Delhi District Court
The Hands Of The Investigator {Reliance ... vs . State Of M.P. 1995 (5) Scc on 26 July, 2022
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THE COURT OF SMT. SHAGUN
METROPOLITAN MAGISTRATE -04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
FIR No. 416/10
P.S-Nangloi
U/S- 23, Juvenile Justice
(Care and Protection of Children) Act,2000
JUDGMENT
1. CASE No. : 74324/16
2. Date of commission of offence : 15.12.2010
3. Name of the Complainant : Sh. Pradeep
Kumar SDM,
Punjabi Bagh
4. Name and adress of accused : (i) Vikas Saini S/o
Sh Ganga Ram R/o
H.NO:C1/2B,Vikas
Marg, Swaran Park
Mundka, Delhi
(ii) Mukesh Kumar S/o
Ram Prasad, H. No:
-P696, Saini Vihar,
Mundka. Delhi.
5. Offence complained of or : Section 23, JJ Act,2000
proved
6. Plea of accused : Pleaded not guilty
7. Final Order : ACQUITTED
8. Date on which reserved for : 26.07.2022
judgment
9. Date of pronouncing of judgment : 26.07.2022
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1. BRIEF FACTUAL POSITION :-
1.1 The present FIR has been lodged on the information given of one, Sh. Pradeep Kumar, SDM
Punjabi Bagh that on 15.02.2010 a raid was conducted in Swaran Park/Mundka in the jurisdiction of Police Station,Nangloi with collaboration of Bachpan Bachao Andolan(NGO) and assistance of police officials of the said police station and labour department. A total of 21 children working in a leather industry were purportedly rescued and the same were handed over to the SHO after conducting medical examination.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 A total of 6 Witnesses were examined by the prosecution and other two witnesses one being the project officer of the said NGO and Manager of the Mukti Asharam where the children were finally sent for rehabilitation remained untraceable even after service of process through DCP. 2.2 On the basis of prima facie evidence on record, the accused persons namely Mukesh Kumar were charged with employing minor labourers namely Sumit kumar singh and Manoj and accused person namely,Vikas Saini for employing minor labourers namely mithilesh, Deva and Hari Om by the Ld.Predecessor; for over 8 hours/day and paying them less than minimum wages and thus, giving them unnecessary mental and physical torture and for the commission of an offense punishable under sec.23 of Juvenile justice act,2000 .
2.3 In order to substantiate and prove its case against the accused the prosecution has examined following witnesses.
2.4 PW-1 ASI Dalbir Singh,Duty Officer who received the Rukka from the then SHO on the basis of which the present FIR was lodged at about 8:30pm and proved FIR Ex. PW-1/A and handed over the same for investigation to SI Vijay as per direction of SHO.
2.5 PW-2 is Sh. Pradeep Kumar,SDM Punjabi Bagh, who deposed that on 15.12.2010 upon receiving information from the NGO by the police officials, he alongwith the officials of Labour Department, in collaboration with the said NGO and police officials conducted raid in the area of Swaran Park and 21 children were rescued working in leather industry and were handed over to SHO. He further deposed that details of rescued children were handed over to the SHO . Further,the action was taken on his letter Ex. PW-1/B and list of children rescued is Marked X1 to X6. In his cross examination he stated that he received the information at around 9:30 am from the officials of 2 3 said NGO. During the cross examination PW2 stated that his statement was recorded by the police.
He further deposed that he had not met the IO of the present case and did not remember the Head of NGO but stated that it may be one Sharma. On being asked about the place of raid, the witness deposed that raids were conducted in leather factory in swaran park but he did not remember name or place of premises. He further deposed that he did not remember sequence of raids, name of the premises. After the raid the children were taken to office of the SDM where they were medically examined. He could not depose as to the name of head of the doctor's team or the officials who made the list of children so rescued or if any handing over memo was prepared by the SHO at the time. He has then casually stated that SHO may have made a receipt which might be part of record. The witness then went through the case file that the copy of the letter was the copy given to the SHO. He could not depose to the fact whether any list of premises raided were prepared or was he ever called by the SHO for the purposes of investigation or if an ACP or Addl. SHO were made part of the said raiding team. He then denied the suggestions put forth by the Defence that he is falsely deposing.
2.6 PW-3 Ct. Anil deposed that after lodging of the said FIR he alongwith the IO SI Vijay and Ct. Sandeep went to Swaran Park where they found around 21 children under 16 years of age working in a leather factory and they belonged to Bihar, West Bengal and U.P. PW3 further deposed that despite efforts owner of the factory could not be found. Thereafter, they took the children to Sewa Kutir, Kingsway camp and on order of the Chairman, Kingsway Camp the children were taken to Mukti Ashram and his statement was recorded in this regard. In his cross examination he stated that he received the FIR around 9 pm and they reached the spot at 9:30pm or 9:45pm and no other higher official was called, they stayed at the spot for around 40-45 minutes. IO had not called any public person and no one was called before preparing the list of children. The Children were taken in one hired Tata-407. He denied the suggestion of deposing falsely. 2.7 PW-4 Ct. Sandeep deposed on the same lines as PW-3. Additionally in his cross examination he deposed that they left on two motorcycles and reached the spot in about 5 minutes after receiving FIR around 8:45pm. He further deposed that they were present at the spot for about 60-90 minutes and the children were taken in police vehicle i.e tata-407 to Ebrahim pur. 2.8 PW-5 Ct. Krishan deposed that on 16.12.2010 he was on emergency duty from 8:00 am to 8:00pm and he alongwith IO left for Swaran Park and IO interrogated two persons and brought them to PS and after interrogation they were arrested vide arrest memos Ex. PW 5/A and 5/B and their personal search memo was prepared Ex. PW 5/c and PW. 5/D and thereafter they were 3 4 released on bail. He further deposed that he could not identify the accused persons on which the Ld. APP sought permission to cross examine the witness and pointed out the accused persons in court and witness identified that these were the two persons arrested that day. On cross examination by the defence, the witness deposed that the fact that he was on emergency duty is not recorded in DD entry. He further deposed that they went to the spot on another call of quarrel and from there they went to the leather factory. He deposed that both the accused persons reached the PS on their own vehicles. PW5 admitted that No public persons were called by the IO in his presence. He could not remember whether the surety came to the PS or not.
2.9 PW6 - SI Vijay Kumar, IO of the present case deposed that on 15.12.2010 information was received from the workers of said NGO that certain children were working as bonded labour in the area of Swaran Park, thereupon, he informed the SHO and on his information he went to the office of SDM where certain other officers of SDM office joined the raiding team. He further deposed that after conducting of raid it was disclosed that the owner of factory was one Saini and the medical team was also present at the spot who prepared document qua the rescued children. After which they returned to SDM office where an order for initiating legal action against the accused persons was passed which was treated as rukka and FIR was registered. The children were then taken to CWC and therefrom on its direction to the Mukti Ashram. The Statements of the witnesses were recorded. He further deposed that on the next day, three persons namely Mukesh, Vikas and one other person were arrested. He deposed that due to considerable lapse of time he is unable to identify accused persons. He further affirmed that he prepared arrest memo, personal search memo of accused persons. Witness then sought permission to refresh his memory and after resumption he stated that he recorded the statement of witnesses. At this stage the Ld. APP sought permission to cross examine the witness which was allowed. During said cross examination the witness was asked whether he arrested accused Mukesh to which he answered in affirmative, on question of identification of accused he stated he can not identify the accused Mukesh due lapse of time. Ld. APP had drawn his attention towards accused Mukesh present in court to which he answered as earlier and did not identify the accused. Ld. APP then asked the IO whether any age proof documents were collected by him to which he answered that he could not remember. Case file was shown to witness thereupon he submitted that he had not collected any such documents and the IO deposed that he verified the age of children on basis of height and features, he denied the suggestion that he had not collected the same to shelter and save the accused persons. In his cross examination by the defence the IO deposed that he had not recorded any statement of SDM or any other official 4 5 of SDM Office except the order of SDM. The IO further deposed that they reached the office of SDM after the raid after 12 noon. He was unable to depose to the name of the officer of the said NGO and stated he might be one Neeraj,he admitted that no public persons were joined, the raid was conducted in only one factory , no ownership documents were collected by him at any time nor any medical examination was conducted by him and that no written order was passed by the SHO. He denied presence of SHO,ACP or SDM at the spot at any time. The IO deposed that he arrested 3 accused persons including the present two accused persons and one Vinod he could not state as to accused Vinod. He denied the suggestion that the third accused vinod owned the said factory.
3.STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the Prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. separately wherein they denied the allegations and tendered explanation that they have been falsely implicated and no such children were rescued from their premises or factory and on that day the children who were engaged in scrap work were lifted by the police officials and then they were called to PS and police obtained their mobile numbers from them. They further stated that they are not the owner of said factory and no one was working with them.
4. ARGUMENTS:
4.1 . Ld. APP for the State has argued that on a combined reading of prosecution witnesses' testimony, offence under section 23 of Juvenile Justice Act,2000 stands proved beyond reasonable doubt, against the accused persons.
On the other hand, It is argued by the Ld. Counsel for the accused persons that there is no public witness in the present case and the police officials claimed to have witnessed the incident whose testimony cannot be relied upon in absence of any independent public witness. It is further argued that ownership of said premises by the accused persons has not been proved and no statement of any child victim is on record to believe the version of prosecution.
5. BRIEF STATEMENT OF THE REASONS FOR THE DECISION.
In the present case, the accused persons have been charged with the offence U/s 5 6 23, JJ Act,2000 which states as follows:-
23.Punishment for cruelty to juvenile or child.-- Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, 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.
The Juvenile Justice (Care and Protection of Children) Act, 2000 5.1 The ingredients to prove the offence punishable under section 23 JJ Act are as follows:
5.1.1. That the accused is in actual charge or control over the minor.
5.1.2. That the accused assaults, abandons, exposes or willfully neglects the minor in a manner likely to cause unnecessary mental or physical suffering to the minor.
The undersigned has perused the record carefully, heard the rival arguments and submissions. Now, I shall begin to appreciate the evidence brought on record. This Court has bestowed thoughtful consideration to the rival submissions made before the Court. Accused persons are indicted for the offences U/s 23 Juvenile justice Act,2000 5.2 The burden upon the prosecution is to prove its case beyond reasonable doubt and any doubt shall work towards the benefit of the accused persons. While minor contradictions are not material but material gaps in the prosecution version can not be ignored. Such as is the case at hand,It is pertinent to highlight the same :-
5.3 Regarding non joining of independent witnesses, it is important to revisit the following provisions:-
As per Section 100(4) Cr.P.C states that, "before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be 6 7 searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or
(b) in the prevention of suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property".
Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process 7 8 lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
The Police Officer conducting a raid or search of the premises is required to call upon two respectable persons as witnesses to the search, no such public witness has been made part of the raiding team admittedly by the witnesses, without any reason regarding non compliance of said provision which further raises a serious doubt on the proceedings that have been conducted.
Furthermore, no independent witnesses have been joined at the time of making arrest of the accused persons.
5.4 The Prosecution has based its entire case on the information received from NGO Bachpan Bachao Andolan. PW2 has stated that workers of the aforesaid NGO informed him regarding the employment of children and thereafter in collaboration with the said NGO, labour department officials and police officials conducted the raid. Whereas, PW6 has stated that the SDM/ PW2 was never part of the raid and never visited the spot. Also, PW3 has deposed that he alongwith Ct. Sandeep and SI Vijay visited the spot after registration of the FIR and found 21 children under 16 years of age working in a leather factory and made no mention of any labour department official or the SDM or the Medical Team.
5.5 PW6 has deposed during his examination that the workers of the said NGO informed him regarding the children working in factories and Pw6 thereafter informed the SHO and then they visited the then SDM, Punjabi Bagh which is quiet different from the version of PW2 who has deposed that on his information police officials joined the raid. The aforesaid observation makes the case of prosecution rather doubtful as major discrepancy and inconsistency has arisen regarding the source of information and entire proceedings have therefore become doubtful.
5.6 Further, PW2 has stated that his statement was recorded by the police at the spot, however, PW6 has categorically stated that no statement of the SDM was recorded at anytime. Also, it is stated by PW2 that he could not remember or depose as to the premises that were raided by the 8 9 team. It appears from the testimony of PW2 that more than one place was raided by the team , however, the IO has stated that only one premises was raided by the team. Also, it is stated by PW- 6, the IO that the medical team was present at the spot however PW2 has deposed that the medical team was present at the SDM Office.All these facts further casts a doubt on the presence of PW2 at the spot.
5.7 The timing of the raid is itself doubtful as PW1,PW 2, PW-6 have stated that the raid took place around in morning or 12 noon and before the FIR was registered and the PW-3 and PW-4 have stated completely different that the raid took place after the registration of FIR have stated different times for conducting the raid around 9:30pm.
5.8. Again, PW3 and PW4 have contradicted themselves in regards to the vehicle that was used to transport the children rescued from the location of the incident to the Children Welfare Committee as one had deposed that the vehicle Tata-407 was hired while the PW2 had deposed the vehicle was police vehicle while IO has not deposed to this fact at all. Moreover, No DD entry or its No. has been brought on record by which the said officials proceeded for aforesaid raid.
5.9. Furthermore, No DD entry has been brought on record by the PW who was allegedly on the emergency duty and went to arrest the accused persons the next day. No duty roster of the concerned Police Officials is on record.
5.10. Further, another peculiar fact is that as per statement of PW2 and PW6 a total of 21 children were rescued however only five of them have been named in the contents of the present chargesheet.
5.11. It is stated by PW3 during his examination in chief that the children were taken to Sewa Kutir, Kingsway Camp per contra PW3 in his cross examination contradicted himself and has deposed that the children were taken to Ebrahim Pur.
5.12. It is further incomprehensible to reason that whereas certain Sec.161 crpc statements have been brought on record but no statement of any child victim is on record.
5.13. One sec.161 crpc statement of one Neeraj Kumar, Project Officer of Bachpan Bachao Andolan is on record but he has not been examined as a witness for the prosecution as he remained untraceable. Also, no official of Bachpan Bachao Andolan has deposed before this court at anytime.
9 105.14. Moreover, PW6 could not identify the accused persons in court even after the Ld. APP for the state pointed towards accused person, which appears in itself unlikely and makes the whole case of prosecution doubtful. He deposed that he further deposed that he does not remember the exact address of the premises.
5.15. PW-6 has admitted arrest of three accused persons but has stated nothing as to why the third accused Vinod was not chargesheeted by him or about the whereabouts of Accused Vinod. Also, He could not state as to who received the rukka and got the FIR registered at the PS. While the chargesheet mentions that various premises were raided and accused persons charged are from 2 premises but in his testimony the IO has stated that all 21 children were rescued from one factory as they conducted raid in one factory only.
6. The prosecution had to prove 2 ingredients to bring home the charge u/s 23 of JJ Act,2000 :
Firstly, , The most essential ingredient to be proved for bringing home the guilt of the accused persons was to establish that they "employed minor children in a factory" or "in charge of such children" in the capacity of owners of the factory/premises thereby exploited them, while accused persons were alleged to be owners of the factory, no document whatsoever has been brought on record to prove that the accused persons owned the enterprises/factories in which such children are alleged to have been in employment which is admitted by PW-6 the IO, for reasons best known to him. Thus, neither any document showing any kind of connection of the accused with premises in question has been placed on record nor any witness has been examined in order to prove the ownership of accused persons over the said factory. Taken all the aforesaid observations into account, it would not be out of place to note that the present case seems to be planted upon the accused persons.
6.1 Secondly, it is alleged that children under the age of 16 years were employed by the accused persons of the said premises/factory. However, admittedly by PW6 no age determination test/report/document has been brought on record to establish that they were infact Children under 16 years of age as per the requirement of 23 of juvenile justice Act. The IO has made a callous statement that the children appeared to be under 14 years of age on basis of height and features.
Almost 21 children were rescued from the factory during the raid but name of only 4 children has been brought on record and to the utter failure of prosecution, none of the child victims have been examined by the prosecution in its favour.
7. Thus, considering the over all facts and circumstances of the case, it is found that the 10 11 prosecution has failed to prove that accused persons were the owner of the premises as there is nothing on record to suggest that the raid was conducted on the premises of the accused or that the accused was the owner of the premises and he has employed the aforesaid 21 children. Prosecution miserably failed to prove even the conducting of the raid on the premises. None of the rescued child ever appeared before the court or were made as witness in the present case.
8. In view of the present colossal defects and wide gaps in the prosecution case and lapses of duty to investigate properly, it would not be proper to convict the accused persons as there are material inconsistencies and deficiencies in the case set up by the prosecution. A conviction can only be made on consistent, reliable and clinching evidence. Even though it is a settled law that tainted investigation is not the sole ground for acquittal, as this would tantamount to playing into the hands of the investigator {Reliance placed on: Karnel Singh Vs. State of M.P. 1995 (5) SCC 518}, the peculiar circumstances of each case are to be taken into account. The inescapable conclusion of the above discussion is that the investigation in the present case was defective and it cannot be relied upon. The possibility of fabrication and false implication cannot be ruled out and the defense of the accused that the investigation was conducted in the Police Station/ office of SDM and the raid was never conducted, appears to be plausible. Reliance on such tainted investigation would be unsafe {See: State of A.P. Vs. Punati Ramnulu AIR 1993 SC 2644}.
9. Therefore, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The star witnesses of the prosecution are the child victims, who were not examined by the prosecution.Further, the other witnesses that were examined by the prosecution suffer from major discrepancy and loopholes therefore their testimonies cannot be relied upon beyond reasonable doubt. The accused persons have been able to punch holes in the prosecution's version. Additionally, the defective investigation in the present case has crumbled the whole case of the prosecution.
10. Resultantly, accused Mukesh Kumar and Vikas Saini are entitled to benefit of reasonable doubt and are hereby aquitted of the offences charged.
File be consigned to Record Room after due compliance.
11 12ANNOUNCED IN THE OPEN (SHAGUN)
COURT ON 26.07.2022 MM-04 (WEST)/DELHI
Containing 12 pages, all signed by the presiding officer.
(SHAGUN)
MM-04 (WEST)/DELHI
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