Union of India Vs.
Bali Ramu Pawar & Ors. [2008] INSC 1742 (15 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 733 OF 2002 Union
of India ...Appellant Versus Bali Ramu Pawar and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1. Challenge in this
appeal is to the judgment of a Division Bench of the Bombay High Court
dismissing the appeal filed by the appellant questioning the correctness of the
judgment rendered by learned Sessions Judge, Dadra and Nagar Haveli and
Silvassa in Sessions Case No.24/1999.
The appeal was filed
on the ground that acquittal as recorded was uncalled for.
2. Prosecution version
as unfolded during trial is as follows:
One Mohan Delkar had
contested the election for the post of M.P. on behalf of B.J.P. On 6/3/1998,
while one Uttam Patel contested the said election on behalf of Shiv Sena in
Dadra and Nagar Haveli Constituency.
During the said
election Uttam Patel was defeated and Mohan Delkar won the election. After
declaration of the said election results, there were incidents of violence and
'shop premises' of Shiv Sena workers were destroyed by the workers of Mohan
Delkar. The car of Dr. Gulab Patel (P.W.5) who was the main supporter of Uttam
Patel was also destroyed by the supporters of Mohan Delkar. Some of the present
accused were also involved in the said incident of burning the car. It is
further case of the prosecution that during the election period, complainant
Kumar Shanmugam, the owner of the hotel used to serve eatables to the workers
of Uttam Patel, Shiv Sena candidate for M.P. A threat was also given to said
Kumar Shanmugam for the same by the supporters of Mohan Delkar.
On the fateful day
i.e. on 7/6/1998 at about 10.15 a.m., 10 to 12 persons came in two rickshaws
and entered in the hotel of Kumar Shanmugam after breaking the glass of
windows. The customers who were sitting in the hotel went running towards the
kitchen and one of the customers closed the shutter of the rear side. The
complainant Shanmugam was inside the kitchen while the hotel manager Virendra
Choudhary was sitting on the counter and other employees namely Vasu Pillai
(P.W.12) and Kumar Ganpati (P.W.15) were in the main hall. The assailants were
armed with sword, Iron bar, hockey sticks etc. As the complainant Kumar
Shanmugam was not found there, they assaulted the other employees present
there. His employees particularly Virendra Choudhary and Vasu Pillai were
severely beaten and sustained serious injuries. Meanwhile, the complainant
Kumar Shanmugam contacted Dr. Gulab Patel (P.W.5) on phone and requested him to
inform the police and to arrange for vehicle.
The complainant Kumar
Shanmugam (P.W.11) simultaneously contacted Control Room for help. Then Dr.
Gulab Patel (P.W.5) arranged vehicle and sent two friends namely Shri Aslam
Khutliwala (P.W.3) and Ronald Couttho (P.W.I8) in Maruti car. Then these
injured were taken to Cottage Silvassa where the statement of Kumar (P.W.11)
came to be recorded as FIR vide Exh.54. In view of the serious conditions,
Choudhary and Vasu Pillai were shifted to Handa hospital at Vapi. Virendra
Choudhary who was unconscious since beginning was then taken to civil hospital,
Surat.
However, he succumbed
to the injuries and reported dead on 8.6.1998.
Meanwhile on the
basis of FIR Exh. 54 offence came to be registered under Cr. No.1-171/98
initially for attempt to murder and rioting. Then as per the direction of
P.S.I. Manoj Patel (P.W.22) the investigation was taken over by P.S.I. Rohit
(P.W.23). The spot panchanama was recorded at about 3.45 P.M. on the same day
only and some places of wooden handle of Tikam lying on the spot namely Article
Nos. 5, 6 and 7 were seized under the said panchnama Exh. 52. On the same day
the statements of certain witnesses were recorded. On 8/6/1998 after getting
the information of death of Virendra Choudhary, the inquest was drawn at Surat
by P.S.I. Umra Police Station Surat vide Exh. 78. Some of the accused namely
accused no. 2, 5, 6 and 7 came to be arrested on 8/6/1998 at the hands of
P.S.I. Manoj Patel. On 13/6/1998, when these accused were under the police
custody, certain weapons including sword and wooden places of handle of Tikam
were recovered from them pursuant to their statement under section 27 of the
Indian Evidence Act., 1872 (in short `Evidence Act'). During the course of
investigation the local police also recorded statements of various witnesses,
seized rickshaw bearing No GJ 15.V 6474 on 2/9/1998 from the courtyard of one
Babubhai Shanker under panchnama Exh. 16.
It appears that being
not satisfied by the investigation of the Local Police, the complainant Kumar
Shanmugam had filed Writ Petition bearing No. 6904/98, in the Bombay High Court
making grievances for not arresting the accused nos. 1, 3 and 4 in spite of
their names appearing in the FIR. The High Court vide its order dated 16/9/1998
transferred the investigation of the case to C.B.I. In pursuance of the
directions, Dy. S.P. Sinha (P.W.28) took charge of the matter in the middle of
October, 1998 and the case was re-registered under RC. No.C(S)/98-SCN-II/DLI in
a Special Branch of C.B.I. under Sections 302, 307, 506 read with 149 of I.P.C.
etc. Then he with the assistance of other officers recorded statements of some
more witnesses including Dr. Gulab Patel (P.W.5), Aslam Khutliwala (P.W.3),
besides supplementary statement of complainant Kumar Shanmugam (P.W.11), Vasu
Pillai (P.W.12), Kumar Ganpati (P.W.15). Then he arrested the accused Nos. 1, 3
and 4 on 26/7/1999 and accused No. 8 and 9 in October, 1999. The identification
parade was also held on 8/8/1999 for identifying the accused Nos. 8 and 9.
After completing the investigation charge sheet was filed against 12 persons
including accused Nos. 1 to 9 on 23-10-1999 in the Court of Chief Judicial
Magistrate, Silvassa.
The Chief Judicial
Magistrate in turn committed the case for trial to Court of Sessions. During
the pendency of the trial a bail application came to be filed by some accused.
Directions were given for expeditious hearing of the trial. After recording the
evidence of 3 to 4 witnesses during the course of trial, a Writ Petition was
filed on behalf of the complainant to transfer the venue of trial to Mumbai
apprehending danger to the life of the witnesses. With consent of both the
parties, the High Court directed Sessions Court to hold a sitting at Bombay for
recording the evidence.
Accordingly most of
the evidence was recorded at Mumbai.
Nine persons faced
trial for alleged commission of offences punishable under Sections 120B, 143,
147, 148, 302, 307, 323, 324, 427, 506(II) read with Section 149 of Indian
Penal Code, 1860 (in short the `IPC'). After completion of investigation charge
sheet was filed and accused persons faced trial as they pleaded innocence. By
order dated 29.9.2000, learned Sessions Judge held that the accused persons 1
to 4 were guilty, and convicted each for the offences punishable under Section
147 and Section 302 read with Section 149 IPC and sentenced to rigorous
imprisonment for life and fine. Accused Nos. 1 to 4 were also found and
convicted for offence punishable under Section 307 read with Section 149 IPC.
Similar was the position in respect of offence punishable under Section 324
read with Section 149 IPC, Section 323 read with Section 149 IPC, 427 read with
Section 149 IPC, 453 read with Section 149 IPC and 506(II) read with Section
149 IPC. Each was also convicted for the offence punishable under Section 148
IPC.
6 After dealing with
various offences purported to have been made against accused Nos. 1 to 4 the
trial Court found them guilty and imposed sentences. Accused Nos. 1 to 4 were
acquitted of the charges relating to Section 120B IPC. Accused Nos. 5 to 9 the
present respondents were found not guilty and were acquitted from all the
charges levelled against them.
Aggrieved by the
order of learned Sessions Judge, the appellant filed an appeal before the High
Court challenging the acquittal of Accused Nos. 1 to 4 for offence punishable
under Section 120B IPC and accused Nos. 5 to 9 from all the charges. The High
Court dismissed the appeal and observed as follows:
"Heard counsel
for the parties.
We are satisfied that
the order of acquittal passed in favour of accused Nos. 5 to 9 does not call
for any interference.
On the basis of the
material on record, the conclusion reached by the trial Court cannot be said to
be unreasonable or perverse. In fact the view taken by the trial Court is a
possible reasonable view on the evidence on record.
This appeal is
therefore dismissed."
3. According to the
learned counsel for the appellant the appeal is still pending so far as the
appeal filed by accused persons 1 to 4 is concerned. By a cryptic and
practically non-reasoned order the High Court has dismissed the appeal.
4. Learned counsel for
the respondents submitted that the High Court found the evidence to be not
believable so far as the present respondents are concerned and therefore was
justified in dismissing the appeal.
5. It is to be noted
that the High Court has simply referred to the conclusion of the trial Court to
come to a conclusion that the same cannot be termed to be unreasonable or
perverse. It is pointed out that no finding was recorded so far as the other
four accused persons are concerned, and in any event the accused Nos. 1 to 4
have questioned their conviction and appeal is pending.
6. It is to be noted
that investigation by CBI was directed as the investigation by the local police
was found to be not fair. The appeal has been dismissed so far as the present respondents
are concerned, by holding that it was a possible view. There was no discussion
as to why it is so.
7. It is to be noted
that the High Court has only referred to the acquittal of accused Nos. 5 to 9.
The appeal filed by the present appellant also related to the acquittal of
accused Nos. 1 to 4 of the charges relating to Section 120B IPC.
8. That being so, the
order of the High Court is also not maintainable.
9. Undisputedly, as
pointed out above, the appeal of Accused Nos. 1 to 4 who are convicted is pending.
It would be appropriate to take up the appeals together for disposal in
accordance with law. Accordingly, we set aside the impugned order and remit the
matter to the High Court for fresh consideration. The appeal shall be taken up
along with the appeal filed by the convicted accused persons.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J
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