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Wednesday, August 29, 2012

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. 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. 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.


                                                           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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