Delhi District Court
State vs Naresh Kumar And Ors on 5 October, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 421463/2016
Unique Case ID No. -: DLSW020001522016
FIR No. -: 285/2015
Police Station -: Chhawla
Section(s) -: Section 23 Juvenile
Justice Act and
Section 3/14(1) Child
Labour (Prohibition
and Regulation) Act
In the matter of -
STATE
VS.
1) Naresh Kumar,
S/o Sh. Bhagwan Das,
R/o Khasra No. 339,
Deenpur Village,
New Delhi.
2) Raj Kumar,
S/o Sh. Surat Mandal,
R/o H. no. A/95/D,
Shiv Puri, Phase-II,
Najafgarh, New Delhi.
3) Kartik Kumar,
S/o Sh. Parmeshwar Kumar,
R/o K. no. 339, Deenpur Village,
New Delhi.
.... Accused
Vinod Kumar (Tehsildar
1. Name of Complainant :
Kapashera)
2. Name of Accused : 1) Naresh Kumar
2) Raj Kumar
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 1 of 29
3) Kartik Kumar
Section 23 Juvenile Justice Act
Offence complained of or and Section 3/14(1) Child
3. :
proved Labour (Prohibition and
Regulation) Act
4. Plea of Accused : Not guilty
Date of commission of
5. : 15.05.2015
offence
6. Date of Filing of case : 14.05.2016
7. Date of Reserving Order : 25.09.2023
8. Date of Pronouncement : 05.10.2023
Naresh Kumar and Raj Kumar
are acquitted of the offence
punishable under Section 23
Juvenile Justice Act and
Section 3/14(1) Child Labour
9. Final Order :
(Prohibition and Regulation)
Act and accused Kartik Kumar
is acquitted of the offence
punishable under Section 23
Juvenile Justice Act.
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
"In Dubio pro Reo"
The above is a latin quote, encapsulating the legal principle that benefit of doubt in a criminal trial has to accrue to accused. In the case at hand, prosecution alleged that accused persons employed child labour. However, the child victims were not examined, nor any evidence was brought on record by prosecution about the conditions the victims were working in establishment run by accused. Even evidence to the effect that accused owned the establishment from where children were rescued was not brought Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 2 of 29 on record. Replete with doubts, the case of prosecution fails. BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. It is the case of prosecution that on 15.05.2015, an intimation was received at PS Chhawla from Sh. Vinod Kumar, Tehsildar, Kapashera, in writing, to the effect that a team for conducting child labour rescue operation has been constituted, consisting of members of all the departments i.e. labour department, health department and the NGO Bachman Bachao Andolan, aside from police officials of PS Chhawla. At the time of raid, four shops were raided by the aforesaid team that is, Aggarwal Sweet Corner, Deenpur Road, Village Deenpur, Rajasthan Sweets and Catering, Deenpur, Shivam Tea Stall, Chhawla Road, Village Deenpur and Red Chilli Chicken Corner, Chhawla Road Village Deenpur. In the raid conducted, two children namely Brijesh and Sunny were rescued from Aggarwal Sweets Corner, child victim Manohar was rescued from Rajasthan Sweets and Catering, child victim Dasai Kumar was rescued from Shivam Tea Stall, and child victim Monu was rescued from Red Chilli Chicken Corner. The children were found to be medically fit, and below the age of 18 years. As such, it was opined by the team that an FIR under the relevant provisions of Child Labour (Regulation and Prohibition) Act, 1986 (hereinafter Child Labour Act) and Juvenile Justice Care and Protection of Children Act, 2000 (hereinafter JJ Act) may be lodged against the culprits. Accordingly, the subject charge sheet under section 3/14 Child Labor Act and 23 JJ Act was filed against the accused, Kartik Kumar S/o of Sh. Parmeshwar Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 3 of 29 Kumar being the owner of Aggarwal Sweets, Raj Kumar S/o Sh. Surat Mandal being the owner of Shivam Tea Stall, and Sweet Shop, and Naresh Kumar S/o Sh. Bhagwandas being the owner of Rajasthan Sweets. The owner of Red Chili Chicken Corner was not chargesheeted, as he could not be traced during the investigation.
2. After the cognizance for the offences disclosed in the charge sheet was taken, accused persons were summoned to face trial. When they entered appearance before this court, copy of the charge sheet was supplied to them in compliance of Section 207 CrPC, and proceedings were adjourned for the purpose of framing of charge.
3. Investigation revealed that the age of the rescued child Sunny was 17 years at the time of the rescue operation, victim Brijesh was 10 years old, victim Manohar Lal was 17 years old, and victim Master Dasai Paswan was only 13 years old at the time of his rescue. Since all of these children were below the age of 18 years, and hence covered within the definition of the word 'child', as defined in Section 2(12) of Juvenile Justice Act, and it being the case of prosecution that the act of accused persons in causing these children to work in bad conditions led to mental or physical suffering to the victims, charge under Section 23 of JJ Act was framed against them. Now, under Child Labour Act, a child is defined to be any person who has not completed the age of 14 years. As per Section 3 of the said enactment, inter-alia, a prohibition is imposed upon employing children in any of the occupations specified in Part A of the Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 4 of 29 schedule. Entry 15 of Part A of the said schedule bars the employment of children in eateries or dhabas etc. Accused persons, as per the prosecution version, were employing the children in such eateries or dhabas. As such, they were seen to be prima facie violating Section 3 /14(1) of the said enactment. Charge for the said offence was also framed against accused Naresh Kumar and accused Raj Kumar accordingly.
4. It is to be noted at this stage that in terms of Juvenile Justice Care And Protection Of Children Rules 2007, framed by the Central Government, and similar rules framed by the Delhi Government in 2009, titled Delhi Juvenile Justice Care and Protection of Children Rules 2009, specifically Rule 10B thereof, the functions of the Juvenile Justice Board include taking cognizance for the crimes punishable under section 23 to 28 of the said enactment. Reliance at this juncture can also be placed upon the judgment of the Hon'ble High Court of Bombay titled as Jaiprakash Suru Shetty vs. State of Maharashtra 2017 SCC OnLine Bom 1154, wherein it is held as under:-
"13. Under Sub-Section (1) of Section 68, Rule making power is conferred on the Central Government as well as on the State Government to make Rules to carry out purposes of the said Act of 2000. Clause (b) of Rule 10 of the said Rules, as stated earlier, confers power on the Board to take cognizance of the crimes committed under Sections 23 to 26 and 28 of the said Act of 2000. There is nothing either under the said Act of 2000 or under the said Rules which confers a power on the Board of transferring the cases of adult offenders under Sections 23 to 26 and 28 to regular Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 5 of 29 criminal Courts under the Code of Criminal Procedure, 1973 after taking cognizance of the offences. Therefore, after taking cognizance, the offences will have to be tried by the Board. If any other interpretation is made, it will render clause (b) of Rule 10 otiose or redundant.". In view of the same, the offense punishable under Section 23 JJ Act should have been tried by the concerned Juvenile Justice Board. However, the order of cognizance of this court was not impugned by the accused in any forum, nor the order by which charges were framed against the accused were impugned by them, and infact, trial has been concluded in this court. As such, this court now proceeds to decide the dispute on merits.
5. Since the accused pleaded not guilty to the charges framed against them, proceedings progressed to the stage of recording of prosecution evidence.
5.1 Prosecution first examined Pawan Kumar, Deputy Director, Education Department, Old Secretariat Delhi as PW1. PW1 testified that on the date of the raid i.e. 15.05.2015, he was posted as Assistant Labour Commissioner at Hari Nagar, District South West. He testified that prior to the said date, a complaint was received in their office from Bachpan Bachao Andolan, pertaining to child labor being employed in Chhawla area. He testified that for the purpose of taking action upon the said complaint, a meeting was convened along with SDM Kapasera as well as members of the said NGO, members of the Labour Department and police officials of PS Chhawla, and it was decided that a rescue operation to rescue the children so employed shall be carried out on 15.05.2015. In Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 6 of 29 pursuance to that, a raiding team was constituted, consisting of the SDM, Sh. Vinod Kumar, Sh. Sanjay and Sh. R.K Pahwa from Labour Department, Sh. Sanjay and Sh. Dilshad from Bachpan Bachaon Andolan besides himself, along with certain police officials of PS Chhawla. He testified that a raid was accordingly conducted and in the raid, the raiding team visited four shops. He testified that one of the shops raided by the team was a tea shop, and the other was a chicken corner, but deposed that he does not remember the particular names of those shops. He testified that total 5 children were rescued in the operation, but also failed to specify the names of the said 5 children. He testified that the owners of the shop and the rescued children were then brought to the BDO office, Najafgarh for further action and the accused were thereafter handed over to the police station for appropriate action against them. In his testimony, he avouched that a report was prepared by the Tehsildar Vinod Kumar and signed by all members out, being Ex. PW1/A, containing his signatures at point A thereof. He testified that the rescued children were then sent to Don Bosco NGO by the police, but failed to specify the names of the said rescued children. In his testimony the witness identified two accused persons, Naresh and Kartik, but failed to identify accused Rajkumar.
Certain questions were put to the witness by Ld. APP for the State in terms of Section 154 Indian Evidence Act. At that stage, the witness accepted as correct the suggestion that the raiding team comprised of Sanjay Kumar from Labour Department, Vinod Kumar, Tehsil Kapasera, Neeraj Bharadwaj, Inspector from the Labour Department, Dr. Anil Diwan from the Health Department, Sh. R.K Pawar from the Labour Department, Sh.Sanjay Kumar and Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 7 of 29 Sh. Rizwan Ali from NGO Bachpan Bachao Andolan, and police officials of PS Chhawla, besides him. He accepted as correct the suggestion that two children were rescued from Aggarwal sweet corner but reiterated that he does not remember their names. He further accepted as correct the suggestion that one child namely Manohar was rescued from Rajasthan Sweet and Catering, Deenpur mode, Village Deenpur, and also avouched that one boy namely Dasai Kumar was rescued from Shivam tea stall, Chhawla Road, Village Deenpur. He also deposed that child Monu was rescued from Red Chilli Chicken Corner. He testified that he cannot say if accused Kartik was running Aggarwal Sweet shop at the relevant time.
In his cross-examination, the witness was confronted with his statement under section 161 CrPC, and it was noted that the said statement did not contain any averment to the fact that a prior meeting was convened in the office of SDM Tehsildar for the purpose of conducting the raid on 15.05.2015. The witness denied the suggestion that neither any such complaint was received in the office, nor any such raiding team was prepared. He further denied the suggestion that no such raid as alleged was conducted in Chhawla area on the said date. He also denied the suggestion that accused persons were falsely implicated by the police, and that he had wrongly identified the accused persons in court.
5.2. PW-2 Vinod Kumar, Superintendent Zone 22, Office of DDE Southwest B, Najafgarh, testified that on the date of the raid, he was posted as Tehsildar, Kapasera. He testified that he was directed by the SDM Kapasera to conduct a raid to rescue child victims along with officials of Labour Department and members of Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 8 of 29 the NGO Bachpan Bachao Andolan, and in pursuance of the said direction, he joined the raiding team that was constituted for the said purpose. He testified that raids were conducted at Aggarwal Sweet Corner, Rajasthan Sweet and Catering, Shivam Tea Stall, and Chilli Chicken Corner, and five children were rescued from the aforementioned shops. He testified that two children namely Brijesh and Sanjay were rescued from Aggarwal Sweets corner, one child Manohar was rescued from Rajasthan sweets and Catering, one child Dasai Kumar was rescued from Shivam Tea Stall, and one child Monu was rescued from Chilli Chicken Corner. He testified that the children were brought to the BDO office complex after they were rescued, and their medical examination was carried out by Dr. Akhil Diwan, who was also part of the raiding team. He testified that after the raid was over, the children were handed over to the NGO team so that they could be provided with proper shelter and care at Nirmal Chhaya. In his testimony, the witness also relied upon the report Ex. PW1/A. He also identified correctly all the accused persons in court.
In his cross examination, the witness said that he cannot say as to which accused was running which particular shop at the time of the raid on 15.05.2015. He testified that the IO never recorded his statement. He denied the suggestion that no raid as alleged was committed, and further denied the suggestion that he had wrongly identified the accused persons in court.
5.3. Neeraj Bharadwaj, Labour Inspector, West District Labour Department, New Delhi was examined as PW3 by the prosecution. PW3 testified that on 15.05.2015, he was posted as Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 9 of 29 Labour Inspector at South West District, Labour Department, and he was also part of the raiding team that had conducted the raid on the said date. He testified that during the raid, three shops were visited, and five children in all were rescued from the said three shops. He testified that the child victims were then handed over to Don Bosco NGO. The witness identified accused Naresh and Kartik as present in court correctly.
As the witness was resiling from certain material facts, permission was granted to Ld. APP for the State to put to him certain questions in terms of Section 154 of the Indian Evidence Act, 1872. At that stage, the witness accepted as correct the suggestion that raid was conducted at Aggarwal Sweet Corner, Rajasthan Sweet and Catering, Shivam Tea Stall, and Red Chilli Corner in Chhawla on the said date. He testified that he does not remember the name of the rescued children. However, he identified his signatures on the complaint Ex. PW1/A. He testified he does not remember if the police had taken any action against accused Rajkumar on the said date or not. The witness failed to identify accused Rajkumar as one of the accused persons apprehended on the date of the raid.
In his cross examination, the witness testified that the IO had recorded his statement on the date of the incident itself and not after that. He was confronted with his statement under section 161 CrPC in his cross-examination, and it was noted that the said statement does not contain the names of the team members who had conducted the raid on the said date. He denied the suggestion that he had wrongly identified accused Naresh and Kartik at the instance of the IO in court.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 10 of 295.4. PW4 examined by the prosecution was Sanjay Kumar, Inspecting Officer, Office of Joint Labour Commission, Pratap Nagar, Hari Nagar, New Delhi. Even PW4 testified that he was part of the raiding team as well that had conducted the rescue operation on 15.05.2015. He testified that two child victims were rescued from one shop on the date of the raid, and one child victim was rescued from each of the other three shops. He testified that he does not remember the name of the shops where the raid was conducted nor does he remember the name of the rescued children. He testified that the five children were handed over to the police to be produced before the CWC. In his testimony, the witness relied upon the report Ex. PW1/A, bearing his signatures at point D. He specifically testified that he cannot tell who are the owners of the respective shop from where the children were rescued.
When cross-examined by Ld. APP for the State in terms of Section 154 of the Indian Evidence Act, 1872 the witness accepted as correct the suggestion that a raid was conducted at Aggarwal Sweet Corner, Rajasthan Sweet and Catering, Shivam Tea Stall and Red Chilli Chicken Corner on the date of the incident. However, he failed to identify the child victims by their names. He also failed to identify the accused persons.
In his cross examination, the witness testified that the raiding team was constituted on the date of the raid itself. He testified that no photography or videography of the spot was conducted. He denied the suggestion that no raid was conducted at all, and the accused persons have been wrongly implicated in the present case.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 11 of 295.5. R.K Pahwa, Head Clerk, Grade 2, Shaikh Sarai, Transport Authority, New Delhi was examined as PW5 by the prosecution. He testified that he was also part of the raiding team that had conducted the raid on 15.05.2015 at three or four shops. He testified that five children in total were rescued from the shops, but he does not remember the names of the shop or the names of the rescued children. He testified that when the children were rescued, they were handed over to the police to be produced before the CWC. He testified that a report was then prepared and signed by all team members. He then testified that the said report Ex. PW1/A bears his signatures at point E. He testified that he cannot tell who were the owners of the shop from where the children were rescued, and cannot identify the accused persons as the owners of the shop.
Opportunity was granted to Ld. APP for the State to put questions in terms of Section 154 Indian Evidence Act, 1872 to this witness as well, as the witness resiled from material facets of the prosecution case during his testimony. At that stage, the witness accepted as correct the suggestion that the raid was conducted at four shops- Aggarwal Sweet Corner, Rajasthan Sweet and Catering, Shivam Tea Stall, and Red Chilli Chicken Corner at Deenpur Mor. However, he failed to specify the names of the children who were rescued at the time of the raid, and also failed to identify the accused persons as the owners of the said shop.
In his cross-examination, the witness testified that the raiding team was constituted on the date of the raid itself. He testified that IO did not record his statement at any time after the raid. He also testified that no photography or videography was conducted of the spot of the incident. He denied the suggestion that Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 12 of 29 accused persons have been wrongly implicated in the case, and no raid at all was conducted.
5.6. Sanjay Kumar, Assistant Project Officer in Bachman Bachao Andolan was examined as PW6 by the prosecution. PW6 testified that he was a member of the raiding team constituted on 15.05.2015 for the purpose of conducting the raid as aforesaid, and that the same was headed by the Tehsildar, Vinod Kumar. He testified that 8 to 10 people from the police department had also joined the reading team as its members, and that his colleague, Rizwan Ali, was also a member of the said raiding team. He testified that the raiding team had assembled at the purana (old) tehsildar office, Najafgarh, and thereafter, went to conduct the raid. He testified that two child victims were rescued from Aggarwal sweets, and three children in total were rescued from the three other shops. Even this witness expressed his inability to specify the name of the children who were rescued from the shops. He testified that the children were brought to the old Tehsildar office at Najafgarh upon their rescue, where their names and addresses were noted down, and thereafter they were directed to be produced before the CWC South West, Nirmal Chhaya. He testified that the rescued children were subsequently handed over to Don Bosco NGO for their rehabilitation. He testified that he cannot remember the owners of the shop from where the victims were rescued.
When cross-examined by Ld. APP for the State in terms of Section 154 of the Indian Evidence Act, 1872 the witness identified accused Kartik as the owner of the Aggarwal Sweets from which the raid was conducted. However, he failed to identify Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 13 of 29 accused Rajkumar as the owner of any of the shops at which the raid was conducted. He accepted as correct that the names of the children rescued from Aggarwal Sweet Corner were Brijesh and Sunny, the child victim rescued from Rajasthan Sweet and Caterers was named Manohar, that name of the child rescued from Shivam Tea Stall was Dasai Kumar, and the name of the child rescued from Red Chilli Chicken Corner was Monu. He also accepted as correct the suggestion that the raid had been conducted at the aforementioned shops.
In his cross-examination, the witness testified that he was holding the post of community social worker in Bachpan Bachhao Andolan NGO at the time of the raid, and he was allotted the work of identification of child labour and their rescue. He testified that photographs of the raid were taken by him in his mobile phone. He then improved upon his testimony and said that the photographs of the rescued children were taken at the assembling point as per the directions of the SDM Tehsildar, but testified that the photographs were never handed over to the police either at the spot or later on. He denied the suggestion that no raid at all was conducted.
5.7. The seventh witness to be examined by the prosecution was H.C Manoj Kumar. He testified that the FIR Ex. PW7/A was registered by him on the basis of the Rukka, Ex. PW7/B. He also proved on record the certificate under section 65B of Indian Evidence Act in support of the FIR being Ex. PW7/C. In his cross-examination, the witness denied the suggestion that the FIR was anti-timed.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 14 of 295.8 PW8 SI Yaadram deposed that the written complaint regarding the raid conducted in which the five children were rescued is Ex. PW1/A. He testified that once the complaint was received at the PS, he made the endorsement on the Rukka Ex. PW8/A, on the basis of which the FIR was registered by the duty officer. He testified that the children who were rescued in the raid were brought before him by the raiding team, and they were kept at Don Bosco NGO. He testified that on the next day, they were produced before SDM Kapasera for recording of their statements. He testified that he then also produced the victims before CWC where their statements were again recorded, subsequent to which the children were handed over to their parents. He testified that he obtained the birth certificates of the victims from their school, and the victims were found to be minor at the time of the raid. In his testimony, the witness relied upon the arrest memos of the accused persons being Ex. PW8/A to Ex. PW8/C. He also identified the accused persons correctly. In his testimony, the witness further relied upon report of CWC Ex. PW8/G, Ex. PW8/H, Ex. PW8/I, Ex. PW8/J, and Ex. PW8/K, as well as the reports of the SDM Kapasera, Ex. PW8/L to Ex. PW8/P. He testified that he had prepared the site plans Ex. PW8/Q to Ex. PW8/T. He also relied upon the copy of the birth certificate of victim Monu, Ex. PW8/U, birth proof of victim Sunny, Ex. PW8/V, birth proof of victim Brijesh, Ex. PW8/W and birth proof of Manohar Lal, Ex. PW8/X. He testified that the birth proof of victim Dasai Paswan is Ex. PW8/Y. He testified that after collecting the aforesaid documents, he prepared the subject charge sheet, and filed the same in the court.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 15 of 29In his cross-examination, he admitted that he did not collect any documents to show that accused Naresh Kumar, Kartik Kumar and Raj Kumar were the owners of the shop from where the children were recovered. He testified that he was not a member of the rescue team, and that the rescue team had not given any pictures or video clip of the raid to him. He testified that he did not cite the rescued children as witnesses in the charge sheet. He also accepted as correct the suggestion that no eyewitness had signed the site plan. He testified that the site plan was prepared by him on his own observation as per the description mentioned in the complaint, and he did not verify the same from any independent witness. He admitted that he had not examined any customer of the shop or neighbours residing near the shop during the investigation. He denied the suggestion that he had not properly investigated the case.
5.9 PW9 HC Surender Kumar testified that on 15.05.2015, he was on emergency duty, and had accompanied IO ASI Rajkumar, to the Tehsildar office. He testified that in his presence Tehsildar had given one written complaint / statement to the IO. He testified that he had also handed over five children as well as the accused persons to the IO. In his testimony, PW9 relied upon the arrest memos of all the accused persons, Ex. PW8/B, Ex. PW8/C and Ex. PW8/E. In his cross examination, the witness denied the suggestion that he does not remember the date on which the raid was conducted and he had testified about the same after being prompted in his examination in chief. He accepted as correct the suggestion that he had written the date of the raid on his palm in pen. He denied Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 16 of 29 the suggestion that he had identified the accused persons at the instance of the IO.
5.10 Prosecution then examined certain witnesses to establish that the children who were rescued in the raid were under the age of 18, and in fact some of them were under the age of 14. PW10 Munish Kumar from the Head Teacher Primary School Motnai, Block Samsabad District, Agra UP brought on record the transfer certificate of child victim Sunny, as per which his date of birth is 02.04.1998. PW11 Sudhir Kumar Teacher Primary School, Deenpur Phase-II, Najafgarh, New Delhi brought on record the admission register of his school, as per which the date of birth of child victim Monu is 05.01.2002. PW12 Rajesh Kumar Singh, Assistant Teacher at Government School Teipuri District Muzaffarpur, Bihar brought on record these admission register for the year 2007-2008 of the school, as per which the date of birth of child victim master Dasai Paswan is 08.04.2002. PW14 Mahinder Kumar Tiwari, Principal at MCD School No. 3, Najafgarh, Delhi brought on record the certificate regarding the date of work, as per which, the date of birth of child victim Monu is 05.01.2002. The witness also brought on record the relevant school admission register reflecting the same. PW15 Sudhir Kumar, Incharge / Headmaster, Primary School Ferozabad, Block Kher Garh, District, Ferozabad, U.P also brought on record the relevant extract of the relevant register of the school, as per which child victim Brijesh Kumar was admitted in the school on 16.07.2010, and his date of birth is 14.06.2005. PW 16 Dinesh Kumar, Head Teacher, Primary School, Village, Darapur, Rasaini, Block Kherga, District Ferozabad, UP also brought on Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 17 of 29 record the relevant admission register of the school as per which the date of birth of child victim Manohar Lal was 22.09.1997.
In their cross examination, all of these witnesses testified that their records regarding the date of birth of the respective child victims was maintained as per the declaration of their parents, and they have not retained in the school record any other proof regarding the date of birth of the said victims. 5.11 Lastly, it is pertinent to mention that prosecution also examined Ashish Soni i.e. the Patwari from SDM office Kapasera who brought on record the original record of the statement of the child victims recorded on 16.05.2015, which were exhibited as Ex. PW 13/A (OSR)(colly). This witness was not cross examined despite opportunity.
6. No other witnesses were examined by the prosecution, and PE was closed thereafter.
7. Thereafter, to accord an opportunity to the accused persons to explain the incriminating circumstances appearing against them at trial, their statements were recorded under section 313/281 CrPC. All of them stated that they have been falsely implicated in the case. They stated that they had never employed any children. They stated that the police officials never conducted any raid as alleged, and they have been falsely implicated in the case. All of them opted to not lead DE in the affirmative.
8. Accordingly, proceedings progressed to the stage of Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 18 of 29 final arguments. Final arguments have been heard. Record perused. Considered.
9. For a successful prosecution in the case, the prosecution had to prove:
a) that accused Naresh, Rajkumar and Kartik having control over children under the age of 18 years, assaulted, abandoned, exposed or willfully neglected them in a manner which caused unnecessary mental or physical suffering to the children.
b) accused Naresh Kumar and accused Raj Kumar employed children under the age of 14 years in establishments in which they could not have been employed, in violation of section 3 of Child Labour Act.
10. In the considered opinion of this Court, the prosecution has not even been able to prove that any children were employed by the accused persons at all. For starters, the children themselves were never made as witnesses in the case. It is the prosecution version that after the children were rescued, they were directed to be produced before the CWC, and handed over to Don Bosco NGO thereafter. The statements of the children recorded on the date of the raid were also brought on record by PW13. However, the said statements Ex. PW13/A cannot by themselves be considered sufficient evidence to prove the guilt of accused, in view of the fact that the authors thereof were not examined, and no cogent explanation was given by prosecution on record as to why the children were not cited as witnesses at all by the prosecution. Specific question in this regard was put to the IO / PW8, but no Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 19 of 29 answer to the same was given by him. While it is a well settled principle of law that benefit of every shoddy investigation need not accrue to the accused, it is also a well settled principle that each case has to be decided on its own merits. Where the prosecution entire case rests on the fact that there were children who were rescued from the establishments which the accused persons were running, the children themselves ought to have been made witnesses, or at least a cogent explanation for not citing them as witnesses should have been given. This is a major blow to the prosecution version. An inference can be drawn that accused have been falsely implicated, and no raid infact was conducted. Seeking guidance from the law laid down by Hon'ble Supreme Court of India in State of Andra Pradesh Vs. Punati Rammilu, AIR 1963 SC 2644, this court is of considered opinion that it would be unsafe to convict accused based on tainted investigation.
11. Even if the children themselves were not made as witnesses to the case, the IO could have at least made the other adult workers in the said establishments as witnesses to the present case so as to prove the case that the children were indeed employed by the accused persons, or even that the establishments were owned by the accused persons. Even this was not done by the IO. Now, around the shops / establishments from where the child victims were allegedly rescued, there must have been other shops or establishments, or residents. Yet, the IO is seen to have not made any efforts for the purpose of joining any such person residing or working around the same area to also be a witness to the fact that the establishments were actually employing young children for their Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 20 of 29 functioning. This further dents the prosecution version, in as much as it shows that the investigation was not conducted in a fair manner. Otherwise, the IO would have had no reason to not cite the child witnesses in the first case, and then not even cite any other witness who could testify that they were working for some time at the establishment before they were so rescued in the raid conducted.
12. Another important circumstance in the facts of the case is that as per the prosecution version, aside from the establishments run by the accused persons, raid was also carried out at one Red Chilli Chicken Corner, and a child was also rescued from the same. However, it is the prosecution version that the owner thereof absconded after the raid, and could not be traced throughout the investigation. If it was indeed a surprise raid, it seems downright absurd that the owner of one such establishment could flee the area and was not apprehended. Absence of any cogent explanation for this circumstance also dents the prosecution version, and leads to the inference that perhaps the raid was not indeed conducted, or at least not in the circumstances detailed in the prosecution story.
13. Absence of any photographic or videographic evidence of the raid on the record also weakens the case of the prosecution. This is more so in view of the testimony of PW6 that photographs of the rescued children were duly taken. PW6 categorically testified in his cross examination that he as well as others had taken photographs of the rescued children in their mobile phones. He then changed his testimony a little, and stated that the photographs were taken at the assembling point on the direction of the SDM/ tehsildar.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 21 of 29The fact that no such photographs were placed on record despite clear testimony that they were indeed clicked also dents the prosecution version.
14. As per the prosecution version, upon rescue, the rescued children were handed to the custody of Don Bosco NGO for their rehabilitation. Not only were the children ever made as witnesses by the prosecution, no member of Don Bosco NGO was also cited as a witness, who could have come and corroborated the prosecution version that indeed there was a raid that had been conducted on the date of the incident, and after the said raid, the children were handed over to its custody. In the absence of children being cited as witnesses by the prosecution, if members of Don Bosco NGO were cited as witnesses and had come to testify to the court that indeed certain children matching description of rescued children in facts of case at hand were recovered, and were given to their custody, the case of prosecution would have received some fortification. The case of prosecution would have been strengthened by the testimony of such witnesses that they had indeed taken over the custody of such witnesses, and the circumstances in which they were then rehabilitated either to their families or otherwise. But not to be. This is also a major gap in the version of the prosecution.
15. The testimonies of the witnesses examined by the prosecution shall now be examined in the light of the lacunae in its case described above. The first six witnesses examined by the prosecution were members of the raiding party itself. However, scrutiny of testimony of these witnesses reveals that they have Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 22 of 29 nowhere stated the manner in which the children that they rescued were working in the establishments from which they were rescued. They have not stated anything about the condition of the establishments from where the raid was conducted, the work which the child victims were doing right before the raid was conducted, or the conditions in which they were working. PW1 testified that during the raid, they had gone to four shops, and total five children were rescued, from the shops. He named the children only when cross-examinationed by Ld. APP for the State. The witness failed to identify accused Rajkumar in his testimony properly. When questions in the nature of cross-examination were put to the witness by Ld. APP for the State, he could not name the children rescued from Aggarwal Sweet Corner, and failed to specify which accused was running which respective establishment. He categorically deposed that he cannot say if accused Kartik was indeed running Aggarwal Sweet, or if accused Naresh was running Rajasthan Sweet, or of accused Rajkumar was running Shivam Tea Stall at the time of the raid. This testimony is woefully inadequate to hold the accused persons guilty for the offences alleged against them. It cannot be concluded from same that accused persons were indeed running such establishments. Further, absence of description of the shops etc. makes the defence of accused that no such raid was ever conducted appears plausible. Likewise, PW2 testified that child victim Brijesh and Sanjay were rescued from Aggarwal Sweet Corner, Manohar from Rajasthan Sweets and Catering, Master Dasai Kumar from Shivam Tea Stall and Monu from Chilli Chicken Corner. However, he submitted that he does not know which accused was running which establishment. That is, when the witness Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 23 of 29 was cross examined, he testified that he cannot say as to which accused was running which establishment at the time of the raid. In view of the fact that the witness was not able to specify as to which accused was running which establishment, the prosecution case does not gain much strength from the testimony of this witness either. To bring home the culpability of the accused persons that they had actually abandoned or neglected the child victims by causing them to work in their establishment in a manner likely to cause them grave harm and danger, at least one of the eyewitnesses ought to have described in what manner the accused were so guilty of the act alleged against them, and at least specified as to which accused was in charge of running which establishment. Vague testimony as that of PW2 that he remembers that each of the accused persons were running one of the establishment's raided, but cannot connect each accused to a specific establishment does not meet the criteria of "proof beyond reasonable doubt", on the standard of which the guilt of any accused has to be adjudicated.
16. PW3 Neeraj Bharadwaj, again a member of the raiding team, testified that five children in all were rescued, but much like PW-1, failed to testify the names of the five children. He even failed to identify accused Rajkumar as one of the accused against whom the raid had been conducted, although he identified the remaining two accused persons. The identification of the other two accused by the said witness also does not add much value to the case of prosecution, in view of the lacunae already described above, that is his failure to describe the conditions in which the rescued children were working before the raid was conducted, to specify with Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 24 of 29 exactitude as to which accused was running which establishment at the time that the raid was conducted. Similar lacunae are also observed in the testimony of PW4 and PW5, which of the two witnesses also failed to either name the rescued children, or to specify as to which accused was running which establishment at the time that the raid was conducted, for them to be held liable for the charges framed against them. Even their testimonies do not further the prosecution case in any manner.
17. Scrutiny of testimony of PW6 reveals that he had testified with some detail the manner in which the raid was conducted, in the sense that he described as to how the raiding party had first assembled at the old Tehsildar office of Najafgarh before proceeding for the raid, and how the children who were rescued were then brought back to the old Tehsildar office where their names and addresses were written and then they were directed to be produced before the CWC. However, it is seen that even this witness failed to identify accused Rajkumar as the owner of any of the establishments at which the raid was conducted, and could also identify accused Kartik only after he was specifically pointed out to him by Ld. APP for the State at the time when the witness was cross-examined in terms of section 154 Indian Evidence Act, 1872 by Ld. APP. At the cost of reiteration, this witness, when asked in his cross-examination if he had taken any photographs at the time of the raid, confirmed that indeed such photographs were taken by him, but categorically testified that he neither gave the photographs to the IO either at the spot or thereafter at any time. No explanation for such conduct was given by the witness. Pertinently this witness at the Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 25 of 29 relevant time was holding the post of community social worker with Bachpan Bachao Andolan, the NGO at the behest of which the raiding party was constituted in the first place. He testified that he had been specifically allotted the work of identification of child labour and their rescue. Presumembly then, modus in which such raids are usually conducted ought to have been known to the witness. Even if not, it is a matter of record that the witness who held a responsible position in the NGO which conducted the raid. As such, when he admitted to have taken photographs of the raid, the least he could have done is to hand over such photographs to the IO. The failure of the witness to do so and then also to give any reasonable or cogent explanation for his act of not supplying the photographs of the raid to the IO, destabilizes the credibility of the witness. Even the testimony of this witness is therefore not found to be reliable for the purpose of fastening the noose of guilt around the accused persons.
18. All the eyewitnesses to the case, being members of the raiding party, merely testified that they had gone and had rescued certain children from four establishments, three out of which were being run by one of the accused persons. Their testimonies do not reveal in what manner the children were being neglected or forced to work in circumstances which would have resulted in mental or physical suffering to them. They also did not specify as to which child was working in which establishment exactly. PW1 specified the names of children rescued from three establishments, other than Aggarwal Sweets, but could not specify which accused owned the establishment. His testimony, thus, does not seem reliable. Likewise Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 26 of 29 for testimony of PW2. PW2 testified that which child was rescued from which shop / establishment, but could not connect a specific accused to such shop or establishment. PW6 tried to connect a particular accused to a specific establishment, but could not say as to which child was rescued from which establishment. Even if these testimonies are read together, and the lacunae in the testimonies of other witnesses are disregarded, it still does not stand proved as to which accused was contravening section 3/14 of child labour act. This is for the reason that no link evidence was brought on record by the IO to prove as to which establishment was being run by which accused person. No documentary or other evidence was brought on record by the IO to show that a particular accused was running a specific establishment. Specific questions were put to the IO / PW in his cross examination regarding the same, wherein he categorically testified that he had not collected any such documents with regard to the fact that accused Naresh, Kartik or Rajkumar were owners of the shop from where the rescued children were recovered. PW6 had no knowledge to depose about these facts. Him being a member of raiding party only, could have had no idea as to who owned the shops where raid was conducted. His testimony can be accepted as evidence of fact that accused were present in the shops, but not of their having ownership or control of management of such shops. As such, no evidence of cogent nature was brought on record by the prosecution to prove that children under the age of 14 were employed specifically by accused Rajkumar or Naresh, and that they were the owners of the said establishment. In the absence of such crucial evidence, the case of the prosecution was bound to fail.
Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 27 of 2919. PW10 to PW12, and PW 14 to PW 16, all brought on record the documents which could establish that the child victims rescued from the establishments were indeed minors. However, absent any evidence on record that whose names and particulars find mentioned in the record of the case were indeed working in the establishment, merely bringing on record their age proof does not substantiate the prosecution version in any manner.
20. Testimony of PW7, who was only responsible for the registration of the FIR, being the DO writer, does not forward the case of prosecution in any manner. Likewise, the testimony of PW9/HC Surender Kumar, also a formal witness, who testified that after the raid was over, the Tehsildar had handed over custody of five children as well as the accused persons to the IO in his presence, does not advance the case of prosecution. In any event the witness admitted that he had come to testify with date of incident written on his hand, and does not appear to be credible.
21. In conclusion, it is seen that :-
(1) The prosecution did not examine the children allegedly rescued during the raid, did not examine any public witnesses to prove that the children were indeed working at the establishments at which the raid was being conducted, and the members of the raiding team examined by it could not cogently prove that children had indeed been rescued from the establishments at which the raid was conducted on the date of the incident.
(2) No proof was adduced on record by the prosecution Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 28 of 29 to establish that the accused persons were indeed the owners of the establishment at which the raid was conducted.
(3) No proof by way of any evidence, ocular or documentary, was brought on record by the prosecution to prove that accused persons were guilty of employing children under the age of 18 in a manner leading to unnecessarily mental or physical suffering to them, and further that accused Rajkumar or accused Naresh specifically employed children under the age of 14 years in establishments in which they could not have so employed children, by virtue of section 3 of the Child Labour Protection Act.
22. As such neither the prosecution could prove the guilt for the accused person for the offences punishable under Section 23 JJ Act, nor could it prove the guilt of the accused Naresh Kumar or Raj Kumar for the offense punishable under Section 3/14(1) of the Child Labor Act. Accused persons are accordingly acquitted of all the charges against them.
23. File be consigned to Record Room after due compliance with Section 437A Cr.P.C.
Pronounced in open court on 05.10.2023 in presence of accused person.
This judgment contains 29 pages and each page has been signed by the undersigned. Medha Digitally signed by Medha Arya Date: 2023.10.07 Arya 16:22:22 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 05.10.2023 Cr. Case No. 421463/2016 State vs. Naresh & Ors. Page 29 of 29