Delhi District Court
State vs . on 15 September, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 423107/2016
Unique Case ID -: DLSW020000412010
No.
FIR No. -: 176/2010
Police Station -: Dabri
Section(s) -: 344/374 IPC, 23/26
Juvenile Justice Act, 2000
and 3/14 Child Labour
Act.
In the matter of -
STATE
VS.
JAGDISH SHARMA
S/o Late Harbans Lal Sharma,
R/o H. no. RZG/ 41/61, Dabri Extension, New Delhi.
.... Accused
1. Name of Complainant : HC Kailash Chand
2. Name of Accused : Jagdish Sharma
Section 344/374 IPC, 23/26
Offence complained of or
3. : Juvenile Justice Act and 3/14
proved
Child Labour Act.
4. Plea of Accused : Not Guilty
Date of commission of
5. : 11.06.2010
offence
6. Date of Filing of case : 11.11.2010
7. Date of Reserving Order : 10.09.2021
8. Date of Pronouncement : 15.09.2021
9. Final Order : Acquitted
Digitally
signed by DEV
CHAUDHARY
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Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Mukesh Sharma, Ld. counsel for the accused.
INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-12
4. Statement of accused and defence evidence 12
5. Arguments 13-14
6. Age of victims 14-15
7. IPC Offences 15-17
8. JJ Act Offences 17-22
9. Child Labour Act Offences 22-24
10. Other deficiencies 24-28
11. Conclusion 28-29
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 11.06.2010, an intimation was received in the police station with respect to employment of child labour in contravention of law. A raiding team was prepared and a raid was conducted at JS Engineering Works. The accused was found there and it was found that three minor children namely Rohit, Gautam and Nitin (hereinafter collectively referred to as "child victims") were employed in the factory, which dealt in moulding of electrical switches etc. It was found out that the accused used to make the Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 2 of 29 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:20:08 +0530 child victims work for more than 9 hours per day and used to pay only a meagre amount as salary. The children were thereafter rescued and produced before the Child Welfare Committee. As such, it is alleged that the accused committed the offences punishable under Section 344/374 of Indian Penal Code, 1860 (hereinafter, "IPC"), 23/26 of the Juvenile Justice Act, 2000 (hereinafter, "JJ Act") and 3/14 of Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter, "Child Labour Act"), for which FIR No. 176/2010 was registered at the Dabri Police Station, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 11.11.2010.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Sections 344/374 IPC, 23/26 JJ Act and 3/14 Child Labour Act was framed against him. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 3 of 29 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:20:15 +0530 beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : V.K. Rao (Labour officer) PW-2 : Satish Kumar (part of raiding team) PW-3 : Nitin (child victim) PW-4 : Rohit (child victim) PW-5 : Gautam (child victim) PW-6 : Satish Chand (part of raiding team) PW-7 : Rajesh Kumar (rescue officer of NGO) PW-8 : Surender Kumar (part of raiding team) PW-9 : Dr. Rajesh Kohli (treating doctor) PW-10 : Retired SI Satbir (Duty Officer) PW-11 : Rajesh Kumar (from Ashalayam) HC Kailash Chand (part of raiding team PW-12 :
and complainant)
Dheeraj Kumar (proves date of birth of
PW-13 :
minor Nitin)
Mahesh Chand Meena (proves date of
PW-14 :
birth of minor Gautam)
Savita Yadav (proves date of birth of
PW-15 :
minor Rohit)
PW-16 : Inspector Sunita Sharma (IO)
DOCUMENTARY EVIDENCE
Ex. PW1/DA,
Ex. PW1/DB
: Inspection forms.
& Ex.
PW1/DC
Ex. PW9/A,
Ex. PW9/B, : MLCs
Ex. PW9/C
Ex. PW10/A : FIR no. 176/10
Ex. PW10/B : Endorsement on rukka
Ex. PW11/A : Record of Gautam
Ex. PW11/B : Record of Nitin
Ex. PW11/C : Record of Rohit Digitally
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Ex. PW12/A : Tehrir
Ex. PW12/B : DD no. 52 B.
Mark XB : Proforma handed over to PS Dabri
Ex. PW13/A : Birth record of Nitin
Ex. PW13/B : Copy of Class X mark sheet of Nitin
Ex. PW13/C : Letter issued by Principal
Ex. PW14/A : Birth record of Gautam
Ex. PW14/B : Authority Letter
Ex. PW13/C : Letter issued by Principal
Ex. PW15/A : Birth record of Rohit
Ex. PW16/A : Site plan
Ex. PW16/B : Arrest memo
Ex. PW16/C : Personal search memo
Ex. PW16/D : Bail bonds
Mark A : Copy of age proof certificates
Mark B : Copy of application to CWC
5. Nitin (PW3) is the child victim, who took the stand and deposed that in the year 2010 he was around 13 years of age and was studying in 6th or 7th class. He deposed that since he was free in the vacations, he was searching for a job and someone offered him a job in a factory used for manufacturing of needle of clocks. The timings of the factory were 9:00 am to 4:00 pm and there was lunch time of one hour. He further deposed that he used to come to his house before his parents so that he is not caught. He further deposed that one day the police raided the premises and then they were taken to some observation home. The witness identified the accused in court and stated that the place of work was not in a good condition.
However, thereafter he deposed that there was no problem in the factory. The owner of the factory used to give him a salary of Rs. 1500/- per month.
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5.1. In cross-examination of Nitin (PW3) by the Ld. APP for the State, the witness admitted that the work of making needles as well as moulding of electrical switches was done in the factory. He denied the suggestion that the room where they used to work was in a dirty condition. He further denied the suggestion that he was not allowed to play during the working hours. During the cross examination by the Ld. Counsel for the accused, the witness stated that he did not know the name of other persons who used to work in the factory and he stated that he used to tell his sister that he is going to play as if he had told her about his work, she would not let him leave. He further deposed that he could not name any person who could depose about his working in the factory and stated that he never has gone to any NGO and specifically to Don Bosco NGO. He stated that the distance of work place from his house is about 2-3 kms and he used to start at 09:00 AM. Further, the witness stated that he used to come to his home at either 08:00 PM or 05:00 PM and thereafter stated that he used to go to his home for lunch. The witness further deposed that he was playing around and accidently reached to the factory of the accused. He stated the did not know any Rohit.
6. Rohit (PW4) is the second child victim and he has deposed that he was around 11 to 12 years of age at the time of incident. He deposed similarly to the other child witnesses and stated that he was offered a job in a factory used for manufacturing needle of clocks. He did not tell his parents and started working in the factory where the timing was from 09:00 AM to 05:30 PM. He further deposed that they were not allowed to play in the factory. He also deposed that Gautam and Jatin used to work with him and no Digitally Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 6 of 29 signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.09.15 15:20:36 +0530 salary was given to him by the owner of the factory. He further stated that the room where they used to work was small. 6.1 In cross-examination of Rohit (PW4) by the Ld. APP for the State, he admitted that the accused used to forcefully take work from him in the factory. On cross examination by Ld. Counsel for the accused, he stated that he used to go for work at around 09:00 AM and he used to come back at around 01:00 PM.
Thereafter, he used to leave after staying at the house till 01:30 PM on the pretext of playing. He deposed that there were 6-7 persons in the raiding party and out of them 3-4 were ladies. He stated that they remained in the hostel for around 1-2 weeks and thereafter their parents came to know about his stay in the hostel. He further stated that he was not taken for any medical examination.
7. Gautam (PW5) he is the third child victim, who took the stand and deposed on similar lines with the other two child witnesses. He stated that he used to work in the factory without telling his parents. One day the police raided the factory / place of work and they were taken to a child observation home. He deposed that Nitin and Rohit were also working in the factory and stated that there were two rooms and the toilet which accompanied the rooms was in dirty condition. He stated that the factory owner did not give him any salary.
7.1 During the cross-examination of Gautam (PW5) by the Ld. APP for the State, he admitted that the accused used to take work from him by force. On cross examination by the Ld. Counsel for the accused, he stated that there were 6-7 persons in the raiding party. He further admitted that they used to make needles and make holes in the needles. He stated that there were around 9-10 people Digitally signed Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 7 of 29 by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:20:42 +0530 working in the factory. Further, he deposed that there were no lady officers in the raiding party. He stated that they were taken to the police station and from there they were taken to the DDU Hospital for their medical examination. He deposed that his parents were informed by him on the same day. Further, he stated that apart from the three victims, one Raja of age 10-12 years also used to work at the factory at that time and he was present when the raid was conducted.
8. V.K. Rao (PW1) is the inspecting officer. He deposed on the oath that in the year 2010 he was posted in the office of District Labour Commissioner. On intimation regarding children being employed as labour, he shared the same with SHO PS Dabri and the NGO Don Bosco. Thereafter, a raid was conducted and he alongwith labour Inspector Surender PW-8, Satish PW-6, police officials and NGO officials went on the raid where the accused was present and the work of preparing electrical switches was going on. Three children namely Rohit, Gautam and Nitin were found and were rescued. He stated that the children revealed that the working condition was not hygienic.
8.1 During the cross-examination, V.K. Rao (PW1) stated that the raid was conducted by the 6-7 persons of the labour department, NGO etc. apart from another 6-7 police officials. He admitted that there were 10-12 other adults working in the factory and when they reached the factory, the work of packaging and assembling electric switches was going on. All the three children were sitting separately. He stated that the children were joining part of the electrical switches and then they were putting them in boxes. He further stated that all the forms were filled by the inspector under Digitally signed by Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 8 of 29 DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:20:49 +0530 his instructions. He further stated that the area of the factory was about 72 sq. yards. He further stated that he cannot say if any machinery was seized or not. It was further elicited from the witness that he did not try to contact the parents of the rescued children and stated that in their record no arrival or departure entry was made.
9. Satish Kumar (PW2) stated that he was posted as Labour Inspector on the date of incident and when they reached at the police station, raiding team was prepared at around 11:00 AM. They left the spot and raided the house of the accused from where three children were rescued. He had further identified the accused. 9.1 During the cross-examination, Satish Kumar (PW2) stated that there were about 8-10 members of the raiding party and also admitted that there were also around 7-8 males working in the factory. He stated that the children were working on a machine preparing mouldings and admitted that he did not know the exact work done by the children or the majors. He further stated that he did not know if any articles were was seized from the factory. Further, the witness admitted that he did not notice whether the factory was involved in production, assembling or packaging.
10. Satish Chand (PW6) is the labour surveyor who stated that on the date of incident, he joined the raid and had found three children working as workers, who were assembling switches. He stated that the children did not disclose their salary. The witness further could not identify accused despite the accused being shown to him specifically. He stated that as per the statement of children, the duty hours were around 9 hours.
10.1 During the cross-examination, Satish Chand (PW6) stated that no lady official was present in the raiding team and other Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 9 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:20:56 +0530 children were found collecting pins for switches and assembling the material of electric switches. He further admitted that the age of the children was not verified. The witness stated that the accused was not present in the factory at the time of the raid. Further, he deposed that there were around four people in the raiding team.
11. Rajesh Kumar (PW7) is the rescue officer of the NGO who deposed on similar lines and stated that the children were recovered from the factory. He deposed that in the factory he saw the children were working on making needles of watch / wall clocks. He further stated that the children told the labour inspector that they used to work in the factory from 09:00 AM till 07:00 PM. However, he then stated that no exact time was told by the children. 11.1 During the cross-examination, Rajesh Kumar (PW7) stated that there were around 10 members in the raiding party.
12. HC Kailash Chand (PW12) who is the complainant in the present case, entered into the witness box and deposed that on 11.06.2010, he had conducted the raid alongwith other persons. When they had reached the factory, they found that electrical goods were being manufactured there. The working condition was not good and there was no proper space for sitting. The goods were also scattered across the floor. He has deposed about the recovery of children and has also deposed about taking the children to Don Bosco Ashalayam. Thereafter, he has deposed about the preparation of the tehrir.
12.1 During the cross-examination, HC Kailash Chand (PW12) admitted that he did not made any DD entry with respect to receipt of information from the labour inspector. He further stated that no photographs of the spot were taken and stated that no arrival Digitally signed by Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 10 of 29 DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:21:01 +0530 entry was made in the daily diary of the police station. He stated that they remained on the spot for about half an hour. Further, he admitted that there was no document on record with respect to handing over the custody of the children to the officials of Don Bosco.
13. Insp. Sunita (PW16) is the IO of the present case. She has deposed on oath that on 11.06.2010, she was posted as sub- inspector at PS Dabri and was marked the investigation of the present matter. She stated that she had conducted investigation on the spot and deposed that the children used to work in extremely unhygienic and unsafe conditions. She further deposed that the children used to manufacture switches and watch needles and stated that the children were already removed before the registration of FIR and before she was marked the investigation. She deposed about preparing the site plan, conducting the medical examination of the children and arrest of the accused. Thereafter, the witness collected the age proof of the children and produced the children before the Child Welfare Committee for the necessary orders. She concluded the investigation and prepared the chargesheet. 13.1 During the cross-examination, Insp. Sunita (PW16) stated that she had made the departure entry while leaving the police station. She further stated that there was lots of moisture and the place was not clean, however, she admitted that she has not mentioned about the unhygienic and unsafe conditions of the spot in the site plan. She further admitted that nothing was seized by her during the raid and admitted the fact that the site plan does not bear her signature. It was further elicited from the witness that no photograph or video of the spot was made and no attendance Digitally signed by Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 11 of 29 DEV DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:21:07 +0530 register or documents were seized with respect to the manufacturing. The witness further admitted that she did not know as to how the manufacturing process was conducted and stated that she did not find any machine at the spot when she reached there. She deposed that manufacturing of only electrical switches and watch needles was done there. The witness admitted that she did not make any attempt to find out as to how the manufacturing process was conducted in the factory. Further, she stated that the accused was arrested in the police station on the date of incident and admitted that no board etc. regarding the firm was found on the spot. She stated that she had enquired from the neighbour during the investigation, however, the statement was not recorded. She denied the suggestions of the defence that she did not seize anything any material as she never visited the spot.
14. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
15. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that he is innocent and has been falsely implicated in the present case. He stated that he wished to lead defence evidence. However, vide a separate statement, the accused closed the same without adducing any evidence. Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 12 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:21:13 +0530 ARGUMENTS-
16. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
17. It is argued by the ld. APP for the State that all the ingredients of the offences are fulfilled in the present case. He has argued that the minor children have deposed about the work that they were forced to do by the accused and the working conditions of the facility. The identity of the accused is proved beyond reasonable doubt and the testimony of the other witnesses who were part of the raid is consistent on major points. The minor inconsistencies, if any, are to be ignored. He contends that the documentary evidence has helped in proving the offences beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
18. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the evidence of the child witnesses is not reliable, as it suffers from various inconsistencies and improvements. Further, the fact that raid was conducted by the officials is also doubtful, owing to the inconsistencies apparent from the various testimonies of the raiding officials. It is his contention that the accused has been falsely implicated by the police at the behest of the NGO Don Bosco, only to extort money from the accused. As such, it is prayed that the accused be acquitted of the said charges.
19. In the present case, the accused has been charged under Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 13 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:21:19 +0530 three different statutes. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards. Since the case of the prosecution hinges on the evidence of the victims- i.e. the three minors, their testimony is of paramount importance.
AGE OF VICTIMS -
20. At the outset, it is established in the present case that all the victims were minors (below 18 years) on the date of incident. Ld. counsel for the accused has argued that no bone ossification test was conducted to prove the age of the victims. However, in the opinion of this Court, there is sufficient material on record to point that the victims were minors on the date of incident. PW3 Nitin has stated that he was around 13 years of age on the date of incident. PW13 has proved the school record of victim Nitin, as per which the date of birth of Nitin is 03.11.1997 (below 13 years on date of offence). PW4 Rohit has stated that he was around 11-12 years old on the date of incident. PW15 has proved the school record of victim Rohit. As per the record, date of birth of Rohit is 13.06.1998 (below 13 years on the date of incident).
21. PW5 Gautam has stated that he was 12 years old at the time of the incident. However, PW14 is the official from the school of Gautam, who has proved on record documents depicting the date of birth of victim Gautam as 10.05.1995 (more than 15 years on the Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 14 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:21:45 +0530 date of incident). These documents are the admission form and the school leaving certificate, Ex. PW15/A, of the victim. Therefore, since victim Gautam was of more than 15 years on the date of incident, offence under Section 3 of the Child Labour Act is not attracted qua him, due to the reason that under Section 2(ii) of the Child Labour Act, a "child" includes only those children who have not completed fourteenth year of age. However, for the offences under the JJ Act, the age of the victim should not be more than 18 years, in terms of Section 2(k) of the JJ Act and for offences under Section 344 and 374 IPC, the age of the victim is immaterial.
IPC OFFENCES-
22. The accused has been charged under Section 344 and 374 of the IPC. The provisions read as under -
"Section 344 IPC - Wrongful confinement for ten or more days.-- Whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Section 374 IPC - Unlawful compulsory labour.--Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
In order to prove the offence under Section 344 IPC, wrongful confinement of the victims by the accused, in terms of Section 340 IPC, is to be proved for a period of more than 10 days. Under Section 374 IPC, the prosecution has the burden to prove that the accused compelled the victims to unlawfully labour without the will of such victims. Wrongful confinement is defined as wrongful restraining of a person within certain circumscribing limits. Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 15 of 29 DEV CHAUDHARY CHAUDHARY Date:
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23. In the present case, the testimonies of the child victims do not point towards any confinement by the accused person. PW3 Nitin has deposed that he was in search of a job, and was employed in the factory. His testimony is suggestive of the fact that he used to go to work daily and return back home, before his parents arrived.
He has also deposed about the timing of the factory and that they were free to do whatever in the lunch time. Infact, in his cross examination, he has stated that he used to come home for lunch. PW4 Rohit has also deposed similarly and stated that he used to go to work daily in the factory and come back for lunch. Similar is the deposition of the last child witness, PW5 Gautam, who has deposed that since he had school vacations, he took the job at the factory. He used to come home before his parents so as to avoid being caught. Therefore, there is no deposition to the effect that the accused wrongfully confined any of the child victims, either for a small duration or for a period of 10 days. Hence, there is absolutely no evidence qua offence under Section 344 IPC.
24. Section 374 IPC flows from Article 23 of the Constitution of India, which prohibits forced labour. Under this provision, compulsion by the accused is to be proved. In this regard, PW3 Nitin has not deposed any compulsion by the accused. As discussed, PW4 Rohit and PW5 Gautam have deposed that they took the job willingly. Thereafter, PW4 did not depose about the labour against will in his examination-in-chief. However, he admitted the suggestion of the Ld. APP in cross examination that the accused used to take work forcefully from him, without any further elaboration on the point. A similar suggestion was admitted by PW5 Gautam. However, bald statements without any details are not Digitally signed by DEV CHAUDHARY DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 16 of 29 CHAUDHARY Date:
2021.09.15 15:21:58 +0530 sufficient to prove the offence, more so when the statements are in replies to the suggestions put in cross examination. It is settled law that the testimony of the witness is to be read as a whole. From the overall appreciation of the testimony of these witnesses, it is not borne out that they were compelled to labour at the factory.
JJ ACT OFFENCES-
25. The accused has further been charged for the offences under Section 23 and 26 of the JJ Act. For purposes of ready reference, the offences are reproduced below -
"Section 23 JJ Act - Punishment for cruelty to juvenile or child.-- Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
Section 26 JJ Act - Exploitation of juvenile or child employee.-- Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."
Thus, for the prosecution to prove the offence under Section 23 of the JJ Act, it has to be proved that the accused, while having charge of the minor victims, assaulted/exposed/abandoned or wilfully neglected the victims in such a manner to cause mental or physical suffering to the victims. Under Section 26 of the JJ Act, it has to be proved that the accused procured the victims for hazardous work and thereafter either kept the victims under bondage or withheld their salary or used the same for his own purposes.
Digitally
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DEV CHAUDHARY
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26. There is no evidence on record that the child victims were either assaulted or abandoned or neglected by the accused. The MLCs of the child victims, Ex. PW9/A, PW9/B and PW9/C are on record. As per the MLCs, no injury was seen on the child victims at the time of their medical examination, right after the incident. Moreover, none of the prosecution witnesses including the child victims have deposed about any neglect or assault.
27. In so far as offence under Section 26 JJ Act is concerned, the prosecution has failed to fulfil all the ingredients of the offence. As is evident from the bare reading of the provision, the ostensible procurement of the minor child is required to be proved. Thereafter, it has to be proved that the purpose of such procurement was for hazardous employment. Further, it is to be proved that after such procurement, the accused kept the minor in bondage and withheld his earnings or used the earnings for his own purposes. Each ingredient is discussed separately below.
28. Firstly, the evidence on record is that the children were actively looking for employment themselves during their vacation periods. Thereafter, they secured a job at the factory of the accused, where they worked on making needles for wall clocks. Thus, the element of ostensible procurement is missing. Secondly, the prosecution has failed to adduce any evidence to point that the work done by the children was hazardous in nature. PW1 is the labour officer, who has deposed that the work of preparing electrical switches was going on at the factory. However, in the cross examination, he clarified that the children were joining parts of electrical switches and were also putting those switches in boxes.
Digitally signed by PW2, who was an employee of the same Department and was a part DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 18 of 29 2021.09.15 15:22:08 +0530 of the raid, admitted in his cross examination that he did not know the exact work being done by the children in the factory. He stated that the children were working on machines, however no prosecution witness has deposed about the type of machines being used. Admittedly, no such machine was seized during the raid. Infact, PW8 in his cross examination deposed that there were no machines.
29. Therefore, it is safe to conclude that the prosecution has failed to prove the hazardous nature of the employment. The child victims PW3, PW4 and PW5 have deposed that the work pertained to manufacturing of needles for clocks. Thus, the prosecution has failed to adduce any evidence to point towards the nature of employment. Thirdly, there is no evidence that the child victims were kept in bondage and the earnings were withheld. The word 'and' in the provision suggests that the conditions should be fulfilled conjointly. The testimony of the victims that they used to work and go home daily does not suggest any bondage. Whereas PW3 has stated that he was paid a sum of Rs. 1,500 per month, PW4 has stated that he did not was not paid. However, it remains unexplained as to why was the witness continuing with the job when he was not paid. Admittedly, the witness took the job as he wanted to purchase a cycle. However, there is no elaboration on the point as to whether any salary was agreed upon or the accused later refused to pay the agreed amount. PW5, who has also deposed similarly to PW4, is also silent on this point.
30. At this juncture, it would be apposite to highlight that the testimony of the child victims does not inspire confidence as a whole. The inconsistencies on material points are discussed below - Digitally signed by DEV CHAUDHARY DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 19 of 29 CHAUDHARY Date:
2021.09.15 15:22:17 +0530 a. Timings - The witness PW3 in his testimony has deposed that the work timings were from 9:00 am till 4 :00 pm. Thereafter, he said it was till 8:00 pm. PW4 has deposed that the timing was from 9:00 am till 5:30 pm. Further, PW3 has deposed that they used to play in the lunch hour from 1:00 pm to 2:00 pm in the factory and they were free to do whatever they wanted to do during this period. However, later he changed his stance to say that he used to go home for lunch. On the contrary, PW5 has deposed in his statement that they used to bring lunch from their homes. PW4 on the other hand stated that they were not allowed to play in the factory.
b. Co-workers - PW3 has stated that Rohit and Gautam used to work with him. However, in his cross examination, he stated that he did not know any Rohit. PW4 has stated that only three children used to work in the factory. However, PW5 has stated that one Raja, aged around 10-11 years, also worked at the factory and was present at the time the raid was conducted. However, there is no mention of any Raja in the prosecution's version. Interestingly, no other adult co- worker has been examined by the prosecution, despite there being evidence on record that there were other adult co- workers in the factory at the time of raid. c. Stay at Observation Home - PW3 is his testimony has stated that after the raid, they were taken to a Child Observation Home for 3 days. Similar is deposition of PW5. In his cross examination, PW3 stated that he never went to any NGO or specifically Don Bosco NGO. PW5 in his Digitally signed by DEV CHAUDHARY Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 20 of 29 DEV CHAUDHARY Date:
2021.09.15 15:22:31 +0530 testimony has stated that they remained in the hostel for around 1-2 weeks. Therefore, there is a substantial difference in the testimonies of the witnesses with respect to this fact. Pertinently, PW4 has deposed that the parents of the witness came to know after two weeks about their whereabouts. It is highly unlikely that parents of a minor child would not seek any police help if the child is missing for such a long period. d. Medical examination - PW4 has deposed that he was not taken to any hospital for medical examination. However, his MLC Ex. PW9/B is on record. PW5 on the other hand has admitted being medically examined at DDU Hospital. e. Raiding party - PW4 has deposed that there were 6-7 people in the raiding party, which included 3-4 ladies. In contradiction to this testimony, PW5 has deposed that there was no lady official in the raiding team.
31. Therefore, it can be safely held that in absence of any concrete evidence to prove the contrary, the bald statements of the child witnesses, whose testimonies are anyways not very reliable, does not prove the offence under Section 26 of the JJ Act.
32. At this stage, another aspect, although not argued, is to be considered. Under the JJ Act of 2000 (as applicable on the date of offence), the Juvenile Justice Board has been constituted to deal with the offences under this Act. Although in terms of Section 6 of the Act, the Board has exclusive jurisdiction where the offender is a juvenile in conflict with law, there are certain situations envisaged under the Act, whereby adults are to be tried before the Juvenile Justice Board. Under the Juvenile Justice (Care and protection of children) Rules, 2007 framed by the Central Government and Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 21 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:22:38 +0530 similar rules framed by the Delhi Government in 2009 by the name of Delhi Juvenile Justice (Care and protection of children) Rules, 2009, Rule 10(b) provides that the functions of the Board include taking cognizance for crimes committed under Sections 23 to 28 of the Act. The Hon'ble Bombay High Court, while interpreting the Central Rules, has held in Jaiprakash Suru Shetty vs. State of Maharashtra 2017 SCC OnLine Bom 1154 as under-:
"13. Under Sub-Section (1) of Section 68, Rule making power is conferred on the Central Government as well as on the State Government to make Rules to carry out purposes of the said Act of 2000. Clause (b) of Rule 10 of the said Rules, as stated earlier, confers power on the Board to take cognizance of the crimes committed under Sections 23 to 26 and 28 of the said Act of 2000. There is nothing either under the said Act of 2000 or under the said Rules which confers a power on the Board of transferring the cases of adult offenders under Sections 23 to 26 and 28 to regular criminal Courts under the Code of Criminal Procedure, 1973 after taking cognizance of the offences. Therefore, after taking cognizance, the offences will have to be tried by the Board. If any other interpretation is made, it will render clause (b) of Rule 10 otiose or redundant."
Accordingly, in view of the above judgment, the Juvenile Justice Board has the jurisdiction to try the offender for the offences charged in the present case under Section 23 and 26 of the JJ Act, 2000.
CHILD LABOUR ACT OFFENCES-
33. Moving forward, the accused has been charged under Section 3 read with Section 14 of the Child Labour Act. The provisions are as under -
"Section 3 Child Labour Act - Prohibition of employment of children in certain occupations and processes. --No child shall be employed or permitted to work in any of the occupations set forth Digitally signed by in Part A of the Schedule or in any workshop wherein any of the DEV DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 22 of 29 2021.09.15 15:22:43 +0530 processes set forth in Part B of the Schedule is carried on: Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government.
Section 14 Child Labour Act - Penalties. -- (1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years.
(3) Whoever--
(a) fails to give notice as required by section 9; or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register; or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of this Act or the rules made thereunder, shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both."
Under Section 14 of the Child Labour Act, the prosecution has to prove that the accused employed the child victims either for an occupation mentioned under Part A of the Schedule to the said Act or processes mentioned under Part B of the Schedule to the said Act, thus violating Section 3 of the said Act.
34. It was the bounden duty of the prosecution to prove as to under which entry of either Part A or Part B of the Schedule the work undertaken by the minor victims in the present case, falls. However, no such evidence has been led. Bare perusal of Part A reveals that none of the entries would involve the work done by the child victims. Under Part B, either entry 18 or entry 38 might have been relevant. Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 23 of 29 2021.09.15 15:22:49 +0530
35. However, as discussed above, there is no specific deposition as to the nature of work and the processes involved in the factory. As per the testimony of the minor victims, they worked on manufacturing of needles for clocks. PW5 has stated that they used to make needles and make holes in needles. PW1 has stated in his cross examination that children were joining parts of electrical switches and were also putting those electrical switches in boxes. No such switches, boxes, packaging material etc. were seized during the raid. Since the raid was conducted with prior preparation, there is no explanation as to why no pictures were taken of the work involved and the condition of the factory. PW12 and PW16 have admitted not taking any photographs/video of the spot. However, no explanation has been offered in this regard. Such evidence would have certainly invigorated the case of the prosecution. Further, the testimonies of PW2, PW6, PW8 and PW12 are not in sync in this regard. Therefore, as already discussed above, since the prosecution version on this point is not consistent, it would be unsafe to rely upon the testimony of witnesses with respect to the work done by the child victims.
36. Since the nature of work is not proved beyond reasonable doubt, the applicability of Section 14 of the Child Labour Act remains doubtful.
OTHER DEFICIENCIES -
37. Ld. counsel for the accused has raised further contentions to argue that no such raid took place and the story of the prosecution is fabricated. He contends that all the investigation was Digitally signed by DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 24 of 29 DEV CHAUDHARY CHAUDHARY Date:
2021.09.15 15:22:54 +0530 done while sitting in the Police Station and the result of the same is a defective investigation, which could only go in favour of the accused. Refuting his claims, Ld. APP for the State has argued that mere defect in investigation cannot be the ground of acquittal.
38. In this regard, this Court is of the opinion that there are certain glaring loopholes in the version set up by the prosecution. The same are discussed point wise below -:
(i) Members in the raiding team - The prosecution has examined as many as six witnesses to prove the raid. Out of these six witnesses, PW1, PW2, PW3 and PW8 are from the Labour Department. PW7 is from the NGO Don Bosco and PW 12 is the police official who was part of the team. PW4 and PW5 have stated that there were 6-7 persons in the raiding party. PW1 has stated that there were 6-7 persons from the labour department and the NGO and additionally there were 6-7 police officials, thus taking the number to around 12-13 persons. PW2 has said that there were 7-9 members. On the other hand, PW6 has stated that there were only 4 persons in the raiding team. Therefore, the number of members in the raiding team is not established.
(ii) Female members in raiding team - PW4 has deposed that there were 3-4 females in the raiding team. PW8 has also deposed about the fact. PW12 has deposed that W/Ct. Dipti and W/HC Seema had also reached the spot. These police officials have not been examined by the prosecution.
However, PW5 and PW6 have categorically denied about the presence of any females in the raiding team. Thus there Digitally is no cogent evidence about the composition of the raiding signed by DEV CHAUDHARY DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 25 of 29 CHAUDHARY Date:
2021.09.15 15:23:00 +0530 team.
(iii) Layout of the factory - As per the site plan Ex. PW16/A, the factory had four rooms and all the child victims were found in one room. PW2 has deposed that there was one big room at the ground floor. PW3 and PW5 have stated that there were two rooms. PW7 has deposed that there were two or three rooms. Therefore, there is no consistent testimony with respect to the layout of the factory. Pertinently, the site plan Ex. PW16/A does not bear the signatures of the IO PW16 and the said fact has been admitted by the IO in her cross examination. Further, the IO PW16 has admitted in her cross examination that the site plan does not depict the unhygienic condition of the factory in any manner. Thus, the site plan cannot be relied upon.
(iv) No departure/arrival entry or FIR - PW12 is the complainant in the present case. He has deposed on oath that a labour inspector had come to the Police Station on the date of incident and had informed him about the rescuing of child labour. On this information, the witness accompanied the raiding team allegedly vide DD no. 46B, which has not been proved. Surprisingly, the witness has admitted in his cross examination that no entry was made in the daily diary with respect to the receipt of the said information. It appears that without any written information or order, the police official straightaway conducted the whole raid. Admittedly, the FIR was registered later during the day, at around 8:30 pm. The raid was already over by 3:00-4:00 pm. Further, no arrival Digitally entry was made in the daily diary after the raid was DEV signed by DEV CHAUDHARY CHAUDHARY Date:
Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 26 of 29 2021.09.15 15:23:06 +0530 completed. It is pertinent to mention here that the duty to record the departure and arrival is mandatory for the police officials, as per Rule 49, Chapter 22 of the Punjab Police Rules, 1934. The IO PW16 has also admitted not making any departure or arrival entry for the raid conducted by her after the registration of the FIR. Thus, the fact that the raid took place is rendered doubtful without any supporting documentary evidence to corroborate the already shaky ocular testimony of the prosecution witnesses.
(v) No statement under Section 164 CrPC - The child witnesses were rescued by the police and taken to the Hospital for medical examination. The IO took no steps to get the statement of the child victims recorded under Section 164 CrPC, before a Magistrate.
(vi) Arrest of accused - PW2 has deposed that at the time of the raid, the accused was present at the spot and was supervising the work. PW1 has deposed similarly. PW6, who has failed to identify the accused from the dock, has deposed that the accused was not present in the factory at the time of the raid. The IO PW16 has stated in her cross examination that the accused was arrested in the Police Station on 11.06.2010, i.e., the date of the raid. However, the arrest memo of the accused, Ex. PW 16/B depicts the date of arrest as 12.06.2010 at 4:30 am. Further, as per the memo, the accused was arrested from RZ 41/61, Dabri Extension, New Delhi and not the Police Station, as stated by the IO.
(vii) No statement of parents - The child victim PW4 has Digitally deposed that the parents came to know that he was in the signed by DEV CHAUDHARY DEV Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 27 of 29 CHAUDHARY Date:
2021.09.15 15:23:14 +0530 hostel after a period of two weeks. The IO has not deposed about recording the statement of the parents of the child victims. There is further no deposition to show as to when and how the parents of the child victims were informed about the rescue.
39. Thus, there are material inconsistencies and deficiencies in the case set up by the prosecution. Even though it is settled that tainted investigation is not the sole ground for acquittal, as this would tantamount to playing into the hands of the investigator {See: Karnel Singh vs. State of M.P. 1995 (5) SCC 518}, the peculiar circumstances of each case are to be taken into account. The inescapable conclusion of the above discussion is that the investigation in the present case was defective and it cannot be relied upon. The possibility of fabrication and false implication cannot be ruled out and the defense of the accused that the investigation was conducted in the Police Station and the raid was never conducted, appears to be plausible. Reliance on such tainted investigation would be unsafe {See: State of A.P. vs. Punati Ramnulu AIR 1993 SC 2644}.
CONCLUSION -
40. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The star witnesses of the prosecution are the child victims, whose testimonies cannot be relied upon beyond reasonable doubt, owing Digitally to the contradictions and inconsistencies. Further, the other signed by DEV DEV CHAUDHARY Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 28 of 29 CHAUDHARY Date:
2021.09.15 15:23:19 +0530 witnesses examined by the prosecution are also not reliable and the accused has been able to punch holes in the prosecution's version. Additionally, the defective investigation in the present case has crumbled the whole case of the prosecution.
41. Resultantly, the accused Jagdish Sharma is entitled to benefit of reasonable doubt and is hereby held not guilty of the offences punishable under Section 344/374 of the Indian Penal Code, 1860, Sections 23/26 of the Juvenile Justice Act, 2000 and Section 3/14 of the Child Labour Act, 1986. He is hereby acquitted of all charges.
ORDER -: ACQUITTED Pronounced in open court on 15.09.2021 in presence of accused person.
This judgment contains 29 pages and each page has been signed by Digitally signed the undersigned. DEV by DEV CHAUDHARY CHAUDHARY Date: 2021.09.15 15:23:27 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi Cr. Case No. 423107/2016 STATE VS. JAGDISH SHARMA Page 29 of 29