THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.91 of 2006 Date: 17.02.2011 Between: Shaik Main … Petitioner/ PW.1 AND Rajamohan and 9 others … Respondents/ Accused 1 to 8 & Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.91 of 2006 ORDER: The revision impugns the judgment in Criminal Appeal No.54 of 2005 on the file of the Sessions judge, Anantapur in reversing the conviction recorded by the learned Special Judicial Magistrate of First Class (Prohibition & Excise cases), Anantapur in C.C.No.356 of 2004. The revision is laid by PW.1 who is the de facto complainant in this case. 2. It is the case of the prosecution that on 16.09.2003, the accused and other followers of the accused in consortium went to the hotel where PWs.1 and 2 lodged, wrongfully confined them, criminally intimidated them, caused simple hurt to them and also constituted an unlawful assembly and rioting and that the accused consequently are liable for punishment for the offences under Sections 342, 506, 323 and 147 of the Indian Penal Code (‘IPC’ for short) with the aid of Section 149 IPC. The prosecution examined as many as 12 witnesses. Exs.P.1 to P.13 were marked. The defence did not choose to examine anyone in support of their case nor did they exhibit any documents. PWs.4 to 11 out of the witnesses examined by the prosecution did not support the prosecution story. The learned trial Judge, however, considered that the prosecution established the guilt of all the 9 accused for the offences u/s.342 and 506 (2) IPC. The accused were sentenced to a fine of Rs.500/- each for the offence u/s.342 r/w 149 IPC and were sentenced to a fine of Rs.1,000/- each for the offence 506 (2) r/w 149 IPC. Appropriate default sentences were also recorded. 3. When the accused preferred an appeal before the Sessions Court, Anantapur, through the impugned judgment, the learned Sessions Judge acquitted all the accused holding that the prosecution failed to establish the guilt of any of the accused beyond reasonable doubt. Hence the revision. 4. The point for consideration is whether the prosecution brought home the guilt of the accused for the offences u/s.342 and 506 (2) IPC. 5. The accused allegedly committed the offences u/s.147 and 323 IPC apart from the offences u/s.342 and 506 (2) IPC. The trial Court, however, found the accused not guilty for the offences u/s.147 and 323 IPC. No appeal was preferred either by the State or by any aggrieved party from that part of the judgment of the trial Court, under which the accused were acquitted for the offences u/s.147 and 323 IPC. Consequently, Criminal Appeal No.54 of 2005 before the learned Sessions Judge, Anantapur was confined to the offences u/s.342 and 506 (2) IPC. As PW.1, who is the de facto complainant, preferred this revision impugning the judgment of the appellate Court, the question before me is whether the prosecution established the case against the accused for the offences u/s.342 and 506 (2) IPC. The question whether the prosecution established or not established the case against the accused for the offences u/s.147 and 323 IPC does not arise. 6. The villain of the peace, if any, is one Thimma Reddy. He was an employee working under M/s. Sun Pharmaceutical Industries Limited (‘SPIL’ for short). Thimma Reddy had been working at Anantapur since about 17 years prior to the incident in this case. PW.3 is a medical representative in SPIL. The Head Office of SPIL is at Mumbai. PW.1 is the Zonal Sales Manager of SPIL. PW.2 is the Regional Sales Manager of SPIL. His Head Office is at Hyderabad. He looks after Telangana and Rayalaseema areas of the Andhra Pradesh as the Regional Sales Manager. 7. On the ground that Thimma Reddy, the Sales Representative at Anantapur was not conducting his job properly and has misconducted himself, he was transferred to Purnia District, Bihar State towards the end of 2002. Then PW.3 came to know that Thimma Reddy laid a case before the labour Court, Anantapur questioning his transfer as mala fide and also sought for back wages. Thus far, the facts are admitted. 8. The facts which laid to the alleged commission of the offences commence thereafter. When the labour Court, Anantapur granted stay of the orders of transfer of Thimma Reddy on the ground of victimisation, SPIL approached this Court and obtained stay of the orders of the labour Court. It is the case of PWs.1 to 3 that Thimma Reddy along with the Union leaders started obstructing PW.3 from discharging his functions properly with effect from 01.09.2003. PW.2 contended that PW.3 was not allowed to perform his duties on behalf of SPIL. PW.3 allegedly was threatened that unless Thimma Rededy is re-stationed at Anantapur, PW.3 would not be allowed to work. It is the further case of PW.2 that A.4 and A.5 used to visit the house of PW.3 regularly and used to warn and threatened PW.3 with dire consequences unless their demands are met. Consequently, a complaint was laid with I-Town Police Station against Thimma Reddy, A.4 and A.5 by SPIL on 03.12.2002 about their obstructing the smooth function of PW.3 in discharging his duties. 9. While so, PWs.1, 2 were informed by PW.3 about recklessness in the situation of the Union of which Thimma Reddy is a member. To check the situation, PWs.1 and 2 arrived at Anantapur on 16.09.2003. 10. I may pass for a moment and point out that Thimma Reddy is a sales representative. He was the member of a registered union. A.1 was a general secretary of the State of Andhra Pradesh for the Trade Unions in which Thimma Reddy was or has been a member. Apart from A.1, A.2 to A.9 were also members of the trade union which is APMSRU (Andhra Pradesh Medical and Sales Representatives Union). It is the case of Sri R. Mahadevan, learned counsel for the accused that Thimma Reddy ventilated his grievance to the union and the Union has taken up the cause of Thimma Reddy and that a false case consequently was foisted against the accused. Curiously, while it is the case of the learned counsel for the accused that the company laid a false case against the medical representatives, Thimma Reddy, who was the root cause of the entire dispute, was not an accused before the Court. It would appear to be the case of the prosecution that upon the representation of Thimma Reddy to the Union, it is the union which undertook the activity to help Thimma Reddy which ultimately turned out into criminal activity. 11. To revert to the main case, when PWs.1 and 2 arrived at Anantapur, they stayed in SRS Regency, which is a hotel of considerable repute at Anantapur, which is said to be at a distance of 1 ½ k.m. from the Anantapur bus stand. It is the further case of the prosecution that PWs.1 and 2 stayed in room No.339 in the hotel. Again, there appears to be no dispute from the defence in this regard. The case of the prosecution further is that at about 10.30 a.m. on 16.09.2003, A.1 to A.9 and about 10 to 30 other persons intercepted PWs.1 to 3 at the entrance of the hotel. The gathering of these persons including A.1 to A.9 is unlawful. It is the further case of PWs.1 and 2 that the accused started hurling abused at PWs.1 and 2. PW.3 was not part of this incident. It is the case of PW.3 that when the mob including A.1 to A.9 surrounded PWs.1 to 3, A.5 suggested to PW.3 that the presence of PW.3 was not necessary and that PW.3, therefore, may make room for the accused and the mob to negotiate the issue with PWs.1 and 2. PW.3 claimed that he thereafter went away from the premises of the hotel. Thus, PW.3 was not part of the main incident. 12. The main incident commenced at about 10.30 a.m. with the accused and others surrounding PWs.1 and 2 and demanding PWs.1 and 2 to deploy Thirmma Reddy at Anantapur itself. I do not, however, agree with the contention of Sri T. Pradyumna Kumar Reddy, learned counsel for the revision petitioner that the evidence of PW.3 along with the evidence of PWs.1 and 2 establishes the case of the prosecution clinchingly. PW.3 did not play any part in the main case of the prosecution. The evidence of PW.3 is as much irrelevant as the evidence of PWs.4 to 11 except in supplying motive for the incident. 13. So far as PWs.1 and 2 are concerned, neither of them is a resident of Anantapur. They were not working at Anantapur. While the office of PW.2 was situated at Hyderabad, the office of PW.1 was at the Head Office at Mumbai. Nevertheless, PWs.1 and 2 identified A.1 to A.9 as the culprits participating in the commission of the offence along with others. How did PWs.1 and 2 known the accused? No explanation is forthcoming except a bald statement by PW.1 that he has acquaintance with A.1 and others prior to the incident in this case. When PWs.1 and 2 were not working at Anantapur, it is for PWs.1 and 2 to state how they knew A.1 to A.9 prior to the incident. I have no alternative but to construe that A.1 to A.9 were strangers to PWs.1 and 2. 14. When A.1 to A.9 were strangers to PWs.1 and 2, the identification of A.1 to A.9 by PWs.1 and 2 for the first time in the Court after the incident, without preceded by a test identification period cannot be accepted as an identification at all. The very participation of A.1 to A.9 in the commission of the offence, as deposed by PWs.1 and 2, is highly doubtful in view of this position. 15. Further, it is the case of PWs.1 and 2 that the accused and others surrounded them at the hotel. Admittedly, SRS Regency is a hotel of considerable repute. If hooligans are attacking the precincts of the hotel, the hotel would to have informed police at once. While it is the case of PWs.1 and 2 that they were accosted at the threshold of the hotel, it is not the case of anybody that anyone from SRS Regency informed police about the unlawful assembly and the illegal activity at the hotel. I agree with the contention of the learned counsel for the accused that if the incident occurred as alleged by PWs.1 and 2, it would have been natural for persons connected with the hotel to inform police about the activity at the hotel. It, however, was not to be. 16. It is the further case of PWs.1 and 2 that A.1 to A.9 and other mob confined PWs.1 and 2 for about 2½ hours at the hotel. It is also the case of PWs.1 and 2 that the confinement continued till up to 12.55 p.m. It is the case of the learned counsel for the accused that the offence u/s.342 IPC was not made out against the accused. Section 342 IPC provides punishment for wrongful confinement. It is the case of PW.1 as well as PW.2 that for about 2 ½ hours, the accused and others surrounded PWs.1 and 2 and cut of PWs.1 and 2 from the mainstream. It is the further case that the accused hurled abuses at PWs.1 and 2 at that time. So far as surrounding of PWs.1 and 2 by the accused is concerned, if the same is established, it certainly would amount to the offence u/s.342 IPC. The further case of the prosecution is that the accused and others hurled abused at PWs.1 and 2 in filthy language. It is not stated by PWs.1 and 2 as to what was the exact abuse and the language used by any of the accused at PWs.1 and 2. Section 503 IPC defines criminal intimidation. Criminal intimidation is threats with intend to cause alarm to the victim or forcing the victim to do any act which he perhaps would not have done but for the threats. As rightly submitted by the learned counsel for the accused, unless what is uttered by the accused is known it cannot be judged whether the alleged words and threats were with an intention to cause alarm or to force PWs.1 and 2 to do something which they would not have done but for such threats. Where the language uttered by the accused has not been spoken to by PWs.1 and 2 in their evidence, at once, the claim of the prosecution that the accused committed the offence u/s.506 (2) IPC would not be made out. 17. It may be noticed that 506 IPC consists of two parts. While the accused were questioned for committing the offence u/s.506 IPC, the trial Court convicted the accused specifically for the offence u/s.506 (2) IPC. Section 506 (2) IPC is punishment for criminal intimidation with a threat to cause death or grievous hurt or to cause the destruction of any property etc. None of the ingredients envisaged in Section 506 (2) IPC were spoken to by PWs.1 and 2. It is the case of PWs.1 and 2 that the accused surrounded them, raised slogans, abused them in unparliamentary language, that they did not allow PWs.1 and 2 to use their mobile phones and that they more or less forced PWs.1 and 2 to vacate the room in the hotel. Nowhere did PWs.1 and 2 state that the accused threatened to cause death, grievous hurt or destruction of the property as the case may be unless the demand of the accused is met. I, therefore, wholly agree with the contention of the learned counsel for the accused that no offence u/s.506 (2) IPC is made out. I may also point out that no offence u/s.506 (1) is also made out where the contents of the alleged abuses are not spoken to by PWs.1 & 2. The appellate Court is perfectly justified in concluding that the prosecution failed to establish the guilt of the accused for the offence u/s.506 (2) IPC. 18. For the offence u/s.342 IPC, wrongful confinement is necessary. Indeed PWs.1 and 2 claim that they were wrongfully confined at the hotel. However, it is not the case of either PW.1 or PW.2 as to the specific overt acts of any of the accused. As already pointed out, the accused are the members of Sales Representatives Union of which A.1 was the Joint Secretary. PWs.1 and 2 made sweeping statement through and through that the accused and others caused the offences. Whether it is wrongful confinement punishable u/s.342 IPC or the criminal intimidation punishable u/s.506 IPC or any other offence, no overt act is attributed against any of the accused. Even, Ex.P.1 complaint did not speak about the overt acts. It merely refers to the names of all the accused as participating in the offence. I am afraid that a sweeping statement without attributing specific overt acts to the accused, more so, where the accused were members of an active trade union cannot be a ground to accept the story of the prosecution that the accused were guilty of the offences levelled against them. 19. Curiously, it is not on 16.09.2003 that PW.1 lodged Ex.P.1 complaint. It is the case of the prosecution that the accused and the mob forcibly took PWs.1 and 2 to the Anantapur bus stand from the hotel, put them in the bus and sent them to Kurnool. It is their further case that PWs.1 and 2 get down from the bus at Gooty, contacted their head office and later returned to Anantapur on the next day and lodged Ex.P.1 complaint. 20. The learned counsel for the accused pointed out that if a mob forcibly took PWs.1 and 2 to bus station and tried to put them in the bus, the police that are on duty at the bus stand would certainly have interfered. Added to it, PWs.1 and 2 could not state the name of the driver or the conductor of the bus in which they were packed off from Anantapur by the accused and the remaining mob. PWs.1 and 2 did not state the registration number of the bus in which they travelled from Anantapur up to Gooty. They failed to produce the bus tickets before the police to establish their case. The whole story of PWs.1 and 2 thus remained uncorroborated. 21. The learned counsel for the accused also drew my attention to the evidence of PW.11. PW.11 is one of the recipients of the SRS Regency hotel. He did not support the prosecution story. He was considered to be hostile to the prosecution. The learned Assistant Public Prosecutor was permitted to put leading questions to the witness treating them as hostile. Be that as it may, PW.11 deposed that the incident as alleged by the prosecution did not occur. Ex.P.13 is the guest registration card. Ex.P.13 indeed shows the name of PW.2 as the customer/guest of room No.339. However, the room number was originally shown as 336. The same was struck off and the number 339 was scribed. Who scribed the same is not known. Why the room number as 336 was struck off is also not known. At any rate, it would not appear to be the case of the accused that PWs.1 and 2 never came to Anantapur and never stayed in SRS Regency. Their case is that the incident as alleged by the prosecution did not occur. Consequently, the evidence of PWs.11 and Ex.P.13 are of no consequence. 22. Regarding the main case, as already pointed out, the only evidence is the evidence of PWs.1 and 2. Unfortunately, the evidence of PWs.1 and 2 is not only the evidence of the alleged victims but is the evidence of persons who are enimically disposed towards the accused. It would appear to be the case of the accused and admitted by the prosecution that A.1 lodged a complaint against SPIL that it was selling expired drugs and that the police investigated the same. Consequently, PWs.1 and 2, who are senior officials in SPIL, are said to be enimically disposed towards A.1 and his supporters. In any event, the evidence of PWs.1 and 2, who are the employees of the same company, is not sufficient to establish the case against the accused where the alleged incident occurred during day time in the public gaze. There should be other evidence to support the case of the prosecution. Barring for PWs.1 and 2, no one supported the prosecution story. Indeed, PW.3 did not deny the prosecution story. He, however, admittedly was not present at the time of the incident. Consequently, the evidence of PWs.1 and 2 alone remained for the incident to determine whether the prosecution brought home the guilt of the accused beyond reasonable time. Where admittedly the employer of PWs.1 and 2 is at loggerheads with A.1, the evidence of PWs.1 and 2 perhaps is not sufficient unless it is corroborated by other independent evidence to bring home the guilt of the accused. Added to it, PWs.1 and 2 failed to explain how they knew the accused. The very identity of the accused by PWs.1 and 2 thus would appear to be doubtful. 23. In such a background, I wholly agree with the finding of the appellate Court that the prosecution failed to establish the guilt of the accused, at any rate beyond reasonable doubt either for the offence u/s.342 or for the offence 506 (2) IPC. The appellate Court correctly judged and appreciated the evidence. Evidently, there is no error in appreciating the evidence by the appellate Court. The prosecution failed in establishing the guilt of the accused beyond reasonable doubt. The acquittal of the accused by the appellate Court, therefore, is perfectly justified. There are no merits in this revision. 24. The Criminal Revision Case, therefore, is dismissed confirming the judgment of the appellate Court. _______________ K.G. SHANKAR, J Date: 17.02.2011 Isn