Bangalore District Court
State Of Karnataka vs No.1 Gangadhar on 23 February, 2021
IN THE COURT OF LXXI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-72)
DATED THIS THE 23 rd DAY OF FEBRUARY, 2021
PRESENT
Smt. SANDHYA S. M.A., LL.B., (spl.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru.
S.C. No.973/2017
Complainant State of Karnataka
By V V Puram P S,
Bangalore.
(By the learned Public
Prosecutor)
V/S
Accused No.1 Gangadhar
S/o Siddaiah
Aged about 27 years,
Hotel Shiva Palace,
Deluxe Lodge, NT Pet,
Bengaluru.
Accused No.2 Mahesha,
S/o Rangappa
Aged about 26 years,
Hotel Shiva Palace,
Deluxe Lodge, NT Pet,
Bengaluru.
Accused No.3 Madhu, Split Up,
case against A-3 in
C.C.19063/2017 at
S.C.843/2019.
Accused No.4 Shivanna, @ Ganganna,
2 S.C. No.973/2017
S/o Venkatappa,
Aged about 45 years,
R/at No.2, 1st Mainroad,
Metro Layout,
Nayandahalli,
Bangalore.
Accused No.5 Ameer Sharif,
S/o Mehboob Sharif,
Aged about 23 years,
No.76/1, 1st Cross,
Chikkabasthi, Bengaluru.
Accused No.6 Arjun, S/o Shashidhar,
Aged about 20 years,
Vadiyar Veedu Parambha
House, Anukulam Area,
Palakkad, Kerala.
Accused No.7 Adil Rehman, S/o Faizal,
Aged about 21 years,
R/at Ayesha House,
Pudiyar Town, Calicut
Taluk, Palakkad, Kerala.
Accused No.8 Swamy S.K, S/o Kumar
Aged about 22 years,
Chikkesorekayipura,
Chennarayapatna,
Hirisave Hobli,
Hassan.
Accused No.9 Govindaraj,
S/o Govindraj,
Aged about 43 years,
R/at No.781, 5th Block,
60th Cross, Bashyam
Circle, Rajajinagar,
Bangalore.
Accused No.10 Gurumurthy.B,
Aged about 28 years,
3 S.C. No.973/2017
R/a No.28, MRR Lane,
Kalasipalya, Bangalore.
Accused No.11 Kabeer, S/o Gafhar,
Aged about 22 years,
R/at No.142, 1st Cross,
Shamanna Garden,
Ramasandra, Bangalore.
Date of offence 06.01.2016
Date of report of offence 06.01.2016
Name of the Sri A.S.Vishwas, Police
complainant Inspector
Date of commencement 03.11.2018
of recording of evidence
Date of closing of 19.09.2019
evidence
Offences complained of Sec.4, 5,5(A), 6 and 9 of
Immoral Traffic
Prevention Act and
Sec.370,370(A)(1) r/w
34 of IPC
Opinion of the Judge Accused not found
guilty
State represented by Learned Public
Prosecutor
Accused defended by Sri T.C.Prabhakar and
Sri.S.R.Sidegouda and
Sri. Sriram Reddy.
Advocates.
*****
JU DG MEN T 4 S.C. No.973/2017 This case is the result of charge sheet filed by the complainant V.V.Puram Police against the accused persons no: 1, 2, and 4 to 11 for the offence punishable under Section 370, 370(A)(1) r/w 34 of Indian Penal Code and Sec.4, 5, 5(A), 6, and 9 of Immoral Traffic Prevention Act.
2. The prosecution was set into motion against all the accused persons on the complaint of C.W.1 A.S.Vishwas, Police Inspector, V.V.Puram Police Station, Bangalore. The case of prosecution is that on 06.01.2016, when CW.1 was on patrolling duty, he received credible information about running of brothel business at Hotel Shiva Palace Deluxe Lodge, within the limits of V.V.Puram P S, Bangalore. Immediately on the same day, after confirmation of the information, at about 08.50 p.m. along with his staff, raided the said premises. During the said raid, they got to know that accused by giving false assurance and making illegal gain, induced women to indulged in brothel 5 S.C. No.973/2017 business. The complainant police seized Rs.3,850/-, 15 Nirodh packets, used for commission of the said offence and by drawing mahazar, registered the case in Cr. No.03/2016, for the offence punishable under 370, 370(A)(1) r/w 34 of Indian Penal Code and Sec.4, 5, 5(A), 6 and 9 of Immoral Traffic Prevention Act. The accused was remanded to judicial custody.
3. After completion of investigation, C.W.10 submitted charge sheet against the accused persons before Chief Metropolitan Magistrate Court, Bengaluru and it was registered as C.C.No.6322/2017.
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 persons is exclusively triable by sessions Court, the learned Magistrate acting under Section 6 S.C. No.973/2017 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 taken up before this Court for further proceedings accordingly. The case against accused No.3 by name Madhu is Split-Up in C.C.19063/2017, which is committed to this court in S.C.843/2019. Hence, this case is pertaining to accused persons no.1, 2 and 4 to 11 only.
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 persons and also the learned Public Prosecutor and on considering the relevant materials on record, my predecessor has framed charges against the accused persons on 22.06.2018, 7 S.C. No.973/2017 for the offences punishable under Section 370, 370(A) (1) r/w 34 of Indian Penal Code and Sec.4, 5, 5(A), 6 and 9 Immoral Traffic Prevention Act, for which the accused persons pleaded not guilty and thereby they have claimed to be tried for the said offences.
6. In support of the case of prosecution, out 11 witnesses cited in the charge sheet they have examined in all 5 witnesses as P.W.1 to P.W.5. The prosecution has marked 13 documents as Ex.P.1 to Ex.P.13 and 2 properties marked as M.O.1 and M.O.2. After completion of prosecution side evidence, this Court has recorded the statement of accused persons as provided under section 313 of Cr.P.C. The accused persons has denied all the incriminating materials present against them in the evidence of prosecution. Accused persons has not adduced any defense evidence nor produced any documents on their behalf.
8 S.C. No.973/2017
7. Heard the argument of learned Public Prosecutor and also the learned counsels for accused 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 on 06.01.2016 at
8.50p.m when CW.1 raided at Hotel Shiva Palace Deluxe Lodge, within the limits of V.V.Puram P S, Bangalore, accused persons 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?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place when C.W.1 raided, were keeping girls as slaves for doing brothel business and called accused No.5 to 11 and induced the victim C.W.4 to 7 to do prostitution and thereby the accused persons have committed the offence punishable under Sec.5,5(A) of I.T.P Act?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place when C.W.1 raided, accused persons were keeping girls as slaves for doing brothel business and induced the girls to indulge in prostitution and thereby the accused persons have 9 S.C. No.973/2017 committed the offence punishable under Sec.6 of I.T.P Act?
4. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place when C.W.1 raided the above said house and found that accused persons by keeping girls C.W.4 to 7 as slave for doing brothel business and seduced the girls to indulge in prostitution and thereby the accused has committed the offence punishable under Sec.9 of I.T.P Act?
5. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, the accused persons were doing brothel business and living on the earnings of the said business and kept the victim C.W.4 to 7 under their custody as slaves and induced them for prostitution and thereby the accused persons have jointly committed the offence punishable under Sec.370,370(A) r/w 34 of IPC?
6. 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 10 S.C. No.973/2017 Point No.3: In the negative Point No.4: In the negative Point No.5: In the negative Point No.6: As per final order For the following:
R EAS O N S
9. Points No.1 to 5: All these points are taken up for consideration together for convenience as they are inter-connected with one another and also for 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 the accused persons and hence, the accused persons be convicted for the offences charged.
11. The learned counsel for the accused, Sri T.C.Prabhakar and Sri.S.R.Sidegouda and Sri. Sriram Reddy. Advocates, have vehemently argued that the prosecution has utterly failed to prove the guilt of the accused persons beyond all reasonable doubt and the 11 S.C. No.973/2017 evidence placed by the prosecution is not at all sufficient to hold that the accused persons have committed the offence charged against them and hence, they may kindly be acquitted.
12. In order to substantiate the charges leveled against the accused perosns, 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. The prosecution has got marked documents at Ex.P.1 to Ex.P.13 and M.O.1 and M.O.2.
13. On going through the evidence adduced by the prosecution witness, the evidence of P.W.1 who is C.W.10, one by name Nagaraju, who is the H.P.C. He deposed that he went to Shiv Palace Lodge where prostitution was going on, he went along with C.W.1 and C.W.12 and other staff on 6.1.2016 at 9.30 p.m. That after the raid around 5-6 women, 7-8 men were indulged in prostitution. These women and men were taken to the police station. Further deposed that at 12 S.C. No.973/2017 the spot Rs.10,000/- cash, condoms were also taken. That nothing was written at the spot. That C.W.1 registered case. This witness was termed as partly hostile and Learned Public Prosecutor has conducted the cross-examination.
14. During the cross-examination of P.W.1, he has deposed and denied all the suggestion put to him by the Learned Public Prosecutor. Further, this witness was again cross-examined by the counsel for accused persons and denied all the suggestion put to him. This witness being a police witness, has not at all supported the case of the prosecution and only on the basis of this witness alone, the guilt of the accused persons cannot be said to have been proved beyond all reasonable doubt.
15. The Pancha witnesses are PW.2, who is CW.3, one by name Nagendra and PW.4, who is CW.2, one by name Lokesh. They have deposed that the police took them to the police station and got the 13 S.C. No.973/2017 mahajar signed. That they do not know what was written in the mahajar. The mahajar is marked as Ex.P.1 and the signatures of the witnesses is marked as ExP.1(a) and (b) respectively. They further deposed that the police have not taken them to shiv lodge and no mahajar was written and that they have not given any statement. Further the learned Public Prosecutor has conducted the cross-examination of these witnesses. Even during the cross-examination also they have denied all the suggestions put to them. Hence, the evidence of PW.2 and P.W.4 is not of much help to the case of the prosecution.
16. Another police witness is PW.3 who is CW.14, one by name T.D.Raju, who is the Police Inspector and I.O., in this case. He deposed that he had received the file from C.W.1 and continued the investigation. Accused no.1 to 3 were absconding and later Accused no.1 and 2 appeared before him on obtaining anticipatory bail dated: 23.11.2016 and 14 S.C. No.973/2017 dated 28.11.2016 respectively. That on 23.12.2016 he completed the investigation and submitted the charge sheet to the Learned Magistrate.
17. During the cross-examination of P.W.3, who is the investigating officer in this case. He deposed and denied all the suggestion put to him by the counsel for accused persons. On considering the evidence of this witness, the evidence of this witness has to be corroborated by the evidence of other material witnesses, only then the guilt of the accused persons can be said to have been proved beyond all reasonable doubt.
18. Another Police witness is PW.5, who is CW.1, one by name A.S.Vishwas. He deposed that on receiving credible information he went to the spot at 8.50 p.m to Shiv lodge at N.D.Pet and prostitution was being carried out. That he called for C.W.2 and 3 to be panchaas. That he informed the A.C.P on telephone about the information received and notice 15 S.C. No.973/2017 was issued to the panchaas. Further he drew the record of rights which is marked as Ex.P.4 and the signature of the witness is at Ex.P.4(a). The notice is marked as Ex.P.5 and the signature of the witness is at Ex.P.5(a). He further deposed that after getting themselves searched they went near the lodge. That three persons ran away looking at them and inside the lodge there were 3 persons. That these men told that they came to get girls for money and the persons who ran away had taken money from them. Further, he deposed that three persons are accused no.9 to 11. That in the second and third floor, there were women and men in the rooms. That when enquired one lady in the room, she told her name as Shalina Begum and informed that one Gangadhar and Madhu paid her Rs.300/- and forcefully involved her in prostitution. That the person who was with Shalina Begum informed his name was Amir Sharif and the persons who ran away had taken Rs.500/- to provide girls. 16 S.C. No.973/2017 Further this witness has examined the room No.201, 202, 203 and found one Cot in each rooms, 2 and 3 Nirodh Packets and some persons who were indulged in prostitution namely Sathi Sarkar, Arjun, Kareena, Adil, Nisha, Swamy from whom Accused No.9 to 11 had taken amount of Rs.500/- for providing women. Further that witness examined the cashier table and found 5 condom packets, Rs.3850/- cash which was later sealed in a cover and he took the signature of the panchas on the same. The total cash of Rs.3850/- is marked as M.O.1 and 15 condom packets in all are marked as M.O.2. Further Mahazar was drawn for the seized articles which is at Ex.P.1 and witness signature is at Ex.P.1(c). That around 11 p.m the seized articles, victim women and accused persons were taken to the police station and FIR in Crime No.3/2016 was registered. FIR is at Ex.P.6 and witness signature at Ex.P.6(a). Voluntary statements of 7 accused persons was taken which is marked from 17 S.C. No.973/2017 Ex.P.7 to Ex.P.13. The victim women were sent to State home on 07.01.2016. On 13.05.2016 accused No.4 Shivanna was released on anticipatory bail. Further this witness identified the accused persons and deposed that he submitted the case file for further investigation to one Raju.
19. During the cross examination, he deposed that he has not registered FIR soon after receiving information and no search warrant was received. Further deposed that this aspect is not mentioned in the case diary and no written notice was issued to the staff. That he has not examined the neighbors and woman pancha witness. Further this witness denied all the other suggestions put by counsel for accused.
20. On considering the entire evidence of all the witnesses, as extracted from the depositions of P.W.2. Witness stating that:
" ನನನನ ವವಪರ ಮಡನತತದಗ ಪಲಲಸರನ ಠಣಗ ಕರದನಕಕಕಡನ ಹಕಲಗ ಮಹಜರಗ ರನಜನ ಮಡಸಕಕಕಡರನ. ಮಹಜರನಲರನವ ಒಕಕಣ ನನಗ ಗಕತತಲಲ. ಪಲಲಸರನ ಶವ ಲಡಡಗ ನನನನನನ 18 S.C. No.973/2017 ಕರದನಕಕಕಡನ ಹಕಲಗಲಲ, ಯವದಲ ಮಹಜರನ ಮಡಲಲ. ನನನ ಪಲಲಸರಗ ಹಲಳಕಯನನ ನ ಕಕಟಟಲಲ."
Further, as extracted from the depositions of P.W.4. Witness stating that:
" ಇಲಗ 2 ವರರಗಳ ಹಕದ ಪಲಲಸರನ ನನನನನ ನ ಠಣಗ ಕರದನಕಕಕಡನ ಹಕಲಗ ಮಹಜರಗ ರನಜನ ಮಡಸಕಕಕಡರನ. ಮಹಜರನಲರನವ ಒಕಕಣ 19 S.C. No.973/2017 ನನಗ ಗಕತತಲಲ. ಪಲಲಸರನ ಶವ ಲಡಡಗ ನನನನನ ನ ಕರದನಕಕಕಡನ ಹಕಲಗಲಲ, ಯವದಲ ಮಹಜರ ಮಡಲಲ. ನನನ ಪಲಲಸರಗ ಹಲಳಕಯನನ ನ ಕಕಟಟಲಲ."
Further, as extracted from the depositions of P.W.5. Witness stating that:
" ಮಹತ ಬಕದ ಆಧರದ ಮಲಲ ದಳಯ ಮನಕಚ ನನನ ಪ ಪ.ವ.ವರದ ದಖಲನ ಮಡಲಲ.
ನವಯಲಯದಕದಗಲಲ, ಮಲಲಧಕರಗಳಕದಗಲಲ ಮಹತ ಬಕದ ಬಗಗ ಸರರನ ವರಲಕಟನ ಪಡದಲಲ ಮಹತ ಬಕದ ವರಯನನ ನ ಠಣ ದನಚರಯಲ ನಮಕದನ ಮಡಲಲ. ಸಬಬಕದಗಳಗ ಲಖತವದ ಬರವಣಗ ಮನಖಕತರ ನಕಲಟಸನನಲಡಲಲ."
On considering the evidence of these witness, it goes to show that P.W.2 during the chief examination deposing that he has not seen condoms and mobile at the spot but saw while P.F was drawn. And the panchaa witnesses have completely turned hostile.
Further P.W.1 who is police witness, deposed that Rs.10,000/- was seized and turned hostile, but on the other hand P.W.5, who is the I.O, deposed only Rs.3,850/- was seized and M.O.1 also mentions about Rs.3,850/- was seized, this creates doubt on the case 20 S.C. No.973/2017 of the prosecution. Further, the prosecution was not successful to proved their case, beyond all reasonable doubt.
21. Further, the definitions of Sec. Sec.4, 5, 5(A), 6 and 9 of Immoral Traffic Prevention Act and Sec.370, 370(A)(1) r/w 34 of Indian Penal Code in short can be understood as:
Keeping a brothel or allowing premises to be used as brothel, living on the earnings of the prostitution, prostitution and in or in the vicinity of public place, whoever imports, exports, removes buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave.
22. The above explanations of the definitions have to be strictly proved for any case against the accused persons falling under Sec. Sec.4, 5,5(A), 6 and 9 of Immoral Traffic Prevention Act and Sec.370, 370(A)(1) r/w 34 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 21 S.C. No.973/2017 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 on Immoral Traffic Prevention Act. The examined witness P.W.1, P.W.3 and P.W.5 are all official witness and P.W.2 and P.W.4, who are panchaa witness have turned hostile to the case of the Prosecution and hence, Panchanama at Ex.P.1 is not proved. Basing only on the say of the official witnesses, the charges do not stand proved against the accused persons. Thus the prosecution was not successful to prove the charges against the accused persons, beyond all reasonable doubt.
23. 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 22 S.C. No.973/2017 complainant makes it doubtful to believe the version of the prosecution in toto. Based only on the evidence of these official witnesses, P.W.1, P.W.3 and P.W.5, the guilt of the accused cannot be concluded. Further, P.W. 2 and 4 are independent panchaa witness, who have completely turned hostile. Also that, no neighbor or independent witness have been made witness in this case, creates doubt on the prosecution case. The I.O. has not examined the adjacent owners of the flat nor recorded their statements. Again, as per the provisions of Immoral Traffic Prevention Act Under sec.15(2) of wherein, one woman pancha has to be secured, was also not complied with. Moreover, the adjacent owners are not examined by the prosecution, which creates doubt.
24. The evidence on record does not prove that the accused persons were carrying on brothel business on the date of alleged raid by the Police 23 S.C. No.973/2017 Inspector and his staff. Hence, this court is of the opinion that the prosecution has utterly failed to bring home the guilt of the accused persons beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused persons has committed the offence charged against them. Therefore, doubt arises regarding the case alleged against the accused persons. It is well settled principle of law that the accused persons are entitled to the benefit of such doubt. Hence, the prosecution has utterly failed to prove beyond all reasonable doubt that the accused persons were indulged in the offences as charged. Accordingly, I answer points No.1 to 5 in the Negative.
25. Point No.6: From the discussion made herein above, it is clear that the accused persons deserve to be acquitted of the offences charged against them in this case. In the result, therefore, I proceed to pass the following:
24 S.C. No.973/2017
O RDE R Acting under Section 235(1) of Cr.P.C., accused persons no.1, 2 and 4 to 11 are acquitted of the offences charged against them under sections Sec.4, 5,5(A), 6 and 9 of Immoral Traffic Prevention Act and Sec.370,370(A)(1) r/w 34 of IPC. The bail bond executed by the accused persons no.1, 2 and 4 to 11 and their surety bond shall stand canceled.
They are set at liberty forthwith. The properties at M.O.1 and 2 shall be retained until the disposal of the split-up case as registered against accused No.3 by name Madhu in C.C.19063/2017, which is committed to this court in S.C.843/2019.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in open Court on this the 23rd day of February, 2021) (SANDHYA S.) LXXI Addl. City Civil & Sessions Judge, Bengaluru, (CCH 72) 25 S.C. No.973/2017 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1 : Nagaraju
P.W.2 : Nagendra
P.W.3 : T.D.Raju
P.W.4 : Lokesha
P.W.5 : A.S.Vishwas
List of Documents exhibited on behalf of
Prosecution:
Ex.P.1 Mahazar
Ex.P1(a to c) Signature of witnesses
Ex.P.2 & P.3 Statements
Ex.P.4 Record of Reason
Ex.P.4(a) Signature of Witness
Ex.P.5 Notice to Panchas
Ex.P.5(a) Signature of Witness
Ex.P.6 FIR
Ex.P.6(a) Signature of Witness
Ex.P.7 to Voluntary Statements of
P.13 the accused persons.
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:26 S.C. No.973/2017
M.O.1 5 Notes of Rs.500/-
8 Notes of Rs.100/-
7 Notes of Rs.50/-
20 Notes of Rs.10/-
Total = Rs.3,850/-
M.O.2 15 Condom Packets
M.O.2(a) Signature of witness
(SANDHYA S.)
LXXI Addl. City Civil & Sessions Judge, Bengaluru (CCH 72)