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Judgment
Honourable Ms. Justice R. Mala
The criminal appeal arises out of the judgment of conviction dated 31.10.2003, made in S.C.No.196 of 2001 on the file of the Additional
District and Sessions Court, Fast Track Court No. III, Virudhachalam, whereby the accused A1 to A3 were convicted for the offence u/s 341
IPC and imposed a fine of Rs. 300/- each in default in payment to undergo one month simple imprisonment. The respondent police has filed a final
report against the accused herein along with ten others under Sections 147, 448, 323 and 506(i) IPC and Section 3(1) of Tamil Nadu Public
Properties (Loss and damage) prevention Act read with Section 149 IPC, stating that on 29.05.2000, around 8.35 a.m., the appellants and ten
others, who are belonging to Dalit Panther Party, were holding wooden sticks, stones and dangerous weapons without any permission trespassed
into the complainant''s premises and stopped the work of the workers at work spot and all those persons threatened the workmen with dire
consequences and damaged glass windows and glass pans of the building of the sub-contractor namely M/S. Simplex Company and trespassed
into the Officer''s premises and caused damage to the doors and windows and then restrained P.W.7/Sunilkamath, a Civil Engineer, who was
proceeding towards the entrance and he was prevented by the accused from going to the work site and assaulted him with hands and caused loss
to the tune of Rs. 7,00,000/- and thereby committed the aforesaid offences.
The learned Magistrate had taken cognizance of the aforesaid offences and committed the matter to the Principal District and Sessions Court,
Cuddalore, after furnishing the copies. The learned Principal Sessions Judge after following the procedure made it over to the Additional District
and Sessions Court/Fast Track Court No. III, Virudachalam. The learned Sessions Judge after following the procedure, framed necessary charges
against the accused and the accused pleaded not guilty. The Sessions Court examined P.W.1 to P.W.10 and marked Exs.P1 to P7 on the side of
the prosecution.
The case of the prosecution let in by the prosecution witnesses is as follows:
(i) The appellants/accused 1 to 3 along with 10 others, who were the members of D.P.I. on 29.05.2000, around 8.35 a.m., trespassed into the
firm namely, Alston Power Private India, where P.W.1/Srinivasan was working as a Site Manager and P.W.2/Sivaraj was working as an
Administrative Officer, with wooden log & deadly weapons and made criminal intimidation and prevented the workers to do their work and
caused damage to the glass windows and glass pans of the building of the sub-Contractor namely, M/S. Simplex company. When P.W.7 Sunil
Kamath, who was working as Civil Engineer, proceeding to his office, at the time, the accused were wrongfully restrained him and made criminal
intimidation. Balamurali/A1 assaulted on his cheek and back.
(ii)Immediately, P.W.1 intimated the above occurrence to Virudhachalam Tahsildar over phone and on his instruction, P.W.2 gave Ex.P1
complaint before P.W.8/Selvam, Sub-Inspector of Police, Oomangalam police station, who received the same at 5.00 p.m. and registered a case
in Crime No. 136/2000 under Sections 147, 341, 336, 448, 427 and 506(i) IPC, 193 read with Section 3 of Tamil Nadu Public Properties (Loss
and Damage) Prevention Act. He prepared the printed F.I.R. Ex.P4 and then he sent P.W.7/Sunil Kamath to the Government Hospital,
Virudhachalam, for taking treatment along with medical memo.
(iii) P.W.9/Mangaiyarkarasi, who is the Doctor, treated P.W.7 at 6.00 p.m. on 29.05.2000 and issued Ex.P5 Accident Register Copy, stated that
no injuries found.
(iv) One Emmanuel Selvanayagam, who was working as an Inspector of Police, received F.I.R. copy from P.W.8 and conducted investigation and
examined witnesses and recorded their statements. He prepared Ex.P7 Observation mahazar and drew Ex.P6 rough sketch in the presence of
P.W.5 Gopalakrishnan and one Selvamani. He took steps to take photographs through P.W.6 and the photographs were marked as Ex.P3.
(v)On 04.09.2000, one Madiarasu, Inspector of Police, investigated the matter and arrested Ramesh/A3 & Kamalakannan/A5 and remanded
them to judicial custody.
(vi) On 09.02.2001, P.W.10 Noorulla khan took up the matter for further investigation and examined P.W.9/Doctor and recorded her statement.
He also examined other witnesses and recorded their statements. Thereafter, Mr. Doss ,Inspector of Police, after completing the investigation, filed
a charge sheet against the accused.
4.The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. After considering the oral and
documentary evidence, the trial Court acquitted all the other accused from the charges levelled against them, except A1 to A3 and convicted them
only for the offence u/s 341 IPC and imposed fine of Rs. 300/- each, in default in payment, to undergo one month simple imprisonment.
Challenging the conviction and sentence passed by the trial Court, Mr. A.Arasu Ganesan, learned counsel for the appellants/A1 to A3 submitted
that during the examination of the accused, no charge u/s 341 IPC has been framed and explained to the accused. Except the official witnesses
namely, P.W.1, P.W.2 and P.W.7, other independent witnesses were turned hostile. Since the appellants and other accused were acquitted from
all the other charges, the trial Court ought to have acquitted the appellants herein for the offence u/s 341 IPC, since no charge has been framed. He
would take me through para-20 of the Judgment and submitted that without properly appreciated the evidence, the trial Court convicted the
appellants u/s 341 IPC, which is against law. Hence, he prayed for allowing of this appeal. To substantiate his arguments, he relied upon the
judgments reported in (i) 1993 Cri.L.J. 248 (The State of Gujarat v. Keshavlal Maganbhai Jogani and others) (ii) Shamnasheb M. Multtani Vs.
State of Karnataka,
Resisting the same, Mr. C.Emalias, learned Government Advocate (Crl. Side) submitted that it is true, no charge u/s 341 IPC has been framed
against the accused. But the evidence of P.W.1, P.W.2 and P.W.7, who are the official witnesses, would establish that the accused were
wrongfully restrained P.W.7 entered into the office premises and stopped the workers, who are doing their work. The incriminating evidence has
been placed before the accused at the time of questioning u/s 313 Cr.P.C. and the trial Court is correct in convicting the accused u/s 341 IPC.
Hence, he prayed for dismissal of the appeal.
Considered the rival submissions made on both sides and the materials available on record.
On perusal of the record, the charges have been framed against the accused 1 to 7, 9 and 10 under Sections 148, 448, 506(i) IPC and 3(1) of
Tamil Nadu Public Properties (Loss and Damage) Prevention Act, against A1 u/s 323 IPC. In Ex.P1 complaint, it was specifically mentioned as
follows:
(sic)ntiy bra;J te;jth;fis gaKWj;jp ntiyia jLj;J epWj;jp btspapy; mDg;gpdhh;fs;/ nkYk; v'';fsJ sub-contractor M/S. Simplex Company mYtyfj;jpy;
mDkjpapd;wp g[Fe;J $d;dy; fz;zho fjt[fis moj;J behWf;fpdhh;fs;/ nkYk; v'';fs; company-y; Civil Engineer Mf gzpg[hpe;J tUfpd;w jpU/Rdpy; fhkj;
vd;gth; company-apd; main gate-y; tUfpd;wnghJ mtiu jLj;J epWj;jp site-w;F cs;ns nghff;TlhJ vd;W gaKWj;jp ifahy; gykhf moj;Js;sdh(sic)
Admittedly, no charge has been framed against the accused u/s 341 IPC. At the time of questioning u/s 313 Cr.P.C., in question No. 5, the trial
Court placed the incriminating evidence against the accused and questioned that atleast 10 to 15 members were standing in front of the main gate
and restrained P.W.7/Sunil kamath, who came to the office, but they denied the same and stated that it is a false evidence.
P.W.7/Sunil Kamath, in his chief examination, he stated that on 29.05.2000, at 8.40 a.m., when he came to his office in front of the main gate,
10 to 15 persons were standing with wooden log and they restrained him to enter into the office. Those persons were stated that they are not
having work as to why P.W.7 is doing his work. Furthermore, one Balamurali, assaulted on his cheek and back. But P.W.7 did not say anything
about the other accused. In such circumstances, there is no evidence to show that A1 to A3 were wrongfully restrained P.W.7 to go to the work.
In para-20 of the Judgment, the trial Court has given a reason for convicting A1 to A3 u/s 341 IPC. But the reasoning given by the trial Court is
unsustainable. So I am of the view, the prosecution has not proved the guilt of the accused A1 to A3 u/s 341 IPC.
At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the appellants reported in (i) 1993 Cri.L.J.
248 (The State of Gujarat v. Keshavlal Maganbhai Jogani and others) in which, it was mentioned as wrongful confinement. But whereas, in the
case on hand, it was mentioned as wrongfully restrained. Therefore, the above decision is not applicable to the facts of the present case.
(ii) Shamnasheb M. Multtani Vs. State of Karnataka, in which, it is held as follows:
As regards in instant case the composition of the offence u/s 304B, IPC is vastly different from the formation of the offence of murder u/s 302 IPC
and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also
contains the offence u/s 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). So when a person is charged with an
offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand
for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the
accused. Nonetheless, all other ingredients necessary for the offence u/s 304B IPC would stand established. In such a case the accused can be
convicted for offence u/s 304B IPC without the said offence forming part of the charge, but the conviction would be valid only if it did not occasion
a failure of justice in view of Section 464(1) of Cr.P.C.
But the above decision is not applicable to the facts of the present case.
11.Considering the facts and circumstances of the case along with the evidence, there is no evidence to show that the accused 1 to 3 alone
wrongfully restrained P.W.7 in front of the office gate. In my opinion, the judgment of conviction passed by the trial Court that the accused 1 to 3
are guilty for the offence u/s 341 IPC without any basis, is liable to set aside. In fine,
(1) Criminal Appeal is allowed.
(2) The Judgment of conviction passed by the trial Court is hereby set aside.
(3) The fine amount paid by the appellants/A1 to A3 are ordered to be refunded.