Bombay High Court
Suresh Baburao Shinde And Ors. vs State Of Maharashtra And Ors. on 1 September, 1993
Equivalent citations: (1994)IILLJ120BOM
JUDGMENT M.F. Saldanjha, J.
1. Worker violence is a phenomenon that is consistently being resorted to and is often sought to be justified under the umbrella of permissible agitation or collective bargaining. This is unfortunately a misguided form of Trade Unionism and will never be tolerated by the Courts. That it is defensible is a complete misnomer, for neither the Industrial Disputes Act nor any other law permits such resort to violence, whatever be the provocation or justification. The inevitable fall-out of such incidents is loss to life and property the victims invariably being officers whose only fault is that they happen to work for the Company or are invested with the task of maintaining law and order. That each of these acts constitutes offences under the Indian Penal Code is something that is always overlooked and the accused, even if subsequently arrested putup spirited defences that they are being unjustifiably framed or victimised even if their actions have resulted in damage or loss worth crores of rupees and worse still, the victims having been maimed or killed rendering their families helpless. Unfortunately, traditional methods require the conventional process of establishing the guilt of the accused, which is not only time-consuming but of tentimes extremely difficult because of obvious limitations. When violence breaks out in an industry, big or small, the witnesses will necessarily be from within the same body of employees, invariably slightly higher or lower, and would, therefore, be characterised as belonging to the management or workers' sectors. Where there is more than one union, bias or rivalry is attributed and the end-result of these difficulties is only compounded by the inherent fear or reluctance on the part of the witnesses to depose before a Court because of the consequences. Unfortunately, the situation has led almost to a deadlock in the matter of bringing to book the persons who are responsible for such damage to life and property. The immediate fall-out of this situation has been the unfortunate impression that violence of any sort, howsoever serious, will still go unpunished. This is certainly not the intent of the justice dispensing system, and in those of the cases where evidence is forthcoming, a genuine effort will have to be made to do real justice. Traditional principles and approaches relating to the assessment and appreciation of evidence cannot be adopted in relation to all classes of cases and the Courts will, therefore, have to necessarily innovate their approach when it comes to the question of dealing with industrial violence. That the offences will have to be proved beyond reasonable doubt is certainly the basic requirement and the Court will also have to proceed cautiously having regard to the repercussions that a conviction would entail to the career of the worker concerned. Simultaneously, the Court will have to balance this approach by considering the nature and gravity of the damage to life and property, of the economic loss that is being caused and of the long-term effects of such violence. Where the offences are established, deterrent punishment is a must.
2. Fifty one workers of Bajaj Auto Ltd., one of the top bracket Companies at Pune, were arrested and charge-sheeted on a host of charges as a sequel to the violent incidents that took place in the factory premises on June 16, 1979 and June 17, 1979. The accused were members of the Executive Committee of the Bajaj Auto Kamgar Sanghatana, which was a recognised union. The three agreements between the management and workers had expired in March 1979 and the union had put forward a series of demands in relation to the new agreement and negotiations in respect of these demands were in progress. The management had indicated its unwillingness to agree to the demands that the union was insisting on, and the workers had resorted to a one-hour-sit-down strike since the month of June 1979 onwards. A meeting was scheduled between the union and the management on June 16, 1979, but the President of the Union, Shri Chatterjee (since deceased), telephonically requested for a day's postponement on the ground of his ill health. The management acceded to this request The workers who were obviously unaware of the real reason for the postponement got agitated and resorted to violence.
3. It is alleged that two of their leaders, Accused Nos. 3 and 29, who were asked to pacify the workers, infuriated them instead, by exhorting the workmen to demonstrate their might to the management. When the situation got out of control, the Police were summoned and a virtual running battle ensued. It appears that some construction work was going on in the factory and the workers were, therefore, able to have a ready supply of stones which were freely used on the Police, the Company's Security Staff and the Company's property, namely, the buildings and in particular on the glass-panes. In order to control the workers, after several warnings, the Police fired teargas-shells. In the meanwhile, the workers started using large number of metal parts, which are referred to in the evidence as metal jobs, as missiles and several of the Police personnel sustained injuries. They also started hurling teargas-shells back at the Police. The Company, being a large one, has its various units spread over an expansive area. In order to prevent the Police from getting close, the workers set fire to various inflammable objects, started pouring acid and put barrels across the road to prevent the Police from following them. They also set fire to wooden cartons and scrap material.
4. In the course of these incidents, the scooter belonging to Shri Joshi, the Company's Security Officer, was set on fire and the Company's bus, which was parked close by was seriously damaged. The furniture and fixtures in the reception area were all smashed and stones were freely hurled at everything inside. It is alleged that at about 9 p.m. Accused Nos. 3,5 and 26 pounced upon the watchman, Suganlal Jat, who was opposite the rear paint shop and they dragged him near the cabin of Lokur. Accused No. 3 then picked up the receiver and telephoned to the Security Officer slating that the Police should be asked to leave the campus or else the watchman would be killed. The Security Officer Sarote passed this message on to the Police. In the meanwhile, since several areas were on fire, all the fire brigade personnel at Pimpri Chinchwad, Dehu Road, Pune Municipal Corporation and Khadki Cantonment were requested to rush to the factory and with the assistance of all these fire engines, the flames were extinguished. The Police were thereafter able to bring the situation under control. The damage to the factory buildings, vehicles, etc., was assessed and photographs were taken. A complaint was lodged with the Police and an offence was registered at 11.30 p.m. The Police Inspector, Sankoli, directed his staff to remain in the campus in order to prevent any further recurrence of violence. It was decided by the management as a precautionary measure to allow workers only in groups of ten, to enter the premises on the next morning.
5. After the experience of the previous day, on the next morning at 6 a.m. a Police party, State Reserve Police Platoon and fire brigade squads were deputed to the Bajaj Auto Ltd. At about 6.45 a.m. P.S.I. Gore went to the entrance gate in response to the wireless message that the workers had assembled opposite the gate and were trying to enter forcibly. The P.S.I, took Accused Nos. 8,9 and 10 with him and contacted the Managing Director and Accused No. 8 was asked to satisfy himself with regard to the correctness of the instructions which he did. They were thereafter asked to convey the directions to their colleagues at the gate. The workers, however, who had by then assembled in large numbers, had blocked vehicular traffic on the Bombay-Pune road by erecting various road blockades and they simultaneously started turning aggressive and resorted to violence against the Police accompanied by heavy stone-throwing. The Police finding themselves out-numbered, a message was transmitted from the wireless van, namely, Fox Mobile, to the Pimpri Static, i.e., control room, to immediately rush additional reserve police force.
6. Police Inspector Sankoli rushed to the factory in response to the information that the workers had blocked the vehicular traffic. He managed to get through the obstacles and reached the entrance gate. P.S.I. Kulkarni followed him on his motorcycle. With the assistance of the loudspeaker installed on the Fox Mobile van, P.S.I. Sankoli appealed to the workers to keep peace and not to commit any illegal acts. Instead of responding, the workers attacked him and he was rescued by Sub-Inspector Gorey and other Policemen. The wireless van, Fox Mobile, was attacked, it was turned on its side, the petrol tank was broken open and with the assistance of pieces of gunny bags the inflammable liquid was taken out and the van was set on fire. The inmates of the van jumped out and managed to save themselves. In order to bring the situation under control, after warning the workers, a cane-charge was resorted to and teargas was also used, but to no avail. The Police personnel were the targets of the violence and several of them sustained injuries. Inspite of warnings when there was no other option left, the Police resorted to firing in the course of which two persons died and a third one sustained injuries. It was only after this that the Police were able to bring the situation under control. In the meanwhile, the fire brigade arrived and started extinguishing the fire that was engulfing the wireless van. The higher Police Officers arrived on the scene and after surveying the damage, the complaint of Police Inspector Sankoli was taken down and an offence was registered. The investigation was taken up and the injured persons were sent for medical aid. Statements of various witnesses were recorded, some on that day and on the succeeding days, the accused were placed under arrest and on completion of the investigations were charge-sheeted and put on trial.
7. The learned trial Judge framed charges against the accused under Sections 120-B, 147, 148, 435, 365, 506, 342, 323, 324, 332, 353, 326, 333, 307 read with Sections 120-B and 149 of the I.P.C. Accused Nos. 24 and 30 further stood charged under Sections 427 and 435 read with Section 34 of the I.P.C. Accused Nos. 3,5 and 26 further stood charged under Sections 365, 506 and 342 I.P.C. Accused No. 23 also stood charged under Sections 324, 353 of the IPC and accused Nos. 3 and 29 further stood charged under Section 109 I.P.C. The Learned Trial Judge, after a very detailed consideration of the record, acquitted 20 of the accused for the reasons set out in the judgment. The operative order recording the convictions and sentences reads as follows:
The Accused Nos. 2,3,5 to 17, 23 to 31, 35, 41,42,44,47,48 and 49 are convicted for the offences punishable under Section 120-B, 147, 427, 435, 342, 323, 353, 332 read with Section 149 of the Indian Penal Code. Each one of them is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- or in default to suffer further rigorous imprisonment for one month for the major offence i.e., Section 435 of the Indian Penal Code. No separate sentence is awarded under Sections 120-B, 147, 323, 332, 342, 353 and 427 read with Section 149 of the Indian Penal Code.
By the present appeal, the accused have assailed the aforesaid convictions and sentences.
9. I do not propose to reproduce in the course of this judgment any of the records which consists of a couple of thousand pages as the same is unnecessary. Suffice it to say that since this is a matter of considerable seriousness because, on the one hand a number of Police personnel were injured, some of them seriously, considerable damage was done to the property not only belonging to the Company but also to the Security Officer whose scooter was burnt and to the Government property, which was not only damaged but the wireless van was set on fire. On the other hand, it is unfortunate that three workers lost their lives in the course of this violence and apart from that, it is also an unfortunate fall-out that 51 of the workers came to be arrested and were put on trial. The incident had taken place in the middle of June 1979. The accused were released on bail and the trial commenced in the year 1982 and finally got over in March, 1985. As many as 31 accused-appellants faced convictions of 3 years rigorous imprisonment and the present appeal which has been pendingsince 1985 has come up for hearing only in 1992.
10. Shri Shirodkar, learned Counsel appearing on behalf of the appellant accused, has pointed out that the incidents are not disputed, but that the defence seriously contests the conviction of the present appellant because the consequences to them are extremely grave. He stated, with a full sense of responsibility, that the violence, the damage to property and the like are not being defended because admittedly such acts cannot be condoned. He states that the Police, as oftentimes happens, not only provoked the workers but that they used more force than was necessary as a result of which the workers retaliated and it resulted in a free for all. This last statement is impossible to accept because the incidents of the first day undisputedly indicate that the workers, without even the presence of the Police being there, had resorted to unprovoked violence. This was done to demonstrate aggression and for the sole purpose of forcing an acceptance of their demands through strong arm tactics.
11. On the 17th when both the parties were already in a stage of nervous tension, the Police, according to Mr, Shirodkar, started using force and resorted to firing when there was no need for this. He emphasised the fact that the causalities were all on the workers * side and that the injuries on the Police personnel were all of a very minor nature. Shri Shirodkar alleges that having killed two persons in the firing and realising that the matter has taken a grave turn, the Police indiscriminately involved the Committee Members and other members of the union on a random basis. He illustrates how faulty this process of indiscriminately Involving persons worked out to be by demonstrating that as many as five of the persons who were not only on leave but were either out of town or under treatment have been falsely implicated.
12. Shri Shirodkar's general submission, however, is that the description of the incidents indicated that a relatively large percentage out of the over 5000 employees of the Company are alleged to have taken part in the incidents on the two days out of whom only 51 have been arrested and out of these as many as nine are office-bearers and members of the Executive Committee of the union. He states that the obvious exercise of the Police was to hit back at the union at the instance of the management and to selectively choose the office- bearers and activists in an attempt to involve them, to harass them and to secure a conviction against them. His general thrust against the oral evidence is that it is essentially cryptic, unreliable and biased because it consists of officers and security staff, all of whom are acting on behalf of the management. As regards the Police witnesses, he states that they have repeated whatever they were asked to say and the same applies to the witnesses belonging to the fire brigade and such other officers. In substance, Shri Shirodkar submits that if the vast mass of the prosecution evidence were to be scrutinised, it would still not yield enough material of any reliability on the basis of which a conviction can be legally sustained. Shri Shirodkar is critical of the approach adopted by the learned trial Judge who has followed the principle that if an accused is implicated by a number of witnesses that it is good enough. He points out that it is the quality and credibility of each witness that is of consequence and it can be demonstrated that none of them pass these tests. Merely by multiplying the number of persons who implicate a particular accused the justification for conviction would still not be sufficient.
13. I am in agreement with Shri Shirodkar with regard to one aspect of the matter, namely, the degree of caution with which a Court must approach a case of the present type. This Court owes a dual and equal responsibility to both sides. On the one and, it is the duty of the State to maintain law and order and to protect life and property and it is equally necessary to ensure that persons who indulge in acts of violence, particularly of the present type, are adequately punished and are not allowed to get away by default. On the other hand, it is of as much importance that none of the workers suffer any injustice by virtue of being wrongly implicated and punished without justification. Undoubtedly, the learned trial Judge has gone through a careful process of scrutiny and, therefore, the controversy is sufficiently narrowed down in respect of those of the accused who have demonstrated that they were not there. Regardless of certain witnesses speaking about their presence, the learned trial Judge has given them the benefit of doubt and rightly so. As far as the remaining appellants are concerned, the controversy does get further reduced because they were employees of the Company and were present at the relevant time. Whether or not they have been wrongly implicated is all that requires to be examined.
14. One cannot, however, lose sight of the fact that in the present case, there is a charge of rioting and unlawful assembly. Both the incidents involved the members of the union and its office-bearers who were incensed over the fact that the management had not conceded their demands. Whether their fury was directed against the management or the Police or for that matter whether it was the Police who used more than the necessary force or whether it was the Police who provoked them, the fact remains that they were in a much larger number and they did indulge in stone-throwing, using iron jobs as weapons of assault, setting fire to the property and destroying a considerable part of it, and in the process causing injuries to a number of persons, most of whom happened to be public servants in the discharge of their duty. As far as the law goes, it is of little consequence as to whether a person was a leader or a follower or whether he had taken a major role or a minor one in an incident of this type because the presence and participation in an unlawful assembly is sufficient to fasten on the accused the liability for all the acts that have resulted therefrom. I do not, therefore, share the anxiety expressed by learned Counsel appearing on behalf of the appellants who drew my attention to the formula adopted by the Courts for purposes of holding accused guilty in such cases, wherein the Courts have invariably relied heavily on identification evidence. Shri Shirodkar's main plank of attack is that the accused persons have not been satisfactorily identified. What is being pointed out by him would hold good in a case where a riot takes place in a street or another situation where the identity of the persons is not at all known and the Court, therefore, in the first instance is doubtful of their very presence at the scene of offence. That important aspect is non-existent in the present case as the accused were all employees of the company and, therefore, the sanctity attached to the aspect of the requirement of an independent identification gets comparatively reduced.
15. In this context, I shall dispose of two submissions canvassed by Shri Shirodkar which go to the very root of the matter. The firstof them concerns the fact that, admittedly, none of the accused were arrested on the spot or in the course of the incidents. Shri Shirodkar pointed out that the subsequent arrest of the accused is clearly indicative of the fact that the Police were asked to proceed on the basis of a definite pattern and to pick up the Executive Committee Members and the union activists and implicate them in this case. The fact that not a single accused present was arrested on the spot is indicatative, according to him, of the fact that the incidents happened so fast that there was so much of activity and movement culminating in the workers virtually running away for their lives and that in such a melee the only option left was to pick up/out the names of all those persons whom the company desired to victimise. This argument does not appeal to me because, in the first instance, the Police were heavily out- numbered and were virtually at the receiving end and had to ultimately resort to firing in total self-defence. In these circumstances, the inability to arrest any of the accused on the spot is understandable.
16. As regards the other limb of the argument, it needs to be pointed out that barring nine out of the 51 accused who were the office- bearers or Executive Committee Members, there is nothing on record to show that the rest of them were union activits. On the contrary if the prosecution had worked according to a definite plan, there was no reason for them to commit the error of including five persons who were on leave because the records were available with the management and they would never have taken the risk of weakening their case while including the names of wrong persons. More importantly, as pointed out by me to learned Counsel, in a situation of the present type where the workers were instigated and obviously instructed to let loose their fury, such directions would only have come from the union leaders and activists who, in their turn, would have most certainly been outstanding in the course of the incidents and would, therefore, have attracted more attention than the others. In these circumstances, I do not attach any significance to this aspect of the argument.
17. The second serious head of challenge is that no identification parade was held in the present case. Shri Shirodkar states that in cases of rioting and unlawful assembly, the only evidence is of identification and the accepted mode is where the witnesses at the earliest point of time identify the accused. In the present case, the accused were all employees of the Company who were available to the Police. The witnesses were also employees of the Company and Police personnel and it was, therefore, incumbent that an identification parade ought to have been held. Through such a procedure, the prosecution would have claimed a degree of creditability as far as the identification evidence goes. Instead of that, we have on record the admission that photographs were shown at the time when the statements of the witnesses were being recorded. Shri Shirodkar was particularly severe on this procedure and insisted that it is totally destructive of the identification evidence. He states that the photographs were admittedly produced by the management because none of the accused are known criminals, that these photographs were shown to the witnesses and there is nothing to counter the defence charge that obviously the photographs of some selected persons were produced and the witnesses told to implicate them.
18. Undoubtedly, in casesof the present type, it is customary to hold an identification parade. Such identification parades are held in cases where witnesses do not know the accused and are, therefore, required to prove their power of recall. The greater part of the witnesses in this case are the Company's Officers and Security Staff, all of whom belong to the category whereby they have, of necessity, repeated contacts with the workers and, therefore, know them. An identification parade is, therefore, meaningless in such a situation because obviously the defence will condemn it on the ground that the witnesses knew the accused, and therefore, picked them out. On the question of the photographs being shown, it must be admitted that this is not a healthy practice. It is however, not known in the course of investigation where a witness states that he has seen an accused person, but is unable to give his name or other particulars and the investigating authority asks him to specify on the basis of a number of photographs, as to who exactly the accused are.
19. In the present case, some stray admissions have been brought on record by the defence, that photographs were shown at the time when the statements were being recorded. The witnesses have been individually cross-examined and each of the witnesses had named certain accused persons, but they have not been challenged on the ground that they have named those accused on the basis of the photographs shown to them. Secondly, the defence has not pursued this line of cross-examination at all. Not only has it not come on record as to whether the photographs were shown to all or some or one or two of the witnesses, but more importantly, the question as to whether a large number of photographs were shown or just a few has not been ascertained. In my considered view, this last aspect is of consequence. If, for instance, the entire file of the photographs was produced and one or more witnesses were asked to pick out those accused persons whom they are able to identify as the participants, the fact that the witnesses have picked out a certain accused would be indicative of the fact that even though virtually hundreds of workers had taken part in the incidents, that the faces of just those accused have registered in the minds of the witnesses. In this regard, 1 have taken cognizance of two factors, the first of them being that the Police, more so the security staff of the Company, perhaps to a slightly lesser extent, are trained persons whose power of perception recall and identification in such situations would be much higher than most others. In the case of the other witnesses, like Shri Nahar, one has to bear in mind that they are employees of the Company who are in contact with the workmen and who know them. Instances/incidents of that type had never taken place before and, therefore, the memories of what happened and those who are seen participating are much stronger. I am unable, therefore, to accept the challenge of learned Counsel that these aspects are destructive to the prosecution.
20. Shri Shirodkar commenced his argument by drawing my attention to the evidence of three witnesses, P.Ws. 45 and 46 Gaikwad and Dinkar Pawar, who were the occupants of the wireless van Fox Mobile and the evidence of P.W. 57 Sambhaji Sankhamble who was manning the control room wireless where the messages were received and which was named Pimpri Static. Shri Shirodkar pointed out that the evidence of Gaikwad and Dinkar Pawar indicates that they got out of the wireless van prior to its being overturned and set on fire. He supports this view from the fact that Sambhaji states that the message received from Fox Mobile van was to the effect that the crowd is advancing towards the van menacingly with the intention of attacking it and that, therefore, reinforcements should be rushed there.
21. Shri Shirodkar states that this evidence would make a world of difference to what the prosecution alleges when the accused are charged with an attempt to murder the two occupants by overturning the van and setting it on fire. Restates that, undoubtedly, in the course of their fury, the workers did attack the wireless van and this was because the Police had already used force and had obviously called for reinforcements and the psychology was, therefore, to stop any such messages being sent. This, according to learned Counsel, is very very different from the allegations that they had attempted to murder the two occupants. He states that if there was any such intention, nothing would have prevented the workers from either lynching the occupants of the van or preventing their escape from it until it was set on fire. The fact that neither of this was done establishes that there was no intention to endanger their lives and that the action was only against the vehicle. Shri Shirodkar repeatedly contended that this is a matter of utmost seriousness because it is indicative of the great desire on the part of the prosecution to falsely implicate the appellants on a grave charge. He states that the underlying reason was because the incidents at Bajaj Auto were no better than industrial unrest which is very frequent, particularly in that area, that the Police had lost control, resorted to firing and killed two persons and, therefore they had to level a serious charge against the workers in order to make the case look extremely grave by invoking Section 307 of the Indian Penal Code. This, according to learned Counsel, is virtually destructive of the honesty that is required of a credible investigative machinery.
22. The conclusions on facts canvassed by learned Counsel are incorrect. All that the evidence of Gaikwad and Dinkar Pawar indicates is that they mentioned in their message that an attack on the van was imminent It is quite obvious that when the mob decided to overturn the van that the two of them jumped out of it. It is true that nobody prevented them from escaping. The fact, however, remains that the attack on the van commenced when the two of them were still in it as is evident from their message and it may reasonably be assumed that when a furious mob attacked the van that the two occupants could have lost their lives either when it was overturned or when it was set on fire. To my mind, therefore, the framing of a charge under Section 307 of the Indian Penal Code was not justified. On the facts of the present case, I find it impossible to construe from this evidence that there was any militant desire to implicate the accused on charges that were remote from the activities in which they were indulging. This was a company which manufactures scooters and other vehicles. There were a large number of metal parts that were available and which were freely used by the workers against the Police. Stones were also used and any of these missiles in the circumstances would constitute weapons because a blow of a vital part of the body could easily result in death. The van incident apart, from the nature and duration of the attack, to my mind, a charge under Section 307 of the Indian Penal Code was perfectly in order.
23. Another head of criticism advanced by learned Counsel in this case is with regard to the delay in the recording of the statements of the witnesses. The incidents had taken place on the afternoon of June 16, 1979 and on the morning of June 17, 1979. The evidence of the investigating officer indicates that the first complaint was lodged on the 16th itself and the second on the 17th. His evidence also indicates that on and from 17th itself, he has been recording the statements of the witnesses, some on the 18th, some on the 19th, some on the 20th and this process continued right upto the 26th of that month. It is true that speed is of utmost importance in a criminal case and that normally delay in recording of the statements would give rise to suspicion. One needs to, however, look at the situation from a realistic point of view, with the facilities available to the Police, the number of witnesses involved, the nature of the incidents and the length of each of the statements, one needs to evaluate and make allowance for the physical time that is required to record the statements of each of the witnesses. Considering the fact that this happens to be a case in which there were as many as 60 witnesses, I do not think that the charge of delay will avail the defence to any appreciable extent. There has not been any abnormal or unexplained delay. Invariably, whenever there is a delay in a criminal case, the Court is required to very carefully examine the question as to whether the witnesses had met together and conspired or whether in the intervening period they had been tutored. No such case has even been put to any of the witnesses and, therefore, the charge of delay which would ordinarily work very seriously in the case of the First Information Report would not, to my mind, affect the prosecution in the present case merely because there was some understandable delay in recording some of the statements.
24. A perusal of the trial Court's judgment indicates that the learned Judge has followed the now well-settled pattern which has been approved of by the Supreme Court and by the High Court while appreciating the evidence relating to cases of the present type. The tried and tested formula that is now adopted and which is well crystallised is that where a Court finds a number of witnesses implicating a particular accused that a conviction could safely be recorded. Conversely, if there are only stray references or just one or two witnesses refer to a particular accused person, the Courts have invariably adopted the policy of erring on the safe side by giving the benefit to the accused. This formula, to my mind, may be applied with a high degree of reliability. It is necessary to take cognizance of the fact that in all situations resulting in violent activities, there are invariably leaders and followers or, translated into actual terms, activists and persons who are less active participants. In such situations, itis inevitable thatsomeof the participants would stand out more than the others, one of the possible reasons being, at times, that they display more bravado. There are also familiar situations in which the witness is so placed that a particular accused may be very close or distinctly visible for some special reasons.
25. As against the generalised argument that in a case of rioting or mob fury, there is so much movement and so many persons around that the ability to distinctly identify the culprits gets considerably reduced, one needs to bear in mind that even in all such situations, the possibility of picking out some of the participants is always there. The position changes radically when the parties are known to each other, such as when they are all employees of the same Company.
26. Coming to the present case, I need to record one special and often times overlooked angle, namely, that the accused were all members of quite a powerful union. It is an unfortunate fact that even in the face of serious incidents other employees are invariably afraid of coming forth to depose against those involved in serious incidents. I mention this because Shri Shirodkar, learned Counsel appearing on behalf of the appellants-accused, advanced one argument against the Company's Officers and security staff, particularly the watchman, that they are pawns of the management in so far as their jobs, promotion or virtual livelihood depends on the management and that, therefore, that they would falsely implicate any of the employees whom the management desired to victimise,
27. As regards this last argument, appropriately enough, not a single one of the large number of accused has even put forward a suggestion in cross-examination or so much as mentioned in the Section 313 statements or though a written statement that for a particular reason or in relation to a particular incident the management desires to falsely implicate him. In this background, such a charge would be wholly inappropriate. On the contrary, it was well countered by Shri Patil, the learned A.P.P., who stated that in these circumstances the witnesses who depose even to the truth run the risk of a hostile reaction and none of them would dare to falsely involve a fellow workman, given the present background. This virtually answers the charge of false involvement. That a mistake could be committed, I do concede and it is precisely for this reason that the learned trial Judge has gone to the extent of only convicting those of the accused who are mentioned by a number of witnesses so that even if one of them is in error, the evidence of the others is there as a safeguard. It is of equally importance in these cases that out of anxiety to avoid a wrong person being convicted that miscarriage of justice should not result whereby several guilty persons are allowed to get the advantage. It is equally true that in cases of this type where it is not possible to round up all the miscreants that several of them escape by default.
28. I propose to set out below the list of the sixty prosecution witnesses examined, their designations and the number of accused who are implicated. The list reads as follows:-
Sl. No. Name of the Accused Designation No. of accused implicated
1.
Laxman Chintallu Plan maker
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2. Shrikrishna Joshi Chief S. Officer 19
3. Madhukar Sarote Assistant S. Officer 26
4. Vijay Muddebihalkai Dy. Manager 08
5. Dhondu Waswad Clerk 07
6. Parasmal Nahar G. Manager 10
7. Sughanlal Jat Watchman 08
8. Nathusing Rathod Watchman 06
9. Rameshwarlal Bina Watchman 08
10. Dhaurao Wahurkar Asst. S.Officer 19
11. Ramadhar Sing Rajput Watchman 04
12. Dilbahadur Thapa Watchman 01
13. Dhanbadbhr Thapa Watchman 06
14. Maheshwari Joshi Naik 14
15. Digambar Jadhav Junior Engineer 05
16. Ch. Arvind Talwalkar Foreman 03
17. Digambar Gupchup Stenographer
-
18. Chandra Kumar Agarwal Worker 02
19. Prakash Deshpande Worker 03
20. Madhukar Phansalkar Worker 02
21. Narayan Sankpal Peon 04
22. Madhukar Mahadwale Welfare Officer 02
23. Sallardin Inamdar Jr. Engineer 04
24. Ramesh Shinde Jr. Foreman
-
25. Dinkar Tambe B.C. No. 2139 04
26. Shantaram Bhalerao A.S.I. Control Room
-
27Sopanrao Khude P.S.I. Pimpri Police Station 09 28 Vithal Suryana Wanshi P.C. No. 2372 09 29 Sahabrao Kale P.N. Bhosari Police Station 05
30. Nandlal Garud P.I. Railways Pimpri 04
31. Anant Gaikwad H.C. No. 2440 08
32. Anil Gore P.I.C.I.B. 21
33. Pandurang Ghatge P.N. No. 2778 04
34. Dinkar Shirke P.S.I Mobile Van 03
35. Balasaheb Kadam P.H.C . Pimpri Police Station 13
36. Shashikant Shinde P.C. 1290 09
37. Suresh Khardakar Fire Brigade
-
38. Somnath Gaikwad
-
-
39. Nathu Jadhav Driver-Fire-Fighter
-
40. Bajirao Waghire
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41. Jagdish Waghmare Fireman
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42. Vithal Lohare Fire B-Driver
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43. Gangadhar Patil H.C. 2391-Pimpri 05
44. Nivrutti Aher P.N. Pimpri 12
45. Chandra Kant Giakwad P.C. Control-Room
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46. Dinkar Parwar P.C. Control-Room 04
47. Vijay Choudhary Sr. Engineer 01
48. Ananta Kapse Fireman
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49. Sudam Kalapure Fireman
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50. Balchandra Kulkarni P.S.I. Spl.
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51. Namdeo Chougule P.C. Control 07
52. Govind Pariksne A.G.P. Khadki
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53. Prabhakar Page Photographer
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54. Bhavarlal Gujar Security Officer 10
55. Tukaram Palande A.S.I.
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56. Imruddin Shaikh P.C. Control
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57. Sambhaji Sankamble Wireless Operator
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58. Hiraji Londhe Wireless Operator
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59. Maruti Sankoli P.S. Pimpri 26
60. Madhusudan Hullalkar A.C.P.
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29. Shri Shirodkar has advanced a two-fold submission with regard to this aspect of the evidence. Firstly, he contends that there was a definite pattern aimed at implicating "marked" persons or, in other words, that office-bearers, union activists, etc., were deliberately picked out and in addition to this, out of the remaining workers who admittedly were somewhere within the factory premises that the witnesses have indiscriminately involved them. What, in fact, is contended by learned Counsel is that there were a large number of workers present when the incidents took place and therefore that the witnesses had no qualms in spouting the names in so far as it would always be difficult for a person who was present there to establish that he had not taken part in the incident; whereas for the witnesses it is not a hit or miss formula but one whereby every hit would land on some target or the other. I am indebted to learned Counsel and to his colleagues who assisted him for a very comprehensive tabulation and analysis of the evidence on record because I do consider it necessary where the liberty of a citizen is at stake that there should be nothing wanting with regard to the scrutiny process and that the record must be examined from all angles. I, therefore, analysed very carefully as to what is the general pattern that emerges from the prosecution evidence. If, as stated by Shri Shirodkar, the pattern followed was to implicate certain persons and then indiscriminately pick up anyone else at random, an analysis of the total picture would have indicated a predominance of involvement as far as the prominent officebearers of the Union were concerned, and totally haphazard pattern thereafter. Unfortunately, for the defence, this is not the picture which emerges. What we, in fact, find is that out of the 60 witnesses who were examined, as many as 22 of them have not involved a single accused. As far as the remaining are concerned, the analysis indicates the following interesting picture.
Prosecution Witness No. Number of Accused Involved 2 19 3 26 4 8 5 7 6 10 7 3 8 6 9 8 10 19 11 4 12 1 13 6 14 14 15 5 16 3 18 2 19 3 20 2 21 4 22 2 23 4 25 4 27 9 28 9 29 5 30 4 31 8 32 21 33 4 34 3 35 13 36 9 43 5 44 12 46 4 47 1 51 7 54 10 59 26
30. The broad picture that emerges from this examination is that the witnesses have, to the best of their ability and recollection, named those of the persons whom they could, in fact, identify. One needs to take cognisance of the fact that the witnesses were at different places; some close to the main centre of the activities and some situated otherwise. Also, the persons belonging to the security or those who had been in the thick of the incident and would have a greater capacity and ability to identify more persons than perhaps the outsiders, such as the Police Constables, etc. The law has, therefore, evolved a tried and tested formula whereby in cases of this type it is considered safe to proceed on the footing that where there is only multiple involvement that one or the other of the witnesses may be in error, but this cannot happen to a whole bunch of witnesses. In other words, if the witnesses themselves are reliable and credible and if three or more of them involve an accused person there could be no manner of doubt about the culpability. In the present case where it was a union versus management incident, once the presence is established and Section 149 I.P.C. is applied, it would be too much to accept that the worker concenred was an incident bystander. This is precisely the basis on which the learned trial Judge has proceeded in the present case. For ready reference, I have tabulated below the data in respect of the accused who have been convicted and the number of witnesses who have identified them. The learned trial Judge, as a rule of caution, has proceeded on the basis that where three or more persons identified an accused that it would be safe to accept the identification evidence.
Number of Accused Identified by Witnesses Accused No. 2 8 Accused No. 3 21 Accused No. 5 5 Accused No. 6 & 7 4 Accused Nos. 8 & 9 6 Accused No. 10 8 Accused No. 11 13 Accused No. 12 7 Accused No. 13 4 Accused Nos. 14 & 15 4 Accused No. 16 8 Accused No. 17 4 Accused No.23 9 Accused No. 24 16 Accused No. 25 5 Accused No. 26 7 Accused No. 27 10 Accused No.28 9 Accused No. 29 17 Accused No. 30 19 Accused No. 31 6 Accused No. 35 5 Accused No.42 5 Accused No. 44 4 Accused No.47 3 Accused No.49 4
31. A scrutiny of the evidence indicates that overt acts have been attributed specifically to Accused Nos. 2,3,5,17,23 to 31,35,41,42,44,47 to 49. The evidence also discloses that accused Nos. 2 to 31 were armed with deadly weapons, such as sticks, metal jobs, etc. As far as the damage to property is concerned, the evidence mentions Accused Nos. 2,3,5 to 7,23 to 31,35, 41,43,44,47,48 and 49. The incident regarding the setting fire to the scooter of P.W. 2 is concerned involves Accused Nos. 24 and 30, and this evidence is corroborated by P.W. Nos. 3,5,9, 10 and 14. As far as the provocation and incitement of the workers is concerned, the main involvement centres around Accused Nos. 3 and 29.
32. This appeal was argued at considerable length by Shri Shirodkar, one of the very senior, competent and meticulous counsel on the Criminal side, easily one of our best criminal lawyers. He has taken me through the evidence witness by witness and document by document, after which he has made his submissions with regard to the reasoning and approach of the learned trial Judge. After hearing Shri Shirodkar, and the learned A.P.P. and examining the judgment carefully, I had reserved orders in this case in order to once again do a thorough revision and reappraisal on all the material and having done so, it is my considered view that the learned Judge has adopted an unbiased, correct and fair approach in this case and that the conclusions and findings recorded by him after erring on the safe side and giving the accused with border line cases the benefit of doubt, are absolutely correct and, therefore, do not require to be interfered with.
33. Coming to the position in law, Shri Shirodkar had advanced a number of propositions which I shall deal with. In the first instance, he had attacked the general credibility of the witnesses and he has relied on a decision of this Court in the case of A.Y. Madar v. State, wherein the Court held that witnesses though unsophisticated who were clever enough to make improvements on the points which they thought are material, suffered from a serious infirmity and that such evidence is, therefore, not acceptable. I need to point out involvement that one or the other of the witnesses may be in error, but this cannot happen to a whole bunch of witnesses. In other words, if the witnesses themselves are reliable and credible and if three or more of them involve an accused person there could be no manner of doubt about the culpability. In the present case where it was a union versus management incident, once the presence is established and Section 149 I.P.C. is applied, it would be too much to accept that the worker concerned was an innocent bystander. This is precisely the basis on which the learned trial Judge has proceeded in the present case. For ready reference, I have tabulated below the data in respect of the accused who have been convicted and the number of witnesses who have identified them. The learned trial Judge, as a rule of caution, has proceeded on the basis that where three or more persons identified an accused that it would be safe to accept the identification evidence.that a scrutiny of the depositions in this case does not indicate any appreciable or, for that matter, a major or consequential improvement that would render the evidence unsatisfactory. One needs to take a practical view of the situation, particularly the lapse of time and the divergences that are possible with regard to recounting a major incident of the present type and making allowance for such factors. I am quite satisfied that no tendency has been displayed to fabricate :
or distort the evidence and that too with any motivation. Shri Shirodkar then referred to the decision of the Supreme Court in the case of Suraj Mal v. State. Delhi Administration , wherein the Court held that where the testimony of witnesses which was in separable and indivisible was disbelieved in respect ot some accused, that it should not be used to convict any others, the Court was dealing with a corruption case and the facts were very different from the present one. Furthermore the witnesses in the present case had not been dis believed as being the persons who have spoken untruth or fabricated. All that has, in fact, hap pened is, as indicated earlier, that regardless of the involvement of some persons, the learned trial Judge has followed the rule of caution and ignored the evidence in respect of those accused who have not been named by as many as three or more witnesses.
34. The main thrust of Shri Shirodkar's argument in this regard proceeds on the footing that Accused Nos. 21, 22, 38 and 46 have established before the Court, which has been accepted, that they were on leave at the relevant time and, therefore, could not have been there. Consequently, Shri Shirodkar submits that undisputedly these persons have been falsely involved and that it fully establishes the defence case that the prosecution evidence is not only motivated but that it suffers seriously as far as the credibility is concerned. On facts, this position is incorrect because the evidence of the witnesses, when scrutinised, clearly indicates that it was not a desire to falsely implicate but, in fact, an obvious error on the part of the witnesses. In an industry like the present one employing a couple of thousand workers when a riot takes place, there is every possibility that the witnesses may err while identifying the culprits. It is precisely for this reason that the Courts have evolved a formula whereby those persons who are not identified by several witnesses are not convicted. Having regard to this position, it would be quite clear that the ratio of Suraj Mal's case is distinguishable.
35. Shri Shirodkar relied on a decision of the Supreme Court in the case of State Delhi Administration v. V.C. Shukla, , whereby the Court rejected the identification evidence on the ground that the identification of a person by the witnesses for the first time in Court when not tested by a prior test identification parade is valueless. This is a well-set principle of law which is not at all in dispute, but as far as the present case is concerned, what needs to be pointed out is that the bulk of the witnesses being officers and employees of the very Company who knew the accused persons and who have named them in their statements, do not require that material to be tested through an identification parade, which is necessary in the case of persons who are strangers to each other. The non-holding of the identification parade, therefore, on the facts of the present case, is of no consequence and will not attract the infirmity that is spelt out in the aforesaid decision.
36. Shri Shirodkar also placed reliance on a decision of the Supreme Court in the case of State of Haryana v. Gurdial Singh 1974 SCC (Cri.) 530, wherein the Supreme Court, while dealing with the question of appreciation of evidence, upheld an order of acquittal where the witnesses had given one version in the evidence before the Court and another in their statements before the Police. He contended that the present case suffers from the same infirmity and that the evidence is liable to be rejected on this count. I have had occasion to comment on the quality and calibre of the evidence and I am unable to find a parallel between the reported decision and the present one. There is no material divergence between the version given before the Police and the evidence before the Court and to this extent, therefore, the decision would have no application.
37. Undoubtedly, the prosecution suffers from many handicaps while dealing with situations of the present type. The law requires that the requisite safeguards be pressed into operation and the law also requires that if there are material infirmities or errors then the benefit must go to the accused. It is also a requirement of law and one of propriety that such incidents, which are extremely serious and which undermine the law and order situation apart from disastrous physical economic consequences not only to the victim, but to the workers themselves, and which, to my mind, are wholly and completely unjustified, cannot be allowed to go unpunished merely because of technical objections or a lax view hitherto taken by the Court. I do concede that the benefit in the borderline cases must go to the accused, but where the evidence establishes that the offences have been established, the law must be applied correctly and firmly. This is precisely what the learned trial Judge had done and I see no ground to find fault with the approach. The convictions, therefore, stand confirmed.
38. This appeal was placed on board for purposes of hearing the learned Counsel on both sides on the question of sentence on August 17, 1993. Mr. B.R. Patil, the learned A.P.P. submitted that once the Court comes to the conclusion that the offences are established, then it is a matter of propriety that the punishment awarded must be commensurate with the gravity of the offences that have been established. Mr. Patil stated that the accused, regardless of whether they were leaders or followers, were the employees of one of the foremost companies in the Pune region and that even at the relevant time, the working conditions and benefits made available to the workers were so benevolent that they were virtually the envy of other corporate employees. He submitted that this aspect is relevant because some sort of justification was put forward by the accused employees that they were agitating for better working conditions. He pointed out to me that the law only entitled the employees to use approved and accepted means for purposes of achieving their objectives and that attempt to murder, resort to force, damaging company property, attacking Police personnel and destroying State property such as the Police wireless van, are all acts of extreme vandalism and virtual terrorism and that these deserve very eterrent punishment. Mr. Patil pointed out that the trial Court had unfortunately taken the view that since considerable tune has elapsed the accused should be shown utmost leniency and in these circumstances awarded a composite sentence of three years rigorous imprisonment to each of the accused. Though there is no application for enhancement of sentence, the learned A.P.P. contended that this is one case in which the consequences do justify the imposition of fine and that secondly, having regard to the damage done particularly to the Police equipment and to State property that a very heavy fine ought to have been imposed. Mr. Patil pointed out that the salary and perquisites that the accused were receiving, even at that point of time, aggregated over Rs. 6,000/- per month and that there was absolutely no justification for the incident except the attitude of the employees that hey would make endless demands and enforce what they wanted, reasonable or otherwise, and the confidence that, as usual, they would get away with what they had done. In these circumstances, Mr. Patil submitted that the Court having regard to the seriousness of the acts in question ought to award a fine of atleast Rs. 2,00,000/- each to the accused as otherwise incidents of this type which are now rampant and which are openly encouraged under the guise of rade unionism will totally undermine the rule of law.
39. Mr. Patil, the learned A.P.P., submitted that he insists on a meaningfully heavy fine being imposed because the message must go out loud and clear that trade unions and their officebearers who advocate violence will have a dear price to pay for it. These accused will undoubtedly look to their union for assistance to pay the fines and only then will the realisation dawn, that violence is intolerable. I see much substance in these arguments for it is unfortunately true in this case that the Trade Union and its leaders were singularly responsible for the resort to violence in utter disregard for the life and safety of others. Unnecessary and unjustified economic loss is another factor which requires to be compensated and if those who cause it are made to compensate for it, they will seriously think twice before advocating such methods. The law does not sanction a weak-kneed approach in such cases, but equires, as of necessity, a reaction that is strict, firm and a deterrent to others similarly inclined.
40. The learned Counsel for the appellants was absent on August 17, 1993 and it was op-posable that since the matter was listed for hearing in Chambers in view of my Division Bench assignment that the same may have been overlooked. I, therefore, adjourned the same to August 25, 1993 in open Court for further hearing in order to afford the appellants another opportunity.
41. Today, i.e. August 25, 1993, Mr. Shirod-kar appearing on behalf of the appellants pointed out to me that unfortunately his Clerk who suffers from cataract had missed out on all the matters and therefore that he was not present on the lastdate of hearing. Mr.Shirodkar submitted that the employees had at the relevant time been trying to get a better deal which was being unreasonably and obstinately resisted and that they had no option except to resort to industrial action. Nobody disputes the right of the workers to ask for better terms, for it is they who generate the wealth in question. The only objection is to their running wild and resorting to violence in the course of which they often destroy the institution that provides them the jobs. The law also needs to take serious note of the economic consequences and the need to protect the lives and limbs of those who are categorised as the management or security staff and the law enforcement agencies - all of whom are the unfortunate targets and ultimate victims. Mr.Shirodkar further states that this Court ought not to view the incident as worker-originated or employee-generated because it was the security officers assisted by the Police who first resorted to force and who indulged in highly provocative and repressive actions and that it was they who inflamed the situation and once there was a free for all it would be unfair to take a rigorous view of the conduct of the employees alone. Mr. Shirodkar points out that a long time has passed and that each of the employees is now very much older, several of them were not even taken back in the employment and that they would be completely ruined if the Court were to visit them with a harsh sentence at this point of time. Mr. Shirodkar also submits that this case must be viewed rom a different angle to normal riots and criminal cases, that the situation had temporarily gone outof control and thatat the highest itcould be put down to an explosion of feelings. He also requested the Court to consider the consequences of the accused being sent to jail at this point of time which would have a disastrous effect particularly on those who would thereby lose their employment. From this point of view, Mr. Shirodkar submitted that the Court ought to accept that the period of imprisonment undergone by each of the accused is sufficientand heprayed for an option of fine. Even with regard to the latter, Mr.Shirodkar made a forceful plea that the fine should be as lenient as possible.
42. Dealing first with the various grounds advanced by Mr. Shirodkar, I need to take con-gnisance of the fact that the accused persons were employed in a company of some status which by Indian standards afforded them excellent working conditions. I have nothing to comment with regard to their desire for even better conditions which they are entitled to get if the situation so warrants. The fact of the matter is that as pointed out by the learned A.P.P. where employees are generously rewarded and they still insist on arrogant indiscipline, violence, looting and burning, a Court will have to view the matter from an angle of utmost seriousness. This is not a case of starving persons in a desperate state who have lost control of their feelings, but this was a case where trade unionism has gone out of control, heavy loss was caused to the plant, the State was put to huge expenditure in maintaining the law and order in that area, a lot of loss was caused to the Police equipment, the wireless van was overturned and burnt and all this was systematically done without the least justification.
43. I have carefully considered the record and I do not find any provocation having been offered. In fact, at all times the security staff and the Police were heavily outnumbered and were at the receiving end all the while. On the contrary, inspite of the management repeatedly requesting the leaders and their followers to behave, there was an unprovoked resort to violence. It is in these circumstances and this background that the Court is required to assessthe fairness of the punishment awarded. The consequences that may arise therefrom are inevitable because these consequences ought to have been considered at the time when an incident of such seriousness was instigated and when violence was systematically resorted to, not on one but on two consecutive days. The facts on record do not justify one iota of sympathy, on the contrary, to my mind, leniency would be misplaced and the learned A.P.P. is ] fully justified in pointing out that in view of the leniency which is often shown by the Courts in almost every such situation nowadays that violence and arson are resorted to with impunity. I am in total agreement with the submissions canvassed by the learned A.P.P. that it is virtually a matter of propriety that the Courts will have to state, loud and clear, that there will be no compromise on these issues and that acts of this type will be firmly and rigorously dealt with.
44. It is true that as many as 14 years have elapsed since the date of the incident. Mr. Shirodkar stated that the union itself has undergone a drastic change as far as the leadership is concerned, that incidents of this type have not recurred and that on the contrary it is a matter of credit that the performance and productivity have shown excellent results. He submitted that in these circumstances if for no other reasons at least on the ground of lapse of time option of fine be afforded.
45. The genesis of the entire operation was in order to demand additional money and as I indicated earlier, the means adopted were other than those which the law approves of. That economic loss was caused apart from injury and loss of life is also established. In these circumstances, I see little merit in directing that this class of persons should be confined to jail for three years as was the sentence of the trial Court and by following such a course of action the State would be put to further expenditure on this count. It would be far more commensurate to the ends of justice to direct that the equivalent of three years' earnings be paid by each of the accused as and by way of fine. If one were to do an exact computation that figure would work out to around Rs. 2,00,000/-. However, having regard to the fact that we are dealing with employees, to my mind, a fine of Rs. 1,00,000/- each would be adequate.
46. The appeal fails and stands dismissed. The sentence of three years' rigorous imprisonment imposed by the trial Court on each of the accused is set aside. In its place, it is directed that each of the accused is sentenced to rigorous imprisonment for the period already undergone and shall also be liable to pay a fine of Rs. 1,00,000/-in default, rigorous imprisonment for three years. The fine in question shall be deposited in the trial Court within a period of six months from today. On receipt of the writ from this Court, the trial Court shall, through the Police, take steps to ascertain from each of the accused as to whether he desires to exercise the option of payment of fine and if so a period of six months shall be granted to the accused, failing which the concerned accused shall be taken into custody for the purpose of serving the sentence. If those who have exercised the option thereafter default, the in-default sentence shall take effect. Bail bonds to stand cancelled on the aforesaid periods elapsing.