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SUPREME COURT OF INDIA
A.N.Ray : I.D.Dua
Kishan
Versus
State Of Maharashtra
Case No. : 95 of 1968
Date of Decision : 3/18/70
Constitution of India, 1950 – Article 136 – Criminal Procedure Code, 1973 – Section 257 – Indian Penal Code, 1860 – Sections 147, 323, 149, 148 – Offence of Assault – Appeal by special leave is directed against order of Bombay High court dismissing revision of present appellants against order of Sessions Judge, allowing in part their appeal by acquitting Laxman of the charge under Section 147, 1. P. C., but otherwise maintaining the conviction of all the appellants but reducing their sentences. – Held, Court do not consider it necessary to refer to them because the principle in regard to these questions is well-settled – Court, however, consider it appropriate at this stage to re-state the position in regard to criminal appeals under Article 136 of the Constitution because not infrequently in practice questions which are normally considered to be concluded and not open to re-examination under this Article are sought to be re-opened and canvassed in this court – Court did not have the advantage of knowing the fate of the cross-case as the counsel expressed ignorance about its final result – It was open to the Trial court to decline to summon a witness after recording its reasons for the refusal – And this was precisely what the Trial court did – Court find nothing wrong with the procedure or the reasoning of the Trial court in this case – Court also agree with the High Court that Ganpat was not held back for any oblique motive – Only grievance pressed before us on behalf of the appellants is that they could have shown from his evidence that the complainants party were the aggressors. – It is a simple case of riot in which the appellants on appreciation of evidence by three courts below were found to be the aggressors and the finding was not shown to be legally erroneous – It may be pointed out that enmity between the parties being a common point the courts were aware of the existence of motive on both sides to harm the other party – There is no special feature in this case for departing from the normal practice of refusing to interfere under Article 136 in the absence of grave illegality – There is no violation of any mandatory provision of law which would vitiate the trial or render the trial unfair and prejudicial to the appellant – Appeal Dismissed.
I.D. DUA, J.
(1) THIS appeal by special leave is directed against the order of the Bombay High court (Nagpur bench), dismissing the revision of the present appellants against the order of the Sessions Judge, Yeotmal, allowing in part their appeal by acquitting Laxman of the charge under Section 147, 1. P. C., but otherwise maintaining the conviction of all the appellants but reducing their sentences.
(2) ACCORDING to the broad features of prosecution story the prosecution witnesses and the accused persons belong to two opposite factions in village Gaul. Taluk Pusad, District Yeotmal. Indeed, there had been criminal proceedings between them even on earlier occasions. The relations between the two parties were, therefore, admittedly strained for some time prior to the present occurrence which took place on 12/07/1965. On that day three prosecution witnesses, Narayan, Baburao and Rangrao and one Ganpat, are alleged to have accidentally met at the dispensary of one Bajirao at Shembal Pimpri. That was a Bazar day and about 3 p. m. they left Shembal Pimpri for going to their village Gaul. While they were about one mile away from their village they met the present appellants and some others. Kisan, appellant, challenged the party of the witnesses, inquiring as to why they had given evidence in the tenancy case .and, so saying, instigated his companions to assault them. This led to a scuffle in which Narayan and Rangrao sustained some injuries. Baburao lost a tooth. Ganpat is alleged to have shouted for help. In response, some people arrived there and seeing them, the accused poisons ran away, Rangrao, whose injuries were some what serious, was taken first to Shembal Pimpri and from there to the hospital at Pusad. The police sent up 11 persons for trial. The Trial court on a consideration of the evidence came to the conclusion that the prosecution had succeeded in proving the case only so far as accused Nos. 1, 2, 5, 6 and 7 were concerned. They are the present appellants in this court, Kisan, Ramrao, son of Jagdeorao,Marotirao, Bhimrao and Laxman. The five appellants were all found guilty of an offence under Section 147, Indian penal code and also of an offence under Section 323 read with Section 149, Indian penal code Laxman was in addition found guilty of an offence under Section 148, I. P.C . They were all sentenced to various terms of imprisonment which it is not necessary to state for our present purpose. On appeal the learned Sessions Judge sentenced them as follows :
(3) KISAN, Ramrao and Marotirao were to undergo rigorous imprisonment for four months on each count for offences under Section 147 and Section 323, read with Section 148, Indian penal code : sentence of fine was set aside. Bhimrao, son of Shankarrao wag sentenced for each of the two offences under the aforesaid S. to pay a fine of Rs. 100.00 and in default to undergo rigorous imprisonment for three months for the offence under Section 147 and to undergo rigorous imprisonment for one month for the offence under Section 323, read with Section 149, Indian penal code The sentence of imprisonment imposed on him by the Trial court was set aside. Laxman, appellant was acquitted of the charge under Section 147, Indian penal code, but for offence under Section 148 and Section 323, read with Section 149, Indian penal code, was sentenced to rigorous imprisonment for six months under Section 148 and to rigorous imprisonment for four months under Section 323, read with Section 149, Indian penal code The sentence of fine against him was set aside.
(4) THE High court on revision, as observed earlier, confirmed both the convictions and sentences.
(5) BEFORE us Mr. M. N. Phadke, the learned advocate for the appellants raised two main points in support of the appeal, by submitting that the manner of trial in the case has resulted in failure of justice. According to the first grievance the Trial court was wrong in disallowing the prayer on behalf o
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