Back
SUPREME COURT OF INDIA
DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
MANGA @ MAN SINGH - Appellant
VERSUS
STATE OF UTTARAKHAND - Respondent
Criminal Appeal No.1156 of 2008 with Criminal Appeal No.1157-1166 of 2008
Decided on 3-5-2013.
Criminal Trial-Defective investigation- Plea that the investigating officer though visited spot did not detect any empty cartridges or bullets- PW-13 Investigating officer in his evidence stated that he had neither detected any empty cartridges nor any pellets on the spot of occurrence-If he had not detected it, then the reason was as simple as that- No case of appellants that pellets were strewn all around the place of occurrence visibly, but yet the investigating officer failed to collect and place even some of them before the Court- When there was enough evidence to support version of prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by version of the injured eye-witnesses, held incomprehensible as to how non- detection of pellets or bullets would be of any consequence as a vitiating factor to defeat the case of the prosecution- It was an undisputed fact that both the deceased died of fire-arm injuries and all the injuries suffered by others were also firm-arm injuries- Plea of defective investigation held liable to be rejected (Para 28)
Indian Penal Code,1860- Section 302, 307 read with Section 149 and Sections 147 & 148-Conviction for offences under-Appeals -Plea that under Section 141 ’third’, the expression ’other offence’ used therein for the purpose of ascertaining the common object of a person in an unlawful assembly, would only be relatable to offences similar to those such as, mischief or criminal trespass, referred to in the said clause-A conspectus reading of Section 40 makes the position abundantly clear that for all offences punishable under the Indian Penal Code, the main clause of Section 40 would straight away apply in which event the expression "other offence" used in Section 141 ’third’, will have to be construed as any offence for which punishment is prescribed under the Code-To put it differently, whomsoever is proceeded against for any offence punishable under the provisions of the Indian Penal Code, Section 40 sub-clause 1 would straight away apply for the purpose of construing what the offence is and when it comes to the question of offence under any other special or local law, the aid of sub-clauses 2 and 3 will have to be applied for the purpose of construing the offence for which the accused is proceeded against- Instantly , since no special law or local law was attracted and accused were charged only for the offence under the Indian Penal Code, Section 40(1) gets attracted along with Section 141 ’third’ IPC- Having regard to such a construction on Section 141, read along with Section 40 IPC, the offence found proved against the appellants, falling under Sections 302 read with 149, 307 read with 149 along with 147 and 148 of the Code for which the conviction and sentence imposed by Court below could not be found fault with-Appeals dismissed (Paras 46, 47)
Facts of the Case :
Accused persons 15 in number, armed with guns and country made pistols were prosecuted herein in the instant case for approaching the house of complainant, and opening fire causing death of two persons and injuries to several others. Trial Court convicted accused persons for said offense. Appeal thereagainst was Dismissed by High Court.
B. Present Appeals have been filed against said order of High Court.
Findings of the Court :
Instantly nothing was put to PW-13Investigating Officer as regards the alleged delay in sending the FIR to the Magistrate and or to any prejudice was caused to the appellants on that account. No prejudice shown to have been caused to appellants on the ground of alleged delay in sending a copy of FIR to Magistrate. Held FIR was factually recorded without delay and the investigation started on the basis of the FIR . In the absence of any other infirmity in that respect, delay in forwarding report to Magistrate not in any way vitiated the case of prosecution.
B.PW-13 Investigating officer in his evidence stated that he had neither detected any empty cartridges nor any pellets on the spot of occurrence. If he had not detected it, then the reason was as simple as that. No case of appellants that pellets were strewn all around the place of occurrence visibly, but yet the investigating officer failed to collect and place even some of them before the Court. When there was enough evidence to support version of prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by version of the injured eye-witnesses, held incomprehensible as to how non- detection of pellets or bullets would be of any consequence as a vitiating factor to defeat the case of the prosecution. It was an undisputed fact that both the deceased died of fire-arm injuries and all the injuries suffered by others were also firm-arm injuries. Plea of defective investigation was held liable to be rejected. Appeals were dismissed.
Result : Appeals dismissed
JUDGMENT
Fakkir Mohamed Ibrahim Kalifulla, J.:- In these appeals the challenge is to the common judgment of the Division Bench of the High Court of Uttarakhand at Nainital dated 14.6.2007 in Criminal Appeal Nos.17, 18, 19, 21, 22, 23, 24, 25 and 95 of 2005. The High Court by the impugned judgment confirmed the conviction and sentences awarded by the trial Court in its judgment and order dated 01.2.2005, in Sessions Case No.156/2002 State v. Soma and Others. The appellants were all convicted for offences under Section 302, 307 read with Section 149 and Sections 147 & 148 of Indian Penal Code (IPC). Each of the accused was awarded the punishment of life imprisonment and fine of Rs.5000/- under Sections 302/149 IPC and seven years rigorous imprisonment and fine of Rs.3000/- under Section 307/149 IPC and one year’s rigorous imprisonment and Rs.1000/- fine under Section 148 IPC and six months’ rigorous imprisonment and Rs.500/- fine under Section 147 IPC. All the sentences were directed to run concurrently.
2. Criminal Misc. Petition No.22687 of 2011 in Criminal Appeal No.1160 of 2008 filed by the de facto complainant is allowed. Applicant is impleaded as party-respondent.
3. The genesis of the case was that the complainant Sajjad @ Kala PW-2 was the resident of village Dadoobas, within the jurisdiction of Bhagwanpur police station, district Haridwar. On 21.11.2001 his brother Ayyub (PW- 3) went to his field situated near the river. He was accosted by A1 to A- 4 Soma, Chander, Pyara and Radha and fearing assault at their hands Ayyub (PW-3) escaped and rushed back to the residence and reported the matter to PW-2. PW-3 stated to have gone to his field by around 8.30 to 8.45 a.m. and retuned back by 9 to 9.15 a.m. By 10 a.m. the accused, 15 in number, armed with guns and country made pistols approached the house of the complainant, where all other family members were also present. The accused party stated to have abused the complainant and the family members and that while the complainant and his family members were attempting to pacify the accused party, without heeding to any of their advice, accused party opened fire in which Mehroof s/o Nazir, on sustaining gun shot injuries in his chest, succumbed to the injuries and died on the spot. That Iqurar Ali, another person was seriously injured and 10 others were also injured in the firing assault at the instance of the appellants. They were all shifted to Roorkee hospital for treatment. The body of the deceased Mehroof, was lying at the place of occurrence. PW-2 stated to have lodged written complaint Ka-1 in the police station at about 11.45 a.m. on the same date, whereafter a case was registered against all the accused persons. Iqurar Ali, the other seriously injured person, died on 24.11.2001 at about 4.30 a.m. Thereafter, PW-2 gave a further report Ka-2 to the police station Bhagwanpur. The post-mortem was conducted on the bodies of Mehroof and Iqurar Ali. The investigating officer, in furtherance of the investigation, recovered the guns, prepared the site plan, recorded the statement of witnesses and on conclusion of the investigation, submitted the charge-sheet before the Court. According to PW-2, two years prior to the incident in connection with Soma’s (A-1) daughter, there was a gunshot firing by the appellants Bijendra (A-5) and Tirath (A-15) respectively, which was however, compromised outside the Court. He further informed that a ‘marpeet’ took place between Pyara (A-3) s/o Soma and one Liyakat s/o Nuruddin four days prior to the date of incident with regard to payment of Metador (vehicle) charges and that two days thereafter, exchange of hot words took place between them.
4. It was in the above stated background that the offence was alleged to have been committed by the appellants. The prosecution examined PWs-1 to 13 of whom, PWs-1 to 4 were injured eye-witnesses, namely, Gayyur, Sajjad @ Kala, Ayyub and Ashraf. PW-5 is Dr. S.S. Lal, who conducted the postmortem on the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
