Delhi District Court
State vs . Ashok on 2 March, 2020
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL SESSIONS JUDGE02: CENTRAL DISTRICT:
TIS HAZARI COURT: DELHI.
STATE Vs. ASHOK
FIR No. 260/2015
PS : Chandni Mahal
U/s: 370/374 IPC, Section 23/26 J.J. Act,
Section 3/14 Child Act &
Section 16/17/18/19 of Bounded Labour Act.
1. SC No. of the case : 843/17
2. Date of commission of offence : 21.09.2015
3. Name and address of accused : Ashok S/o Sh. Maheshi,
R/o H. No. 2386, Gali Ravidas,
Sitaram Bazar, Delhi110 006 &
Permanent address: Village
Kadjhanwa, PS Jogiya, Distt. Sidharth
Nagar, Uttar Pradesh.
4. Offence complained of : u/s 370/374 IPC, Section 23/26 of JJ
Act, Section 16/17/18/19 of Bounded
Labour Act & Section 3/14 of Child
Labour (Prohibition and Regulation)
Act, 1986
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquitted
7. Date of institution : 20.11.2017
8. Date of such order : 02.03.2020
State Vs. Ashok Page1 of 9
JUDGMENT
1. Accused Ashok has faced trial for the offence(s) u/s 370/374 Indian Penal Code (hereinafter referred as "IPC"), Section 23/26 Juvenile Justice Act, 2000 (hereinafter referred as "J. J. Act") and Section 3/14 of Child Labour Act, 1986.
2. The case of the prosecution is that on 22.09.2015, DD No. 49 A, dated 21.09.2015, was received at PS Chandni Mahal regarding beatings given to 11 year boy by his employer i.e. Ashok Bhature Wala (accused), at Turqman Gate near Masjid. The information was given to ASI Kailash, SI Manish and SHO. ASI Subkhbir, ASI Kailash alongwith Ct. Manoj and Ct. Jagparvesh reached at the spot. ASI Kailash recorded the statement of victim/boy Vishamber aged about 10 years to the effect that victim is resident of Uttar Pradesh. Accused is his distinct relative (Jija), who was having his Choley Bhatura shop at Turqman Gate near Masjid. A year before the date of incident accused brought the victim from UP to Delhi on the pretext that he would educate him but later on the accused did not provide him any education rather started taking work of packing Chole Bhatura and washing vessels at his Chole Bhatura shop. Accused promised to pay Rs.6,000/ per month to victim Vishamber but the same was not paid by him but he only paid Rs.3,000/ per month. Ashok never provided food to Vishamber on time, not allowed him to go out and used to beat him. On 21.09.2015 at about 5 p.m. victim Vishamber had some altercation with one State Vs. Ashok Page2 of 9 boy Suresh near the shop. On that, Vishamber said to accused that he would not work with him. On hearing this, accused started beating him. Vishamber's brother namely Vishwanath was working at Bapa Nagar, Karol Bagh, Delhi, to whom victim made a phone call from STD Booth and informed him about the beatings given by accused to him (victim Vishamber). On hearing the plight of Vishamber, Vishwanath reached at the Chola Bhatura Shop of accused and made a call at 100 number. MLC No. ECI 026209 of victim Vishamber was conducted. FIR was registered. Site plan was prepared. Statement u/s 164 CrPC of the victim was recorded by Ld. MM. Victim was admitted in Salam Balak Trust, Pahar Ganj from where later on his parents got him released. Accused was arrested.
3. After completion of investigation, chargesheet was filed in the court of concerned Ld. MM, who after compliance of provisions of 207 Cr.PC committed the case to the Sessions.
4. Vide order dated 27.08.2018, charges u/s 370/374 IPC, U/S 23/26 of The Juvenile Justice (Care and Protection of Children)Act, 2000 and 3 r/w Section 14 of the Child Labour (Prohibition and Regulation) Act, 1986 was framed on the accused to which he pleaded not guilty and claimed trial. The accused u/s 294 CrPC has admitted recording of statement u/s 164 CrPC of the victim.
5. In order to prove its case, the prosecution has examined as many as 8 witnesses.
6. PW1 is ASI Sunil, who has stated that ofn 23.09.2015 he took State Vs. Ashok Page3 of 9 the victim Vishamber from Salam Balak Trust and produced him before Child Welfare Committee, Mayur Vihar, Delhi and again got him admitted there.
7. PW2 is ASI Gopal, duty officer, who registered the FIR of the present case as Ex. PW2/A.
8. PW3 is HC Manoj Singh Rawat who has stated that on 21.09.2015 DD No. 49 A was marked to ASI Kailash. This PW alongwith ASI Kailash reached at the spot i.e. shop no. 2, Turqman Gate, Delhi6, where they met victim Vishamber and his brother Vishwanath. ASI Kailash recorded the statement of victim and got him medically examined at LNJP hospital. ASI Kailash prepared the rukka and got registered the FIR of this case. ASI Kailash arrested the accused after completion of all the formalities.
9. PW4 is ASI Kailash who has stated that on 21.09.2015 on receipt of DD No. 49 A he alongwith Ct. Manoj reached at the spot, where they met victim Vishamber and his brother Vishwanath. He recorded the statement of victim and got him medically examined at LNJP hospital. He prepared the ruqqa and got registered the FIR of this case. He arrested the accused after completion of all the formalities of arrest.
10. PW5 is Islamuddin, owner of shop No. 2, Turqman Gate, Near Masjid who has stated that he had let out the said shop to accused prior to year 2016 on the rent of Rs.5,000/ per month.
11. PW6 is SI Mumtaz, who has stated that on 14.10.2015 further investigation of this case was marked to him. This PW conducted the age estimation examination of victim Vishamber from LNJP. As per the medical State Vs. Ashok Page4 of 9 examination, the age of the Vishamber was opined between 12 to 14 years. The age estimation report of the victim is Ex. PW6/A.
12. PW7 and PW8 are parents of the victim, who have stated that they are permanent resident of Nepal. They have four children i.e. victim Vishamber, Vishwanath, Vishnu and Promila. They have further stated that they send their son Vishamber to Delhi with their relative Ashok (accused) to reside with him. In Nepal, Vishamber used to study in Rashtriya Madhyamik Vidhyalaya, Village Sihokhor, District Kapil Vastruganj, Nepal. They have stated that they were informed by the police that their son Vishamber has been kept at Child home, Pahar Ganj, Delhi, therefore, they came to Delhi and got him released. They have further stated that Vishamber is not residing with them for last 45 months as he informed them that he had been going to Mumbai but they are not aware of his address.
13. Summons were several times sent to PW Vishamber and his brother Vishwanath even through DCP but they always received back unserved with the report that "they both are not residing on the given address". As per the report on the summons, victim Vishamber has started residing at Mumbai but his address of Mumbai was not available. In view of the nonavailability of victim Vishamber and his brother Vishwanath, they both were not examined in the Court.
14. After completion of prosecution evidence, statement u/s 313 CrPC of the accused was recorded in which he stated that he has been falsely implicated and denied all the allegations and evidence against him.
State Vs. Ashok Page5 of 9
15. I heard heard the arguments and perused the record.
16. Ld. APP has argued that prosecution has proved its case against the accused since PW7 and PW8, parents of the victim, have categorically deposed that victim was sent by them with accused Ashok but later on as per statement u/s 164 CrPC of the victim he was forced to work at his Chola Bhatura shop by accused and was not paid and rather given beatings by him.
17. Ld. counsel for accused has argued that there is no evidence against the accused as the material witness of the prosecution was victim Vishamber who was not examined in evidence and all other witnesses, be it parents of the victim or other police officials, were only formal and conviction of the accused cannot be based on the testimony of formal witnesses.
18. Accused is booked for the offence u/s 370 & 374 IPC alognwith Section 23 & 26 of Juvenile Justice Act and Section 14 of Child Labour Act. To prove offence u/s 370 IPC prosecution was required to prove that accused brought victim Vishamber from his native village Nepal for the purpose of exploitation. "Exploitation" has been explained in Explanation 1 attached with Section 370 IPC, as per which any act of physical exploitation, sexual exploitation, slavery or practice similar to slavery or force removal of organs, is exploitation. One more ingredient of Section 370 IPC required to be satisfied by the prosecution was that Vishamber was brought for exploitation either by use of threat, force, abduction, fraud, abuse of power or inducement. Similarly, to prove ingredients of Section 23 & 26 of J.J. Act, the prosecution State Vs. Ashok Page6 of 9 was required to prove that Vishamber was assaulted, abandoned, kept in bondage or his earnings were withhold, by the accused. Same way to prove offence u/s 3/14 of Child Labour Act, prosecution was required to prove that Vishamber was employed by the accused in his Chola Bhatura Shop.
19. Victim Vishamber was the most material witness of the prosecution to prove all the offences the accused is charged with as all other witnesses examined by prosecution are formal in nature and conviction of the accused cannot be based on their testimony. Vishamber was the only witness who could have proved that accused employed him in his Chola Bhatura Shop. He could only have proved that accused ever assaulted, abandoned, kept in bondage or withhold his earnings and also accused exploited him by any act of physical or sexual exploitation etc., and accused compelled him to work against his will. Unfortunately, victim Vishamber was not examined by the prosecution as he was not traceable. Summons were sent to him several times even through DCP which always received back with the report that "he is not residing at the given address". As per report on the summons, victim has been shifted to Mumbai. Parents of victim Vishamber examined as PW7 & PW8 have also deposed that victim has shifted to Mumbai but they are not having his address. Though, at this stage, I would also refer the testimony of PW7 & PW8, parents of victim Vishamber, which is relevant for the purpose of Section 370 IPC since as per the said Section if the prosecution proves that accused received a person (victim herein) either by using threat, force or abduction etc., then one of the ingredient of Section State Vs. Ashok Page7 of 9 370 IPC stands satisfied. However, in this case PW7 & PW8, parents of the victim, have nowhere in their testimony have stated that accused used any kind of threat upon them or forced them to send their son Vishamber with him or he ever abducted, played any fraud, used his power and made any kind of inducement upon the parents for sending their child Vishamber with accused. Both the parents i.e. PW7 & PW8 have only stated that Vishamber was sent by them to Delhi with accused Ashok to reside with him. In all circumstances, the prosecution has failed to prove its case against the accused for all the offence the accused is charged with.
20. The arguments of Ld. APP that in the statement u/s 164 Cr.PC recorded by Ld. MM, the victim has supported his version that he was employed by the accused, assaulted and he withheld his earnings, has no substance in view of the settled law that statement u/s 164 Cr.PC is not substantive piece of evidence but used only for the purpose of corroboration or contradiction. Reliance can be placed on "Birj Nath Shah Vs. State of Bihar", Crl. Appeal No. 1475/3, decided by Hon'ble Apex Court on 29.04.2010 and "Ram Kumar Singh Vs. Harmeet Kaur & Ors", (1972) 3 SCC 280. The relevant portion of the judgment "Birj Nath Shah" (Supra) is reproduced as under: "That a statement of 164 Cr.PC is not substantive evidence and can be utilized only to corroborate or contradict the witness visavis. statement made in Court. In other words, it can be only utilized only as a State Vs. Ashok Page8 of 9 previous statement and nothing more. We see from the record that Suman Kumari was not produced as a witness as she had since been married in Nepal and her husband had refused to to let her return to India for the evidence. In this light her statement under Section 164 cannot be used against the appellant".
21. In view of aforesaid discussion, accused Ashok is acquitted for the offences u/s 370 & 374 IPC, Section 23 & 26 J. J. Act and 3/14 Child Labour Act. Accused is directed to furnish personal bond u/s 437 (A) IPC to the tune of Rs. 35,000/ with one surety of like amount.
File be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2020.03.12
11:47:02 +0530
Announced in the open court (Charu Aggarwal)
on 02nd March, 2020 ASJ02/Central/THC/Delhi
State Vs. Ashok Page9 of 9