Mallappa and Others vs Venkatesh and Others

P.S. Dinesh Kumar, J.

This appeal is filed challenging the judgment and order of acquittal dated 10.6.2011, in S.C. No. 118/2007, on the file of the Sessions Judge, Fast Track Court-II, Bangalore Rural District, Bangalore, acquitting both the accused of the charges under Sections 323, 341, 342, 254 and Sections 9, 16, 17 and 18 of the Bonded Labour System (Abolition) Act, 1976 (''Bonded Labour Act'' for short).

The case of the prosecution in brief is that the accused Nos. 1 and 2 (father and son), were running a brick kiln in the name and style as S.V.D. Brick Kiln in Kannahalli village. Some time during August-September, 2004, the accused had brought some coolies from Tamil Nadu to work in their Kiln. After working for about three months, the said coolies, desired to go to their native place to celebrate Deepavali and accordingly, requested for permission which was denied. However, Shivaraju-P.W. 10 left alone for Deepavali without permission. Accused enquired other coolies about Shivaraju''s departure without permission and assaulted one Chinnamma and her daughter Shivaranjini and forcibly took them in a Jeep and confined them in their house and outraged their modesty. The accused No. 1 had also committed rape on Venkatalakshmi- P.W. 3 and Muttamma- P.W. 2 and threatened them with dire consequences in the event of their disclosing about these incidents to anybody. Subsequently, the coolies namely, Mallappa S/o. Mallappa, Shivaraj S/o. Nanjappa, Chinnamma w/o Shivaraju, Shivaranjini, d/o Shivaraju, Shivappa, S/o. Mallappa, Muttamma, w/o Shivappa, M. Nagaraju, S/o. Mallappa, Mari, w/o Nagaraju, Venkatalakshmi, w/o Nagaraju, and a child namely, Shivamma d/o Nagaraju, escaped on 8.11.2004. Thereafter, they have complained to an N.G.O. called Justice Mission about the atrocities committed by the accused. The said NGO contacted the Assistant Commissioner in Bangalore, who delegated the Tahasildar, Bangalore North Taluk to take action under the provisions of the Bonded Labour Act. P.W. 1-Tahasildar raided the Brick Kiln and found two persons namely Nagaraju and Madesha in illegal detention in a room. After releasing them, the Tahasildar filed a complaint with the Tavarekere police, which is registered as Crime No. 252/2004 on 6.12.2004 at 17.00 hours. The police after enquiry, laid a charge sheet alleging commission of offences mentioned supra against accused-respondent Nos. 1 and 2. After trial, court below has acquitted the accused. Though the State has not filed any appeal, the appellants namely by P.Ws. 2, 3, 8 and 9, have challenged the order of acquittal.

We have heard Ms. Sinimol P.J. for the appellants and Mr. A.N. Radhakrishna for the respondents and perused the records.

The learned Counsel for the appellants contends that the accused had kept gullible coolies from Tamil Nadu as bonded labour to run their Brick Kiln. They were not paying the wages as per the Minimum Wages Act. The accused were abusing their higher fiduciary position and committing atrocities against the bonded labour. She further submits that the court below has failed to appreciate the material on record and acquitted the accused which has caused serious injustice to the appellants. She submits that the Court below has misread the provisions of the Act in coming to the conclusion that an agreement in law means a document in writing which is contrary to Section 2(b) of the Act. She submits that accused No. 2 was impersonated before the trial Court and thus, respondents-accused are guilty of all the charges leveled against them and accordingly, prays for allowing the appeal.

Per contra, Shri A.N. Radhakrishna, learned counsel appearing for the respondents-accused while supporting the judgment of the court below submits that there is absolutely no evidence brought on record by the prosecution and therefore, the appeal does not merit any consideration and accordingly, prays for dismissal of the same.

P.W. 1 in this case is the Tahsildar. He has deposed that on 16.11.2004, as per the instructions of the Assistant Commissioner to look into the complaint under the Bonded Labour Act, he visited the Brick Kiln belonging to the accused along with his Revenue Inspector and a Volunteer of an N.G.O. and found two persons namely, Nagaraju and Madesha who were kept in a room under illegal custody. He learnt from them that the respondents-accused and one Nanda, friend of the second accused had kept them in illegal detention and were being assaulted by clubs and hokey stick. He has further deposed that he had brought the said club and the hockey stick to the court. He has also stated that the volunteers of the N.G.O. had videographed the entire operation.

P.W. 1 has further deposed that after he returned to his office, the volunteers of the N.G.O. had brought brick factory workers namely Mallappa, Shivaraju, Chinnamma, Shivaranjini, Shivappa, Muttamma, M. Nagaraju, Mari and Venkatalakshmi to his office; he got recorded their statements by his Revenue Inspector after explaining the translated version of their statements through a person who had known Tamil. As per the statements of said coolies, the accused No. 1 had paid Rs. 15,000/- computing the labour charges at Rs. 230/- for laying 1,000 bricks; the accused were treating them as bonded labour without permitting them to go anywhere and accused No. 1 and his people committed atrocities on the women. P.W. 1 also learnt from them that the coolies had escaped from the clutches of accused being unable to bear the ill-treatment.

In the cross-examination, P.W. 1 has stated that the N.G.O. had complained to the Assistant Commissioner about the commission of offences under the Bonded Labour Act by the accused. He has also admitted that the members of the N.G.O. had told him that they have kept the coolies in some place and brought them to his office. He has also admitted that he did not produce them before the Assistant Commissioner. He has not produced any document to show that he has submitted any report to the Assistant Commissioner. He has denied the suggestion that he did not get the statements of the victim recorded in his office and that the statements prepared by the N.G.O. were received by him. He has also admitted that he had not attested the statements testifying that the contents have been translated from Tamil to Kannada and recorded.

P.W. 1 has admitted that when the witnesses (coolies) informed him that they were raped, he did not send them for medical examination; he did not seize their cloths; he has not mentioned any date in Ex. P1-complaint; he has not forwarded the list of witnesses to the police station due to pressure of work. He has denied the suggestion that he has got a false complaint registered against the accused.

P.W. 2 is one of the victims. She has deposed that she was in a team of eight coolies who came from Tamil Nadu three years prior to the date of deposition (around 2004) for work to a Brick Factory owned by one Seenappa; one Muniraju, employee of Seenappa got them work in the Brick factory owned by accused No. 1; after about three months during Deepavali time, the first accused took all the workers to his house and locked them in one room; the accused No. 2 locked her husband in a different room and assaulted P.W. 2 and raped. He also threatened her with dire consequences, if she were to inform anybody about the incident. Subsequently, they were taken to the brick factory and after about two days, the accused No. 1 again raped her in his house next to the factory. After about one week after the said incidents, she and her team members escaped and went to her native place. However, Nagaraju and Madesha were locked in a room. P.W. 2 informed one Ashish and Paul about the incident who went and got Nagaraju and Madesha released. During the course of examination, she has identified accused No. 1 and pointed towards the second accused and stated that the actual accused No. 2 was not before the court and the person who was in the dock was not actually the person who had raped her.

In the cross-examination, she has stated that she refused to undergo a medical examination as she was pregnant. She has also stated that when she was taken to the house of accused No. 1 at about 10 P.M., his wife was present; they all sat in the hall of the house. She has further admitted that they were laying about two to three thousand bricks per day; they were working under a Maistry (manager) Shivaraju as per his instructions.

P.W. 3 is also another coolie and deposed in par with P.W. 2. She has stated that prior to Deepavali festival in the year 2004, the accused No. 1 took her to his house situated in Kalasipalyam and put everybody in different rooms; she was put in a different room which was dark and despite opposition by her, he caused burn injuries on her hand and legs by beedi and raped her and threatened her that he would kill her if she were to inform about this incident to anybody. She has further deposed that the accused No. 1 brought them back to the factory and did not permit them to go to their native place to celebrate Deepavali and therefore, they had to escape and runaway. After going back to her native place, she had informed about this incident to one Edukondalu who took them an N.G.O. in Hosur. The volunteers of N.G.O. took them to Magadi Court where their statement was not recorded; even police did not record their statement and they have given their statement before the Tahsildar. In the cross-examination, she has admitted that she has worked for about 1 or 2 months in the factory; she had been to the house of accused No. 1 with her husband Nagaraj, Muttamma and Mary. She has also admitted that she has not seen accused No. 1 in any other place other than the factory.

P.W. 4 is another coolie who has deposed in par with P.Ws. 2 and 3. This witness has not been cross-examined.

P.W. 5 is the husband of P.W. 2. He has stated that Shivaraju P.W. 10 had taken them to the Brick factory of accused No. 1 from the Brick factory of one Seenappa where they were working earlier. He has deposed that the Maistry (manager) received Rs. 15,000/- from accused No. 1 on behalf of all coolies; his wife told him that accused Nos. 1 and 2 made an attempt to forcibly rape female coolies. In cross-examination, he has admitted that it was P.W. 10 Shivaraju, who was getting money from accused No. 1 on the basis of number of bricks manufactured and in turn paying wages to them;

P.W. 6 is a co-worker of P.W. 1. In contrast to the deposition of other female labourers, she has stated that she was working in the Brick factory of the accused; some other coolies who hailed from Tamil Nadu were also working with her; the owner of the factory paid advance to the said labourers as also to her; the labourers from Tamil Nadu had run away and came back with a Tahasildar who enquired her about any ill-treatment of coolies from Tamil Nadu by the employer. In cross-examination, she has admitted that accused No. 1 was not getting the work done without paying the wages; accused No. 1 never confined any of them; she has not seen the accused persons assaulting any labourers; accused persons have not taken any coolies to their house nor raped them at any time; she has left the work at the factory of the accused as all other coolies had gone away.

P.W. 7 is also a labourer from Tamil Nadu who was working along with other coolies. He has spoken about Shivaraju''s visit to his native place and the accused persons enquiring about Shivaraju. He has complained about the ill-treatment by the accused and his return to his native place. He has also spoken about appearing before the Tahsildar, Bangalore who got released his brother Mallappa who was kept in illegal detention by the accused. He has stated that Shivaraju is his cousin who discussed with the accused about the wages and the advance amount; he did not know the details of talk between Shivaraju and accused No. 1; he has spoken about his illegal detention by the accused and admitted in cross-examination that no person has witnessed his detention and assault by the accused No. 1 and 2 it was night time.

P.W. 8 has spoken in line with the other coolies. He has stated that he and Madesha were confined in a room and assaulted by the accused to know about Shivaraju till they were released by the Tahsildar. In the cross-examination, he has admitted that the Maistry (Manager) came and called them to work in the factory of accused No. 1; he did not discuss about the wages; he did not personally seen the advance amount paid by accused No. 1 to Shivaraju. He has admitted that some member of the N.G.O. informed him to go to the Court.

P.W. 9 has spoken in similar lines of other labourers and stated that the accused persons assaulted him along with Madesha and Nagaraja.

P.W. 10 has deposed that he was working in the Brick factory of one Seenappa. Yellappa, a relative of accused No. 1 who was working as a writer (manager) in the factory of Seenappa offered to get job in the factory of accused; he went to the factory of accused No. 1 and received an advance of Rs. 1,000/- and started working in the factory of accused No. 1. Thereafter, he collected further advance of Rs. 10,000/- and Rs. 4,000/-. P.W. 5 and his wife P.W. 2 went to their native place and did not return for a week and therefore, he followed them to his village to bring P.Ws. 5 and 2 back to the work; when he returned to Bangalore, he learnt that the accused had taken his wife and daughter to their house; he and other coolies went to the house of the accused and expressed their inability to work and offered to refund the advance amount received. However, the accused demanded double the amount and did not grant permission to go to their native place for Deepavali. Subsequently, all coolies went back to their village; however, the accused No. 1 had kept Nagaraja, Madesha and Mallappa in confinement. He informed about confinement of the said three persons to his brother- in-law Elukonda, who took them to the Tahsildar in Dharmapuri, who in turn called the Tahsildar of Bangalore. Elukonda and others came to the office of Tahsildar, Bangalore, and narrated the incident. This witness was treated hostile and cross-examined by the public prosecutor. He as admitted that accused No. 2 did not harass him nor anybody complained to him against accused No. 2; Nagaraja and Madesha have also not complained of any harassment by accused No. 2 nor about being wrongfully confined in any room. He has denied a suggestion that he collected Rs. 15,000/- as advance and ran away and that he is deposing at the instance of N.G.O.

P.W. 11 has admitted in cross-examination as follows. He was working in an N.G.O. called International Justice Mission, Chennai; his job was to help the bonded labourers and to assist them to approach the Government for redressal of their problems; he has denied a suggestion that the N.G.O. must show some progress to get the funds; Elukonda approached the N.G.O. in 2004; He along with three others met the Tahsildar; the coolies named in his statement(Chinnamma and others) were not present, when he met the Tahsildar.

P.W. 12 is the Medical officer at P.H.C., Harohalli. He has examined accused Nos. 1 and 2 sent by the Circle Inspector of Police on 2.12.2006 and certified that they were healthy.

P.W. 13 is another coolie. He has turned hostile.

P.W. 14 was Head Constable in Tavarekere police station during 1999-2005. He has stated that he was deputed to record the statement of witnesses namely Yellappa, his wife-Kuppamma and one Chinnamma. In the cross-examination, he has admitted that when he went to the village of Yellappa, they had not stated before him that accused were not paying the wages; that the accused had not supplied the mud mixed with broken glass pieces.

P.W. 15 is the investigating officer. In the cross-examination he has admitted that the victims did not appear before him voluntarily but brought through the N.G.O. He has also admitted that the members of the N.G.O. intended to convert the labours to their religion. He has further admitted that the Superintendent of police had pressurized him to record statements and to file a charge sheet even though his conscience was not permitting and he had sought to file a ''B'' report. He has admitted that the Tahsildar did not identify the place where the accused had wrongfully confined the victims; witnesses namely, Venkatalakshmi, Mary and Muttamma did not state before him that the accused persons had confined them and raped; the witnesses did not come forward to identify the house of the accused and the factory; he did not observe any burn marks or injury on the body of the witnesses.

P.W. 16 was working as an A.S.I. in Tavarekere and registered a case in Crime No. 252/2004 on 6.12.2004, based on the letter received by post from the Tahsildar, Bangalore North Taluk and sent the FIR to the Magistrate on 7.12.2004.

P.W. 17 took over the investigation from his predecessor on 19.7.2006. He has deposed that one Sushmitha Mulami from International Justice Mission had brought the witnesses(Chinnamma and others) and produced before him; he recorded the statements of Chinnamma and others; his predecessor had sought permission from the Superintendent of police to file a ''B'' report. In cross-examination he has admitted that the N.G.O. people used to bring the witnesses whenever required for investigation. He has also admitted that there is no allegation of rape against accused No. 2 in Ex. P1-complaint. He has also admitted that Chinnamma and others have not stated before him that accused No. 1 committed rape; that the victims did not take him to the place of their wrongful confinement, rape and place of assault. He did not conduct mahazar of any place; he did not notice any external injuries or burn injuries on the body of the victim; he did not seize the cloths of the victim nor the accused. He has further admitted that the victims Madesha and Nagaraja did not take him nor identified the place where they were allegedly confined. He has further admitted that he informed the Court on 9.6.2004 that there was no allegation of offence under Section 376 IPC; that he has intimated the court that Muttamma and Mary have stated that accused persons have not raped them. He has also admitted that the Superintendent of police directed him to conduct investigation and submit charge sheet; the members of the N.G.O. were present at the time of recording the statements of the witnesses.

A combined reading of the gist depositions of witnesses reveals that accused Nos. 1 and 2 were running a Brick Kiln; P.W. 10-Shivaraju was brought in contact with the accused by one Yellappa, a relative of the accused; accused gave some advance money to P.W. 10; a group of coolies were brought by Shivaraju to the Brick Kiln of accused, who worked for some time and ran away to their native place and complained to an N.G.O. that they were harassed and raped. They also informed that two persons namely Nagaraju (P.W. 8) and Madesha were kept in captivity by the accused; P.W. 11- an employee of the N.G.O. met the Tahsildar, Bangalore North Taluk, who visited the factory and released the said Nagaraju and Madesha and filed a complaint with the police.

To bring home the guilt of the accused of commission of offences charged against them, which are very serious in nature, the prosecution has to place consistent and cogent evidence before the Court. In the instant case, the prosecution''s case can be summarized as follows:

"a) that the accused had brought and kept some labours from Tamil Nadu and kept them as bonded labourers;

b) that the accused had not paid the wages, assaulted and raped female bonded labours;

c) accused had kept P.W. 8 and one Madesha in illegal confinement and assaulted them."

The version of the female coolies, as can be gathered in their examination-in-chief is that they were confined and sexually assaulted. But they have not withstood the cross examination. Only P.W. 2, 3, 4 and 6 are the female cooolies who are examined. P.W. 2 states in one breath in the cross examination that she did not go to any place during her employment in the brick kiln owned by the accused and in the other breath states that when she had gone to the house of accused No. 1 only his wife was present.

P.W. 3 has admitted that she has not seen accused No. 1 at any place other than the brick factory. P.W. 4 is not cross examined. The evidence of first three women witnesses namely, P.Ws. 2, 3 and 4 is not consistent and does not support the case of the prosecution in any manner. The evidence of P.W. 6-another woman coolie supports the case of the defence and demolishes the case of the prosecution. Thus, the theory of assault and rape by the accused over the labourers is not supported by a consistent and cogent evidence to bring home the guilt of the accused.

The labourers in their evidence have also admitted that P.W. 10- Shivaraju, had received the advance amount from the accused. P.W. 10 has admitted that he had received the advance amount payable towards labour charges and the accused No. 1 did not know as to how much money he used to pay to the labourers. Thus, it can be safely presumed that P.W. 10 was acting as a manager or a labour contractor collecting money from the accused and the labourers based on production of bricks.

The next contention is with regard to offences punishable under the Bonded Labour Act. A bonded labour under the said Act means, any labour or service rendered under the bonded labour system. The definition of ''bonded labour system'' reads as follows:

"(g) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has or is presumed to have, entered, into an agreement with the creditor to the effect than,--

i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or

ii) in pursuance of any customary or social obligation, or

iii) in pursuance of an obligation devolving on him by succession, or

iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or

v) by reason of his birth in any particular caste or community--

he would-

(1) render, by himself, or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditors, for a specified period or for an unspecified period, either without wages or for nominal wages, or

(2) forfeit the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or

(3) forfeit the right to move freely throughout the territory of India, or

(4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him.

And includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;"

The learned counsel for the appellants has strongly assailed the observations of the trial court in paragraph 43 wherein the trial court has held as follows:

"43- In a legal terminology, an agreement means to say about the talks that were transpired on the date of transaction, it should be reduced to writing..................................."

She contends that the agreement under the Bonded Labour Act has a different connotation. She submits that insofar as the bonded labourers are concerned, the agreement can be either written or oral, or partly written or partly oral, as defined under section 2(b) of the Act. It is no doubt true that under the Bonded Labour Act can be either written or oral or party written and party oral. Therefore, the finding of the trial Court in para-43 as extracted hereinabove is not sustainable in cases involving bonded labour. But in the case on hand, the prosecution has not placed any material before the trial Court to even remotely suggest that the accused had kept the labours from Tamil Nadu as bonded labourers. P.W. 2 admits that Shivaraju was a Maistry and labourers were working under his instructions. P.W. 6 has categorically stated that accused was not getting any work done without paying any coolie; accused had not wrongfully confined any labourer; that she has not seen the accused persons assaulting any labourer; that the accused persons had not taken any coolies to their house and raped them at any time. The prosecution has not placed any clinching evidence in support of its case under the Bonded Labour Act. At best, it can be said that the accused had outsourced the workforce through P.W. 8 who acting as a contractor.

With regard to the charge of illegal confinement and rape, there is absolutely no evidence worth mentioning.

Adverting to the charge that Madesha and P.W. 8 were kept in captivity and assaulted, we may notice that the prosecution has failed to place any evidence to prove this charge. The evidence of the investigating officers P.Ws. 15 and 17 suggests that the investigating officer P.W. 17 had felt that there was no case made out and had accordingly, sought permission to file a ''B'' report, which was denied by the Superintendent of police. In the cross-examination, P.W. 17 has admitted that P.Ws. 2, 3 and 4 did not state before him that the accused persons had confined and raped them. P.W. 15 has admitted the suggestion that the members of the N.G.O. intended to covert the labourers like the victims to their religion. The complaint-Ex. P1 is given by the Tahsildar, Bangalore North Taluk. He has deposed in his evidence that after he set Nagaraju and Madesha at liberty, he enquired with them and learnt that they were beaten by a club and a hockey stick and he had brought those items along with him to the Court. Thus, admittedly, the club and the hockey stick which are said to have been used to assault the victims were not seized in accordance with law. We are at a loss to understand as to how the Taluka Executive Magistrate can carry weapons said to have been used in an offence along with him and bring them to the court at the time of tending evidence. The Tahsildar ought to have drawn a panchanama and seized the said items or got them seized by the investigating officer in accordance with the provisions contained in the Criminal Procedure Code. Further, P.W. 10 under whom the labourers were working has admitted in the cross-examination that Madesha and Nagaraja did not tell him that the accused had taken them to their house and wrongfully confined them in a room. He has further admitted that a Tahsildar from his native place and a local Tahsildar went to the factory of the accused and the Tahsildar did not record anything at the time of the said visit. There is no medical certificate corroborating the claim of the victims that they were beaten/assaulted by a club or hockey stick. In the circumstances, it is unsafe to accept the version of the prosecution that Madesha and P.W. 8 were kept in illegal confinement and assaulted by the accused for want of credible evidence.

In the light of the above discussions, we hold that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. The trial court, in it''s detailed judgment has adverted to all aspects of the matter. This is an appeal against acquittal. When two views are possible and Trial Court has taken a view and acquitted the accused, the appellate Court ought to be careful in reversing the finding recorded by the Trial Court. In the instant case, even on re-appreciation of the evidence on record we agree with the view taken by the trial Court and hold that the appeal lacks merit and liable to be dismissed.

As pointed out supra, in so far as finding of the trial court as recorded in paragraph 43 of the judgment of the trial Court with regard to an agreement in the case of a bonded labour, we hold that the said finding is erroneous. It is clear from Section 2(b) of the Bonded Labour Act. An agreement between an employer (creditor) and a bonded labourer (debtor), can be either in writing or oral or partly in writing and partly oral.

In the result, the appeal fails and stands dismissed.