Bangalore District Court
The State Of Karnataka vs Mohammad Zakaulla on 13 November, 2017
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 13th Day of November 2017
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No.105/2016
COMPLAINANT The State of Karnataka,
By Chamaraj Pet Police Station,
Bengaluru
Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED Mohammad Zakaulla,
S/o. Mohammad Shohib, 45 years,
R/at. No8/1, 2nd Cross,
Nizmuddin Mohalla,
Mysore Road,
Bengaluru
Sri.S.Y.K.-Advocate
1 Date of commission of offence 03-09-2014
2 Date of report of occurrence 03-09-2014
3 Date of arrest of Accused
Date of release of Accused ON BAIL
Period undergone in custody
by Accused
2 Spl.C.C.No.105/2016
4 Date of commencement of evidence 21-10-2016
5 Date of closing of evidence 02-11-2017
6 Name of the complainant Y. Nagaraju
7 Offences complained of Section 370-IPC
& Sec.23, 26-J.J.
Act
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Sub-Inspector Chamaraj Pet Police Station-Bengaluru, against accused for the offences punishable under Section 370, 370(A) of I.P.C, Section 3 and 14 of Child Labour (Prohibition and Regulation) Act, 1986 and Section 23 and 26 of Juvenile Justice Act.
2. Since it is a case of offence against minor boys, as such the name of the victim boys is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However their name is referred to as 'victim boy/s' wherever their name is necessary. 3 Spl.C.C.No.105/2016
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
That the accused brought minor victim boys-Cw.2 to Cw.5 from Nepal and Bihar State by way of human trafficking and also influencing that he is going to get huge salary and engaged them in a bag manufacturing unit at Nine Dots, Nizmuddin Mohalla, Baba Lane, Mysore Road, Bengaluru and was extracting work from 9.30 a.m., to 11.00 p.m., every day as bonded labours. He has also detained them in a room, without providing basic necessities and was paying meager salary of Rs.2.000/. per month. On enquiry by the raiding team headed by-Cw.1-
the complainant and on hearing the said fact they rescued Cw.2 to Cw.5 and lodged complaint against accused under Section 370, 370(A) of I.P.C, Section 3 and 14 of Child Labour (Prohibition and Regulation) Act,1986 and Section 23 and 26 of Juvenile Justice Act.
4. The Investigating Officer has investigated the 4 Spl.C.C.No.105/2016 same and filed charge sheet against accused for the offences punishable 370, 370(A) of I.P.C, Section 3 and 14 of Child Labour (Prohibition and Regulation) Act,1986 and Section 23 and 26 of Juvenile Justice Act. Thereafter, after filing the charge sheet as usual the accused appeared before the Committal Court, the committal Court furnished copy of charge sheet to him as contemplated under Section 207 of Cr.P.C. The committal Court passed an order for committing the case to the Hon'ble Principal City Civil & Session Judge-Bengaluru, since the victims are minors and the said case is exclusively triable by the Child Court and in turn the said case was made over to this Court for further proceedings.
5. After receiving the record by this Court, the summons was issued to accused. In pursuance of the said summons, the accused appeared before the Court and he was enlarged on bail. Thereafter the learned advocate for accused submitted that there is no argument before 5 Spl.C.C.No.105/2016 framing charge and requested to frame charge. As a result the learned predecessor in office framed charge for the offences punishable under Section 370 of I.P.C and Section 23 and 26 of Juvenile Justice Act, stating that section 370- A of IPC and Section 3 and 14 of Child Labour (Prohibition and Regulation) Act,1986 are not attracted to this case. The contents of charge read over and explained in Hindi by translating Kannada version to the accused. The accused pleaded not guilty and submit crimes to be tried. Thereafter the case against accused set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused has examined 7 witnesses as Pw.1 to Pw.7 and got marked as many as 12 documents as Ex.P1 to Ex.P12 and closed its side evidence. In view of incriminating evidence appeared against the accused, he is examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence 6 Spl.C.C.No.105/2016 appeared against him as false. The accused complied the provision of Section 437-A of Cr.P.C. by executing personal bond and depositing surety bond amount. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄÄ ZÁªÀÄgÁd¥ÉÃmÉ ¥ÉÇðøï oÁuÁ ªÁå¦ÛUÉ ¸ÉÃjzÀs £ÉÊ£ï qÁmïì, ¤eÁªÀÄÄ¢ÝÃ£ï ªÉƺÀ¯Áè, ¨Á¨Á ¯ÉÊ£ï, ªÉÄʸÀÆgÀÄ gÀ¸ÉÛAiÀÄ°ègÀĪÀ ¨ÁåUÀÄ vÀAiÀiÁgÀÄ ªÀiÁqÀĪÀ WÀlPÀzÀ°è C¥Áæ¥ÀÛ ªÀAiÀĸÀÌgÁzÀ ¸ÁQë-2 ªÉƺÀªÀÄäzï ªÀĹªÀůÁè, ¸ÁQë-3 ªÉƺÀªÀÄäzï ¸ÁfÃzï, ¸ÁQë-4 ªÉƺÀªÀÄäzï dÄ®àÃPÀgï, ªÀÄvÀÄÛ ¸ÁQë-5 G¥ÉÃAzÀgïgÀªÀg£ À ÀÄß ºÉaÑ£À ¸ÀA§¼À PÉÆr¸ÀĪÀÅzÁV £ÀA©¹ £ÉÃ¥Á¼À gÁdå ªÀÄvÀÄÛ ©ºÁgÀ gÁdå¢AzÀ PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ fÃvÀzÁ¼ÀÄUÀ¼ÀAvÉ PÉ®¸ÀPÉÌ ElÄÖPÉÆAqÀÄ §®ªÀAvÀªÁV CªÀgÀ EZÉáUÉ «gÀÄzÀݪÁV ¢£ÀPÉÌ 9.30 jAzÀ gÁwæ 11.00 UÀAmÉ ªÀgÉUÉ zÀÄr¹PÉÆAqÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 370 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀsª£ À À Äß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
2. CgÉÆæAiÀÄÄ ªÉÄÃ¯É ºÉýzÀ ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸À¼ Ü ÀzÀ°è C¥Áæ¥ÀÛ ¨Á®PÀgÁzÀ ¸ÁQë-2 jAzÀ 5 gÀªg À £ À ÀÄß £ÉÃ¥Á¼À gÁdå ªÀÄvÀÄÛ ©ºÁgÀ gÁdå¢AzÀ PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ vÀ£Àß ¨ÁåUÀÄ vÀAiÀiÁjPÁ CAUÀrAiÀÄ°è PÉ®¸ÀPÉÌ £ÉëĹPÉÆAqÀÄ PÁ£ÀÆ£ÀÄ «gÀÄzÀݪÁV ºÀÉaÑ£À ªÉÃ¼É zÀÄr¹PÉÆAqÀÄ, PÀrªÉÄ ¸ÀA§¼À ¤Ãr, ¸ÀjAiÀiÁzÀ UÁ½, ¨É¼ÀPÀÄ E®èzÀ ¸ÀܼÀzÀ°è PÀÆrºÁQ ªÀÄÆ® ¸ÀªÀ®vÀÄÛ ¤ÃqÀzÉ zÉÊ»PÀ ºÁUÀÆ ªÀiÁ£À¹PÀ »A¸É ¤Ãr PÀ®A 23 ªÀÄvÀÄÛ 26 7 Spl.C.C.No.105/2016 ªÀÄPÀ̼À £ÁåAiÀÄ C¢ü¤AiÀĪÀÄ 2000 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀsªÀ£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
3. AiÀiÁªÀ DzÉñÀ?
8. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per the final orders for the following:
REASONS
9. Point No.1 and 2:- As these points are inter- related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
10. In order to prove the alleged offences against the accused, the prosecution has examined in all 7 witnesses as Pw.1 to Pw.7 and got marked 12 documents as Ex.P1 to Ex.P12. As per the prosecution case, Pw.1 is the NGO who had given representation to the complainant, Pw.2 is the complainant, Pw.3 is the Superintendent of State Home for Boys-Bengaluru, Pw.4 is the doctor, Pw.5 and Pw.6 are the 8 Spl.C.C.No.105/2016 police officials and Pw.7 is Labour Officer. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against accused.
11. In order to establish the alleged offences against accused, the prosecution is required to prove that the accused brought minor victim boys-Cw.2 to Cw.5 from Nepal and Bihar State by way of human trafficking and also influencing that he is going to get huge salary and engaged them in a bag manufacturing unit at Nine Dots, Nizmuddin Mohalla, Baba Lane, Mysore Road and was extracting work from 9.30 a.m., to 11.00 p.m., every day as bonded labours. He has also detained them in a room, without providing basic necessities and was paying meager salary of Rs.2.000/- per month and thereby committed offences punishable under Section 370 of I.P.C, Section 23 and 26 of Juvenile Justice Act. Hence this Court shall proceed to see whether the prosecution has succeeded in 9 Spl.C.C.No.105/2016 establishing all the above said ingredients of the alleged offences against the accused beyond all reasonable doubt.
12. Before venturing into scan the available material evidence on record, it is necessary to mention the very definition of offences under Section 370 of I.P.C., and Section 23 and 26 of J.J. Act.
Section 370 of I.P.C defines that:
Trafficking of persons-[1] Whoever, for the purpose of exploitation,(a) recruits, (b)transports, (c) harbours,
(d)transfers, or (e) receives, a person or persons, by-
First -using threats, or
Secondly -using force, or any other form of
coercion, or
Thirdly -by abduction, or
Fourthly -by practicing fraud, or deception, or Fifthly -by abuse of power, or Sixthly -by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.10 Spl.C.C.No.105/2016
Section 23 of J.J. Act, defines that:
Punishment for cruelty to juvenile of child:-
Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully 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 of J.J. Act, defines that:
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 purpose shall be punishable with imprisonment for a term which may extend to three years also be liable to fine.
By going through the facts, circumstances and available materials both at oral and documentary, it is just and proper to consider the available material evidence attracts the very ingredients of above said offences in order to fix the liability against accused.
13. By going through the evidence of Pw.1-the Joyce Premila-Project Director in Oasis, she has deposed that 2-3 days earlier to 03-09-2014 she has received information 11 Spl.C.C.No.105/2016 from some unknown person that behind Chamaraj Pet Police Station area, at Dots, some persons engaged small children to stitch the bags. As a result she went to CID- AHTU unit and contacted Police Inspector-Nagaraj and told the said facts. As a result on 03-09-2014 at about 12.00 noon she along with CID police personnel and other officials raided the offending unit and rescued 7 to 8 children who are aged below 14 years, who came from Nepal and Bihar, they belonged to poor family and on enquiry the said children told that if they left the said work their family will be put to hardship. As a result the mahazar was conducted as per Ex.P1 and her signature is Ex.P1(a). They told one Mohammad was the owner of said unit and she has also identified the accused before the Court.
14. The accused tested the veracity of evidence of this witness by eliciting some commission and omissions. She has shown her ignorance in respect of: 12 Spl.C.C.No.105/2016
"£ÀªÀÄUÉ zÀÆgÀªÁtô ªÀÄÄSÁAvÀgÀ ªÀÄvÀÄÛ ªÀiËTPÀ ªÀiÁ»w §AvÀÄ. D ªÉƨÉÊ¯ï £ÀA§gï £É£À¦®è."
Further she has deposed that:
"D §UÉÎ °TvÀªÁV ªÀgÀ¢ PÉÆnÖgÀÄvÁÛgÉ. D zÁR¯ÉAiÀÄ£ÀÄß ¥ÉÇðøÀjUÉ ¢£ÁAPÀB08.09.2013 CxÀªÁ 09.09.2013 gÀAzÀÄ PÉÆnÖgÀÄvÉÛãÉ."
Again she has deposed that:
"£ÁªÀÅ zÁ½ ªÀiÁrzÁUÀ D ªÀÄPÀ̼ÀÄ EzÀÝ gÀÆA£À C¼ÀvÉ §ºÀ¼À aPÀÌzÁVzÀÄÝ 10 x 10 CrVAvÀ aPÀÌ¢vÀÄÛ."
The above said evidence crystallizes that she has not deposed in respect of who had given information and she has not made any enquiry earlier to conducting raid. She has given report either on 08-09-2013 or 09-09-2013, but the raid was conducted on 03-09-2014. When such being the case, it is not safe to accept the report given on 08-09- 2013 or 09-09-2013. It is her evidence that she has not dictated the contents of Ex.P1. She has shown her ignorance about the name of offending unit and she does not know the name of owner of said unit. She has admitted that the police seized documents in respect of ownership of the offending unit of the accused. Further she has 13 Spl.C.C.No.105/2016 admitted that:
"D ªÀÄPÀ̼ÀÄ C°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝ §UÉÎ £À£Àß ªÀÄÄAzÉ zÁR¯É ¥ÀqÉzÀÄPÉÆAr®è."
If this piece of evidence is taken into consideration, there is a doubt of working of said children at that unit. According to her, earlier to visiting the spot, she has lodged complaint with the police, but no such complaint available in the charge sheet. She has also admitted that:
"£ÁªÀÅ D ªÀÄPÀ̼À ¥ÉÇõÀPÀgÀ£ÀÄß ªÀÄPÀ̼À PÉ®¸ÀzÀ §UÉÎ ªÀÄvÀÄÛ ¸ÀA§¼ÀzÀ §UÉÎ «ZÁgÀ ªÀiÁqÀ°®è. D ªÀÄPÀ̼À£ÀÄß AiÀiÁgÀÄ PÀgv É ÀAzÀgÀÄ JA§ §UÉÎ £ÁªÀÅ ¥Àæ²ß¸À°®è."
No doubt this witness in her chief examination supported the case of prosecution, but in her cross- examination she has shown her ignorance about availability of children working in the said unit and also no such document seized in respect of the same, she doesn't know the name of the unit, even she doesn't know who was the owner of said building. When such being the case, unless and until the prosecution produces corroborative and cogent supporting oral and documentary evidence, it is 14 Spl.C.C.No.105/2016 not safe to accept the evidence of Pw.1 beyond all reasonable doubt.
15. By going through the evidence of Pw.2- Y.Nagarju-the complainant who lodged complaint on the information given by Pw.1-Joyce Premila, he has deposed that on 02-09-2014 Pw.1 came to CID office and informed about human trafficking and child labour to DIG and on the direction of said DIG, he went near Nine Dots, Nizmuddin Mohalla, Babu Lane, Mysore Road, Chamaraj Pet, where the bag was manufactured along with his team- P.C.Madhu, WPC-Kavitha, NGO-Joyce Premila, Senior Labour Inspector -Shyam Rao on 03-09-2014 and raided the offending unit and came to know that the said unit was measuring 30 x 40, having 8 sewing machines and four child labours working by cutting regzion cloth. On enquiry they told the owner extracting work from 09.30 a.m., to 11.00 p.m. by giving Rs.2,000/- salary per month, but no such basic necessities provided to them. The said children 15 Spl.C.C.No.105/2016 were brought from Bihar State by the accused stating that he is going to give good salary to them. Thereafter they rescued said children and conducted mahazar as per Ex.P1 and his signature is Ex.P1(b). He has also prepared complaint and lodged complaint before Chamaraj Pet Police and he has also given statement on 20-09-2014. On enquiry with said children they told that the accused is the owner of said unit. He has also recorded the statement of children there itself.
16. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that the investigation was taken by him on 02-09-2014, whereas as per the evidence of Pw.1, she has given statement contrary to the evidence of this witness. She has also admitted that at the time of lodging complaint, she has not ascertained about offending unit and its nature of work. He has admitted that after raiding the offending unit, he has lodged complaint before police 16 Spl.C.C.No.105/2016 station. He has also admitted that he has not collected documents in respect of accused to show that he has come from Nepal. He has also admitted that earlier to raiding of offending unit, no such complaint received from his office from public or from neighbours or from any persons in respect of said unit. He has admitted that no such independent Panch secured at the time of raiding the offending unit to conduct mahazar as per Ex.P1. He has also admitted that he has not written in Ex.P1 that he has recorded statements of children. He has also admitted that at the time of recording statement of victim boys, their parents or guardians were not available at the spot. No doubt it is true that this witness is the complainant and he has raided the said unit and lodged complaint in his official capacity, unless and until the prosecution produces other corroborative, cogent and oral and documentary evidence through independent witness evidence, it is not safe to accept the evidence of this witness. Further no such documents seized by the Investigation Officer to show that 17 Spl.C.C.No.105/2016 the offending unit was run by the accused by engaging child labours and extracting more work from them by paying less salary and not providing basic necessities to them.
17. By going through the evidence of Pw.3- R.Kempanna-Retired Superintendent of Bala Mandir, it is his evidence that he has recorded the statements of Cw.2 to Cw.5 as per Ex.P4 to Ex.P7 and his signature is Ex.P4(a) to Ex.P7(a). The accused tested the veracity of evidence of this witness by eliciting some commission and omission. According to him he has recorded said statements victim boys, whereas the case of prosecution is that at the time of raiding the offending unit, the police enquired and recorded the statement of victim boys, but no such documents produced to believe the said facts and circumstances. Further he has shown ignorance stating that:
"ZÁ,¸Á.2 jAzÀ 5 gÀªg À À ªÀAiÀĹì£À §UÀÎÉ ªÉÊzÀågÀÄ zÀÈrüÃPÀgÀt PÉÆnÖgÀĪÀgÀÄ DzÀgÉ D ªÀÄPÀ̼À ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¸À®Ä AiÀiÁªÀ AiÀiÁªÀ ¥ÀjÃPÉëUÀ¼À£ÀÄß ªÀiÁrgÀĪÀgÀÄ JAzÀÄ ºÉüÀ®Ä £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è."18 Spl.C.C.No.105/2016
It is his evidence that he recorded statements of Cw.2 to Cw.5 in Hindi, but no such Shara mentioned with regard to translating the same to Kannada language and the name of translator by obtaining his signature. Non recording the statement as per rule by this witness, it is absolutely fatal to the case of prosecution. He has admitted that out of Cw.2 to Cw.5, Cw.5 was from Nepal, as such he knew Matli language but he doesn't know any other language, for that this witness has not given any answer. He has also shown ignorance that:
"ZÁ.¸Á.2 jAzÀ 5 gÀªÀgÀ ¥ÉÊQ ZÁ.¸Á.5 gÀªÀgÀÄ £ÉÃ¥Á¼ÀzÀªÀgÉAzÀgÉ ¸Àj. D PÁgÀt ZÁ.¸Á.5 gÀªÀjUÉ ªÉÄÃwè ¨sÁ¥À¥Éë UÉÆwÛzÉAiÉÄà «£ÀB ¨sÁgÀvz À À AiÀiÁªÀÅzÉà ¨ÁµÉ UÉÆwÛgÀ°®è JAzÀgÉ ¸ÁQë AiÀiÁªÀÅzÉà GvÀÛgÀªÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è."
He has also admitted that:
"ZÁ.¸Á,2 jAzÀ 5 gÀªg À À£ÀÄß £À£Àß ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹zÁUÀ CªÀgÀ ªÉÄʪÉÄÃ¯É AiÀiÁªÀÅzÉà UÁAiÀÄUÀ¼ÁVgÀ°®è. ¤.¦.4 jAzÀ 7 ºÉÆgÀvÀÄ ¥Àr¹ ZÁ.¸Á.2 jAzÀ 5 gÀªÀgÀÄ £À£Àß ªÀÄÄAzÉ ¥ÀævÉåÃPÀ ºÉýPÉ AiÀiÁªÀÅzÀÆ PÉÆnÖgÀĪÀÅ¢®è."
Further he has also admitted that:
"ZÁ.¸Á,2 jAzÀ 5 gÀªÀgÀ ºÉýPÉUÀ¼£ À ÀÄß ªÀiÁrPÉÆArzÉÝãÉAzÀÄ £Á£ÀÄ ºÉüÀÄwÛzÀÄÝ D ¸ÀªÀÄAiÀÄzÀ°è ¨Á®ªÀÄA¢gÀzÀ°è CªÀ vÀAzÉ vÁ¬ÄUÀ¼ÀÄ EgÀ°®è JAzÀgÉ ¸Àj. ¤.¦.4 jAzÀ 7 gÀ°è ºÉýgÀĪÀ «µÀAiÀÄzÀ §UÉÎ £À£ÀUÉ RÄzÀÄÝ ªÀiÁ»w E®è JAzÀgÉ ¸Àj."19 Spl.C.C.No.105/2016
If the above said admission is taken into consideration, unless and until the prosecution produces supporting corroborative and cogent independent witness evidence, this Court feels to observe that the evidence of this witness is also a formal one.
18. By going through the evidence of Pw.4- Dr.B.Geetha, she has deposed that as per the direction of her Director, she went to Chamaraj Pet police station on 03-09-2014 at 11.00 a.m., and the said police and NGOs took her in a vehicle to Baba Lane, Mysore Road to a bag manufacturing unit, wherein she found some minor boys are working in the said unit having age below 18 years. The police brought some 15 children and produced before her for conducting medical examination in respect of their age. On seeing physical features of said children and also molar teeth, she has certified their ages as mentioned in Ex.P8 to Ex.P11.
19. The accused tested the veracity of evidence of 20 Spl.C.C.No.105/2016 this witness by eliciting some commission and omission and elicited that:
"WÀl£Á¸Àܼz À À°è ¨ÁåUï vÀAiÀiÁjPÁ PÁSÁð£É EvÀÄÛ JAzÀÄ £Á£ÀÄ ºÉýzÀÄÝ D PÁSÁð£ÉAiÀÄ £ÁªÀÄ¥Às®PÀªÀ£ÀÄß C°è £Á£ÀÄ £ÉÆÃqÀ°®è."
Further she was elicited that:
"¸ÁªÀiÁ£ÀåªÁV M§â ªÀåQÛAiÀÄ ¤RgÀªÁzÀ ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¸À¨ÉÃPÁzÀgÉ D ªÀåQÛAiÀÄ£ÀÄß gÉrAiÀiÁ®f ªÀÄvÀÄÛ D¹¦üPÉñÀ£ï mɸïÖUÀ½UÉ M¼À¥Àr¸À¨ÃÉ PÁUÀÄvÀÛzÉ JAzÀgÉ ¸ÁQë gÉrAiÀiÁ®fAiÀÄ ¥ÀjÃPÉë CªÀ±ÀåPÀ«zÉ JAzÀÄ ºÉýgÀÄvÁÛgÉ. F ¥ÀæPÀgÀtzÀ°è ZÁ,¸Á.2 jAzÀ 5 gÀªÀgÀÄUÀ¼À£ÀÄß £Á£ÀÄ ¥ÀjÃPÉë ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è CªÀgÀ£ÀÄß gÉrAiÀiÁ®f ¥ÀjÃPÉëUÀÉ M¼À¥Àr¹gÀĪÀÅ¢®è. £Á£ÀÄ £ÀªÀÄä ¤zÉðñÀPg À À C£ÀĪÀÄw ¥ÀqÉzÀÄ ZÁ,¸Á.2 jAzÀ 5 gÀªÀgÀ ªÀAiÀĹì£À zÀÈrüÃPÀgÀtzÀ ¤RgÀvÉAiÀÄ §UÉÎ w½¸À®Ä gÉrAiÀiÁ®f ªÀÄvÀÄÛ D¹¦üPÉñÀ£ï mɸïÖUÀ¼£ À À Äß ªÀiÁqÀ®Ä £À£ÀUÁåªÀÅzÉà vÉÆAzÀgÉ EgÀ°®è JAzÀgÉ ¸Àj."
She has also deposed that:
"¸ÁªÀiÁ£ÀåªÁV £ÁªÀÅ ªÀÄPÀ̼À ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¸ÀĪÀÅzÀPÉÌ CªÀgÀ zÀAvÀ¥ÀjÃPÉë ªÀiÁr CªÀgÀ ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¹ PÉÆlÖgÉ CzÉà ªÀÄPÀ̼À£ÀÄß gÉrAiÀiÁ®f ºÁÄUÁ D¹¦üPÉñÀ£ï mɸïÖUÉ M¼À¥Àr¹zÁUÀ £ÁªÀÅ PÉÆlÖ ªÀAiÀĹì£À zÀÈrüÃPÀgÀtQÌAvÀ JgÀqÀ ĪÀµÀð eÁ¹Û CxÀªÁ PÀ«Ää §gÀÄvÀÛzÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQë JgÀqÀÄ ªÀµÀð §gÀĪÀÅ¢®è DgÀÄ wAUÀ¼ÀÄ ªÀåvÁå¸À §gÀÄvÀÛzÉ JAzÀÄ GvÀÛj¹gÀÄvÁÛgÉ. ZÁ.¸Á,2 jAzÀ 5 gÀªÀgÀ£ÀÄß £Á£ÀÄ ¥ÀjÃQë¹zÀÉ JAzÀÄ ºÉüÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è CªÀgÀ ªÉÄʪÉÄÃ¯É AiÀiÁªÀÅzÉà UÁAiÀÄUÀ¼ÀÄ £À£ÀUÉ PÀAqÀħgÀ°®è."
She has admitted that Ex.P8 to Ex.P11-Medical certificates are printed forms in cyclostyle given by Labour Department. She has also admitted that:
"¤.¦.8 jAzÀ ¤.¦.11 gÀ zÁR¯ÉAiÀÄ°è ZÁ.¸Á.2 jAzÀ 5 gÀªÀgÀ ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¸À®Ä AiÀiÁªÁåªÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß £Á£ÀÄ ªÀiÁrzÉ JA§ÄzÀgÀ «ªÀgÀuÉ CzÀgÀ°è E®è JAzÀgÉ ¸ÁQë D zÁR¯ÉUÀ¼À°è D 21 Spl.C.C.No.105/2016 «ªÀgÀuÉ §gÉAiÀÄ®Ä CªÀ±ÀåPÀvÉ E®èzÀ PÁgÀt £Á£ÀÄ CzÀ£ÀÄß £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. ZÁ.¸Á.2 jAzÀ 5 gÀªg À À£ÀÄß £Á£ÀÄ ¥ÀjÃQë¹zÀ PÁ®zÀ°è CªÀgÀ ¸ÀAgÀPÀëPÀgÁUÀ°, CªÀgÀ vÀAzÉ vÁ¬ÄAiÀiÁUÀ° AiÀiÁgÀÆ EgÀ°®è."
The above said evidence unequivocally points out that in order to fix the age of rescued boys, she has not followed the guideline given in the medical science and issued said certificates which is not at all acceptable in any manner. At this stage this Court feels to observe that the evidence of this witness is a formal one.
20. By going through the evidence Pw.5- Chandranna-Retired P.S.I., he has deposed that he recorded the statements of Cw.2 to Cw.5 on 19-09-2014 as per Ex.P4 to Ex.P7 and his signatures are Ex.P4(c), Ex.P5(b) and Ex.P7(b). The accused tested the veracity of evidence of this witness by eliciting that at the time of recording of statement of Cw.2 to Cw.5 their parents, guardians are not available at the spot. He has translated Kannada statements into Hindi language, but no such Shara mentioned in the said documents. As per the statements of 22 Spl.C.C.No.105/2016 victim boys the owner of unit was one Ashraff, whereas this case is filed against one Mohammad Zakaulla. If this piece of evidence is taken into consideration, the Investigation Officer has not investigated properly and filed case against unknown person. Since this witness is also an interested official witness, question of believing the prosecution evidence through this witness doesn't arises unless and until prosecution produces corroborative and cogent independent witnesses evidence.
21. By going through the evidence of Pw.6- M.V.Prabhu-Head Constable, he has deposed by supporting the case of prosecution in his chief examination, but according to him, the accused was running the said unit. At the same time no such documentary evidence placed on record to believe that the accused was running said manufacturing unit. The accused tested the veracity of evidence of this witness by eliciting some commission and omission. Except denial suggestion nothing has been 23 Spl.C.C.No.105/2016 elicited favourable to the stand taken by the accused herein. Further he was elicited that he has not given statement before the Investigation Officer that he has seen the accused and he has stated that the accused was absconding at the time of raiding to said unit. When such being the case, question of considering the identification of accused by this witness at this stage does not arise. This witness is also official interested witness and unless and until prosecution produces corroborative and cogent independent oral and documentary testimony, it is not safe to accept the evidence of this witness to believe the alleged offences against accused.
22. By going through the evidence of Pw.7-Shyma Rao-Senior Labour Inspector, he has also supported the case of prosecution in his chief examination, but at his cross-examination, he has shown his ignorance and also the accused elicited that:
"£À£Àß »jAiÀÄ C¢üPÁjUÀ¼À DzÉñÀzÀ ªÉÄÃgÉUÉ D ¢£À £Á£ÀÄ WÀl£Á¸ÀܼÀPÉÌ §A¢zÉÝãÉ. WÀl£Á¸ÀܼÀPÉÌ ºÉÆÃzÁUÀ ¸ÀªÀÄAiÀÄ ¸Àj¸ÀĪÀiÁgÀÄ 12.15 DVvÀÄÛ. ¸ÀܼÀ ¥ÀAZÀ£ÀÁªÉÄAiÀÄ£ÀÄß ªÀÄzÁåºÀß 3.00-3.30 UÀAmÉUÉ 24 Spl.C.C.No.105/2016 dgÀÄV¹zÀgÀÄ. ¥ÀAZÀ£ÁªÉÄ £ÀAvÀgÀ £ÁªÉîègÀÆ ¸ÉÃj ZÁªÀÄgÁd¥ÉÃmÉ ¥ÉÇðøï oÁuÉUÉ §A¢zÉݪÉ. ZÁÁ.¸Á,1 gÀªg À ÀÄ JµÀÄÖ ºÉÆwÛUÉ zÀÆgÀ£ÀÄß PÉÆlÖgÀÄ JAzÀÄ £À£ÀUÉ ¤RgÀªÁV ºÉüÀ®Ä DUÀĪÀÅ¢®è."
Further he was elicited that:
"¥Àsl£Á¸ÀܼÀPÉÌ ºÉÆÃUÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä DgÉÆæAiÀÄ «gÀÄzÀÝ oÁuÉAiÀÄ°è MAzÀÄ zÀÆgÀÄ EvÀÄÛ JA§ ªÀiÁ»w £À£ÀUÉ w½¢vÀÄÛ. £Á£ÀÄ WÀl£Á¸ÀܼÀPÉÌ ºÉÆÃUÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä DgÉÆæ «gÀÄzÀÝ AiÀiÁªÀÅzÉà zÀÆgÁUÀ° CxÀªÁ ¥Àæ.ªÀ.ªÀgÀ¢ ¸À°è¸À¯ÁV®è JA§ÄzÀgÀ §UÉÎ £À£ÀUÉ ºÉüÀ®Ä DUÀĪÀÅ¢®è."
Again he has deposed that:
"£Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆqÀĪÁUÀ F ªÉÄîÌAqÀ C¥Áæ¥ÀÛªÀAiÀĹì£À ¨Á®PÀg£ À ÀÄß «ZÁgÀ ªÀiÁqÀ¯ÁV ¸ÀzÀj ¨ÁåUï WÀlPÀzÀ ªÀiÁ°ÃPÀgÁzÀ ªÀĺÀªÀÄäzï dPÁªÀůÁè DVzÀÄÝ FvÀ£ÀÄ vÀ¯É ªÀÄgɹPÉÆArzÁÝ£É JA§ÄzÁV AiÀiÁªÀÅzÉà ºÉýPÉ PÉÆnÖ®è. gÀQë¹zÀ ªÀÄPÀ̼À ¥ÉÊQ PÉ®ªÀgÀÄ £ÉÃ¥Á¼À¢AzÀ §A¢gÀĪÀgÀÄ JA§ÄzÁV ¥ÀAZÀ£ÁªÉÄAiÀÄ°è ºÉýzÀÄÝ CªÀgÀÄ £ÉÃ¥Á¼À¢AzÀ §A¢gÀĪÀgÉA§ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß £Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ ºÁdgÀÄ ¥Àr¹gÀĪÀÅ¢®è. ¸ÁªÀiÁ£ÀåªÁV AiÀiÁªÀÅzÉà ªÀåQÛ ¨ÁåUï vÀAiÀiÁjPÁ WÀlPÀ CxÀªÁ PÉÊUÁjPÁ ¸ÀA¸ÉÜAiÀÄ£ÀÄß £ÀqɸÀ®Ä PÁ«ÄðPÀ E¯ÁSɬÄAzÀ ¥ÀgÀªÁ£ÀV ¥ÀqÉzÀÄPÉƼÀî¨ÃÉ PÁUÀÄvÀÛzÉ JAzÀgÉ ¸Àj."
He has also deposed that:
"£ÀªÀÄä ªÀÈvÀÛPÉÌ DgÉÆæ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV ¨ÁåUïvÀAiÀiÁjPÁ WÀlPÀ £ÀqɸÀÄwÛzÁÝ£ÉAzÀÄ ºÉý AiÀiÁªÀÅzÉà zÀÆgÀÄ D ¸ÀªÀÄAiÀÄzÀ°è zÁR¯ÁVgÀĪÀÅ¢®è. ZÁªÀÄgÁd¥ÉÃmÉ 11 ªÀÈvÀÛPÀÉÌ §gÀÄvÀÛzÉ. 11£Éà ªÀÈvÀÛPÀÆÌ PÀÆqÀ DgÉÆæ «gÀÄzÀÝ AiÀiÁªÀÅzÉà zÀÆgÀÄ zÁR¯ÁVgÀĪÀÅ¢®è JA§ §UÉÎ £À£ÀUÉ w½¢gÀĪÀÅ¢®è. "
If the above said evidence deposed by this witness at his cross-examination is taken into consideration, there is a doubt of accompanying of this witness at the time of alleged raid in the offending bag manufacturing unit. Since 25 Spl.C.C.No.105/2016 he is also an interested official witness, unless and until the prosecution produces evidence of other independent witnesses, it is not safe to accept the evidence of this witness.
23. The oral and documentary evidence placed on record by the prosecution is insufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused rather than the case of the prosecution.
24. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.7 and documentary evidence as per Ex.P1 to Ex.P12, placed on record in respect of alleged offences, is insufficient to prove that the accused brought minor victim boys-Cw.2 to Cw.5 from Nepal and Bihar State by way of human trafficking and also influencing that he is going to get huge salary and engaged them in a bag 26 Spl.C.C.No.105/2016 manufacturing unit at Nine Dots, Nizmuddin Mohalla, Baba Lane, Mysore Road and was extracting work from 9.30 a.m., to 11.00 p.m., every day as bonded labours. He has also detained them in a room, without providing basic necessities and was paying meager salary of Rs.2.000/-per month and thereby committed offences punishable under Section 370 of I.P.C, Section 23 and 26 of Juvenile Justice Act, beyond all reasonable doubt. Consequently I hold Point No.1 and 2 in the "Negative".
25. Point No.3:- For the above said reasons and discussions on Point No.1 and 2, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., the accused is acquitted for the offences punishable under section 370 of IPC and section 23 and 26 of J.J. Act. His bail bond and surety bond stand cancelled.
(Dictated to the Judgment Writer, transcribed and 27 Spl.C.C.No.105/2016 typed by her. It is then corrected, signed and pronounced by me in open court on this the 13th Day of November 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Joyce Pramila Cw.6 21-10-2016 Pw.2 Y. Nagaraj Cw.1 17-03-2017 Pw.3 R.Kempanna Cw.11 18-08-2017 Pw.4 Dr.Geetha Cw.10 05-09-2017 Pw.5 Chandranna Cw.12 07-10-2017 Pw.6 M.V.Prabhu Cw.8 02-11-2017 Pw.7 Shyam Rao Cw.7 02-11-2017 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Mahazar Pw.1 21-10-2016 Ex.P 1a Signature of Pw.1 Pw.1 21-10-2016 Ex.P 1b Signature of Pw.6 Pw.6 02-11-2017 Ex.P 2 Complaint Pw.2 17-03-2017 Ex.P 2a Signature of Pw.2 Pw.2 17-03-2017 28 Spl.C.C.No.105/2016 Ex.P 3 Representation Pw.2 17-03-2017 given by informant Ex.P 4 to 7 Statements of victim Pw.3 18-08-2017 boys-Cw.2 to Cw.5 Ex.P 4a to Signatures of Pw.3 Pw.3 18-08-2017 7a Ex.P 4c, 5b, Signatures of Pw.5 Pw.35 07-10-2017 6b, 7b Ex.P 8 to 11 Age determination Pw.4 05-09-2017 certificates of victims Ex.P 8a to Signatures of Pw.4 Pw.4 05-09-2017 11a Ex.P 12 Statement of Pw.7 Pw.7 02-11-2017 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
***