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                                                   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

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.”   

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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  

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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  

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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  

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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.  

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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  

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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  

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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  

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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-

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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.  

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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  

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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.  

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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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