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SUPREME COURT OF INDIA
K. JAYACHANDRA REDDY AND R. C. PATNAIK, JJ.
Madhusudan Satpathy and others, Appellants
Versus
State of Orissa, Respondent.
Criminal Appeal No. 227 of 1980,
D/- 29-1-1992.
Held: Learned counsel urges that before a person is charged for having committed a terrorist and act, it must be alleged that committed any of the acts specified in sub-section (1) of Section 3. Similarly, any person, who is being charged for conspiracy, his actions must have nexus with the can objects mentioned in sub-section (1) of Section 3. the Section 5 does not say that the accused concerned the found in possession of any arms and ammunitions 305 specified, must be in possession of the same for be any of the objects mentioned in sub-section (1) of Section 3. But unless the possession of the arms and ammunitions specified in Section 5 are related or connected with any of the objects mentioned in sub-section (1) of Section 3, the accused shall not be deemed to be a terrorist within the acc meaning of the Act and the possession of any arms has and ammunitions specified therein, shall not be XX deemed to be a terrorist act, says Sri Jethmalani. He relies upon the observations in the concurring (2) opinion of R.M. Sahai, J. in Kartar Singh. (Para 7)
Further Held: Because the interpretation placed upon Section 5 by the learned Judge amounts to reading words into Section 5 which arc not there and further because interpretation of Section 5 one way or the other is likely to affect a large number of cases in the country, we think it appropriate that the matter is pronounced upon by the Constitution Bench so as to authoritatively settle the issue. (Para 8)
(ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20(4)(bb) - Criminal Procedure Code, 1973 - Section 167 - Charge sheet filed beyond six months of petitioners arrest - No order extending his detention made by the Designated Court with notice to the petitioner, before the expiry of 180 days - Claim of indefeasible right of petitioner to be enlarged on bail soon upon the expiry of 180 days. View taken by the Division Bench in Hitendra Vishnu Thakur case calls for a reconsideration - Meaning and effect of Section 167 has to be authoritatively pronounced upon - Matter referred to the Constitution Bench.
Held: It has been said in the said judgment that after the expiry of the statutory period mentioned in proviso to sub-section (2) of Section 167 and sub-section (4) of Section 20 of the TADA an indefeasible right is created in an accused person on account of the default by the investigating agency in the completion of the investigation. But can such a right be exercised by an accused who in the meantime has been remanded to custody under other provisions of the Code like Section 309(2) and Section 209(b) of the Code. It need not be pointed out that Section 167 is a provision regarding authorizing detention of an accused in custody during investigation. After that expiry of the statutory period mentioned therein, if the investigation is not concluded the accused becomes entitled to be released on bail. When such accused is released, then it shall be deemed that he has been released under the provisions of Chapter XXXIII of the Code. According to us, the right to be released on bail under proviso to sub-section (2) of Section 167, accrues to an accused at a particular stage. But can it be held to be an indefeasible right which can be exercised at any stage including the stage of trial? Even a Habeas Corpus application on the ground that there is no valid order of remand or detention of the accused to custody, has to be dismissed, if it is found that on the date of the return of the Rule, the accused is in custody on the basis of a valid order of remand or detention. (Para 12)
ORDER - The three appellants before us were tried along with four others by the Additional Sessions Judge for offences punishable under S. 302 read with Ss. 148 and 149, I.P.C. The case mainly rests on the evidence of eye-witnesses PWs. Nos. 1, 4. 5, 8 and 10. The trial Court rejected their evidence on the ground that apart from their version being in conflict with the medical evidence, the time of occurrence has not been correctly put forward and, therefore, the whole case becomes doubtful. The State preferred an appeal and Division Bench of the Orissa High Court disagreed with the finding of the trial Court in respect of these three appellants. The acquittal of the remaining accused was,however, confirmed.
2. The learned counsel submits that the High Court has not kept in view the well settled principles to be observed in reversing the order of acquittal and the evidence of the so-called eye-witnesses has been rejected by the trial Court which had also the advantage of watching their demeanour and that in these circumstances, the order of the High Court cannot be sustained.
3. According to the prosecution, the deceased Bharat Satpaty purchased a piece of land from one of the accused and Nrusingha Misra had also borrowed Rs. 1,000/ - from him. In that connection there were some disputes and it created ill-feelings. On 16th June, 1976, the date of occurrence, it is alleged that the deceased came to the House of Madhua for receiving Payment. The deceased however, consented but told that he would go after answering call of nature. Meanwhile P.W. 1 who heard the deceased shouting in agony rushed there. He saw the deceased lying there and some of the accused giving bhala blows to him. According to the version of the eye-witnesses, the first appellant gave a Bhala blow on the right temporal region of his head and the second appellant gave a blow on the right side of his head with a wooden plank and the third appellant Nrusingha Charan Misra gave a blow on the bridge of the nose. The other accused are generally alleged to have given lathi blows. The report was given to the Police and the case was registered and after completion of the investigation charge-sheet was framed. It is already noted that the case mainly rests on the evidence of the eye-witnesses P.Ws. Nos. 1, 4, 5, 8 and 10. The High Court has considered their evidence in great details on the question of law namely the scope of an appeal against acquittal, the Division Bench has also referred to the relevant decisions and keeping in view of the settled principles, the High Court proceeded to discuss the evidence and ultimately found that they had no intention to cause death but they had intention to cause such injuries which were likely to cause death.
The High Court convicted these accused under s. 304, Part I, I.P.C. read with S. 34 I.P.C. and sentenced them to undergo 6 years R.I. The medical evidence shows that there is only one injury on the head that proved to be fatal. The other injuries were found to be simple. Weapons used also were not deadly. Under these circumstances it is reasonable to hold that the appellants had only knowledge that the injuries inflicted by them were likely to cause death. In this view of the matter we alter the conviction from S. 304, Part I, I. P.C. to one punishable under S. 304, Part II, I.P.C. and we reduce the sentence of each of the appellants from 6 years R I. to 3 years R.I.
4. The appeal is disposed of accordingly.
Order accordingly.
For Citation: AIR 1994 SC 474
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