Bangalore District Court
The State Of Karnataka vs Amase on 23 November, 2018
IN THE COURT OF THE L ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU
Dated this the 23rd Day of November 2018
-:PRESENT:-
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No.156/2018
COMPLAINANT The State of Karnataka,
By Madiwala Police Station,
Bengaluru
Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED Amase,
S/o. Muniyappa Gowdar, 48 Years,
R/at. Ambur Chicken Biriyani Center
No.Muniyappa Complex,
Mangammana Palya,
Bengaluru.
Sri.K.Y-Advocate
1 Date of commission of offence 22-07-2015
2 Date of report of occurrence 22-07-2015
3 Date of arrest of Accused
Date of release of Accused
Period undergone in custody by On Bail
Accused
4 Date of commencement of 09-07-2018
evidence
5 Date of closing of evidence 30-10-2018
6 Name of the complainant Vani Kantli
2 Spl.C.C.156/2018
7 Offences complained of Sec 370-IPC, Sec.23, 26-
J.J. Act & Sec.6 14 Child
Labour (Prohibition &
Regulation) 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, Madiwala Police Station-Bengaluru, against accused for the offences punishable under Section 370 of I.P.C, Section 23 and 26 of J.J. Act and Section 6 and 14 of Child Labour (Prohibition & Regulation) Act.
2. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
On 22-07-2015 at about 02.00p.m., within the jurisdiction of Madiwala Police Station, Bengaluru at Mangammana Palya Main Road in Ambur Chicken Biryani shop, when Cw.1 and Cw.2 along with Cw.22 and Cw.23 raided the said shop, a child labour having age of 15 years viz., Shiva Kumar was found working in that shop and the accused being the owner of said shop by influencing money on him was extracting work from the said child for more than 10 hours in a day forcibly without
3 Spl.C.C.156/2018 providing basic necessities to him and without payment of salary to him. On the basis of complaint lodged by Cw.1-Vani Kantli-the complainant, the Police registered the case against the accused for the offences punishable under Section 370 of I.P.C, Section 23 and 26 of J.J. Act and Section 6 and 14 of Child Labour (Prohibition & Regulation) Act.
3. The Investigating Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 370 of I.P.C, Section 23 and 26 of J.J. Act and Section 6 and 14 of Child Labour (Prohibition & Regulation) Act. Thereafter, after filing the charge sheet, the Committal Court furnished copy of charge sheet to accused 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 victim is minor 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.
4. After receiving the record by this Court, the 4 Spl.C.C.156/2018 summons was issued to the accused. In pursuance of said summons he appeared before the Court and was enlarged on bail. Thereafter, the learned advocate for accused submitted that there is no arguments before framing charge and requested to frame charge. As a result the charge was framed against accused, the contents of charge read over and explained in Kannada. The accused pleaded not guilty and submit crimes to be tried. Thereafter the case against accused was set down for prosecution evidence.
5. The prosecution in order to establish the guilt of the accused has examined 10 witnesses as Pw.1 to Pw.10 and got marked as many as 9 documents as Ex.P1 to Ex.P9 and closed its side evidence. In view of incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him as false. He has also complied the provision of Section 437-A of Cr.P.C. by executing personal bond and surety bond. Thereafter arguments heard from both the sides and the matter is set down for judgment.
5 Spl.C.C.156/2018
6. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
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3. DgÉÆæAiÀÄÄ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸À¼ Ü À ºÁUÀÆ ¸ÀAzÀ¨ð sÀ zÀ°è C¥Áæ¥ÀÛ ªÀAiÀĹì£À ²ªÀPÀĪÀiÁgï JA§ ºÀÄqÀÄUÀ££ À ÀÄß vÀ«Ä¼ÀÄ£Ár¤AzÀ UÀįÁªÀÄ£À£ÁßV Rjâ¹ PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ PÁ£ÀÆ£ÀÄ «gÀÄzÀª Ý ÁV ºÉa£ Ñ À CªÀ¢A ü iÀÄ°è zÀÄr¹ PÉÆAqÀÄ, ªÀÄÆ®¸ËPÀAiÀÄðUÀ¼£ À ÀÄß ¤ÃqÀzÃÉ , ªÁ¸ÀPÉÌ AiÉÆÃUÀåªÀ®z è À ¸À¼ Þ z À ° À è PÀÆr ºÁQ, ¸ÀjAiÀiÁzÀ ¸ÀA§¼À ¤ÃqÀzÃÉ , ºÉÆgÀUÉ ºÉÆÃUÀ®Ä ¸ÀºÁ ©qÀz,É fÃvÀzÁ½£ÀAvÉ zÀÄr¹PÉÆAqÀÄ PÀ®A.6 ªÀÄvÀÄÛ 14gÀ ZÉʯïØ ¯Éçgï (¥Á滩µÀ£ï CAqï gÉUÀÄå¯ÉñÀ£ï) DPïÖ 1986 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀªÀ ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. AiÀiÁªÀ DzÉñÀ?
7. My findings on the above points are as under:-
Point No.1: In the Negative.
6 Spl.C.C.156/2018 Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per the final orders for the following:
REASONS
8. Point No.1 to 3:- As these points are inter-related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
9. Perused the entire record, charge sheet, evidence produced both at oral and documentary and by the prosecution and arguments canvassed by the learned advocate for accused and the learned Public Prosecutor.
10. In order to prove the alleged offences against the accused, the prosecution has examined in all 10 witnesses as Pw.1 to Pw.10, got marked 9 documents as Ex.P1 to Ex.P9. As per the prosecution case, Pw.1 is the father of the victim boy, Pw.2 is the doctor, Pw.3 is superintendent of Balakara Bala Mandira, Pw.4 and Pw.5 are Panch witnesses, Pw.7 is the complainant, Pw.6, Pw.8 to Pw.10 are the police persons and Investigation Officer. Hence, this Court shall proceed to see 7 Spl.C.C.156/2018 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 on 22-07- 2015 at about 02.00p.m., within the jurisdiction of Madiwala Police Station, Bengaluru at Mangammana Palya Main Road in Ambur Chicken Biriyani Shop, when Cw.1 and Cw.2 along with Cw.22 and Cw.23 raided the said shop, a child labour having age of 15 years viz., Shiva Kumar was found working in that shop and the accused being the owner of said shop by influencing money on him was extracting work from the said child for more than 10 hours in a day forcibly without providing basic necessities to him and without payment of salary to him and thereby committed offences punishable under Section 370 of I.P.C, Section 3 and 14 of Child Labour (Prohibition & Regulation) Act and Section 23 and 26 of J.J. Act. Hence this Court shall proceed to see whether the prosecution has succeeded in establishing all the above said ingredients of the alleged offences against the accused beyond all reasonable doubt.
8 Spl.C.C.156/2018
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, Section 23 and 26 of J.J. Act and Section 6 and 14 of Child Labour (Prohibition & Regulation) 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.
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 9 Spl.C.C.156/2018 purpose shall be punishable with imprisonment for a term which may extend to three years also be liable to fine.
Section 14 of The Child Labour (Prohibition and Regulation) Act, 1986 defines that:
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 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 there under Shall be punishable with simple imprisonment which may extend to one month of with fine which may extend to ten thousand rupees or with both.
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.
10 Spl.C.C.156/2018
13. By going through the evidence of Pw.7-Vani Kantli, the complainant herein and State programme Co-Ordinator of Bachpan Bachao Andolan, she has deposed that on 22-07- 2017she has received information in respect of at Mangammana Palya, the shop owners extracting work from child labour unlawfully, immediately she went to the police station and taken Hoysala team to Mangammana Palya at about 2.00 p.m., raided the shop, where the child labours are working, out of the said raiding shops, the accused is also one of the owner of shop, who was running Biriyani shop and he has engaged a minor boy Shiva Kumar, aged about 15 years. On enquiry with the victim boy, he has stated he has come from Tamil Nadu and doing work from morning 10.00 a.m., to evening 6.00 p.m., the salary not yet given to him. Since he is minor boy, they rescued him, taken to Madiwala Police Station, lodged complaint as per Ex.P5. On seeing the said child, she came to know his age was 15 years, thereafter she has handed over the said child to Balakara Bala Mandira, her signature is Ex.P5(a). Thereafter the police conducted mahazar as Ex.P6 and her signature is Ex.P 6(a).
11 Spl.C.C.156/2018
14. The accused tested her veracity by eliciting some commission and omission and also elicited she has not whispered the name of the accused in her complaint-Ex.P5. He has also denied of engaging minor boy in his shop by extracting work unlawfully for that she has denied the same. The accused has also denied the other evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by him. With this observation, now left with the available material evidence placed by the prosecution to known about the minor boy Shiva Kumar was working in Ambur Chicken Biriyani shop of accused.
15. By going through the evidence of Pw.1-Murugesh, the father of the minor boy Shiva Kumar, he has deposed that he is having three children, viz., Shiva Kumar, Shakati and Dhanalakshmi, his wife's name is Radha. His eldest son is aged 21 years and he is doing agriculture work, Shiva Kumar is also doing agriculture work his age is 18 years, he know the accused, but at no point of time he has joined his son Shiva Kumar in the shop of accused to do the work for salary. He 12 Spl.C.C.156/2018 has not given any statement before police. This witness turned hostile to the case of prosecution and prosecution treated him as hostile to the case of prosecution and suggested each and ever word of Ex.P1, for that he has denied the same. Through the material independent witness also the prosecution fails to establish alleged offences against accused beyond all reasonable doubt.
16. By going through the evidence of Pw.5-Syed Rasool, He is the neighbouring shop owner, who was running 'Eye Optical & Plus' shop in Mangammana Palya Main road at Muniyamma Complex. He has deposed that accused is the neighbouring shop owner and running Biriyani shop. He doesn't know what case registered against him, he has not given any statement before police. He has not seen about the work of the minor boy in the hotel of accused at any time. The prosecution treated him as hostile to the case of prosecution and suggested each and every word of Ex.P4, for that he has denied the same. Through the evidence of this witness also, the prosecution fails to establish the alleged offence against accused beyond all reasonable doubt.
13 Spl.C.C.156/2018
17. By going through the evidence of Pw.4-Bhavar Lal, the owner of Ramdev Bankers, a Pawn broker, running in Manjunatha building, situated at Mangammana Palya Main Road. He has deposed that he has not seen the accused earlier. Limra Provision Stores is his neighbouring shop, he doesn't know the owner of the said shop, the accused is not the owner of said shop, he has not seen minor boy-Kalyan and not given any statement to the police. The prosecution treated him as hostile to the case of prosecution and suggested each and every word of Ex.P3, for that he has denied the same. Since, this witness is not a material witnesses to this case, as such his evidence is in no way helpful to the prosecution, to prove the alleged offences against accused beyond all reasonable doubt.
18. By going through the evidence of Pw.2-Dr.Seema. R.T., she has deposed that after examining the victim boy, she has given Ex.P2-age certificate and as on the date of incident, he was aged 15 years. The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to his defense. At this stage, this Court feels to 14 Spl.C.C.156/2018 observe that when the father of victim boy turned hostile to the case of prosecution in respect of non-joining his son as child labour in the shop of accused, question of considering the age of victim as per Ex.P2 favouring to prosecution doesn't arises.
19. By going through the evidence of Pw.3-R.Kempanna, Retired Superintendent of Balakara Bala Mandir, he has also deposed that on the direction of CWC, he has received the victim boy, provided facility to him in the said Mandir and also after enquiring with the parents of victim boy, he has given the custody of victim boy to his parents. He has also received Ex.P2-medical certificate of victim. The accused tested the veracity of evidence of this witness and also elicited that he has not recorded the statement of victim boy and also his parents. At this stage, this Court feels to observe that when he has not recorded the statement of victim boy and his parents, question of believing the victim was working under the accused in the said Chicken Biriyani Shop doesn't arises. At this stage, the evidence of this witness is a formal one.
15 Spl.C.C.156/2018
20. By going through the evidence of Pw.6-Rama Krishnaiah-P.S.I, he has deposed that on 22-07-2015 he was in Hoysala Jeep-182, when he was on Gastu duty at Mangammana Palya main road, at that time the complainant came along with children stating that those minor boys were engaged for work in shops and she has rescued six children and requested for his help. On hearing the request he and Cw.24 brought the said children to police station and produced before the SHO and given statement. The accused tested the veracity of evidence of this witness and also elicited that he doesn't know who is that lady and she has not given request in writing. At this stage, this Court feels to observe that if the above said admission is taken into consideration, there is a doubt of participation of this witness in the alleged raid as contended by the complainant-Pw.7. At this stage the evidence of this witness is a formal one.
21. By going through the evidence of Pw.9-Sundaresh- DHC-18327, he has deposed that on 22-07-2015 he was the driver of Hoysala Jeep-182, when he was on Gastu duty at Mangammana Palya main road, at that time the complainant 16 Spl.C.C.156/2018 came along with children stating that those minor boys were engaged for work in shops and she has rescued six children and requested for his help. On hearing the request he and Cw.22 brought the said children to police station and produced before the SHO. The accused tested the veracity of evidence of this witness and also elicited that he doesn't know who is that lady and she has not given request in writing. Further he has admitted that he didn't go near any shop, but the said lady brought those children on the road. He doesn't know the boundary of said shop in question, he doesn't know who was the owner of said shop and also the owner of the building. At this stage, this Court feels to observe that if the above said admission is taken into consideration, there is a doubt of participation of this witness in the alleged raid as contended by the complainant-Pw.7. At this stage the evidence of this witness is a formal one.
22. By going through the evidence of Pw.10-B.S. Nagamani-P.S.I., she has deposed that she has recorded the statement of victim boys and statement of victim boy of this case-Shiva Kumar is Ex.P8 and her signature is Ex.P8(b). But 17 Spl.C.C.156/2018 the prosecution not produced the victim boy to give his evidence and also the father of victim boy turned hostile to prosecution case. Though the accused cross-examined this witness by eliciting some commission and omission by denial suggestion, for that she has denied the same. At this stage, this Court feels to observe the evidence of this witness is a formal one.
23. By going through the evidence of Pw.8-R.Francis- Retired P.S.I., he has deposed that on 22-07-2015 at about 03.00 p.m., he has received complaint from Cw.1 as per Ex.P5, registered the case in Crime No.1339/2015, entered Shara and signed as per Ex.P5(b). He has prepared FIR as per Ex.P7 and his signature is Ex.P7(a). He has produced the rescued children before SJPU, who in turn recorded their statement. Ex.P8 is the statement of victim boy-Shiva Kumar and his signature is Ex.P 8(a). He went to the spot, conducted mahazar as per Ex.P6 and his signature is Ex.P6(b), but the Panch witnesses turned hostile to the prosecution case. Further he has deposed the father of victim boy given his statement as per Ex.P1, whereas the said witness denied the same. He has recorded statement of Cw.2 to Cw.24, wherein Bhavar Lal stated as per Ex.P3, Syed 18 Spl.C.C.156/2018 Rasool stated as Ex.P4, he has arrested the accused and produced before Court. He has received age certificate of victim boy as per Ex.P2 and his signature is Ex.P2(a) He has handed over the victim boy to his father as per Ex.P9 and his signature is Ex.P9(a). Thereafter he has filed charge sheet against accused. Here, the accused has not disputed running of shop in the name and style of Ambur Chicken Biriyani, but at the same time his defense is that he has not engaged any child labour in his Chicken Centre and extracted work from him. Here, the prosecution fails to produce the evidence of victim boy to believe the alleged offences against accused beyond all reasonable doubt.
24. The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by him. At this stage, this Court feels to observe that the evidence of this witness is a formal one. When there is drastic stand taken by the accused that the alleged offences are false one, it is the bounden of the prosecution to prove by producing corroborative and cogent evidence. Further the 19 Spl.C.C.156/2018 produced Panch witnesses and father of victim boy are turned hostile to prosecution case. The only evidence made available by the prosecution is of doctor and police officials, unless and until produces, corroborative, cogent independent oral and documentary evidence of eye witnesses, circumstantial witnesses and local persons evidence, it is not safe to accept the alleged offences against accused.
25. The oral and documentary evidence placed on record by the prosecution is insufficient to prove the alleged offences against accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablise the defense of the accused rather than the case of the prosecution.
26. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.10 and documentary evidence as per Ex.P1 to Ex.P9, placed on record in respect of alleged offences, is insufficient to prove that on 22-07-2015 at about 02.00p.m., within the jurisdiction of Madiwala Police Station, Bengaluru at Mangammana Palya Main Road in Ambur Chicken Biriyani 20 Spl.C.C.156/2018 Shop, when Cw.1 and Cw.2 along with Cw.22 and Cw.23 raided the said shop, a child labour having age of 15 years viz., Shiva Kumar was found working in that shop and the accused being the owner of said shop by influencing money on him was extracting work from the said child for more than 10 hours in a day forcibly without providing basic necessities to him and without payment of salary to him and thereby committed offences punishable under Section 370 of I.P.C, Section 6 and 14 of Child Labour (Prohibition & Regulation) Act and Section 23 and 26 of J.J. Act beyond all reasonable doubt. Consequently, I hold Point No.1 to 3 in the "Negative".
27. Point No.4:- For the above said reasons and discussions on Point No.1 to 3, 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, Section 23 and 26 of J.J. Act and Section 6 and 14 of Child Labour 21 Spl.C.C.156/2018 (Prohibition & Regulation) Act. His bail bond and surety bond stands cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 23rd Day of November 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Murugeshan Cw.5 09-07-2018 Pw.2 Dr.Seema.R.T. Cw.20 25-08-2018 Pw.3 R.Kempanna Cw.19 25-08-2018 Pw.4 Bhavar Lal Cw.11 10-09-2018 Pw.5 Syed Rasool Cw.14 10-09-2018 Pw.6 Ramakrishnaiah Cw.22 17-09-2018 Pw.7 Vani Kantli Cw.1 17-09-2018 Pw.8 R. Francis Cw.24 17-09-2018 Pw.9 Sundaresh Cw.23 12-10-2018 Pw.10 B.S.Nagamani Cw.21 30-10-2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Statement of Pw.1 Pw.1 09-07-2018 Ex.P 2 Medical examination Pw.2 25-08-2018 certificate of victim 22 Spl.C.C.156/2018 Ex.P 2a Signature of Pw.8 Pw.8 17-09-2018 Ex.P 3 Statement of Pw.3 Pw.3 10-09-2018 Ex.P 4 Statement of Pw.4 Pw.4 10-09-2018 Ex.P 5 Xerox copy of complaint Pw.7 17-09-2018 Ex.P 5a Signature of Pw.7 Pw.7 17-09-2018 Ex.P 5b Signature of Pw.8 Pw.8 17-09-2018 Ex.P 6 Mahazar Pw.7 17-09-2018 Ex.P 6a Signature of Pw.7 Pw.7 17-09-2018 Ex.P 6b Signature of Pw.8 Pw.8 17-09-2018 Ex.P 7 FIR Pw.8 17-09-2018 Ex.P 7a Signature of Pw.8 Pw.8 17-09-2018 Ex.P 8 Statement of victim Pw.8 17-09-2018 Ex.P 8a Signature of Pw.8 Pw.8 17-09-2018 Ex.P 8b Signature of Pw.10 Pw.10 30-10-2018 Ex.P 9 Acknowledgement Pw.8 17-09-2018 Ex.P 9a Signature of Pw.8 Pw.8 17-09-2018 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION
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LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
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L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE