# 3 S.C.R. 175 · MANGA @ MAN SINGH v. STATE OF UTTARAKHAND

- **Citation:** [2013] 3 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 2013-05-03
- **Case number:** Criminal Appeal No. 1156 of 2008
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-175-manga-man-singh-v-state-of-uttarakhand-28896
- **Pages:** 36

## Headnote

PENAL CODE, 1860:
ss. 147, 148, 3021149 and 3071149 _, Group of 15
accused opened fire on complainant party causing death of
two and injuries to others-Conviction by trial court - Upheld
A
B
c
by High Court - Held: There is ample evidence to support
prosecution case that accused came with fire arms and 0
opened fire on complainant party - It is an undisputed fact
that two persons died of fire-arm injuries and all the injuries
suffered by others were also fire-arm injuries - In the
circumstances, non-detection of pellets or bullets will not be
of any consequence - Conviction and sentence imposed by E
courts below cannot be found fault with - Code of Criminal
Procedure, 1973 - Investigation - Non-recovery of bullets/
pellets - Criminal law - Motive-,
•
s.141 read with ss.40, 144 and 149 -"Other offence"
occurring in Clause 'Third' of s.141 --
Connotation of -
F
Held: A conspectus reading of s.40 makes it clear that for all
offences punishable tJnder /PC, the main clause of s.40 would
straight away apply in which event the expression "other
offence" used in s.141 'Third', will have to be construed as any
offence for which punishment is prescribed under /PC - The
G
principle of ejusdem generis is not applicable - Interpretation
of statutes - Ejusdem generis.
175
H
176
SUPREME COURT REPORTS
[2013] 3 S.C.R.
A
CODE OF CRIMINAL PROCEDURE, 1973:
s.157-Three days' delay in sending express report to
Magistrate - Held: There was no delay in reporting the matter
to police - FIR was factually recorded without delay and
investigation started on the basis of FIR -
In the
B circumstances, delay, in forwarding the report to Magistrate
does not in any way vitiate the case of prosecution - Besides,
no prejudice is shown to have been caused to accused.
EVIDENCE:
C
Testimony of related witnesses - Non-examination of
independent witnesses - Discussed - Judicial notice.
The appellants were prosecuted for causing death of
two persons and injuries to others by gun shots. The
prosecution case was that there was bad blood between
D the accused-appellants in connection with the daughter
of A-1, and further with regard to payment of vehicle
charges. On the date of incident at about 8.30 A.M. when
PW-3, the brother of complainant (PW-2), went to his
fields, he was accosted by A-1 to A-4, but he escaped and
E returned back. By 10.00 A.M., the accused, 15 in number,
armed with guns and country-made pistols reached the
house of the complainant and opened fire in which one
person died on.the spot and others received serious gunshot injuries. One of them died the following day in the
F hospital. The trial court convicted the accused u/ss 147,
148, 3021149 and 307/149 and sentenced them to
imprisonment for life u/s 302/149 and 7 years RI u/s 307/
149. The High Court confirmed the conviction and the
sentences.
G
In the instant appeals, it was contended for the
appellants, inter alia, that there was delay in filing the FIR
and long delay in forwarding the express report to the
Magistrate, which vitiated the prosecution case; that there
was a communal tension prevailing in the area and in the
H milieu, the victims received injuries, therefore, the
MANGA@ MAN SINGH v. STATE OF UTIARAKHAND
177
appellants could not be held responsible for the same
A
merely because they possessed licenced fire-arms. It
was also contended that the principle of common object
could not be applied to the nature of offences punishable
u/ss 302, 307 read with s.149 as well as ss. 147 and .148
IPC and since the expression "other offence" u/s 141,
B
'Third' has been used along with the offences of mischief
or criminal trespass, it can only relate to similar such
offences of the same species and not commission of all
other offences, as in the case on hand. On behalf of
appellant no. 1 in Crl. A. No. 1.165 of 2008, it was c
contended that he. was the resident of a different village
and was falsely implicated.
Dismissing the appeals, the Court
HELD: 1.1. With regard to delay in filing the FIR, in

## Text

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(2013] 3 S.C.R. 175 ·
MANGA @ MAN SINGH
v.
STATE OF UTTARAKHAND
(Criminal Appeal No. 1156 of 2008)
MAY 3, 2013
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
PENAL CODE, 1860:
ss. 147, 148, 3021149 and 3071149 _, Group of 15
accused opened fire on complainant party causing death of
two and injuries to others-Conviction by trial court - Upheld
A
B
c
by High Court - Held: There is ample evidence to support
prosecution case that accused came with fire arms and 0
opened fire on complainant party - It is an undisputed fact
that two persons died of fire-arm injuries and all the injuries
suffered by others were also fire-arm injuries - In the
circumstances, non-detection of pellets or bullets will not be
of any consequence - Conviction and sentence imposed by E
courts below cannot be found fault with - Code of Criminal
Procedure, 1973 - Investigation - Non-recovery of bullets/
pellets - Criminal law - Motive-,
•
s.141 read with ss.40, 144 and 149 -"Other offence"
occurring in Clause 'Third' of s.141 --
Connotation of -
F
Held: A conspectus reading of s.40 makes it clear that for all
offences punishable tJnder /PC, the main clause of s.40 would
straight away apply in which event the expression "other
offence" used in s.141 'Third', will have to be construed as any
offence for which punishment is prescribed under /PC - The
G
principle of ejusdem generis is not applicable - Interpretation
of statutes - Ejusdem generis.
175
H
176
SUPREME COURT REPORTS
[2013] 3 S.C.R.
A
CODE OF CRIMINAL PROCEDURE, 1973:
s.157-Three days' delay in sending express report to
Magistrate - Held: There was no delay in reporting the matter
to police - FIR was factually recorded without delay and
investigation started on the basis of FIR -
In the
B circumstances, delay, in forwarding the report to Magistrate
does not in any way vitiate the case of prosecution - Besides,
no prejudice is shown to have been caused to accused.
EVIDENCE:
C
Testimony of related witnesses - Non-examination of
independent witnesses - Discussed - Judicial notice.
The appellants were prosecuted for causing death of
two persons and injuries to others by gun shots. The
prosecution case was that there was bad blood between
D the accused-appellants in connection with the daughter
of A-1, and further with regard to payment of vehicle
charges. On the date of incident at about 8.30 A.M. when
PW-3, the brother of complainant (PW-2), went to his
fields, he was accosted by A-1 to A-4, but he escaped and
E returned back. By 10.00 A.M., the accused, 15 in number,
armed with guns and country-made pistols reached the
house of the complainant and opened fire in which one
person died on.the spot and others received serious gunshot injuries. One of them died the following day in the
F hospital. The trial court convicted the accused u/ss 147,
148, 3021149 and 307/149 and sentenced them to
imprisonment for life u/s 302/149 and 7 years RI u/s 307/
149. The High Court confirmed the conviction and the
sentences.
G
In the instant appeals, it was contended for the
appellants, inter alia, that there was delay in filing the FIR
and long delay in forwarding the express report to the
Magistrate, which vitiated the prosecution case; that there
was a communal tension prevailing in the area and in the
H milieu, the victims received injuries, therefore, the
MANGA@ MAN SINGH v. STATE OF UTIARAKHAND
177
appellants could not be held responsible for the same
A
merely because they possessed licenced fire-arms. It
was also contended that the principle of common object
could not be applied to the nature of offences punishable
u/ss 302, 307 read with s.149 as well as ss. 147 and .148
IPC and since the expression "other offence" u/s 141,
B
'Third' has been used along with the offences of mischief
or criminal trespass, it can only relate to similar such
offences of the same species and not commission of all
other offences, as in the case on hand. On behalf of
appellant no. 1 in Crl. A. No. 1.165 of 2008, it was c
contended that he. was the resident of a different village
and was falsely implicated.
Dismissing the appeals, the Court
HELD: 1.1. With regard to delay in filing the FIR, in
D
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
E
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.,
F
cannot be held to be highly delayed. Besides, where
more than ten persons suffered injuries and one person
died on the spot,. 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 G
the hospital. Therefore, it can never be said that there was
any delay at all in reporting the matter to the police, or in
registering the FIR. [para 26) [197-C-H]
1.2. As regards the express report being forwarded
to Magistrate on 24.11.2001, in the first place, it is not H
178
SUPREME COURT REPORTS
[2013] 3 S.C.R.
· A shown as to how such a delay caused any prejudice to
the accused.
The trial· court has noted that the
investigating officer was not questioned at all about the
reasons for not sending the report prior to 24.11.2001. It
has further noted that in the 'Panchnama' of deceased
B 'M', the crime number was clearly mentioned along with
the relevant sequence. The trial court has, therefore,
found that without recording the FIR on the date of
incident, namely, 21.11.2001, crime number could not
have been mentioned in the 'Panchnama'. The FIR was
c factually recorded without delay on the basis whereof the
investigation started; and in the absence of any other
infirmity in that respect, the delay in forwarding the report
to the Magistrate does not in any way vitiate the case of
the prosecution. [para 16, 17 and 20] [190-C-F-H; 191-A;
D 194-B]
Jang Singh and Others v. State of Rajasthan, 2000
(3) SCR 970 = 2001 (9) SCC 704; held inapplicable.
Sandeep v. State of Uttar Pradesh, 2012 (5) SCR 952 =
E 2012 (6) SCC 107; Bhajan Singh @ Harbhajansingh and Ors.
v. State of Haryana, 2011 (7) SCR 1 = (2011) 7 SCC 421;
Shiv/al & Another v. State of Chhattisgarh, 2011 (11)
SCR 429 =AIR 2012 SC 280; relied on.
1.3. With regard to plea of communal tension, except
F making the bald suggestion, which was rightly denied,
there was nothing brought out either in the evidence of
the prosecution witnesses or placed by way of defence
evidence before the court, as to what was the nature of
communal tension, who were all communally and
G inimically disposed of and when did such communal
friction occur. In fact, all what was stated in s. 313
statement, was 'false implication' due to enmity and
political reasons. It was not even suggested to any of the
witnesses that there was communal hatred as between
H those witnesses examined in support of the prosecution
MANGA@ MAN SINGH v. STATE OF UTIARAKHAND
179
or that it was due to such communal tension they A
suffered such injuries, as well as casualties in their family.
[para 23] [195-B-D, F-G]
1.4. Though PWs-1 to 4 were closely related to the
deceased, they also suffered fire-arm injuries at the hands
B
of the appellants and the injuries sustained by them were
duly supported by medical evidence -
both
documentary as well as oral -
through PWs-5, 6, 7 and
8. There was nothing pointed out in the evidence of PWs1 to 4 to discredit their version. The High Court has rightly C
held that having regard to the nature of evidence
tendered by them, there were no good grounds to discard
their version. [para 24 and 27] [196-B-D; 198-B]
1.5. As regards non-examination of independent
witness, the High Court has found that though the injured
D
witnesses were related to each other, their evidence was
natural and there was nothing to find fault with their
version. It has further held rightly, that it is the quality of
the witness and not the quantity that matters. It has also
taken judicial notice of the fact tha( the public are reluctant
E
to appear and depose before the court, especially in
criminal cases because of many .obvious reasons.
[para 27] [198-A-C]
·
State of Maharashtra v. Chandraprakash Kewalchand
Jain 1990 (1) SCR 115 = 1990 (1): SCC 550; State of U.P.
F
v. Pappu 2004 (6) Suppl. SCR 585 = 2005 (3) SCC 594;
State of Punjab v. Gunnit Singh 1996 (1) SCR 532 =1996
(2) SCC 384; State of Orissa v. Thakara Besra 2002 (3) SCR
173 = 2002 (9) SCC 86; State of'H.P. v. Raghubir Singh
1993 (2) SCR 17 = 1993 (2) SCC 622; Wahid Khan v. State
G
of M.P. 2009 (15) SCR 1207 = 2010 (2) SCC 9; Rameshwar
v. State of Rajasthan 1952 SCR 377 = AIR 1952 SC 54 •
referred to.
'
1.6. As regards failure to recoyer empty cartridges or H
'
180
SUPREME COURT REPORTS
[2013] 3 S.C.R.
A bullets from the scene of occurrence, suffice it to state
that when there was enough evidence to support the
version of the prosecution that some of the appellants
were in possession of licenced arms and others were
holding unlicenced pistols and the shooting with those
8 arms was sufficiently established by the version of the
injured eye-witnesses, non-detection of pellets or bullets
will not be of any consequence as a vitiating factor to
defeat the case of the prosecution. It is an undisputed
fact that two persons died of fire-arm injuries and all the
c injuries suffered by others were also firm-arm injuries.
[para 28) [198-0-G]
1.7. With regard to gathering of a number of accused
within a short span of time, it may be noted that a one ·
hour gap in a village was more than sufficient to gather
D 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
E of the appellants. There was not even a suggestion that
any of the injured party was in possession of any
weapon, like even a stick or a 'lathi'. [para 29) [199-B-D]
1.8. It will be relevant to take note of the motive,
F which was not seriously disputed on behalf of the
appellants. [para 30) [199-E]
1.9. As far as plea of appellant no. 1 in Crl. A. No. 1165
of 2008 that he was a resident of a different village and
was falsely implicated, the evidence of PW-1 disclosed
G that the father-in-law of the said appellant is the resident
of the village and since he had no male child, the
appellant was living along with him. In the family register
of the year 1999 as well as the copy of the electoral list,
the name of the appellant was clearly mentioned. [para
H 32) [200-C, F-G]
'
MANGA@ MAN SINGH v. STATE OF UTTARAKHAND
181
2.1. As regards the interpretation to be given to the
A
expression 'other offence' in s. 141, 'Third', a literal
interpretation of the same only means that apart from the
offences of mischief and. criminal trespass, all other
offences would fall within the said clause 'Third'.
Reading s.141 'Third' along with s.149, ifthe commission
B
of any other offence apart from mischief or criminal
trespass was by a member of an unlawful assembly, the
prescription of common object will automatically get
satisfied. [para 33 and 38) [201-B; 206-C-E]
Surjit Singh Katra v. Union of India and Another 1991
(1) SCR 364 =1991 (2) SCC 87; Gujarat Urja Vikas Nigam
Ltd. v. Essar Power'Ltd. 2008 (4 ) SCR 822 = 2008 (4) SCC
755 - referred to
c
2.2. If, in te.rms of s.144 IPC mere possession of a
D.
deadly weapon by a member of an unlawful assembly,
which is likely to cause death would attract s.141'Third',
as a corollary, it will have to be held that the expression
'or other offence' mentioned in s.141 should without
doing any violence to the said provision, include all other
E
offences apart from the offence of mischief or criminal
trespass. Similar will be the interpretation that can be
made relating to the offence of rioting prescribed u/s 146
punishable u/s 147 as well as s.148, namely, rioting,
armed with deadly weapons. [para 38) [206-F-H; 207-A]
F
2.3. It cannot be said that because the offences
mischief or criminal trespass are used preceding the
expression "other offence" in s.141 'Third', it should be
taken that such offence would only relate to a minor
offence of mischief or trespass and that the expression
G
"other offence" should be restricted only to that extent.
The offence of mischief and trespass cc\>uld also be as
grave as that of an offence of murder,\ for which the
punishment of life imprisonment can l!>e imposed as
H
182
SUPREME COURT REPORTS
[2013] 3 S.C.R.
A provided for u/ss 438, 449, 450 etc. Therefore, this Court
holds that the principle of 'ejusdem generis' cannot be
Imported to s.141 'Third'. [para 42) [208-A-C]
2.4. Further, going by the main clause of s.40, the
8 word "offence" since denotes the thing made punishable
under the IPC, 'other offence' mentioned in s.141 'Third',
can only denote to offences, which are punishable under
any of the provisions of IPC. Therefore, by applying the
main clause of s.40, It can be straight away held that all
offences referred to In any of the provisions of the IPC
C for which the punishment is provided for, would
automatically fall within the expression "other offence",
which has been used in s.141 'Third'; and, this Court Is
of the firm view that only such a construction would be
In tune with the purport and intent of the law makers
D while defining an unlawful assembly for commission of
an offence with a common object, as specified u/s 141 of
the Code. In the case on hand, since no special law or
local law was attracted and the accused were charged
only for with offences under the Penal Code, main clause
E of s.40 gets attracted along with s.141 'third' IPC. Having
regard to such a construction of s.141, read along with
s.40 IPC, the offences found proved by the courts below
against the appellants, falling u/s 302/149, and 307/149
along with ss.147 and 148 IPC and the conviction and
F sentences imposed, cannot be found fault with. [para 43
and 46) [208-D-G; 210-A-C]
Case Law Reference:
2000 (3) SCR 970
held Inapplicable para 11
G
2012 (5) SCR 952
relied on
para 19
2011 (7) SCR 1
relied on
para 19
2011 (11) SCR429
relied on
para 19
H
MANGA@ MAN SINGH v. STATE OF UTTARAKHAND
183
1990 (1) SCR 115
referred to
para 25
A
2004 (6) Suppl. SCR 585
referred to
para 25
1993 '(2) SCR 17
referred to
para 25
2002 (3) SCR 173
referred to
para 25.
B
1996 (1) SCR 532
referred to
para 25
2009 (15) SCR 1207
referred to
para 25
1952 SCR 377
referred to
para 25
c
1991 (1) SCR 364
referred to
Para 34
2008 (4) SCR 822
referred to
Para 35
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
1 Nos. 1156 of 2008.
D
From the Judgment & Order dated 14.06.2007 of the High
Court of Uttarakhand at Nainitial in Criminal Appeal No. 21 ,~f
2005.
WITH
E
Crl. A.Nos. 1157, 1158, 1159, 1160, 1161, 1162, 1163, 11&.4,
1165 & 1166 of 2008.
S.R. Singh, Ashok Kumar Sharma, Sushant K. Yadav,
Ujjawal Pandey, Sudeep Kumar, Asha Gopalan Nair, Atul
F
Kumar, S.K. Verma, Rohit Minocha (A.C.), D.K. Pradhan,
Abhay Kumar, Mrinal Bharti, U.P. Singh, Abhishek Atrey,
Tanmay Aggarwal, Babita Tyagi, Yunus Malik Harendra Singh,
Samir Malik for the appearing parties.
The Judgment of the Court was delivered by
G
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. In
these appeals the challenge is to the common judgment of the
Division Bench of the High Court of Uttarakhand at Nainital
H
184
SUPREME COURT REPORTS
[2013) 3 S.C.R.
A 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
B 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
c 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.
D
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
E @ Kala PW-2 was the resident of village Dadoobas, within the
jurisdiction of Bhagwanpur po~ce station, district Haridwar. On
21.11.2001 his brother Ayyub (PW-3) went to his field situated
near the river. He was accosted by A 1 to A-4 Soma, Chander,
Pyara and Radha and fearing assault at their hands Ayyub
F (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
G 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
H
· MANGA@ MAN SINGH v. STATE OF UTIARAKHAND
185
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
in his chest, succumbed to the injuries and died on the spot.
A
That lqurar 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 atthe
place of occurrence. PW-2 stated to have lodged written
B
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. · lqurar Ali, the other seriously injured person,
died on 24.11.2001 at about4.30 a.m. Thereafter; PW-2 gave
a further report Ka-2 to the police station Bhagwanpur. The post- c ·
mortem was conducted on the bodies of Mehroof and lqurar
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 PWD
2, two years prior to the incident in connection with Soma's (A1) 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 'ma1peet'took place between Pyara (A-3) s/o Soma and
E .
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 · F
was alleged to have been committed by the appellants. The
prosecution examined PWs-1to13 of whom, PWs-1to4 were
injured eye-witnesses, namely, Gayyur, Sallad @.Kala, Ayyub
and Ashraf. PW-5 is Dr. S.S. Lal, wh.o conducted the postmortem on the body of Mehroof. PW-6 is Dr. D.D. Lumba, who . G
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 postmortem on the body of lqurar AIL PW-9 is Dr. Yogesh Kumar,
radiologist, who proved X-ray reports of seven of the injured
H
186
SUPREME COURT REPORTS
[2013] 3 S.C.R.
A witnesses. PW-10, Sub Inspector, R.K. Awasthi is the
investigating officer.
5. In the questioning under Section 313 C.r.P.C., all the
accused took the plea of 'false implication' and that they have
8 been implicated due to enmity, as well as for political reasons.
The injuries on the body of Mehroof as stated in the postmortem 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 1 O O'
C
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
0 the ante-mortem firearm injuries sustained by the deceased.
E
F
G
7.Thus, the death was one of homicidal and was proved
beyond doubt. The injuries on the body of lqurar Ali, as per PW6 the doctor, who attended on him immediately after he was
shifted to Roorkee Civil Hospital were as under:
"(1) Lacerated would 1cm x 0.5 cm x through and through
left pinna back middle part. No blackening scorching and
tattooing seen around the wound.
(2) Lacerated would 1.0 cm x 0.5 cm x muscle deep tragus
of left ear. No blackening, scorching and tattooing seen
around the wound.
(3) Lacerated would 1.6 cm x 1.0 cm x depth not probed
middle of chin lower part. No blackening, scorching and
tattooing seen around the wound. Adv. X-ray and fresh in
duration."
8. Considering the precarious condition of the injured
lqurar Ali, he was referred to a higher medical centre for
H treatment on 21.11.2001at12:10 p.m. He was taken to PGI
MANGA@ MAN SINGH v. STATE OF UTTARAKHAND
187
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Hospital, Chandigarh from where he was referred to AllMS,
A
New Delhi. However, considering the health of lqurar Ali, he
was allowed to be taken back to his house. He succumbed to
his injuries on 24.11.2001. PW-8 who conducted the postmortem on the body of lqurar Ali, noted the following antemortem injuries:
B
"(1) Fire arm wound of entry O.S cm x 0.08 cm below in
middle part of chin. Margins are incised. No blackening
and tattooing seen around the wound, on explanation.
Bullet traversed through brain substance, strike at occipital
C
bone. There is fracture of occipital bone rebound through
brain substance back of neck and recovered from space
between CS & C6 from muscle, fracture of CS cervical
vertebra.
(ii) Abrasion 1.S cm x 1 cm on the left pinna of tragus."
D
9. According to PW-8, the death of lqurar Ali was due to
hemorrhage and coma resulting from the ante-mortem fire-arm
injuries sustained by the deceased. Therefore, it was
established that the death of lqurar Ali was also a homicidal
E
death on account of fire-arm injuries sustained by him. PW-6
also examined other injured persons including PW-1 Gayyur,
PW-3 Ayyub and PW-4 Ashraf and seven others. According to
the report, injuries were all due to fire-arms.
10. In all these appeals, the main submissions were made
F
by Shri S.R. Singh, learned senior counsel for the appellants,
in Criminal Appeal Nos.11S7/2008, 11S8/2008, 1161/2008 and
1164/2008 and by Mr. Ashok Kumar Sharma counsel for the
appellant in 11S6/2008. The other learned counsel appearing
for the appellants in Criminal Appeal Nos.1166, 11 S9 and 11 SS
G
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
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A 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
8 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 Cr.P.C. was committed and consequently, the
C 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
D persons with fire-arm weapons, both licenced and countrymade, to cause such gruesome and murderous attacks on the
deceased and. other injured persons, in order to invoke
Sections 302 and 307 read with Section 149 IPC, along with
Sections 147 & 148 IPC. It was contended that if at all the
E offence of common object can be attributed to the appellants,
it could have been only under Section 141 'third', which cannot
be applied to the nature of offences alleged against the
persons, namely, Sections 302, 307 read with 149, as well as
147 & 148 IPC. As far as the first appellant in Cri. Appeal
F No.1165/2008 was concerned, it was contended that he was
totally alien to the village where the occurrence took place as
he belonged to a different village and that he had been falsely
roped in. It was also contended that there was a communal
tension in the village as admitted by PW-13 and that under
G political pressure the police implicated all the persons in the
village who were holding licenced arms. Reliance was placed
on Jang Singh and Others v. State of Rajasthan - 2001 (9)
SCC 704 in support of the submission of Section 157 Cr.P.C.
H
12. As against the above submissions, learned counsel for
MANGA @ MA,N SINGH v. STATE OF UTIARAKHAND
189
•.
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the State argued that non-recovery of bullets or pellets or not
A
sending the guns for ballistic expert report by itself may not
vitiate the case of the prosecution, when there was direct
. evidence relating to the occurrence and injuries inflicted by the
appellants on the deceased and other injured persons.
13. Learned counsel contended that when after PW-3 was
accosted between 8.30 and 8.45 a.m. and who escaped from
8
the onslaught of the appellants in the field, the appellants had
more than an hour, inasmuch as they reached the place of
occurrence only by 10 a.m. and, therefore, they had enough
time to gather other assailants and indulge in the gruesome
C
act. As far as the scope of Section 149 was concerned,
learned counsel contended that the said submission was
satisfactorily met in the judgments of the Court below and the
same does not merit any consideration. Learned counsel for
PW-2 also adopted the submissions of the learned counsel for
D
the State.
14. Having heard learned counsel for the respective
parties and having perused the material papers placed before
us including the judgment of the High Court as well as that of
E :
the trial 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-a-vis Section 14.9 IPC,
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
(3)
vitiate the case of the prosecution.
·
Whether the prevalence of communal riots at the
time of occurrence merits acceptaoce in order to
extricate the appellants from the conviction
imposed.
F
G
H
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A
(4)
Whether there was any lacunae in the case of the
B
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
C 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 prosecution. The submission
D is that since there was such a wide time gap as between the
alleged date of occurrence, namely, 21.11.2001 and the
forwarding of the report to the Magistrate on 24.11.2001, there
was every chance of antedating the FIR. In support of the said
submission based on Section 157 of Cr.P.C., reliance was
E placed upon the decision reported in Jang Singh (supra). In
the first blush, though the said submission appears to be very
sound, on a detailed analysis, we find that it is without any
substance for more than one reason.
17. In the first place, it is not shown as to how such a delay
F caused any prejudice to the accused. Except merely stating that
the three days delay in forwarding the express report belies the
case of the prosecution as alleged, nothing else was shown in
support of the said submission. In fact the trial Court dealt with
this very submission. The trial Court has noted that the ·
G investigating officer was not questioned at all about the reasons
for not sending the report prior to 24.11.2001. It has further
noted that in fhe 'Panchnama' of the deceased Mehroof, the
crime was clearly mentioned along with the relevant sequence
of crime. The trial Court has therefore, found that without
H recording the First Information Report on that very day, namely,
MANGA@MAN SINGH v. STATE OF UTIARAKHAND
191
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
21.11.2001, the crime number could not have been mentioned
A
·in the 'Panchnama'.
·
18. In this context, when we refer to the decision relied
upon by the learned counsel for the appellants, namely, Jang
Singh (supra), we find that this Court has noted the vitiating
B
factors in the entire case of the prosecution, including the delay
in sending the First Information Report to the Magistrate for
which there was no explanation. By merely referring to the said
factor along with the other serious defects noted by this Court,
it was concluded that the case of the prosecution was not made
C
out. We, therefore, do not find any scope to apply the said
decision as a proposition of law in order to apply the same to
the case on hand.
19. Per Contra, it will be appropriate to refer to a reasoned
decision of this Court reported in Sandeep v. State of Uttar D
Pradesh - 2012. (6) SCC 107, wherein this very Bench dealt
1with the implication of Section 157 Cr.P.C. and held as under
in paragraphs 62 and 63:
"62. It was also feebly contended on behalf of the
E
appellants that the express report was not forwarded to.the
Magistrate as stipulated under Section 157 Cr.P.C.
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 25-11F
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
G_
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 'oy the Magistrate concerned be, in the absence
of any prejudice to the accused it cannot by itself justify the
H
A
B
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[2013] 3 S.C.R.
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 been
caused to the appellants by virtue of the said delay. As far
as the commencement of the investigation is concerned,
our earlier detailed discussion discloses that there was no
dearth in that aspect. In such circumstances we do not find
any infirmity in the case of the prosecution on that score.
In fact the above decision was subsequently followed in
/shwar Singh v. State of U.P. and Subash Chander v.
Krishan Lar
We can also refer to a recent decision of this Court in
D Bhajan Singh @ Harbhajansingh and Ors. v. State of Haryana
E
F
G
H
- (2011) 7 sec 421. Relevant paras 29 and 31 are as under:
"29. 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. Every such delay is not fatal unless prejudice to
the accused is shown. The expression ~forthwith"
mentioned therein does not mean that the prosecution is
required to explain delay of every hour in sending the FIR
to the Magistrate. In a given case, if number of dead and
injured persons is very high, delay in dispatching the report
is natural. Of course, the same is to be sent within
reasonable time in the prevalent circumstances.
31. In view of the above, we are in agreement with the High
Court that there was no delay either in lodging the FIR or
in sending the copy of the FIR to the Magistrate. It may be
pertinent to point out that the defence did not put any
question on these issues while cross-examining the
investigating officer, providing him an .opportunity to
MANGA@ MAN SINGH v. STATE OF UTTARAKHAND
193
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
explain the delay, if any. Thus, we do not find any force in
A
the submissions ma,de by the learned counsel for the
appellants in this regard."
Again in Shiv/al & Another v. State of Chhattisgarh- AIR
2012 SC 280, the significance and relevance relating to
8
sending a copy of FIR to the lllaqa Magistrate has been
explained as under in paragraph 9:
"9 ......... the Magistrate must be immediately informed of
every serious offence so that he may be in a position to
act under Section 159, Cr.P.C., if so required. The object
C
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
D
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 lllaka
E
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 . F
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
G
of FIR to the Magistrate.
I
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
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[2013] 3 S.C.R.
A was no dearth in the process of investigation based on the
factum of the alleged occurrence on 21.11.2001, as reported
by the complainant PW-2 and the mere delay in forwarding of
the express report to the Magistrate has not caused any dent
in the case of the prosecution. In other words, we have no
B difficulty in stating that the FIR was factually recorded without
delay and the investigation started on the basis of the FIR and
in the absence of any other infirmity in that respect, the delay
in forwarding the report to the Magistrate does not in any way
vitiate the case of the prosecution.
c
21. With this we come to the next question. The submission
on behalf of the appellants was that there was communal
tension prevailing and, therefore, if in that milieu, someone was
injured, those who were possessing licenced arms in the village
cannot be held responsible, even if it resulted in the death of
D two individuals and injuries to several other persons. In support
of the said contention, reference was made to the deposition
of PW-13, the Investigating Officer. To a stray question put to
him, PW-13 answered that;
E
"there had been gross tension present in the said vlllage
which had been communal in nature and scope thereof. I
had neither recorded the time of commencement of any
proceeding, in the said village nor, had I recorded
culmination thereof, in the contents of leaflet No.1 of my
F
Case Diary nor further, had I copied down the contents of
the Inquest-Report [Panchaytnama], in the contents
thereof."
22. Reference was also made to a suggestion made to
..J. the said witness, which was denied and the statement was to
~ the following effect:
"It is also wrong and incorrect, to accordingly allege and
consequently suggest, to the effect that, on account of the
then prevailing communal tension, in the said village,
H
subsequently in consultation of all licensed weapon-holders
MANGA@ MAN SINGH v. STATE OF UTIARAKHAND
195
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of the community of accused of the said village, the
A
present accused, as a matter of fact, had since been
implicated, in a belied manner, on account of undue
pressure, in the present matter. However, this fact remains
true and correct, to the effect that, except the licensed armholders belonging, to the community of accused, there was
B
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 C
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
D
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
E
wo.μld 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
F
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 suggested to
any of the witnesses that there was communal hatred as
G
between those witnesses examined in support of the
prosecution or that it was due to such communal tension they
suffered such injuries, as well as casualties in their family. In
fact, we are of the view that there are too many incongruities
in the said submission, inasmuch as the said submission is
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[20131 3 S.C.R..
A made in desperation and does not deserve any consideration.
Therefore, the said submission is also liable to be rejected as
meritless.
24.