Karnataka High Court
Puttaswamy Gowda S/O Lt Nanjaiah vs State Of Karnataka on 3 January, 2017
Equivalent citations: 2017 (1) AKR 774
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.743 OF 2009
CONNECTED WITH
CRIMINAL APPEAL No.766 OF 2009
CRIMINAL APPEAL No.332 OF 2010
CRIMINAL APPEAL No.333 OF 2010
IN CRL.A.No.743/2009
BETWEEN:
1. Puttaswamy Gowda,
Son of Late Nanjaiah,
Aged about 68 years,
Proprietor of Chamundeswari
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
2. Arun Kumar,
Sonof Puttaswamygowda,
Aged about 39 years,
Chamundeswari
2
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
3. Shivaiah,
Son of Nanjanayaka,
Aged about 40 years,
Welder in Yogesh Industries,
Resident of Sugade Village,
Harawe Hobli,
Chmarajanagara District.
...APPELLANTS
(By Shri S.K.Venkata Reddy, Advocate)
AND:
State of Karnataka,
By Srirangapatna Police,
Mandya District.
...RESPONDENT
(By Shri B. Visweswaraiah, Government Pleader)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellants praying to set aside the impugned judgment of
conviction and order of sentence dated 22.8.2009, passed in
Spl.C.No.48/2000, by the Additional Sessions and Special Judge,
Mandya - convicting the appellants/accused No.1, 2 and 6 for the
offence punishable under Sections 347 and 357 of IPC and
Sections 16 and 18 of the Bonded Labour System (Abolition) Act
of 1976 and Accused No.1 is also found guilty of an offence under
Section 17 of the Bonded Labour System (Abolition) Act, 1976
and accused No.6 is found guilty of offences under Section 357 of
3
IPC and Section 20 of the Bonded Labour System (Abolition) Act,
1976 and etc;
IN CRL.A.No.766/2009
BETWEEN:
Mahalinga,
Son of Contractor Huchaiah,
Aged about 61 years,
Residing at No.252,
Hebbala Industrial Area,
Mysore.
...APPELLANT
(By Shri M.B.Ramachandra, Advocate)
AND:
State of Karnataka,
By Srirangapatna Police,
(represented by
State Public Prosecutor).
...RESPONDENT
(By Shri B. Visweswaraiah, Government Pleader)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellants praying to set aside the impugned judgment of
conviction and order of sentence dated 22.8.2009, passed in
Spl.C.No.48/2000, by the Additional Sessions and Special Judge,
Mandya - convicting the appellant/accused No.5 for the offence
punishable under Section 357 of IPC and Section 20 of the
Bonded Labour System (Abolition) Act of 1976 and etc;
4
IN CRL.A.No.332/2010
BETWEEN:
State of Karnataka,
By Srirangapatna Police,
...APPELLANT
(By Shri B. Visweswaraiah, Government Pleader)
AND:
1. Puttaswamy Gowda,
Son of Late Nanjaiah,
Aged about 69 years,
Proprietor of Chamundeswari
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
2. Arun Kumar,
Sonof Puttaswamygowda,
Aged about 40 years,
Chamundeswari
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
3. Mahalinga,
Son of Contractor Huchaiah,
Residing at No.252,
Hebbala Industrial Area,
Aged 71 years,
Proprietor of Yogesh Industries,
5
Mysore.
4. Shivaiah,
Son of Nanjanayaka,
Aged about 41 years,
Resident of Sugade Village,
Welder in Yogesh Industries,
Mysore native of Sugade Village,
Harawe Hobli,
Chmarajanagara District.
...RESPONDENTS
(By Shri S.K.Venkata Reddy, Advocate for Respondent Nos. 1 ,2
and 4;
Shri M.B.Ramachandra, Advocate for Respondent No.3)
*****
This Criminal Appeal filed under Section 377 of the Code
of Criminal Procedure, 1973, by the State Public Prosecutor for
the State praying to impose maximum sentence by modifying the
sentence imposed on 22.8.2009 passed by the Additional Sessions
and Special Judge, Mandya in Spl.C.No.48/2000 - convicting the
respondents/accused No.1 for the offence punishable under
Sections 347 and 357 of IPC and Sections 16 and 18 of the
Bonded Labour System (Abolition) Act of 1976 and
respondent/accused No.2 for the offence punishable under
Sections 347 and 357 of IPC and Section 16 and 18 of the Bonded
Labourt System (Abolition) Act, 1976. Respondents/accused
No.5 and 6 for the offence punishable under Section 357 of IPC
and Section 20 of Bonded Labour System (Abolition) Act, 196
and etc;
IN CRL.A.No.333/2010
BETWEEN:
State of Karnataka,
By Srirangapatna Police,
...APPELLANT
6
(By Shri B. Visweswaraiah, Government Pleader)
AND:
1. Puttaswamy Gowda,
Son of Late Nanjaiah,
Aged about 69 years,
Proprietor of Chamundeswari
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
2. Arun Kumar,
Son of Puttaswamygowda,
Aged about 40 years,
Chamundeswari
Stone Crushing Industry,
Resident No.2572/1,
2nd Cross, Kalidasa Road,
Ontikoppalu,
Mysore.
3. Seena @ Srinivasa,
Son of Nanjappa,
Aged 43 years,
Supervisor,
Chamundeshwari Stone Crushing
Industry, Kalidasa Road,
Ontikoppalu,
Mysore.
4. Muniyappa,
Son of Gangashetty,
Aged 55 years,
Maistry in Chamundeshwari Stone Crushing
7
Industry
Resident of Ganganadoddi Village,
Kollegal Taluk.
5. Mahalinga,
Son of Contractor Huchaiah,
Residing at No.252,
Hebbala Industrial Area,
Aged 71 years,
Proprietor of Yogesh Industries,
Mysore.
6. Shivaiah,
Son of Nanjanayaka,
Aged about 41 years,
Resident of Sugade Village,
Welder in Yogesh Industries,
Mysore native of Sugade Village,
Harawe Hobli,
Chmarajanagara District.
...RESPONDENTS
(By Shri S.K.Venkata Reddy, Advocate for Respondent Nos. 1 to
4 & 6;
Shri M.B.Ramachandra, Advocate for Respondent No.5)
*****
This Criminal Appeal filed under Section 378(1) and (3) of
the code of Criminal Procedure, 1973, by the State Public
Prosecutor for the State praying to grant leave to file an appeal
against the judgment and order of acquittal dated 22.8.2009 passed
by the Additional Sessions and Special Judge, Mandya in
Spl.C.No.48/2000 - acquitting the respondents/accused for the
offence punishable under Sections 346 and 506 of IPC and
Section 3(1)(vi)(x) and (xv) of SC/ST (PA) Act.
These Criminal Appeals having been heard and reserved on
05.12.2016 and coming on for pronouncement of Orders this day,
the Court delivered the following:-
8
JUDGMENT
These appeals are heard and disposed of together as they are preferred against the same judgment.
2. The appeal in Crl.A.743/2009 is filed on behalf of Accused nos.1, 2 and 6. The appeal in Crl.A.766/2009 is filed on behalf of Accused no.5.
The appeal in Crl.A.332/2010 is filed on behalf of the State, challenging the acquittal of Accused nos.3 and 4 of all charges and in so far as the acquittal of Accused no.1, 2, 5 and 6 in respect of charges under Sections 346 and 506 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and Sections 3(1)(vi)(x) & (xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the 'SC & ST Act', for brevity).
3. The appeal in Crl.A.333/2010 is filed on behalf of the State seeking enhancement of sentence imposed against Accused nos.1 & 2, for the offences punishable under Section 347 IPC and 9 Sections 16 & 18 of the Bonded Labour System (Abolition) Act, 1976 (Hereinafter referred to as the 'BLSA Act', for brevity) And as against Accused nos.5 and 6 for the offence punishable under Section 20 of the BLSA Act.
The brief background to this case is that one K.S. Nanje Gowda, who is said to be a leader of the Raitha Sangha party, is said to have lodged a complaint as on 22-6-2000 before the Arekere police, to the effect that when he and his followers visited Doddapalya village in connection with their party work, one Lokesh of that village is said to have informed them that one Puttuswamy Gowda had been forcibly extracting work from many workers and that he kept them in chains on their legs and was also given to tying up the workers to trees and brutally assaulting them with weapons, at his stone quarry in Hangarahalli and is said to have requested them to enquire into the same. It was further claimed that the complainant had collected a full contingent of members of the media, his friends and followers and rushed to the quarry named. There it is said many persons were found toiling at the quarry and others were found in chains in some shelters. On 10 enquiry with the said persons, it was said to have been revealed that they were in chains for almost three years and that they were not allowed to move about freely nor sleep with their families and were forced to work continuously with chains on their legs. They had claimed that they were bovis by caste and that they had been subjected to inhuman treatment. When the complainant and others had accosted the son of Nanje Gowda, one Arun Kumar and are said to have questioned him about the goings-on, he is said to have denied the allegations and asserted that they were engaged in legitimate activity and that the complainant and others were only seeking to foist a false case and even threatened to have them forcibly removed from the place.
It was pursuant to the complaint that the Arekere police had registered a case in Crime no.84/2000, under Sections 346, 347, 371, 357 and 506 IPC and under Sections 3 and 14 of the Child Labour Prevention and Regulation Act, 1986 (Hereinafter referred to as the 'CLPR Act', for brevity) and Section 3(ii)(iii)
(vi)(x) & (xv) of the SC & ST Act.
11
After further investigation by the Deputy Superintendent of Police, Srirangapatna, the case was said to have been transferred to the Corps of Detectives, Bangalore and a charge sheet was ultimately filed for the aforesaid offences as well as for offences punishable under Sections 16,17,18 & 20 of the BLSA Act. There were six accused in all. Accused no.1, was said to be the proprietor of Chamundeshwari Stone Crushing Industry. Accused no.2 was said to be the son of accused no.1 and was said to be in charge of the industry. Accused no.3 was said to be the nephew of Accused no.1, Accused no.4 was said to be a supervisor working at the above industry. Accused no. 5 was said to be the proprietor of M/s Yogesh Industries, where the victims were found to have been shackled and Accused no. 6 was said to be an assistant of Accused no.5.
A case was registered before the Sessions Judge, Mandya, in view of the provisions of the SC & ST Act being attracted. The accused had pleaded not guilty and claimed to be tried. The prosecution is said to have examined 83 witnesses and marked 182 exhibits and 11 material objects. The trial court, on a 12 consideration of the material on record, having acquitted Accused nos.3 & 4 and having convicted Accused nos.1 & 2 for the offences punishable under Sections 347 & 357 IPC and Sections 16 to 18 of the BLSA Act and also having convicted Accused no.5 & 6 for the offences punishable under Section 357 IPC and Section 20 of the BLSA Act, while acquitting Accused no.1, Accused no.2, Accused no.5 and Accused no.6 of charges under Sections 346 & 506 IPC and all charges under the SC & ST Act, the present appeals are filed both by the accused and the State.
4. The learned counsel Shri S.K. Venkata Reddy appearing on behalf of Accused no.1,2 & 6 would contend that as seen from the record, PW-2 to PW-6 were the alleged victims, when examined in Court had deposed that they were workers in the quarry. It was stated that a film crew, who were shooting for a Tamil commercial film had come to the quarry and had offered them money to wear shackles on their legs while being seen to work and that the shooting had gone on for three days. It was during this time, according to the witnesses, that the Raitha Sangha persons along with media personnel had visited the quarry 13 and had chosen to report to the police of forced bonded labour and other atrocities. Thus, they had not supported the case of the prosecution. It is further pointed out, that the matter had reached this court in a petition in Crl.P 3584/2002, questioning the inadequacy and want of diligence in conducting the trial and it transpires that this court, by its order dated 4-3-2003, had directed that the witnesses PW-2 to PW-12 be recalled for purposes of further cross examination. It is pointed out that the witnesses were recalled and examined in chief (instead of cross examination). The witnesses are said to have tendered evidence which was inconsistent with their initial version. It is hence contended that such inconsistent testimony would have to be treated as unreliable and that this proposition is well settled.
It is pointed out that 42 witnesses (PW-7 to PW-43, PW-61,68,69,71, 77 & 78 ) had turned hostile and did not support the case of the prosecution. And hence it is contended that the evidence of the hearsay witnesses, namely, PW-45 to 49 or the evidence of the Editor of Madhura Mandya Patrike or the two news reporters, PW-51 or PW-70 and PW-56 & 57, press 14 photographers or the witnesses to the Mahazars could hardly be cited in support of the case of the prosecution. Hence, the evidence of the medical practitioner who had issued 5 wound certificates (Exhibits P-147 to 151) without indicating the age of the injuries, or the evidence of the police officers PW-79 to 83 alone could not have been the basis for the findings of the trial court.
That in so far as the allegations pertaining to offences punishable under the provisions of the BLSA Act is concerned, it is highlighted that the primary requirement of establishing a case under the said provisions was to prove that there was a "bonded debt", that there was an "advance", that there was "bonded labour" and a "bonded labourer" involved, within the scope of the definition of the above expressions, as defined under the Act. It is contended that there is not an iota of evidence nor was it even canvassed by the State. Hence, the findings of the court below are inexplicable and baseless. It is also pointed out that there is no survey conducted nor a report by any Vigilance Committee produced at the trial, in terms of Section 14(e) of the BLSA Act. 15
Further, Shri Reddy takes this court through the record, while pointing out the fallacies committed by the trial court in its reasoning and particularly the trial court's candid expression of lack of evidence in respect of many circumstances, but the court insisting on its responsibility to find the guilt of the accused notwithstanding such lacunae, is particularly striking.
5. The learned counsel appearing for the other accused would seek to adopt the arguments canvassed by Shri Reddy.
6. The learned Government Pleader, while seeking to justify the impugned judgment would argue for enhancement of the punishment imposed on the accused and also seeking that the acquittal of the accused on certain counts, as already stated, be set aside.
7. It is found that it is only if this court should conclude that the accused have not made out a case for interference with the judgment, at their instance , that the case of the State would arise for consideration.
16
Hence, this court proceeds to address the contentions with reference to the judgment of the trial court and the material on record.
It is seen that the trial court has convicted the appellants on the basis of the testimony of the alleged victims and on the basis of testimony of other witnesses, while candidly observing thus, after an analysis of the ambiguous evidence of PW-2 to PW-6, the alleged victims, at paragraph 52 of the judgment:
"...........I am quite conscious that the burden is on the prosecution to establish the charges. But at the same time the court cannot be blind to hard realities".
And again at Paragraph 82 of the judgment , it is observed thus:
"Though the victims, their relatives and co- workers have not fully supported the prosecution, from whatever is stated by and elicited from them, it does emerge that the victims PWs 2 to 6 were shackled with leg chains. Their earlier version that for a film shooting they were made to put on chains cannot be believed..........."17
In the face of the above, the trial court has held that points 2 and 3 framed for its consideration were proved.
However, it is to be seen that the said witnesses had been treated as hostile witnesses in the first instance, as on 26-3-2002 and they did not support the case of the prosecution at all. An application is said to have been filed by the prosecution seeking to recall the said witnesses, by the prosecution. The trial court is said to have rejected the said application. Against which, a petition is said to have been filed before this court, in Crl.P.3584/2002, which is said to have been allowed by an order dated 4-3-2003, permitting the prosecution to cross-examine the witnesses, PW-2 to 12. Accordingly, the witnesses PW-2 to PW- 6 had been recalled and the prosecution is said to have examined the witnesses in Chief (not cross-examined) between 4-1-2004 and 6-1-2004. Again PW-2 and PW-6 did not support the case of the prosecution. However, the indifferent evidence of PW-3 to PW-5, is sought to be relied upon by the trial court in arriving at its findings on point nos.2 & 3. The reasoning of the court below in this regard cannot be justified. It reads as follows : 18
"I am of the opinion that these witnesses being poor persons working in a quarry were put to pressure by both the sides. From the way in which they have given answers before the Court it looks that they obliged not only the accused but also the Raita Sangha activists. But, having taken a stand on an earlier occasion that shackles were put on them only for film shooting and the accused having got such a thing elicited from them, did not do anything further in that direction to establish the same. I am quite conscious of the fact that the burden is on the prosecution to establish its charges. But, at the same time, the Court cannot be blind to hard realities. The evidence of P.Ws.2 to 6 and particularly their inconsistent stand would justify a conclusion that they were won over by the accused. It is precisely for that reason the Hon'ble High Court permitted them to be recalled for further cross-examination. On one occasion they did support the prosecution, but subsequently they gave a different version. There was also time gap between the day on which they were cross-examined by the prosecution and cross-examined by the accused. Anything could have happened in the meantime. It is brought out in their cross-examination that they did not tell any one that shackles were put for purposes of a shooting of a film. Therefore, the inevitable conclusion that could 19 be drawn is that it is the accused who shackled them. Thus, though some of the victims viz., P.Ws.2 and 6 have made themselves totally unreliable and unbelievable P.Ws. 3 to 5 have supported the prosecution to some extent and their evidence could be acted upon."
This reasoning would run against the grain. For it is well settled that where witnesses make two inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. (See: Suraj Mal v. State, (1979) 4 SCC 725.) The further reasoning of the court below that the witnesses may have been won over on account of the time lag between their two testimonials, would only require the court to blame itself in not having held the trial on a day to day basis, keeping with the letter and spirit of Section 309 Code of Criminal Procedure, 1973. 20
It is further noticed that PW-74, the medical practitioner, who had examined the victims for injuries on account of being shackled, has not indicated the age of the injuries said to have been found on the victims. However, one observation by her is relevant. She has stated that around the area where the legs of the victims had been shackled, the skin was of a lighter shade as it may have not been exposed to sunlight. This the trial court has interpreted to indicate that the victims were kept confined and were not exposed to light at all. But the allegations are that they were forced to work and not kept confined at all times.
The age of the injuries was very relevant for the court to have corroborate the varying versions of the witnesses. PW-2, PW-4 and PW-6 had stated that they were chained for three days before the incident of the film shooting took place. PW-3 had stated that he was chained for two years and PW-5 had stated that he was chained for six months. The prosecution claimed that they were all chained for two years. Unless this cloud of confusion was cleared, it was impermissible for the court to have drawn conclusions to the prejudice of the accused.
21
The conviction of the accused under Section 347 IPC, for having confined the victims to extract forced labour, is not justified. The ingredients of the Section do not match the facts brought on record. Forced labour is an offence under the BLSA Act, whereas Section 347 IPC would apply only when the offences committed are covered under the provisions of the IPC and not under any other special law. This is plain from the scope of the term "offence" under Section 40 of the IPC. Hence the conviction of the accused for an offence punishable under Section 347 IPC cannot be sustained.
Conviction of the Accused under Section 357 IPC is also not sustainable, as no question of assault or use of criminal force to confine the victims does not arise when the prosecution has utterly failed to establish the motive for such confinement, when most of the victims and their wives and co-workers had said nothing to this effect and had turned hostile. And the prosecution has also failed to prove its case beyond reasonable doubt against the accused.
22
The trial court has committed a serious error in convicting the appellants under Sections 16, 18 and 20 of the BLS Act, as no charges were framed for offences punishable under the said provisions. This is a glaring circumstance of which serious note is taken.
In any event, to prove an offence under Section 16 of the BLSA Act, the prosecution must prove beyond reasonable doubt that the accused had compelled the victims to render bonded labour. The meaning of the expressions as laid down under the Act makes it clear, that to be a bonded labourer, the main ingredient is that any labour or service under the system of forced or partly forced labour under which a debtor enters, or is presumed to have entered, into an agreement with the creditor to the effect that in consideration of an advance obtained by him or his descendants and so on.
Similar is the case in having to establish an offence punishable under Sections 17, 18 or 20 of the BLSA Act, the prosecution was required to establish that there was a "bonded debt", that there was extraction of "bonded labour", as 23 contemplated in the definition of those expressions in the Act, in alleging that the accused had abetted the commission of the offences.
One other circumstance that is apparent, is that PW-1 was a political leader and he having proceeded to the quarry with his supporters apart from press reporters and photographers would appear to be a well orchestrated plan, to gain maximum publicity. The evidence on record also indicates that accused no.1 was a supporter of the rival JD(S) party, against whose candidate, the candidate of the party to which PW-1 belonged, had lost an election and therefore would have had a motive to frame him in a criminal case. Coupled with the evidence of the victims themselves that they were treated to food in a hotel and were offered other freebies, including house sites to tender evidence against the accused, is clearly glossed over by the trial court.
Given the above reasons and circumstances, it may be said that the prosecution has not established its case beyond reasonable doubt. The Judgment of the trial court cannot be sustained. In the result, the appeals in Crl.A.743/2009 and Crl.A.766/2009 are 24 allowed. Consequently, the appeals by the State in Crl.A.332/2010 and Crl.A.333/2010 do not arise for consideration and are dismissed.
Sd/-
JUDGE nv*