Himachal Pradesh High Court
Jaswant Rai And Ors. vs State Of H.P. on 15 September, 1999
Equivalent citations: 2000CRILJ1970
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This Revision Petition is directed against the judgment dated 22-1-1998 passed by the learned Additional Sessions Judge, Sirmaur at Nahan whereby the conviction of and sentence awarded to the petitioners by the learned Judicial Magistrate 1st Class (2), Paonta Sahib under Section 332 read with Section 34 of the Indian Penal Code was maintained.
2. Brief facts leading to the presentation of the present petition may be summarised as follows;
3. The accused along with so many other persons are the employees of Cement Corporation of India Ltd. Rajban which is a Government of India Enterprise. In the year 1986 there was a strike by the contract labourers in the said Corporation in which Atma Ram and Baldev Singh were suspended. When the strike was called off they were reinstated. On 27-10-1986 Atma Ram and S.K. Minhas were suspended for disobedience. On 29-10-1986 the petitioners and their co-accused formed an unlawful assembly at about 9 a.m. Accused Atma Ram blew siren of the Factory of the Corporation and thereafter the accused including the petitioners started raising slogans against the Management. PW-4 Tarsem Lal sent PW-6 N.C. Patial to inquire about the blowing of the siren. In the meanwhile, the accused entered the office of PW-4 Tarsem Lal and started beating him. The accused also damaged the furniture lying in his office. He was dragged out of the office in the presence of PW-12 K.V. Karup. The accused further caused simple hurts to PW-1 G.S. Anand, PW-4 Tarsem Lal, PW-6 N. C. Patial, PW-7 R.J. Pillay, PW-12 K.V. Karup, A.K. Srivastwa, G.S. Husain, B.P. Gupta and D.P. Gupta while they Were discharging their official duties. The matter was reported to the police by PW-4 Tarsem Lal vide complaint Ex. PW-4/A whereupon F.I.R. Ex. PW-11/A came into being at police station Paonta Sahib. The injured were medically examined by PW-8 G. P. Devadi who issued the M.L. Cs Exts. PW-8/A to E. On completion of the investigation the Investigating Agency presented a charge-sheet under Sections 147, 149, 353, 332, 427; 452, 504 and 506, I.P.C. against Atma Ram, Suresh Kumar, Puran Chand, Girdhari Lal, Raja Ram and the petitioners in the Court of concerned Judicial Magistrate. The accused were charge-sheeted for the commission of offences punishable under Sections 147, 332 read with Section 149, 427 read with Sections 149 and 506 read with Section 149 of the Indian Penal Code to which they pleaded not guilty. To prove the charge against the accused the prosecution examined as many as 14 witnesses.
4. The accused in their statements under Section 313, Cr.P.C. denied the prosecution case as a whole and claimed that they are the office bearers and Executive Members of the CCI Employees Union Rajban. On 28-10-1986 the Chairman of the C.C.I visited Rajban and the Union representatives handed-over a memorandum to him alleging misappropriation of about Rs. 6 crores by the Management and due to this enmity they have been falsely involved in the case. The accused led defence and examined DW-1 Gita Ram and DW-2 Gulab Singh.
5. The learned trial Magistrate found the accused Atma Ram and the accused-petitioners guilty of the commission of the offence punishable under Section 332 of the I.P.C. and accordingly convicted and sentenced them to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for two months each.
6. Feeling aggrieved the accused-petitioners and Atma Ram accused preferred an appeal against the conviction and sentence awarded to them which came to be heard by the learned Additional Sessions Judge, Sirmaur at Nahan who vide the impugned judgment modified the order passed by the learned trial Magistrate and convicted the accused under Sections 332 read with Section 34 of the I.P.C. and sentenced them to imprisonment till the rising of the Court and to pay fine in the sum of Rs. 500/- each failing which they were to suffer simple imprisonment for three months.
7. Feeling aggrieved by the impugned judgment passed by the learned Additional Sessions Judge, the accused-petitioners have preferred the present Revision Petition.
8. I have heard the learned counsel for the petitioners/accused and the learned Additional Advocate General for the respondent-State and have also gone through the records.
9. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation this Court has to necessarily examine the matter keeping in view the well-settled proposition of law that though the revisional powers of this Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Courts are not to be disturbed.
10. When examined in the light of the above proposition of law, the findings of facts recorded by the Courts below call for no interference by this Court for the reason assigned hereafter.
11. It was contended by the learned counsel for the accused that two of the most material prosecution witnesses, namely, PW-3 B.P. Gupta and PW-5 D. P. Gupta have not supported the prosecution case, the other material witnesses have contradicted each other on material aspects of the case, therefore, there is no trust-worthy and reliable evidence on the record to sustain the impugned order of conviction and sentence.
12. On the other hand, the learned Additional Advocate General, while adopting the reasoning of the Courts below, has argued that there is ample evidence on the record connecting the accused with the commission of the offence for which they have been convicted and sentenced.
13. The most material witnesses examined in the case are those who have given the eye-account of different offending acts of the accused persons and the doctor who medically examined those who sustained injuries due to the dragging and beating by the accused persons. Such witnesses are PW-1 G.S. Anand, PW-4 Tarsem Lal, PW-6 N.C. Patial, PW-7, R. J. Pillay, PW-12 K.V. Karup, PW-13 A.K. Srivastava and PW-8 Dr. G.P. Devadi. According to the prosecution, PW-3 B.P. Gupta and PW-4 D.P. Gupta are also eye-witnesses of the occurrence but they have not supported the prosecution case on all material particulars.
14. PW-1 G.S. Anand in his statement has in detail stated about the blowing of siren by accused Atma Ram, thereafter arrival of the accused persons and others and raising of slogans and shouting of abuses against the management, then invading of the ground floor of the administration block, going to the office room of S.M. Shrivastava, surrounding of this witness and then beating and pushing him, thereafter entering the office room of PW-4 Tarsem Lal and beating up other officers. PW-4 Tarsem Lal has stated about his making inquiries about the blowing of the siren from N.C. Patyal, coming to know that Atma Ram had blown the siren forcibly, and that the accused had closed the plant and raising of the slogans, arrival of the accused headed by Atma Ram. his challenging the action of the witness in charge-sheeting him, and then beating of the witness by the accused persons and others and scattering of papers and breaking of articles in his room by the accused and others. He has further stated about pushing of PW-12 K.V. Karup by accused Atma Ram and Yashwant Rai, then leaving the room and other six persons continuing to abuse this witness and finally dragging him out of the room. When the witness saw that accused Atma Ram, Baldev Singh and Jaswant were manhandling and abusing PW-12 K.V. Karup, the witness tried to go there but he was stopped by other accused and accused Narain Singh pushed him down resulting in spraining the foot of the witness. Then he went towards Finance Hall where he found the articles and panes broken and was informed by PW-7 R.J. Pille that the accused has thrown here and there the furniture, telephone and wireless set causing damage to the tune of Rs. 5000/6000/-. He had reported the matter to the police vide Ext. PW-4/A and had identified the wireless receiver Ext. P-1 and broken panes Ext. P-2 and the memo regarding taking in possession these articles Ext. PW-4/B.
15. PW-6 N.C. Patyal has stated that he telephonically called S.K. Minhas accused on the date of occurrence to his office room at about 8.30 a.m. On arrival of S.K. Minhas, he delivered to him his suspension order. At about 10.00 a.m. when union workers were trying to enter the gate, he stopped them which ultimately resulted in his beating by accused Atma Ram, Jaswant and other accused and thereafter the accused and others indulged in pushing D.P. Gupta, V.P. Gupta and D.N. Bhagat and in breaking and damaging the panes and office articles.
16. PW-7 R. J. Pille has stated that Atma Ram, Baldev, Minhas and other accused entered his office, pulled him out of his office, after giving him a chain blow and also tried to throw his table upon him and scattered his papers helter-skelter. PW-12 K.V. Karup while corroborating that part of the version of PW-4 Tarsem Lal which was witnessed by him including the assault on him at the time of the happenings in the office of PW-4 Tarsem Lal, has further stated' that thereafter when he was pushed by the accused out of the office of PW-4 Tarsem Lal, he rushed to his office room and bolted it from inside. After some time there was heavy knocking at the door and he opened it. He was immediately held by accused Atma Ram, Baldev Singh and Jaswant Rai and was forcibly taken down the stairs when he was assaulted by accused S.K. Minhas, Baldev Singh and Narain Singh accused. Then he managed to escape and that damage was also caused to the office equipments, furniture and window panes. PW-13 A.K. Shrivastava has corroborated the statement of PW-4 Tarsem Lal and PW-12 K.V. Karup about their manhandling by the accused in his presence when he had gone to the office of PW-4 Tarsem Lal, but had to return to his office due to the happenings in the room of PW-4 Tarsem Lal as he could not do anything in such a situation. He has further stated that at about 10-15 accused Jaswant Rai, Baldev Singh, Narain Singh etc. came to the workshop and then he was slapped by accused Jaswant Rai.
17. All the injured, namely, PW-1 G.S. Anand, PW-4 Tarsem Lal, PW-13 A.K. Shrivastava, PW-12 K.V. Karup, PW-7 R.J. Pille were medically examined by PW-8 G.P. Devedi M.O. Civil Hospital, Paonta Sahib on the date of occurrence between 5.15 to 5.55 p.m. Their Medicolegal Certificates are respectively Exts. PW-8/A, PW-8/B, PW-8/C, PW-8/D and PW-8/E. It is evident from the statement of PW-8 G.P. Devedi read with Medicolegal Certificates Exts. PW-8/A to Ext. PW-8/E that all the aforesaid P.Ws. had injuries on their persons which were possible by beating and their duration was 10 to 12 hours at the time of medical examination.
18. Thus the aforesaid eye-witnesses have corroborated the statements of each other on those facts which were witnessed by each of them and their version about sustaining of the injuries by them due to beatings is further corroborated by medical evidence.
19. There are, no doubt, minor contradications in their statements. However, the incident as a whole has not been witnessed by any one of the witnesses. Each of them has seen it partially as the beating of witnesses took place at different time and at different places. It can safely be assumed that when there is slogan shouting and a good number of persons is in mob frenzy and indulging in acts of violence, the fear and terror which may be caused in such a situation, will effect the power of perception of those under fear. A person under fear in such situation will look for personal safety instead of watching the occurrence attentively. The situation thus in itself is bound to lead to minor contradiction and discrepancies in the statement of such persons due to lack of normal perception and also due to errors of perceptions and observation. Secondly, with the passage of time lapse of memory can also be a factor leading to petty contradictions and discrepancies in the statements of witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason far contradictions and discrepancies in the statements of witnesses. Therefore, while appreciating evidence the Courts are not to attach undue importance to minor discrepancies in the version given by the witnesses and not to disbelieve such statements on the basis of the minor discrepancies and exaggerations in their entirety unless they go to the root of the cause. Court, thus, may ignore exaggerated part of the testimony and act upon the parts which may be otherwise reliable and trust-worthy.
20. The above view is fully supportable in view of the judgment of the Hon'ble Supreme Court in Case Bharwada Bhoginbhai Hirjibhai v. Sate of Gujarat AIR 1983 SC 753 : (1983 Cri LJ 1096) wherein it was hled (at page 1099; of Cri LJ) :
A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities - factor" achoes in favour of the version narrated by the witnesses.
21. The Apex Court in Appabhai v. State of Gujarat AIR 1988 SC 696 : (1988 Cri LJ 848), took a similar view and held as under (at pages 851-852; of Cri LJ) :
13. ... It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
22. When examined in view of the above proposition of law and the fact that the witnesses were examined much after the occurrence, the aforesaid statements cannot be ignored as a whole but are reliable in as much as they relate to the causing of simple injuries to the injured by the accused persons and the motive in causing such injuries.
23. The above conclusion is further strengthened by the fact that it is not disputed by the accused that accused Atma Ram and S.K. Minhas were suspended for misbehaviour on October 27, 1986. There are positive suggestions to PW-3 about the entry of the accused in the office of PW-4 Tarsem Lal, that none came to save him from the accused in the office and that on the date of occurrence 250-300 workers were shouting slogans inside the factory. By putting such suggestions the accused have admitted the slogan shouting and their presence on the scene of occurrence. It is also not disputed that the accused were office-bearers of the union of workers two of them, namely, Atma Ram and S.K. Minhas were placed under suspension on October 27, 1986 and suspension order was served on S.K. Minhas on the morning of October 29, 1986, the date of occurrence. It makes the allegation quite probable that these suspended accused acted in retaliation by taking advantage of being the office-bearers of the union of the workers.
24. In view of the above discussed evidence, the non-supporting of the prosecution version by PW-3 B.P. Gupta and PW-5 D.P. Gupta pales into insignificance. It is more so when PW-3 B.P. Gupta has supported the prosecution version on some of its material aspects. He has admitted the closure of the plant by the workers. He admits about the information received by him about the manhandling of some officers by the workers. He has further stated that he was also pushed by certain persons. He has further admitted that the accused were threatening all the officers. He admits having seen injuries on the person of Manager Finance and Karup and the damaged articles in the office of Accounts Manager. Even PW-5 D.P. Gupta has admitted that when he was present in his office accused Raja Ram, Baldev and Jaswant Rai followed by others came there and assaulted (Dhakka Mukka) him. He has further admitted that the accused obstructed him in the discharge of his official duties and beat him up. Thus, it cannot be said that these two witnesses have not supported the case of the prosecution at all. On the contrary, their admissions as stated hereinabove, lend support to the prosecution version on some of the material particulars.
25. Be it stated that both the Courts below have taken in account all the aspects of the matter while discussing the evidence in detail and the conclusions arrived at by them on factual aspects are permissible on the basis of the material on record and, thus, sustainable.
26. It was further contended for the accused that it is not established that the injured were public servants or were hurt in the discharge of their public duties, therefore, the impugned conviction under Section 332 of the Indian Penal Code is not sustainable.
27. It is true that two of the essential ingredients to sustain a conviction under Section 332 of the Indian Penal Code are (i) that the person to whom hurt is caused must be a public servant and (ii) the act of the accused in causing hurt to such person must have nexus with the discharge of public duties by such public servant. It is, however, not tenable that these ingredients are not established in this case. There is no dispute that G.S. Anand, Tarsem Lal, N.C. Patyal, R.J. Pille, K.V. Karup and A.K. Shrivastava are the officials of the C.C.I. Pvt. Ltd., a Govt. of India enterprise. In view of the relevant provisions of Section 21 of the Indian Penal Code, every person in the service or pay of a local authority, a Corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956, is a public servant. Therefore, the status of the aforesaid injured as public servants is indisputable and the contention to the contrary does not hold good.
28. It is not disputed that accused Atma Ram and S.K. Minhas were suspended by the management of the C.C.I. Rajban on October 27, 1986. The strike and causing of injuries to the aforesaid injured by the accused, as already held heretofore, was, therefore, a retaliatory measure. The offence thus committed by the accused falls within the ambit of Section 332 of the Indian Penal Code.
29. It was lastly contended that the occurrence took place about 13 years before, therefore, the benefit of probation may be given to the accused by taking a lenient view.
30. In the facts and circumstances of the case, the accused persons are not entitled to any leniency. Simply because two office-bearers of the union had been suspended for disobedience, no union or its member gets a right to indulge in violence. Leniency in such cases, instead of serving any noble purpose, will encourage indiscipline and insubordination amongst the employees. Therefore, in such cases the offenders do not deserve any leniency but deterrent punishment. The learned Additional Sessions Judge has already taken an unduly lenient view in the matter. In view of the above, there is no question of showing any more leniency to the accused persons.
31. In view of the above conclusions, I do not find any compelling reason to interfere with the impugned judgment whereby the accused have been convicted and sentenced.
32. As a result, this revision petition merits dismissal and is accordingly dismissed.