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TMI Blog2013 (5) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 matter to PW-2. PW-3 stated to have gone to his field by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Iqurar Ali, as per PW-6 the doctor, who attended on him immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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-arm weapons, both licenced and country-made, to cause such gruesome and murderous attacks on the deceased and other injured persons, in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 141 'third' vis- -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 other date, there is no doubt that the express report was forwarded to the Magistrate only on 24.11.2001. The question, therefore, for consideration is whether that by itself would vitiate the whole case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf 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 was tainted and the prosecution insupportable. 63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay 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 sending a copy of FIR to the Magistrate. 20. When we apply the above principle laid down in the said decision for the reasons to be adduced for the other questions to be dealt with in this judgment, we hold that there was no dearth in the process of investigation based on the factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, that there had been gross tension present in the village, as there was nothing recorded in the police station, it will be a dangerous proposition if simply based on the said isolated statement, one were to conclude that the present occurrence and its aftermath were solely due to communal tension. It was not even sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 spot and while another person died after three days, it is quite possible that every member of the injured party would have taken the immediate required time to attend to the injured, by moving them to the hospital and arranging the required transport for them, while also taking stock of the situation in order to proceed further for lodging the complaint with the police. That by itself would have taken not less than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sufficient to gather any number of persons, especially when the purpose of such gathering was to cause a physical attack on a weak and unarmed party. It is relevant to note that while thirteen persons were seriously injured, of whom two succumbed to injuries, not even a scratch was reported against any of the Appellants. There was not even a suggestion that any of the injured party was in possession of any weapon, like even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bode 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 the said accused also, therefore, does not merit any consideration. We, therefore, hold that none of the points raised alleging lacunae in the case of the prosecution merit any consideration and the same are, therefore, rejected. The said question is also answered against the Appellants. 33. With that we come to the main question as to the interpretation to be given to Section 141 'third', read along with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Essar Power Ltd. 2008 (4) SCC 755. The said principle has been extracted in para 53 of the said judgment, which reads as under: 53. In the chapter on Exceptional Construction in his book on Interpretation of Statutes, Maxwell writes: WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted 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, 212, 216 and 441, the word offence has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine. 141. Unlawful assembly An assembly of five or more persons is designated an unlawful assembly , if the common object of the persons composing that assembly is- First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 prescribed therein. If the interpretation placed by learned senior counsel is accepted, we wonder whether the prescription placed in Section 144 could be held to be in consonance with Section 141 'third'. The definite answer can only be in the negative. If mere possession of a deadly weapon by a member of an unlawful assembly, which is likely to cause death would attract Section 141 'third' as a corollary, it will have to be held that the expression 'or other offence' mentioned in Section 141 should without doing any violence to the said provision, include all other offences apart from the offence of mischief or criminal trespass. Similar will be the interpretation that can be made relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor 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 'ejusdem generis' to Section 141 'third', cannot be accepted. 43. The submission of the learned senior counsel cannot also be countenanced by applying Section 40 of the Code, which specifically mentions as to how the term 'offence' will have to be construed. In the main clause of the said section it has been clearly set out that the word offence denotes a thing made punishable by this Code except the Chapters and Sections mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word offence since denotes the thing made punishable under the Code, 'other offence' mentioned in Section 141 'third', can only denote to offences, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 the firm view that only such a construction would be in tune with the purport and intent of the law makers while defining an unlawful assembly for commission of an offence with a common object, as specified under Section 141 of the Code. In the case on hand, since mo special law or local law was attracted and the accuses were charged only for the offence under the Indian Penal Code, Section 40(1) gets attracted along with Section 141 'third' Indian Penal Code. Having regard to such a construction of ours on Section 141, read along with Section 40 Indian Penal Code, the offence found proved against the Appellants, namely, falling under Sections 302 read with 149, 307 read with 149 along with 147 and 148 of the Code fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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