REPORTABLE

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

J U D G M E N T  

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

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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

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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

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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

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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.  

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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

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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

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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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