REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.159 OF 2008
NARAYAN MANIKRAO SALGAR ..APPELLANT
VERSUS
STATE OF MAHARASHTRA ..RESPONDENT
WITH
CRIMINAL APPEAL NOS.803-804 OF 2008
RAMRAO MHALBA SALGAR & ORS. ..APPELLANTS
VERSUS
THE STATE OF MAHARASHTRA ..RESPONDENT
WITH
CRIMINAL APPEAL NOS. 297-298 OF 2008
KESHAV MANIKRAO SALGAR & ANR. ..APPELLANTS
VERSUS
THE STATE OF MAHARASHTRA ..RESPONDENT
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. 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 receiving information about
12.15 a.m. on 10th March, 1998 that injured Khushal had died,
the offence under Section 302 IPC was also added. Panchnama at
the scene of offence was duly drawn in the presence of panchas
at Exh.76. Blood stained stones, blood mixed soil, a black bead
neckless, pieces of bangles of green colour, one wrist watch,
two sticks, one pair of Kolhapuri slipper, wooden leg of cot,
four stones of different sizes, one motor cycle were seized from
the scene of offence. On the very same day, the accused were
arrested. Blood stained clothes of accused Laxman and Kundlik
were seized in the presence of panchas by seizure memo at Exh.80
and Exh.81 respectively. Subsequently, accused Narayan willingly
pointed out during the course of the investigation to the place
where the sickle (Katti) had been hidden. The memorandum
statement of accused Narayan was recorded in the presence of the
panchas. Narayan took the police and the panchas to the place
where sickle (Katti) had been hidden under a heap of dried stock
of grains. It was seized by memo Exh.83. The seized articles
were duly sent to the chemical examiner. The reports of the
chemical analyzer were produced in court at Exh.96 and 97.
5. At the trial, PW 1 Sharda narrated the entire incident. She
named all the accused. She also described how all the accused
were inter-related and belonging only to one family of Salgars.
She has given the details which were noticed by the trial court
as well the High Court. It is not necessary to recapitulate the
same. We may notice that she has narrated the incident which is
consistent with the version recorded by the injured Khushal
before PW 9 at the hospital. She narrates that when her husband
returned home evening before the assault, he had told her about
the scuffle that he had with accused No.2 because he had
diverted the water of the canal to his own field. She also
narrated about the obstruction of the motor cycle when she was
going alongwith her husband and the infant from Tadkalas to
Phulkalas for buying some household goods. She described how
accused No.2 had obstructed the motor cycle and had asked
Khushal about the quarrel on the previous day. He had also told
Khushal that he was “acing a bit smart”. After the motor cycle
was stopped, accused No.1 called the other persons from the farm
house. All the accused came there armed with weapons like
sticks, stones, sickle (Katti). They pushed PW 1 Sharda and
deceased Khushal from the motor cycle. They started assaulting
Khushal and she tried to shield her husband by lying on top of
his body. However, she was pulled away by accused No.1. She was
badly hit by accused No.1. She was kicked and also given fist
blows. All the time Khushal and PW 1 were shouting for help.
However, all the accused dragged Khushal away from the road to a
spot in front of the farm of the accused. They continued
assaulting her husband with their respective weapons. She points
out that on hearing her shouts, Shivmurti Shirale, Shivhari
Shirale and Ram Kubde came running to the place where the
assault was taking place. On seeing them, the accused dropped
their weapons and ran away. She has narrated also how she
stopped an auto-rickshaw and went to the village Tadkalas to
inform her father-in-law about the assault. Subsequently, in the
same auto-rickshaw she went to the police station and informed
the police about the incident. She further narrates how she
accompanied her husband to the hospital at Parbhani. PW 2 Kishan
is also an eye witness whose land is near the land of accused
No.2 Manikrao. He has stated that at about 6.30 he was watering
the groundnut crop in his field when he heard shouts coming from
the farm house of the accused No.2 at about 6.30 p.m. He along
with Shivmurti who was also watering his crop in the adjoining
land went to the farm house, they saw that Khushal was being
viciously assaulted by all the accused. He also narrates the
entire incident as described by Khushal in the statement given
to PW 9. PW 7, Jiwanaji is the father of deceased Khushal. He is
not an eye witness. He was informed about the incident by his
daughter-in-law. He closed his shop and he was on the way to the
place where Khushal had been assaulted when he noticed that the
police jeep coming on the road. He travelled in the police jeep
to the scene of the incident. He states that Khushal was lying
in a pool of blood in front of the farm house of the accused. He
states that he had asked Khushal about the incident when Khushal
had informed him that accused No.2 to 11 had assaulted him. He
then narrates how Khushal had been taken to the hospital and
about his death. PW 9, PSI Ingale, also narrated the entire
incident, as noticed above. The prosecution also examined PW 3,
Dr. Chaudhari, who had conducted the post-mortem examination. He
had noticed the following external injuries :-
1. “Contused lacerated wound over left wrist posteriorly 3 x 3
x 2 cms. Blood clots present.
2. Contused lacerated wound right knee anteriorly size 8 x 4 x
1 cms. Blood clots present.
3. Contused lacerated wound over right thigh medial aspect
size 5 x 4 x 2 cms., blood clots present.
4. Contused lacerated wound right leg anteriorly size 2 x 2 x
1 cms. Blood clots present.
5. Contused lacerated wound left leg 3 x 2 x 1 cms. Blood
clots present.
6. Contused lacerated wound left leg calf 6 x 2 x 1 cms. Blood
clots present.
7. Contused lacerated wound left plam thenar aspect 6 x 3 x 2
cms. Blood clots present.”
6. According to this doctor, all these injuries were caused by hard
and blunt object and the injuries were caused within the last 12
hours. He had noticed the fracture of middle third right
humerus, fracture of lower third radius ulna, fracture of lower
third of right tibia and fracture of right patella. On internal
examination, he noticed that one contusion on scalp right
parietal region size 3 x 3 cms. On internal examination of scalp
he found meninges contested and subdural of haematoma of
3 x 2 cms. Brain was found congested. He, therefore, opined
that all the injuries were ante-mortem including the internal
injuries. He also opined that the cause of death was due to
subdural haematoma with pulmonary embolism with haemorrhagic
shock due to multiple fractures. The post mortem report was
produced as Exh.70.
7. PW 8, Dr. Rajeshwar was the medical officer who had been
assigned the duty of casualty on 9th March,
1998 from 8 pm to 8 am. He also states that on that night
Khushal was admitted in the Civil Hospital Parbhani. He was
having multiple injuries with cerebral concussion with multiple
fractures with peripheral circulatory failure. He points out
that he was brought by police constable and was referred by
P.S.Tadkalas. He also states that PSI of Police Station Tadkalas
had contacted him for recording the statement of the injured. He
examined the patient and permitted the PSI to record the
statement of the injured. He categorically stated that the PSI
recorded the statement. He was present while the statement of
the injured was being recorded. After the statement was
recorded, he examined the patient and gave the certificate that
the patient was conscious to give the statement. He identified
the endorsement on the statement which was Exh.89.
8. Relying on the aforesaid evidence, the Sessions Court convicted
all the accused, as noticed above. The High Court re-examined
the entire evidence and did not find any reason to differ with
the findings recorded by the trial court.
9. We have heard the learned counsel for the parties.
10. Learned counsel for the appellant has submitted that the case of
the prosecution is unbelievable and deserves to be discarded. It
is submitted that the ocular evidence is completely inconsistent
with the medical evidence. It is pointed out that the whole
story has been concocted. The entry made in the station diary
about the incident on the basis of the statement made by PW 1
was never produced before the court. PW 9 PSI did not register
the FIR even when he had gone to the scene of the crime. It is
further pointed out that the dying declaration cannot be relied
upon. According to PW 9, it was recorded between 8.20 p.m. to
8.30 p.m. However, PW 8 says that Khushal was admitted at 8.55
p.m. The record says that the certificate of the doctor stating
that the injured was fit to give statement between 10 p.m. to
10.10 p.m. The FIR came to be recorded at 11.30 p.m. and the
injured died at 12.15 to 12.30 a.m. According to the learned
counsel for the appellant, the whole story is concocted. It has
been put forward only due to enmity between the family of the
accused with the family of the deceased. Learned counsel has
also pointed out that the deceased was in fact an undesirable
character. Show cause notice has been issued to him as to why he
should not be externed. According to the learned counsel,
Khushal was actually riding the motorcycle when he was under the
influence of liquor. He lost control of the motorcycle, as a
result of which all the three riders fell of the motorcycle. The
injuries suffered by them were due to the motorcycle accident.
Learned counsel further pointed out that the conduct of the PW1
is wholly unnatural. According to her, after the assault she
left her husband alone in a seriously injured condition and went
away in a auto rickshaw. She also left her infant child on the
road. According to the learned counsel, this is not expected
from a wife who’s husband is fighting for his life due to fatal
injuries. It is further pointed out that all the witnesses have
insisted that Khushal had been assaulted with the sickle (katti)
but the injuries sustained by him were contused and lacerated
wounds. They have pointed out the cross-examination of the PW 3
Dr.Kalidas, who had conducted the post mortem on the dead body
of Khushal. The doctor had clearly stated that he cannot specify
the external injuries corresponding to the injury mentioned in
Column No.19. This injury was so serious that there was
formation of blood on the brain which led to formation of
pressure on the brain. He had further stated that due to
formation of blood on the brain and haematomma a person becomes
unconscious. Contused lacerated wounds can be caused by hard and
blunt object and also by a fall on the ground. Learned counsel
for the appellant placed heavy reliance on the observations that
in case of major accident such types of injuries are possible.
This doctor has further stated that injuries in column 17 are
possible if a person is driving the vehicle in drunken stage and
the motor cycle skidded and it fell on one side and the rider
falls on the other side. The appellants had also emphasised that
none of the witness had seen any specific part on which the
injuries were inflicted with Katti. Since according to the
appellant, the medical evidence is inconsistent with the actual
evidence, the entire prosecution case needs to be discarded.
11. Attacking the credibility of PW 1 and 2, the appellants
submitted that PW 1 did not name any of the accused when she
went to the police station though she was present there from 7
p.m. till 7.30 p.m. She also did not mention the names of the
accused while she was travelling in the jeep with the police.
She admitted in the cross examination that when her husband has
been assaulted in front of the farm house of the accused, she
could not see as to who had inflicted which injury. It is
further pointed out that although she claims that she had been
badly assaulted by accused No.1 yet she did not get her medical
examination.
12. The evidence of PW2 is sought to be discredited on the sole
ground that he happens to be related to the deceased. Lastly, it
is submitted that the appellants have been convicted with the
aid of Section 149. This according to the appellants is
unsustainable. As there was no occasion for all the accused to
come together at that particular time. All the accused are
living at different places and there is no evidence of any
common intention. It is further submitted by the learned counsel
that even if there was a common intention, it was not to kill
Khushal. At best it could be said that accused had come with the
common intention of giving him a good thrashing because of the
incident that occurred on the previous day. Therefore, at best,
the appellant could have convicted for the offence under Section
326 IPC and not 302 IPC.
13. On the other hand, learned counsel for the State of Maharashtra
has submitted that the trial court as well as the High Court,
upon reconsideration of the entire evidence, has concluded that
the involvement of all the accused in the assault on Khushal has
been proved beyond reasonable doubt. This Court, in exercising
the powers under Article 136 of the Constitution of India, would
not re-appreciate the evidence and substitute its own opinion
for the findings recorded by the trial court and the High Court.
It is only in very exceptional circumstances when a decision
shocks the conscious of this Court that powers under Article 136
would be invoked. Learned counsel pointed out that in this case
there is cogent evidence which is sufficient to support the
conclusions recorded by the trial court as well as the High
Court. Learned Counsel pointed out to the evidence of the eye-
witness PW 1 Sharda, wife of the deceased, and PW 2 whose land
virtually adjoins the land of the accused. Both these witnesses
had given consistent eye-witness account. They were present
when the assault had actually taken place. The evidence of the
wife cannot be discarded as she herself is an injured witness.
The evidence of these two witnesses corroborates the evidence of
each other on three crucial aspects: (i) Genesis of the dispute
(ii) the manner in which the assault took place and (iii) events
that took place after the assault. He points out that both these
witnesses were subjected to lengthy cross-examination but the
evidence remained un-impeached. The ocular evidence of the two
eye witnesses is consistent with the statement made by Khushal
firstly before his father PW 7 Jiwanaji. Secondly the statement
which was recorded at Parbhani Hospital in the presence of PSI
Ingale PW 9, and Dr. Mukashe, PW8. The statement made by
Khushal, having been certified by the Doctor, PW 8 to be made
when he was conscious to make a statement, cannot be either
disbelieved or discarded. Both these dying declarations are
consistent with the ocular evidence. The third most important
piece of evidence is the recovery of various items at the
instance of the accused. The sickle allegedly used by the
appellant Narayan was stained with human blood. Similarly,
clothes of all the accused which were taken into custody by the
police and seized were also stained with blood. The weapons used
by the appellant were also stained with blood. Learned counsel
further pointed out that none of the accused was able to explain
any of the evidence appearing against them in the statement
recorded under Section 313 of the Cr.P.C, 1973. Learned counsel
further pointed out that the medical evidence clearly shows that
there are so many injuries caused to Khushal that his death
resulted due to shock and hemorrhage. He submitted that none of
the submissions made by the learned counsel for the appellants
can be supported by the evidence on record. It is further
pointed out by the learned counsel for the State of Maharashtra
that all the appellants have been convicted under Section 302
read with Section 149 IPC. The offence under Section 149 is a
specific and substantive offence. It is pointed out that for the
purpose of application of Section 149 IPC, the prosecution had
to prove the presence and participation of the accused in an
unlawful assembly. This is duly proved by the fact that all the
accused came together armed with various weapons which were used
to assault Khushal. He further submits that Section 149 which
fastened the criminal law on the accused does not require the
prosecution to prove any overt act against any particular
accused.
14. We have considered the submissions made by the learned counsel
for the parties. At the outset, it must be noticed that the
Trial Court as well as the High Court, on due appreciation of
the evidence, have found all the appellants guilty of the
offences punishable under Section 302/149 IPC. The acquittal of
accused No.9 and accused No.11 of all the charges clearly
demonstrates the care and caution with which the Trial Court as
well as the High Court have examined the evidence. Even though
the powers of this 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. In
other words, this Court would exercise the powers under Article
136 where the conclusion of the High Court is manifestly
perverse and unsupportable on the evidence on record.
15. As noticed above, we have been taken through the evidence by the
learned counsel of both sides. We are unable to agree with the
submissions made by the learned counsel for the appellants that
the appellants have been falsely implicated, or that the assault
did not take place in the manner projected by the prosecution.
16. PW 1, Sharda has clearly stated that on the fateful day, she
alongwith her infant child was riding on the motorcycle which
was being driven by her husband. She has clearly stated that her
husband was compelled to stop the motorcycle as accused No.2 had
come and stood in the way. It is significant that the incident
had taken place firstly on the road adjacent to the farm of the
accused person, secondly Khushal was dragged by the accused
person to a place in front of the farm of the accused persons.
The assault was continued by all the accused with their
respective weapons. This narration of the events was not shaken
when she was subjected to a lengthy cross-examination by
different learned counsel for all the accused. We do not find
much substance in the submission that her evidence needs to be
discarded as she did not name each and every accused person at
the first opportunity, when she went to the Police Station. Her
plight at such a situation is not difficult to imagine. She had
done whatever was feasible to report the matter to her father-in-
law. She then proceeded to inform the police, without wasting
any time. She has narrated the entire sequence of events as a
witness in Court. She has given the precise inter-se
relationship of all the accused. However, we find substance in
the submission of Mr. Sudhanshu S. Choudhari that even
Sharda did not think that her husband was so seriously injured
that he may die. Otherwise, her first impulse would have been
to move him to the hospital or arrange for a doctor. She was
aware that he had been injured only on arms and legs. But this
does not detract from the fact that the assault had taken place
as narrated by her. The fact that she could not indicate the
precise injury caused by each of the accused is quite
understandable as her husband was being attacked by a large
group of people. In such a situation, it would perhaps be
humanely impossible for anyone to indicate the precise injury
caused by each one of the accused/appellant. We, therefore, find
no infirmity in the ocular evidence given by Sharda PW1.
17. Furthermore, her evidence is duly supported by PW 2, who had
come running to the scene of the crime on hearing the commotion
at the farmhouse of the accused persons. It is noteworthy that
on seeing PW2, all the accused are stated to have discarded
their weapons and ran away. The evidence of this witness also
could not be shaken during cross-examination. It has further
come in evidence that on receiving information about the assault
on his son, PW7 promptly reached the scene of the crime. Luckily
on his way he was picked up by the police jeep which had been
brought by Sub-Inspector Ingale PW9 for investigation of the
crime. On reaching the scene of the crime, both PW7 and PW9 have
stated that they found the husband lying severely injured in a
pool of blood. Both the witnesses have also fixed the spot in
front of the farm of the accused persons. PW1 had clearly stated
that she had tried to save her husband by lying on his body but
she had been pulled away by accused No.1 who had then proceeded
to assault her. She had also further stated that the accused had
dragged her husband by the collar of his shirt to a spot in
front of the farmhouse of the appellant. They continued to
assault her husband with the respective weapons. The assault on
Khushal in front of the farmhouse is further supported by the
evidence of PW2 who has given a corresponding narration of the
assault. Therefore, the evidence of PWs.1 and 2 being consistent
cannot be lightly brushed aside. PW 7 further goes on to state
that on his arrival, he inquired from his son as to who had
caused the injuries. The son had clearly stated that family
member of Salgar had assaulted him. The statement made by the
injured before PW7 is further strengthened by the statement that
was recorded subsequently at Parbhani Hospital by PW9 in the
presence of PW8. The statement clearly indicates that the
incident took place exactly as narrated by PW1. The statement
has been recorded at the time Khushal was certified to be
conscious and in a fit medical condition to make a statement.
The dying declaration being consistent and clear also cannot be
discarded.
18. The medical evidence would also indicate that Khushal had been
very severally beaten. But at the same time, it can not be said
to be an assault with intent to kill. Firstly, all the accused
are armed with sticks and bricks etc. In our opinion, there is
no evidence to indicate that Narayan was holding a “Katti”
(sickle). It is noteworthy that Khushal had sustained external
injuries on the left wrist, right knee, right thigh, right leg,
left leg, left palm as well as head. There was hardly a bone in
his body that was not broken. The number of injuries caused to
Khushal clearly shows that the assault was premeditated. All
the injuries were lacerated and caused by blunt weapons. None
of the witnesses could say if any injury had been caused by
Katti (sickle). According to Dr. Chaudhari, PW 3, the head
injury could be the result of a rider falling from the
motorcycle.
19. In our opinion, the appellants have failed to point out any
infirmity in the conclusions recorded by the Sessions Court as
well as the High Court with regard to the assault. On this
issue, both the judgments do not suffer from any such
perversity, which would shock the conscious of this Court. In
fact, in our opinion, the entire prosecution evidence when
considered from all angles leads to a conclusion, beyond
reasonable doubt, that Khushal was a victim of a premeditated
assault by all the appellants with their respective weapons.
20. However, given the nature of weapons used, the location of the
injuries and the nature of the injuries caused, it would not be
possible to hold that the appellants shared a common object of
causing the murder of Khushal. In our opinion, the accused had
merely decided to teach him a lesson for having a quarrel with
PW 2 on the previous day. They, therefore, appear to have made
up their mind to give him a good thrashing for acting “a bit
smart”. In such circumstances, it would not be possible to
uphold the conviction of the appellants under Section 302 IPC.
However, at the same time, the nature of injuries cannot be said
to be superficial. It has come in evidence that numerous bones
in the legs and arms of Khushal had been broken. The injuries
being grievous in nature, the offences committed by the
appellants would fall within the mischief of Section 326 IPC.
21. In view of the above, the appeals are partly allowed and the
conviction of the appellants under Section 302 is set aside.
Instead thereof, they are convicted under Section 326/149 IPC.
For the offences under Section 326/149 IPC, the appellants are
hereby sentenced to undergo Rigorous Imprisonment for seven
years. The conviction and sentence recorded by the courts below
under any other sections of IPC are maintained.
22. The appeals are partly allowed, as indicated above.
…………………………….J.
[Surinder Singh Nijjar]
……………………………..J.
[H.L.Gokhale]
New Delhi;
August 28, 2012.
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