IN THE COURT OF THE. ADDL. ASSISTANT SESSIONS JUDGE :
AT: KARIMNAGAR.
PRESENT: SMT. J.MAITHREYI,
ADDL. ASST. SESSIONS JUDGE,
KARIMNAGAR.
Monday, the 20th day of August, 2018
SESSIONS CASE NO. 152 of 2018
(On committal made by the Learned Addl. Judicial Magistrate of
First Class, Karimnagar vide PRC No. 48 of 2017)
Name of the Complainant:The State represented by the Inspector of Police, Karimnagar II town PS Cr.No. 197 of 2017
Name of the Accused :ChellangiVeniPrasanna,W/o Narsimha Rao, aged 52 Yrs, Occ: AssistantExecutiveInformation Engineer, Information Public Relation Department, Samachar Bhavan, A.C. Guards, Hyderabad, now at H.No. 8-3- 684/A, Bhagathnagar, Karimnagar, N/o H.No. TRT:2/1, Sarcil Colony, Sirpur- Kagaznagar of Adilabad district
Charge:U/s 370, 374 of IPC, Section 75, 80 and 81 of J.J. Act against accused
Plea of the Accused:“ Not Guilty “
Finding of the Court:“Guilty”
Sentence or Order :In the result, the accused was not found guilty for the ofence under section 370, 374 IPC, Section 75 and
Section 81 of J.J. Act and she is acquitted for the said ofences under section 235 (1) Cr.P.C and she is found guilty for the ofence under section 80 of the J.J. Act and convicted under section 235 (2) of Cr.P.C, the accused 2 is sentenced to pay a fne of Rs.
20,000/- in default S.I for (6) months.
Prosecution conducted by:Sri Mohd. Kaleem Mohiuddin Addl.P.P.,
Accused defended bySri R. Kiran Singh, Advocate Sri L. Satyanarayana, Advocate
This case is coming before me on 30.7.2018 for fnal hearing in the presence of Sri Mohd. Kaleem Mohiuddin, Addl. Public Prosecutor for the State/Complainant and of Sri R. Kiran Singh, Advocate and Sri L. Satyanarayana, Advocate for the accused, upon perusing the material papers on record, having heard and having stood over for consideration till this day, the Court delivered the following:- :: J U D G M E N T ::
1)The Inspector of police, Karimnagar II town PS fled charge sheet against the accused in Cr.No. 208 of 2017 for the ofence punishable U/s 370, 374 IPC and Section 75, 80 and 81 of Juvenile Justice Act 2015.
2)The brief facts of the case as per charge sheet is that on 17- 06-2017 at 1800 hours the PW-1 Macherla Sharada, District Welfare
Officer for women and child, Karimnagar lodged a report stating that on 06-12-2016 at about 1156 AM a girl baby Arunima aged 12 years has called 1098 i.e., Child Helpline with the assistance of a teacher regarding rude behaviour of adopted (illegal) mother. The Child Line
India Foundation, Karimnagar has recorded the call and rescued said girl from her friends house where she was taking lunch and they have produced said girl before C.I.P., Karimnagar II town. The baby Arunima has given a written statement that she does not know from where she has brought by accused and stated about the torture how she has faced in the house of accused. After taking a written statement the Inspector of Police, P.S. Karimnagar II town has requested Chairperson, Child
Welfare Committee, Karimnagar to provide the care, need and 3 protection of the child. Accordingly, Chairperson has ordered the
Superintendent, Balsadan, Karimnagar to provide the care, need and protection for fve months. During the visit of PW-1 Sharada, she has noticed the said girl and enquired about her admission and instructed the D.C.P.O., I.C.P.S., Karimnagar to submit a detail enquiry into the matter. The social worker, O.C.P.S., D.C.P.U., Karimnagar has enquired and submitted a case study report. During enquiry the accused has accepted that she has brought baby Arunima at the age of three years for Rs. 11,000/- from unknown person as adoption but she has not shown any documents for the same. On house search there is nothing related to the girl in the house. The sign of the house shows that she kept as house keeper to do the work like sweeping, cleaning and washing etc., at house bearing No. 8-3-684/1, Bhagath Nagar,
Karimnagar dated 06-12-2016 at 12:05 Pm. If she refused to do work she used to beat her rudely. It continues regularly from October 2016, the girl was going to the school in Kakatiya School, but due to the transfer of accused from Karimnagar to R.R. District, she is not permitting the child to go to school. She has written a letter to the
District Collector, Karimnagar by accepting that she has brought the girl child, as there is no one to look after her and also informed that if she comes on road, it would not be good as she is a girl child.
As per section 81 of J.J. Act any person who sells or buys a child for any purpose shall be punishable with R.I. for a term with may extent to fve years and shall also liable to fne of Rs. 1,00,000/-. As per the orders of District Collector the PW-1 Sharada has lodged a complaint.
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3)Basing on the above complaint PW-11 T. Mahesh, Inspector of
Police has registered a case in Cr.No. 208/16 under section 370 and 374
IPC, Section 75, 80 and 81 of J.J. Act 2015. During the course of investigation he examined and recorded the statement of PW-1
Sharada. Later he visited scene of ofence which is located at
Bhagathnagar, Karimnagar, secured presence of PW-10 Pugu Umesh,
LW-13 Khaja Azeemuddin and prepared C.D.F., and drawn rough sketch of scene of ofence. He examined and recorded the statements of PW-2
G. Anurima, PW-3 Veerla Sathish, PW-4 Dr. G. Komuraiah, PW-5 S.
Saisruthi, PW-6 N. Santhoshi, PW-7 Duddena Parveen, PW-8 M. Kavitha,
PW-9 Rachana Satyanarayana. When he made attempts for apprehension of accused, the accused approached Hon’ble High Court and obtained anticipatory bail and she was released on bail after execution surety for Rs. 50,000/-. After completion of investigation he has fled charge sheet.
4)The case was taken on fle for the ofence punishable U/sec. 370 and 374 IPC, Section 75, 80 and 81 of J.J. Act 2015 against accused by the learned Addl. Judicial Magistrate of First Class, Karimnagar vide PRC
No. 48/2017 and on appearance of the accused, the copies of case documents were furnished to the accused as contemplated U/sec. 207
Cr.P.C. and as the ofence is exclusively triable by the Hon’ble Court of
Sessions, the case was committed to the Honourable Court of Sessions,
Karimnagar U/s 209 Cr.P.C and subsequently, the case was made over to the Court of Additional Asst. Sessions Judge, Karimnagar for disposal according to law.
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5)The charges U/s 370 and 374 IPC, Section 75, 80 and 81 of
J.J. Act 2015 of against accused is framed, and the contents of charges are read over and explained to the accused in Telugu, for which, the accused denied, pleaded not guilty and claimed to be tried.
6)In order to establish its case, the prosecution has examined
P.Ws.1 to 11, got marked Ex.P-1 to P-11.
7)After closure of prosecution side evidence, the accused was examined u/s.313 Cr.P.C, for the incriminating material found against them in the prosecution witnesses to which they denied evidence and reported no defence witnesses. Hence, defence evidence closed.
8) Heard both sides.
9) Now the point for consideration is:
Whether the prosecution has established the case against the accused beyond reasonable doubt?
10)The prosecution in order to prove its case examined PW-1 to
PW-11 and got marked Ex P-1 to Ex P-11. PW-1/M. Sharada,
C.W.O.,/Complainant, PW-2/G.Anurima is the victim girl, PW-3/Veerla
Sathish who is the teacher of PS-2 in Kakatiya School, PW-4/Dr.
Komuraiah, Chairmen of C.W.C., PW-5/S. Sai Sruthi, Counseller in Child
Line who rescued the victim girl and produced before C.W.C. Chairmen,
PW-6 N. Santhoshi who is incharge of Superintendent of Balasadanam and joined the child in the Balasadan, PW-7 Duddena Parveen, D.C.P.O., 6
Karimnagar, PW-8 M. Kavitha Devi who conducted detail enquiry and submitted report being social worker in Integrated Child Protection
Scheme and District Child Protection Unit, Karimnagar, PW-9 R.
Satyanarayana, Headmaster of Kakatiya High School and issued birth certifcate of victim girl, PW-10 Pogu Umesh, Panch witness for crime detail form, PW-11 T. Mahesh, Inspector of Police, who is the investigating officer.
PW-1/M. Sharada, District Welfare Officer, Karimnagar deposed after taking her charge as D.W.O., she verifed the fle of one girl by name Arunima. She came to know that as per the report the accused had taken said girl to her house by stating that she adopted the girl, in fact, she has not legally adopted the girl. The girl was staying in the house of accused and she was studying in the school also. The girl informed to her school teachers that the accused is beating her and she asked her to do domestic work in the house. At one time the accused beat her on the allegation that she committed theft in the house. The girl by weeping informed the matter to her teachers. The school teacher informed the matter to child line 1089, the child line staf went to the school and identifed the child. She was produced before Child
Welfare Committee. On the directions of C.W.C., she was produced
before Balasadan, Karimnagar. The report was submitted to Hon’ble
Collector. The Collector has given direction to the PW-1 to lodge a complaint before police.
In the cross PW-1 deposed on 03-04-2017 she has taken her charge as District Welfare Officer. The complaint was lodged on 05-06- 2017. As per complaint Ex P-1 the incident occurred on 06-12-2016. On 7 the same day the child PW-2 was taken to police station but on that day the complaint was not lodged. Ex P-1 was lodged after six months of the incident. Basing on the report submitted by District Child Protection
Officer, she lodged a complaint. She did not visit the house of accused and she did not examine the neighbours. She does not know whether as per the J.J. Act the report should be submitted within one month from the date of incident. They did not take any steps to fnd out who are natural parents of PW-2. She admitted that in the school record of PW-2 the husband name of accused is mentioned as father of PW-2. She did not record the statement of PW-2. She denied suggestion that she lodged a false complaint.
PW-2/G. Arunima victim girl deposed she know the accused she is her adopted mother. When she was age of three years she adopted her. She came to know that when she was a child the accused purchased her. Since her childhood she stayed in the house of accused.
She studied upto 7th class at Kakatiya School. The accused used to beat her whenever she did not attend domestic work. At one time the amount was stolen in the house on that the accused beat her, then she informed the matter to her school teachers, the school teachers informed the matter to child line. The staf of Child line came and took her to police station. She was send to Balasadan. In the cross examination PW-2 deposed the accused is her mother, her surname is surname of accused. In their house the PW-2, accused and her grand mother is residing. One Rathna maid servant is there in their house she used to attend domestic work. Her grand mother is doing cooking work.
Washing machine is there in the house for washing clothes. They are 8 residing in the rented house. The owners are residing in the frst foor.
Since her childhood she has been studying in Kakatiya Techno School, she used to go to school in school van. In the summer holidays the accused used to take her to Tirupathi, Vemulawada and her relatives house. She used to introduce her as her daughter. She does not know whether the accused is sufering with cancer and she is undergoing treatment. She is not having children except her. PW-3/N. Sathish her school teacher used to beat her for not doing home work. She admitted that in the school dairy the teachers used to write if she did not done any home work. She denied suggestion that she created a false story to avoid the punishments of PW-3.
In the further cross she deposed when the department people made enquiry with her she has given statement that she is ready to go to her mothers home. She admitted that since her childhood she was grown up by the accused only, she has taken care of her. She denied suggestion that the accused never beat her when she was a beggar, in her childhood, the accused brought her to her house and on humanitarian grounds she adopted her and provided every thing to her.
She denied suggestion that on the instructions of department people she is giving false evidence.
PW-3/N. Sathish school teacher of PW-2 deposed earlier he worked as Kakatiya School from 2010 to 2016. He know PW-2 she was his student. At the relevant time she was studying 7th class at Kakatiya
School. The PW-2 was not doing home work when she asked her why she is not doing home work, she said she has domestic work in the house so that she is not able to do homework. She stopped her studies 9 for one year. However, at one day in the year 2016 she came to school and informed that the amount was stolen in the house and her mother is beating her and asked him to do some help so he informed the matter to child line. Thereafter, the child line staf members came there and took the custody of child. In the cross examination PW-3 deposed at present he is working at Brilliant Grammer School. He worked in
Kakatiya Techno School from 2010 to April 2016. Kakatiya Techno
School is a reputed school. For 7th class student the school fee will be
Rs. 15,000/- to Rs. 16,000/-. For a year the amount of Rs. 30,000/- to
Rs. 35,000/- will come to each student. Normal punishments will be given to the children if they did not attend home work. Generally, the students will create stories when they asked them for not doing homework. He did not intimate the accused when the PW-2 is not doing home work. He intimated the matter to Head master when PW-2 is not doing homework. In the month of December 2016 he did phone call to child line Karimnagar. He denied suggestion that the PW-2 never stated that the accused beat her and at the relevant time he is not working in the school.
PW-4/G. Komuraiah, Chairperson in Child Welfare Committee deposed on 06-12-2017 the child by name Arunima was produced
before him by the staf members of child line team. The police has also
given a letter to him with a request to provide protection to PW-2. He send the child to Balasadan for shelter. He did not record the statement of child. Before producing the PW-2 before him the child line staf members recorded the statement of PW-2 and they attached her statement along with requisition of police. He perused the statement of 10 child and send the child to Balasadan. In the cross examination PW-4 deposed as per J.J. Act there will be four members along with chairperson. He admitted out of four members one member should be child psychologist and one member should be women. As per section 36 (2) of J.J. Act he has to conduct enquiry within 15 days after production of child. After enquiry within four months he has to pass fnal orders. On 06-12-2016 the child was produced. He has not conducted any enquiry as the police case is registered. He does not know when the police case is registered. The child was at frst produced
before the police later on she was produced before him. As per the Act
he has authority to lodge complaint in suomoto, he has not lodged any complaint in the instant case. He denied suggestion that a false case is registered against the accused.
PW-5/Sai Sruthi counselor in Child Line, she deposed on 06-12- 2016 at about 1156 hours their call center received information from one school teacher of Kakatiya Techno School stating that their student is being harassed by her mother. Immediately, she along with LW-6
Ramaraju went to the spot. They met with child she informed her mother is beating her and asking her to do domestic work in the house.
The child has to do services to accused and her mother also. They are not giving proper food to her, at present she is not going to school also.
The money was stolen from the house so the accused beat her. So she came to school and informed the matter to the teacher. Thereafter, the school teacher informed the matter to them. They took the custody of child and produced before PW-4. As per the orders of PW-4 she was joined in shelter home Balasadan.
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In the cross she deposed since 2015 she has been working as a counselor in the child line. After receiving call the matter informed to
Co-ordinator Sampath Sir, he decided who has to go to spot. They used to maintain the register to show who has to go to the spot. In the moment register the particulars of their visit and time are mentioned.
After half an hour of receiving call they went to the spot. They have not recorded the statement of child at the spot. She has not given any written complaint as when ever there is physical abuse on child they will give complaint. She has not spoken with PW-3, she noted down the points stated by him. On the same day of incident police recorded her statement. In the month of January or February 2017 the police made phone call and enquired about the present matter. They did not come to her office or to her home for recording her statement. She denied suggestion that the child has not given any statement against the accused, they foisted a false case.
PW-6/N. Sathoshi deposed on 06-12-2016 the PW-2 was produced before her on the orders of PW-4. She joined the child in the home as she need care and protection. The child was brought on illegal adoption so that she informed the matter to District Welfare Officer. The child was joined in the school in the next academic year. At present she is staying in residential school K.G.B.B. School, Thimmapoor. In the cross PW-6 deposed the medical report of child was not produced. On 04-01-2017 she informed the matter to her higher officials. In the order of C.W.C., there is no mention about illegal adoption. In the case study report it was mentioned. She admitted that as per Form No. VII she has to prepare individual care plan when the child is produced. She 12 prepared individual care plan. She did not handed this individual care plan to investigating officer. She denied suggestion that she has not followed J.J. Act and not prepared individual care plan.
PW-7/Duddena Parveen, District Child Protection Officer deposed the child Arunima was joined in Balasadan on the directions of
C.W.C. Later on the Superintendent of Balasadan addressed a letter to
District Welfare Officer stating that the child was beaten so that enquiry should be conducted on it. In turn District Welfare Officer instructed PW- 7 to conduct enquiry into the matter so that she endorsed to LW-10 M.
Kavitha Devi for conducting enquiry as the enquiry should be conducted by social worker only. On the date of enquiry she was present, she visited the house of accused along with said Kavitha and police officer and child line staf members. They verifed whether the child was given correct statement or not, some times the child may give false statement whenever their parents abuse them. In the enquiry they found that there are no photographs of child in the house. There was no celebration of birthday events of child, in the service register of accused it is not mentioned that the child is her daughter. The mother of accused informed the accused purchased the child from beggars for an amount of Rs. 11,000/-. The accused has returned the same in her own handwriting. In the enquiry they came to know that the accused beat the child, she submitted her report along with the letter of accused to
District Welfare Officer, in turn, she submitted the report to Hon’ble
District Collector. The District Collector asked them to submit related sections for the acts done by accused, they submitted the report and
District Collector suspended the accused.
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In the cross PW-7 deposed they have to take action and prepare report and conduct enquiry as per J.J. Act and rules. There was no written order by D.W.O., for conducting enquiry by her, it was endorsed on the back side of letter addressed by Superintendent. As per J.J. Act she has rights to delegate her duties to another for conducting enquiry. She did not give any written order to Kavitha to conduct enquiry. She endorsed the same on the back side of letter of
Superintendent. On 12-01-2017 she has given direction for conducting enquiry. There is no time fxed for conducting enquiry. On 22-01-2017 she went to spot for conducting enquiry. She did not enquire to whom the house number 8-3-684/1 belongs. She has not examined the house owner and neighbours. She has not examined one Rathna who is maid servant of accused. She did not examine the mother of accused. She did not enquire with the school of child and friends of child. Her signatures are not there in the social investigation/case study report.
She admitted that in case study report the column No. 15 to 17, 19, 21 and 22 kept blank. She did not verify service register of accused. In
Aadhar Card of PW-2 the name of accused mentioned as mother. She denied suggestion that she did not state before the police that there are no photographs of child in the house, there was no celebration of birthday of child, even in the service register of accused it is not mentioned that the child is her daughter. She admits that they have to submit result of enquiry to their higher officials, in the result of enquiry the particulars of emotion factors, physical conditions, intelligence and social economic factors, suggestive cause of problems, analysis of case opinion of expert consult and their recommendations should be mentioned. She has not given this result of enquiry to her higher 14 officials. There is no need to give direction to social worker under Form
No.XXI. The social investigation report should be conducted as per Form
No. XXII. There will be 57 columns in Form No. XXII. The report is not in accordance with Form No. XXII. She denied suggestion that they registered a false case against the accused.
PW-8/Kavitha Devi, Social worker deposed the Superintendent of Balasadan addressed a letter to D.C.P.O., stating that one child by name Arunima was beaten by her mother so she has given direction to protection officer to conduct enquiry in turn she directed the PW-8 to conduct enquiry. On 22-01-2017 herself, PW-7 Ramaraju and two constables went to the spot. They came to know that at about 5 or 6 years back the accused purchased PW-2 for an amount of Rs. 11,000/- from the beggars. They came to know that the amount of Rs. 5,000/- was stolen from the house so the accused suspected the PW-2 and harassed her and beat her so the child went to school and complained the matter. They found the clothes of PW-2 kept in one cotton box and she was sleeping on the foor. They prepared report and submitted to their higher officials. Ex P-5 is case study report prepared by her. The report was submitted to Hon’ble District Collector, he directed to lodge a complaint so that the PW-1 lodged a complaint.
In the cross PW-8 deposed she know J.J. Act and procedure for conducting enquiry. There is no separate proceedings for her for conduct of enquiry. The house of accused is rented house. She did not enquire whether the owner is residing in the same premises or not. She has no idea of neighbours with whom they enquired. She has not recorded the statements of neighbours. There is no servant by name 15
Rathna in the house of accused. They did not go to the school of child and not enquired with the friends of child. They did not enquired with any others to know the natural parents of child. In Aadhar Card of PW-2 the husband name of accused mentioned as father of PW-2. The particulars are asked in the house of accused and the report is prepared in the office. In the report she got not mentioned that the clothes of child was in cotton box and she was sleeping on the foor. In report it mentioned that as the accused beat her she informed the matter to her friends. The friends informed the matter to child line. The report should be prepared as per Form No. XXII. The report is not in accordance with
Form No. XXII, no direction will be given under Form No. XXI for conducing enquiry. On the same day the report was given to D.C.P.O.
After six months of report the complaint was given. She does not know the contents of complaint but on the directions of PW-1 she handed over
Ex P-1 to the police. It is true on the bottom of signature the date will be mentioned. She got not mentioned the date on the bottom of her signature in Ex P-1. The statement of mother of accused got written in her diary but she has not mentioned the same in her social investigation report. She did not hand over the diary to the police. She denied suggestion that on the instructions of PW-7 she prepared report without investigating the matter.
PW-9/Satyanarayana deposed on the requisition of police he issued birth certifcate of PW-2. She studied in their school from 2012 to 2016. As per birth certifcate her date of birth is 05-05-2005. In the cross he deposed in the certifcate the father name of PW-2 mentioned as Narsimha Rao. The date of issue is not mentioned in Ex P-6.
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PW-10/Umesh deposed that in the month of June 2017 when he was going to market police called him to the house of accused and conducted panchanama. He was asked to sign on panchanama, he read over the contents and put his signatures. In the cross he deposed
before his arrival the panchanama was started, after ten to ffteen
minutes of his arrival the panchanama was concluded. He denied suggestion that no panchanama conducted in his presence at the instance of police he signed on the panchanama.
PW-11/T. Mahesh, investigating officer deposed on the complaint of PW-1 he has registered the case and recorded the statements of witnesses. As per his investigation the accused has committed the ofence. In the cross examination Pw-11 deposed the ofence took place on 06-12-2016, the child was produced before his predecessor on 06-12-2016, his predecessor asked to produce PW-2
before Chairperson, Child Welfare Committee. The child was rescued on
that day so that F.I.R., was not issued. He denied suggestion that as per rule 54 (2) of J.J. Act the F.I.R should be registered immediately after producing the child. On that day he was not S.H.O., so he cannot say whether the case can be registered suo-moto as it is a matter of child as per rule 58 (1) of J.J. Act. In the complaint they might have mentioned the date as 05-06-2017 it is a draft complaint of PW-1. The complainant got mentioned the date on the bottom of her signature as 17-06-2017.
In the further cross he deposed in the frst paragraph of complaint it mentioned that the Child Line India foundation, Karimnagar has recorded the call and rescued the said girl from her friends house 17 where she was taking lunch. He did not collect the register of child line to know that on which date they received call. He has not collected the child individual care plan from the child line people. The accused had written letter Ex P-3 in his presence. He did not send Ex P-3 to expert for opinion. He did not examine the friend of PW-2 from where she was rescued. The owners are residing in the frst foor but he did not examined the owners and neighbours. He did not examine the servant of accused by name Rathna and mother of accused by name Leelavathi.
He denied suggestion that as per 54 (4) of J.J. Act the investigation must be done by child welfare police officer. He deposed one child welfare police officer is there in their police station. During the period of his predecessor the child was produced so he cannot say whether 164
Cr.P.C statement of child would have been recorded on the same day when the child was produced. He tried to get the particulars of natural parents of child but he could not get it. PW-7 did not state that the accused had not celebrated birth day of child and there are no photographs of child in the house and in the service register of accused the child name is not entered as a daughter. The PW-8 did not state that the clothes of child was in cotton box and she was sleeping on the foor when the accused was sleeping on the cot. He denied suggestion that he has not investigated the matter properly.
13)The above discussion shows that all the prosecution witnesses have given evidence against the accused. The main allegation of prosecution is that the accused person has illegally adopted the child
Arunima, there after she subjected her to cruelty and she compelled the 18 child to do domestic work when she refused to do work the accused beat the child and harassed her.
At this junction it is better to discuss the charges framed against the accused. The accused is charged for the ofences section 370, 374 IPC and Section 75, 80 and 81 of Juvenile Justice (Care and
Protection of Children) Act 2015. It is better to discuss the provisions of ofences for which the accused is charged. As per section 370 IPC who ever for the purpose of exploitation recruits, transports, harbours, transfers or receives a person or persons by using threat or using force or any other form of coercion, by abduction or by practicing fraud or deception or by abuse of power or by inducement including the giving or receiving of payments or benefts, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received commits the ofence of tracking.
Section 374 of IPC provides that whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either description for a term which may extent to one year or with fne or with both.
Section 75 of J.J. Act provides that who ever having the actual charge of, or control over a child assaults, abandons, abuses, exposes or willfully neglects the child or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessarily mental or physical sufering, shall be punished 19 with imprisonment for a term which may extent to three years or with fne of Rs. 1,00,000/- or with both.
Provided that in case it is found that such abandonment of the child by the biological parents is due to the circumstances of beyond their control it shall be presumed that such abandonment is not willful and the section is not applicable.
Provided further that if such ofence is committed by person employed by or managing an organization which is entrusted with the care and protection of child he shall be punished with R.I., which may extent to fve years and fne of Rs. 5,00,000/-.
If such child due to that cruelty become physically incapacitated or developed a mental illness or is rendered mentally unft to perform regular task or has risk to life or limb such person shall be punishable with R.I., not less than three years which may extent to ten years and shall also be liable to fne of Rs. 5,00,000/-.
Section 80 of the Act provides that if any person or organization ofers or gives or receives any orphan, abandoned or surrendered child for the purpose of adoption without following the provisions or procedures as provided in this act, such person or organization shall be punishable with imprisonment of either description for a term which may extent upto three years or fne of Rs. 1,00,000/- or with both.
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Section 81 of the Act provides that any person who sells or buys a child for any purpose shall be punishable with R.I., for a term which may extent to fve years and shall also be liable to fne of Rs.
1,00,000/-.
Provided that where such ofence is committed by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home the term of imprisonment shall not be less than three years and may extend upto seven years.
14)Now it is the duty of the court to see that whether the accused person has committed the ofence as mentioned above whether the prosecution is able to prove the ofences for which the accused is charged. The evidence of PW-1 shows that at the time of ofence she was not present, in fact, the ofence took place on 06-12-2016, the PW-1 has taken her charge as District Welfare Officer on 03-04-2017 it means after taking her charge she came to know of the incident, she is not aware of the actual facts of the case. As per record she is giving evidence that the child was not legally adopted by the accused, the accused is compelling the child to to domestic work in the house and she beat her on the allegation of committing theft in the house. In the cross examination she clearly stated that she has not visited the house of accused where the victim girl PW-2 was staying. She has not examined any body. On the directions of District Collector she lodged a complaint. Therefore, the evidence of PW-1 is not helpful to the prosecution to connect the accused with the alleged ofences.
The evidence of PW-2 is very crucial because she is the victim girl. She stated that when she was age of three years the accused purchased her. Since then she has been residing in the house of accused. She stated that the accused used to beat her whenever she 21 did not attend domestic work. At one time the amount was stolen in the house on that the accused bet her, she informed the matter to her school teacher on that he informed the matter to child line, later on the case is registered against the accused. The PW-2 in the cross examination has given a clear picture with regard to the conduct of accused towards her. When the allegations are made against the accused person, it should be proved beyond reasonable doubt. The PW- 2 has stated that the accused is spending money for her for her education. She is studying in Kakatiya Techno School. The PW-3 is the teacher of PW-2 on whose complaint the case is proceeded against the accused herein. In the evidence PW-3 stated that Kakatiya Techno
School is a reputed school at Karimnagar. He stated that for a year the amount of Rs. 30,000/- to Rs. 35,000/- will be spend on each student for their study purpose. The PW-2 stated that she is going in school van.
The evidence of PW-2 and PW-3 shows that the accused is spending huge amount for the education of PW-2. If she is not interested in the welfare of the PW-2 if she want to keep the child in her house as a labour or slave for doing domestic work in the house she would have not provided any education to her otherwise she would have joined the child in any government school. The evidence of PW-2 and PW-3 shows that the accused joined the child in one of the most reputed school at
Karimnagar and she is spending a lot of amount for education of PW-02.
Later on the PW-2 stated the accused is her mother, it itself shows that she never treated the PW-2 as a worker or servant if it is so the PW-2 would have stated her as her mastress. Further, the PW-2 stated in their house her mother and her grand mother are residing who 22 are none other than the mother of accused herein, it indicates that the
PW-2 is brought up in the house just like their own child otherwise she would not call the mother of accused as grand mother, there should be some love and afection among them so that they are calling one another with some relation. It is to be noted that the prosecution alleged that the accused purchased the PW-2 for doing domestic work in the house she is nothing but maid servant in the house. In the cross examination PW-2 stated that the accused engaged one Rathna for doing domestic work. The mother of accused is doing cooking. Later on there is washing machine also in the house for washing clothes, it clearly indicates that the accused has engaged the other person for doing most of the domestic work. Then what is the work left for the PW- 2 to do in the house.
15)It is pertinent to note here that how the accused is treating the child is very important fact to decide whether the accused has committed the ofence or not. In the cross PW-2 stated that in the summer holidays the accused used to take her to Tirupathi,
Vemulawada and to her relatives house and she used to introduce her as her daughter. This evidence is sufficient to say that the accused is not treating the child as a slave or servant. Further, when the child was joined in the school the accused had written her husband name as father name of child, further, in the Aadhar card of child and in the school records of child the surname of accused is mentioned as the surname of child. It is also establishes that the accused treated the child as her own daughter so that she has given her surname and her husband name to the child and in her relatives she used to introduce 23 the child as her daughter. The PW-2 clearly stated that the accused is not having any children except her. Further, the PW-2 stated that when the child line staf members enquired with her she stated that she is ready to go to the house of accused, it itself proves that there is no such harassment from the accused if the accused subjected the child with unbearable harassment, the child will not express her willingness to go to the house of accused even after fling complaint against the accused.
Therefore, this court is of view that there is no such harassment as stated by the prosecution.
Further, the PW-3 stated that generally it is the tendency of the children that whenever they did not attend the homework they used to create some stories and used to tell to their teachers. The PW-3 stated that the PW-2 is not doing homework whenever she asked she used to say she is having domestic work so she is not able to do homework. As already discussed above the accused has engaged the maid servant and her mother is also there to attend the domestic work, there is no question of not getting any time for PW-2 for not doing homework due to domestic work. Moreover, the PW-3 stated he worked in techno school from 2010 to April 2016, the alleged incident occurred on 06-12-2016 it means as on the date of ofence the PW-3 is not working in Kakatiya Techno School, how can the prosecution witnesses that the PW-2 approached the PW-3 in Kakatiya School and informed the matter to him in turn he intimated the matter to child line. Moreover, there are some variations with regard to the information passed to child line with regard to PW-2 and the accused. The PW-3 stated when the
PW-2 approached him and informed the matter immediately he made 24 phone call to child line and they took the custody of child, later on the proceedings the initiated against the accused. The evidence of PW-3 shows as on the date of alleged incident he was not working in the school so there is no question of informing the matter to the child line by the PW-3.
16)The evidence of PW-1 shows the girl by weeping informed the matter to her teachers on that the school teachers informed the matter to the child line. The PW-5 Sai Sruthi stated that they received phone call from the school teacher of Kakatiya Techno School, PW-8 Kavitha
Devi stated that in the report she got it mentioned that PW-2 informed the matter to her friends in turn the friends informed the matter to child line. PW-11 stated that as per the frst paragraph of complaint it mentioned that child line India Foundation, Karimnagar has recorded the call and rescued the said girl from her friends house where she was taking lunch. The evidence of prosecution witnesses are contradictory to one another. The PW-3 and PW-5 stated that the complaint was given in phone to child line by PW-3 but the evidence of PW-8 and PW-11 shows that the child was in the house of friend from there she was rescued. So it also creates a doubt about the case of prosecution.
The prosecution has examined PW-4 who is the chair person of
Child Welfare Committee, as per J.J. Act it is the duty of the Chairperson to conduct enquiry within ffteen days after production of child, after enquiry he has to pass fnal orders. In the instant case, the child was produced on 06-12-2016 but he has not conducted any enquiry and not passed any fnal orders. When the defence counsel has asked a specifc 25 question whether he conducted any enquiry on that he had given answer that he has not conducted any enquiry as the police case is registered. It is to be noted that the child was produced on 06-12-2016 but the PW-1 lodged a complaint on 17-06-2017 it means after six months of the incident the complaint was fled and case is registered.
The PW-4 stated that as the case is registered so he has not conducted enquiry, is not in conformity with the record. When the J.J. Act says within three months he has to pass orders but he had not conducted any enquiry and not passed any fnal orders, it clearly indicates the negligence on the part of the PW-4 and he had not followed the rules of
J.J. Act. Moreover, as per J.J. Act the Chairmen is competent person to lodge a complaint suomoto when it brought to his notice but the PW-4 has not lodged any complaint, whatever it may be when the child is produced before him with a request to provide protection to PW-2, the
PW-4 has not recorded the statement of PW-2. He simply stated that as the statement of PW-2 is enclosed to the requisition of police so that he had not recorded the statement of PW-2. The PW-4 has relied upon the police only, being a Chairmen and responsible person to take care of child, he had not taken any initiation to know the real facts of the case.
Basically, the statement of victim girl is very essential before sending the child to Balasadan when there is allegation of physical abuse. The
PW-4 has not taken any proper steps to record her statement, it appears that he mechanically send the child to rescue home without making any eforts to know the real facts, in fact, it is fatal to the prosecution case.
Further, the PW-5 who is counselor in child line she is also stated that the accused beat their child as the amount was stolen from 26 the house. Further, she stated the accused used to beat the child when she is not doing domestic work. The PW-5 is also not given complaint on the date of incident, she has stated that in case of physical abuse on child she has to give the complaint. As there is no physical abuse so she did not lodge any complaint. It indicates that there is no such beating by the accused person. Moreover, the PW-5 stated that after registering the case the police has not come to her and not recorded her statement, simply they made phone call and enquired about the present matter. When there is no 161 Cr.P.C statement of PW-5 what way the prosecution can rely on her evidence. The evidence of PW-5 also shows that she has not enquired with neighbours and friends of child. She has spoken with PW-3 but she did not record his statement. It clearly shows that when the child was taken into custody by the child line staf members, in order to ascertain the true facts they did not make any enquiry with any body. They relied upon the statement of PW-2 and they proceeded to take steps against the accused and they produced the PW-2 before PW-4.
17)PW-6 Superintendent of Balasadan has stated the child was brought on illegal adoption so that she informed the matter to District
Welfare Officer. But in the cross she stated in the order of C.W.C., there is no mention about illegal adoption but in the case study report it will be mentioned. Further, she admitted that as per Form No. VII she has to prepare individual care plan when the child is produced. She stated that she prepared individual care plan but she did not hand over the same to investigating officer. When the accused is charged for the ofences punishable under sections of J.J. Act, the procedure mentioned under J.J.
27
Act should be followed, therefore, the investigating officer would have collected the individual care plan from PW-6 to know the real facts of the case. It is doubtful whether PW-6 has prepared such individual care plan or not so an adverse inference can be drawn out against the prosecution case.
PW-7 District Child Protection Officer is the crucial witness to connect the accused with the alleged ofence. She stated that District
Welfare Officer instructed to conduct enquiry into the matter but she entrusted this work to PW-8 Kavitha Devi. But in the evidence she states though she entrusted the work to Kavitha Devi she also visited the house of accused along with said Kavitha, police officer and child line staf members to verify whether the child has given correct statement or not. The main purpose of their visit is to know whether the child has given correct statement or not. If it is so, the PW-7 has to explain at the time of enquiry who are the witnesses she examined and who are stated about the illegal activities of the accused person. As per the evidence of PW-7 she has not examined the house owners in which house the accused is residing. Further, the owners are residing in frst foor and accused is residing in the ground foor, the owners are crucial witnesses to say if anything happen in the house of accused. They have not examined house owners, the reasons for not examining are also not mentioned. Further, the neighbours are also not examined, she simply stated when she enquired with neighbours they refused to give statement. She got not mentioned the names of neighbours who are residing adjacent to the house of accused to say that though she tried to record their statement but they refused to give statement. She 28 neither examined house owner, neighbours nor her friends, but she is stating that in the enquiry she came to know that the accused compelling the child to do domestic work and beating her. What is the material produced by PW-7 to show that who informed her about the harassment of accused. Simply they are relying on the statement at frst given by child, they are forgetting point that the child may lie some times to avoid punishments. The child is always not correct. Further, the PW-7 has given evidence before the court, it clearly shows there are so many improvements in her evidence. In the chief she stated that in the enquiry she found there are no photographs of child in the house, there was no celebration of birth day of child, even in the service register of accused it is not mentioned that the child is her daughter. In the cross examination the defence counsel has given a suggestion that in her 161 Cr.P.C statement she never stated that there are no photographs of child and there was no celebration of birth day of child, even in the service register of accused it is not mentioned that the child is her daughter. The witness denied this suggestion and she has taken a stand that she has given such statement before the investigating officer. During the cross examination of PW-11 investigating officer he admitted that the PW-7 never stated before him that the accused has not celebrated the birth day of child and there are no photographs of child in the house and in the service register of accused the child name is not mentioned. It clearly indicates that the PW-7 has improved the case by adding some more points which are not appearing in the prosecution case. Infact they have not verifed service register of accused but they are stating the child name is not entered.
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Further, the PW-7 stated that the mother of accused informed the accused purchased the child from the beggars for an amount of Rs.
11,000/-. The accused has written the same in her own handwriting.
She submitted her report along with the letter of accused to District
Welfare Officer. In the cross examination the defence counsel has given a suggestion that they obtained signatures of accused by force on Ex P- 3 with the help of police officer. She denied this suggestion. Further, the defence has denied the execution of the letter Ex P-4 by the accused person. Ex P-4 is the letter written by the accused. In the cross examination of PW-11 he stated that Ex P-4 letter was not executed in his presence. As per version of PW-7 he along with the police went to the house of accused at that time the accused has executed Ex P-4. The police officer stated that the letter was not executed by the accused in his presence. It is for the prosecution to explain when the accused executed the document Ex P-4 and when it was collected. Moreover, the contents of Ex P-4 appears to be a confession statement, without any corroboration to it this confession statement cannot be taken into consideration. The person cannot be compelled to give evidence against her in fact it is violating of Article 21 of Indian Constitution. The prosecution has not explained under what circumstances they obtained this document Ex P-4.
Further, PW-7 stated she is also went to the spot along with
Kavitha and police officials and other child line staf members. In the statement of PW-8 she stated that they found the clothes of PW-2 in one cotton box and she is sleeping on the foor. When the amount was stolen from the house the accused suspected the PW-2 and harassed 30 her and beat her. In the 161 Cr.P.C statement of PW-8 she got not mentioned that the clothes were kept in cotton box and she is sleeping on the foor, even in her report she got not stated the same, the PW-11 also admitted in 161 Cr.P.C statement that PW-8 has not stated the same. It clearly indicates that there are improvements in the evidence of PW-8, her evidence is not clear how she came to know that the clothes of PW-2 kept in cotton box and she is sleeping on the foor when the accused was sleeping on the cot. In fact in a case study report or statement of pw2 she has not spoken the same. As per her own statement she has not enquired with the owners, neighbours, the friends of PW-2. The statement of mother of accused also not recorded how they came to know that the accused did the said activities.
Further, it is to be noted that when the PW-8 went to the spot the child was in Balasadan so there is no question of informing the above said facts to PW-8 by the PW-2 at the spot. The evidence of PW-7 and PW-8 shows that they are improving the case for the reasons known to them.
It appears that as rightly contended by the defence counsel as the matter was published in the news paper and it has became sensational and the District Collector ordered to conduct enquiry, the child line staf members intended to highlight the matter instead of enquiring into the real facts of the case. The PW-8 admitted that whatever the report prepared by her is not in accordance with Form No. XXII. She stated she handed over her report to D.C.P.O. Ex P-5 is the report prepared by PW-
8. The careful scrutiny of this document shows that she prepared case study report, in column No.20 she mentioned that the accused purchased the child for Rs. 11,000/-, she kept the child in her house from the last fve to six years. The mother of accused is also residing in 31 the house. The accused is transferred to Adilabad so in the week ends she is coming to Karimnagar. The PW-2 and mother of accused is residing in the house. The PW-2 is not sent to school as she has to give accompany to the mother of accused. They are asking the child to do work in the house and harassing her both physically and mentally. The accused suspected that the PW-2 had taken the amount and beat her.
So she went to her friends house. Her friend made phone call to 1098 call so she was joined in the Balasadan. The case study reports shows that she had not made any personal enquiry and what ever the PW-2 stated it has been written atleast there is no whisper with whom they enquired and how they came into the conclusion that the accused committed the ofence. The PW-8 stated that the statement of mother of accused got written in her diary but she has not mentioned the same in her social investigation report, if she would have recorded her statement defnitely she would have submitted the same along with her report. Therefore, the evidence of PW-7 and PW-8 are not convincing to connect the accused with the alleged ofences.
PW-9 Satyanarayana issued birth certifcate and his evidence shows in the school records the husband name of accused is mentioned as father of PW-2, thereafter the evidence of PW-10 shows the conduct of scene of ofence panchanama. The evidence of PW-9 and PW-10 are no way connected with the ofences for which the accused charged.
PW-11 T. Mahesh is the investigating officer, he stated on the date of ofence i.e., on 06-12-2016 the child was produced before his predecessor so he does not know the facts what was happened on that 32 day. He admitted that the F.I.R., was not issued on that day, as per J.J.
Act whenever the ofence is against the child the investigating officer can suo-moto register the case, in the instant case the child was produced before police officer and the requisition was given to PW-4 to send the child to Balasadan but the police officer has not registered the case. Further, as per the evidence of PW-11 the child welfare police officer is there, as per section 54 (4) of J.J. Act the investigation must be done by child welfare police officer. The PW-11 is not child welfare police officer, they violated the rules of J.J. Act. They have not taken any steps to record 164 Cr.P.C statement of witness. The evidence of PW-11 shows he did not make any efort to record the statement of neighbours, owner or friends of PW-2, there is no material on what basis they come to conclusion that the accused has committed the ofence except the statement of PW-2.
18)In the light of above discussion this court is of view that for lodging complaint against the accused, the prosecution has relied upon the statement of PW-2, in fact, the cross examination of PW-2 itself shows that the accused has grown up the child as her daughter as she is not blessed with child. It is also proved that the accused did not keep the child as a servant or slave, she spend huge amount for the education of child and providing her education in the most reputed school in Karimnagar. The accused engaged maid servant to do domestic work in the house, the PW-2 admitted the same. Further, the mother of accused is attending cooking work, the accused had taken proper care by engaging the persons for doing domestic work so there is no question of compelling the PW-2 to do domestic work. It appears 33 that the PW-2 studied upto 7th class no where she complained about the accused but when the money was stolen from the house the accused threatened her then she started to make allegations against the accused. If the accused is having such cruel mentality and harassing the PW-2 she would not say that she will go to the house of accused. It clearly indicates that the accused has brought up the child with care and afection. There is no such harassment.
In fact, the neighbours, owner and school friends of PW-2 are crucial witnesses to say whether the PW-2 has given correct statement or not. Neither the child welfare staf members nor the police officer had taken proper care to examine any of the independent witnesses.
They are relying on Ex P-4 and stating that the accused has purchased the child thereby committed the ofence. The defence denied the execution of document Ex P-4, the police officer also stated in his presence Ex P-4 was not executed, the PW-7 and PW-8 has to explain where the document was executed and when it was handed over.
Therefore, this court is of view that Section 370 and Section 374 of IPC is not applicable. The prosecution failed to prove that the accused received, harbours the PW-2 for trafficking the minor. Further, she unlawfully compelled the PW-2 to labour against her will. The defence is able to establish that the accused adopted the PW-2 and she brought up her as her adopted daughter. Therefore, the prosecution failed to prove the ofence under section 370 and 374 of IPC.
19)As regards the ofence under section 75 of J.J. Act provides that the person who is in actual charge or control over a child assaults, 34 abuses, willfully neglects the child they are punishable under this section. As already discussed above the prosecution failed to prove the accused subjected the PW-2 to cruelty. The prosecution has not placed such material to convince the court that the accused harassed the PW-2 so the ofence under section 75 of the J.J. Act is not proved.
20)As regards ofence under section 80 of the J.J. Act, if any person gives or receives any orphan, abandoned or surrendered child for the purpose of adoption without following the provisions they are liable for punishment upto three years or with fne of Rs. 1,00,000/- or with both. Admittedly, the accused brought up the child, she bring the child to her house as adopted daughter. Though the prosecution stated she purchased the PW-2 but the natural parents of child was not traced out and their statements are not recorded so there is no evidence to show that the accused paid the amount and purchased the PW-2 but the prosecution is able to prove that the child is not born to accused, she is residing in the house of accused, the accused claims her to be her daughter in otherwise adopted daughter. There is no document to show she adopted the child. There are no ceremonies as mentioned under
Hindu Guardian and Wards Act to show that she was adopted from natural parents. It clearly shows that keeping the unknown child in the house without adoption procedure, is nothing but receiving the children for the purpose of adoption without following the procedure and provisions of this act. Therefore, the accused has violated the provision under section 80 of J.J. Act. Though she may not having any menseria to cause any wrongful loss to the child or to misuse the child but when she is taking the child, as a government employee she would have 35 informed the matter to concerned authorities and she would have taken the child by following the procedure. The ignorance of law is not excusable though she may not having any ill intention but the violation of procedure is clearly established.
Section 81 of the Act says that any person who sells or buys any child for any purpose shall be punishable with R.I. for fve years and also liable to pay fne of Rs. 1,00,000/-. In the instant case the prosecution failed to prove that the accused purchased the child. It appears that when she found the orphan on the road she brought up the child to her house and grown up her, therefore, there is no ofence under section 81 of J.J. Act.
21)The above discussion clearly shows that the prosecution failed to prove the ofence under section 370, 374 IPC, Section 75 and Section 81 of J.J. Act. But, the prosecution is able to prove the ofence under section 80 of J.J. Act.
Typed to my dictation by Shorthand writer on computer, corrected and pronounced by me in the Open Court on this the 20th day of August, 2018.
ADDL. ASST. SESSIONS JUDGE
KARIMNAGAR.
22)The accused is appraised of the law for which she is convicted, she questioned about the quantum of sentence. Accused stated she has not committed ofence, she is aged about 52 years and she is a cancer patient and she has given shelter to the child on humanitarian 36 grounds and requested the court to take lenient view. From the facts and circumstances of the case accused, this court feels that the ends of justice will meet if the accused is sentenced to pay fne of Rs. 20,000/- in default S.I for (6) months. Further I am not inclined to apply the provision of P.O. Act
23)In the result, the accused was not found guilty for the ofence under section 370, 374 IPC, Section 75 and Section 81 of J.J. Act and she is acquitted for the said ofences under section 235 (1) Cr.P.C and she is found guilty for the ofence under section 80 of the J.J. Act and convicted under section 235 (2) of Cr.P.C, the accused is sentenced to pay a fne of
Rs. 20,000/- in default S.I for (6) months.
Typed to my dictation by Shorthand writer on computer, corrected and pronounced by me in the Open Court on this the 20th day of August, 2018.
ADDL. ASST. SESSIONS JUDGE,
KARIMNAGAR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION: FOR DEFENCE:
Pw.1: M. Sharada-NONE- Pw.2: G. Arunima Pw.3: N. Sathish Pw.4: G. Komuraiah Pw.5: Sai Sruthi Pw.6: N. Sathoshi Pw.7: Durdana Parveen Pw.8: Kavitha Devi Pw.9: Satyanarayana Pw.10: Umesh Pw.11: T. Mahesh
::EXHIBITS MARKED::
FOR PROSECUTION:
Ex.P1Complaint Ex.P2Order of restoration of child to Balasadan, dated 06- 12-2016 Ex.P3Letter addressed by Superintendent to D.W.O.
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Ex.P4Letter written by the accused Ex.P5Case study report prepared by PW-8 Ex.P6Birth certifcate of PW-2 issued by PW-9 Ex.P7Crime detail form Ex.P8First information report Ex.P9Letter of PW-2 Ex.P10Letter issued by Co-ordinator of child line Ex.P11Letter issued by Chairperson, Child Welfare Committee, dated 06-12-2016
FOR DEFENCE: - ---NIL---
Material Objects MARKED:
---NIL---
ADDL. ASST. SESSIONS JUDGE,
KARIMNAGAR.