Delhi District Court
State vs Jasbir Singh on 18 March, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Presided over by- Ms. Neha Barupal, DJS
Cr. Case No. : 91742/2016
CNR No. : DLSE020037892014
FIR No. : 426/2013
Police Station : Amar Colony
Section(s) : 23/26 Juvenile Justice Act,
2000
3/14 Child Labour (Prohibition
and Regulation) Act, 1986
16 of Bonded Labour System
(Abolition) Act, 1976
In the matter of:
STATE
VERSUS
JASBIR SINGH
S/o Late Sh. Hansraj
R/o H.No.146, ground floor, Sant Nagar,
East of Kailash, New Delhi
1. Name of Complainant : S. Bidya Rani
2. Name of Accused : Jasbir Singh
S. 23/26 Juvenile Justice
(Care and Protection of
Children Act) Act, 2000,
S. 3/14 Child Labour
3. Offence complained of : (Prohibition and
Regulation) Act, 1986,
S. 16 of Bonded Labour
System (Abolition) Act,
1976
4. Plea of Accused : Not guilty
5. Date of commission of offence : 29.09.2013 to 01.11.2013
6. Date of filing of case : 15.05.2014
7. Date of reserving Order : Not reserved
Cr. Case No. 91742/2016 State v. Jasbir Singh Page 1 of 15
8. Date of pronouncement : 18.03.2024
9. Final Order : Acquitted
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX -
1. Bereft of unnecessary details, the facts of the case as unfolded from the chargesheet are that a child labour namely Deepak was rescued from Shop no. 252A, Sant Nagar, East of Kailash (Narang Eating Point) by Ms. S. Bidyarani, Case worker and Mr. Ramesh Kumar, Child Protection Assistant in NGO Butterflies with the help of WSI Saroj Bala on 01.11.2013. The medical examination of the child was conducted and he was handed over to S. Bidya Rani, NGO Butterflies. The child was then produced before CWC, Kasturba Niketan Parisar, Lajpat Nagar-II, New Delhi which ordered registration of FIR in the present matter. As such, it is alleged that accused Jasbir Singh has committed the offences punishable under section 23/26 of Juvenile Justice (Care and Protection of Children Act) Act, 2000 (hereinafter "JJ Act"), section 3/14 of Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter "CLA") and section 16 of Bonded Labour Act for which FIR No. 426/2013 was registered at Police Station Amar Colony, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the investigation, the chargesheet against the accused was filed.
Cr. Case No. 91742/2016 State v. Jasbir Singh Page 2 of 15Cognizance of the offences was taken and the accused was summoned to face trial vide order dated 15.05.2014.
3. A copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC") on his appearance. On finding a prima facie case against the accused, charge under Section 23/26 JJ Act and section 14 CLA was framed against the accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, the prosecution examined eight witnesses to prove its case against the accused including the victim.
5. PW-1 is Ms. S. Bidyarani, Case Worker at NGO Butterflies. She deposed that on 01.11.2013, her staff received information regarding employing of a child in a shop namely Narang Eating Point at Sant Nagar acting upon which she and her co-worker Ramesh Kumar went to the shop where they found one boy carrying some goods in his hand and entertaining customers. Prior to this he was seen carrying some goods and going to a residential area from the shop. Ramesh Kumar followed the child to a house but he was not allowed to enter so they sought help of the police. Thereafter, WSI Saroj Bala came to the spot and they spoke to the shop owner, i.e. the accused. PW1 proved the complaint Ex. PW1/A given by them. They rescued the child and returned to the police station. The child was medically examined and then taken to the shelter home. He was produced before CWC, Lajpat Nagar on Cr. Case No. 91742/2016 State v. Jasbir Singh Page 3 of 15 04.11.2013 where the same NGO was directed to provide shelter to the child. Accused was correctly identified by the witness. PW-1 was cross examined at length on behalf of the accused.
6. PW-2 is Mr. Ramesh Kumar, Child Protection Assistant at NGO Butterflies. He deposed along the same lines as PW-1 however he stated in his examination in chief that when they first reached at the shop, they did not meet the child. He also stated that the child was sitting in the park in front of the shop and that is from where he was called by WSI Saroj Bala. PW-2 also brought photographs of the child (Ex. P1) as they made a separate file regarding shelter as well. Accused was correctly identified by the witness. PW2 was cross examined at length on behalf of the accused.
7. PW-3 is WSI Saroj Bala. She entered the witness box and stated on oath that on 01.11.2013 she received a complaint (Ex. PW1/A) upon which she, Vidyarani and Ramesh Kumar went to the shop, of which the accused is the owner, and where a male child aged 13-14 years was found working. She deposed the further steps taken after rescuing the child and also stated that she prepared rukka on 04.11.2013 on the basis of the complaint and handed over to DO for registration of FIR. Thereafter, the investigation was handed over to another police officer. PW-3 was cross examined by Ld. counsel for accused.
8. PW-4 (incorrectly mentioned as PW-5) is Ct. Balbir Singh. He proved arrest of the accused (arrest memo- Ex. PW5/A) and personal search memo of the accused (Ex. PW5/B). He stated Cr. Case No. 91742/2016 State v. Jasbir Singh Page 4 of 15 that the accused was released on bail as he was granted anticipatory bail. Accused was correctly identified by the witness. PW-4 was not cross examined by Ld. counsel for accused despite opportunity.
9. PW-5 (incorrectly mentioned as PW-6) is SI Bikramjeet to whom investigation of the case was marked on 04.11.2013. He recorded statement of WSI Saroj Bala under section 161 CrPC. He further deposed that on 20.11.2013 child Deepak was produced at his request by Butterflies NGO before SDM, Defence Colony for recording of his statement. On 22.11.2013 the child was produced before CWC. On the same day, he recorded supplementary statement of S. Bidyarani under section 161 CrPC. On 10.12.2013 he arrested the accused. He correctly identified the accused in court. He also recorded statement of Ct. Balbir and sent notice (Ex. PW6/A) to Rajkiya Madimik Vidyalaya, Nakshoda, Rajasthan to obtain birth certificate of the child to which he received reply (Ex. PW6/B). On 13.12.2013 he produced the child before CWC with the age-related documents and on 20.02.2014 he recorded statement of Ramesh Kumar. On 27.04.2014 he collected order dated 27.03.2014 from SDM, Defence Colony and thereafter added section 16, Bonded Labour Act against the accused on 29.04.2014. On completion of the investigation, he filed the chargesheet in court. PW-5 was cross-examined at length by ld. counsel for accused.
10. PW-6 (incorrectly mentioned as PW-7) is Mr. Surinder Narang, who was posted as SDM, Defence Colony during the relevant period. He stated that on 20.11.2013 he recorded Cr. Case No. 91742/2016 State v. Jasbir Singh Page 5 of 15 statement of child Deepak which is Ex. PW7/A. On 27.03.2014 he ordered that the accused be prosecuted and photocopy of the said order is Mark X. PW-6 was cross-examined on behalf of the accused.
11. PW-7 (incorrectly mentioned as PW-8) is Deepak Kumar, the victim. He stated that he does not know about the present case. The matter is pertaining to more than 8 years and he was a child at the time so he did not remember what happened in the case. After this, ld. APP for State cross-examined the witness upon which he stated that he studied till 7 th class. He started working sometime before. He is the only bread earner in his family as his father was bed-ridden due to bad health. He specifically stated that he did not remember what happened between 29.09.2013 to 01.11.2013. He did not remember if he was working at Narang Eating Point. He did not remember if accused Jasbir Singh was his owner. He denied the suggestion that he was employed by the accused for Rs. 3500/- per month. He did not remember if police official came to rescue him along with NGO namely Butterfly. He denied the suggestion that he was deposing falsely at the instance of the accused. He also denied the suggestion that he has taken monetary benefit from the accused for deposing falsely in court. He denied other contrary suggestions put forth by ld. APP.
12. PW-8 (incorrectly mentioned as PW-9) is Dr. Praveen Kumar Pal. He brought photocopy of the MLC of the child and stated that on 01.11.2013 he examined Deepak Kumar on did not find any injury on him. There were old rashes and a identification Cr. Case No. 91742/2016 State v. Jasbir Singh Page 6 of 15 mark- tattoo on his right forearm. He was not cross-examined despite opportunity.
13. The accused admitted the genuineness of the FIR (contents denied) Ex. A-1; DD No. 31A dated 04.01.2013 (contents denied) Ex. A-2; DD no. 32B dated 01.11.2013 (contents denied) Ex. A-3; DD no. 49B dated 02.11.2013 (contents denied) Ex. A-4. Therefore, formal examination of witnesses to prove the aforesaid documents was dispensed with under section 294 CrPC.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
14. Thereafter, to enable the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313 Cr.P.C. Accused denied the incriminating evidence and stated that he has been falsely implicated in the present matter and is innocent.
15. Pursuant thereto, the accused stated that he did not wish to lead defence evidence. Thus, the matter was fixed for final arguments. Final arguments were addressed on behalf of both sides. Written submissions were also filed on behalf of the accused. This court has given thoughtful consideration to the material appearing on record as well as the arguments.
ARGUMENTS -
16. It was argued by the learned APP for State that all the ingredients of the offences are fulfilled in the present case. He Cr. Case No. 91742/2016 State v. Jasbir Singh Page 7 of 15 argued that the prosecution witnesses, especially PW1 to PW-3 who are the main witnesses have supported the prosecution version in material particulars and have proved that the accused committed the offences. He contended that no documentary evidence is disputed and that the identity of the accused is established. He also urged that a child working in a tea shop amounts to hazardous employment and is squarely covered by the enactments. It was further argued that there was a long time gap between chief examination and cross- examination of PW-2 which may lead to minor contradictions however the same do not affect the case of the prosecution. It was contended that even PW-7 stated that he started working sometime before. Thus, it is prayed that the accused be convicted for the said offences.
17. Per contra, ld. counsel for the accused contended that the State has failed to establish its case beyond reasonable doubt. He argued that the child/victim is a hostile witness and did not support the prosecution version as he did not identify the accused and refused that he worked at the shop of the accused. It was argued that the statement of PW-1 is full of contradictions. He further submitted that the deposition of PW-2 shows that the child was recovered from park and not the shop. As such, it is prayed that the accused deserves to be acquitted of the alleged offences.
INGREDIENTS OF OFFENCE -
18. Before dwelling into the facts of the present case, it would be apt to discuss the legal standards required to be met by both sides. In criminal law, the burden of proving the guilt of the Cr. Case No. 91742/2016 State v. Jasbir Singh Page 8 of 15 accused exclusively lies on the prosecution which must prove the offences charged beyond reasonable doubt. The benefit of doubt, if any, must go in favour of the accused.
19. The accused has been charged for the offences under Section 23 and 26 of the JJ Act. Section 23 JJ Act provides the punishment for cruelty to juvenile or child. It states as follows:
"whoever, having the actual charge of, or control over, a juvenile or the child, assaults, exposes or wilfully 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 JJ Act prescribes punishment for exploitation of juvenile or child employee and states that "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 purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."
20. The accused has also been charged for the offence under section 14 of CLA which provides that "Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees Cr. Case No. 91742/2016 State v. Jasbir Singh Page 9 of 15 or with both." Section 3 of CLA prohibits employment of a child in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on.
APPRECIATION OF EVIDENCE -
21. The child allegedly recovered from the accused is about 13 years old as per the material on record. Thus, he is covered by both the enactments involved herein.
22. First, let us consider the offences under JJ Act. To prove the charge under Section 23 JJ Act, the prosecution is required to prove that the accused, while having charge of the minor victim, assaulted/exposed/abandoned or wilfully neglected the victim in such a manner to cause mental or physical suffering to the victim. Under Section 26 of the JJ Act, the prosecution is required to prove that the accused procured the victim for hazardous work and thereafter either kept the victim under bondage or withheld the victim's salary or used the same for his own purposes.
23. There is no evidence on record that the victim was either assaulted or abandoned or neglected by the accused. The MLC of the child right after the incident/rescue operation is not on record however there is nothing in the chargesheet or the remaining documentary or oral evidence on record to show that the child sustained any physical injury. PW8 produced photocopy of the MLC of child when he entered the witness box and deposed that no injury was found on examination. Similarly, there is no whisper of Cr. Case No. 91742/2016 State v. Jasbir Singh Page 10 of 15 mental suffering to the child victim either. Moreover, none of the prosecution witnesses, including the victim, have deposed about any neglect or assault. Thus, the offence under section 23 JJ Act has not been proved in the present case.
24. Next offence under consideration is under section 26 JJ Act. The prosecution has failed to bring out all the ingredients of this offence as well. The prosecution has to prove apparent procurement of the child. Thereafter, it has to be proved that the purpose of such procurement was for hazardous employment. Further, it has to be proved that after such procurement, the accused kept the minor in bondage and withheld his earnings or used the earnings for his own purposes.
25. The first requirement is procurement of minor for hazardous employment. There is nothing on record to conclusively prove that the accused procured the minor. The evidence of the prosecution witnesses on the aspect of their interaction with the accused is in the nature of hearsay and inadmissible. As PW-7 is the victim, his testimony is of vital importance in the present case. PW-7 did not know about the case and did not remember what happened 8 years ago. He was cross-examined by Ld. APP for State where he reiterated that he does not remember what happened from 29.09.2013 to 01.11.2013. He did not remember if he was working at Narang Eating Point Shop, Sant Nagar. He also did not remember whether the accused was his owner. He specifically denied being employed by the accused. The aforementioned testimony shows that he turned hostile in toto. Hon'ble supreme court has reiterated in Paulmeli v. State of Tamil Nadu (2014) 13 Cr. Case No. 91742/2016 State v. Jasbir Singh Page 11 of 15 SCC 90 that even the testimony of a hostile witness cannot be rejected in toto as the evidentiary value of his testimony is not lost and can be accepted to the extent that the version is found corroborated with other material evidence. But where the witness has turned hostile even in examination in chief is the case of total hostility and in that case, conviction cannot made. Ld. APP argued that PW-7 stated that he started working sometime before hence that shows that PW-7 was employed as a child labour/bonded labour. This court is unable to agree with the aforementioned submission as PW-7 has not stated anything to that effect specifically. He merely stated in response to questions of ld. APP that he studied till 7th standard and that he starting working sometime before, which does not refer to the period in question. What emerges from this is that the victim himself also did not say that he was procured by the accused.
26. PW-1 and PW-2 are the ones who went to rescue the victim however their testimonies are inconsistent. Ld. APP for State has argued that the inconsistency is a minor nature however this court is unable to agree. These are the only prosecution witnesses who could have seen the victim being employed at the place in question however their testimony shows that neither of them actually saw the victim working at the shop which goes against the prosecution version. PW-1 stated in her examination in chief that she found one boy namely Deepak was working in the shop as a supply boy and was entertaining the customer. PW-1 also stated that prior to this she saw the boy carrying some goods in his hand and going to some residential area. To the contrary, during her Cr. Case No. 91742/2016 State v. Jasbir Singh Page 12 of 15 cross-examination, she admitted that she had not seen any child working at the spot when she reached. Similarly, PW-2 stated in his chief examination that they did not meet the child at the shop. In his cross-examination, he stated that he saw the child carrying a container at the spot and followed him. Therefore, clearly the versions of these witnesses are inconsistent inter se as well as intra se. PW-3 also admitted that the child was not found at the shop when they went there.
27. Perusal of the testimonies of PW-1, PW-2 and PW-3 also does not show that the child was employed to do anything hazardous. Thus, the aspects of procurement of child for hazardous employment is also not proved by the evidence on record and it cannot simply be presumed in the absence of actual proof.
28. Further, there is absence of any evidence on record to show that the accused kept the child in bondage and withheld his earnings or used the earnings for his own purposes. Even if the statement of the child recorded by the SDM/PW-6 on 20.11.2013 is taken at its face value, it does not establish that the accused withheld the earnings of the child. Rather, the statement reads that the NGO rescued him prior to completion of one month, on which his promised salary would become due. It is also stated that he was given ample food to eat and was not physically abused. It also does not show that he was employed in any hazardous activity or was even procured by the accused for the same. In conclusion, all the ingredients of section 26, JJ Act have not been proved by the prosecution in this case.
Cr. Case No. 91742/2016 State v. Jasbir Singh Page 13 of 1529. So far as the offence under section 14, CLA is concerned, as the victim completely denied the prosecution case against the accused in material aspects, his version does not lend any strength to the prosecution case. PW-1 and PW-2 are also not reliable witnesses in view of the inconsistencies in their ocular testimony discussed earlier. The remaining witnesses are formal/police witnesses involved in procedural aspects of the case. The statement of the child recorded by SDM, Defence Colony, though proved by PW-6, cannot be made the sole basis to conclude commission of offence under section 14 CLA in the absence of other corroborating evidence especially in light of hostile testimony of the child himself.
30. The Apex Court has held in a catena of decisions that in a criminal trial when on the basis of the evidence appearing on record, two views are possible, the accused is entitled to benefit of doubt. The Hon'ble High Court of Delhi in Narain Singh @ Lala v. State of Delhi 2005 (1) LRC 294 (Del) (DB) has held that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
31. Therefore, in the facts and circumstances of the case and considering the evidence on record, this court finds that the prosecution has not been able to establish the ingredients of the offences for which the accused has been charged.
CONCLUSION -
32. Resultantly, accused Jasbir Singh is acquitted for the Cr. Case No. 91742/2016 State v. Jasbir Singh Page 14 of 15 offence under section 23/26 Juvenile Justice (Care and Protection of Children Act) Act, 2000 and section 14 Child Labour (Prohibition and Regulation) Act, 1986.
Pronounced in open court in presence of the accused on 18.03.2024 This judgment comprises of 15 signed pages.
(NEHA BARUPAL) Metropolitan Magistrate - 12 South-East District, Saket Courts, New Delhi/18.03.2024 Cr. Case No. 91742/2016 State v. Jasbir Singh Page 15 of 15