TaxTMI 
TaxTMI 
2013 (5) TMI 1052
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....er Section 302, 307 read with Section 149 and Sections 147 & 148 of Indian Penal Code (Indian Penal Code). Each of the accused was awarded the punishment of life imprisonment and fine of Rs. 5000/- under Sections 302/149 Indian Penal Code and seven years rigorous imprisonment and fine of Rs. 3000/- under Section 307/149 Indian Penal Code and one year's rigorous imprisonment and Rs. 1000/- fine under Section 148 Indian Penal Code and six months' rigorous imprisonment and Rs. 500/- fine under Section 147 Indian Penal Code. 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 matte....
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....Mehroof. PW-6 is Dr. D.D. Lumba, who attended on the injured persons numbering ten. PW-7 is Dr. Ajay Aggarwal, who attended on the injured eye-witnesses PWs-1 and 2. PW-8 is Dr. R.K. Pandey, who conducted the post-mortem on the body of Iqurar Ali. PW-9 is Dr. Yogesh Kumar, radiologist, who proved X-ray reports of seven of the injured witnesses. PW-10, Sub Inspector, R.K. Awasthi is the investigating officer. 5. In the questioning under Section 313 Code of Criminal Procedure, all the accused took the plea of 'false implication' and that they have been implicated due to enmity, as well as for political reasons. The injuries on the body of Mehroof as stated in the post-mortem report were as under: (1) Fire arm would of entry 1 cm x 1 cm rounded in front of left side of chest. 4 cm away from left nipple at 10 O'clock position, margins inverted, blackening & tattooing present. 6. According to PW-5, Dr. S.S. Lal, Medical officer, the death was caused due to shock and hemorrhage resulting from the ante-mortem firearm injuries sustained by the deceased. 7. Thus, the death was one of homicidal and was proved beyond doubt. The injuries on the body o....
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.... for the Appellants in Criminal Appeal Nos. 1166, 1159 and 1155 of 2008 adopted the submissions of the above counsel. On behalf of the State, Dr. Abhishek Attrey addressed arguments. Mr. Yunus Malik appeared and made submissions on behalf of the de facto complainant, who was impleaded pursuant to the orders passed in Crl.M.P. 22687/2011 in Crl.A. 1160 of 2008. 11. Having heard Learned Counsel for the Appellants, the sum and substance of the submission of Learned Counsel was that there was delay in lodging of the FIR, that there were serious lacunae in the case of the prosecution framed against the Appellants in that the evidence did not establish the offence alleged against the Appellants, that there was long delay in sending express report to the Magistrate and thereby, violation of Section 157 Code of Criminal Procedure was committed and consequently, the conviction could not have been ordered. According to Learned Counsel, when PW-3 Ayyub was alleged to have been accosted around 8.30 to 8.45 a.m. by four persons in the field, it was hard to believe that within a matter of about an hour, there could have been formation of an unlawful assembly by as many as 15 persons with fire....
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....al Court, we find that the following relevant questions require to be addressed, namely: 1) What is the interpretation to be placed on Section 141 'third' vis-à-vis Section 149 Indian Penal Code, 2) Whether the so-called delay in forwarding express report to the Magistrate after three days from the date of occurrence, namely, on 24.11.2001 would vitiate the case of the prosecution. 3) Whether the prevalence of communal riots at the time of occurrence merits acceptance in order to extricate the Appellants from the conviction imposed. 4) Whether there was any lacunae in the case of the prosecution based on various points raised on behalf of the Appellants. 15. We wish to deal with the first question in the last. 16. As far as the second question is concerned, it is based on the factum of the time taken in forwarding the express report to the Magistrate. Since in Exhibit Ka-47 namely, the First Information Report, the concerned Court put the date 24.11.2001 after the expression 'seen' and there being no other endorsement prior or subsequent to 21.11.2001 mentioning any ....
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.... Pradesh 2012 (6) SCC 107, wherein this very Bench dealt with the implication of Section 157 Code of Criminal Procedure and held as under in paragraphs 62 and 63: 62. It was also feebly contended on behalf of the Appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 Code of Criminal Procedure instantaneously. According to the Learned Counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation....
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.... Section 159, Code of Criminal Procedure, if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. In a given case there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to Illaka Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case. In the case on hand nothing was put to PW-13(Investigating 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. It would have enabled the Investigating Officer to explain the reason for the delay. In any event nothing has been shown as to any prejudice caused to the Appellants on the ground of alleged delay in ....
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....ct that, except the licensed arm-holders belonging, to the community of accused, there was no other licensed arm-holder or, any other member, from their community present, at the said spot of occurrence. 23. Except making the said bald suggestion, which was rightly denied, there was nothing brought out or placed either in the evidence of the prosecution witness or by way of defence evidence before the court, as to what was the nature of communal tension, who were all communally and inimically disposed of and when such communal friction occurred. In fact, what all was stated in the Section 313 statement, was 'false implication' due to enmity and political reasons. Political difference and communal difference are two different factors and, therefore, it is not known why such a specific stand of communal tension was not taken in the Section 313 questioning. If really there was any communal tension in the village, there would have been any number of witnesses who would have come forward and stated the same before the Court, as none would have been prejudiced nor affected by making such a true statement before the Court. When we consider the oral evidence of PW-13, namely, th....
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....Besra 2002 (9) SCC 86 5) State of H.P. v. Raghubir Singh 1993 (2) SCC 622 6) Wahid Khan v. State of M.P. 2010 (2) SCC 9 7) Rameshwar v. State of Rajasthan AIR 1952 SC 54 Applying the principles laid down in those decisions, we hold that on this ground there is no scope to interfere with the orders impugned in these appeals. 26. It was thus contended that there was delay in filing the FIR. In fact going by the version of PWs-2 and 3 supported by PWs-1 and 4, the occurrence took place at 10 a.m. in the morning. The matter was reported by PW-2 to the police by 11.45 a.m. and it has come in the evidence that the distance between the place of occurrence and the police station was 12 Kms. There was nothing brought out on the defence to contradict the said statement made by the prosecution witnesses. It was also stated that PW-2 had to reach the police station only through a bullock cart. In such circumstances, the lodging of the FIR by 11.45 a.m., cannot be held to be highly delayed. When it is stated that the occurrence took place at 10 a.m., where more than ten persons suffered injuries and one person died on the s....
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....others were holding unlicenced pistols and the shooting with those arms was sufficiently established by the version of the injured eye-witnesses, we fail to understand as to how non-detection of pellets or bullets will be of any consequence as a vitiating factor to defeat the case of the prosecution. It is an undisputed fact that both the deceased died of fire-arm injuries and all the injuries suffered by others were also firm-arm injuries. The said contention also therefore, deserves to be rejected. 29. The contention about not noting the route of arrival and route of escape, in our considered opinion, are very flimsy submissions and do not deserve any consideration at all. It was then contended that PW-3 was initially accosted by A1 to A-4 at around 8.30 to 8.45 a.m. and that he reported back at 9.00 to 9.15 a.m. at his house, by escaping from their clutches and that the alleged occurrence took place at 10 a.m. and, therefore, within such a short time, there could have been no scope for the Appellants to gather fifteen persons to cause the attack on the injured party. We have concluded in the earlier part of our judgment that a one hour gap in a village was more than sufficien....
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....of District Saharanpur and that he was actually present at Saharanpur on that date. In the Section 313 statement, the said accused had admitted that he was 50 years old and at the time of the incident he would have been 46-47 years old, while the family register which was produced at his instance disclosed that his age was 38 years. The trial Court, therefore, held that by relying upon such an age old register, the abode of the said accused at the time of occurrence could not have been arrived at. On the other hand, the evidence of PW-1 disclosed that the father-in-law of the said accused is the resident of the village concerned, that since he had no male child, the said accused was living along with his father-in-law and that in the family register of the year 1999 produced by the prosecution, as well as the copy of the electoral list, the name of the said accused was clearly mentioned. The contention on behalf of the said accused that due to enmity with his father-in-law he was implicated, was rejected by saying that if that was the case, there was no reason for the prosecution to leave out the father-in-law and implicate the son-in-law alone. The said point raised on behalf of t....
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....ad words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. (See: Sirajul Haq Khan v. Sunni Central Board of Waqf.) (Emphasis added) 35. The principle statute in Maxwell's Interpretation of Statutes under the Chapter "Exceptional Construction" is also relevant, which was applied in one of the judgments of this Court reported in Gujarat Urja Vikas Nigam Ltd. v. ....
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.... looks quite attractive in the first blush, on a deeper scrutiny of the other provisions contained in the Code, we are afraid that such a narrow interpretation, which is sought to be applied by the learned senior counsel cannot be made. 37. In this context, Section 40 Indian Penal Code, which defines 'offence' is also required to be noted. In order to appreciate the submission and to arrive at a correct conclusion, we feel that Section 40 Indian Penal Code, Sections 141, 147, 148 and 149 are required to be extracted which are as under: 40. "Offence" - Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code. In Chapter IV, [Chapter VA] and in the following section, namely, sections [64, 65, 67, 71], 109, 110, 112, 114, 115, 116, 117, [118, 119, 120] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this code, or under any special or local law as hereinafter defined. And in Sections 141, 176, 177, 201, 202,....
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.... in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence 38. Section 141 'third', clearly mentions that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly as among other offences namely, mischief or criminal trespass or commission of other offence. A literal interpretation, therefore, only means that apart from the offence of mischief and criminal trespass, all other offences would fall within the said clause 'third' mentioned in Section 141. Other related sections falling under the said Chapter VIII are up to Section 160. Reading Section 141 'third' along with Section 149, if the commission of any other offence apart from mischief or criminal trespass and such commission of offence was by a member of an unlawful assembly, the prescription of common object will automatically get satisfied. When we refer to Section 144 in this context, we find that joining an unlawful assembly armed with a deadly weapon, which is likely to cause death, can be inflicted with a punishment prescr....
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....which imprisonment for life or a term which may extend to ten years apart from fine can be imposed. While dealing with the offence of trespass under Sections 449 and 450, whoever commits house-trespass for committing an offence punishable with death can be punished for imprisonment for life or rigorous imprisonment for a term not exceeding ten years, apart from fine. Similar such provisions for other types of criminal trespass have also been provided for in the said Chapter. 42. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in Section 141 'third', it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression "other offence" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of learned senior counsel for the Appellants to import the principle of 'e....
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....ed in those special or local laws are to be imported while invoking Section 141 or other sections mentioned in the said Sub-clause 3 of Section 40. 46. Therefore, 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. Therefore, having regard to Sub-clause 1 of Section 40 of the Code read along with Section 141 'third', the argument of learned senior counsel for the Appellants will have to be rejected. We are, therefore, of....