Delhi District Court
Sc No. 1571/16 State vs . Basobi Dass & Anr. 1 Of 20 on 31 January, 2019
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE05, EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No. 1571/16
FIR No.840/15
PS: Shakar Pur
U/s 325/342/354/370/374/34 IPC r/w
Section 16 The Bonded Labour System (Abolition) Act, 1976
State
Versus
1. Basobi Dass
W/o Sh. Ranjeet Dass
R/o A35, Guru Ram Dass Nagar, Delhi.
2. Priya
W/o Sh. Kailash Borha
R/o A35, Guru Ram Dass Nagar, Delhi.
Date of assignment : 13.07.2015
Date of Arguments : 25.01.2019
Date of Judgment : 31.01.2019
JUDGMENT
1. The present case was registered on the complaint of Momita Mishra.
SC No. 1571/16 State Vs. Basobi Dass & Anr. 1 of 20 CASE OF THE PROSECUTION
2. As per the case of the prosecution, the complainant Momita Mishra has stated in her complaint that she is a resident of Village Adarkuna Sinchar, P.S. Badar Pur, District Karim Ganj, Assam. Her father is a labourer. She met the accused Basobi Dass at Guwahati through one boy namely Manoj Chakraborty who belonged to her village. She was enticed to work as maid at Delhi on the assurance that she would be given handsome salary. Thereafter, she came to the house of Basobi Dass at A35, Guru Ram Dass Nagar, Delhi where Ranjeet, the husband of Basobi Dass, her son Rajeev, her sister Priya and Ricky son of her sister Priya used to reside. She was made to work throughout the day by them. Rajeev and Priya used to beat her and abuse her on trivial issues. She was not paid any salary. She stated that she was confined in the house and whenever the members of the house used to go outside, they used to lock the house from outside. She was made to work as a bonded labour against SC No. 1571/16 State Vs. Basobi Dass & Anr. 2 of 20 her will. On 18.04.2015 she was given clothes for washing. When she was drying clothes at the terrace, some clothes fell down, then Rajeev started beating her and touched her various parts of body. When she told him that she would complain against him, he hit a danda on her hand. On hearing noise, Basobi and Priya came at the terrace and told her that they would prove her mentally unfit and would throw her out of the house. They also burnt her body with a hot tong. Somehow she reached at Om Sai Temple at Pushta Road. She was not able to walk properly. Public persons asked her about her condition. Thereafter, Ravi and Piku came and asked her about her condition.
3. Investigation was conducted. After completion of the investigation, accused persons were chargesheeted for the offences punishable under Sections 323/342/354/370/374/34 IPC r/w Section 16 of the Bonded Labour System (Abolition) Act, 1976.
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4. The Ld. M.M. has supplied the copies to the accused persons in compliance of Section 207 CrP.C. As the case was exclusively Sessions triable, so the case was committed to the Court of Sessions.
CHARGE
5. On 26.08.2015, charge for the offences punishable under Sections 374/34 IPC, 342/34 IPC and 323/34 IPC was framed against both the accused persons. A separate charge for the offence punishable under Section 370(2) IPC was framed against the accused Basobi Dass. The accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
6. In support of its case, prosecution has examined six witnesses.
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7. PW1 is Ravi Arora. He is Secretary in the NGO Social Liberation Organization. He stated that on 18.04.2015, at about 8.45 p.m., he received a telephone call from one Kamaldeep, a worker in his organization. He informed him that one girl was present at Om Shiv Sai Mandir, Pushta Road, Shastri Nagar, Delhi in injured condition. That girl was very frightened. He called one Ms. Piku who was also a Bengali. On inquiries by Ms. Piku that girl, whose name was revealed as Momita Mishra, told her that she was brought to Delhi by one lady namely Priya. She further told her that there were four persons namely Priya, Basobi Dass, Rajeev and Ricki in the house where she used to work as maid servant. Momita Mishra was having burn injuries on her neck and injuries on her legs. Momita told her that she was being beaten by them. She further told her that she had been employed as Maid in the house of Priya. She was made to work throughout the day by the accused persons. She was not paid any remuneration for the last four years. She also SC No. 1571/16 State Vs. Basobi Dass & Anr. 5 of 20 told that she was confined in the house and whenever the members of the house used to go outside, they used to lock her in the house. Momita Mishra gave complaint (Ex.PW1/A) to the police. She was also got medically examined by the police.
8. PW1 Ravi Arora was cross examined by Ld. Addl. PP for the State as he was suppressing some facts. In his cross examination, he admitted that police had registered the case on the statement of Momita Mishra. He also admitted that he had joined the investigation of this case and accompanied the police to House Number A35, Guru Ram Dass Nagar, Delhi. Both the accused persons were arrested. Arrest memos of the accused Priya (Ex.PW1/C) and accused Basobi Dass (Ex.PW1/B) were prepared in his presence. The personal search memos of the accused persons (Ex.PW1/D and Ex.PW1/E) were also prepared in his presence. Ex.PW1/F and Ex.PW1/G were also prepared in his SC No. 1571/16 State Vs. Basobi Dass & Anr. 6 of 20 presence. He identified both the accused persons during his deposition before the Court.
9. PW2 is Smt. Piku. She stated that she knew PW1 Sh. Ravi Arora as he was residing in her neighbourhood. He was running a NGO in the name of Social Liberation Organization (SLO). She stated that about 45 months ago at about 9.00 p.m. Ravi Arora called her and asked her come to Sai Mandir, Pushta Road, Shastri Nagar. Ravi informed her that a girl was present at the temple in injured condition. As that girl was speaking Bengali Language, Ravi called her to talk to her. The name of that girl was revealed as Momita. Momita was having injuries on her hands. That girl was not able to stand properly. PW2 noticed scratch marks on her neck. She talked to Momita in Bengali language. During the conversation, Momita told her that she had escaped from the house in which she was working as maid because she was threatened by the inmates of the said house that they would SC No. 1571/16 State Vs. Basobi Dass & Anr. 7 of 20 spill hot oil on her. Thereafter, Momita was taken to Police Station Shakar Pur by her, public persons and Ravi Arora. Police inquired from Momita regarding the present case. She stated that police had taken Momita to the hospital.
10. PW2 was cross examined by Ld. Addl. PP for the State as she was suppressing some material facts. In her cross examination by the Ld. Addl. PP, she admitted that Momita Mishra had told her the names of the inmates of the house in which she was working as maid. She admitted that Momita had told her that she was forced to work as bonded labour in that house. She was also not being paid for work. She also admitted that Momita had disclosed the name of the owner of that house as Basobi Dass, her son as Rajeev and her daughter as Priya. She also admitted that the said accused persons used to beat Momita. They also used to confine her in their house. She admitted that statement of Momita Mishra was recorded by the police in her presence as well as in the SC No. 1571/16 State Vs. Basobi Dass & Anr. 8 of 20 presence of PW1 Ravi Arora.
11.PW3 is HC Pratap Singh. On 19.04.2015, he was working as Duty Officer at Police Station Shakar Pur. On that day at about 6.30 p.m. a ruqqa was produced before him for registration of the FIR. On the basis of the said ruqqa, he got the FIR (Ex.PW3/A) of this case registered. He also made endorsement (Ex.PW3/B) on the ruqqa. He issued Certificate (Ex.PW3/C) under Section 65B of Indian Evidence Act.
12.PW4 is Ms. Babita Puniya. On 20.04.2015, she was working as Metropolitan Magistrate at Karkardooma Courts. On that day, an application (Ex.PW4/A) was filed by the IO for recording the statement of vicitm Momita Mishra under 164 CrPC. She recorded the statement of Momita Mishra (Ex.PW4/C). The proceedings regarding identification of witness is Ex.PW4/B. She also issued Certificate of Correctness (Ex.PW4/D) of the proceedings. SC No. 1571/16 State Vs. Basobi Dass & Anr. 9 of 20
13.PW5 is W/Ct. Pushpa Rani. She stated that on 18.04.2015, at about 8.00 p.m. Ravi Arora and Smt. Piku came to the Police Station. They produced the victim Momita Mishra. The victim disclosed that she belonged to Assam and came to Delhi for work. She further disclosed that she was working as maid servant in the house of Basobi Dass and her sister Priya. She further disclosed that they used to beat her and kept her as bonded labour. She got the medical examination of the victim conducted. She took Momita Mishra at the house of the accused persons. Upon the directions of the IO, she recorded statement of Momita Mishra (Ex.PW1/A). Arrest memos and personal search memos of both the accused persons were got prepared by her. She identified both the accused persons during her deposition before the Court.
14.PW6 is SI Rahul. He is the Investigating Officer of this case. On 18.04.2015 at about 11.30 p.m. Ravi and Smt. Piku SC No. 1571/16 State Vs. Basobi Dass & Anr. 10 of 20 produced the victim Momita Mishra before him. The victim disclosed that she was working as maid servant in the house of the accused persons. He sent Momita Mishra to LBS Hospital for her medical examination through W/Ct. Pushpa Rani. He prepared ruqqa (Ex.PW6/A) and got the FIR registered. He recorded the statement under Section 161 CrPC of Smt. Piku. He along with W/Ct. Pushpa, Ravi and victim Momita Mishra went to the house of the accused persons. He prepared the Site Plan (Ex.PW5/A) at the instance of complainant. He interrogated both the accused persons. He recorded disclosure statements (Ex.PW1/F and Ex.PW1/G) of both the accused persons. He arrested both the accused persons vide arrest memos which are Ex.PW1/B and Ex.PW1/C. He got conducted the personal search (Ex.PW1/D and Ex. PW1/E) of both the accused persons. He handed over the victim Momita Mishra to the Shelter Home namely Snehalaya situated at Karkardooma. On 20.04.2015, he got her statement recorded under Section 164 CrPC. He SC No. 1571/16 State Vs. Basobi Dass & Anr. 11 of 20 collected MLC (Ex.PW6/B) of Momita Mishra from LBS Hospital. On 14.05.2015, Momita Mishra was handed over to her mother vide Handing Over memo which is Ex.PW6/C. After completion of the investigation, he filed the Charge Sheet before the Court in this case.
STATEMENTS OF ACCUSED PERSONS UNDER
SECTION 313 Cr.PC
15.Statements of both the accused persons were recorded under section 313 Cr.P.C., wherein they denied the allegations against them and stated that they are innocent and have been falsely implicated in this case. They have stated that the witnesses have falsely deposed against them as they are interested witnesses. None of the accused person led evidence in her defence.
16.Accused Basobi Dass in her statement under Section 313 CrPC stated that Momita Mishra was working as maid SC No. 1571/16 State Vs. Basobi Dass & Anr. 12 of 20 servant in her house. Momita was interested in some boys from outside. When she objected Momita from doing so, she made a false complaint against her.
17.Accused Priya in her statement under Section 313 CrPC stated that her elder sister advised not to make relations with boys, so Momita Mishra had complained against her sister and also involved her in this case.
18.I have heard Sh. Gaurav Pandey, Ld. Addl.P.P for the State and Sh. Yunus Qureshi, Advocate for both the accused persons. I have also perused the case file. ARGUMENTS ON BEHALF OF PROSECUTION
19.It was submitted by the Ld. Addl. PP for the State that the prosecution case stands proved from the statements of witnesses. It was submitted by Ld. Addl. P.P. that all the witnesses are consistent and corroborative and hence, there SC No. 1571/16 State Vs. Basobi Dass & Anr. 13 of 20 is no reason to disbelieve their version.
20.It was contended by Ld. Addl. PP for the State that though the material witness i.e. complainant/victim Momita Mishra has not been examined, even then the prosecution case stands proved from the statement of Momita Mishra recorded under Section 164 CrPC.
21.It was argued that the statement of Momita Mishra recorded under Section 164 CrPC is also corroborated by the statements of PW1 Ravi Arora and PW2 Smt. Piku.
22.It was argued that prosecution case has been proved beyond reasonable doubt. Therefore, the accused persons are liable to be convicted for the offences with which they have been charged with.
SC No. 1571/16 State Vs. Basobi Dass & Anr. 14 of 20 ARGUMENTS ON BEHALF OF ACCUSED PERSONS
23.On the other hand, It was contended by the Ld. Counsel for the accused persons that the accused persons are innocent and they have been falsely implicated in this case.
24.It was contended that the prosecution has failed to prove its case against the accused persons as the material witness i.e. complainant/ victim Momita Mishra has not been examined by the prosecution. It was argued that her statement under Section 164 CrPC cannot be used for the purpose of convicting the accused persons.
25.It was argued that the evidence of PW1 Ravi Arora and PW 2 Smt. Piku is of no help for the prosecution as the evidence of both the said witnesses is hearsay evidence which is not admissible.
SC No. 1571/16 State Vs. Basobi Dass & Anr. 15 of 20 DISCUSSION AND CONCLUSION
26.The case of the prosecution is that accused persons have compelled Momita Mishra to do labour against her will and confined Momita Mishra in their house. It is also the case of the prosecution that the accused persons have caused injuries to Momita Mishra. Accused Basobi Dass has also been charged for the offence punishable under Section 370 (2) IPC.
27.PW1 is Ravi Arora, who was running a NGO. He went to Om Shiv Sai Mandir, Pushta Road, Shashtri Nagar, Delhi after receiving information from one Kamaldeep that Momita Mishra was present there in the temple in injured condition. Momita Mishra disclosed to him that she was brought to Delhi by one lady namely Priya. She further disclosed to him that there were four persons namely Priya, Basobi Das, Rajeev and Ricky in the house where she used to work as maid. Momita Mishra was having burn injuries on her neck and on SC No. 1571/16 State Vs. Basobi Dass & Anr. 16 of 20 her legs. She further disclosed to him that she was beaten by the members of that house. Rajeev used to beat her mostly. She was made to work throughout the day and was not paid any salary for the last four years. She further disclosed to him that she was confined in the house. The scrutiny of testimony of PW1 Ravi Arora shows that his testimony is hearsay which is not admissible.
28.Similarly, PW2 Smt. Piku was called at Om Shiv Sai Temple, Pushta Road, Shahstri Nagar, Delhi by PW1 Ravi Arora. She acted as an interpreter as Momita Mishra was speaking Bengali language. Momita Mishra disclosed to PW 2 Smt. Piku that she had escaped from the house in which she was working as maid because she was threatened by the inmates of that house that they would spill hot oil on her. The scrutiny of the testimony of PW2 Smt. Piku shows that her testimony is hearsay which is not admissible. SC No. 1571/16 State Vs. Basobi Dass & Anr. 17 of 20
29.PW3 HC Pratap Singh was working as Duty Officer. He is a formal witness. PW4 is Ms. Babita Puniya. She was working as Metropolitan Magistrate. She recorded the statement under Section 164 CrPC of Momita Mishra. PW5 is W/Ct. Pushpa Rani. She joined the investigation along with Investigating Officer PW6 SI Rahul. Her testimony is formal in nature. PW6 is SI Rahul. He is the Investigation Officer of the case. He also came into picture after the incident.
30.Therefore, from the scrutiny of the prosecution evidence, it is revealed that there is no eye witness of the incident. The testimony of the witnesses examined by the prosecution are either hearsay or formal.
31.The contention of Ld. Addl. PP for the State is that the statement of Momita Mishra recorded under Section 164 CrPC can be used as substantive evidence. In my opinion, statement under Section 164 CrPC of a witness is not SC No. 1571/16 State Vs. Basobi Dass & Anr. 18 of 20 substantive evidence. The purpose of the statement under Section 164 CrPC is very limited. Reliance in this regard can be placed upon a judgment of Hon'ble Supreme Court titled as R. Shaji Vs. State of Kerala AIR 2013 SC 651 wherein it was observed as under: "16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Code of Criminal Procedure, can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross examine the witnesses whose statements are recorded under Section 164 Code of Criminal Procedure, such statements cannot be treated as substantive evidence."
32.In this case, the most material witness i.e. complainant/ victim Momita Mishra was not examined by the prosecution. Summon of the complainant/victim Momita Mishra were ordered to be served through Investigating Officer SI Rahul SC No. 1571/16 State Vs. Basobi Dass & Anr. 19 of 20 Kumar (PW6), but he reported that Momita Mishra is not traceable.
33.In view of the above discussion, I am of the considered opinion that prosecution has failed to prove its case. Therefore, the accused persons are acquitted of the charges. Their bailbonds are cancelled and sureties are discharged.
34.File be consigned to Record Room.
(This judgment has been typed directly by the P.A. on my Digitally signed by dictation). SURINDER SURINDER KUMAR KUMAR SHARMA Date: 2019.01.31 SHARMA 16:56:11 +0530 Announced in the Open Court (Surinder Kumar Sharma) on 31.01.2019 ASJ05, East District Karkardooma Courts Delhi SC No. 1571/16 State Vs. Basobi Dass & Anr. 20 of 20