CR.A/442/1988 of THAKORBHAI LALLUBHAI PATEL Vs STATE OF GUJARAT on 5 December 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether their Lordships wish to see the fair copy of judgment?

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder?

5. Whether it is to be circulated to the Civil Judg...

----------------------------------------------------------------Shri K.J. Shethna, Advocate, for the Appellants (in CriminalAppeal No. 442 of 1988) and for the Respondents (in CriminalAppeal No. 666 of 1988)

Shri S.R. Divetia, Additional Public Prosecutor, for theRespondent (in Criminal Appeal No. 442 of 1988) and for theAppellant in (in Criminal Appeal No. 666 of 1988)

Shri D.D. Vyas, Advocate, for the Original Complainant (in boththe appeals for assisting the Addl. Public Prosecutor)

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

( Date: 5th December 1995)

ORAL JUDGMENT (per Divecha, J.)

It is unfortunate that the inter-union rivalry in thegroup of companies in the complex known as the Atul Complex nearValsad has taken a toll of life of one union leader, named,Gunvantbhai Desai (the deceased for convenience). The questionis who has killed him. According to the learned AdditionalSessions Judge of Valsad at Navsari appellant No. 1 (accusedNo. 1 for convenience) of Criminal Appeal No. 442 of 1988 wasthe murderer. That finding is given by the learned trial Judgeby his judgment and order passed on 11th May 1988 in SessionsCase No. 62 of 1986. The learned trial Judge has also foundthe remaining appellants (accused Nos. 2 to 4 and 8 forconvenience) in Criminal Appeal No. 442 of 1988 to beaccomplices inasmuch as they have been held guilty of theoffence punishable under sec. 302 read with sec. 149 of theIndian Penal Code, 1860 (the IPC for brief). The learned trialJudge has also convicted accused Nos. 1 to 4 and 8 of theoffences punishable under sections 147 and 148 thereof and alsoof the offence punishable under sec. 336 read with sec. 149thereof and also of the offence punishable under sec. 427 readwith sec. 149 thereof and accused Nos. 2, 3 and 4 of theoffence punishable under sec. 323 thereof and accused Nos. 1and 8 of the offence punishable under sec. 323 read with sec.149 thereof. It is needless to say that the learned trial Judgehas convicted accused No. 1 of the offence punishable undersec. 302 of the IPC. So far as the imposition of the sentenceis concerned, the learned trial Judge has awarded a lifer eachto accused Nos. 1 to 4 and 8 for the respective offences foundto have been committed by them and rigorous imprisonment for oneyear to accused Nos. 1 to 4 and 8 for the offence punishableunder sec. 148 of the IPC without passing any separate sentencefor the offence punishable under sec. 147 thereof. The learnedtrial Judge has also awarded rigorous imprisonment for one monthto accused Nos. 2, 3 and 4 for the offence punishable undersections 323 thereof and rigorous imprisonment for two months toaccused Nos. 1 to 4 and 8 for the offence punishable under sec.336 read with sec.. 149 of the IPC without passing any order ofsentence for the offence punishable under sec. 337 read withsec. 149 thereof. The learned trial Judge has also awarded thesentence of rigorous imprisonment for three months to theaforesaid accused for the offence punishable under sec. 427read with sec. 149 thereof. All the substantive sentences wereordered to run concurrently by the learned trial Judge. In theprocess, the learned trial Judge acquitted the respondents ofCriminal Appeal No. 666 of 1988 (accused Nos. 5,6, 7 and 9 forconvenience) of the charge levelled against them. The judgmentand order of the learned trial Judge has aggrieved the accusedwho came to be convicted and they have therefore preferredCriminal Appeal No. 442 of 1988 for questioning the correctnessof their conviction and sentence. The prosecution was alsounhappy with respect to the judgment and order qua the accused

who came to be acquitted of the charge levelled against them.It has also chosen to come in appeal after obtaining leave toappeal against the judgment and order in question. Its appealhas come to be registered as Criminal Appeal No. 666 of 1988.Since both the appeals arise out of the same judgment and orderpassed by the learned Additional Sessions Judge of Valsad atNavsari in Sessions Case No. 62 of 1986 and since commonquestions of law and fact are found arising in both theseappeals, we have chosen to dispose of both these appeals by thiscommon judgment of ours by consent of the learned lawyersappearing for the parties.

2. The factual backdrop of the case deserves to be lookedat. The Atul complex, as is popularly known in the area, housesplants of in all four companies, namely, the Atul Products Ltd.,Cyanamide India Ltd., Cibatul Ltd. and Atik Industries Ltd. Itappears that there are three unions of workmen operating withinthe complex. It is not necessary to refer to theirnomenclatures at present. Suffice it so say that the deceasedwas the President of one union. It appears that there were somedisputes between the management and the workers through theirunions. It appears that the union headed by the deceased alongwith another union entered into a settlement with themanagement. The third union, which claimed to possess majorityof workmen as its members, was sore and unhappy about suchsettlement. It appears that conditions of unrest was prevalentaround that time. It is the prosecution version that at about12.55 p.m. on 12th May 1986 a rioting mob rushed towards thecanteen and started indulging into stone throwing activities inthe beginning. Accused Nos. 1 to 8 were stated to be membersof the rioting mob. It is the prosecution version that accusedNo. 1 was armed with a knife and accused No. 2 with an ironpipe. Others were armed with stones and brickbats. At therelevant time the deceased was inside the canteen in a roomtaking rest during his recess hours. One Kishore Bhagat (thecomplainant for convenience) was in the main canteen room havingfinished his lunch during recess. It is the prosecution casethat the complainant was hit on his head by accused No.2 with aniron pipe. The complainant was also in the company of certainother persons and they also received injuries on account ofhurling stones and brickbats by the irate mob including accusedNos. 3 to 8. The prosecution version further reveals that theinjured complainant went inside where the deceased was restingand gave an alarm of the grave situation. Thereupon the inmatesof the inner room thought of fleeing from the canteen. At thatstage, runs the prosecution version, accused No. 1 rushedinside and gave knife-blows to the deceased in his chest andabdomen. That proved fatal. The deceased in the company ofthree injured persons were carried to the Municipal Hospital atValsad. The deceased was found dead thereat. The other threeinjured were given treatment by the medical officer present at

the relevant time. The complainant gave his complaint at about2 p.m. Thereupon the investigation machinery was set to motion.One Executive Magistrate was summoned for recording dyingdeclarations of the three injured persons including thecomplainant. The dead body of the deceased was consigned forits post-mortem examination after drawing the inquest panchnama.On completion of investigation, the charge-sheet was submittedto the Court of the Chief Judicial Magistrate at Valsad chargingthe accused inter alia with the offence punishable under sec.302 of the IPC and also that punishable thereunder read withsec. 149 thereof. The accused also stood chargesheeted interalia with the offences punishable under sections 147, 148, 323,336, 337 and 427 thereof. Since the trial of the case wasbeyond the competence of the learned magistrate, the case wascommitted to the Sessions Court of Valsad at Navsari for trialand disposal. It came to be registered as Sessions Case No. 62of 1986. It appears to have been assigned to the learnedAdditional Sessions Judge for trial and disposal. The chargeagainst the accused was framed on 4th May 1987. No accusedpleaded guilty to the charge. Thereupon they were tried. Afterrecording the prosecution evidence and also further statementsof the accused under sec. 313 of the Code of CriminalProcedure, 1973 and after hearing rival submissions, by hisjudgment and order pronounced on 11th May 1988 in the aforesaidsessions case, the learned Additional Sessions Judge foundaccused No. 1 to be guilty of the offence punishable under sec.302 of the IPC and accused Nos. 2 to 4 and 8 of the offencepunishable under sec. 302 read with sec. 149 of the IPC andaccused Nos. 2, 3 and 4 of the offence punishable under sec.323 thereof and accused Nos. 1 and 8 of the offence punishableunder sec. 323 red with sec. 149 of the IPC and accused Nos.1 to 4 and 8 of the offences punishable under sections 147, 148,336 read with sections 149, 337 read with sections 148 and 427read with sec. 149 thereof. They have been sentenced as statedearlier hereinabove in the introductory para of this judgment.The other accused, namely, accused Nos. 5, 6,7 and 9 came to beacquitted by the learned trial Judge. The aforesaid judgmentand order passed by the learned trial Judge aggrieved both theconvicted accused and the prosecution. Both have thereforequestioned its correctness by means of their respective appeals.

3. The prosecution has examined as many as 11 eye witnessesin support of its case at trial. The prosecution has alsoexamined several other witnesses in support of its case and alsofor bringing on record certain documentary evidence like therecovery panchnama, the so-called dying declarations and thelike. The medical evidence consists of the report pertaining tothe post-mortem examination of the deceased and certificatesissued with respect to the injured persons including thecomplainant. The medical evidence also pertains to injuriesfound on the persons of accused Nos. 1, 3 and 4. Both learned

Arguments

Advocate Shri Shethna for the convicted-accused and learnedAdditional Public Prosecutor Shri Divetia for the prosecutionhave taken us through the entire evidence on record in supportof their respective submissions assailing the judgment and orderpassed by the learned trial Judge to the extent it is notacceptable to them. According to Shri Shethna for theconvicted-accused, the learned trial Judge has not appreciatedin true spirit the infirmities found in the prosecution version.It has been urged on behalf of the convicted-accused that thecumulative effect of the infirmities in the prosecution versionwould lead only to one conclusion to the effect that no accusedwas guilty of any of the offences with which all the accusedwere charged. As against this, learned Additional PublicProsecutor Shri Divetia has supported the conviction of accusedNos. 1 to 4 and 8 and has submitted that the material on recordbears ample testimony to justify the finding of convictionrecorded by the learned trial Judge qua the aforesaid accused.Learned Additional Public Prosecutor Shri Divetia has howeverbeen critical of the learned trial Judge in not convictingaccused Nos. 5, 6, 7 and 9 though the material on record wouldwarrant their conviction as well.

4. The first infirmity in the prosecution case highlighted by learned Advocate Shri Shethna for the convicted-accused isthe interpolation of the time of the incident in the complaint(popularly known as the F.I.R.) at Exh. 131. It transpirestherefrom that the time of the incident stated to have occurredat 12.55 p.m. was interpolated later on. The evidence of thepolice witnesses at Exhs. 130 and 133 would bear ampletestimony in that regard. The complaint was recorded by SeniorSub-Inspector Shri Earda at Exh. 130. He was confronted withthe interpolation in the complaint about the time of theincident stated to be 12.55 p.m. He has admitted that he didnot know as to who inserted that time in the original complaint.The investigating officer at Exh.133 who took over investigationfrom the witness at Exh. 130 at about 4 p.m. on that very dayhas also drawn blank in that regard. In his deposition at Exh.133, he has clearly pleaded ignorance in that regard. In thatview of the matter, there is no hesitation in coming to theconclusion that the time of the actual occurrence of theincident is shrouded in mystery.

5. It transpires from the depositions of several witnessesincluding the Timekeeper (Prosecution Witness No. 12) at Exh.75 that the working hours of the first shift are from 7.30 a.m.to 3.30 p.m. with recess between 11.30 a.m. and 12 noon andthe general shift are from 8 a.m. to 5 p.m. with one hourrecess between 12 noon and 1 p.m. Accused No. 1 was admittedlyworking in the first shift and the other accused were in thegeneral shift. The complainant was also working in the generalshift. As observed earlier, the recess time for the first shift

was from 11.30 a.m. to 12 noon. The Timekeeper at Exh. 75 hasadmitted in no uncertain terms that no accused was found missingfrom his job at the relevant time. He has specifically admittedin his cross-examination that all accused were on their jobthroughout the day on 12th May 1986. The Personnel Manager(Prosecution Witness No. 18) at Exh. 108 also admits in hiscross-examination that it was not reported that any accused wasabsent from his work on 12th May 1986 at any point of time. Forthe time being we should like to take up the case of accused No.1. He was working in the first shift. As aforesaid, itsworking hours were from 7.30 a.m. to 3.30 p.m. with half anhour recess from 11.30 a.m. to 12 noon. In view of thedepositions of the Timekeeper at Exh. 75 and the PersonnelManager at Exh. 108, accused No.1 was on his job, presumablyexcept for his recess time. If he was on his job throughout theday of the incident, that is, 12th May 1986, he was on his jobbetween 12 noon and 3.30 p.m. If that be so, his presence atthe place of the incident at 12.55 p.m. becomes a doubtfulproposition.

5. So far as the other accused are concerned, they wereworking in the general shift. Their recess was between 12 noonand 1 p.m. It has come on record through certain prosecutionwitnesses including the Timekeeper at Ex. 75 that no workman isallowed to overstay his recess. If any one reports late afterrecess, he has to give explanation for it. It has also come inevidence that the plant where accused Nos. 2 to 9 were workinghad a canteen nearby and the main canteen where the incident isstated to have occurred is somewhat at a distance from the plantwhere they were working. Ordinarily, it would be natural forthose workmen to go to the nearby canteen during their recesstimings rather than going to a canteen situated somewhat at adistance. Even assuming that they could have gone to a canteensomewhat away from the plant where they were working, they couldnot have reported back to their duty on time if they wereparticipating in the rioting activities of the irate mob at12.55 p.m. Even at the cost of repetition, we may reiteratethat it clearly transpires from the depositions of certainwitnesses including that of the Timekeeper at Exh. 75 that noaccused reported late for work on that day even after recess.This evidence on record would again cast a serious doubt as tothe presence of the accused at the place where the incident isstated to have taken place on 12th May 1986.

6. Learned Additional Public Prosecutor Shri Divetia hashowever highlighted the ocular account of the incident given bycertain eye witnesses involving the accused as members of therioting mob and seeing accused No.1 committing the murder of thedeceased. That should take us to the ocular account given bythe eye witnesses. As aforesaid, the prosecution has examinedas many as 11 persons stated to be eye witnesses to the

incident. Out of these 11 witnesses, as many as 4 have turnedhostile to the prosecution. Their evidence is of no use to theprosecution in any manner. Prosecution Witness No. 3 (SorabShavaksha) at Exh. 50 was also branded as hostile for thepurpose of subjecting him to cross-examination by and on behalfof the prosecution in view of certain statements made by him inhis police statement. Learned Additional Public Prosecutor ShriDivetia wants to rely on his evidence and we have therefore notincluded him in the list of four hostile witnesses referred toearlier. It may be noted that Prosecution Witness No. 22 atExh. 115 was stated to be an eye witness. He was stated to beinjured at the time of the incident. His dying declaration wasalso recorded and it is at Exh. 107 on the record of the case.He has not supported the prosecution case at trial and he hasalso been declared hostile. He has been included by us in thelist of four hostile witnesses referred to hereinabove. LearnedAdditional Public Prosecutor Shri Divetia has fairly statedbefore us that the prosecution does not want to rely ondepositions of the aforesaid hostile witnesses. So far asProsecution Witness No. 4 at Exh. 57 is concerned, he is alsostated to be an eye witness. In para 16 of hiscross-examination he has clearly admitted that he couldrecognize only accused No.1 in the rioting mob. In view of hisclear-cut admission in his cross-examination, the deposition atExh. 57 is of no avail to the prosecution for the purpose ofbringing the guilt home to the accused on the basis of hisocular account of the incident. So far as the involvement ofaccused No.1 in the incident is concerned, the testimony of thewitness at Ex. 57 cannot be relied on in view of the evidenceof certain witnesses including that of the Timekeeper at Exh.75 and the Personnel Manager at Exh. 108 that accused No.1 waspresent on his job all throughout the first shift. In that viewof the matter, the deposition of the witness at Exh. 57 cannotbe accepted as a gospel truth. Prosecution Witness No. 5 atExh. 58 has also been examined as an eye witness. He is statedto have seen accused Nos. 5, 6, 7 and 9 in the rioting mob atthe relevant time. While identifying the accused present in thecourt-room, he misidentified them. That is recorded in para 3of his oral testimony. He has not been declared as a hostilewitness. His oral testimony is however of no use to theprosecution. That brings us to the ocular account given byProsecution Witness No. 6 at Exh. 60. He is also examined asan eye witness. He is stated to have seen only accused No.8 inthe rioting mob of about 20-25 persons behind the main riotingmob consisting of about 150-200 persons. The witness at Exh.60 was stated to be working as a helper in the general shift.He had at the relevant time put in service of about 15 years.His conduct after the incident seems to be somewhat unnatural.His police statement was recorded on 15th May 1986. It isneedless to reiterate that the incident occurred on 12th May1986. It is not the prosecution case that he remained on leave

after the incident till his police statement was recorded on15th May 1986. It has also come in evidence in no uncertainterms that, because of atmosphere of unrest prevalent in thecomplex at the relevant time, police personnel were present formaintenance of law and order situation in the Atul complex. Inhis cross-examination the witness at Exh. 60 has clearlyadmitted that he did not narrate the incident to any one in thecompany except to members of his family. He has also statedthat he did not think it fit to report the incident to thepolice found in the compound. He did not think it fit to reportthe matter to his superior officer as transpiring from para 5 ofhis cross-examination at Exh. 60. His explanation in thatregard was that he was in a perplexed condition. It would be astrange coincidence that his perplexed condition lasted fornearly three days because he has admitted that he has notreported this incident to any one during three days till hispolice statement was recorded on 15th May 1986. In our view,the ocular account given by Prosecution Witness No. 6 at Exh.60 is devoid of credence and credibility on this ground alone.

7. It is not necessary to refer to Prosecution Witness No.

7 at Exh. 62 as he has been declared hostile and theprosecution does not want to rely on his evidence as fairlystated by learned Additional Public Prosecutor Shri Divetia. Sois the case with Prosecution Witnesses Nos. 8 and 9 at Exhs.63 and 64 on the record of the case. So far as ProsecutionWitness No. 11 at Exh. 74 is concerned, he has also beenexamined as an eye witness. In his oral testimony he haspointed no accusing finger against any of the accused. He hasnot been declared hostile by or on behalf of the prosecution attrial. His oral testimony is therefore of no help to theprosecution in this case. Prosecution Witness No. 15 at Exh.101, stated to be an eye witness, has also not stated a wordabout involvement of any accused in the incident in question.His evidence also will have to be discarded in supporting theprosecution case. That leaves only two eye witnesses, thecomplainant at Exh. 49 and Prosecution Witness No.3 (SorabShavaksha) at Exh. 50.

8. So far as the complainant is concerned, in his complaintat Exh. 131 he has stated that he was hit by an iron pipe inthe hands of accused No. 2. According to the complaint at Exh.131, accused No.2 was armed with an iron pipe at the relevanttime and he hit the complainant with his iron pipe on his headfrom behind. It is the prosecution case that the injuredcomplainant was immediately carried to hospital for treatment.It transpires from the evidence of Dr. M.D. Desai (ProsecutionWitness No. 1) at Exh. 40 and the medical certificate at Exh.41 that he reported to the medical officer that he receivedinjury on account of stone-throwing. It appears that theversion given by Dr. Desai at Ex. 40 about the history of injury received by stone preceded recording of the complaint atExh. 131 at 2 p.m. The incident is stated to have occurred at12.55 p.m. He was soon carried to hospital along with the otherinjured persons and the deceased. He might have been examinedby the medical officer around 1.30 p.m. The first version ofthe incident so far as the complainant is concerned is recordedby the doctor. At that stage, the complainant does not nameaccused No. 2. He does not even name the weapon of injury tobe any iron pipe. On the contrary, the specific weapon ofinjury is shown to be some stone.

9. It would be quite proper at this stage to look at thecomplaint at Exh. 131. In that complaint the complainant hasgiven the name of accused No.2 as the person causing injury tohim with one iron pipe. It is not necessary for us at presentto refer to the other contents of his complaint. Then comes hisdying declaration at Exh. 106. Since the complainant hassurvived after recording of his dying declaration at Exh. 106,it would pale into insignificance as his dying declaration. Ithas to be read in evidence as his previous statement. In hisprevious statement at Exh. 106, he has stated that he wasbeaten by accused Nos. 1, 2, 3 and 4. He has further statedtherein that he was hit with brickbats, stones and an iron pipe.It thus becomes clear from the three versions given by him onthree different occasions that at every stage he has tried toimprove upon it. Even at the cost of repetition, we mayreiterate that the first version was to the medical officer thathe was hit by a stone. In the second version in his complaintat Exh. 131, he has stated that he was hit with an iron pipe byaccused No. 2. In the third version in his previous statementat Exh. 106 he has stated that he was hit by accused Nos. 1 to4 with brickbats, stones and an iron pipe. These three versionswere given by the complainant at Exh. 49 within a span ofnearly three hours. As observed earlier, the complainant wastreated by the medical officer at any time around 1.30 p.m. andhis complaint was recorded at 2 p.m and his dying declarationwas recorded between 3.31 p.m. and 3.48 p.m. on that very day.Within a span of less than three hours, he has tried to givethree different versions of the incident. Every subsequentversion can be said to be an afterthought. The prosecution hasnot chosen to explain discrepancies in the three versions givenby the complainant as to the incident within a span of less thanthree hours. It is not the case of the prosecution that thecomplainant was taken aback and was subsequently stupefied onwitnessing the ghastly incident of the murder of the deceased atthe relevant time. It cannot be gainsaid that it was the dutyof the prosecution to have explained the discrepancies in thesethree versions given by the complainant in the span of less thanthree hours. These discrepancies cannot be said to be quitetrivial. They constitute serious infirmities and they certainlycause a substantial dent in the prosecution story rendering it bereft of credence and credibility. We could have accepted thesubmission urged before us by learned Additional PublicProsecutor Shri Divetia that such discrepancies might arise whenthe evidence was recorded nearly a year after occurrence of theincident. However, the aforesaid three versions have occurredwithin a span of less than three hours. The discrepancies foundin those three versions are quite eloquent and they are capableof raising a serious doubt as to involvement of the accused andmore particularly accused No.1 in the incident in question. Theoral testimony of the complainant at Exh. 49 is thus foundunreliable and untrustworthy on this ground alone. It cannothelp the prosecution in bringing the guilt home to the accusedor any of them.

10. Then we are left with the ocular account given byProsecution Witness No. 3 at Exh. 50. He was working as asupervisor at the relevant time. As aforesaid, he was declaredhostile by the prosecution in view of certain contradictions inhis chief examination qua his police statement. In para 9 ofhis cross-examination he has clearly admitted that, since he washit by a stone, he fell unconscious and he came to senses onlywhen one Amritlal Patel came to his rescue. He has clearlystated in his chief examination that Amritlal Patel came nearhim about 10-15 minutes after the incident and by that time themob had dispersed. It would thus become clear that the witnessat Exh. 50 remained unconscious throughout the incident as soonas he was hit by a stone. He could not have therefore seen theincident as deposed to by him in his oral testimony at Exh. 50.

11. In his case also, his dying declaration was recorded andit is at Exh. 55 on the record of the case. Since he hassurvived after the dying declaration, it has to be treated ashis previous statement. In reply to question No. 10 he hasclearly stated therein that he did not know who hit him with astone and thereafter in reply to question No. 12 he has givennames of accused Nos. 1 to 4 as persons responsible for theincident. In view of his clear-cut admission in hiscross-examination that he remained unconscious all throughoutthe incident, it would be difficult to accept his version thathe had seen those four persons as indulging in the riotingactivities culminating into the homicidal death of the deceased.

12. That apart, in para 13 of his cross-examination at Exh.50, the witness has admitted that he did not know accused Nos.1 to 4 by name. In para 20 of his cross-examination he hasstated that he knew accused Nos. 1 to 4 for more than fiveyears because they were regularly visiting the canteen. It hascome in the evidence of the Timekeeper at Exh. 75 that accusedNos. 3 and 4 remained suspended for nearly 3-4 years and wereallowed to resume their duties some time in January 1986. Thewitness at Exh. 50 could not have therefore seen at least these two accused for five years as they could not be seen in thecanteen. It is an admitted position on record that no suspendedemployee was allowed to enter the precincts of the complexhousing all plants of the aforesaid four companies. Theaforesaid two accused could not have therefore visited thecanteen and the witness at Exh. 50 had no occasion to see themat least prior to January 1986 during the period they remainedunder suspension. We do not want to highlight thecontradictions found in the police statement. The aforesaidstudy of his evidence at Exh. 50 would clearly give rise to adoubt whether or not he could have been an eye witness to theincident in question.

13. Learned Advocate Shri Shethna for the accused hasvehemently urged that the accused have been falsely implicatedby the management. In support of his submission he relies onseveral circumstances appearing on the record. The first andforemost circumstance relied on by him is interpolation of thetime of the incident stated to be 12.55 p.m. in the complaintat Exh. 131. The other main circumstance relied on by learnedAdvocate Shri Shethna for the accused is undue favour shown bythe management towards the complainant. It is an admittedposition on record that his age as stated by him at the time ofrecording of his evidence on 2nd November 1987 was 24 years. Inthe complaint at Exh. 131 he has stated his age to be about 22years. He could be said to be around 22 or 23 years in age atthe relevant time. It is an admitted position that he wasworking as a temporary helper in the general shift. At therelevant time he could have put in service of hardly 2 or 3years. It has come in evidence that no worker was permitted tooverstay his recess. In the general shift the recess time was12 noon to 1 p.m. He was stated to be in the canteen around12.55 p.m. He is stated to have become a victim of the riotingmob at the relevant time. He could not have reported for workafter the recess hours. Even if no explanation is called forfrom him, that can be excused. As stated earlier, his evidencewas recorded on 2nd November 1987. The incident occurred on12th May 1986. The injuries found on his person were quitetrivial. The only serious injury was on one finger. It wassomewhat substantially damaged. That could not have forced himto remain on leave for a very long time. He has admitted in hisoral testimony at Exh.49 that from the date of the incident heremained on leave till the date of his deposition. We do notknow whether he resumed even thereafter. Even if we can go byhis deposition, he remained on leave for nearly 18 months. Theprosecution has not brought on record any material to show thathe had in his account the credit balance of leave up to 18months. It has been admitted by him in his oral testimony atExh. 49 that he was receiving full salary contrary to thepractice of payment of 60% salary on sympathetic grounds asdeposed to by the Personnel Manager at Ex. 108. That has been

testified even by the Personnel Manager in his oral testimony atExh. 108. It has come in evidence through the depositions ofthe Timekeeper at Exh. 75 and the Personnel Manager at Exh.108 that every employee has to get his salary by going to thefactory or the administrative office in person and nobody isgiven salary at his residence. It is possible that a person mayreceive his salary at his residence if he authorises someoneelse to collect his salary. It is not the case of thecomplainant at Exh. 49 that he had authorised any one tocollect his salary. And yet the complainant at Exh. 49 hasclearly asserted that except on two or three occasions after theincident till he gave his deposition he got his salary at hisresidence. Why it was done so could be anybody's guess. Thisis not enough. It is clearly admitted in the depositions of thePersonnel Manager at Exh. 108 that he was paid medical chargesthough not supported by vouchers. Medical charges were paidwithout vouchers at least on two occasions in the sums ofsomething like Rs. 5000 and Rs. 2500. Ordinarily, no companywould pay any amount to any person without obtaining vouchers insupport of such payment. Learned Advocate Shri Shethna for theaccused has highlighted such favour given to the complainant bythe management in support of his submission that the managementwas behind implicating the accused in this case. The motive forthe purpose would obviously be to weed out the accused (beingunion leaders) from the complex. It is an admitted position onrecord that the accused were leaders of a union popularly knownas the union of one Gajanand. That Gajanand also lost his lifein inter-union rivalry prevalent in the Atul complex. One moreperson by the name of Dayabhai Ahir also became a victim of suchinter-union rivalry. He is also stated to have lost his lifesome time in 1985 by means of his homicidal death. DeceasedGunvantbhai was the third person to lose his life in hishomicidal death. According to learned Advocate Shri Shethna forthe accused, since the union of Gajanand was inimical to theunion of Gunvantbhai on account of arriving at a settlement withthe management and since the accused were union leaders of theunion of Gajanand, the management was out to see that theaccused were removed from service and that can be done only ifthey are convicted by the court. Another importantcircumstances relied on by learned Advocate Shri Shethna for thepurpose is recording of the so-called dying declarations of thethree injured persons including the complainant. The injuriesfound on their persons were too trivial to warrant recording oftheir dying declarations. The medical evidence on record bearsclear testimony to the trivial injuries found on the persons ofthe complainant and the other injured witnesses at the relevanttime. it has been urged before us by learned Advocate ShriShethna for the accused that recording of dying declarations ofthe complainant and his two injured companions was at theinstance of the management and none else. The circumstanceshighlighted by learned Advocate Shri Shethna for the accused in support of his submission that the management might beresponsible for falsely implicating the accused in this caseappear to be attractice in the first blush. We should howeverlike to refrain ourselves from expressing any opinion on thatcount.

14. In view of our aforesaid discussion, we are of theopinion that the prosecution has not been able to bring theguilt home to the accused or any of them beyond any reasonabledoubt. We think that the learned trial Judge was not justifiedin passing the judgment and order of conviction and sentenceagainst accused Nos. 1 to 4 and 8. He was however quitejustified in ordering acquittal of the remaining accused, thatis, accused Nos. 5, 6, 7 and 9.

Conclusion

15. In the result, Criminal Appeal No. 442 of 1988 succeedsand Criminal Appeal No. 666 of 1988 fails. The judgment andorder of conviction and sentence qua the appellants of CriminalAppeal No. 442 of 1988 (accused Nos. 1 to 4 and 8) is quashedand set aside and these accused-appellants are acquitted of thecharge levelled against them. The judgment and order ofacquittal passed by the learned trial Judge qua the respondentsof Criminal Appeal No. 666 of 1988, that is, accused Nos. 5,6, 7 and 9 is maintained. Accused Nos. 2 to 4 are in jail.They are ordered to be released forthwith if no longer requiredin any other case. Accused Nos. 1 and 8 are on bail. Theirbail bonds are ordered to be cancelled. Accused Nos. 5, 6, 7and 9 as the respondents in Criminal Appeal No. 666 of 1988 arealso set out on bail. Their bail bonds are also ordered to becancelled. The muddamal is ordered to be disposed of inaccordance with the directions given by the learned trial Judge._________