IMPORTANT POINT
Lacuna in investigation is curable by statement of the witness, the medical report and the eye-witness version.

JUDGMENT

Swatanter Kumar, J. —

1.The present appeal is directed against the Judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad dated 27th February, 2007 wherein the Court passed the following judgment of conviction and order of sentence:

“Crl. A. No. 1825 of 2004 is allowed in part. The convictions and sentences imposed on A.1 for the offence under Section 302 I.P.C. and Section 3 r/w 25 (1-B) (a) of Arms Act are confirmed. The conviction imposed on A.2 for the offence under Section 302 r/w 109 I.P.C. is modified and he is convicted for the offence under Section 302 r/w 34 I.P.C. and sentenced to suffer imprisonment for life and also to pay a fine of Rs.1,000/- in default, to suffer 6 months simple imprisonment. The conviction and sentence imposed on A.1 and A.2 for the offence under Section 120-B I.P.C. is set aside. So far as A.4 and A.6 are concerned, they are found not guilty for any of the offences under Sections 120-B and 302 r/w Section 109 I.P.C. and accordingly, the convictions and sentences imposed on them for the said offences are set aside. Therefore, A.4 and A.6 shall be set at liberty forthwith if they are not required in any other crime. The fine amount, if any, paid by them shall be refunded.

Crl.A. No.1886 of 2004 is allowed and the convictions and sentences imposed on A.8 for the offences under Sections 120-B and 302 r/w Section 109 I.P.C. are hereby set aside. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by him shall be refunded. Crl.A. No.2220 of 2004 is allowed and the convictions and sentences imposed on A.3 and A.5 for the offences under Sections 120-B and 302 r/w Section 109 I.P.C. are hereby set aside. They shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by them shall be refunded.”

2.As is apparent from the above judgment of the High Court that it modified the judgment of the Trial Court insofar as conviction of accused No.A2 was concerned. However, it completely acquitted accused A3 to A6 and A8 of all the offences. From the record, it appears that A7 was merely the author of the diary and was charged along with other accused of the offence under Section 396 of the IPC and for that offence, the Trial Court had in fact acquitted all the accused of this charge including A7. At the very outset, we may notice that no appeal has been preferred against their acquittal by the State or the competent authority. Thus, in the present appeal we are only concerned with the appeal of accused Maqbool @ Zubir @ Shahnawaz and Mohd. Feroz Khan @ Feroz referred to as appellants herein.

3.The prosecution had brought before the Court of Session nine accused to face the trial. Out of these, one Azam Ghori is stated to have been killed in an encounter on 6th April, 2000 and consequently proceedings against him came to an end. While other eight accused faced the trial and were finally found guilty and were punished for different offences. A1 was found guilty for offence under Section 302, whereas A2 to A8 for the offence under Section 302/109 IPC. However, they all were acquitted for the charge of an offence under Section 396 IPC but were also punished for 120-B IPC. The facts from the record shows that somewhere in July 1999, Azam Ghori who died during the Trial organized a Tanjeem along with his associates accused A1 to A8, hatched a conspiracy to snatch away the cash bag from one Ramakrishna Rao, the owner of a cycle shop called ‘Krishna Cycle Stores’, New Bus Stand, Bodhan. In pursuance of the said conspiracy on 2nd August, 1999 accused chalked out plan at Sarbathi Canal Mosque, Bodhan that A1 should snatch the bag of the deceased and A2 Feroz Khan should drive the vehicle to escape from the scene after commission of the offence and remaining of them i.e. A3 to A9 should watch the movements by taking shelter near the shop and house of the deceased for successful implementation of their plan. A6 M