1. This Criminal Appeal raises certain issues of far-reaching significance which I am summarizing as follows :
(A) If in the purported exercise of trade union functions an office-bearer assisted by seven of his colleagues, all armed with iron-bars, engage in a murderous assault on the Factory Manager and other officers who are able to ward off the intensity of the attack and thereby not only survive but suffer relatively minor injuries, whether the accused can contend at the highest that they are liable only for causing simple hurt and that the conviction for attempt to murder under such circumstances is erroneous; and
(B) Whether the Accused in such circumstances who are admittedly employees of the Company and workers engaged in the factory who have unauthorisedly stormed into the cabin of the Factory Manager can be independently convicted on a charge of criminal trespass in the light of their defence that as employees they have every right to enter any part of the Company's premises and cannot, therefore, be said to have committed that offence.
2. The facts of this case present a distressing and at the same time most alarming situation; being also representative of the type of incidents which are becoming increasingly common and are resorted to with impunity under the guise of purported exercise of trade union activities or rights. The four appellants, who were employees of Crompton Greaves Ltd., Nasik, were original accused Nos. 3, 6, 7 and 8, along with four other workers, were put on trial before the learned Sessions Judge, Nasik, in Sessions Case No. 62 of 1983. The eight accused were charged with having committed offences punishable u/Ss. 307 read with 149, S. 324 read with 149 and S. 452 read with S. 149 of the Indian Penal Code, as also individual charges u/Ss. 148, 143 and 147 of the Indian Penal Code. The Prosecution case was that on 1-2-1983, the eight accused, out of whom accused No. 7 was the union leader, were members of an unlawful assembly and that they had stormed into the office of Shri Deodhar, Works Manager of the Crompton Greaves Factory at Nasik at about 3-30 p.m. armed with 3 1/2 feet long iron-rods and that they had subjected him to a murderous assault as a result of which Shri Deodhar sustained multiple injuries.
3. The background to this assault appears to be that accused Nos. 3, 6 and 8 had been placed under suspension by the Company on 4-1-1983. It is alleged that on 31-1-1983 a minor altercation had taken place in the Company's canteen between one Shri Khairnar, an operator, and a canteen boy because Khairnar is alleged to have asked for milk which the canteen boy was unable to supply; whereupon he got aggressive and insisted that the milk be supplied to him. In the course of the quarrel, the canteen boy is alleged to have taunted him by stating that if he paid Rs. 500/-, he would supply him with a woman's milk. Enraged at this incident, accused No. 7 Karwal, a militant leader of the workers, threatened Shri Deodhar that if immediate action is not taken against the canteen boy, they would bring the factory work to a standstill. Deodhar requested accused No. 7 Karwal for some time on the assurance that he would investigate into the incident and certainly take action against the canteen boy, if the complaint was true, but Karwal and his followers refused to wait and brought the work in the factory to a standstill on the demand that action must be taken within ten minutes. Karwal carried out his threat of bringing the work to a standstill; whereupon Deodhar communicated the suspension of work to the head office at Bombay as a result of which on the next morning senior officers of the Company reached Nasik.
4. It was contended on behalf of the Prosecution that this behaviour of Kerwal and others on 31-1-1983 was representative of the degree of lawlessness which was characteristic of their general behaviour. Accordingly, a decision was taken by the officers on the next day to suspend Karwal and a suspension letter was accordingly dictated and a charge-sheet along with the suspension letter was typed out by Nasikkar, who was the stenographer attached to the officer. It was decided that these documents would be served on accused No. 7 Karwal when he was leaving the factory premises at 3-30 p.m. at the end of his shift. Accordingly, the Security Officer, Shri Chalpati, was asked to serve the charge-sheet on him when he was leaving the premises. It is alleged that Karwal got infuriated because of the service of the charge-sheet on him and rushed back into the factory accompanied by original accused Nos. 3, 6 and 8, who had earlier been placed under suspension and had entered the factory even though they were not authorised to do so. These four persons, accompanied by four other workers who formed the original band of eight persons, picked up iron-rods from the factory premises and rushed into the cabin of Shri Deodhar and mercilessly assaulted him with those iron-rods. Hearing the shouts of 'maro, maro', Shridhar Khare, General Manager of the company, who was in another cabin, rushed towards Deodhar's cabin. On his way into that cabin, he was also assaulted with iron-rods, but he was able to enter the cabin and close the door. In the meanwhile, Deshmukh, Personnel Manager, and the stenographer Nasikkar, who had followed Khare, were assaulted by the accused outside Deodhar's cabin with iron-rods. When their attempts to open the door of Deodhar's cabin were foiled by Khare who had held firmly on to the nob, all the eight accused rushed away from that place. On coming out of Deodhar's cabin, Khare found that Deshmukh and Nasikkar were lying injured outside Deodhar's cabin. Deodhar had sustained several injuries and was in a dazed condition. Immediate police help was asked for. The victims were given first-aid and were thereafter taken for medical treatment.
5. On the basis of this incident, the Police arrested original accused Nos. 1 to 8 and charge-sheeted them pursuant to which they were tried by the learned Sessions Judge, Nasik. The learned Sessions Judge, after a detailed analysis of the evidence, came to the conclusion that accused Nos. 1, 2, 4 and 5 were entitled to an acquittal because the evidence did not conclusively establish the charges against them. As regards accused Nos. 3, 6, 7 and 8, the learned Sessions Judge convicted the accused and sentenced them to varying terms of imprisonment and fines ranging from 5 years to 6 months and from Rs. 200/- to Rs. 100/- respectively. It is against this conviction that the present appeal has been filed.
6. Mrs. Bhosale initially and Mr. Raja Bhosale who took over thereafter, learned Counsel appearing on behalf of the appellants, have taken me in considerable detail through the oral evidence of the Prosecution witnesses and the respective medical certificates as also the medical evidence on record. He has also referred in detail to the judgment of the learned Sessions Judge. Mr. Bhosale has begun with a generalized attack against the Prosecution witnesses, all of whom are officers of the Company. It is his contention that, admittedly, accused No. 7 was a leader of the workers and that he used to take up issues on their behalf as a result of which he had incurred the wrath of the management. Accused Nos. 3, 6 and 8 were similarly situated to accused No. 7 which was evident from the fact that they had already been placed under suspension on 3-1-1983; whereas accused No. 7 Karwal came to be suspended on the date of the incident, i.e., on 1-2-1983. Mr. Bhosale contended that admittedly, some incident took place on the afternoon of 1-2-1983 at the factory in the course of which the four officers sustained injuries. Taking advantage of this incident, he submitted, that a deliberate attempt has been made to falsely involve the four accused who are the appellants before this Court because of the hostility which the officers, who represented the management, bore against these accused persons. As an illustration, Mr. Bhosale submitted that accused Nos. 3, 6 and 8 were admittedly under suspension and, therefore, could not have been anywhere within the factory premises, and if out of hostility these three accused have been wrongly involved in the incident, there is every reason to hold that accused No. 7, who was a leader of the workers, would also be falsely implicated.
7. It is necessary to dispose of this defence of alibi of sorts which has been pleaded by Mr. Bhosale as far as accused Nos. 3, 6 and 8 are concerned. It is true that they were placed under suspension, but there is nothing on record to indicate that these three accused had been stopped from entering the factory premises or that the documents which they required for this purpose, such as their identity cards, had been taken away from them. On the contrary, as is characteristic with the conduct attributed to these persons, there is the specific evidence of the factory's security staff who stated that these three accused had bulldozed their way into the factory premises without asking anybody's permission at the time when the workers belonging to the first shift were leaving and those belonging to the second shift were entering at 3-30 p.m. which was the point of time when the charge-sheet and suspension orders were served on accused No. 7 Karwal. These very witnesses have deposed to the fact that Karwal had got infuriated and rushed back into the factory premises accompanied by these three persons and others. The service of the charge-sheet on Karwal is obviously the reason for his fury and this circumstance fully supports the Prosecution case because it has come into evidence that the incident of the previous day had taken place between Karwal and Deodhar, the Works Manager, which had led to Karwal's suspension. Moreover, it has also come in evidence that in the course of that day Karwal had come to know about the decision taken to charge-sheet him and that he had even arrogantly questioned and threatened the stenographer, Mr. Nasikkar, who was in charge of typing the document.
8. The arrogance associated with Karwal's behaviour completely explains his volatile reaction in instigating the remaining persons to use violence against the officers of the Company. As indicated earlier, accused Nos. 3, 6 and 8 had already been suspended and it is obvious, therefore, that they were willing participants in such an operation. In the light of this background, it would be impossible to uphold the submissions advanced by Mr. Bhosale that the Officers who have been assaulted on that day would suppress the names of the actual assailants and that they would falsely implicate the present accused purely out of hostility. On the other hand, the status and background of the four accused coupled with the aggressive and indisciplined behaviour attributed to them in the recent past lends support to the Prosecution case that they had every reason to resort to violence. The incident has taken place in broad daylight, the accused are all known persons and there is overwhelming evidence of a perfectly reliable calibre to establish their presence and participation in the incident.
9. Before proceeding further, it is essential to deal with the second submission advanced by Mr. Bhosale which was to the effect that the basic charge against the accused was that they were members of an unlawful assembly. Mr. Bhosale submitted that it is a requirement of law that five or more persons are required to form an unlawful assembly and that even though eight accused were placed on trial, four of them have been acquitted, the charge of forming an unlawful assembly, according to him, must automatically fail. As against this, Mr. Patil, the learned A.P.P. has pointed out that the witnesses have uniformly deposed to the presence of the eight persons in the course of the assault but that the learned Sessions Judge has acquitted four of the original accused on the ground that a careful scrutiny of the oral evidence will indicate that there are some inconsistencies with regard to the involvement of the remaining four accused and that, as consequently, if would be unsafe to convict them. What the learned trial Judge has, in fact, done is to give the benefit of doubt to the remaining four accused, but there is no finding anywhere to the effect that only four persons had taken part in the assault or for that matter that the witnesses are falsely deposing about the presence of the eight accused. In this view of the matter, it must be held that the acquittal of the remaining four accused will not in any way affect either the validity or the legality of the conviction of the present four accused on the charge of forming an unlawful assembly. The position would have been entirely different if only four persons had been ultimately charge-sheeted, even if more had been originally arrested, or if there was a conclusive finding that not more than four persons were present at the time of the incident. On a scrutiny of the oral evidence, I am convinced from the nature of the assault and the number of injuries inflicted on the four officers as also from the number of iron-rods that were found that more than four persons were involved in the incident and, consequently, the technical plea advanced by Mr. Bhosale must fail.
10. Mr. Bhosale has next attacked the validity of the conviction u/S. 149 of the Indian Penal Code on a technical ground. He contended that, undoubtedly, every member of an unlawful assembly may be held guilty of the offences committed in prosecution of a common object provided the judgment can establish the formation of an unlawful assembly involving these very accused and not others. Mr. Bhosale has drawn my attention to the fact that even though at the commencement of the trial there were eight accused before the Court that the learned Sessions Judge has acquitted original accused Nos. 1, 2, 4 and 5, thereby leaving only four of the present appellants who were original accused 3, 6, 7 and 8, who stand convicted. Mr. Bhosale pointed out that the condition precedent for the formation of an unlawful assembly is that five or more persons have joined together for the purpose of commission of an illegal act and that since four of the original accused have been acquitted, it will have to be necessarily held that those four persons had not participated in the incident and that through a process of elimination, therefore, the conviction u/S. 149 of the Indian Penal Code would have to fail.
11. As against this, Mr. Patil, the learned A.P.P., has called my attention to the relevant parts of the judgment of the trial Court wherein the learned Sessions Judge has given the benefit of doubt to four of the original accused, the main reason for this being that there are some discrepancies with regard to their involvements vis-a-vis different witnesses. In view of these infirmities, or in other words since the witnesses did not consistently involve these four accused, the learned Sessions Judge gave them the benefit of doubt. It is material to note that those accused have only got the benefit of the lack of strict and consistent identification. The learned Sessions Judge has not recorded any finding to the effect that these accused were not present or that they were falsely implicated. It is necessary to delve on this aspect of the case because the benefit of doubt given to those four accused only meant that, having regard to the consequences of a conviction, the learned Judge felt that where the evidence did not establish their involvement to the hilt that as a rule of caution they ought not to be convicted. That order has become final, but the question is as to whether the remaining accused can derive any undue benefit from such a situation.
12. It is well settled law that even in cases where an unlawful assembly has taken place and where some of the accused are not traceable or are not identified, the charge can still be sustained even if those persons were others unknown. The evidence in this case is overwhelming to indicate that eight persons had taken part in the assault and that all eight of them were acting in consort, the present four appellants being part of that unlawful assembly. To my mind, therefore, the lack of identification of the remaining four accused does not in any way weaken the conviction u/S. 149 of the Indian Penal Code that too on a highly technical ground.
13. Mr. Bhosale drew my attention to the medical certificates of the injured persons wherein the injuries in relation to a fracture and dislocation did not initially appear. Mrs. Bhosale argued that the Court must take an extremely serious view of this and conclude that the mention of a fracture and of a dislocation, subsequently, constitutes an act of interpolation and she expounded her arguments by stating that the evidence has been tampered with. This submission has been strongly canvassed by Mr. Bhosale who thereafter took over the arguments. He stated that this Court will have to consider the special facts of this case, namely, that the officers who belonged to the management and who bore a strong animus against the present four accused who in turn were active unionists, were determined to implicate them to the maximum extent and when they found that the injuries which had been sustained were relatively simple that they decided to interpolate the medical certificates.
14. Learned counsel appearing on behalf of the appellants are right about the subsequent addition of these two injuries, but the explanation put forward by the learned A.P.P. completely and fully sets out the correct position. He has pointed out that it has come in evidence that the initial injuries which were noted and which are reflected in the medical certificates did not refer to these two injuries because it was only after the patients were X-rayed that these initial injuries were detected and that explains why they were subsequently noted. In order to test the correctness of this explanation, I have examined the relevant evidence and found that, in fact, the injuries had been sustained by the concerned witnesses, because they have undergone considerable treatment for the same. It would absurd to argue that they underwent the treatment in the absence of the injuries or for that matter the injuries were self-inflicted or that they had occurred in some other incident. Consequently, this ground of attack stands repelled.
15. Much was sought to be made of the admissions given by the two doctors, namely, Dr. Bagade (P.W. 7) and Dr. Kakatkar (PW. 8), both of whom were specifically asked in the course of their evidence as to the gravity of the injuries that had been inflicted on the witnesses. It is unnecessary for me to reproduce in detail the injuries that had been sustained by Shridhar (P.W. 2), the General Manager; Satish Deodhar (P.W. 3), the Works Manager, Madhukar Deshmukh (P.W. 4), the Personnel Manager, and Shrikant Nasikkar (P.W. 5) the stenographar, all of whom sustained two sets of injuries, the first of them being cuts and bruises on their heads, backs and various parts of the upper bodies and the second set of injuries being fractures and dislocations, all of which were essentially internal injuries. Much capital was made of the fact that none of the external injuries was of such a nature as would come under the head of grievous injury and similarly the internal injuries were minor fractures or dislocations. There were no ruptures or injuries to any of the vital internal organs. The thrust of the arguments advanced by learned counsel for the appellants, therefore, revolves around the fact that the doctors, when questioned, admitted that the injuries in question were simple injuries. It was, therefore, submitted that two irresistible conclusions must be drawn from this record, the first of them being that the incident has been grossly exaggerated and played up out of all proportion because the injuries themselves indicates that nothing serious had happened. Secondly, what is argued is that the charges under S. 307 of the Indian Penal Code, namely attempt to murder, and under S. 324 of the Indian Penal Code would both have to be set aside. Mr. Bhosale submitted that even if the accused were found guilty and were convicted that it could not be for anything other than the offence under Section 323 of the Indian Penal Code simpliciter.
16. Mr. Patil, the learned A.P.P., has countered this argument by pointing out that a person can be convicted for an attempt to murder even in a case where little or no injury is caused and that the gravity of the actual injuries inflicted is no test. I shall deal with this conviction under Section 307 of the Indian Penal Code separately, which in the context of the present case, requires deeper consideration. A regards the second head of argument, namely, the question of a conviction under Section 324 of the Indian Penal Code, it needs to be borne in mind that the nature of the weapons used and the fact that they have caused hurt is all that is material. In the present instance, the weapons used more Iron-bars, and these, if used for assaulting a person, would certainly be characterised as weapon likely to cause death. Furthermore, the fact that the injuries inflicted were aimed at and were, in fact, inflicted on vital parts of the body is sufficient to bring the case within the ambit of Section 324 of the Indian Penal Code. To my mind, the oral opinion of the doctors as to whether the injuries were simple or grievous must necessarily be viewed in the context of the fact that the doctor was opining from the point of view as to whether the injuries were of a type which would immobilises or cripple a person or whether they would endanger life and if they did not come within these categories they were characterised as simple.
17. Mr. Bhosale did insist on pointing out that if the intention was to cripple or to kill that the blows would have been of a much greater intensity and for a long duration of time. The fact that less force was used and that fewer number of blows were inflicted would be indicative of the intention to only cause simple hurt at the highest. It is extremely difficult, in the context of the present case, to accept this argument because the evidence indicates that the main target was Satish Deodhar (P.W. 3), who was initially attacked. It is because of the intervention of the remaining officers that the accused turned their attention towards the other persons who were, in turn, assaulted, by which time they were able to close the cabin. It is in evidence that because the accused could not open that cabin that they finally went away. But for the intervention of the others, there is little doubt under the circumstances of this case, that the attack on Satish Deodhar (P.W. 3) would have had fatal consequences. These are all attendant circumstances which cannot be divorced from the medical certificates and which cannot be disregarded while assessing the intention of the accused and the real nature of their acts. The learned Sessions Judge, to my mind, has, therefore, correctly held that the accused are liable to be convicted for the offence under Section 324 of the Indian Penal Code.
18. As indicated earlier, the entire incident took place in broad day light in and around that cabin of Satish Deodhar (P.W. 3). The main witnesses, Shridhar Khare (P.W. 2), Satish Deodhar (P.W. 3), Madhukar Deshmukh (P.W. 4) and Srikant Nasikkar (P.W. 5) are all officers of the Company, with the exception of the last one who was a stenographer attached to the management. This case had a background in so far as the trouble had started from the previous day and the record also indicates that three of the accused had been suspended for misconduct, and the fourth one had also been suspended on that very day. The identity of the accused was not in doubt in so far as the accused were employees of the very Company, they were well-known to the witnesses and in the present context they stood out even more by reason of their misbehaviour which had sought them out for being charge-sheeted. The fact that accused Nos. 3, 6 and 8 had entered the factory premises just prior to the incident is deposed to by Chalpati as also by Laxman Shitole (P.W. 9), who is the Security Supervisor. The evidence of the injured witnesses is fully corroborated by the documents on record and by the injuries on their bodies. Mr. Bhosale contended that the accused belonged to the workers segment and were all union persons and the witnesses all belonged to the management which he termed as the opposite and hostile camp and he, therefore, submitted that in absence of independent evidence, the Court ought not to accept their say. Two aspects are crucial here, the first of them being that the witnesses have remained unshaken in cross-examination. The learned A.P.P. has drawn my attention to the fact that whereas incidents of intimidation and assault of this type are on the increase in the industrial field and that the poor victims are invariably intimidated and are generally unable to give evidence against the accused for fear of repercussions. This being one of the unusual and few cases where they have came forward and substantiated their complaint, the Court must take a very serious view because it is a rare instance where such offenders have been brought to book. Unless their evidence was quite truthful and unless they were genuinely aggrieved by virtue of the assault, these witnesses would not have come forward to give evidence and run the risk of incurring the wrath of the workers. Undoubtedly, this position is true and indicates that there can be little doubt about the veracity of these witnesses. Furthermore, regarding Mr. Bhosale's demand for independent corroboration, where the entire assault has taken place within the factory premises, it would be absurd to expect independent persons as witnesses because such persons would never have occasion to be present there. After a careful scrutiny of the evidence on record, I am more than fully satisfied that the learned Sessions Judge was fully justified in having accepted this evidence and having based a conviction on it. At the same time, it is necessary for me to observe that the evidence does make out a sufficiently strong case against the remaining four accused who were acquitted. The learned Sessions Judge adopted, to my mind, a test of undue rigorousness and, therefore, gave them the benefit of doubt which ought not to have been done on the basis of the material before the Court. However, since there is no appeal against the order of acquittal, that order will have to stand.
19. As indicated earlier, it has been submitted by Mrs. Bhosale who has referred in detail to the relevant parts of the evidence that the injuries that were inflicted as a result of the assault were of a comparatively minor nature and that, consequently, the conviction under Section 307 of the Indian Penal Code is assailable. Mrs. Bhosale elaborated by contending that admittedly minor fractures and injuries, though some on the vital parts of the body and what she termed as a relatively trivial nature, had resulted, According to her the test which this Court can apply is as to whether the accused can be said to have attempted to murder the victims of the assault or whether it was a clear and simple case of attacking them possibly knowing that some injuries would result. Mrs. Bhosale has vehemently contended that it is crucial to note that the weapons used were iron bars and that if the intention was to commit murder, knives or fire-arms or lethal weapons would have been used and further that if the object was to kill, then nothing stopped the assailants from using that degree of force and attacking for a length of time until the victims were beaten to death. The duration of the incident and the fact that much force was not used according to Mrs. Bhosale are both sufficient pointers to the fact that the intention was only to hurt and not to kill.
20. At the resumed hearing, Mr. Bhosale, learned Counsel appearing on behalf of the appellants, who took over the conduct of the case, advanced another argument to the effect that the only safe and proper basis or standard which a Court can apply for purposes of determining the character of the offence is the nature of injury that has resulted. Where the injuries are of a serious nature, such as in a case where a man is stabbed on a vital part of the body and survives because of timely medical attention or such other factors, a Court would be justified in holding that it was attempt to murder. Mr. Bhosale states that along with this the real test to be applied is as to whether, but for the intervention of some factor, the victim would have died. In this regard, Mr. Bhosale had relied on a series of decisions, in all of which it was demonstrated that the act was of such a nature that in normal course it would have caused death that only because of a defect in the gun or because of a last minute intervention that the blow had missed its target. Using these decisions as a support, he submits that where no such factor has intervened, the reverse position would apply in so far as it will have to be held that the accused could never have intended to cause death.
21. As against this position, the learned A.P.P. submitted that the facts of this case alone are material and he contended that where it is conclusively established that a group of well-built, physically strong young men pick up iron bars and assault the officers of a company in unison, that it is more than self-evident that they knew and had reason to believe that their acts would result in the death of the victim. The fact that the victims were able to defend themselves by warding off the blows to some extent does not lessen the gravity of the assault. The learned A.P.P. has argued by quoting an enalogy, and to my mind a correct one, that if the object was merely to beat up the officers and not to kill, that the accused would have only used their fists because the victims who were assaulted one after another were very much out-numbered. In having picked up iron bars and having chosen vital parts of the body like the head, it was very clear that the object was to finish off the victims.
22. In Jai Narayan's case : 1972CriLJ469 , the Supreme Court considered such situations when it upheld a conviction under Section 376 and Section 324 of the Indian Penal Code instead of Section 307 of the Indian Penal Code on the ground that even though the accused used a Farsha that since they had attacked with the blunt side and not the sharp edge that it was clearly demonstrated that the intention was not to kill. Beaumont, C.J. in Vasudeo Gogate's case reported in : (1932)34BOMLR571 had observed 'to support a conviction under the section the accused should have done the act with such intention and knowledge and under such circumstances that but for some intervening act the act would have amounted to murder in the normal course of events.'. In Om Prakash's case : [1962]2SCR254 , the Supreme Court has held that a person commits an offence under this section when he has the intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is an ultimate act or not. The legal position has, however, been concluded by the decision of the Supreme Court in the case of State of Maharashtra v. Balaram Vama Patil : 1983CriLJ331 , wherein the Supreme Court has held that to convict under Section 307 of the Indian Penal Code it is not necessary to show that the bodily injury capable of causing death was inflicted but the Court has to see whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in this section. Attempt need not be an ultimate act. It is sufficient if there is an intent coupled with some overt act in execution thereof.
23. It is these principles essentially that will have to be applied for purposes of ascertaining whether the conviction in this appeal under Section 307 of the Indian Penal Code is sustainable or not. In the first instance, the assault was not on a person to person basis but the accused formed a group and attacked the officers of the Company when they were taken totally unawares and that too one at a time. In gauging their intention and the aspect of mens rea, what is crucial is the fact that they did not go with the intention of assaulting but that they picked up iron bars which, in these circumstances, must be categorised as deadly weapons. Again, the intention was not to intimidate because the weapons were used without any restraint and the blows were aimed at the most vital parts of the body, namely, the heads of the victims. It is true that, as is natural, the victims tried to ward off the blows by using their arms to defend themselves or by trying to bend or move out of the way and in the process got injuries also on the other parts of their bodies. Coupled with this is the fact that it was not just one or two blows that were aimed on the victims but in each of the cases, the evidence indicates that the assault was for long enough until the victims collapsed. Where a group of persons assaults a single individual with iron rods, the duration of time required to kill would not necessarily be long, and under these circumstances where the victims were assaulted in succession merely because the time spent on each one was relatively short it would not, to my mind, change the complexion of the assault. In this view of the matter, I have no hesitation in holding that the conclusion of the learned Sessions Judge that the accused assaulted the victims with the intention and knowledge that their acts would cause death is a correct finding and accordingly, the conviction under Section 307 of the Indian Penal Code will have to be upheld.
24. Mr. Bhosale, learned counsel appearing on behalf of the appellants, has severely attacked the conviction of the accused for the offence of criminal trespass under Section 452 of the Indian Penal Code. According to the learned Counsel, the framing of the charge under this section and the conviction thereunder are both wholly misconceived. He elaborated by submitting that the very concept of trespass pre-supposes entry into property in the possession of another person. He stated that the entry of the accused into the cabin of the Works Manager and the surrounding areas where the assault of the other officers and taken place can under no circumstances be termed as an act of trespass because the vital ingredient, namely, the entry into property in the possession of another is lacking. Even if it were to be held that the offence of assault was proved against the accused, according to Mr. Bhosale, implying thereby that the second part of the ingredients of Section 441 of the Indian Penal Code may be fulfilled, it would be absurd to contend that the accused who were admittedly employees of the Company can be convicted for having entered into these areas. Mr. Bhosale contended that the case law amply demonstrates that the grevamen of the offence of criminal trespass is founded in property disputes wherein the accused have encroached upon property of which they were not in possession and their entry on which property is neither sanctioned nor justified, and where such entry is for purposes of intimidating, insulting or annoying persons in possession, can the concept of trespass be introduced. In the present case, the accused persons were employees of the Company, above all they were trade unionists and, consequently, their having entered the area set aside for the management would by no stretch of imagination be regarded as trespass.
25. The main offence against the accused having been established, I would not have normally gone into any detailed analysis of this subsidiary issue except for the fact that the conviction having been recorded under this section also, it is essential that it be examined in its entirety. More so, Mr. Bhonsale has stated that he desires this point to be decided because it would have far-reaching repercussions, particularly in the field of industrial relations. Trade unionists in the course of their dealings with the management at times of dispute are neither invited nor are they welcomed into the areas segregated for the management personnel and they are, therefore, required to invariably go into these precincts against the wishes or sanction of the management. Mr. Bhonsale also referred to the popular form of peaceful agitation which may be a 'gherao' in support of workers' rights or demands. If the mere act of entry without due or prior sanction is to be construed as a criminal offence, Mr. Bhonsale submitted that it would lead to disastrous consequences because the rights of trade unionists would be thereby stifled. It was, therefore, essential to hold that the entire area of the Company's premises must be deemed to be in common use and possession of all employees, even if there are a set of norms setting apart different parts for different functions. Forcible entry into the manager's cabin or such other areas, even if held to be an act of indiscipline, would be wholly outside the ambit of an offence of trespass, he submitted.
26. As against this position, the learned A.P.P. has submitted that this Court must take a very serious view of what had happened in the present case because it has virtually become the order of the day for employees and trade unionists to consider it to be their birth-right to enter without sanction or permission even the office rooms and cabins of the officers and managers and in the guise of agitating their claims they virtually come there to intimidate, threaten and even assault persons in-charge of the management. On the facts of the present case, it was submitted by the learned A.P.P. that the evidence very clearly discloses that the factory was independent, and that it was distinctly segregated from the office area and that there was no justification at all for the accused to have entered that areas. He further stated that if makes little difference whether the accused were ordinary employees/workers, or trade union leaders because even a trade union leader has no right to kick the door of the Manager open and storm into his cabin accompanied by a group of violent persons. The learned A.P.P. has, therefore, submitted that the law does not sanction, even in the exercise of trade union rights, the forcible entry into the areas that are segregated for the management and that if such entry is for purpose of committing a criminal offence, that the act of criminal trespass is complete.
27. What needs to be borne in mind in the present case is that the plea regarding the status of the accused being trade union leaders is, to my mind, wholly irrelevant. The short question is as to whether the area entered by them can be regarded as their work station and secondly as to whether there was any prohibition against their entry. Mr. Bhonsale's argument in this regard was that the entire area occupied by the factory premises must be said to be notionally in the joint possession of all employees who work there regardless of whether they belong to the management or the work force. In the context in which these accused were placed, this argument is fallacious. It is true that the workers have the right of movement in and around the factory premises. The workers, however, admittedly do not have either the right or the authority to enter into the cabins that have been set apart for the officers. In the present instance, these cabins were quite separate from the areas which were frequented and used by the workers. If the workers were required by the officers, they could be called into the cabins a classic situation being where the negotiations were to take place with the workers or their representatives. Beyond this, however, the position that obtained was that the accused who were workers of the factory had no right to enter the cabins occupied by the Managers without their permission. We do not have to consider a situation other than the present one wherein the accused persons without obtaining the prior permission or sanction of the officers stormed into the cabins armed with deadly weapons and under these circumstances, it is no defence for them to argue that they had not committed an act of criminal trespass. The conviction under Section 447 of the Indian Penal Code is, therefore, fully justified and is accordingly confirmed.
28. In view of the seriousness which Mr. Bhosale attaches to this aspect of the case, it would be useful for this purpose to advert to the definition of trespass as it appears in S. 441 of the Indian Penal Code, which reads as follows :-
'441. Criminal trespass - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'.'
29. In spirit and in substance, the ingredient of an offence of trespass pre-supposes that entry for innocent purposes, in other words, if the entry is not for purposes of committing an offence or to intimidate, insult or annoy the person in possession of the property would not be construed as an offence. For this purpose, the circumstances under which the entry has been made are of paramount importance. If the entry is without authority in so far as the person entering had no permission to do so or in the second category of cases where the entry was authorised but by virtue of the subsequent misconduct of the person it transformed itself into an offence under the second part of Section 441 of the Indian Penal Code, the offence of trespass would be complete.
30. Halsbury has defined the 'trespass' as follows :-
'Trespass is a wrongful act in terms of the possession of property of another or against the person against his will. To constitute a trespass the act must in general be unlawful at the time when it was committed.'
This is the view followed by the Madras High Court in the case of V. Krishnappa Naidu v. The Union of India, 1975 A CJ 532 :AIR 1976 Mad 95.
31. While dealing with the position under English Law, Black's Law Dictionary defines 'criminal trespass' as follows :-
'Criminal trespass is entering or remaining upon any land, structure or vehicle by one who knows that he is not authorised or privileged to do so and he enters and remains therein in defiance of the order not to enter or to leave such premises or property personally communicated to him by the owner thereof or other authorised person or that such premises or property are posted in a manner reasonably likely to come to the attention of intruders or are fenced or otherwise enclosed.'
Under the English law, joint trespass exists where two or more persons unite in committing it or some actually commit the tort, the others command, encourage or direct it. Further, the English Courts have defined a trespasser as 'one who intentionally and without consent or privilege enters another's property', Fite Gerald v. Montgomery County Board of Education 25 MD APP 709.
'A person who enters on the property of another without any right, lawful authority or an expressed or implied invitation or licence.', Moris v. Atchison, T. & S.F. Railway Company 198 KAN 147.
32. What emerges very clearly with regard to the concept of criminal trespass from the various authorities is that the encroachment beyond prescribed barriers, be they physical or otherwise, without invitation or due authority for means that would render such entry or continuation of such entry unlawful must be regarded as an offence. The question in the present case narrows down to whether the accused's entry into Deodhar's cabin and the area around it which was admittedly segregated for private use of the concerned officers and admittedly was an area to which the present accused had no right of entry except if permitted or invited will have to be held as an act of trespass because the accused had entered for purposes of committing a criminal offence.
33. In this context, it is necessary to deal only in passing with the submission of Mr. Bhonsale who tried to overcome the hurdles in his way by contending that the premises should be deemed to have been in the joint possession of the Company's employees. Factually, this position is incorrect because, admittedly, the accused were neither working in that area nor were they permitted to enter those places except when invited or with due permission. Also, the law does not recognise even the right of a joint owner of land if he enters upon the land with the intention or knowledge of doing a wrongful act because such an entry would be construed as a trespass. (Ram Prasad (1911) 8 All LJ 927 : 1911 Cri LJ 532. The reasoning in this case very briefly was to the effect that there is no immunity even to a person who is in joint possession if the object of entry is to transgress upon the rights of even the co-owner, because the law does not accept such infringement.
34. The last contention which Mr. Bhonsale urged in this regard was that the Court must construe this section liberally and take a broad view of the matter because otherwise every time a trade unionist or a worker makes a forcible entry into the management area he would head for a conviction. I am unable to agree with this argument because the provisions of the Indian Penal Code must be strictly construed and must be enforced with an equal degree of correctness. The fact that it has become the order of the day for workers or trade unionists to bulldoze their entry into the management areas is no justification. On the contrary, it is all the more necessary that such indisciplined acts must be stopped and if they are indulged in, then the inevitable consequences must follow. It is wholly impermissible in law to contend that a criminal trespass of this type should be lightly viewed.
35. Apart from the convictions under Section 307 read with Section 149, Sec. 324 read with Section 149 and Section 452 read with Section 149 of the Indian Penal Code, the learned Sessions Judge had also convicted the accused for offences under Secs. 148, 143 and 147 of the Indian Penal Code. As regards the first of these three convictions, the learned Sessions Judge has imposed a sentence of 6 months rigorous imprisonment and a fine of Rs. 100/-, in default, rigorous imprisonment for two months. No separate sentences have been awarded under the last two convictions. Dealing with the correctness or otherwise of these convictions, Mr. Bhonsale submitted that even if the Court were to uphold the convictions on the first three counts since a conviction under Section 149 of the Indian Penal Code has already been recorded against the accused that the present three heads of conviction would virtually amount to a duplication in so far as the charges themselves are overlapping. This submission of Mr. Bhonsale must be upheld because it is absolutely correct that as far as the present incident is concerned where the accused have already been charged and convicted of the offence of being members of an unlawful assembly, the object of which was to commit substantive offences, the charge of rioting or forming an unlawful assembly simpliciter would be redundant and would not survive. Consequently, the convictions under these sections will have to be set aside and the appeal will succeed to that limited extent.
36. The learned Sessions Judge has given special consideration to the question of sentence and he has observed that the accused had taken the law into their own hands and they had no business to disturb industrial peace and that, consequently, they will have to be dealt 'with a firm hand with all seriousness'.
37. Mr. Bhosale had submitted that the accused at the relevant time were young men aged between 24 and 30 years. He stated that the accused have been dismissed from their jobs as a result of this conviction and that this itself was a very serious punishment. He further submitted that the accused had no criminal background and that it was quite obvious that the incident had taken place on a sporadic impulse. Mr. Bhosale put it down to 'the fire of youth' and 'a sudden rush of blood' and he made a strong plea to this Court that utmost sympathy be shown to the accused in the matter of sentence.
38. The High Court's powers in appeal are, undoubtedly, absolute in so far as the entire case is open. Where the trial Court has exercised its discretion in the matter of sentence, this Court ought not to normally interfere with that order unless there are compelling circumstances to do so. To my mind, there does not appear to be any valid ground on which interference with the sentence passed by the lower Court would at all be justified. The facts of this case are so gross that had there been an enhancement notice, this would have been a fit case in which the punishment awarded would have been stepped up.
39. It is true that the modern trend as far as sentencing is concerned requires that jail sentences should be sparingly awarded if other forms of punishment can meet the ends of justice. In cases involving extreme violence, however, the latest thinking on the point is that a jail sentence for a prescribed period is not only recommended but is essential because it is in the social interest that persons who have displayed such dangerous and violent tendencies should be segregated from society at large for some time so that during the period of imprisonment the public at large would be safer and they (accused), in turn, would repent for their offences. Dealing with a case involving horrifying violence, Krishna Iyer, J. (as he then was) observed in Paras Ram's case : (1981)2SCC508
'Secular India, speaking through the Court, must administer shock therapy to such anti-social 'piety', when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social Justice has many facets and judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants.'
40. There is one special feature of which this Court must take serious note, and that concerns the pointed and repeated references made by the learned Sessions Judge and by the learned A.P.P. before me, to the disturbing fact that this case concerns violence of an extreme form resorted to by industrial workers. Mr. Patil has pointed out that Crompton Greaves Limited is one of the better companies where the employees get excellent remuneration and service benefits hence indiscipline and resort to violence by this class of persons invites deterrent punishment. He has argued that in the present situation where unemployment and under-employment, not to speak of exploitation, are rampant, employees who are not serious about their work and who, under the guise of trade unionism, indulge in violence that too within the Company's premises must be severely dealt with. Dealing with Mr. Bhosale's argument that the accused have lost their jobs because of the convictions, Mr. Patil submits, and perhaps justifiably, that the acts of the accused are such as have disqualified them from being continued in employment as the presence of such persons itself is dangerous to the life and welfare of their co-employees.
41. The learned A.P.P. is right in having alluded to the unfortunate fact that resort to extreme violence and even lesser forms of indiscipline have unfortunately become synonymous with the 20th century trade unionism in this country. The security and safety of the Company's employees and its plant and machinery are considerations of paramount importance. The law recognises and protects the right of workers and employees to demand what they are fairly entitled to and to insist on the protection of their rights. This does not at all and would under no circumstances justify the type of acts that are the subject-matter of the present proceeding because violence and criminal activity have nothing to do with trade unionism as construed in its proper form. On the aspect of sympathy, which was asked for by Mr. Bhosale, this Court will have to very emphatically and without any ambiguity point out that sympathy has to rest with Deodhar and the other officers who were the victims of the senseless, brutal and merciless attack on them and this Court will have to take into account the consequences that could have ensued when they were assaulted with 3 1/2 feet long iron bars by the accused. The present case is one of the classic instances where a deterrent punishment is not only required but is absolutely essential because it is necessary that the accused and all other similarly situated persons become aware that the Courts will not countenance such resorts to violence and that the punishment for such activity will be severe. The sentences awarded by the learned Sessions Judge are, to my mind, on the lenient side having regard to the gravity of the offences, but in the absence of an enhancement notice, those sentences shall be maintained with the only modification that the convictions and sentences imposed on the accused u/Ss. 148, 143 and 147 of the Indian Penal Code are set aside.
42. In the result, the appeal stands dismissed. The convictions and sentences awarded by the trial Court stand confirmed with the modification that the convictions and sentences u/Ss. 148, 143 and 147 of the Indian Penal Code are set aside. The accused to surrender to their bail immediately.
43. Order accordingly.