- (1.) Seven accused were charged for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 ("IPC" for short). All of them have been acquitted of the said charge. Accused No. 2 (S.V. Caeiro) and Accused No.5 (Sanvlo Naik), who are respondents in the present appeals, were, however, convicted for the offence punishable under Section 304 Part II read with Section 34 IPC and sentenced to suffer simple imprisonment of three years and two years respectively along with fine. Aggrieved, the convicted accused respondents filed separate appeals before the High Court of Bombay. The High Court by the impugned judgment has allowed the said appeals; set aside the conviction and sentence imposed and acquitted the accused respondents (Accused No.2 and Accused No.5). Aggrieved, the State through Central Bureau of Investigation ("CBI" for short) is in appeal before this Court.
(2.) At the very outset, we would like to deal with the issues enumerated in our previous order dated 5th September, 2017 passed in the present matters. The said order reads as follows: " Heard in part. At the end of the hearing today we are of the tentative view that if the respondent Accused No.2 is to be held responsible for the injuries found on the person of the deceased which, according to the report of the postmortem, was responsible for his death what should be the extent of liability of the said accused. The further question to be dealt with is whether the offence committed would amount to one punishable under Section 302 IPC and, if so, whether this Court would be empowered in law to pass such an order in the present appeals. Alternatively, if the conviction under Section 304 Part II IPC is to be maintained whether the sentence should be enhanced to a period of ten (10) years. Learned counsel for the respondent - Accused No.2 prays for time until Thursday next (i.e. 7th September, 2017). Time as prayed is granted. List the matter on Thursday i.e. 7th September, 2017 as part-heard."
(3.) Shri Ranjit Kumar, learned Solicitor General of India, who appeared at the request of the Court, on the strength of several decided cases of this Court has submitted that the power of this Court under Article 136 of the Constitution of India under which the present appeals have been entertained is plenary and of wide amplitude and discretionary in nature. Learned Solicitor General, in particular, has referred to the two decisions of this Court in the cases of Arunachalam v. P.S.R. Sadhanantham and another, (1979) 2 SCC 297 and P.S.R. Sadhanantham v. Arunachalam and another, (1980) 3 SCC 141 to suggest that in an appropriate case and to meet the ends of justice, this Court is empowered and would be justified to go into the merits of an order of acquittal though the same may not be under challenge so long the same raises an issue in the appeal before the Court. In this regard, the learned Solicitor General has pointed out that this Court's appellate power under Article 136 of the Constitution of India is far wider than an appellate Court's power under Section 386 of the Code of Criminal Procedure, 1973.;