Bangalore District Court
The State Of Karnataka vs No.1 Mohammed Jamshad on 10 April, 2018
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 10th Day of April 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No. 58/2016
COMPLAINANT The State of Karnataka,
By Cotton Pet Police Station,
Bengaluru
Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED No.1 Mohammed Jamshad,
S/o. Sheik Ambalir, 35 years,
R/at. No.3, 6th Cross,
K.K.Lane, Cottonpet,
Bengaluru.
Permanent resident of:
Madhavapura Vilalge,
Chirai Post & Taluk,
Mothihari District,
Bihar State.
ACCUSED No.2 Sheik Zaiullahaq @ Sameer Split up
Sri.N.G.-Advocate
1 Date of commission of offence 11-03-2013
2 Date of report of occurrence 11-03-2013
2 Spl.C.C.No.58/2016
3 Date of arrest of Accused No.1 15-03-2013
Date of release of Accused No.1 21-03-2013
Period undergone in custody 06 Days
by Accused No.1
4 Date of commencement of evidence 01-02-2017
5 Date of closing of evidence 02-03-2018
6 Name of the complainant Jayakar
7 Offences complained of Section 370, 374,
344-r/w. 34 IPC &
Sec.23, 26-J.J. Act
8 Opinion of the Judge Accused No.1 is
acquitted
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 accused No.1 and 2 for the offences punishable under Section 370, 374, 344 read with section 34 of I.P.C and Section 23 and 26 of Juvenile Justice Act.
2. The charge sheet is filed by the police against accused No.1-Mohammad Jamshad and accused No.2-Shaikh Zaiulhaq @ Sameer, but the trial Court-3rd A.C.M.M. Court- Bengaluru, while committing the case in C.C.No.2284/2014 has committed case against accused No.1 by splitting up the case 3 Spl.C.C.No.58/2016 against accused No.2 in C.C.No.29266/2015. Hence, this case proceeded against accused No.1 only.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused No.1 was running bag manufacturing unit since from 2009 at K.K. Lane, Building No.1, 2nd Floor, within the jurisdiction of Cotton Pete Police Station, Bengaluru. Since from 2010 up to 11-03-2013 the accused No.1, engaged child labours viz., Cw.17 to Cw.25, who were brought from Bihar and Nepal State by influencing money and also employment to them by way of human trafficking and he kept them in the said bag manufacturing unit unlawfully and knowing fully well the said children are minors and also extracting work from them for 10 to 12 hours in a day as bonded labours and also he has detained them in a room, without providing basic necessities to them and without payment of salary to them. On the basis of complaint lodged by the Cw.1-Jayakar, the police registered the case 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.4 Spl.C.C.No.58/2016
4. The Investigating Officer has investigated the same and filed charge sheet against 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. Thereafter, after filing the charge sheet, as usual the accused No.1 appeared before the Committal Court, the committal Court furnished copy of charge sheet to accused No.1 as contemplated under Section 207 of Cr.P.C. The committal Court passed an order for committing the case to the Hon'ble Principal City Civil & Session Judge-Bengaluru, since the victims are minors and the said case is exclusively triable by the Child Court 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. In pursuance of the said summons, the accused No.1 appeared before the Court and he was enlarged on bail. Thereafter the learned advocate for accused No.1 submitted that there is no argument before framing charge and requested to frame charge. As a result the charge was framed, the contents of charge read over and 5 Spl.C.C.No.58/2016 explained in Hindi by translating Kannada version to the accused No.1. The accused No.1 pleaded not guilty and submit crime to be tried. Thereafter the case against accused No.1 set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused No.1 has examined 12 witnesses as Pw.1 to Pw.12, got marked as many as 23 documents as Ex.P1 to Ex.P23 and two material objects as MO1 and MO2 and closed its side evidence. In view of incriminating evidence appeared against the accused No.1, he is examined under Section 313 of Cr.P.C., by recording his statement. The accused No.1 denied the alleged incriminating evidence appeared against him as false. The accused No.1 complied the provision of Section 437-A of Cr.P.C. by executing personal bond and surety bond. 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:- 6 Spl.C.C.No.58/2016
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3. 1£Éà DgÉÆæAiÀÄÄ ¨ÉÃ¥Ààr¸À®l à Ö 2£Éà DgÉÆævÀ£ÉÆA¢UÉ ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è ¸ÁQë-17 jAzÀ ¸ÁQë-25 gÀªÀgÉV£À C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®PÁ«ÄðPÀg£ À ÀÄß ©ºÁgÀ ªÀÄvÀÄÛ £ÉÃ¥Á¼ÀÀ¢AzÀ ºÀtzÀ C«ÄµÀ vÉÆÃj¹ PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ CªÀgÀ EZÀáÉUÉ «gÀÄzÀª Þ ÁV CªÀg£ À ÀÄß vÀªÀÄä ¨ÁåUÀÄ vÀAiÀiÁjPÁ WÀlPÀz° À è Ej¹PÀÉÆAqÀ ºÉÆgÀ ºÉÆÃUÀ®Ä ©qÀzÉ ¸ÀĪÀiÁgÀÄ ªÀÄÆgÀÄ wAUÀ¼ÀÄUÀ½AzÀ CPÀæªÀĪÁV ElÄÖPÉÆAqÀÄ CªÀgÀ EµÀÖPÉÌ «gÀÄzÀª Þ ÁV ¢£Àz° À è 10 jAzÀ 12 UÀAmÉU¼ À À PÁ® zÀÄr¹PÀÉÆAqÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ¸A À »vÉ PÀ®A 344 ¸Àºª À ÁZÀPÀ 34 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. 1£Éà DgÉÆæAiÀÄÄ ¨ÉÃ¥Ààr¸À®l à Ö 2£Éà DgÉÆævÀ£ÉÆA¢UÉ ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è ©ºÁgÀ ªÀÄvÀÄÛ £ÉÃ¥Á¼À¢AzÀ PÀgv É A À ¢zÀÝ ¸ÁQë-17 jAzÀ ¸ÁQë-25gÀ ªÀgÉV£À ¨Á®PÁ«ÄðPÀg£ À ÀÄß PÁ£ÀÆ£ÀÄ «gÀÄzÀª Ý ÁV ºÀa É £ Ñ À ªÉÃ¼É zÀÄr¹PÉÆAqÀÄ ¸ÀjAiÀiÁzÀ ¸Àª® À vÀÄÛ ¤ÃqÀzÉ zÉÊ»PÀ ºÁUÀÆ ªÀiÁ£À¹PÀ »A¸É ¤Ãr PÀ®A 23 ªÀÄvÀÄÛ 26 ªÀÄPÀ̼À £ÁåAiÀÄ C¢ü¤AiÀĪÀÄ 2000 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
5. AiÀiÁªÀ DzÉñÀ?7 Spl.C.C.No.58/2016
8. My findings on the above points are as under:-
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 inter-related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
10. In order to prove the alleged offences against the accused No.1, the prosecution has examined in all 12 witnesses as Pw.1 to Pw.12, got marked 23 documents as Ex.P1 to Ex.P23 and two material objects as MO1 and MO2. As per the prosecution case, Pw.6 is the complainant, Pw.1 to Pw.4, Pw.8 to Pw.10 are the raiding team members, Pw.5 is the Superintendent of Balakara Bala Mandira, Pw.7 is the doctor, Pw.11 and Pw.12 are the police officials. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against accused No.1.
8 Spl.C.C.No.58/2016
11. In order to establish the alleged offences against accused No.1, the prosecution is required to prove that the accused No.1 was running bag manufacturing unit since from 2009 at K.K. Lane, Building No.1, 2nd Floor, within the jurisdiction of Cotton Pete Police Station, Bengaluru. Since from 2010 up to 11-03-2013 he engaged child labours viz., Cw.17 to Cw.25, who were brought from Bihar and Nepal State by way of human trafficking, influencing money and employment to them. He kept them in the said bag manufacturing unit unlawfully, knowing fully well they are minors and extracted work for 10 to 12 hours from them in a day as bonded labours and also he has detained them in a room, without providing basic necessities and without payment of salary to them and thereby committed offences punishable under Section 370, 374, 344 read with section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the above said ingredients of the alleged offences against the accused No.1 beyond all reasonable doubt.
12. Before venturing into scan the available material 9 Spl.C.C.No.58/2016 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 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 10 Spl.C.C.No.58/2016 person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
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.
By going through the facts, circumstances and available materials both at oral and documentary, it is just and proper to consider the available material evidence attracts the very ingredients of above said offences in order to fix the liability against accused No.1.
13. By going through the evidence of Pw.6-the Complainant-V. Jayakar, he has deposed that on 03-12-2013 he got information about engaging child labours, extracting 11 Spl.C.C.No.58/2016 work in bag manufacturing unit situated at K.K. Lane and after receiving said information he himself, Sugandi, Sharlin went to Child Labour Office and informed the same and then informed to AHTU Unit and came to Cotton pet Police station. Thereafter the NGOs of Justice & Care Institution, Labour Officers, Police personnel of AHTU Unit raided the said bag manufacturing unit and rescued nine child labours, brought them to Cotton Pet Police station and on enquiry they came to know that the accused No.1 who was the owner of the said unit was extracting work from them. As a result he has lodged complaint as per Ex.P20 and his signature is Ex.P20(a). At the time of raid mahazar was conducted as per Ex.P1 and his signature is Ex.P1(a). They have produced the said child labours before CWC. Out of nine children five children are from Bihar and four from Nepal. He also identified MO1 and MO2 the alleged material objects seized on that day.
14. Here, on perusal of Ex.P20-the complaint was lodged on 11-03-2013, whereas the evidence of this witness disclose that they got information about engaging of child labours on 03- 12-2013 and the raid was conducted on the very same day. At 12 Spl.C.C.No.58/2016 this stage this Court feels to observe that in the chief examination the complainant-Jayakar not deposed favourable to the prosecution and Ex.P20.
15. The accused No.1 cross-examined this witness and elicited some commission and omission and also tested his evidence with regard to information received by him whether it is in writing or oral, no such information given to Labour Department, AHTU Unit of CID and also he also shown ignorance about process of conducting mahazar at the spot, whether he has seen the width of the alleged bag manufacturing unit. Here it is relevant to note in order to corroborate the evidence of this witness, no such independent witness evidence produced by the prosecution and even the victim children not stepped into witness box. At this stage, this Court feels to observe the evidence of this witness is in no way helpful to the prosecution to prove the alleged offences against accused No.1 beyond all reasonable doubt.
16. By going through the evidence of Pw.1-Sugandi, she has deposed about raid conduced on 11-03-2013 on the 13 Spl.C.C.No.58/2016 information that Mohammad Jamshad and Sameer brought child labours from Bihar and Nepal and extracting their work in a bag manufacturing unit. At the time of raid labour department offices, AHTU Unit of CID officials also accompanied them. One Jayakar had lodged the complaint. They rescued nine children, out of them four children are below the age of 14 and others are aged below 18 years. On enquiry the said children informed that one Jamsher brought them from Bihar and Nepal about four months back promising them to pay salary of Rs.7,000/- to Rs.8,000/- per month, but they have not received any salary from the accused persons. Further it is her evidence there was one toilet and kitchen. They further informed that they were not given proper food, clothing and they were allowed to go out. Through her Ex.P1-mahazar and MO1 and MO2 are marked, but she is not signatory to spot mahazar. If really she accompanied the raiding team, what impediment caused to her to sign the mahazar, the prosecution has not explained.
17. The accused No.1 tested veracity of evidence of this witness by eliciting some commission and omission and also denied the process of conducting mahazar and she was one of 14 Spl.C.C.No.58/2016 the member of the alleged raiding team, for that she has denied the same. She has also denied no such document seized to establish that the accused persons were owners of the said bag manufacturing unit and also extracting work from child labours. Even Pw.3 not produced the evidence of said witnesses as cited in the charge sheet and also evidence of independent witnesses to believe the process of conducting raid by the raiding team and mahazar was drawn as per Ex.P1. At this stage this Court feels to observe that through the evidence of this witness the prosecution fails to establish the alleged offences against accused No.1 beyond all reasonable doubt.
18. By going through the evidence of Pw.2-Sherlin, one of the member of raiding team and NGO of Justice & Care Institution, she has also deposed that raid was conducted on 11-02-2014, whereas as per Ex.P1, raid was conducted on 11- 03-2014. If this piece of evidence is taken into consideration, there is a doubt of participation of this witness in the raid. Further she has deposed that the raid was conducted on bag manufacturing unit in the name and style of Life Style Bag Manufacture, situated at No.1, K.K.Lane 2nd Floor and they 15 Spl.C.C.No.58/2016 have rescued nine children who were brought from Bihar and Nepal by the accused No.1 and 2 and extracted work from them in the said unit. The place where the children were residing was dark place having both kitchen and toilet in a single room. No such proper accommodation provided to said children. The accused No.1 tested veracity by eliciting some commission and omission and denied the alleged process of conducting of raid and also drawing of mahazar as per Ex.P1. If she has accompanied with the raiding team and participated in the mahazar alleged to have been conducted by the police, NGO, Labour Officer, she would have signed the mahazar. At this stage this Court feels to observe that the evidence of this witness is also in no way helpful to believe the alleged offences against accused No.1.
19. By going through the evidence of Pw.3-Shashidar, Senior Labour Inspector, he has deposed that he was one of the member of the raiding team and raid was conducted on 11-03- 2014 at Bag Manufacturing Unit, K.K.Lane, 2nd Floor, wherein 8 children were working who were brought from Bihar and Nepal. Here this witness also not signatory to Ex.P1-process of 16 Spl.C.C.No.58/2016 conducting mahazar at the spot. As such there is doubt of participation of this witness in the raid alleged to have been conducted by the Justice & Care and other Labour Officer on that day. The accused No.1 tested the veracity of evidence of this witness and elicited some commission and omission, except denial suggestion nothing elicited favourable to the defence taken by the accused No.1. Here also no such document seized by the raiding team to show that accused No.1 is the owner of said bag manufacturing unit and he engaged child labours for bag manufacture. Even none of the children not stepped into the witness box to give their evidence, which is absolutely fatal to the case of the prosecution.
20. By going through the evidence of Pw.4-Ravi Kumar- Assistant Labour Inspector, he has also deposed in support of the evidence of Pw.3, but he has not signatory to Ex.P1. No such other corroborative and cogent evidence produced to show that he has accompanied the raiding team and raided said bag manufacturing unit and rescued nine children at that time. The accused No.1 tested the veracity of evidence of this witness and elicited some commission and omission, except denial 17 Spl.C.C.No.58/2016 suggestion nothing elicited favourable to the defence taken by the accused No.1. Through this witness also the prosecution fails to establish the alleged process of conducting mahazar and drawing of mahazar as per Ex.P1 and confirming the commission of offence by the accused No.1.
21. By going through the evidence of Pw.8-Wilma, another Labour Officer, she has also deposed about one of the member of the raiding team and rescued nine children on 11- 03-2013, but she is also not signed Ex.P1-mahazar which was alleged to have been conducted at the spot itself. If really this witness was present what impediment caused to her to sign Ex.P1. Except oral testimony of this witness, no such corroborative and cogent supporting documentary evidence placed on record to establish the alleged raid, she was also member of the raiding team. The accused No.1 also elicited some commission and omission and also some discrepancy giving her evidence, nothing has been elicited favourable to the defense taken by him. At this stage, this Court feels to observe that she is also one of the members of raiding team of the Labour Department, it is quite natural that she has deposed 18 Spl.C.C.No.58/2016 favourable to the prosecution. When there is drastic stand taken by the accused No.1 stating that no such raid was conducted by the police as per the case of the prosecution, it is the bounden duty of the prosecution to prove the above said fact through the evidence of witnesses who were alleged to have present at the time of raid and it is the duty of the prosecution to produced corroborative, cogent, documentary evidence, but no such evidence placed by the prosecution, which is absolutely fatal to the case of the prosecution.
22. By going through the evidence of Pw.9-Anil Kumar- Police Inspector, he has also deposed in support of the case of prosecution in his chief examination, but he is also not signatory to Ex.P1. The accused No.1 tested his veracity by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by the accused No.1 herein. Here also if really this witness was also one of the members of the raiding team, definitely he could have signed mahazar as per Ex.P1 alleged to have been conducted at the spot itself. At this stage this Court feels to opine that the evidence of this witness is a formal one. 19 Spl.C.C.No.58/2016
23. By going through the evidence of Pw.10-Lokesh, Independent witness, he has also deposed that in the year 2013 at Market Road in a shop where he was doing electrical work, the police came and obtained as per Ex.P1(b) and seized MO1 and MO2. In the cross-examination he has also admitted that he doesn't know to read and write Kannada, the police not read out the contents of Ex.P1, except obtaining his signature. He doesn't know who had written Ex.P1, but he has admitted that articles like MO1 and MO2 available any where in market. He has also admitted that his signature not obtained on MO1 and MO2. He is unable to see the address where the mahazar was drawn as per Ex.P1. At this stage though this witness supported with regard to mahazar conducted, but in his cross- examination, he has shown his ignorance as stated supra.
24. By going through the evidence of Pw.5-N.P.Rajendra Prasad, C.D.P.O., he has deposed that on 11-03-2013 the police, Labour Officer and NGOs brought nine children to Balakara Bala Mandir stating that they have rescued the said children who are brought from Bihar and Nepal. He has received said children, provided food, clothing and shelter to 20 Spl.C.C.No.58/2016 them and also summoned the doctor and obtained certificates as per Ex.P2 to Ex.P10 and his signature is Ex.P2(a) to Ex.P10(a). On 12-03-2013 he has obtained statement of said children as per Ex.P11 to Ex.P19 and his signature is Ex.P11(a) to Ex.P19(a) and the children gave statement in Hindi and the same was translated to Kannada. Here on perusal of said document though there is a shara to that effect, but the person who has written the said document has not stepped into the witness box. Even the prosecution also not stated him as witness. The accused No.1 tested by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by him.
25. By going through the evidence of Pw.7- Dr.Girish.K.K., he has deposed that on 12-03-2013 in Balakara Bala Mandira, he has examined nine children and issued certificates as per Ex.P2 to Ex.P10 and according to him their age is from 10 to 15 years and his signatures are Ex.P2(a) to Ex.P10(a). But in the cross-examination the accused No.1 tested veracity of evidence of this witness and he has admitted that he has not written the date of birth of the children in Ex.P2 21 Spl.C.C.No.58/2016 to Ex.P10. Further he has also admitted that he has not mentioned what type of examination he has conducted in order to certify the age of the children. He has admitted that no such authenticated school certificates obtained to consider the age of the children. On perusal of Ex.P2 to Ex.P10 they are medical examination certificates, except mentioning the name of the children, even the doctor has not obtained their signature to the documents to believe that he has examined the said children. It is mentioned only a general examination, but no such mentioning that he has conducted radiology test, dental test and X-ray for determination of age of each of the victim. When such being the case, question of believing the genuinty of Ex.P2 to Ex.P10 at this stage doesn't arises.
26. By going through the evidence of Pw.12- Sadashivaiah-A.S.I., he has deposed that he was one of the members of the raiding team which was conducted on 11-03- 2013, he has rescued 7-8 children and also arrested the accused No.1. He has given statement before the Investigation Officer. In the cross-examination he was tested his veracity by eliciting some commission and omission and he has shown 22 Spl.C.C.No.58/2016 ignorance about the names and address of the children who were rescued by him. Even he is also not a signatory to Ex.P1. When such being the case, question of believing that he has participated in the alleged raid does not arise.
27. By going through the evidence of Pw.11-Narayani- P.S.I., he has deposed that on 11-03-2013 the complainant came along with nine children and lodged complaint as per Ex.P20 and he has received the same and registered case against accused persons in Crime No.102/2013 for the offences punishable under Section 344, 370, 374 read with section 34 of IPC and Section 23 and 26 of J.J. Act. He has identified his signature as Ex.P20(b). He has prepared FIR as per Ex.P21 and submitted to the Court and his signature is Ex.P21(a). He went to the spot and conduced spot mahazar as per Ex.P1 and his signature is Ex.P1(c), he has seized MO1 and MO2 and subjected to P.F.No.51/2013 and obtained permission from the Court. He has recorded statement of Cw.2 to Cw.13, Cw.29 and Cw.31. He has sent the five children to produce before CWC and remaining four children were sent to Bala Mandir. On 12- 03-2013 nine children gave their statements. He has arrested 23 Spl.C.C.No.58/2016 the accused No.1 as per arrest rules and recorded his voluntary statement and produced before Court along with remand application. Thereafter, he has arrested the accused No.2 and recorded his voluntary statement. He has also recorded statement of Cw.30 and Cw.14. He has received age certificates from CWC of the children and after closure of investigation he has filed charge sheet against accused persons.
28. The accused No.1 tested the veracity of evidence of this witness, except denial suggestion, nothing has been elicited favourable to the defense taken by him. Here this witness is a formal witness. When there are ample independent witnesses available at the spot, the Investigation Officer ha snot obtained the independent witnesses statement, even at the time of alleged raid. The raiding team has also not taken any independent witness. Out of the nine children, none of the children stepped into the witness box to give evidence about the alleged incident. When there is drastic stand taken by the accused No.1 with regard to the alleged offences, it is the bounden duty of the prosecution to establish the same by producing cogent, corroborative and documentary evidence that 24 Spl.C.C.No.58/2016 the accused No.1 was the owner of the alleged bag manufacturing unit, to show he has engaged the workers on salary basis and paid salary to them by way of maintaining Wage Register, to show the accused No.1 obtained license and other valid documents to run the bag manufacturing unit. Non- production of said documents and non-seizure of said documents by the Investigation Officer, it is absolutely fatal to the case of the prosecution herein. On perusal of Ex.P1-spot mahazar, it was conducted by the Investigation and the spot was shown by the complainant. Here, no such piece of document placed about conducting of raid by the raiding team as per the case of prosecution to believe the alleged raid was taken place. Non-production of material corroborative evidence, it is absolutely fatal to the case of the prosecution herein.
29. The oral and documentary evidence placed on record by the prosecution is insufficient to prove the alleged offences against the accused No.1 beyond all reasonable doubt. The defense of the accused No.1 and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused No.1 rather than the 25 Spl.C.C.No.58/2016 case of the prosecution.
29. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.12 and documentary evidence as per Ex.P1 to Ex.P23 and MO1 and MO2, placed on record in respect of alleged offences, is insufficient to prove that the accused No.1 was running bag manufacturing unit since from 2009 at K.K. Lane, Building No.1, 2nd Floor, within the jurisdiction of Cotton Pete Police Station, Bengaluru. Since from 2010 up to 11-03- 2013 he engaged child labours viz., Cw.17 to Cw.25, who were brought from Bihar and Nepal State by way of human trafficking, influencing money and employment to them. He kept them in the said bag manufacturing unit unlawfully, knowing fully well they are minors and extracted work for 10 to 12 hours from them in a day as bonded labours and also he has detained them in a room, without providing basic necessities and without payment of salary to them and thereby committed offences punishable under Section 344, 370, 374, 344 read with section 34 of I.P.C, Section 23 and 26 of Juvenile Justice Act, beyond all reasonable doubt. Consequently, I hold Point No.1 to 5 in the "Negative".
26 Spl.C.C.No.58/2016
30. Point No.6:- For the above said reasons and discussions on Point No.1 to 5, I hold that the accused No.1 is 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 is acquitted for the offences punishable under section 344, 370, 374 read with section 34 IPC and Section 23 and 26 of J.J. Act. His bail bond and surety bond stand cancelled.
Since split up case against accused No.2 is not yet disposed off, office is directed to keep MO-1 and MO-2 as it is until disposal of the said case.
(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 April 2018.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 Sugandini Cw.2 01-02-2017
27 Spl.C.C.No.58/2016
Pw.2 Sherlin Cw.3 22-03-2017
Pw.3 Shashidhar Cw.4 22-06-2017
Pw.4 Ravikumar Cw.10 27-09-2017
Pw.5 N.P.Rajendra Prasad Cw.27 27-09-2017
Pw.6 V.Jayakar Cw.1 27-09-2017
Pw.7 Dr.Girish.K.K. Cw.26 20-11-2017
Pw.8 Wilma Cw.9 20-11-2017
Pw.9 Anil Kumar.G.S. Cw.11 19-12-2017
Pw.10 Lokesh Cw.15 19-12-2017
Pw.11 Narayani Cw.33 02-02-2018
Pw.12 Sadashivaiah Cw.31 02-03-2018
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Mahazar Pw.1 01-02-2017
Ex.P 1a Signature of Pw.6 Pw.6 27-09-2017
Ex.P 1b Signature of Pw.10 Pw.10 19-12-2017
Ex.P 1c Signature of Pw.11 Pw.11 02-02-2018
Ex.P 2 to 10 Age determination Pw.5 27-09-2017
certificates of victims
Ex.P 2a to Signatures of Pw.5 Pw.5 27-09-2017
10a
Ex.P 2b to Signatures of Pw.7 Pw.7 20-11-2017
10b
Ex.P 11 to Statements of victim Pw.5 27-09-2017
19 boys
Ex.P 11a to Signatures of Pw.5 Pw.5 27-09-2017
19a
Ex.P 20 Complaint Pw.6 27-09-2017
28 Spl.C.C.No.58/2016
Ex.P 20a Signature of Pw.6 Pw.6 27-09-2017
Ex.P 20b Signature of Pw.11 Pw.11 02-02-2018
Ex.P 21 FIR Pw.11 02-02-2018
Ex.P 21a Signature of Pw.11 Pw.11 02-02-2018
Ex.P 21 Report of Cw.20 Pw.11 02-02-2018
Ex.P 21a Signature of Pw.11 Pw.11 02-02-2018
Ex.P 22 Report of Cw.21 Pw.11 02-02-2018
Ex.P 22a Signature of Pw.11 Pw.11 02-02-2018
Ex.P 22b Signature of Pw.12 Pw.12 02-03-2018
Ex.P 23 Report of Cw.32 Pw.11 02-02-2018
Ex.P 23a Signature of Pw.11 Pw.11 02-02-2018
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO 1 One School bag Pw.1 01-02-2017
MO 2 One scissors Pw.1 01-02-2017
LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.