1 S.B.CRIMINAL REVISION PETITION NO.594/2006 (Himmat Singh & Ors. Vs. State) Date of order : 27.9.2007 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Rakesh Arora, for the petitioners. Mr. Vishnu Kachwaha, Public Prosecutor. Mr. Sandeep Mehta, for complainant. By way of filing the present revision petition, the petitioners have challenged the order impugned dated 21.4.2006 passed by Additional Sessions Judge (Fast Track) No.1, Pali Head Quarter Jaitaran in Sessions Case No.01/2006 whereby charges were framed against the petitioners for offences under Sections 147, 148, 452, 323, 395/149, 397/149, 336/149, 323/149 and 427/149 I.P.C. During the course of arguments, learned counsel for the petitioners has restricted his prayer to challenge the impugned order as far as it relates to framing of charges for offences under Sections 452, 395/149 and 397/149 I.P.C. According to the facts of the case on 27.5.2005 at 11.00 a.m., complainant Rajveer Singh, Security Supervisor, Bangur Cement Project, Raas (Pali) filed a return complaint before S.H.O., Police Station Anandpur Kalu-Camp Gangur Cement Project, Raas in which it was alleged that on the said day in the 2 morning at about 9.00 a.m. he was on duty and all the staff members and Pukhraj Tater, Asstt. Manager were on duty. At that time, Prema, Naina, Sabu, Raju, Roshan, Saukeen, Gopal, Ranga Ram, Khinya Ram, Suva Ram, Arjun, Shyam Singh and 40-50 other persons armed with lathies and sariyas in their hands entered in the Office of plant forcibly and started damaging he computer, fans, air conditioner, furniture, windows and doors of the office and on restraining, they started beating to complainant as well as they took away Pukhraj Tater and gave beating to him and due to beating Pukhraj Tater became unconscious. It was also alleged that the above said persons caused beating to security personnels and upon intervention of Nena Ram, Daya Ram, Hair Om Sankhla and Manoj Bindal, they also sustained injuries. Further, it was alleged that accused persons also committed theft and they entered in the Canteen situated in factory premises, Mechanical shift office and Personal Department Office and damaged the cabin of watchman and also committed theft of articles and cash of Rs.17,500/-. It was further stated that this incident took place due to death of a mechanic, caused due to falling from a 'chimani' which was under construction. The above complaint was filed, thereafter, for same incident, Assistant Security Officer also submitted report regarding theft of mobile from the table of Alok Gupta, Deputy Manager. Likewise, on 28.5.2005 at 4.15 p.m. for the same incident, Dilip Kumar, Canteen owner 3 has also lodged a report wherein it was alleged by him that accused persons have entered in the canteen and they committed theft of 'parchoon' articles, utensils and damaged the things and also committed dacoity of articles of certain articles. Upon these three complainants, police registered a case and after completion of investigation, challan was filed for offences under Sections 147, 148, 452, 323, 395, 397, 336, and 427/149 I.P.C. before Judicial Magistrate, First Class, Jaitaran. Thereafter, case was committed to the Court of Additional Sessions Judge (Fast Track) No.1, Pali, Head-quarter Jaitaran for trial. The trial court after hearing arguments, framed charges against the petitioners vide impugned order for offences under Sections 147, 148, 452, 323, 395/149, 397/149, 336/149, 323/149 and 427/149 I.P.C. Learned counsel for the petitioners argued that according to whole of the investigation and challan papers, no offence under Section 395/149, 397/149 and 452 I.P.C. is made out against the petitioners. Occurrence took place at spur of moment because due to unhealthy incident, agitation arose because a mechanic died due to falling down from chimani, which was under construction in the factory and the crowd consisting of large number of labourers 4 were annoyed with the factory administration for lack of security arrangements and their agitation did not suit the factory administration and the persons who came forward for agitating their cause together with the large number of labourers were indulged in this false criminal case, just to teach them a lesson but as a matter of fact, no such incident of criminal trespass, robbery or dacoity with attempt to cause death or grievous hurt occurred. It is true that due to death of a mechanic agitation took place but upon perusal of evidence collected during investigation, no incident of criminal trespass, robbery or dacoity took place and petitioners were contract employees of the factory and ingredients of robbery and trespass are not in existence, therefore, charges framed against the petitioners are not tenable. Further, it is argued that on the basis of statement of prosecution witnesses recorded under Section 161 Cr.P.C. and other evidence, there is no evidence for framing charges under Section 395/149, 397/149 and 452 I.P.C. against the petitioners but only to give colour of dacoity, the factory administration fabricated the story, which is not corroborated by the evidence collected by Investigating Agency. It is contended by learned counsel for the petitioners that the petitioners were not even named in the FIR but they were charge-sheeted by the Police with the connivance of factory administration and 5 indulged them in a serious case of dacoity and robbery, therefore, the order impugned may be set aside to the extent of framing charges against the petitioners for offence under Sections 395/149, 397/149 and 452 I.P.C. and case may be remitted to the Court of Magistrate for trial. Learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that according to definition of “robbery” provided under Section 390 I.P.C., the ingredient of robbery is in existence in this case. Likewise, it is submitted that if robbery is committed by more than five persons, then, certainly it is a case of dacoity, therefore, the learned trial Court has rightly framed charges against the petitioners for aforesaid offences. It is vehemently contended by counsel for the complainant that valuable articles like computer, air-conditioner, fans, furniture and articles of canteen were destroyed and theft was committed by the petitioners. Likewise, Pukhraj Tater was inflicted serious injuries and petitioners caused hurt to many persons working in the factory. Therefore, charges were rightly framed against the petitioners for offence under Sections 395/149, 397/149 and 452 I.P.C. There is material on record for which the learned trial Court framed the charges for the aforesaid offences, therefore, there is no illegality in the order impugned and the revision petition deserves to 6 be dismissed. I have considered the rival submissions of the parties and so also perused the entire record of the case. From perusal of the record, it is revealed that all the petitioners are labourers of the complainant-factory. It is also admitted case of the prosecution that agitation took place due to death of one mechanic, who fallen down from the chimani, which was under construction in the factory. After death, the crowd raised voice against the factory administration for lack of security measures, which is evident from the entire investigation and the statement of prosecution witnesses meaning thereby, there was no preparation or intention for committing any robbery or dacoity. Likewise upon the facts of the case, labourers were entitled to enter in the factory being the labourers of the factory they were not illegally tress-passed and entered into factory they were labourers/employees of the factory but this unhealthy instance took place due to death of one mechanic; may be due to accident or lack on the part of the factory administration. Therefore, it is obvious that upon such incident any person can become angry and in the mob nobody can restrict any person to act in a disciplined manner. According to the entire evidence, there is no specific allegations against any 7 of the persons for committing robbery, theft or tress- pass. Only omnibus allegations have been levelled with regard to destroying the articles of the factory, that too, undisputedly took place as a result of death of one labourer who fell down in the chimani, which was under construction. Therefore, such incident which occurred due to death of a labourer and at a spur of moment when labourers heard that in the hospital mechanic died, therefore, in my opinion and on the basis of entire investigation, the ingredients of robbery, dacoity and tress-pass are absent. The definition of robbery and dacoity as provided under Sections 390 and 391 I.P.C. is as follows :- “390. Robbery.- In all robbery there is either theft or extortion. When theft is robbery.- Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily caused or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.- Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of 8 instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.” “391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. Therefore, on the basis of statement recorded under Section 161 Cr.P.C. and entire evidence, in my opinion, when charges for offences under Sections 147, 148, 323, 336/149, 323/149 and 427/149 have also been framed, then, there is no question of framing charge for other offences which are under Sections 452, 395/149 and 397/149 because there is no ingredients of robbery and dacoity is in existence against any of the persons nor any recovery of amount is on record, therefore, on the basis of material on record, this petition deserves to be partly allowed. Accordingly, this revision petition is partly allowed and the impugned order dated 21.4.2006 passed by Additional Sessions Judge (Fast Track) No.1 Pali Head-quarter Jaitaran District Pali is set aside to 9 the extent of framing charges against the petitioners for offence under Sections 395/149, 397/149 and 452 I.P.C. and the case is remitted to trial Court to proceed in accordance with the law. (GOPAL KRISHAN VYAS), J . arun