Bangalore District Court
The State Of Karnataka vs No.1 Mohammad Noushad on 10 December, 2018
IN THE COURT OF THE L ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU
Dated this the 10th Day of December 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No.354/2017
COMPLAINANT The State of Karnataka,
By Cotton Pet Police Station,
Bengaluru
Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED No.1 Mohammad Noushad,
S/o. M.D.Kalam, 26 years,
R/at. No.1, Brahmoula Nampura,
Barahmoula Shirisi, Seetamarhi,
Bihar.
Presently residing at No.40/41,
Jali Masjid Road, Jali Mohalla,
Cotton Pet,
Bengaluru.
ACCUSED No.2 Iqbal Ahmed,
S/o. Late Sheik Mehaboob, 52 years,
R/at. No.55, Masjid Road, Jali Mohalla,
Cotton Pet,
Bengaluru.
2 Spl.C.C.No.354/2017
ACCUSED No.3 Mohammed Imtiyaz Ansari,
S/o. Late Mohammed Jenulla Ansari,
33 years,
R/at. Chand Mohan Village, Daka Post,
Purvichamparan District,
Bihar.
Presntly residing at:
No.21/2, Car Stand Road,
Jali Mohalla, Cotton Pet,
Bengaluru.
ACCUSED No.4 Akbar Ali,
S/o. Mohammed Ajiulla Hussein,
36 years,
R/at. No.17/2, 4th Main, 2nd Cross,
Chamaraj Pet,
Bengaluru
Permanent resident of:
Rampura Village & Post,
Mujapur District,
Owray Police Station,
Bihar State.
ACCUSED No.5 Mohammed Shafi,
S/o. Mohammed Basha, 44 years,
R/at. Peranabad Village,
Kudiyatham, Vaniyambadi Taluk,
Velur, Tamil Nadu.
Presently residing at:
No.176, A.R.S., B.D.G. Lane,
Car Stand Road, Jali Mohalla,
Cotton Pet,
Bengaluru.
Sri.S.S-Advocate
1 Date of commission of offence 21-07-2016
3 Spl.C.C.No.354/2017
2 Date of report of occurrence 21-07-2016
3 Date of arrest of Accused No.1 to 5
Date of release of Accused No.1 to 5 ON BAIL
Period undergone in custody
by Accused No.1 to 5
4 Date of commencement of evidence 23-04-2018
5 Date of closing of evidence 03-11-2018
6 Name of the complainant Vani Kantli
7 Offences complained of Sec.370- IPC, Sec.75,
79 of J.J. Act
8 Opinion of the Judge Accused No.1 to 5 are
acquitted
9 Order of Sentence As per the final order
JUDGMENT
This charge sheet filed by Police Sub-Inspector, Cotton Pet Police Station-Bengaluru, against the accused No.1 to 5 for the offences punishable under Section 370 of I.P.C and Section 75 and 79 of J.J. Act.
2. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
On 21-07-2016 the complainant received information from bathimdars and raided the business of accused No.1 to 5 with the assistance of Cw.2, Cw.3, Cw.16 and Cw.17 and rescued Cw.4 to Cw.8. The accused No.1 within the jurisdiction of 4 Spl.C.C.No.354/2017 Cotton Pet police station at Jali Mohalla, Near Jali Masjid, in building No.40/41, at 1st floor was having bag manufacturing unit, knowing fully well that Cw.4-Abeed Hessian is a minor boy, engaged him in his above said unit and was extracting work from him for more than 12 hours in a day without sending him to the school and also exploiting both physically and educationally, so also the accused No.2 in the same area at building No.20/1, Cart Stand Road, Jali Mohalla, in his leather polishing unit engaged child labour-Cw.5-Mohammad Salem and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.3 in the same area at building No.12/1, 1st Floor, Cart Stand Road, M.S. Lane, Jali Mohalla, in his bag manufacturing unit engaged child labour-Cw.5-Mohammad Okesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.4 in the same area at building No.176, Cart Stand Road, B.D.G. Lane, Jali Mohalla, in his A.R.S.Hotel engaged child labour-Cw.7-Afreed and 5 Spl.C.C.No.354/2017 extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally and so also the accused No.5 at Building No.63, 2nd Cross, N.T. Pet, Bengaluru, within the jurisdiction of Bangalore Central police station, in his bag manufacturing unit engaged child labour-Cw.8-Dinesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally. On the basis of said complaint lodged by Cw.1-the complainant, the Police registered the case against the accused No.1 to 5 initially under Section 370 of I.P.C, Section 75 and 79 J.J. Act, Section 3 of Child Labour Act, Section 14 of Child Labour Prohibition Act and Section 17 of Bonded Labour Act.
3. The Investigating Officer has investigated the same and filed charge sheet against accused No.1 to 5 for the offences punishable under Section 370 of I.P.C and Section 75 and 79 of J.J. Act. Thereafter, after filing the charge sheet, as usual the accused No.1 to 5 appeared before the committal Court. The committal Court furnished copy of charge sheet to them as 6 Spl.C.C.No.354/2017 contemplated under Section 207 of Cr.P.C. Since the victim boys are minors, the Committal Court passed an order for committing the case to the Hon'ble Principal City Civil & Session Judge-Bengaluru, for further proceedings and in turn the said case was made over to this Court for further proceedings.
4. After receiving the record by this Court, the summons was issued to the accused No.1 to 5. In pursuance of said summons, they have appeared before the Court and they were enlarged on bail by executing personal bonds and producing surety. Thereafter, the learned advocate for accused No.1 to 5 submitted that there is no argument before framing charge. On perusal of charge sheet, there is prima-facie material on record to frame charge against accused No.1 to 5 for the offences punishable under Section 370 of IPC and section 75 and 79 of J.J. Act, accordingly the charges framed. The contents of charge read over and explained to the accused No.1 to 5 in Kannada. They have pleaded not guilty and submit crimes to be tried. Thereafter the case against accused No.1 to 5 was set down for prosecution evidence.
7 Spl.C.C.No.354/2017
5. The prosecution in order to establish the guilt of the accused No.1 to 5 has examined 5 witnesses as Pw.1 to Pw.5 and got marked as many as 23 documents as Ex.P1 to Ex.P23 and closed its side evidence. In view of incriminating evidence appeared against the accused No.1 to 5, they were examined under Section 313 of Cr.P.C., by recording their statement. They have denied the alleged incriminating evidence appeared against them as false. Earlier to that they have complied the provision of Section 437-A of Cr.P.C. by executing personal bonds and surety. Thereafter arguments heard from both the sides and the matter is set down for judgment.
6. Having regard to the facts, circumstances and arguments submitted by both sides, the following points that arise for my consideration are as under:-
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4. AiÀiÁªÀ DzÉñÀ?
7. My findings on the above points are as under:-
Point No.1: In the Negative.9 Spl.C.C.No.354/2017
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 produced by the prosecution and arguments canvassed by the learned advocate for accused No.1 to 5 and the learned Public Prosecutor.
10. In order to prove the alleged offences against the accused, the prosecution has examined in all 5 witnesses as Pw.1 to Pw.5, got marked 23 documents as Ex.P1 to Ex.P23. As per the prosecution case, Pw.1 is the independent person, Pw.2 is the Superintendent of Balakara Bala Mandir, Pw.4 is the doctor and Pw.3 and Pw.5 are the police personnel and Investigating Officer. Hence, this Court shall proceed to see 10 Spl.C.C.No.354/2017 whether the available evidence of said witnesses is sufficient for establishing the alleged offences against accused No.1 to 5.
11. In order to establish the alleged offences against accused No.1 to 5, the prosecution is required to prove that on 21-07-2016 the complainant received information from bathimdars and raided the business of accused No.1 to 5 with the assistance of Cw.2, Cw.3, Cw.16 and Cw.17 and rescued Cw.4 to Cw.8. The accused No.1 within the jurisdiction of Cotton Pet police station at Jali Mohalla, Near Jali Masjid, in building No.40/41, at 1st floor was having bag manufacturing unit, knowing fully well that Cw.4-Abeed Hessian is a minor boy, engaged him in his above said unit and was extracting work from him for more than 12 hours in a day without sending him to the school and also exploiting both physically and educationally, so also the accused No.2 in the same area at building No.20/1, Cart Stand Road, Jali Mohalla, in his leather polishing unit engaged child labour-Cw.5-Mohammad Salem and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.3 in the 11 Spl.C.C.No.354/2017 same area at building No.12/1, 1st Floor, Cart Stand Road, M.S. Lane, Jali Mohalla, in his bag manufacturing unit engaged child labour-Cw.5-Mohammad Okesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.4 in the same area at building No.176, Cart Stand Road, B.D.G. Lane, Jali Mohalla, in his A.R.S.Hotel engaged child labour-Cw.7-Afreed and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally and so also the accused No.5 at Building No.63, 2nd Cross, N.T. Pet, Bengaluru, within the jurisdiction of Bangalore Central police station, in his bag manufacturing unit engaged child labour-Cw.8-Dinesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally and thereby committed offences punishable under Section 370 of I.P.C and Section 75 and 79 of J.J. Act. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the above said 12 Spl.C.C.No.354/2017 ingredients of the alleged offences against the accused No.1 to 5 beyond all reasonable doubt.
12 Before venturing into scan the available material evidence on record, it is necessary to mention the very definition of offences under Section 370 of I.P.C and Section 75 and 79 of J.J. Act.
Section 370 of I.P.C defines that:
Trafficking of persons-[1] Whoever, for the purpose of exploitation,(a) recruits, (b)transports, (c) harbours,
(d)transfers, or (e) receives, a person or persons, by- First -
using threats, or Secondly-using force, or any other form of coercion, or Thirdly -by abduction, or Fourthly -by practicing fraud, or deception, or Fifthly -by abuse of power, or Sixthly -by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Section 75 of J.J. Act, defines that:
Punishment for cruelty to child:-Whoever, having the actual charge of or control over, assaults, abandons, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to three years, or with fine of one lakh rupees or with both.
Section 79 of J.J. Act, defines that:
Exploitation of child employee-whoever ostensibly engages a child and keeps him in bondage for the purpose of 13 Spl.C.C.No.354/2017 employment or withholds his earnings or uses such earning for his own purpose shall be punishable with rigorous imprisonment for a term which may extend to five years also be liable to fine of one lakh rupees.
With these observations, now left with available material evidence produced by the prosecution to see whether the prosecution has proved the alleged offences against accused No.1 to 5 beyond all reasonable doubt or it probablises the defense of the accused No.1 to 5.
13. By going through the evidence of Pw.5-Narayani- P.S.I., he has deposed that on 21-07-2016, he was the SHO in the station, at about 06.15 p.m., the complainant came and lodged complaint as per Ex.P13 and on the basis of said complaint, he has registered the case against accused No.1 to 5 in Crime No.219/2016 for the offences punishable under Section 370 of I.P.C, Section 75 and 79 J.J. Act, Section 3 of Child Labour Act, Section 14 of Child Labour Prohibition Act and Section 17 of Bonded Labour Act. He has also entered Shara and signed as per Ex.P13(a). He has also prepared FIR as per Ex.P14 and his signature is Ex.P14(a). Here, in order to prove the lodging of complaint as per Ex.P13, the complainant 14 Spl.C.C.No.354/2017 not stepped into the witness box, which is absolutely fatal to the case of the prosecution.
14. Further Pw.5 deposed that he has recorded statement of Cw.15 and Cw.16. Cw.15 deposed her evidence as Pw.2 stating that on 21-07-2016 the police brought five children and handed over to them to Balakara Bala Mandira, she has received them, as per rule she has provided them the basic necessities in that Mandira. On 23-07-2016 Cw.16 came and examined the children and given age estimation certificates. On 22-07-2016 she has recorded statement of victim boys-Cw.5 to Cw.8 as per Ex.P3 to Ex.P6. In order to substantiate the said statement, the victim boys not stepped into the witness box which is absolutely fatal to the case of prosecution. Further she has deposed that the victim boys stated before her that the accused No.1 to 5 exploited their poverty and also given daily Rs.100/- to them and extracting work from them from morning till evening.
15. The learned advocate for accused No.1 to 5 tested the veracity of evidence of this witness by eliciting some 15 Spl.C.C.No.354/2017 commission and omission and also she has admitted that Ex.P3 to Ex.P6 are not in her own hand-writing, she has also admitted that no Shara on said statements of the person who has wrote the same. Further she has admitted that there is no mentioning in the said statements, that the same was recorded before her. If this piece of evidence is taken into consideration, there is a doubt of recording statement by this witness after enquiry of Cw.4 to Cw.8-the victim boys. At this stage, the evidence of this witness is a formal one.
16. On perusal of evidence of Pw.4-Dr.Parvin Khan, he has deposed that on 23-07-2016 she has examined Cw.4 to Cw.8-victim boys, except Mohammad Okesh, the other boys are all minor boys, Mohammad Okesh was aged about 18 years, she has given age estimation certificate as per Ex.P8 to Ex.P12. In the cross-examination, she has admitted that she has not subjected the victim boys for ossification test and X-ray test, she has done only physical and general examination and given those certificates. Further it is her evidence that there is variation of about two years age difference and no such definite age and she cannot give definite age of each victim boys. When 16 Spl.C.C.No.354/2017 the prosecution not produced the evidence of Cw.4 to Cw.8-the victim boys, question of believing the evidence of this witness doesn't arises and she is a formal witness.
17. Further Pw.5 deposed that he went to the spot, conducted mahazar as per Ex.P1 and his signature is Ex.P1(c). He has also issued notice to Panchas as per Ex.P2 and his signature is Ex.P2(b). He has given representation to Magistrate
-Bengaluru North Taluk, after leaving the victim boys in Balakara Bala Mandira.
18. On perusal of evidence of Pw.1-Sanjay, he has deposed that Ex.P1(a),Ex.P1(b) and Ex.P2(a) are his signatures, but he doesn't know what had written in Ex.P1, he doesn't know the case of prosecution, he has not seen the accused persons earlier, the police not taken him to any shops of Jali Mohalla for conducting mahazar and in his presence not rescued any child labours. The police called upon him to the police station about two years back and obtained his signature to Ex.P1 and Ex.P2. The prosecution treated this witness as hostile to the case of prosecution and suggested each and every 17 Spl.C.C.No.354/2017 word of Ex.P1 in respect of process of conducting mahazar and rescue of child labours, but he has denied the same. When the complainant herself not stepped into the witness box to give her evidence, question of believing the evidence of this witness doesn't arises.
19. Pw.5 further deposed that he has recorded statement of Cw.9 to Cw.13 on 25-07-2016 and also produced the victim boys before CWC to give their statements and subjected them to medical examination on 28-07-2016. He has also received statements and medical documents as per Ex.P3 to Ex.P12, he has also arrested the accused No.1 and 3 on 18- 08-2016 and released them as per Court orders and on 23-08- 2016 he has arrested the accused No.4 and released him as per the order of Court. On 19-08-2016 he has arrested the accused No.2 and 5 and released them as per Court orders. He has completed investigation and filed charge sheet against accused No.1 to 5. Further during the course of investigation, he has seized Ex.P15 to Ex.P23 documents pertaining to accused No.1 to 5 in respect of shops obtained for rent and also payment of electricity bills. The accused No.1 to 5 tested the veracity of 18 Spl.C.C.No.354/2017 evidence of this witness, except denial suggestion, nothing has been elicited favourable to the defense taken by them.
20. By going through the evidence of Pw.3-Uday Kammar-P.C. No.4139, he has deposed that on 21-07-2016 he accompanied with the complainant at the time of raiding of the shops and rescuing of children and rescued five children, brought to the station and produced before SHO. The complainant lodged complaint. 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 the accused.
21. It is quite natural that Pw.2 to Pw.5 are all official witnesses and they deposed favourable to the prosecution. Pw.1 is the independent witness turned hostile to the case of prosecution. Further the complainant and other raiding team members not stepped into the witness box to give their evidence before the Court. When such being the case, it is not safe to accept the interested witnesses evidence against the accused No.1 to 5.
19 Spl.C.C.No.354/2017
22. The oral and documentary evidence placed on record by the prosecution is insufficient to prove the alleged offences against accused No.1 to 5 beyond all reasonable doubt. The defense of the accused No.1 to 5 and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused No.1 to 5 rather than the case of the prosecution.
23. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.5 and documentary evidence as per Ex.P1 to Ex.P23, placed on record in respect of alleged offences, is insufficient to prove that on 21-07-2016 the complainant received information from bathimdars and raided the business of accused No.1 to 5 with the assistance of Cw.2, Cw.3, Cw.16 and Cw.17 and rescued Cw.4 to Cw.8. The accused No.1 within the jurisdiction of Cotton Pet police station at Jali Mohalla, Near Jali Masjid, in building No.40/41, at 1st floor was having bag manufacturing unit, knowing fully well that Cw.4-Abeed Hessian is a minor boy, engaged him in his above said unit and was extracting work from him for more than 12 hours in a day without sending him to the school and also exploiting both 20 Spl.C.C.No.354/2017 physically and educationally, so also the accused No.2 in the same area at building No.20/1, Cart Stand Road, Jali Mohalla, in his leather polishing unit engaged child labour-Cw.5- Mohammad Salem and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.3 in the same area at building No.12/1, 1st Floor, Cart Stand Road, M.S. Lane, Jali Mohalla, in his bag manufacturing unit engaged child labour-Cw.5-Mohammad Okesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally, so also the accused No.4 in the same area at building No.176, Cart Stand Road, B.D.G. Lane, Jali Mohalla, in his A.R.S.Hotel engaged child labour-Cw.7-Afreed and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally and so also the accused No.5 at Building No.63, 2nd Cross, N.T. Pet, Bengaluru, within the jurisdiction of Bangalore Central police station, in his bag manufacturing unit engaged child labour- 21 Spl.C.C.No.354/2017 Cw.8-Dinesh and extracting work for more than 12 hours in a day from him and without sending him to the school and also exploiting both physically and educationally and thereby the accused No.1 to 5 committed offences punishable under Section 370 of I.P.C, Section 75 and 79 Act beyond all reasonable doubt. Consequently, I hold Point No.1 to 3 in the "Negative".
24. Point No.4:- For the above said reasons and discussions on Point No.1 to 3, I hold that the accused No.1 to 5 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 No.1 to 5 are hereby acquitted for the offences punishable under section370 of IPC and Section 75 and 79 J.J. Act. Their bail bonds and surety bonds 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 10th Day of December 2018.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 22 Spl.C.C.No.354/2017 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Sanjay Cw.2 23-04-2018 Pw.2 Sumangala Malapur Cw.15 01-08-2018 Pw.3 Uday Kammar Cw.6 01-08-2018 Pw.4 Dr.Parvin Khan Cw.14 18-08-2018 Pw.5 Narayani Cw.18 03-11-2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Mahazar Pw.1 23-04-2018 Ex.P 1(a),(b) Signatures of Pw.1 Pw.1 23-04-2018 Ex.P 1c Signature of Pw.5 Pw.5 03-11-2018 Ex.P 2 Police notice Pw.1 23-04-2018 Ex.P 2(a) Signature of Pw.1 Pw.1 23-04-2018 Ex.P 2b Signature of Pw.5 Pw.5 03-11-2018 Ex.P 3 to 7 Statements Cw.4 to Pw.2 01-08-2018 Cw.8 Ex.P 3a to 7a Signatures of Pw.2 Pw.2 01-08-2018 Ex.P 8 to 12 Age Estimation Pw.4 18-08-2018 certificates Cw.4 to Cw.8 Ex.P 8a to 12a Signatures of Pw.4 Pw.4 18-08-2018 Ex.P 13 Complaint Pw.5 03-11-2018 Ex.P 13a Signature of Pw.5 Pw.5 03-11-2018 Ex.P 14 F.I.R. Pw.5 03-11-2018 Ex.P 14a Signature of Pw.5 Pw.5 03-11-2018 23 Spl.C.C.No.354/2017 Ex.P 15 Copy of rent agreement Pw.5 03-11-2018 pertaining to accused-1 Ex.P 16 Copy of rent agreement Pw.5 03-11-2018 pertaining to accused-2 Ex.P 17 Copy of electricity bill Pw.5 03-11-2018 pertaining to accused-2 Ex.P 18 Copy of rent agreement Pw.5 03-11-2018 pertaining to accused-5 Ex.P 19 Copy of electricity bill Pw.5 03-11-2018 payment receipt pertaining to accused-6 Ex.P 20 Copy of rent agreement Pw.5 03-11-2018 pertaining to accused-3 Ex.P 21 Copy of electricity bill Pw.5 03-11-2018 pertaining to accused-3 Ex.P 22 Copy of rent agreement Pw.5 03-11-2018 pertaining to accused-4 Ex.P 23 Copy of electricity bill Pw.5 03-11-2018 pertaining to accused-4 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