IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.334/2019 Between:
The State by V.V.Puram Police Station, Bengaluru Rept. by State Public Prosecutor High Court Building Bengaluru - 01 … Appellant (By Sri.Vijaya Kumar Majage, Addl.SPP) And:
Vasantha W/o Yamaiah Aged 40 years Residing at Lakhman Goda House Muneswara Block Girinagar, Bengaluru – 560 085 … Respondent (By Sri.T.S.Gurunath, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., pleased to grant leave to file an appeal against the judgment and order dated 02.08.2018 passed by the 50th Additional City Civil and Sessions Judge, Bangalore in SPL.C.C.No.146/2017 acquitting the accused/respondent for the offence P/U/S 370(A)(1), 370(4) of IPC and Section 3, 4 of I.T Act.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T This Appeal has been preferred by the State challenging the legality and correctness of the judgment and order of acquittal passed by the 50th Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.146/2017 dated 02.08.2018 2. I have heard the learned Additional SPP Sri Vijaya Kumar Majage for the appellant-State and learned counsel for the respondent-accused remained absent.
3. The case of the prosecution in brief is that prior to 24.09.2016 the victim was working as house keeper in KIMS hospital. Accused No.1 who was the co- worker took her to the house and sent the victim girl PW.3 for prostitution along with other men and she used to gain some amount out of it. It is further alleged that the accused No.2 also used to send the victim with other persons for the purpose of indulging her into prostitution. On the basis of complaint, the case was registered after the victim has been rescued by BOSCO Organization. After investigation, the charge sheet was filed. The learned Special Judge took the cognizance and secured the presence of the accused and his plea was recorded. The accused pleaded not guilty, she claims to be tried. As such, the trial was fixed.
4. In order to prove the case of the prosecution, the prosecution got examined 10 witnesses as PWs-1 to PW-10 and got marked 16 documents as per Ex.P1 to Ex.P16. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material as against her but she denied the same. The accused neither led any defence evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the trial Court acquitted the accused.
5. The main grounds urged by the learned Additional SPP are that the judgment and order of acquittal passed by the Court below is contrary to the material placed on record, the same is liable to be set aside.
6. It is his further submission that the reasons assigned for acquittal are not based on the evidence. It is his further submission that PWs-1, 3, 4 and 7 have categorically deposed with regard to the alleged incident and engaging the victim for the prosecution by accused Nos.1 and 2. It is his further submission that PW-7 is the doctor who examined the victim has clearly stated that the hymen is torn due to the sexual assault. Under such circumstances, Court below ought to have convicted the accused. It is his further submission that PW-3 victim has clearly stated in her evidence that the accused-respondent used to send her for prostitution and she used to collect money and in that light the ingredients to Section 4 of the Act is also attracted. He further submitted that without considering the said factual matrix, the trial Court has erroneously acquitted the accused. On these grounds, he prays to allow the appeal, to set aside the impugned order and convict the accused.
7. The learned counsel for the respondent has remained absent.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the deposition and the documents made available by the learned Additional SPP.
9. In order to prove the case of the prosecution, it has got examined 10 witnesses. PW.1 is the complainant, she is working as a superintendent in Nursing Home and she has deposed with regard to the alleged incident and she has deposed that she has been brought to the BOSCO Vatsalya Bhavan and as per the direction of the Women and Child Welfare Department, she has been taken admission in the said institution and she has deposed that she has not made any enquiry for what reasons she has come out of the house and only when the victim has disclosed, on the basis of the said say, she has filed a complaint.
10. PW.2 is the WPC who has taken the victim to the hospital for the purpose of medical checkup. PW-3 is the main star witness and the victim, in her evidence she has deposed that the parents are not alive and she used to stay in grand parents house and she has been brought and engaged as a house keeper and at that time when the victim came in contact with accused No.1, she used to send her along with other boys and she used to collect money and she never use to pay any amount to her. She has further deposed that she used to send victim with the boys for a period of three months for the purpose of prostitution. She has further deposed that she has been to the village and intended to file the complaint and could not file the complaint and when she came and was waiting in majestic at that time BOSCO brought her to the said house or residence. She disclosed the same and they made an enquiry on the basis of the same then complaint was registered and she has deposed that they have stated as per Exs.P2 and P4. She has identified the signature.
11. During the course of cross-examination, she has deposed that she was working in KIMS hospital on contract basis and she has also deposed that there was some enmity between one Kempanna and accused No.1, and has made galata for having not paid adequate money. She has further admitted that family members of the house were making galata for having not paid any amount for having come to Bengaluru and working here. She has further deposed that she has not given any appointment order. Further in her cross- examination, she has not shown the house of the accused No.1 and she has shown her ignorance about the neighboringhood of accused No.1. She has admitted that if she has been sent with the boys, the consent would be illegal and she has not filed any complaint to the police against the said act and other suggestions have been denied.
12. PW-4 is the co-coordinator working in Vatsalya Association. She has deposed that the victim PW.3 was known to her and after one month, she used to go to the house of accused No.1 and she treated her well. Thereafter, she started to send her along with the boys for illegal activities. Even she has also deposed that the victim has also stated the said fact to her. Further, she has deposed that the victim told that she had been to her grand-parent house, when she came back, she found in BMTC bus stand on 25.09.2016, the said victim has been taken to BOSCO Association and after the conciliation, the complaint was filed. During the course of cross-examination, this witness has deposed that if any orphans children are found immediately, first they will inform the same to the police and thereafter, they will take them to the association. But in the instant case, no such procedure has been followed. She has shown her ignorance whether the complaint has been filed for having found the said victim.
13. PW.5 is the cleaner, working in KIMS hospital. She has not supported the case of the prosecution and she has been treated as hostile.
14. PW.6 is the Police Constable, who took the victim to the hospital and collected the material.
15. PW.7 is the Doctor, who is working as an Associate Professor. She has deposed that she has examined the victim and has given the report as per Ex.P8. She has further deposed that the victim told that accused No.1 has used her for the purpose of prostitution and there were old signs of sexual assault. She has been acquainted with the intercourse and she has identified Ex.P8. Nothing has been elicited from the mouth of this witness.
16. PW.8 is the PSI, who received the complaint and after investigation, he has also partly investigated the case.
17. PW.9 is the house keeping staff, who was working in the same institution. She has not supported the case of the prosecution.
18. PW.10 is the Pancha to Spot Mahazar at Ex.P2. She has also not supported the case of the prosecution and she has been treated as hostile.
19. On careful perusal of the evidence of these witnesses, the main ingredients, which are necessary to constitute the offences under Sections 366A, 370A and 370 of IPC are not going to be satisfied and none of the ingredients have been proved by the prosecution from the depositions of PWs.1, 3, 4 and 7. Under such circumstances, I am of the considered opinion that the trial Court after considering all the materials has come to a right conclusion and has rightly acquitted the accused.
20. It is the specific contention of the learned Additional Special Public Prosecutor that the respondent/accused has also been charge sheeted under Sections 3 and 4 of the Immoral Traffic Act.
Though during the course of evidence, victim – PW.3, has deposed that accused No.1 by reposing her confidence, has taken her to the house and she used to send her for involving herself into prostitution and also used to collect the amount from such persons. But on close reading of the evidence of the victim, during the course of cross-examination, she has admitted the fact that there was some dispute between one Kempanna, who is the contractor working in KIMS Hospital and accused No.1 and it is further admitted that for having not paid the salary, accused No.1 has made the galata. Because of that, a false complaint has been registered.
21. Even the evidence of the victim, if it closely scrutinized, it is the case of the prosecution that accused No.1 has taken her to the house and from there, every week she used to send her for prostitution along with the male members, who are the neighbourers and other details of the house of accused No.1, has not been categorically stated by the victim. If really, she has been taken to the house of accused No.1 and she has been involved in the prostitution, under such circumstance, details of the house and other details should have been given by the victim.
22. Be that as it may. Even her evidence clearly goes to show that she left the hospital to go to the village and at that time, she is intending to file the complaint. But for the reasons best known to her, she has not filed any complaint and even after when she came back to Bengaluru City, she has not filed any complaint. But only when she has been taken to BOSCO Association and made an enquiry there, she disclosed about the incident. On the basis of the said say, a complaint has been got registered.
23. Leave apart this, even when the said victim was found in BMTC Bus stand, no information or a complaint has been given to the police by BOSCO Association, which is mandate of law. If really, she has been rescued from the BMTC bus stand, under such circumstance, immediately as per the procedure, the said association could have informed the same to the police.
24. I am conscious of the fact that the persons, who are involved in trafficking of women, are committing a grave social offence as against the society. Even as against the victim is concerned, if the satisfactory material is not produced before the Court, under such circumstances, only on mere suspicion, the accused cannot be convicted.
25. In that light, the evidence insofar as Section 4 of the Immoral Traffic Act is concerned, is also not satisfactorily brought on record so as to bring home the guilt of the accused.
26. Looking from any angle, the prosecution has not placed good material and convincing evidence so as to come to the conclusion that the accused has committed the said offence.
In that light, the appeal being devoid of merit, the same is liable to be dismissed and accordingly, it is dismissed.
SD/- JUDGE HB/VBS