IMPORTANT POINT
Apex Court would exercise powers under Article 136 only where the conclusion of the High Court is manifestly perverse and unsupportable on the evidence on record.

Headnote:Indian Penal Code,1860-Sections 148, 302 r/w Sections 149, 341 r/w Section 149, 323 r/w Section 149-Prosecution of accused persons for causing death of deceased by assaulting him with weapons like sticks and bricks-Conviction by Trial Court-Appeals thereagainst-Dismissed by High Court- Appeals- Evidence of PW1 was not shaken when she was subjected to a lengthy cross-examination- No infirmity found in the ocular evidence given by PW1- Evidence of PW1 was duly supported by PW 2, who had come running to scene of crime on hearing the commotion at the farmhouse of accused persons- Evidence of PWs.1 and 2 being consistent could not be lightly brushed aside- Appellants failed to point out any infirmity in the conclusions recorded by Sessions Court as well as High Court with regard to the assault-However, given the nature of weapons used, the location of injuries and the nature of injuries caused, not possible to hold that appellants shared a common object of causing the murder of deceased- Accused had merely decided to teach deceased a lesson for having a quarrel with PW 2 on the previous day- They, therefore, appeared to have made up their mind to give him a good thrashing for acting "a bit smart"- In such circumstances, not possible to uphold conviction of appellants under Section 302 IPC- However, at the same time, since nature of injuries could not be said to be superficial -Numerous bones in the legs and arms of deceased had been broken- The injuries being grievous in nature, conviction of appellants under Section 302 altered to one under Section 326/149 IPC.-Appeals partly allowed (Paras 16 to 22)
        Constitution of India,1950-Article 136-Even though powers of Apex Court under Article 136 of the Constitution are very wide, but it would not interfere with the concurrent findings of fact, save in exceptional circumstances- It would interfere in the findings recorded by the Trial Court as well as the High Court if it is found that the High Court has acted perversely and/or disregarded any vital piece of evidence which would shake the very foundation of the prosecution case- Apex Court would exercise powers under Article 136 only where the conclusion of the High Court is manifestly perverse and unsupportable on the evidence on record (Para 14)
       Facts of the Case :
        Accused persons were prosecuted herein in the instant case for causing death of deceased by assaulting him with weapons like sticks and bricks. Trial Court convicted accused persons for said offence. Appeals thereagainst were Dismissed by High Court.
        B. Present Appeals have been filed against said order of High Court.
       Findings of the Court :
        Appellants failed to point out any infirmity in the conclusions recorded by Sessions Court as well as High Court with regard to the assault. However, given the nature of weapons used, the location of injuries and the nature of injuries caused, not possible to hold that appellants shared a common object of causing the murder of deceased. However, at the same time, since nature of injuries could not be said to be superficial The injuries being grievous in nature, conviction of appellants under Section 302 altered to one under Section 326/149 IPC. Appeals were partly allowed
       Result : Appeals partly allowed

JUDGMENT

Surinder Singh Nijjar, J.-By this common judgment, we propose to decide criminal appeals being Criminal Appeal Nos.159 of 2008, 803-804 of 2008 and 297- 298 of 2008. For the sake of convenience, the facts have been taken from Criminal Appeal No.159 of 2008. All the appellants have been convicted for offences punishable under Sections 148, 302 read with Sections 149, 341 read with Section 149, 323 read with Section 149 and sentenced to S.I. for one year, imprisonment for life and fine of Rs.100/-. It has also been directed that, in default, they shall undergo further S.I. for six months, in the event of non payment of fine, S.I. for one month and S.I. for one month respectively with a direction that all the substantive sentences would run concurrently. The aforesaid conviction and sentences have been recorded in the judgment of First Adhoc Additional Sessions Judge, Parbhani dated 20th August, 2005, in Sessions Trial No.180 of 1998. Separate appeals filed by the appellants have been dismissed by the High Court. The conviction and sentence recorded by the Sessions Court have been confirmed. The High Court also noticed that the original accused No.2 Manikrao and original accused No.10 Maroti had died during the pendency of the proceedings. Therefore, the appeal filed by them had abated.

2. We may now briefly notice the facts recorded by the High Court.

3. PW 9, P.S.I Mallikarjun Ingale, who was attached to Tadkalas Police Station as a P.S.I. was informed by PW 1 Sharda about an incident in which her husband had been viciously attacked by about 10 to 11 persons at about 6.30 pm on 9th March, 1998. He was told that PW 1 alongwith her infant son was riding on a motor cycle with her husband Khushal from Tadkalas to Phulkalas. The motor cycle was intercepted by accused No.2 Manikrao on the road from Tadkalas to Phulkalas near the farm house of Salgar. PW 1 informed PW 9 that her husband was lying in an injured condition near the farmhouse of the assailants. On receipt of this information, PW 9 P.S.I. Ingale went to the scene of the offence alongwith some other police staff. PW 1 Sharda also accompanied the police party in a police jeep. The Police party headed by PW 9 alongwith PW1 and Jiwanaji PW7 on reaching the scene of crime noticed that Khushal was lying in a pool of blood in a very seriously injured condition. Khushal was taken to the Government Hospital at Tadkalas in a police jeep. However, as the medical officer was not available at the Hospital, the injured was sent to the hospital at Parbhani accompanied by one Head Constable and Constable in a police jeep. PW 9 recorded two entries in the station diary in this respect and thereafter went to General Hospital at Parbhani. By the time he arrived, the injured Khushal had already been admitted in the hospital. On enquiry PW 8 Mukashe informed the police that Khushal was in a fit condition to give his statement. The statement was duly recorded in the presence of the medical officer Dr.Mukashe, PW 8.

4. In his statement, Khushal stated that while he was going on the motor cycle to Tadkalas for buying some household goods, about 10 to 11 persons assaulted him near the farmhouse of Salgar. He stated that the cause of the assault was an altercation of accused No.2 on the previous day when accused No.2 had diverted the water which was meant for the land of Khushal to his own land. Khushal had in his statement named all the assailants. On the same night, at about 12.00-12.15 a.m., Khushal succumbed to the injuries and died. The statement given by Khushal has, therefore, been treated as a dying declaration. It was produced as Exh.94 at the trial. The High Court notices that the clothes of the deceased were seized vide memo at Exh.72 in the presence of PW 4 Hanumant. On his return to the Police Station, PW 9 registered the offence on the basis of statement made by Khushal vide crime No.14 of 1998 under Sections 307, 147, 148, 149, 341, 323 and 504 of IPC at 11.30 p.m. On rec

Click Here to Read the rest of this document

2012 Supreme(SC) 563

IMPORTANT POINT Apex Court would exercise powers under Article 136 only where the conclusion of the High Court is manifestly perverse and unsupportable on the evidence on record.

Login now and unlock premium legal research

IMPORTANT POINT
Apex Court would exercise powers under Article 136 only where the conclusion of the High Court is manifestly perverse and unsupportable on the evidence on record.