Bangalore District Court
The State Of Karnataka vs Mohammad Meeraj on 18 August, 2017
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 18th Day of August 2017
PRESENT
SMT. SUSHEELA B.A. LL.B.,
L Additional City Civil & Sessions Judge,
Bengaluru
SPECIAL C.C.No.600/2014
COMPLAINANT:
The State of Karnataka
By Cotton Pet Police Station,
Bengaluru
By Public Prosecutor-Bengaluru
/ VERSUS /
ACCUSED:
1. Mohammad Meeraj,
S/o. Sheikh Shafiulla, 29 years,
R/at. Jamava Village & Post,
Ward No.5, Dakha Thana,
Motihari District, Purvi Champaranya,
Bihar State.
Presently residing at
No.8, 1st Cross, Nalabandwadi,
Cotton Pet
Bengaluru.
2 Spl.C.C.No.600/2014
2. Mohammad Tanveer Alam @ Pervez Alam,
S/o. Abdul Maruf, 33 years,
R/at. Ward No.13, No. 1074 Dhaka,
Mehaboothpur, Anjala Dhaka,
East Champaranya District,
Bihar State.
Presently residing at
No.68, M.R.N.Lane, Police Road Cross,
Near Nalabandwadi Mosque,
Cotton Pet
Bengaluru.
Sri.C.G.S., for A-1 & 2-Advocate
1 Date of commission of offence 05-12-2013
2 Date of report of occurrence 05-12-2013
3 Date of arrest of Accused No.1 & 2
Date of release of Accused No.1 & 2 On Bail
Period undergone in custody
by Accused No.1 & 2
4 Date of commencement of evidence 21-10-2016
5 Date of closing of evidence 25-04-2017
6 Name of the complainant Y. Nagaraju
7 Offences complained of Section 370, 374,
344 r/w. 34 of
IPC, 23, 26-J.J.
Act & 3,14 of
Child Labour
Act.
8 Opinion of the Judge Accused No.1
and 2 are
acquitted
3 Spl.C.C.No.600/2014
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Sub-Inspector of Law and Order, Cotton Pet Police Station-Bengaluru, against the accused No.1 and 2 for the offences punishable under Section 370, 374, 344 read with Section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act, and also Section 3 and 14 of Child Labour Act.
2. On perusal of entire records and order sheet, though the charge sheet filed against accused No.1 and 2 in respect of section 3 and 14 of Child Labour Act, but the learned Predecessor in office framed charges only under Section 370, 374, 344 read with section 34 of IPC and section 23 and 26 of J.J. Act. Hence, this case proceeded against accused No.1 and 2 accordingly.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows: 4 Spl.C.C.No.600/2014
The accused No.1 and 2 are running bag manufacturing unit at 1st and 2nd floor respectively in building No.68, M.R.Lane, Nalabandwadi, Cotton Pet, Bengaluru. Earlier to two months of 05-12-2013, the accused No.1 in his bag manufacturing unit trafficking Cw.7 and Cw.8 viz., Dharmendar and Pradeep Kumar from Nepal, as child labours and using their service at bag manufacturing unit by way of forcefully keeping them in unlawful custody, compelled them to work in the said unit and also the accused No.2 at 2nd floor in bag manufacturing unit trafficking Cw.9 to Cw.11 viz., Suraj, Mohammad Fyaz and Kyamulla from Bihar State, as child labours and using their service at bag manufacturing unit by way of forcefully keeping them in unlawful custody and by making use of them as bonded labours and compelled them to work 10 to 12 hours in the said unit and also caused mental and physical harassment to them by not paying proper wages and not providing basic necessities, as 5 Spl.C.C.No.600/2014 a result accused No.1 and 2 committed offences punishable under Section 370, 374, 344 read with Section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act, and also Section 3 and 14 of Child Labour Act.
4. That after filing of charge sheet against the accused No.1 and 2, the committal Court issued summons to accused No.1 and 2 and they appeared before the Court. Thereafter the committal Court furnished charge sheet copies to the accused No.1 and 2 as per Section 207 of Cr.P.C., and passed an order for committing the case to the Hon'ble Principal City Civil & Session Judge-Bengaluru 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 No.1 and 2. In pursuance of the said summons, the accused No.1 and 2 appeared before the Court and they were enlarged on bail. Thereafter the learned advocate for accused No.1 and 2 submitted 6 Spl.C.C.No.600/2014 that he has no arguments before framing charge. As a result perused the entire records and charge sheet, this Court feels to observe that there is prima-facie material available on record against accused No.1 and 2, hence the charges were framed against accused No.1 and 2. The contents of the charge read over and explained in Kannada to the accused No.1 and 2 and the accused No.1 and 2 pleaded not guilty and submit crime to be tried. Thereafter the case against accused No.1 and 2 set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused No.1 and 2 has examined as many as 7 witnesses as Pw.1 to Pw.7, got marked as many as 8 documents as Ex.P1 to Ex.P8 and closed its side evidence. As could be seen from the evidence of Pw.1 to Pw.7, there is incriminating evidence appeared against accused No.1 and 2, hence the accused No.1 and 2 were examined under Section 313 of Cr.P.C., by recording their statement. The 7 Spl.C.C.No.600/2014 accused No.1 and 2 denied the alleged incriminating evidence appeared against them. The accused No.1 and 2 have complied the provision of Section 437-A of Cr.P.C. 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. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ KPÉÆÃzÉÝñÀ¢AzÀ, ¢£ÁAPÀB 05.12.2013gÀAzÀÄ ¨É¼ÀUÉÎ 10.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ¸ÁQë-1 jAzÀ 5 gÀªÀgÀÄ PÁl£ï¥ÉÃmÉ ¥ÉÇðøï oÁuÁ ¸ÀgÀºÀ¢Ý£À £Á®§AzÀªÁr, ¥ÉÇðøï gÀ¸ÉÛ PÁæ¸ï, ©°ØAUï £ÀA.68 gÀ 1 ªÀÄvÀÄÛ 2£Éà ªÀĺÀrAiÀÄ°è 1£Éà DgÉÆæ MAzÀƪÀgÉ ªÀµÀð¢AzÀ ¨ÁåUï vÀAiÀiÁjPÁ WÀlPÀªÀ£ÀÄß ºÉÆA¢zÀÄÝ C°è ¢£ÁAPÀB05.12.2013 QÌAvÀ JgÀqÀÄ wAUÀ¼À »A¢¤AzÀ ¸ÁQë-7 ªÀÄvÀÄÛ 8 C¥Áæ¥ÀÛ ¨Á®PÀ£ÀÄß ªÀÄvÀÄÛ 2£Éà DgÉÆæ ªÉÄÃ¯É ºÉýzÀ «¼Á¸ÀzÀ 2£Éà ªÀĺÀrAiÀÄ°è£À ¨ÁåUÀÄ vÀAiÀiÁjPÁ WÀlPÀPÉÌ ¸ÁQë 9 jAzÀ 11 C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®PÀgÀ£ÀÄß ©ºÁgÀ ªÀÄvÀÄÛ £ÉÃ¥Á¼À¢AzÀ ºÀtzÀ C«ÄµÀ vÉÆÃj¹ ªÀiÁ£ÀªÀ ¸ÁUÁtôPÉ ªÀiÁrPÉÀÆAqÀÄ §AzÀÄ, CªÀgÀ£ÀÄß CPÀæªÀĪÁV §AzÀs£ÀzÀ°è ElÄPÉÆArgÀĪÀÅzÀ£ÀÄß zÁ½ ªÀiÁr ¥ÀvÉÛ ºÀaÑzÀÄÝ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 344 ¸ÀºÀªÁZÀPÀ 34gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀsªÀ£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
2. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ ¸ÀªÀiÁ£À GzÉÝñÀ¢AzÀ ªÉÄÃ¯É PÁtô¹zÀ ¢£À, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ÀsðzÀ°è ¨ÉÃgÉ 8 Spl.C.C.No.600/2014 gÁdå¢AzÀ ¸ÀĪÀiÁgÀÄ 5 C¥Áæ¥ÀÛ ªÀAiÀĹì£À ªÀÄPÀ̼À£ÀÄß ºÀtzÀ C«ÄµÀ vÉÆÃj¹ PÀgÉvA À zÀÄ CPÀæªÀÄ §AzÀs£Àz°À èlÄÖPÉÆAqÀÄ, §®ªÀAvÀªÁV UÀįÁªÀÄgÀ£ÁßV¹ PÉÆAqÀÄ vÀªÀÄä ¨ÁåUÀÄ vÀAiÀiÁjPÁ WÀlPÀUÀ¼À°è PÉ®¸À ªÀiÁr¹PÀÉÆArzÀÄÝ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 370 ¸ÀºÀªÁZÀPÀ 34gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
3. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ ¸ÀªÀiÁ£À GzÉÝñÀ¢AzÀ ªÉÄÃ¯É PÁtô¹zÀ ¢£À, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ÀsðzÀ°è ¨ÉÃgÉ gÁdå¢AzÀ ¸ÀĪÀiÁgÀÄ 5 C¥Áæ¥ÀÛ ªÀAiÀĹì£À ªÀÄPÀ̼À£ÀÄß ºÀtzÀ C«ÄµÀ vÉÆÃj¹ PÉ®¸À PÉÆr¸ÀÄvÉÛÃªÉ JAzÀÄ ºÉý PÀgÉvÀAzÀÄ CPÀæªÀÄ §AzÀ£s ÀzÀ°è ElÄÖ PÉÆAqÀÄ, CªÀgÀ EZÉáUÉ «gÀÄzÀÞªÁV CªÀjAzÀ §®ªÀAvÀªÁV PÉ®¸À ªÀiÁr¹PÀÉÆArzÀÄÝ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 374 ¸ÀºÀªÁZÀPÀ 34gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀsªÀ£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
4. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ ¸ÀªÀiÁ£À GzÉÝñÀ¢AzÀ ªÉÄÃ¯É PÁtô¹zÀ ¢£À, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ÀsðzÀ°è 5 C¥Áæ¥ÀÛ ªÀAiÀĹì£À ªÀÄPÀ̼ÀÄUÀ¼À£ÀÄß ¨ÉÃgÉ gÁdå¢AzÀ ºÀtzÀ C«ÄµÀ vÉÆÃj¹ PÀgÉvÀAzÀÄ ªÉÄÃ¯É ºÉýzÀ vÀªÀÄä ¨ÁåUÀÄ vÀAiÀiÁjPÁ WÀlPÀzÀ°è PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV PÉ®¸ÀPÉÌ £ÉëĹPÉÆAqÀÄ ºÉÆgÀ ºÉÆÃUÀ®Ä ©qÀzÉ ¸ÀzÀj WÀlPÀzÀ°èAiÉÄà CPÀæªÀĪÁV ElÄÖPÉÆAqÀÄ, CªÀgÀ EZÉáUÉ «gÀÄzÀÞªÁV ¢£ÀzÀ°è 10 jAzÀ 12 UÀAmÉUÀ¼À PÁ® fÃvÀzÁ¼ÀÄUÀ¼ÀAvÉ zÀÄr¹PÉÆAqÀÄ ªÀiÁ£À¹PÀªÁV ªÀÄvÀÄÛ zÉÊ»PÀªÁV QgÀÄPÀļÀ ¤Ãr dÄåªÉ£Éʯï d¹Ö¸ï DPïÖ£À PÀ®A 23 ªÀÄvÀÄÛ 26 ¸ÀºÀªÁdPÀ PÀ®A 3 ªÀÄvÀÄÛ 14 gÀ ZÉʯïØ ¯Éçgï DPïÖ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
5. AiÀiÁªÀ DzÉñÀ?
8. My findings on the above points are as under:- 9 Spl.C.C.No.600/2014
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: In the Negative.
Point No.5: As per the final orders for the following:
REASONS
9. Point No.1 to 4:-As these points are interrelated one, hence, I have taken up together for my consideration in order to avoid repetition of reasoning.
10. In order to prove the alleged offences against the accused No.1 and 2, the prosecution has examined in all 7 witnesses as Pw.1 to Pw.7, got marked 8 documents as Ex.P1 to Ex.P8.
11. As per the prosecution case, Pw.1 is the complainant, Pw.2 to Pw.4 are the NGOs and Labour Inspectors, Pw.5 and Pw.7 are the police officials and Pw.6 is the doctor. Hence this Court shall proceed to see whether 10 Spl.C.C.No.600/2014 the available evidence of said witnesses are sufficient for establishing the alleged offences against accused No.1 and
2.
12. In order to establish the alleged offences against accused No.1 and 2, the prosecution is required to prove that the accused No.1 and 2 are running bag manufacturing unit at 1st and 2nd floor respectively in building No.68, M.R.Lane, Nalabandwadi, Cotton Pet, Bengaluru. Earlier to two months of 05-12-2013, the accused No.1 in his bag manufacturing unit trafficking Cw.7 and Cw.8 viz., Dharmendar and Pradeep Kumar from Nepal, as child labours and using their service at bag manufacturing unit by way of forcefully keeping them in unlawful custody, compelled them to work in the said unit and also the accused No.2 at 2nd floor in bag manufacturing unit trafficking Cw.9 to Cw.11 viz., Suraj, Mohammad Fyaz and Kyamulla from Bihar State, as child labours and using their service at bag manufacturing unit by way of forcefully keeping them in unlawful custody and 11 Spl.C.C.No.600/2014 by making use of them as bonded labours and compelled them to work 10 to 12 hours in the said unit and also caused mental and physical harassment to them by not paying proper wages and not providing basic necessities, as a result accused No.1 and 2 committed offences punishable under Section 370, 374, 344 read with Section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act, and also Section 3 and 14 of Child Labour Act. Hence this Court shall proceed to see whether the prosecution has succeeded in establishing all the ingredients of the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
13. Before venturing to scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 344, 370 374 read with section 34 of I.P.C., Section 23 and 26 of J.J. Act.
Section 344 of I.P.C defines that:
Wrongful confinement for ten or more days-Whoever wrongfully confines any person for three days or more, shall be 12 Spl.C.C.No.600/2014 punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
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 374 of I.P.C defines that:
Unlawful compulsory Labour-Whoever unlawfully compels any person to labour against the will of that person, shall be punished with 13 Spl.C.C.No.600/2014 imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 34 of I.P.C defines that:
Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
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.14 Spl.C.C.No.600/2014
14. Here, the prosecution is required to establish initially whether the accused No.1 and 2 are owners or supervisors or controllers over five minor children who are Cw.7 to Cw.11. By going through the entire record, the evidence of Pw.1 to Pw.7 and Ex.P1 to Ex.P8, no such documents placed by the prosecution to establish that the accused No.1 and 2 are the owners of bag manufacturing unit alleged to have been running at the address mentioned in the charge sheet. Non production of sufficient oral and documentary evidence to that effect, it is absolutely fatal to the case of the prosecution. Further on perusal of the evidence of Pw.1 to Pw.7, no such incriminating evidence appeared against accused No.1 and 2 that they are controllers of Cw.7 to Cw.11 who are minors at the relevant point of time, having documentary evidence. Non- production of above said evidence is also absolutely fatal to the case of the prosecution herein. With these now left with the arguments canvassed by the learned advocate for the accused No.1 and 2.
15 Spl.C.C.No.600/2014
15. The learned counsel for the accused No.1 and 2 vehemently argued that the definition of 'child' in the Child Labour (Prohibition and Regulation) Act,1986, wherein also the 'child' defined in section 2(ii) that ''a person who has not completed his fourteenth year of age''. Here except the evidence of Pw.1 and the certificates as per Ex.P3 to Ex.P7 issued by doctor, no such authenticated examination done by doctor in respect of such ossification test and also no such supporting X-rays made available to know the age of child as on the date of raiding of said unit. With these, now left with the very meaning mentioned in J.J. Act in respect of 'child' under section 3(k) "a person who has not completed 18th year of age". Here no doubt it is true as per Ex.P3 to Ex.P7 the age mentioned by the doctor are all below 18 years, but on perusal of Child Labour (Prohibition and Regulation) Act, 1986 Part 'A', ' B' Schedule, no such bag manufacturing unit mentioned in the said schedule. With these, now left with the available material evidence placed by the prosecution is sufficient to believe that the 16 Spl.C.C.No.600/2014 accused No.1 and 2 have committed the alleged offences and the prosecution proves the said offences against them beyond all reasonable doubt.
16. By going through the evidence of Pw.1-Lavanya, one of the NGO working at Bachpan Bachao Andolan, she has received phone call on 03-12-2013 in respect of Mysore Road Nalabandwadi, in one bag manufacturing unit, the child labours are working. As a result she went to AHTU and lodged complaint as per Ex.P1. Thereafter on 05-12-2013 AHTU police, along with NGOs raided the said factory at about 12.00 hours in the noon and found five child labours are stitching bags, immediately they rescued the children and handed over to the police. The unit having small rooms and the said rooms are filled with dirty materials and not cleaned. The children are aged about 12 to 14years, the accused available in the said place stating that they are owners. But in the cross-examination she has admitted that she has signed Ex.P1 in the Cotton Pet Police Station 17 Spl.C.C.No.600/2014 and in her statement she has stated that the owner-Pervez Ahmed was not available in the said unit. Except that no such material evidence given by her to attract ingredients of the offences alleged against the accused No.1 and 2. Further the prosecution failed to establish the case against accused No.1 and 2 through the evidence of Pw.1 beyond all reasonable doubt.
17. By going through the evidence of Pw.2-B.N. Srinivasa Murthy, one of the Police Constable, he has deposed in his chief examination in respect of alleged raid caused on 05-12-2013 at about 12.00 hours noon along with other police persons and NGOs and also rescued two child labours aged about 12 to 14 years who were stitching bags in the first floor and also rescued three children in the second floor. The spot mahazar conducted at the spot itself, thereafter they brought five children to Cotton Pet Police Station and his officer lodged complaint and his signature is Ex.P1(b). Whereas on perusal of Ex.P1 it is, spot 18 Spl.C.C.No.600/2014 panchanama and not the complaint and Ex.P2 is the complaint given by Y.Nagaraju-Dy.S.P. At the cross- examination the accused No.1 and 2 tested his veracity by eliciting some commission and omission and also elicited that:
"ªÀĺÀdgïUÉ ¸À»AiÀÄ£ÀÄß ¸ÀܼÀzÀ°è ªÀiÁrzÉ. £ÁªÀÅ ¸ÀܼÀPÉÌ ºÉÆÃzÁUÀ ªÀÄ£É ªÀiÁ°ÃPÀgÀÄ ªÀÄvÀÄÛ CPÀÌ¥ÀPÀÌzÀªÀgÀÄ EgÀ°®è. D ©Ã¢AiÀÄ AiÀiÁªÀÅzÉà UËgÀªÁ¤évÀ ªÀåQÛUÀ¼ÀÄ ªÀĺÀdgïUÉ EgÀ°®è. ¥ÀAZÀ£ÁªÉÄ ªÀiÁrzÀ £ÀAvÀgÀ zÀÆgÀ£ÀÄß D ¸ÀܼÀzÀ°èAiÉÄà vÀAiÀiÁj¹zÀgÀÄ."
Further elicited that:
"¸ÀzÀj ªÀĺÀdgï£À°è D JjAiÀiÁzÀ UËgÀªÁ¤évÀ ªÀåQÛUÀ¼À ¸À»UÀ¼À£ÀÄß ¥ÀqÉ¢®è JAzÀgÉ ¸Àj. D ªÀÄ£É ªÀiÁ°ÃPÀgÀÄ D ¢£À ¸ÀܼÀzÀ°è EgÀ°®è. £ÁªÀÅ CPÀÌ¥ÀPÀÌzÀ°è CªÀgÀÄUÀ¼À §UÉÎ «ZÁgÀ ªÀiÁqÀ°®è."
Admittedly the alleged bag manufacturing factory is situated in residential area. It is also not in dispute that the said building got neighbours, when such being the case, the question why the Investigating Officer not summoned the neighbours or any other persons known in the locality to conduct mahazar, for that the prosecution fails to substantiate the said fact. Unless and until the 19 Spl.C.C.No.600/2014 prosecution produces independent persons corroborative and co-gent evidence, it is not safe to accept the evidence of Pw.2 at this stage.
18. By going through the evidence of Pw.3-Subhas- Labour Officer, in his chief examination he also given supporting evidence to the evidence of Pw.1 and Pw.2 and it is his evidence that:
"JgÀqÀÄ WÀlPÀUÀ¼À ªÀiÁ°ÃPÀgÀ ºÉ¸ÀgÀÄ UÀÉÆvÁÛU° À ®è. C°èzÀÝ ªÀiÁå£ÉÃdgïUÀ¼À ºÉ¸ÀgÀÄ PÀÆqÀ £É£À¦®è. DgÉÆævÀgÀÄ AiÀiÁgÀÄ JAzÀÄ ¸ÀºÀ UÉÆvÁÛUÀÄwÛ®è."
The accused No.1 and 2 tested his veracity by eliciting some commission and omission and also elicited that:
"£ÀªÀÄä PÀbÉÃjAiÀÄ°è ªÀÄƪÉÄAmï jf¸ÀÖgï EnÖzÉÝêÉ. ¸ÀzÀj jf¸ÀÖgï£À D ¢£ÀzÀ ¸ÀA§AzÀs¥ÀlÖ JPïìmÁæPïÖ£ÀÄß ¥ÉÇðøÀjUÉ PÉÆnÖ®è. £ÀªÀÄä PÀbÉÃjAiÀÄ°è £ÀªÀÄä «¨sÁUÀzÀ°è ºÁdgÁw ¥ÀŸÀÛPÀ EzÉ. £Á£ÀÄ D ¢£À 10.00 UÀAmÉUÉ ºÁdgÁw ¥ÀŸÀÛPÀzÀ°è ¸À» ªÀiÁrzÉ. MAzÀÄ UÀAmÉ PÁ® D ¢£À PÀvÀðªÀåzÀ°èzÉÝ. £ÀªÀÄä PÀbÉÃjAiÀÄ PÀvÀðªÀåzÀ ¢£ÀZÀjAiÀÄ°è F zÁ½AiÀÄ §UÉÎ £ÀªÀÄÆzÁVzÉ, CzÀgÀ JPïìmÁæPïÖ£ÀÄß ¥ÉÇðøÀjUÉ PÉÆnÖ®è."
When the accused No.1 and 2 went to the extent of denying alleged raid and they are no way connected with the bag 20 Spl.C.C.No.600/2014 manufacturing unit, it is bounden duty of the prosecution to prove in what way the accused No.1 and 2 related to the said factory and five children were working in the said unit as per the allegations made by the prosecution. But the prosecution fails to produce corroborative and co-gent oral and documentary evidence to prove the same. Pw.3 went to the extent of deposing that:
"C°è AiÀiÁgÀÆ ªÉÄðéZÁgÀPÀgÀÄ EgÀ°®è. ¨ÉÃgÉ AiÀÄÁªÀ PÉ®¸ÀzÀªÀgÀÄ C°è EgÀ°®è."
The above said evidence also contradicts the case of the prosecution to believe alleged offence against the accused No.1 and 2.
19. By going through the evidence of Pw.4-Niranjan, another Labour Officer, whose evidence is also replica of evidence of Pw.3, but in his cross-examination he has admitted that:
"£ÀªÀÄä PÀbÉÃjAiÀÄ°è ªÀÄƪÉÄAmï jf¸ÀÖgï EnÖzÉÝêÉ. ¸ÀzÀj jf¸ÀÖgï£À D ¢£ÀzÀ ¸ÀA§AzÀs¥ÀlÖ JPïìmÁæPïÖ£ÀÄß ¥ÉÇðøÀjUÉ PÉÆnÖ®è. £ÀªÀÄä PÀbÉÃjAiÀÄ°è £ÀªÀÄä «¨sÁUÀzÀ°è 21 Spl.C.C.No.600/2014 ºÁdgÁw ¥ÀŸÀÛPÀ EzÉ. £Á£ÀÄ D ¢£À 10.00 UÀAmÉUÉ ºÁdgÁw ¥ÀŸÀÛPÀzÀ°è ¸À» ªÀiÁrzÉ."
Again he has deposed that:
"£ÀªÀÄä PÀbÉÃjAiÀÄ PÀvÀðªÀåzÀ ¢£ÀZÀjAiÀÄ°è F zÁ½AiÀÄ §UÉÎ £ÀªÀÄÆzÁVzÉ, CzÀgÀ JPïìmÁæPïÖ£ÀÄß ¥ÉÇðøÀjUÉ PÉÆnÖ®è."
He has also deposed that:
"£ÁªÀÅ AiÀiÁªÀÅzÉà ¨ÁV®ÄUÀ¼À£ÀÄß MqÉzÀÄ M¼ÀUÉ ¥ÀæªÉñÀ ªÀiÁr®è. CAvÀºÀ CªÀ±ÀåPÀvÉ §gÀ°®è. ¨ÁV®£ÀÄß ªÀÄÄaÑzÀg Ý ÀÄ, £ÁªÀÅ ºÉÆÃzÀ £ÀAvÀgÀ ¨ÁV®£ÀÄß vÉUÉzÀgÀÄ. C°è AiÀiÁgÀÆ ªÉÄðéZÁgÀPÀgÀÄ EgÀ°®è. ¨ÉÃgÉ AiÀÄÁªÀ PÉ®¸Àzª À ÀgÀÄ C°è EgÀ°®è.
D PÀlÖqÀPÉÌ ºÉÆgÀV¤AzÀ ©ÃUÀ ºÁQgÀ°®è. D PÀlÖqÀzÀ°è EzÀݪÀgÀÄ AiÀiÁªÁUÀ ¨ÉÃPÁzÀgÀÆ M¼ÀUÉ ºÉÆgÀUÉ MqÁqÀ§ºÀÄ¢vÀÄÛ. CzÉà jÃw 2£Éà CAvÀ¹Û£À°è ¸ÀºÀ AiÀiÁªÀÅzÉà ¨ÁV®ÄUÀ¼À£ÀÄß MqÉzÀÄ M¼ÀUÉ ¥ÀæªÉñÀ ªÀiÁr®è. CAvÀºÀ CªÀ±ÀåPÀvÉ §gÀ°®è. ¨ÁV®£ÀÄß ªÀÄÄaÑzÀÝgÀÄ, £ÁªÀÅ ºÉÆÃzÀ £ÀAvÀgÀ ¨ÁV®£ÀÄß vÉUÉzÀgÀÄ. C°è AiÀiÁgÀÆ ªÉÄðéZÁgÀPÀgÄÀ EgÀ°®è. ¨ÉÃgÉ AiÀÄÁªÀ PÉ®¸ÀzÀªÀgÀÄ C°è EgÀ°®è. D PÀlÖqÀPÉÌ ºÉÆgÀV¤AzÀ ©ÃUÀ ºÁQgÀ°®è. D PÀlÖqÀzÀ°è EzÀݪg À ÀÄ AiÀiÁªÁUÀ ¨ÉÃPÁzÀgÀÆ M¼ÀUÉ ºÉÆgÀUÉ MqÁqÀ§ºÀÄ¢vÀÄÛ."
If the above said evidence is taken into consideration it contradicts with the case of the prosecution and the prosecution fails to establish the alleged offence against the accused No.1 and 2.
20. By going through the evidence of Pw.5- Y.Nagaraj-Dy.S.P., he has deposed that he has received 22 Spl.C.C.No.600/2014 information from NGO who were working in Bachpan Bachao Andolan stating that within the jurisdiction of Cotton Pet Police Station, in some leather bag factory, the owners are getting services of minor children and they were trafficking from outside the State, immediately he along with his team and NGO coupled with Labour Officers raided the spot and came to know in first floor of the factory two minor children viz., Dharmendar and Pradeep Kumar were working and in second floor three children viz., Suraj, Mohammad Fyaz and Kyamulla were working by doing cutting and stitching of leather bags. They have rescued five minor children and conducted mahazar as per Ex.P1 and his signature is Ex.P1(a). The mahazar prepared at spot itself through laptop by typing by H.C. Srinivasa Murthy. Thereafter he came to station along with rescued children and lodged complaint as per Ex.P2 and his signature is Ex.P2. He has also recorded the statements of labour officers. The accused persons tested his veracity by eliciting some commission and omission and also elicited 23 Spl.C.C.No.600/2014 that he has not informed to the concerned Police Station to accompanying with his team for raid. Further he was tested his veracity and also elicited that:
"£É® CAvÀ¹Û£À°è ªÀÄvÀÄÛ CPÀÌ¥ÀPÀÌzÀ°è AiÀiÁjzÁÝgÉ JA§ §UÉÎ «ZÁgÀ ªÀiÁqÀ°®è. CPÀÌ¥ÀPÀÌzÀªÀgÀ£ÀÄß, ªÀÄAiÀiÁðzÀ¸ÀÜ ªÁå¥ÁgÀ¸ÀÜgÀ£ÀÄß ¥ÀAZÀgÁV ¸ÀºÀPÀj¸ÀĪÀAvÉ PÉÆÃjzÀ §UÉÎ zÁR¯ÉUÀ¼ÀÄ EgÀĪÀÅ¢®è. D jÃw ¥ÀæAiÀÄvÀß ªÀiÁrzÀ §UÉÎ ¸ÀºÀ zÁR¯ÉUÀ¼ÀÄ E®è. CPÀÌ ¥ÀPÀÌzÀªÀgÀ£ÄÀ ß, ªÀÄAiÀiÁðzÀ¸ÀÜ ªÁå¥ÁgÀ¸ÀÜgÀ£ÀÄß ¥ÀAZÀgÁV ¸ÀºÀPÀj¸ÀĪÀAvÉ PÉÆÃjzÀÉ DzÀgÉ CªÀgÀÄ ¸ÀºP À Àj¸À°®è."
The above said elicitation also discloses having neighbours by the side of factory in question, but the police not secured independent witnesses for conducting mahazar as per Ex.P1. Further he has shown his ignorance stating that who has summoned by him and who has refused to participate the process of conducting mahazar. He has also admitted that he has not stated in his complaint what was the work being done by Dharmendar and Pradeep Kumar and even in the mahazar also he has not stated. He has also admitted that he has not stated the nature of participation of Mohammad Fyaz and Kymulla in his 24 Spl.C.C.No.600/2014 complaint and mahazar. When there is drastic stand taken by the prosecution, it is its bounden duty to prove what was the nature of the work done by the five minor children at the time of alleged raid, none stating the same is absolutely fatal to the case of the prosecution. Further he has admitted that he has not seized the bag, clothes, seizers and other things alleged to have been available at the time of mahazar at that place. This piece of evidence also creates doubt whether the accused persons engaged minor children services at the bag manufacturing factory as alleged by the prosecution. Viewing from available material evidence of Pw.5 this Court feels to observe that the prosecution fails to establish the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
21. By going through the evidence of Pw.6- Dr.Lallitha, who has issued age certificates of five children as per Ex.P3 to Ex.P7, but in her cross examination she has shown her ignorance as to who has produced all the five 25 Spl.C.C.No.600/2014 children before her and also she has not mentioned the said fact in the certificates. She has also admitted that no such written requisition received by her for examination of minor children. Further she has also admitted that:
"D¹¦üPÉñÀ£ï ¥ÀjÃPÉëAiÀÄ£ÀÄß ªÀiÁqÀ¯ÉèÉÃPÉAzÀÄ E®è PÉêÀ® zÀAvÀ¥ÀjÃPÉë ªÀiÁrzÀgÉ ¸ÁPÀÄ, CªÀ±ÀåPÀvÉ EzÀÝ°è PÀëQgÀt ¥ÀjÃPÉë ªÀiÁqÀÄvÉÛêÉ. ªÀAiÀĹì£À zÀÈrüÃPÀgÀtzÀ ¥ÀjÃPÉë §UÉÎ PÀë- QgÀt ¥ÀjÃPÉëAiÀÄ ªÀÄÄSÁAvÀgÀ ªÀÄƼÉUÀ¼À ¨É¼ÀªÀtôUÉ ¥ÀjÃPÉë ªÀiÁqÀ¨ÉÃPÀÄ JAzÀgÉ ¸ÁQë £Á£ÀÄ PÉêÀ® zÀAvÀ ¥ÀjÃPÉë ªÀiÁrzÉÝ. D ªÀÄPÀ̼À zÀAvÀUÀ¼ÀÄ JµÀÄÖ EzÀݪÀÅ ªÀÄvÀÄÛ AiÀiÁªÀ jÃw ¨É¼É¢zÀݪÀÅ JA§ §UÉÎ £ÀªÀÄÆzÀÄ ªÀiÁr®è. ªÀÄƼÉUÀ¼À ¨É¼ÀªÀtôUÉ §UÉÎ C©ü¥ÁæAiÀÄ ¥ÀqÉAiÀÄ®Ä £Á£ÀÄ PÀëQgÀt ¥ÀjÃPÉëUÉ PÀ¼ÀÄ»¹PÉÆnÖ®è."
Again she has admitted that:
"AiÀiÁªÀÅzÉà ªÉÊzÀågÀÄ ¤RgÀªÁV ªÀAiÀĸÀì£ÀÄß zÀÈrüÃPÀj¸À®Ä DUÀĪÀÅ¢®è JAzÀgÉ ¸Àj. D¹¦üPÉñÀ£ï ¥ÀjÃPÉë ªÀiÁqÀzÉà EzÀÄÝ zÀAvÀUÀ¼À ¨É¼ÀªÀtôUÉAiÀÄ£ÀÄß £ÀªÀÄÆ¢¸ÀzÉà EgÀĪÀÅzÀjAzÀ CªÀgÀ ªÀAiÀĸÀì£ÀÄß ¤RgÀªÁV ºÀÉüÀ®Ä §gÀĪÀÅ¢®è JAzÀgÉ ¸Àj EgÀÄvÀÛzÉ."
The above said admission clinches the issue unequivocally points out while certifying the age of minor children the doctor has not followed any radiological examination and ossification examination to give exact age of minor children. This piece of evidence shows the latches on the part of the doctor to give medical certificate in 26 Spl.C.C.No.600/2014 respect of alleged age of minor children. Moreover, the minor children not stepped into the witness box to give their evidence favourable to the prosecution. Viewing from the available material evidence of Pw.6, this Court feels to observe that it is formal evidence produced by the prosecution, unless and until it supports the corroborative and cogent oral and documentary evidence, it is not safe to accept the evidence of Pw.6.
22. By going through the evidence of Pw.7-Narayan, the Investigating Officer who deposed that he has received complaint as per Ex.P2 and his signature is Ex.P2(b) and also he has prepared Ex.P8-F.I.R., and his signature is Ex.P8(a) and then he has sent the minor children to Bala Mandira. He has recorded the statement of Lavanya, Subash, Niranjan, Srinivasa Murthy, but all the persons are NGO and police officials. No such independent persons statement recorded to corroborate the evidence of above said NGOs and Labour Officers evidence. He has received 27 Spl.C.C.No.600/2014 the statement of victim boys which was recorded at Bala Mandir, but the Officer who recorded the statement also not stepped into the witness box and the same is absolutely fatal to the case of the prosecution. He has received age certificates as per Ex.P3 to Ex.P7 and then after closure of investigation filed charge sheet against accused No.1 and 2. The accused persons tested his veracity by eliciting some commission and omission and also this witness admitted that:
"¯ÁªÀtågÀªÀgÀÄ ¢B 05.10.2013 gÀAzÀÄ JºÉZïnAiÀÄÄ WÀlPÀzÀ ¥ÉÇðøÀgÀÄ, £ÀªÀÄä ¸ÀA¸ÉÜAiÀĪÀgÀÄ ªÀÄzsÁåºÀß 12.00 UÀAmÉUÉ ¸ÀzÀj «¼Á¸ÀPÉÌ ºÉÆÃVzÀÝgÀÄ JAzÀÄ £À£ßÀ ªÀÄÄAzÉ ºÉý®è JAzÀgÉ ¸Àj. D PÀlÖqÀzÀ°è aPÀÌ aPÀÌ gÀƪÀÄÄUÀ½zÀÄÝ CzÀgÀ «¹ÛÃtð ºÉüÀ®Ä §gÀĪÀÅ¢®è, ¸ÀzÀj gÀƪÀÄÄUÀ¼ÀÄ UÀ°ÃeÁVvÀÄÛ JAzÀÄ £À£Àß ªÀÄÄAzÉ ºÉý®è JAzÀgÉ ¸Àj."
Again he has admitted that:
"DgÉÆævÀgÀÄ WÀlPÀzÀ ªÀiÁ°ÃPÀgÁVzÀÄÝ D ¸À¼Ü ÀzÀ°è EzÀÝgÀÄ JAzÀÄ £À£Àß ªÀÄÄAzÉ ºÉý®è JAzÀgÉ ¸Àj. CzÉÃjÃw ¸ÁQë ¸ÀĨsÁµï DgÉÆævÀgÀÄ WÀlPÀzÀ ªÀiÁ°ÃPÀgÁVzÀÄÝ D ¸ÀܼÀzÀ°è EzÀÝgÀÄ JAzÀÄ £À£Àß ªÀÄÄAzÉ ºÉý®è JAzÀgÉ ¸Àj."
Further he has deposed that:
"©©JA¦ C¢üPÁjUÀ½AzÀ SÁvÁ £ÀPÀ®£ÀÄß ¥ÀqÉ¢®è. ¨É¸ÁÌA C¢üPÁjUÀ½AzÀ «zÀÄåvï ¸ÀA¥ÀPÀð AiÀiÁgÀ ºÉ¸Àj£À°èzÉ 28 Spl.C.C.No.600/2014 JAzÀÄ ªÀiÁ»w ¥ÀqÉ¢®è. «zÀÄåvï ©¯ï£ÀÄß AiÀiÁgÀÄ PÀlÄÖwÛzÁÝgÉ JA§ §UÉÎ ªÀiÁ»wAiÀÄ£ÀÄß ¨É¸ÁÌA¤AzÀ ¥ÀqÉ¢®è. PÁSÁð£ÉAiÀÄ£ÀÄß AiÀiÁgÀÄ £ÀqɸÀÄwÛzÁÝgÉ JA§ §UÉÎ ©©JA¦UÉ ªÀiÁ»wPÉÆÃj ¥ÀvÀæªÀåªÀºÁgÀ ªÀiÁr®è. CzÉà jÃw PÁ«ÄðPÀ E¯ÁSɬÄAzÀ ¸ÀzÀj PÀlÖqÀzÀ°è PÁSÁð£É £ÀqɸÀÄwÛzÀÝgÀÄ JA§ §UÉÎ ªÀiÁ»w ¥ÀqÉzÀÄPÉÆAr®è. CzÉÃjÃw ¹J¸ïn ªÀÄvÀÄÛ PÉJ¸ïn¬ÄAzÀ ªÀiÁ»w ¥ÀqÉ¢®è. zÀÆgÀÄ §AzÀ £ÀAvÀgÀ D PÀlÖqÀzÀ°èzÀÝ ªÀ¸ÀÄÛUÀ¼À£ÀÄß ªÀ±ÀPÀÉÌ ¥Àq¢ É ®è."
If the above said evidence is taken into consideration, there is a doubt whether the accused persons are owners or supervisors of alleged bag manufacturing unit and they engaged the minor victim boys' service for manufacturing bags in the said unit. Viewing from available material evidence on record, this Court feels to observe that the prosecution utterly failed to establish the alleged offences against accused No.1 and 2.
23. It is the contention of the prosecution that the accused No.1 and 2 have engaged the labour of victim boys and on raid the police and NGO rescued the said children and thereafter they have sent the said children to Bala Mandir, but in order to establish the said contention, the 29 Spl.C.C.No.600/2014 victim boys not stepped into the witness box. No such independent witness statement recorded who are available at the time of raid since the alleged factory situated in the residential area having neighbours. Further no such statement of parents of the victim boys recorded. Even the doctor while giving medical certificate for age proof of victim boys not subjected them to radiological and ossification examination. Under such circumstances on perusal of the available materials on record this Court feels to observe that the prosecution fails to establish the alleged offences against the accused No.1 and 2 beyond all reasonable doubt. Moreover the Investigation Officer fails to investigate whether the accused No.1 and 2 are the owners, supervisors or in what way connected to the alleged bag manufacturing unit and not collected the supporting documents. When such being the case, this Court opines that the prosecution has utterly failed to prove the guilt on the part of the accused No.1 and 2.
30 Spl.C.C.No.600/2014
24. In view of aforesaid reasons, this Court held that the evidence of Pw.1 to Pw.7 and documentary evidence placed on record insufficient to hold commission of offences under section 370, 344, 374 read with Section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act, and Section 3 and 14 of Child Labour Act. The prosecution fails to prove the same beyond all reasonable doubt beyond reasonable doubt. Consequently I hold Point No.1 to 4 in the "Negative".
25. Point No.5:- For the above said reasons and discussions on Point No.1 to 4, I hold that the accused No.1 and 2 are 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 persons No.1 and 2 are acquitted for the offences punishable under Section 370, 374, 344 read with Section 34 of I.P.C., Section 23 and 26 of J.J. Act and Section 3 31 Spl.C.C.No.600/2014 and 4 of Child Labour Act. Their bail bond and surety bond stand 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 18th Day of August 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
8NNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW 1 Lavanya Cw.2 21-10-2016
PW 2 B.N.Srinivasa Murthy Cw.5 21-10-2016
PW 3 Subhas Cw.3 27-12-2016
PW 4 Niranjan Cw.4 27-12-2016
PW 5 Y. Nagaraj Cw.1 27-12-2016
PW 6 Dr. Lalitha Cw.18 24-04-2017
PW 7 Narayan Cw.14 25-04-2017
32 Spl.C.C.No.600/2014
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.2 Pw.2 21-10-2016
Ex.P 1c Signature of Pw.3 Pw.3 13-12-2017
Ex.P 1d Signature of Pw.4 Pw.4 13-12-2017
Ex.P 1e Signature of Pw.5 Pw.5 27-12-2016
Ex.P 2 Complaint Pw.5 27-12-2016
Ex.P 2a Signature of Pw.5 Pw.5 27-12-2016
Ex.P 2b Signature of Pw.7 Pw.7 25-04-2017
Ex.P 3 to 7 Medical examination Pw.6 24-04-2017
certificates of Cw.7 to
Cw.11
Ex.P 8 F.I.R. Pw.7 25-04-2017
Ex.P 8a Signature of Pw.7 Pw.7 25-04-2017
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION
-NIL-33 Spl.C.C.No.600/2014
LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
***