Delhi District Court
State vs . Rakesh Kumar on 25 May, 2012
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IN THE COURT OF MS. MANISHA KHURANA, MM-11,
DWARKA COURTS, NEW DELHI
State vs. Rakesh Kumar
FIR No. 35/10
P. S. Naraina
U/s. 374/344 IPC
1. Serial No. of the case : 73/12
2. Date of commission of offence : 17.03.2010
3. Name of the complainant : Sh. Satish Chander
Sh. Satish Kumar
Sh. Surender Kumar
(Officials of Labour
Commission Office)
4. Name of the accused and
his parentage and residence : Rakesh Kumar
S/o. Sh. Rajpal Singh,
R/o. RZ-26A,
Ashok Palk,
West Sagarpur,
New Delhi-63.
5. Date when judgment was : 05.05.2012
reserved
6. Date when judgment was : 25.05.2012
pronounced
7. Offence complained of : 374/344 IPC
or proved
8. Plea of accused : Not guilty
9. Final Judgment : Acquitted
State vs. Rakesh Kumar
FIR No. 35/10
P. S. Naraina
U/s. 374/344 IPC Page No. 1/9
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Brief Statement of reasons for the decision of the case The brief facts of this case are as follows:-
1. On 17.03.2010 it was informed by member of NGO, Don Bosco as well as by Labour Inspectors Satish Chander, Surender Kumar and Labour Surveyor Satish Kumar from the office of Labour Commissioner that a child namely Rupesh has been rescued from a Dhaba of his employer Rakesh Kumar at CC Market, Near Bank of Baroda, Naraina Industrial Area, Naraina, wherein the said child had been working. On the complaint of the Labour Inspectors, FIR under Section 374/344 IPC was registered and accused was arrested. After rescuing the said child, the said officials from the office of Labour Commissioner (Southwest) had filed an application before the SHO, PS Naraina, for taking the custody of child. During investigation, the ossification test of the said child was conducted and his age was found to be more than 12 years and less than 14 years. The said child was thereafter produced before the Child Welfare Committee by the IO and was sent to the custody of Don Bosco, Asylam. After the completion of investigation, the chargesheet under Section 374/344 IPC was filed.
2. On appearance of accused, Section 207 Cr. P. C was complied with. Thereafter on 16.11.2010, charge was framed against the accused under section 344 and 374 of Indian Penal Code to which the accused did not plead guilty and claimed to be tried. Consequently, the matter was listed for prosecution's evidence.
State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 2/9 3
3. In prosecution's evidence, eleven witnesses namely PW-1 Sh. Satish Kumar, PW-2 Surinder Kumar, PW-3 HC Rajender Bakshi, PW-4 Sh. Satish Chander, PW-5 HC Madan Lal, PW-6 Jyotish Lakra and PW-7 Sh. Rajesh Kumar, PW-8 Dr. Sudhindra, PW-9 SI Gurmeet Singh, PW-10 Raju, PW-11 Dr. Sameer were examined.
4. Statement of accused under Section 313 was recorded whereby the accused stated that he wants to lead defence evidence. However, despite availing several opportunities, the accused failed to lead any evidence and consequently, defence evidence was closed vide order of Ld. Predecessor dated 17.12.2011. The mater was thereafter listed for final arguments.
5. I have heard Ld. APP for the State and Counsel for accused. I have perused the record carefully.
6. The accused in the present case has been charged with the offence under Section 374 & 344 IPC. Therefore, it is pertinent to examine the relevant provisions of IPC as follows:-
Section 374 IPC :- Unlawful Compulsory Labour:- Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 3/9 4
7. Section 374 IPC is intended to check the practice of forced labour. It makes unlawful compulsory labour an offence. The section is in conformity with the provision laid down under Article 23 of the Constitution of India, which prohibits begging or forced labour in human beings.
8. To constitute the offence under Section 374 IPC, there must be unlawful compulsion of any person and such compulsion must be that the person must labour against his will. In People's Unions for Democratic Rights vs. Union of India, AIR 1982, Supreme Court of India 1646, by Hon'ble Apex Court has been opined " every form of labour, begger or otherwise is unlawful compulsory labour within the inhibition of article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not" .
9. In order to bring home the guilt of the accused, the prosecution has examined Satish Kumar and Surender Kumar, Labour Inspectors as PW-1 & PW-2 respectively. In their testimonies the said witnesses have deposed that on 17.03.2010, the said witnesses had rescued a boy called Rupesh aged about 12 years who was washing dishes in the Dhaba of the accused. However, both the witnesses in their cross-examination have admitted that there was no independent witness to prove that Rupesh was cleaning dishes.
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10. PW-3 HC Rajender Bakshi was also examined as he had registered the FIR which is EX. PW.3/A. The prosecution also examined PW-4, Satish Chander, Labour Surveyor, who also deposed that a child Rupesh was rescued on the said date as afore-stated. PW-4 in his cross- examination deposed that there was no public person present at the time when the child was rescued. PW-4 deposed that Rupesh had disclosed that he had been working in the said Dhaba for the past two months. HC Madan Lal who had joined the raiding party was examined as PW-5. PW-5 was thereafter cross-examined by counsel for accused.
11. Further PW-6 Jyotish Lakra, Member of Donbosko, Ashyalam, was examined who deposed that he came to know one child Rupesh was working at a Food Joint, therefore, he alongwith PW-1 & PW-2 went to PS Naraina and told the police to rescue the said child labour. PW-6, however, stated that the said child Rupesh was rescued by another team. However, in the statement recorded by the police under Section 161 Cr. P. C the said witness had stated that the child was rescued by his team. Thus, the testimony of PW-6 does not inspire confidence. Rajesh Kumar, member of Donbosko was examined as PW-7 who also testified regarding the rescuing operation of the said child. PW-7 was thereafter cross-examined by counsel for accused.
12. PW-8 Dr. Sudhindra, SR, Radiologist, proved the age assessment report of child Rupesh as EX. PW. 8/A. As per the said report, on the date of the medical examination i.e. on 26.03.2010, the age of the child Rupesh was more than 12 years and less than 14 years. PW-9 State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 5/9 6 SI Gurmeet Singh had prepared the rukka as EX. PW.9/A and site plan as EX. PW.9/B.
13. Another material witness PW-10 Sh. Raju was also examined by the prosecution who stated that he was working at the Dhaba of the accused as a Labour and that a small child of aged about 12 to 13 years was working in the Dhaba and used to clean utensils. In his cross- examination, PW-10 Raju, however, has stated that he did not know whether the father of child Rupesh had been visiting the Dhaba. PW-11 Dr. Sameer was also examined and he proved the dental examination report of the child as EX. PW.8/B. As per said report, the age of child Rupesh was 12 years
14. From the testimony of PW-8 and PW-11 as well as age assessment report of Medical experts i.e. EX. PW. 8/A and EX. PW. 8/B , the prosecution has been able to establish that the age of child Rupesh was around 12 years.
15. Although the prosecution has examined the labour inspectors as well as the police witnesses and even the medical experts, however conspicuously the prosecution has failed to examine the most material witness in the present matter,that is child Rupesh himself.
Section 118 of Indian
Evidence Act:- Who may testify - All
persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 6/9 7 theme, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
16. Thus, as per section 118 Indian Evidence Act, a child is a competent witness to testify, if he is capable of understanding the questions put to him and he is capable of giving rational answers to the same.
17. To prove the offence under section 374 IPC, it is imperative to establish that the person has been a subject of unlawful labour compulsorily that is against the will of the person. Consequently, it was a sine qua non that the child himself was examined by the prosecution to establish that he was working as a labour in the dhaba of the accused and that he was working under compulsion against his will. PW-10 Raju who has been produced by the prosecution has deposed that the said child Rupesh used to clean utensils at the Dhaba of the accused. No other independent witness has been examined by the prosecution to prove the same. Be that as may, in the absence of the testimony of child Rupesh, it cannot be inferred that the said child had been working at the dhabba against his will or that the accused had forced the child to work against his wishes. The fact that child Rupesh has not been examined by the prosecution is therefore fatal for the case of the prosecution. Since the prosecution has failed to lead any cogent evidence to establish the same, the offence under section 374 IPC cannot be said to be made out against State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 7/9 8 the accused and the accused has to be given benefit of doubt.
18. The accused has also been charged for the offence under section 344 IPC.
Section 344 IPC :-Wrongful confinement for ten or more days -
whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a terms which may extend to three years and shall also be liable to fine.
19. In order to prove the offence under Section 344 IPC, it is important to establish that a person was wrongfully prevented from proceeding beyond certain circumscribed limits for a period of 10 days.
20. As already aforestated, the prosecution has led the the evidence of police witnesses as well as labour inspectors to establish the guilt of the accused for the offence under section 374/344/34 IPC. However, the most material witness that is the child has not been produced to establish beyond reasonable doubt that he had been voluntarily obstructed and confined to the dhabba by the accused for a period of 10 days, the said fact being in the special knowledge of the chiild himself. The prosecution therefore has failed to prove its case against the accused beyond reasonable doubt. The accused is therefore acquitted for the offence under section 344 and 374 IPC.
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21. The accused is directed to furnish bail bonds under section 437A Cr. P. C. Personal bond furnished and accepted till 28.5.2012. The accused is directed to produce surety on the next date. The bonds shall remain in force for a period of six months.
22. File be consigned to Record Room after due compliance.
Announced in the open Court (Manisha Khurana) on 25th May, 2012 Metropolitan Magistrate, Dwarka Courts,New Delhi State vs. Rakesh Kumar FIR No. 35/10 P. S. Naraina U/s. 374/344 IPC Page No. 9/9