NARAYAN MANIKRAO SALGARversusSTATE OF MAHARASHTRA

                        [2012] 8 S.C.R. 170


A                NARAYAN MANIKRAO SALGAR
                                  v.
                   STATE OF MAHARASHTRA
              (Criminal Appeal No. 159 of 2008 etc.)

                        AUGUST 28, 2012
B
     [SURINDER SINGH NIJJAR AND H.L GOKHALE, JJ.]

       Penal Code, 1860- ss. 3261149, 148, 3411149 and 3231
   149 - Prosecution of accused u/ss. 148,3021149,3411149 and
C 3231149 - Death of one caused - Two eye-witnesses - Two
  dying declarations - Recovery of blood-staineditems, blood-
  stained weapons and blood-stained clothes of accused -
  Conviction by courts below - On appeal, held: The
  prosecution evidence leads to a conclusion, beyond
D reasonable doubt that. the deceased was victim of
  premeditated assault by the appellants-accused - However,
  in view of the nature of weapons and injuries, accused cannot
  be said to have shared common object of causing the murder
  - Since the injuries were grievous in nature, conviction u/s.
E 302 altered to under s. 326 rlw s. 149 - Conviction on other
  counts maintained.

       Constitution of India, 1950- Article 136 - Special Leave
  Petition - Power under - To interfere with concurrent findings
  of facts - Held: Court not to interfere with concurrent findings
F of fact save in exceptional circumstances - Interference
  permissible only when High Court is found to have acted
  perversely or disregarded any vital piece of evidence which
  would shake the very foundation of prosecution case.

G        The appellant-accused alongwith others was
    prosecuted ulss. 148, 3021149, 3411149 and 3231149 IPC
    for having caused death of one person. The prosecution
    case was that PW-1 (wife of the victim) and PW-2 were
    the eye-witnesses to the incident. PW-1 informed the
H                                170
    NARAYAN MANIKRAO SALGAR v. STATE OF                171
              MAHARASHTRA
 police after the incident. The victim told his father (PW-7) A
 naming all the accused as assailants. The deceased was
 taken to hospital by the police in injured condition. There,
 on certification by the doctor (PW-8), the deceased made
 a statement to PW-9 (PSI) incriminating all the accused
 by name. Eventually he succumbed to the injuries. The B
 statement of the deceased was treated as dying
 declaration. Trial court convicted the accused except
 accused Nos. 9 and 11 of all the charges. High Court
 upheld the order of trial court. However, the appeal
 against accused Nos. 2 and 10 abated because of their c
 death. The present appeals were filed against the order
 of High Court

     Partly allowing the appeals, the Court

      HELD: 1. Even though the powers of this Court under D
 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 E
 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 F
 unsupportable on the evidence on record. [Para 14] [184-
 G-H; 185-A]

       2.1. 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. G
  On this issue, both the judgments do not suffer from any
· such perversity, which would shock the conscious of this
  Court. The entire prosecution evidence when considered
  from all angles leads to a conclusion, beyond reasonable
  doubt, that the deceased was a victim of a premeditated H
    172     SUPREME COURT REPORTS            [2012] 8 S.C.R.

A assault by all the appellants with their respective
  weapons. It cannot be said that thtl appellants have been
  falsely implicated, or that the assault did not take place
  in the manner projected by the prosecution. [Paras 19 and
  15] (187-E-F; 185-A-B]
B
       2.2. The narration of the events by PW1 was not
  shaken when she was subjected to a lengthy cross-
  examination by different counsel for all the accused. Her
  evidence cannot be discarded on the ground that she did
  not name each and every accused person at the first
C 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
D entire sequence of events as a witness in court. She has
  given the precise inter-se relationship of all the accused.
  She 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
E 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
F 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. Therefore,
  there is no infirmity in the ocular evidence given by PW1.
G (Para 16] (185-E-H; 186-A-B]

        2.3. The evidence of PW 1 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. On seeing PW2, all the accused are stated to
H
    NARAYAN MANIKRAO SALGAR v. STATE OF                      173
              MAHARASHTRA
have discarded their weapons and ran away. The                       A
evidence of this witness also could not be shaken during
cross-examination. [Para 17] [186-C-D]

    2.4. The statement made by the injured before PW7
is further strengthened by the statement that was                    8
recorded subsequently at 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 the deceased
was certified to be conscious and in a fit medical                   C
condition to make a statement. The dying declaration
being consistent and clear also cannot be discarded.
[Para 17] [186-H; 187-A-B]

       2.5. The medical evidence also indicates that the
•deceased had been very severely beaten. But at the same             D
ltime, it can not be said to be an assault with intent to kill.
!Firstly, all the accused were armed with sticks and bricks
-l!tc. There is no evidence to indicate that one of the
 iaccused was holding a "Katti" (sickle). The deceased had
 sustained external injuries on the left wrist, right knee,          E
  ·ight thigh, right leg, left leg, left palm as well as head. The
  1umber of Injuries caused to the deceased clearly shows
   hat the assault was premeditated. All the injuries were
   acerated and caused by blunt weapons. None of the
  111itnesses could say if any injury had been caused by             F
  l(atti (sickle). According to PW 3 (doctor), the head injury
  ~ould be the result of a rider falling from the motorcycle.
  Para 18] [187-8-E]

     2.6. However, given the nature of weapons used, the
 -)cation of the injuries and the nature of the injuries             G
  aused, it would not be possible to hold that the
  ppellants shared a common object of causing the
 -1urder of the deceased. The accused had merely
 •ecided to teach him a lesson for having a quarrel with
                                                                     H
    174       SUPREME COURT REPORTS             [2012] 8 S.C.R.


A 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
B nature of injuries cannot be said to be superficial. It has
  come in evidence that numerous bones in the legs and
  arms of the deceased had been broken. The injuries
  being grievous in nature, the offences committed by the
  appellants would fall within the mischief of Section 326
C IPC. [Para 20] (187-G-H; 188-A-B]

      2.7. 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
D Rigorous Imprisonment for seven years. The conviction
  and sentence recorded by the courts below under any
  other sections of IPC are maintained. [Para 21] (188-C-D]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
E No. 159 of 2008.

        From the Judgment & Order dated 20.8.2007 of the High
    Court of Bombay, Bench at Aurangabad in Criminal Appeal No.
    622 of 2005.

F                               WITH
    Crl. Appeal Nos. 803-804 & 297-298 of 2008.

      Sudhanshu S. Choudhary, Rajshri Dubey, Sushil Karanjkar,
  Sudhanshu Choudhari (for Naresh Kumar), Manish Chitale (for
G Naresh Kumar), Chinmoy Khaladkar, Sanjay V. Kharde (for
  Asha Gopalan Nair) for the appearing parties.

          The Judgment of the Court was delivered by

          SURINDER SINGH NIJJAR, J. 1. By this common
H
    NARAYAN MANIKRAO SALGAR v. STATE OF                      175
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
judgment, we propose to decide criminal appeals being                A
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,          B
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    c
substantive sentences would run concurrently. The aforesaid
conviction and sentences have been recorded in the judgment
of First Ad hoc 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
                                                                     0
 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.         E

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

     3. PW 9, P.S.I Mallikarjun lngale, who was attached to·
Tadkalas Police Station as a P.S.I. was informed by PW 1 F
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 G
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.
lngale went to the scene of the offence alongwith some other H
    176      SUPREME COURT REPORTS                [2012] 8 S.C.R.


A 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
B 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
c 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,
D PW8.

         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
E   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
F   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
G   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
H   scene of offence was duly drawn in the presence of panchas
    NARAYAN MANIKRAO SALGAR \/. STATE OF                   177
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]

at Exh.76. Blood stained stones, blood mixed soil, a black bead A
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 B
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 c
 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
                                                                   0
 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 E
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 F
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 G
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 H
    178       SUPREME.COURT REPORTS                [2012] 8 S.C.R.


A 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
s 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
c 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
0
   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
E 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.
F 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
G 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
H accused No.2 to 11 had assaulted him. He then narrates how
    NARAYAN MANIKRAO SALGAR v. STATE OF                         179
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
Khushal had been taken to the hospital and about his death.             A
PW 9, PSI lngale, 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 :-
                                                                        B
      1.    "Contused lacerated wound over left wrist
            posteriorly 3 x 3 x 2 ems. Blood clots present.

      2.    Contused lacerated wound right knee anteriorly size
            8 x 4 x 1 ems. Blood clots present.
                                                                        c
      3.    Contused lacerated wound over right thigh medial
            aspect size 5 x 4 x 2 ems., blood clots present.

      4.    Contused lacerated wound right leg anteriorly size
            2 x 2 x 1 ems. Blood clots present.
                                                                        D
      5.     Contused lacerated wound left leg 3 x 2 x 1 ems.
             Biood clots present.

      6.     Contused lacerated wound left leg calf 6 x 2 x 1 ems.
             Blood clots present.                                       E

      7.     Contused lacerated wound left plam thenar aspect
             6 x 3 x 2 ems. Blood clots present."

      6. According to this doctor, all these injuries were caused
by hard and blunt object and the injuries were caused within            F
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 ems. On internal examination of scalp        G
he found meninges contested and subdural of haematoma of
3 x 2 ems. 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                        H
    180       SUPREME COURT REPORTS               [2012] 8 S.C.R.


A   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
8
  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
c 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
D 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
E 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.

F      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
G 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
H 8.20 p.m. to 8.30 p.m. However, PW 8 says that Khushal was
    NARAYAN MANIKRAO SALGAR v. STATE OF                        181
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
admitted at 8.55 p.m. The record says that the certificate of the A
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 B
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               c
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 clounsel further pointed out
 that the conduct of the PW1 is wholly unnatural. According to
                                                                        0
 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
                                                                        E
 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 F
  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 G
  lacerated wounds can be caused by hard and blunt object and
  also by a fall on the ground. Learned counsel for the appellant
  placeltheavy 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 H
    182       SUPREME COURT REPORTS               [2012] 8 S.C.R.


A 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
B 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
C 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
D 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
E 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
F 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
G 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
H High Court, upon reconsideration of the entire evidence, has
    NARAYAN MANIKRAO SALGAR v. STATE OF                    183
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
concluded that the involvement of all the accused in the assault A
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 B
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 c
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 D
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
                                                                   E
 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 lngale PW 9, and Dr. Mukashe, PW8. The statement made F
 by Khushal, having been certified by the Doctor, PW 8 to be
 made when he was conscious to make a statement, cannot be
 either disbeliev¢d 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 G
 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 H
    184      SUPREME COURT REPORTS                [2012) 8 S.C.R.


A 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
B that his death resulted due to shock and hemorrhage. He
  supmitted 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
C 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
D 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.

E      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
F 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
G 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.
H In other words, this Court would exercise the powers under
    NARAYAN MANIKRAO SALGAR v. STATE OF                        185
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
"'\rticle 136 where the conclusion of the High Court is manifestly    A
 )erverse and unsupportable on the evidence on record.

      15. As noticed above, we have been taken through the
 =vidence by the learned counsel of both sides. We are unable
 o agree with the submissions made by the learned counsel for
                                                                      8
·he appellants that the appellants have been falsely implicated,
 )r that the assault did not take place in the manner projected
 )y the prosecution.

        16. PW 1, Sharda has clearly stated that on the fateful day,
.;he alongwith her infant child was riding on the motorcycle which C
'\fas being driven by her husband. She has clearly stated that
 ier husband was compelled to stop the motorcycle as accused
  ~o.2 had come and stood in the way. It is significant that the
111cident had taken place firstly on the road adjacent to the farm
 ·>f the accused person, secondly Khushal was dragged by the D
 accused person to a place in front of the farm of the accused
 ·>ersons. The assault was continued by all the accused with their
 ·espective weapons. This narration of the events was not
   haken when she was subjected to a lengthy cross-examination
  "Y different learned counsel for all the accused. We do not find E
  111uch substance in the submission that her evidence needs to
   •e discarded as she did not name each and every accused
   •erson at the first opportunity, when she went to the Police
  ~talion. Her plight at such a situation is not difficult to imagine .
  .)he had done whatever was feasible to report the matter to her F
   2ther-in-law. She then proceeded to inform the police, without
   ~asting any time. She has narrated the entire sequence of
    vents as a witness in Court. She has given the precise inter-
   ·e relationship of all the accused. However, we find substance
   q the submission of Mr. Sudhanshu S. Choudhari that even             G
    ,harda did not think that her husband was so seriously injured
   iat he may die. Otherwise, her first impulse would have been
    ·> move him to the hospital or arrange for a doctor. She was
    ware that he had been injured only on arms and legs. But this
     '°es not detract from the fact that the assault had taken place
                                                                       H
     186      SUPREME COURT REPORTS                 (2012] 8 S.C.R.


A 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
  hum!'Jnely impossible for anyone to indicate the precise injury
B 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
C    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
D    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 Inga le 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.
E    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
F   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.
G   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
H   the injured before PW7 is further strengthened by the statement
    NARAYAN MANIKRAO SALGAR v. STATE OF                            187
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
that was recorded subsequently at Parbhani Hospital by PW9                 A
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                B
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         C
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                D
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.                E

     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,          F
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.                                  G

     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                   H
    188       SUPREME COURT REPORTS                [2012] 8 S.C.R.


A 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
B 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.
c      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
D 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.
E
    K.K.T.                                  Appeals partly allowed.