STATE OF MAHARASHTRA versus AHMED SHAIKH BABAJAN & ORS.

Citation: [2008] 14 S.C.R. 1184 · Decided: 24-10-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Dismissed

Judgment (excerpt)

[2008] 14 S.C.R. 1184 
A 
STATE OF MAHARASHTRA 
v. 
AHMED SHAIKH BABAJAN & ORS. 
(Criminal Appeal Nos. 25-29 of 2002) 
OCTOBER 24, 2008 
B 
[C.K. THAKKER AND D.K. JAIN, JJ.] 
Penal Code, 1860; S. 302 rlw s. 34; S. 456 rlw s. 109 and 
s. 460: 
c 
House breaking by night - Murder of son of tenant a/leg-
edly by landlord and others - Trial Court acquitting accused 
A1 to A3 of the offences uls.302 rlw s.34 /PC, convicted ac-
cused A4 and A5 for committing offence u/s.460 and A 1 to A3 
for committing offences punishable u/s. 456 rlw s. 109 as well. 
D Acquittal of all accused persons by High Court- Correctness 
of - Held: Correct - Sole independent witness did not support 
the prosecution version - His testimony casts serious doubt 
on the presence of PW1 at the time and place of occurrence -
Hence, Courts below rightly acquitted accused persons of com-
E mitting the offence punishable under Section 302 rlw s.34/PC 
- PW1 failed to mention in FIR a very important fact regard-
ing occupation of the premises forcibly by accused persons -
In such circumstances, High Court rightly acquitted accused 
A 1 to A3 of committing offence punishable uls. 456 rlw s. 109 
F 
/PC - Hence, impugned judgment does not suffer from any 
illegality warranting interference - Testimony of relative eye 
witnesses - Reliance upon. 
Constitution of India, 1950; Article 136 - Power under, 
invoking of - Held: Could be invoked in very exceptional cir-
G cumstances when approach of.lower Courts vitiated by some 
manifest illegality. 
' 
Code of Criminal Procedure, 1973; s. 154: 
~ 
FIR - Evidentiary value - Discussed. 
H 
1184 
STATE OF MAHARASHTRA v. AHMED SHAIKH 
1185 
BABAJAN & ORS. 
Accused A1, owner of a flat, inducted PW6 as a lie-
A 
ensee in terms of an- agreement of leave and license for a 
period of nine months executed between them. PW6 re-
sided in the premises along with her husband PW4, 
daughter PWS, her 3 sons including the deceased af'.ld 
PW1. It is alleged that about two weeks prior to the date 
I 
B 
of the incident accused persons A1, A2 and A3 asked PW4 
~ 
to deliver vacant possession of the flat. PW4 requested 
for permission to stay for a few more days. However, A1 
turned down the request and threatened him to take the 
possession forcibly if he failed to deliver the possession c 
by certain due date. While the deceased was standing i'n 
front of the shop of accused A-3 waiting for his mother 
and sister who have been returning back from Hyderabad, 
accused A-1 and accused A-3 came there and started 
beating him. The incident was witnessed by PW-1, brother D 
"' 
of the deceased, who rushed to save his brother. PW-2, a 
police constable and a family friend of the victim, who wa~ 
present at the spot apprehend the two accused persons. 
PW-1 and PW2 took the deceased to a hospital, where he 
was declared brought dead. When PW-1 came back to 
E 
the flat, he found that the same had been occupied by 
two ladies, A-4 and A-5. He found his father in a garden 
and informed him about the incident and then lodged an 
FIR. When PW 5 and PWG returned from Hyderabad, they 
--1 
also found accused A4 and AS in their flat and they alleg• 
edly threw their luggage outside the flat. Police took them 
F 
to the Police Station and recorded their statement. After 
completion of the investigation, Police submitted charge. 
sheet against all the accused persons for committing the 
offences punishable u/s.460 IPC. Additionally, accused, 
persons A1 to A3 were also charged u/s.302 r/w s.34 IPC G 
.,. 
1 
for committing the murder of the deceased. Trial Court 
\ 
acquitted accused A1 to A3 of the offences u/s.302 r/w 
.. 
s.34 IPC, however, relying on the testimony of PWS and 
.,\. 
PW6, convicted accused A4 and AS for committing of-
fence u/s.456 IPC and accused A1 to A3 for committing H 
1186 
SUPREME COURT REPORT$ 
(2008] 14 S.C.R. 
f 
,_
A offences under s.456 r/ws.109 IPC and sentenced them 
to undergo rigorous imprisonment for a term of 2 years. 
On appeal, the High Court, while affirming the acquittal of 
the accused, set aside the conviction of the ·accused per-
sons for committing the -offences punishable u/s.456 r/w 
B 
s.109 IPC. Hence the present appeals. 
Djsmissing the appeals, the Court 
HELD: 1.1 It is the established practice of this Court 
that power under Article 136 of the Constitution is invoked 
c in very exceptional circumstances, when the approach 
of the lower courts is vitiated by some manifest illegality 
or the conclus

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