society. Hence, care has to be taken while deciding such cases under section 367 and 370(2) of Indian Penal Code. The examined witness P.W.2 to P.W.6 are all official witness and P.W.1 is the house owner and materials witness in this case whose evidence cannot be relied upon solely as she has changed her versions during deposing and base only 24 S.C. No.727/2016 on the testimony of PW.1 it cannot be taken as charges against this accused as proved beyond all reasonable doubt.
26. It can be seen that out of 13 witnesses cited by the I.O, CW.2 to CW.6, CW.8 and 9 are not examined in this case. The witnesses PW.2 to 6 are Police officers, it cannot be said that the Police witnesses depose for the success of the prosecution case. Although the evidence of Police witnesses is taken as accepted, but basing only on the say of the official witnesses, who are PW.2 to 6, the charges cannot be taken as proved against accused No.2. Thus the prosecution was not successful to prove the charges against accused No.2, beyond all reasonable doubt. Further Panchanama at Ex.P.1 dated 16.02.2014 is not proved by examination of cogent witnesses.
25 S.C. No.727/2016
27. Further, on considering the evidence of all the witness on record, it is relevant to note that the evidence of public servants cannot be disbelieved that they are interested in the success of prosecution. But the various discrepancies in the evidence of the complainant makes it doubtful to believe the version of the prosecution in toto. Based only on the evidence of these official witnesses, P.W.2 to PW.6 the guilt of accused cannot be concluded. Also that, no neighbor or independent witness or any of the pancha witness is examined by the prosecution in this case, creates doubt on the prosecution case. The I.O. has not inquired the adjacent owners of the flat nor recorded their statements, which creates doubt. Further PW.1 who is owner of the said premises has not supported the case of the prosecution to say that this case is proved beyond all reasonable doubt.
26 S.C. No.727/2016
28. The evidence on record does not prove that accused No.2 was involved in the case as per the charge framed. Hence, this court is of the opinion that the prosecution has utterly failed to bring home the guilt of accused No.2 beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that accused No.2 has committed the offence charged against him under section 367 and 370(2) of Indian Penal Code. Therefore, doubt arises regarding the case alleged against accused No.2. It is well settled principle of law that accused No.2 is entitled to the benefit of such doubt. Hence, the prosecution has utterly failed to prove beyond all reasonable doubt that accused No.2 was involved in the offences as charged. Accordingly, I answer points No.1 and 2 in the Negative.
27 S.C. No.727/2016
29. Point No.3: From the discussion made herein above, it is clear that accused No.2 deserves to be acquitted of the offences charged against him in this case. In the result, therefore, I proceed to pass the following:
ORD ER Acting under section 235(1) of Cr.P.C., accused No.2 is acquitted of the offences charged against him under sections Sec.367, 370(2) of IPC.
The bail bond executed by accused No.2 and his surety bond shall stand canceled, he is set at liberty forthwith.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in open Court on this the 28th day of March, 2022) (SANDHYA S.) LXXI Addl. City Civil & Sessions Judge, Bengaluru, (CCH 72) 28 S.C. No.727/2016 ANNEXURE I. List of Witnesses examined on behalf of Prosecution:
P.W.1 : Shashikala
P.W.2 : Paul Priyakumar
P.W.3 : Nanjegowda
P.W.4 : Muralidhar
P.W.5 : Lakshman
P.W.5 : Shanthamma.M
II. List of Documents exhibited on behalf of Prosecution:
Ex.P.1 Panchanama
Ex.P1(a) Signature of witness
Ex.P.2 Report
Ex.P.3 Report
Ex.P.4 FIR
Ex.P.4(a) Signature of Witness
Ex.P.5 FIR
Ex.P.5(a) Signature of Witness
Ex.P.6 & Copies of Income Tax
Ex.P.7
III. List of Witnesses examined on behalf of
Accused:
-NIL-
29 S.C. No.727/2016
IV. List of Documents exhibited on behalf of Accused:
-NIL-
V. List of Material Objects marked on behalf of Prosecution:
-NIL-
(SANDHYA S.) LXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH 72)