Sreedharan and Others vs The State

T.K. Joseph, J.—The criminal appeal has been preferred by accused 1 to 9 in Sessions Case No. 64 of 1958 of the Sessions Court of Trivandrum. Accused 1 to 9 were convicted under S. 341, Indian Penal Code, and sentenced to pay a fine of Rs. 50/-each and in default to undergo simple imprisonment for three weeks. Accused 1 to 6 were convicted under S. 323 also and they were sentenced to pay a fine of Rs. 50/- for the said offence and in default to undergo simple imprisonment for three weeks. The prosecution case may be briefly stated: Accused 2, 4 and 7 were former employees of K.M.K.S. Motor Service belonging to P.W. 12. P.W. 10 is the younger brother of P.W. 12 and he is a partner of Kamala Corporation having its office at Trivandrum. P.W. 10 had sent a lorry KLT 1308 to the workshop of P.W. 12 at Attingal for replacing the engine with a diesel engine. The work was duly completed and P.W. 10 sent P.Ws. 1, 2 and 4 to take the lorry back to Trivandrum. At that time, there was a strike in the workshop of P.W. 12. P.W. 1 took delivery of the lorry at about 11-30 A. M. on 12-9-1957 and along with P.Ws. 2 and 4 he took the lorry to Trivandrum. By about 1 P.M., the lorry had reached a place near Panagappara bridge about 21/2 miles east of the police station at Kazhakkootam. At that stage, accused 1 to 8 who were following the lorry in a taxi car driven by the 9th accused, overtook the lorry and stopped the car in such a manner that the lorry could not proceed further. Accused 1 to 8 then got out of the car and they forced P.Ws. 1, 2 and 4 to get down from the lorry. The first accused then beat P.W. 1 on his cheek and the second accused fisted him on his chest and other parts of the body. The third accused beat and kicked P.W. 4 on his nose, and the fourth accused kicked him on his navel. The fifth accused kicked P.W. 2 and the sixth accused beat him on his check. Accused 7 and 8 threatened P.Ws. 1, 2 and 4 with drawn knives. Then they forced P.Ws. 1, 2 and 4 to get into the lorry which was taken back to Attingal and stopped in front of the office of the Communist party there. P.Ws. 1, 2 and 4 were forcibly taken inside the office room which was then locked. They were released only the next day at 10 A.M. There were two tins in the lorry containing eight gallons of petrol sent from K.M.K.S. office to be delivered to P.W. 12 at Trivandrum. The accused removed these also from the lorry. The lorry was taken back to the K.M.K.S. workshop at Attingal, by the accused after P.Ws. 1, 2 and 4 were placed inside the room. After their release at 10 A. M. on 13--9--1957, they proceeded to Trivandrum and informed P.W. 10 as to what had transpired. As directed by P.W. 10, P.W. 1 went to the police station at Kazhakkoottam and gave the first information statement (Ext. P1). The police also prepared a mahazar (Ext. P2) regarding the bodily condition of P.W. 1. P.W. 13, the Sub Inspector of Police, registered a case. Ext. P8 is the first information report regarding the occurrence. P.W. 1 was then sent to Andoor-konam hospital. The next day at about 10 A. M., P.W. 13 prepared a scene mahazar (Ext. P. 3). On his requisition, the Attingal Police took the lorry into custody. The car in which accused 1 to 9 followed the lorry was also seized. The office of the Communist party as well as the house of the first accused were searched for recovering the petrol but the same was not found. After investigation was completed, the accused were duly charged before the City Second Class Magistrate, Trivandrum, who committed the accused to stand their trial before the Court of Sessions. Charges were framed by the learned Sessions Judge against all the accused for offences under Ss. 143, 149, 341, 395, 323 and 34 of the Indian Penal Code. The accused pleaded not guilty, but the learned Judge found that the accused obstructed the lorry near Panagappara bridge and restrained P.Ws. 1, 2 and 4 from proceeding to Trivandrum, that accused t and 2 assaulted P.W. 1, that accused 3 and 4 assaulted P.W. 4, and that accused 5 and 6 assaulted P.W. 2. It was also found that P.Ws. 1, 2 and 4 were wrongly restrained and detained by the accused. They were all accordingly convicted under S. 341 and accused 1 to 6 under S. 323 alsO.P.W. 10 has preferred a criminal revision petition against the judgment of the court below, contending that the accused should have been convicted on the other charges as well, and that proper sentence should have been awarded.

The fact, that the lorry had been sent by P.W. 10 to the workshop of P.W. 12 at Attingal for replacing the engine, was not disputed. This is proved by the testimony of P.Ws. 1, 2, 4 and 10. It is also proved that P.W. 10 had sent a driver (P.W. 1) and two other employees (P.Ws. 2 & 4) to bring the lorry back from Attingal, that they left the workshop, with the lorry, at about 11-30 A. M. and that they were taking the lorry to Trivandrum. It is also in evidence that there was a strike in the workshop of P.W. 12 at that time.

Before considering the case against accused 1 to 8, I may observe that the conviction of the ninth accused u/s 341 cannot stand. He is the driver of the taxi car in which accused 1 to 8 proceeded to obstruct the lorry. Except the fact that he drove the taxi-car which was engaged by accused 1 to 8 and stopped it when they asked him to stop, there is no evidence that he committed any other act. He did not take part in the alleged acts of assault or wrongful restraint or wrongful confinement. Even his name was not correctly given in the first information statement, another person being named as the driver of the car. He had nothing to do with the workers who were on strike at the workshop of P.W. 12. In the circumstances, he ought not to have been convicted u/s 341 and the conviction must be quashed.

The evidence relating to the conviction of accused 1 to 6 u/s 323 may now be considered. P.W. 1 deposed that he took delivery of the lorry and was driving it to Trivandrum on 12--9--1957 and that P.Ws. 2 and 4 were also with him in the lorry. They reached Panagappara bridge at about 1 P. M. when the accused who were coming in a car overtook them and obstructed them from proceeding further by placing the car in front of the lorry. Accused 1 to 8 then jumped out of the car and pulled P.Ws. 1, 2 and 4 from the lorry to the road. The first accused then beat him on his cheek and the second accused fisted him on his chest and other parts of the body." The third accused beat P.W. 4 and also kicked him. Accused 4 and 5 beat, fisted and kicked P.W. 2. Accused 7 and 8 were threatening P.Ws. 1, 2 and 4 with drawn knives. They were all then asked to get into the lorry and the sixth accused drove it back to Attingal where it stopped before the office of the Communist party at about 3 P.M. The accused then confined them inside the office room and they were released only the next day at 10 A. M. There were two tins of petrol in the lorry which was taken by the accused inside the Communist party office. P.Ws. 2 and 4 corroborate P.W. 1 except in respect of the assault. While P.W. 1 would say that accused 4 and 5 assaulted P.W. 2, P.Ws. 2 and 4 swear in terms of the prosecution case that accused 5 and 6 were the persons who assaulted P.W. 2. They also say that accused 3 and 4 beat and kicked P.W. 4 and in this respect they differ from P.W. 1 who says that it was the third accused who beat and kicked P.W. 4. P.Ws. 5 and 6 are persons residing near the place where the lorry was stopped and P.Ws. 1, 2 and 4 assaulted. Both of them swear that they saw the car stopping in front of the lorry and P.Ws. 1, 2 and 4 being pulled out and assaulted by the people who came in the car. They also say that the lorry was then taken back.

Various grounds were urged for disbelieving the prosecution on this point. It was stated that there was delay in making the complaint. It is argued that even if the prosecution case of wrongful confinement is true, P.Ws. 1, 2 and 4 could have launched the complaint with the Attingal police as soon as they were released and that it was only in the evening of that day that they complained to the police at Kazhakkoottam. P.W. 1 has stated that they were afraid to remain at Attingal for the purpose of preferring a complaint. It was pointed out that no marks of injury were noted on P.W. 1''s body. The prosecution case is that P.W. 4 was hit on his nose causing bleeding and that there was blood on his cloth. However P.W. 4 was not sent to the police station or for medical observation. It was further pointed out that, according to P.Ws. 2, 4 and 10, the Sub-Inspector (P.W. 13) proceeded to Trivandrum the same evening to contact P.Ws. 2, 4 and 10 and that inspite of this, no attempt was made to note the injury alleged to have been sustained by P.W. 4 or to make a note of blood stains in the cloth. Another point stressed by the appellants was that all the accused were previously unknown to P.Ws. 1 and 4 and that much weight cannot be attached to their testimony regarding the identity of the accused who committed the several acts of assault. P.W. 1 stated that the accused, or at any rate one or two of them, were known to P.W. 2 previously, while P.W. 2 stated that all of them were known to him and that he supplied the names of the accused. The failure to conduct an identification parade is also urged as one of the reasons for disbelieving the prosecution case. There was a mistake regarding the name of the ninth accused as referred to earlier. The question is whether the prosecution evidence is to be discarded for the reasons urged by the defence.

Much of this criticism is well-founded. Even if the delay in preferring the complaint can be explained, there is no satisfactory explanation for not producing P.W. 4 before the police. He is the one who is stated to have sustained an injury which caused bleeding from the nose, and it is also alleged that there were blood stains on his cloth. No attempt was made to make a note of this fact. P.W. 4 was not sent to the hospital for observation. Reference has already been made to the discrepancy in the evidence of P.W. 1 on the one hand and P.Ws. 2 and 4 on the other, regarding the acts committed by such of the accused. It may also be observed that P.W. 4 stated that accused 7 and 8 also beat P.Ws. 1, 2 and 4. The prosecution had no case that they did any such act. It is clear from the evidence that most of the accused were not previously known to P.Ws. 1 and 4. P.Ws. 5 and 6 were also not able to say as to what all acts were committed by each accused. In these circumstances, I do not consider it safe to confirm the conviction of accused 1 to 6 u/s 323.

The next question is whether the conviction u/s 341, Indian Penal Code, is proper. The learned Judge, believed the prosecution case that P.Ws. 1, 2 and 4 were restrained by accused 1 to 8 from proceeding to Trivandrum with the lorry and that they were taken back and confined in a room of the office of the Communist party, and he convicted them u/s 341. So far as this part of the case is concerned, there is no difficulty in accepting the prosecution case. There is satisfactory evidence that P.W. 10 had sent P.Ws. 1, 2 and 4 to bring the lorry from Attingal, that they proceeded with the lorry and were stopped by the accused near Panagappara bridge. P.Ws. 5 and 6 support P.Ws. 1, 2 and 4 on the last part of the occurrence, namely, preventing them from, proceeding further and taking them back in the lorry. It is also seen that P.Ws. 1, 2 and 4 were taken back to Attingal in the lorry and confined in a room till 10 A. M. the next day. P.Ws. 7 and 8 saw the lorry being brought back to Attingal at about 3 P. M., on 12--9--1957, stopped in front of the office of the Communist Party and the three persons being taken into the room. Their evidence has been believed by the learned Judge and I do not see any reason to differ. P.Ws. 1, 2 and 4 swear that they were allowed to go only the next day at 10 A. M. The fact that the lorry was later seized from Attingal, shows that this part of the prosecution case must be true. The learned Judge also came to the conclusion that P.Ws. 1, 2 and 4 were brought back to Attingal and detained in the office of the Communist Party there. There is satisfactory evidence to support this conclusion and I accept the same. The question arises whether this amounts to an offence u/s 341 or Section 342, I.P.C. Section 341 prescribes the punishment for wrongful restraint. Such wrongful restraint was committed when P.Ws. 1, 2 and 4 were obstructed from proceeding to Trivandrum. Here the finding goes further that they were also wrongfully confined and prevented from proceeding beyond certain circumscribing limit. Section 342 provides the punishment for wrongful confinement. One of the points taken by the petitioner in Criminal R.P. No. 402 of 1958 is that the accused should have been convicted u/s 342. I am of opinion that the conviction should have been u/s 342. Though Section 342 provides for heavier sentence than Section 341, I do not propose to modify the sentence. Therefore while altering the conviction from Section 341 to 342, I maintain the sentence passed by the court below.

Another point raised in the criminal revision petition must now be considered. The prosecution case was that the accused committed theft of the lorry and two tins of petrol. As observed by the learned Judge, the evidence regarding the theft of petrol is not satisfactory; the learned Judge held that, although the accused took back the lorry to Attingal, the offence of theft was not made out as they had no intention to cause wrongful gain to themselves or wrongful loss to another. I am unable to accept this conclusion. By the act of removal of the lorry, the accused temporarily deprived the owner of legitimate use of the lorry and this was done to gain a temporary advantage for themselves in view of the strike in the workshop of P.W. 12. As pointed out by the Supreme Court in K.N. Mehra Vs. The State of Rajasthan, , the loss contemplated need not be a total deprivation but it is enough if it is a temporary keeping out of the property from the person legally entitled. The accused should therefore have been convicted u/s 378, I.P.C. Even though the matter has been brought to the notice of this Court by way of a revision by a private party, it is proper for this Court to interfere. The charge, no doubt, was u/s 395, but as the evidence does not warrant a conviction under that Section, the lesser offence u/s 378 is clearly made out. Accordingly I set aside the acquittal u/s 378 and convict accused 1 to 8 u/s 378, I.P.C. also.

There appears to be an impression in certain quarters that the existence of a labour dispute justifies the parties thereto in taking the law into their own hands and committing offences under the Penal Code and that they are entitled to an acquittal when the dispute is settled. The Indian Penal Code does not recognise such an exception and the sooner this wrong impression is cleared, the better. I make this observation because the learned Judge has observed that the lorry was taken back by the accused "to effectuate their object of boycotting the work in the K.M.K.S. Motors".

It follows that the judgment of the court below requires modification in the following respects:

(i) The conviction of the ninth accused u/s 341, I.P.C. is quashed and the fine, if recovered, will be refunded to him.

(ii) The conviction of accused 1 to 6 u/s 323, I.P.C. is quashed and they are acquitted of the charge under that Section.

(iii) The acquittal of accused 1 to 8 of the offence u/s 378, I.P.C. is set aside and they are convicted under that Section. Accused 1 to 8 are each fined Rs. 50/-, in default of payment of which they will undergo simple imprisonment for three weeks.

(iv) The conviction of accused 1 to 8 u/s 341, I.P.C. is set aside and they are convicted u/s 342, I.P.C. and sentenced to pay a fine of Rs. 50/- each, in default of which they will undergo simple imprisonment for three weeks.

The appeal and the criminal revision petition are allowed to the extent indicated above and are dismissed in other respects.