TMI Blog1971 (5) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... were charged and tried by Additional Sessions Judge, indore, for offences under ss. 302/34, 302/149, 307/34 and 307/149 I.P.C. Out of them 8 accused persons, namely Mansoor, Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmoodkhan s / o Dilawarkhan and Mehmood s / o Bhondekhan, were in addition charged under ss. 302, 307 and 148 I.P.C. All these charges relate to the murder of one Karamat Beg Pahalwan s/o Mirza Karim Beg at Bombay Bazar Choraha on January 19, 1965, at about 12-30 P.M. and to an attempt on the life of Ikbal Beg s/o the deceased Karamat Beg Pahalwan at the same time and place. The Trial Court convicted Mansoor, Rashid, Ishaq and Yunus and acquitted the rest giving them benefit of doubt. In regard to Gabbu it was observed that he had not been shown to be in possession of any Weapon of offence and that it could not be said that he had any. knowledge of the object of the members of the party led by Mansoor. He was, therefore, held not to be member of this assembly. 'No other case was sought to be made out against him. Each of the three injuries (Nos. 2, 3 9) inflicted on the deceased Karamat Beg were held by the Trial Court to be individually sufficient in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are two appeals-one by the five accused convicted by the High Court, and the other by the State against the acquittal of the remaining five accused persons. In the appeal by the State the sentence for life imprisonment has been stated to be inadequate for the gruesome murder in broad day-light. Both these appeals have been presented in this Court by special leave under Art. 136 of the Constitution. They were first heard by us on August 27 28 and September 22, 1970. It appears from the record that the accused persons had not filed any list of defence witnesses in the Court of Committing Magistrate. A list of 13 witnesses was, however, filed in the Court of the Additional Sessions Judge and summons were issued with respect to those witnesses. On the day when the defence witnesses were to be examined they were not present with the result that the Trial Court declined further adjournment for their production. At the time of arguments in the Trial Court the question of prejudice to the accused persons because of the refusal to grant adjournment for the production of the defence witnesses was raised, but the Court did not consider that any prejudice had resulted to the accused perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the M.Y. Hospital. The incident in question had, according to him, taken place in Bombay Bazar near Agra Hotel. The witness used to visit Mehrabkhan Patel who had a milk shop in Bombay Bazar and indeed he used to steep at Mehrabkhan's place. At about 12 noon on the date of the incident the witness and Chhotekhan were talking to each other near Agra .Hotel when they saw Karamat Pahalwan coming from Mochipura side uttering abuses to Ishaq and Mansoor. Mansoor was also seen standing opposite Agra Hotel. Karamat Pahalwan saying that Mansoor's servants had started thinking too much of them-selves because of incitement from their master rushed at Mansoor with a stick measuring 2 or 2-1/4 ft. in length and 1 or 11/2 inches thick. Karamat gave a blow to Mansoor with the stick hitting him on the head. Mansoor started bleeding. Chhotekhan took Mansoor on his bicycle to the police station. A big crowd ,collected there but the witness went away. This is all that this ,witness stated in his examination-in-chief. In cross-examination he said that he could not remember the date of the incident and :also that he did not know whether Chhotekhan was alive or dead. According to him non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel has taken, pains to advance are misconceived in this Court for the simpler reason that under Art. 136 of the Constitution this Court does not normally re-appraise the evidence for considering the credibility of the witnesses as if it is a court of first appeal. Unless the criminal trial is vitiated by some illegality or irregularly of procedure or there is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage of justice, this Court does not as a ruler proceed to evaluate the evidence for coming to its own independent conclusion. No such infirmity has been made out by the appellants' learned counsel. We may briefly state the broad essential features of the prosecution story as narrated by the eye witnesses and as accepted by the High Court. Mansoor has employed accused Ishaq, Yunus and Gabbu. Rashid is a friend of Mansoor since childhood. Accused Mahmoodkhan s/o Dilawarkhan, Ajimkhan and Hakimkhan are three Pathans who usually visited Mansoor's shop. They are stated to indulge together in the nefarious trade of smuggling opium. Karamat Beg and his son Ikbal Beg are opposed to Mansoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court had not followed the standard laid down by this Court for dealing with the appeals against acquittal and in support of this submission he relied on the decisions of this Court in Sanwat Singh others v. State of Rajasthan([1961] 3 S.C.R. 120.) and on an unreported judgment of this Court in Keshav Ganga Rain Navge Anr v. State of Maharashtra(Cr. A. No. 100 of 1968 decided on February 3, 1971.). In our opinion, this submission is wholly unfounded. The High Court did not ignore the standard laid down by this Court in Sanwat Singh's case([1961] 3 S. C. R. 120.). According to that decision the words substantial and compelling reasons for setting aside an order of acquittal used in this Court's earlier decisions are intended to convey the idea that an appellate court shall not only bear in mind the principles laid down by the Privy Council in Sheo Swarup v. King Emperor,((1934) L.R. 61 I.A. 398.) but must also give its clear reasons for coming to the conclusion that the order of acquittal was wrong. In the case before us the High Court has kept these observations in view when dealing with the acquittal appeal. In Keshav Ganga Ram Navge's case(Cr. A. No. 130 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the High Court has not contravened any of the principles laid down in Sheo Swarup's case ((1934) L. R. 61 I.A. 398.) and has- also given reasons which led it to hold that ,the acquittal was not justified. In the circumstances, no case has been made out for our not accepting the said findings. In the present case we further find that Mahmood, who was convicted on appeal against acquittal has since served out his sentence and is no longer in jail. The counsel contended that if Mahmood's conviction were to be set aside then there would be no justification for applying ss. 148 and 149 I.P.C. We are ,not persuaded to hold that the judgment of the High Court suffers from any such grave or serious error as would justify our interference with the order convicting Mahmood. The High Court considered the evidence and came to its own conclusion. No legal error suggesting miscarriage of justice has been pointed ,out by the learned counsel. The conviction of the present appellants, it may be pointed out, is also under s. 302 read with S. 34 I.P.C. and this conviction would, in any event, be unassailable even though s. 148 I.P.C. is not attracted. We, however, do not acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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