Union Of India vs Bali Ramu Pawar & Ors

Union of India ...Appellant

Versus

Bali Ramu Pawar and Ors. ...Respondents

JUDGMENT

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

2 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

3 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

4 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

5 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

7 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

8 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. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 15, 2008

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