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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.601 of 2017 & JCRLA 69 of 2016 (From the judgment of conviction and order of sentence dated 15.07.2016 passed by the learned 1st. Addl. Sessions Judge, Rourkela in S.T. Case No. 03/2015) Raju @ Rajkishore Das (both in CRLA No.601 of 2017 & JCRLA No.69 of 2016) -versus- …. Appellant State of Orissa …. Respondent Advocates appeared in the case: For Appellant : Mr. Pabitra Kumar Nayak, Adv. -versus- For Respondent : Mr. P.C. Mohanty, ASC CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-11.08.2023 DATE OF JUDGMENT:-10.11.2023 Dr. S.K. Panigrahi, J. 1. The Appellant (Raju @ Rajkishore Das), in both the CRLA and JCRLA, challenges the judgment of conviction and order of sentence dated 15.07.2016 passed by the learned 1st. Addl. Sessions Judge, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 1 of 12 Rourkela in Sessions Trial Case No.03/2015 arising out of GR Case No.1898/2014, corresponding to Tangarpali P.S. Case No.117 dated 17.08.2014, of the court of the learned S.D.J.M., Panposh, convicting and sentencing him to undergo R.I. for 10 years and to pay a fine Rs.30,000/- i.d. to undergo R.I. for 2 years under Sections 370(1)(b)(3) and to undergo imprisonment for life and to pay a fine of Rs.40,000/- i.d. to undergo further R.I. for 3 years under Section 370(1)(b)(4) of the I.P.C. I. CASE OF THE PROSECUTION: 2. The case of the prosecution is that one Meera Kulu (PW-4) lodged an
Legal Reasoning
FIR (Ext-1) an 17.08.2014 before the IIC, Tangarpalli Police Station being scribed by one Binaya Kumar Tiwari (PW-1), alleging therein that on 04.03.2014 that her grandson namely Niudu Kullu@Mangra Malhar (PW-9) aged about 12 years along with Sukar Khadia, Sete Bahady. Biki Tete, Suraj Kansari (PW-10) Raju Bahadur (PW-8). Mukur Naik, Somini Das were taken to Coimbatore (Tamilnadu) by Kartika Das and his father (the appellant). They were not paid wages for their labour and were tortured physically and mentally by the officials of company and they could not return to their house. 3. The said case was registered as Tangarpalli P.S. Case No.117 dated 17.08.2014 and during investigation, as per the prosecution case, some of the alleged victims could manage to escape and return to their village. Thereafter, they were being examined during investigation claimed to have not been paid the remuneration though Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 assured for payment of Rs.300/- per day and besides they were Page 2 of 12 compelled to work for about 12-14 hours per day without proper food and shelter by the employer one Sanjaya Mahalik etc. and on objection, they were assaulted. II. SUBMISSIONS OF THE APPELLANT: 4. Learned Counsel for the Appellant strenuously argued that the judgement and order passed by the learned court below is illegal, arbitrary, whimsical and not in accordance with proper appreciation of the fact and law. 5. When there is no deception proved by the prosecution to attract the ingredients of the offence under Section 370 of the I.P.C. for alleged trafficking of person nor any exploitation as alleged is proved against the appellant the conviction is bad in law. Additionally, when nothing is proved that the alleged victim (P.Ws.8 to 10) were staying at Coimbatore for about 7 months and nothing is revealed from the investigation by the I.O. (P.W.7) that the other victims have been still exploited at Coimbatore nor any step is taken to rescue them from being exploited, the judgement of conviction on the basis of the statement of witnesses are not creditworthy. 6. When the alleged victim P.W.9 who is claimed to be minor has categorically stated during cross-examination that he was not told by anyone to go to Coimbatore and further stated that he proceeded to the said place as the appellant and others were going there. So, the conviction is liable to be set aside by this Court. 7. When the School Admission Register (Ext-2) does not disclose the Signature Not Verified name of the PW.9 as Niudu Kullu, but the name as of one Mangra Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 3 of 12 Mallahar is claimed to be his name during trial, the same is not acceptable and on the other hand, the prosecution has failed to bring the Aadhar Card of the P.W.9, into the record, the prosecution failed to prove the case, so the same is liable to be set aside. When P.W.5 stated during evidence on 23.04.2015 that her husband has returned 5-6 days back and stated that she cannot say on which date or time her husband was taken by the appellant her evidence is doubtful and out credit work. III. SUBMISSIONS OF THE STATE/ RESPONDENT 8. The prosecution has examined as many as 10 witnesses, out of which, PW-1 is the scriber of FIR, PW-2 and PW-5 are the father and mother of one alleged victim Raju Bahadur (PW-8), PW-3 seizure witness, PW-4 is the informant and grandmother of victim Niudu Kulu (PW- 9), PW-6 daughter of one alleged victim Suraj Kansar (PW-10). PW-7 is the I.O. of the case and exhibited FIR (Ext-1), Seizure List (Ex-2), Zimanama (Ext-3), Requisition to Labour Office (Ext-4), 164 statement of PW-10 (Ext-5). 9. Learned counsel for the State referring to the evidence adduced before the trial court submitted that there is no reason to disbelieve the evidence of P.Ws.8, 9 and 10, who are victims in this case. There is no inconsistency in their evidence. In such circumstances, the impugned judgment of conviction and order of sentence dated 15.07.2016 passed by the learned 1st. Addl. Sessions Judge, Rourkela in S.T. Case No.03/2015 are not amenable to interference IV. Signature Not Verified COURT’S REASONING AND ANALYSIS: Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 4 of 12 10. Heard both the parties and went through the judgement of the Trial Court. 11. The prosecution brought the accusation on the accused that the accused on 4.3.2014 took the grandson of the informant who was a minor aged about 12 years and others like Sukra Khadia, Sete Bahadur, Bikey Tete, Suraj Kansari, Rajkumar Kansari, Raju Bahadur, Mukru Naik and Samari Das took Coimbatore to engage them as labour and the accused is being assisted by his son. The above noted persons have not paid any wage there. They were tortured physically and mentally by the persons of the company and by the time of reporting the matter, they have not returned to their native. The matter was reported on 17.8.2014. 12. Police took up the investigation and during course of investigation, examined the informant and the scribe of the FIR. Police visited Bandhabasa Laxmi Market, Tangerpali, the spot i.e. where from those persons were taken and thereat located the house of the victims, examined the relation of the victim. On 18.8.2014, the I.O. could get information that the present accused is at his home, conducted raid in the house of the present accused, apprehended him, arrested him and forwarded him to the court as there was allegation against him. The I.O. then issued a letter to the District Labour Officer to rescue the victims and on 12.9.2014 the I.O. could get the information that some of the victims could manage to escape and have returned to their house. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 5 of 12 13. Accordingly the I.O. visited the house of the victims, examined them and also on subsequent occasion other victims could manage to escape and after their arrival in the house, the IO knowing such facts went to their house and examined them. The I.O. has also made prayer to get the statement of the victims recorded under Section 164 of the Cr.P.C. and, after completion of investigation, intimating his superior about the result of the investigation, submitted charge sheet. 14. The prosecution in order to establish the occurrence and substantiate the charges has examined ten witnesses and following documents such as FIR, seizure list, zimanama, requisitions and 164 Cr.P.C. statement of PW 10 have been exhibited. Out of which, PW 4 is the informant and PWS 8, 9 and 10 are the victims in this case. PW 13 is a minor who is the grandson of this present informant. PW 1 is the scribe of the information to the police who stated that as per instruction of Meena Kullu he scribed the report, read over the contents and the contents were admitted to be true by the informant who appended her LTI before him. PW 2 is the mother of Raju Bahadur, the victim who stated that the accused took her son to engage them as labour. PW 3 is the school teacher from whose possession the admission register was seized. 15. PW 4 is the informant who stated that the accused and his son took her grandson to employ him in some work. Not only her grandson was taken, but several other persons were also taken by them and they could manage to escape, but still some persons are in captivity. Signature Not Verified They were taken to Tamil Nadu area. They were not paid any Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 6 of 12 amount, not provided with proper food and they were being engaged throughout the day and night. She asked the accused to bring back her grandson. The accused assured to bring back, but continued to cheat her by not bringing and deviating from the words. 16. PW 5 is the wife of victim whose husband could manage to escape from the place of bondage. PW 6 is also a victim who stated that this present accused lured his father in the name of employment and took him with him and they were not paid anything. PW 7 is the IO and
Legal Reasoning
P.Ws. 8, 9 and 10 are the victims. PW 8 in his evidence has stated that some two years back Raju Das and Kartik Das took him to Tamilnadu for labour work. Beside him, one Nindu Kulu, Satya Bahadur, Rajkumar Kansari, and Makru Naik were also taken. They were taken on 10th, but the accused took them on 11th. The accused assured them to pay Rs.300/- as wage per day, but they were not paid anything there. He worked in a factory under one Sanjay Mahalik before whom he was handed over by the accused. He was made to work for about 14 hours a day. He was not given proper food, shelter even they were forced to work during illness. However, he could manage to escape from the bondage. During the entire period of work, they were not paid a single penny and when they asked the accused for the money, the accused told them "PAISA DEBINAHIN TUME KI KARIBA". 17. It is further stated that they were assaulted by the owner Sanjay Mahalik. They were not allowed to move outside the work place and Signature Not Verified this accused after leaving them at the place, returned, but Kartik Das, Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 7 of 12 his son remained there. The defence has cross-examined this witness, but nothing substantial has been elicited to suspect his veracity. PW 9 is the minor grandson of the informant and after the court tested him whether he is competent to testify and after recording the satisfaction that he is competent to testify, examined the witness. He has stated that the accused took him to Tamil Nadu giving assurance of employment and money. He was taken in a train. The friend of Kartik Das named Sanjay Mahalik employed him in a road work. Beside him, the accused took Sukra, Makru Naik, Kansari, Raj Kumar, Biki Tete, Sita Bahadur and Samari to Tamilnadu area. They were not paid any money from labour work. When they intended to come back, they were not allowed to go. He states that he was forced to work for 12 hours even during illness. He demanded money, but not paid anything. However he could manage to escape from that place and returned to his village. This witness was also cross- examined by the defence and nothing substantial has been brought out by the defence to disbelieve the witness. PW10, another victim stated that he was taken by this accused to Tamil Nadu. He also stated that a girl was also taken by the accused and his son. He was taken to Coimbatore of Tamil Nadu. He was engaged as a labour under a construction of road under a contractor. He was not paid any wage. The accused promised the wage of Rs.300/- per day. He was made to work for 12 hours to 14 hours per day. They were also not provided with proper food even during illness. The accused and the Signature Not Verified contractor were not providing any medicine and they were forced to Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 8 of 12 work during illness. When they demanded money, they were refused. When they tried to come back, they were not allowed to come back or go outside; therefore, they secretly fled from the place. During cross-examination this witness has categorically stated that as he was not allowed outside, he has no paper to show that he was at Coimbatore. He was purchasing medicine at Coimbatore. He denied to the suggestion that he was never taken to Coimbatore and nothing substantial has been elicited from his mouth. Now there is any contradiction, omission and inconsistency in the evidence of the witnesses and they have reiterated the facts stated in 164 Cr.P.C. statement. 18. During the statement recorded by the Court under Section 313 of the Cr.P.C. of the accused, it is stated by the accused that the victims were working in a company. They have not demanded any money from him. Kartik Das is his son. He stated that six persons returned and two persons have not returned and after their return, this case has been foisted otherwise he admits that those persons were taken, engaged and came back i.e. six persons came back and two persons yet to come. 19. During course of argument, it is submitted by the prosecution that fact remains that the accused lured the persons of a wage of Rs.300/- and took them and went with them are minor, so the offences have been committed by the accused. There is no inconsistency. There is no reason to disbelieve the witnesses. Hence, the accused be Signature Not Verified convicted on the charges. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 9 of 12 20. The learned counsel appearing for the defence submitted that this case does not come under the provision of IPC, rather prosecution ought to have been under the Bonded Labour System Abolition Act and hence, the accused needs be acquitted from the charges. The persons who are stated to be the victims in this case by the prosecution have gone on their own volition; therefore, no offence is committed. They went to Tamil Nadu area even if the prosecution case is believed to fetch more wage and they have stated that they were engaged by one Sanjay Mahalik, not by this accused and this accused is not to pay anything to them. This case has been foisted against the present accused due to obvious reason. The accused has no role to play in the entire incident. The prosecution has not able to prove that the accused has taken these persons in any train, no train ticket, no material has been seized by the investigating officer. The IO has also not visited the stated place at Coimbatore or Tamilnadu area so as to ascertain as to where they were engaged. This is just an outright falsehood. The witnesses are telling before the Court to implicate the accused to the crime. Thus, the accused be acquitted from the charges. 21. In this case, the evidence of the victims PWS 8, 9 and 10 practically remained unchallenged. With the cost of repetition, PW 8 has stated that he accused assured to give Rs.300/- per day, but we are not paid anything there and that part of evidence has not been shaken in any manner. Further during cross-examination it has been brought from Signature Not Verified the mouth of this witness whether they were taken by the accused in Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 10 of 12 the name of employment. They have not complained before any quarter during journey. The questions which were put by the defence whether they remember the date and place, where they were forced to work is no way relevant for the purpose of the case. Fact remains from the evidence of PW 8 that he was lured by the accused and taken. PW 9 also stated that the present accused and his son took him to Tamilnadu giving assurance of employment and money. So, this particular person is also lured by the accused. PW 10 stated that the accused lured him that he will earn money in Tamilnadu and accordingly took them. Further they have stated that they were forced to work for 12 to 14 hours even during illness. They were not provided any food, so, there is ample evidence regarding luring by the accused. The inducement so lured has been made by the accused and here consent of the victim is immaterial for this offence. They were physically exploited at the work place, thus, the evidence clearly suggest the offence committed by the accused under Section 370 of IPC and as the accused is involved in trafficking of more than one person, it covered under Section 370(3) of IPC. When the accused is also guilty of trafficking a minor, PW 9, is also guilty of the offence under Section 370(4) of IPC. More so, the admission of accused in his examination under Section 313 Cr.P.C. and when there is no reason attributed to false implication by defence or any reason to falsely depose against the accused. The court is of the opinion that the evidence of the witnesses are trustworthy and wholly reliable. The Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 11 of 12 prosecution has been able to establish the charges beyond all reasonable doubt. 22. It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated. Moreover, as the accused induced and took them, but never compelled any of the victims to labour against his will, therefore, the offence under Section 370(4) of IPC is attracted. 23. For the reasons aforementioned, we are of the opinion that the appellant is guilty of commission of the offence under Section 370(4) of IPC. The result is that both the Appeals are without merits and the same are liable to be dismissed. 24. The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the Appellant to undergo the sentence as imposed. 25. Accordingly, both the Appeals are dismissed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 10th Nov., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:57 Page 12 of 12