Madras High Court
Kanniammal vs Mr. Govindan on 27 February, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 15.02.2019
JUDGMENT PRONOUNCED ON : 27.02.2019
CORAM:
THE HONOURABLE MR. JUSTICE DR.G.JAYACHANDRAN
Criminal Appeal No.779 of 2012
Kanniammal Appellant/ Victim PW-6
Vs
1. Mr. Govindan
2. Mr. Venkatesan Respondents/Accused
3. The State
Rep by
Deputy Superintendent of Police
Arakonam
Vellore District
Cr.No.287/2009,
Sholinghur Police Station Respondent/
Complainant
Prayer: Criminal Appeal is filed under Section 372 of the code of Criminal
Procedure, praying to call for the records in SC No.26 of 2010 on the file
of Principal Sessions Judge, Vellore and set aside the Judgment acquitting
the 1st and 2nd respondents/accused passed on 11.06.2012 and convict
the 1st and 2nd respondents/accused for the offences they have been
charged with.
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For Appellant : Mr. John Richard Ebenezer
For Respondents : R1 & R2 : Mr. S. Silambu Selvan
R3 : Mr.T.Shanmuga Rajeshwaran
Government Advocate
JUDGMENT
This Criminal Appeal is directed against the order of acquittal passed by the trial Court in the case against the 1st and 2nd respondents /accused for charges under Sections 357,374 IPC r/w Sections 17 and 18 of the Bonded labour System (Abolition) Act and Section 3(1) (VI) and (X) of SC & ST (POA) Act 1989.
2. The appellant is the victim/PW-6 in the case. According to the prosecution, M/s. Venkateshwara Rice Mill situated at Thirutani Road, Sholinghur, Vellore District is owned by Govindan (A-1). Its day to day affairs are carried out by his son Vengatesan (A-2). On 03.09.2009 at about 11.00 am, as per the instructions of the District Revenue Officer, the Revenue Inspector, Village Administrative Officer along with the other revenue officials inspected the premises in the presence of the representative of the International Funding Agency. During the inspection, they found 8 persons were kept as bonded labourers for hulling, they were paid only Rs.13/- per bag of paddy. They hail from different parts of Chittor District, Andhra Pradesh and Thiruvallur District, Tamil Nadu. They all belong to Hindu Irular Community, which is one of the Scheduled Tribe. The accused persons have advanced Rs.10,000/- to Rs.25,000/- to them http://www.judis.nic.in 3 and forced them to work as bonded labourers against their wish. They were not permitted to leave the place. Based on the above findings during the inspection, complaint to the Inspector of Police, Sholinghur was lodged by the Thasildar, Walaja.
3. On completion of the investigation, Final report was filed before the Judicial Magistrate, Sholinghur. Being a case triable exclusively by a Court of Sessions, the learned Judicial Magistrate committed the case to the Sessions Court.
4. The Principal District and Sessions Judge, Vellore being satisfied that the case is triable by a Court of Sessions, framed the following charges against the 1st accused Govindan and the 2nd accused Venkatesan.
Charge I Under Section 17 of Bonded Labour System (Abolition) Act 1976. (Advancement of bonded debt) Charge II Under Section 18 of Bonded Labour System (Abolition) Act 1976. (Extracting bonded labour under the bonded labour system)
Charge III Under Section 357 of IPC - Assault of criminal force in attempt wrongfully to confine a person Charge IV Under Section 374 of IPC – Unlawful compulsory labour Charge V Under Section 3(1) (VI) of SC/ST Act -
Enticed the Member of the Schedule Tribes to be a bonded labour Charge VI Under Section 3(1) (X) of SC/St Act – Intentionally insulted with intent to humiliate the Member of the Schedule Tribes within the public view http://www.judis.nic.in 4
5. The trial Court after considering 12 witnesses and 8 exhibits on the prosecution side held that no cogent, sustainable or reliable evidence available to prove the 2nd accused went to the villages of the witnesses, paid advances and brought them for working in his Rice Mill and retained them as bonded labourers. The admission of PW-2 and PW-4 that the Thasildar promised them to give Rs.20,000/- each if complaint under Bonded Labourer Act is given against the accused proves the witnesses were motivated to give false complaint against the accused.
6. The learned Counsel for the appellant/ PW-6 Kanniammal in support of his grounds of appeal against acquittal would state that the definitions “Bonded Debt also known as advance and Section 17 of the Act has to be read together. The witnesses have deposed about receiving advance from the 2nd accused to work in his field. Under Section 15 of the Act, wherever prosecution claims the money is bonded debt, it is for the accused/creditor to discharge the burden that the debt was not a bonded debt. Under Section 2(8) (i) of the Act, there shall not necessarily be document to prove the advance. In such circumstances, the law on the point regarding “burden of proof” of Bonded debt is on the creditor/accused. While so, the finding of the trial Court holding that the prosecution has failed to prove that the debt of the witnesses are bonded debts is erroneous.
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7. Pointing, for no document filed to support the debt, the trial Court has disbelieved the prosecution case. But under the Act, the burden to disprove bonded debt is on the accused as per the Section 15 of the Act. The trial Court has erroneously shifted the burden on the complainant, which has led to miscarriage of justice. So, the Judgment of trial Court requires interference.
8. The learned Counsel appearing for the 1st and 2nd respondents would submit that they are father and son running a Rice Mill for nearly 50 years. The Thasildar who was the complainant has made false allegations against the accused persons. There was no bonded labourers engaged by them. No money was advanced to the labourers as bonded debt. The workers in their Mill were adequately paid and allowed to go to their home and come back to the duty. The appellant was examined as PW-6. Her husband Venkatesan was examined as PW-5. They both have not said that Rs.24,000/- paid as advance and it was a bonded debt. They were tutored to say that the 2nd accused and one Raman offered Rs.24,000/- to work at Sholinghur. They accepted and went to Sholinghur. The said Raman not examined. Prosecution having failed to prove there was any money transaction between the accused and the victims, Court can not draw a presumption that there exist a bonded debt. The evidence of prosecution witnesses PW-1 to PW -6 are contrary to the complaint Ex.P.1 and the statements recorded by the Investigating Officer. http://www.judis.nic.in 6
9. For the sake of money promised by the Thasildar, they have deposed against the accused persons referring the ingredients of the offences under Bonded Labour Act, Minimum Wages Act and SC and ST Act. Accused has no necessity to advance money and engage them. The complaint which was taken up for investigation, the police has enquired witnesses, statements recorded. The previous statements of these witnesses contrary to this testimony before the Courts. The minimum wages fixed by the Government at the time of trial not filed. The prosecution witnesses have deposed that the wage was increased from Rs.10 to Rs.13 per bag. Therefore, the trial Court has dismissed the complaint since
a) No proof for money advance
b) The money if so advanced not proved to be bonded debt
c) The witnesses does not say the advance amount they received was a loan and involuntarily they received it.
10. No prosecution evidence disclosed that the rate of wage Rs.13/- per bag was below the minimum wages. When and to whom the accused yelled at calling caste name and it caused disgrace to them. The evidence of PW 7 has deposed in his cross examination about the nature of work in the said Rice Mill. In his cross examination, it is elicited that no labourers were staying inside the Mill Premises. They don't cook in the Mill. PW-7 belongs to SC community and has positively deposed there is no bonded labourers in the accused Rice Mill.
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11. Heard the rival submissions.
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12. The learned Counsel in the course of his submissions, while relying upon the definitions and the meaning of the words like Advance, bonded debt and the burden of proof would submit that the testimony of PW-1 to PW-6 is sufficient to convict the accused under Bonded Labouers Act. Further, he circulated the minimum wages fixed by the Government in the year 2010 and the release order issued by the Thasildar and submitted that these two documents are evidence to prove minimum wages was not given to the victims and they were held as bonded labourers.
13. The release order now attempted to rely upon does not form part of the prosecution document. The testimony of the witnesses are not cogent and free from embellishment. In the Inspection Report and in the complaint Ex.P.1, the witnesses have not disclosed when the advance money was given to the labourers. First the prosecution ought to have collected materials to show money was advanced. Then they should have placed prima facie material to show they were exploited as bonded labourers, not allowed to go out from the Mill Premises.
14. The Investigating Officer and the Defacto complainant have not placed any evidence to prove that these persons were held captive in the Mill Premises and they were held so, for the bonded debt. Without any corroboration, mere allegation that she was given advance of Rs.24,000/- and taken as bonded labourer can not be sufficient to convict a person, because the Act cast reverse burden on the accused. http://www.judis.nic.in 8
15. More particularly, when the witnesses admit that Thasildar PW-1 informed them they will give Rs.20,000/-, if they give statement that they were kept as bonded labourers and when the accused through PW-7 has proved that no bonded labourers were in the said Mill. Contradicting PW-1 evidence that 8 persons were kept as bonded labourers. It is word against word without any further corroboration. For want of evidence to prove the material facts that really loan was advanced or the loan advanced was used to bond the borrower as labourer, the trial Court has acquitted the accused.
16. In case of reverse burden, if prima facie, the burden is shifted, then the prosecution has to prove the charges with material facts. PW-1 is the defacto complainant. He has not collected evidence to prove that 8 persons found in the Mill Premises were all bonded labourers. Except the statements of the interested witnesses, PW-2, PW-4, PW-5, PW-6, no other evidence to prove that they were paid advance and kept as bonded labourers.
17. Contrary to their evidence, PW-7 in his cross examination has stated that he belongs to SC Community. In the accused Mill, no worker stay. They were free to come to duty and go home after duty. PW-5 was working as driver in the Mill. The appellant herein is the wife of PW-5.
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18. The trial Court reasoning to acquit the accused for want of evidence regarding the loan advanced and such loan to presume a bonded loan is legally sustainable. When two views are equally possible and the view which is beneficial to the accused accepted and ended in acquittal, the Appellate Court need not reverse the finding and convict the accused based on the alternate view. An order of acquittal cannot be reversed in appeal unless the order under challenge is perverse.
19. In this case, the failure of the prosecution to place material facts to corroborate the version of the prosecution that the accused were holding 8 bonded labourers in their Rice Mill has ended in acquittal. With the evidence of PW-1 to PW-12 and Ex.P.1 to Ex.P.8, no other view is possible.
20. In the light of the above discussions, this Court holds that no interference is necessary in the findings arrived at by the trial Court. Therefore this Criminal Appeal is dismissed.
27.02.2019
Speaking Order / Non-Speaking Order
Index : yes/no
Internet : yes/no
vrn
To
1. The Principal Sessions Judge, Vellore
2. The Public Prosecutor
High Court, Madras
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DR.G.JAYACHANDRAN,J
vrn
Pre-Delivery Judgment made in
Criminal Appeal No.779 of 2012
Date: 27.02.2019
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