Page 1

   Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1156 OF 2008

Manga @ Man Singh ….Appellant

VERSUS

State of Uttarakhand                .…Respondent

WITH

Criminal Appeal No.1157 of 2008 Criminal Appeal No.1158 of 2008 Criminal Appeal No.1159 of 2008 Criminal Appeal No.1160 of 2008 Criminal Appeal No.1161 of 2008 Criminal Appeal No.1162 of 2008 Criminal Appeal No.1163 of 2008 Criminal Appeal No.1164 of 2008 Criminal Appeal No.1165 of 2008 Criminal Appeal No.1166 of 2008

J U D G M E N T

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  

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            1  of 43

Page 2

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            2  of 43

Page 3

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            3  of 43

Page 4

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            4  of 43

Page 5

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  post-

mortem on the body of 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 C.r.P.C., 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.”

Crl. Appeal No.1156 Of 2008 with connected matters                                            5  of 43

Page 6

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 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 Iqurar Ali,  

he was referred to a higher medical centre for treatment on  

21.11.2001  at  12:10  p.m.  He  was  taken  to  PGI  Hospital,  

Chandigarh from where he was referred to AIIMS, New Delhi.  

However, considering the health of Iqurar Ali, he was allowed to  

be taken back to his house. He succumbed to his injuries on  

Crl. Appeal No.1156 Of 2008 with connected matters                                            6  of 43

Page 7

24.11.2001.   PW-8  who  conducted  the  post-mortem  on  the  

body of Iqurar Ali, noted the following ante-mortem injuries:

“(1) Fire arm wound of entry 0.5 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 bone.  There is fracture  of  occipital  bone rebound  through brain  substance  back of neck and recovered from space between C5  & C6 from muscle, fracture of C5 cervical vertebra.

(ii) Abrasion  1.5  cm  x  1  cm  on  the  left  pinna  of  tragus.”

9. According  to  PW-8,  the  death  of  Iqurar  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 Iqurar Ali was also a homicidal  

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 by  

Shri  S.R.  Singh, learned senior counsel  for the appellants, in  

Criminal  Appeal  Nos.1157/2008,  1158/2008,  1161/2008  and  

Crl. Appeal No.1156 Of 2008 with connected matters                                            7  of 43

Page 8

1164/2008 and by Mr.  Ashok Kumar Sharma counsel for the  

appellant in 1156/2008. The other learned counsel appearing  

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 Cr.P.C. 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            8  of 43

Page 9

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 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  

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  

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  

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.  

Crl. Appeal No.1156 Of 2008 with connected matters                                            9  of 43

Page 10

12. As against the above submissions, learned counsel for the  

State  argued  that  non-recovery  of  bullets  or  pellets  or  not  

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  

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  

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 the State.

14. Having heard learned counsel for the respective parties and  

having perused the material papers placed before us including  

Crl. Appeal No.1156 Of 2008 with connected matters                                            10  of 43

Page 11

the judgment of  the High Court  as  well  as  that  of  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-à-vis Section 149 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 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            11  of 43

Page 12

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  prosecution.  The  

submission 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 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  

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            12  of 43

Page 13

shown in support of the said submission.  In fact the trial Court  

dealt with this very submission.  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  the  deceased  

Mehroof,  the  crime  was  clearly  mentioned  along  with  the  

relevant  sequence  of  crime.  The  trial  Court  has  therefore,  

found that without recording the First  Information Report on  

that very day, namely, 21.11.2001, the crime number could not  

have been mentioned 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 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 out. We, therefore, do not find any scope to apply the  

Crl. Appeal No.1156 Of 2008 with connected matters                                            13  of 43

Page 14

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  

Pradesh - 2012 (6) SCC 107, wherein this very Bench dealt  

with 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  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 25-11-2004 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 been caused to the appellants by  

Crl. Appeal No.1156 Of 2008 with connected matters                                            14  of 43

Page 15

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 Ishwar Singh v.  State of U.P. and Subash Chander  v. Krishan Lal.”

We  can  also  refer  to  a  recent  decision  of  this  Court  in  

Bhajan  Singh  @  Harbhajansingh  and  Ors.  v. State  of  

Haryana – (2011) 7 SCC 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 explain the delay, if  any.  Thus,  we  do  not  find  any  force  in  the  submissions  made  by  the  learned  counsel  for  the  appellants in this regard.”

Crl. Appeal No.1156 Of 2008 with connected matters                                            15  of 43

Page 16

Again in Shivlal & Another v. State of Chhattisgarh- AIR  

2012 SC 280, the significance and relevance relating to sending a  

copy of FIR to the Illaqa 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 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            16  of 43

Page 17

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 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 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.

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            17  of 43

Page 18

cannot be held responsible, even if it resulted in the death of  

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;

“there  had been gross  tension present  in  the  said  village  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 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 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, subsequently  in consultation of  all  licensed  weapon-holders  of  the  community  of  accused of the said village, the 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 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.”

Crl. Appeal No.1156 Of 2008 with connected matters                                            18  of 43

Page 19

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, 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            19  of 43

Page 20

solely due to communal tension.  It was not even suggested to  

any  of  the  witnesses  that  there  was  communal  hatred  as  

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  

made in desperation and does not deserve any consideration.  

Therefore, the said submission is also liable to be rejected as  

meritless.

24. With this, we come to the last of the questions as to whether  

there were any lacunae in the case of the prosecution based on  

the submissions of the learned counsel. Before dealing with the  

submissions,  we wish to  note that  though PWs-1 to  4 were  

closely  related  to  the  deceased,  they  also  suffered  fire-arm  

injuries  at  the  hands  of  the  appellants  and  the  injuries  

sustained by them were duly supported by medical evidence,  

both documentary as well as oral, namely, through PWs-6, 7, 8  

and 9. There was nothing pointed out in the evidence of the  

above witnesses, namely, PWs-1 to 4, except stating that since  

because they were  closely  related,   their  version  about  the  

Crl. Appeal No.1156 Of 2008 with connected matters                                            20  of 43

Page 21

occurrence was not true in order to discredit their version. Even  

before the Courts below the only argument made was that the  

said  witnesses  were  related  to  the  deceased  and  that  they  

falsely implicated the appellants.  In our considered opinion,  

merely  based  on  such  a  flimsy  submission  as  regards  the  

credibility of those witnesses, the evidence of those injured eye  

witnesses cannot be discarded.  

25. In fact with regard to the reliance to be placed upon the  

injured witnesses, this Court has held in very many decisions  

as to the due credence to be given.  The following decisions  

can be referred to for that purpose:-

1) State  of  Maharashtra  v. Chandraprakash  Kewalchand Jain -1990 (1) SCC 550

2) State of U.P. v. Pappu – 2005 (3) SCC 594  

3) State of Punjab v. Gurmit Singh – 1996 (2) SCC 384

4) State of Orissa v. Thakara 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

Crl. Appeal No.1156 Of 2008 with connected matters                                            21  of 43

Page 22

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  

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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            22  of 43

Page 23

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 an hour  

for them and only thereafter, a decision might have been taken  

by  PW-2  to  go  to  the  police  station  for  lodging  the  FIR.  

Therefore, it can never be held that there was any delay at all  

in reporting the matter to the police, nor in registering the FIR.  

27. It was contended that according to the prosecution when the  

accused party attacked the injured party apart from the family  

members of the injured party, local villagers were also present  

but yet, none was examined by way of independent witness.  

The  said  submission  has  been  rightly  rejected  by  the  High  

Court by giving reasons. The High Court has rightly held that  

though  the  injured  witnesses  were  related  to  each  other,  

having regard to  the nature of  evidence tendered by them,  

there were no good grounds to discard their  version.  It  has  

found that 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 that the public are  

Crl. Appeal No.1156 Of 2008 with connected matters                                            23  of 43

Page 24

reluctant to appear and depose before the Court, especially in  

criminal  cases  because  of  many  obvious  reasons.  We  fully  

endorse the said conclusion of the High Court, while dealing  

with the said submission made on behalf of the appellants.  

28. It was then contended that the investigating officer though  

visited the spot did not detect any empty cartridges or bullets.  

PW-13 in his evidence has 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 is as simple as that. It  

is not the case of the 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  the  version  of  the  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 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            24  of 43

Page 25

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  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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            25  of 43

Page 26

any of the injured party was in possession of any weapon, like  

even a stick or a ‘lathi’.  Therefore, all the above factors only  

go to show that the plea of lack of sufficient time to gather  

more number of persons can hardly be a ground of defence, as  

against the overwhelming direct evidence present before the  

Courts below.

30. It will be relevant to take note of the alleged motive, which  

was not seriously disputed on behalf of the appellants.  It was  

unfortunate  that  in  spite  of  the  fact  that  members  of  the  

injured party earnestly attempted to dissuade the situation by  

pacifying  the  appellants,  no  good  sense  appeared  to  have  

prevailed  upon the appellants,  who seem to  have taken an  

upper  hand  and  caused  the  onslaught  on  the  unarmed  

members of the injured party, of whom one was a female.  The  

submissions  of  the  appellants,  therefore,  do  not  merit  

consideration on this ground as well.  

31. A feeble submission was made that the FIR does not even  

reveal that PW-2 was injured.  On the other hand, a reading of  

the  FIR  discloses  that  PW-2  specifically  mentioned  that  he  

Crl. Appeal No.1156 Of 2008 with connected matters                                            26  of 43

Page 27

along  with  others  was  injured  due  to  the  onslaught  of  the  

appellants.   Yet  another  feeble  submission  was  that  PW-3  

stated that they were all  standing outside the house at  the  

time  when  the  accused  party  approached  the  place  of  

occurrence,  while the case of  the prosecution was that only  

after the arrival  of  the accused the members of  the injured  

party came out of their house. We see absolutely no substance  

in  the  said  submission  as  we  do  not  find  that  such  a  silly  

discrepancy can cause any dent in the case of the prosecution,  

which is otherwise supported by overwhelming evidence, both  

oral as well as documentary.

32. On behalf of the first appellant in Criminal Appeal No. 1165  

of  2008,  it  was  contended  that  he  belonged  to  a  different  

village and that  he  was falsely  implicated.  In  fact,  the said  

contention was dealt with by the trial Court extensively, which  

has  noted  that  the  said  accused  claimed  that  he  was  the  

resident of the village Manduwala 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            27  of 43

Page 28

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  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.

Crl. Appeal No.1156 Of 2008 with connected matters                                            28  of 43

Page 29

33. With  that  we  come  to  the  main  question  as  to  the  

interpretation to  be given to  Section 141 ‘third’,  read along  

with Section 149, IPC.  In the forefront, we wish to highlight the  

extent of power of this Court in the matter of interpretation of  

words in  the provision of  a  statute.   In  this  context,  at  the  

outset, we wish to quote the words of Justice G.P. Singh in the  

celebrated  book  on  ‘Principles  of  Statutory  Interpretation’,  

where  the  learned  author  in  Chapter  II  under  the  caption  

‘Guiding Rules’  in  sub-para 1(d)  stated as  under,  under  the  

caption ‘Departure from rule’:-  

“(d) Departure from the rule

In  discharging  its  interpretative  function,  the  Court  can  correct  obvious  drafting  errors  and  so  in  suitable cases “the court will add words, or omit words  or  substitute  words”.   But  “before  interpreting  a  statute in this way the Court must be abundantly sure  of  three  matters  :  (1)  the  intended  purpose  of  the  statute  or  provision  in  question,  (2)  that  by  inadvertence the draftsman and Parliament  failed to  give effect to that purpose in the provision in question;  and (3)  the  substance  of  the  provision  Parliament  would have made, although not necessarily the precise  words Parliament would have used, had the error in  the Bill been noticed.”  Sometimes even when these  conditions  are  satisfied,  the  court  may  find  itself  inhibited from interpreting  the statutory  provision  in  accordance  with  underlying  intention  of  Parliament,  

Crl. Appeal No.1156 Of 2008 with connected matters                                            29  of 43

Page 30

e.g. when the alteration in language is too far reaching  or too big  or when the subject matter calls for strict  interpretation  such  as  a  penal  provision.”  (See Inco  Europe Ltd. v. First Choice Distribution (a firm) (2000)  2 ALL ER 109, p.115 (HL)”

(Emphasis added)

34. In the decision of this Court reported in Surjit Singh Kalra  

v.  Union of  India  and another  -  1991 (2)  SCC 87,  while  

laying  down  the  principle  of  purposive  construction  to  be  

adopted by Courts, it has been held as under in paragraph 19:-

“19.  True  it  is  not  permissible  to  read  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,  

Crl. Appeal No.1156 Of 2008 with connected matters                                            30  of 43

Page 31

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  intended,  a  construction may be put upon it  which modifies the  meaning of the words, and even the structure of the  sentence.  This  may  be  done by  departing  from the  rules  of  grammar,  by giving an unusual  meaning to  particular  words,  by  altering  their  collocation,  by  rejecting  them  altogether,  or  by  interpolating  other  words, under the influence, no doubt, of an irresistible  conviction that the legislature could not possibly have  intended  what  its  words  signify,  and  that  the  modifications  thus  made  are  mere  corrections  of  careless language and really give the true meaning.”

36. Keeping the above basic principles in mind, we considered  

the submission of Shri S.R. Singh, learned senior counsel who  

appeared for the appellants in Criminal Appeal Nos.1157/2008,  

1158/2008,  1161/2008  and  1164/2008.   According  to  the  

learned  counsel,  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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            31  of 43

Page 32

only be relatable to offences similar to those such as, mischief  

or criminal trespass, referred to in the said clause.  The learned  

senior counsel submitted that such an interpretation should be  

laid by applying the principle of ejusdem generis.  The learned  

counsel, therefore, contended that if that be the legal position,  

reading  Section  141‘third’  and  Sections  147,  148  and  149  

together, none of the offences referred to in Sections 147 and  

148  or  any  of  the  other  grave  offences  falling  under  other  

provisions  of  the  Indian  Penal  Code  will  get  attracted.  The  

learned  counsel,  therefore,  contended  that  conviction  for  

offences under Section 302 read with Sections 149 and 307  

read with Section 149 IPC, as well as Sections 147 and 148 of  

IPC with the aid of Section 141, could not have been made.  

Though the said submission 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 IPC,  which defines ‘offence’  is  

also  required  to  be  noted.   In  order  to  appreciate  the  

Crl. Appeal No.1156 Of 2008 with connected matters                                            32  of 43

Page 33

submission and to arrive at a correct conclusion, we feel that  

Section 40 IPC, 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, 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 servant in the exercise of the lawful power of  such public servant; or

Second- To resist the execution of any law, or of any  legal process; or

Third –  To commit any mischief or criminal trespass,  or other offence; or

Crl. Appeal No.1156 Of 2008 with connected matters                                            33  of 43

Page 34

Fourth - By means of criminal force, or show of criminal  force, to any person, to take or obtain possession of  any  property,  or  to  deprive  any  person  of  the  enjoyment of a right of way, or of the use of water or  other incorporeal right of which he is in possession or  enjoyment, or to enforce any right or supposed right;  or

Fifth - by means of criminal force, or show of criminal  force,  to  compel  any  person  to  do  what  he  is  not  legally bound to do, or to omit to do what he is legally  entitled to do.

Explanation –  An  assembly  which  was  not  unlawful  when  it  assembled,  may  subsequently  become  an  unlawful assembly.

147. Punishment  for  rioting-  Whoever  is  guilty  of  rioting, shall be punished with imprisonment of either  description for a term which may extend to two years,  or with fine, or with both.

148. Rioting, armed with deadly weapon- Whoever is  guilty of rioting, being armed with a deadly weapon or  with anything which, used as a weapon of offence, is  likely  to  cause  death,  shall  be  punished  with  imprisonment  of  either  description for  a  term which  may extend to three years, or with fine, or with both.

149. Every  member  of  unlawful  assembly  guilty  of  offence committed in prosecution of common object- If  an offence is committed by any member of an unlawful  assembly in prosecution of the common object of that  assembly, or such as the members of that assembly  knew to be likely to be committed 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            34  of 43

Page 35

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 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’  

Crl. Appeal No.1156 Of 2008 with connected matters                                            35  of 43

Page 36

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  the  

offence,  namely,  rioting  prescribed  under  Section  146  

punishable under Sections 147 as well as 148, namely, rioting,  

armed with deadly weapons.

39. The  principle  ‘ejusdem generis’ means  ‘where  a  law lists  

specific classes of persons or things and then refers to them in  

general, the general statements only apply to the same kind of  

persons or things specifically listed’. The learned senior counsel  

for  the  appellants,  therefore,  contended  that  since  the  

expression “other offence” under Section 141 ‘third’ has been  

used along with the offence, 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, namely, murder or attempt to commit murder.  

Crl. Appeal No.1156 Of 2008 with connected matters                                            36  of 43

Page 37

40. When we test the said submission by making reference to  

the Chapter, in which the offence of mischief and trespass are  

specified in the Code, we are able to expose the glaring fallacy  

in the submission of the learned senior counsel. Mischief and  

criminal  trespass fall  under Chapter XVII.  The caption of the  

said Chapter is  “of  offences against property”.  The offences  

dealt with in the said Chapter are governed by Sections 378 to  

462. The offences dealt with apart from mischief and trespass  

are  theft,  extortion,  robbery,  dacoity,  dacoity  with  murder,  

misappropriation of property, criminal breach of trust, dealing  

with stolen property and cheating.  

41. While referring to the offence of mischief, Sections 435 to  

438 deals with mischief by fire or any explosive substance with  

the intent to destroy a house or other properties or to destroy  

or make unsafe a decked vessel etc., for 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            37  of 43

Page 38

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  ‘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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            38  of 43

Page 39

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,  which  are  punishable  under  any  of  the  

provisions of the Code. Therefore, by applying the main clause  

of Section 40, it  can be straight away held that all  offences  

referred to in any of the provisions of the Code for which the  

punishment is provided for would automatically fall within the  

expression “other  offence”,  which  has been used in  Section  

141 ‘third’.  

44. What has been excepted in the main clause of Section 40  

are what has been specifically mentioned in sub-clauses 2 and  

3 of the said section. As far as sub-clause 2 is concerned, while  

making reference to  Chapter IV and Chapter VA,  as  well  as  

other  sections  mentioned  therein,  it  states  that  the  word  

“offence”  would  denote a  thing punishable under the Code,  

namely, Indian Penal Code or under any special or local law,  

which  have  been  defined  to  mean  a  law  applicable  to  a  

Crl. Appeal No.1156 Of 2008 with connected matters                                            39  of 43

Page 40

particular subject or a law applicable only to a particular part of  

India. When we read sub-clause 3 of Section 40, Section 141  

has  been  specifically  mentioned  in  the  said  sub-clause.  To  

understand the purport of the said clause, it will be worthwhile  

to extract that part of the provision which reads;  

“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”.

 45.    It is quite apparent that the said sub-clause in regard to the  

offences under any special or local law, wherein punishment of  

imprisonment for a term of six months or upwards with or without  

fine is prescribed, the meaning assigned 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  

Crl. Appeal No.1156 Of 2008 with connected matters                                            40  of 43

Page 41

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 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’ IPC. Having regard to  

such a construction of ours on Section 141, read along with  

Crl. Appeal No.1156 Of 2008 with connected matters                                            41  of 43

Page 42

Section  40  IPC,  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 for  

which the conviction and sentence imposed by the Court below  

cannot be found fault with.  

47. In the light of our above conclusions on the various  

submissions made by the counsel for the appellants, we do not  

find any merit  in these appeals. The appeals,  therefore,  fail  

and  the  same  are  dismissed.  Appellant  Soma  in  Criminal  

Appeal No.1158/2008 who is on bail is directed to surrender  

before  Magistrate  forthwith  for  serving  out  the  remaining  

period  of  sentence,  if  any,  failing  which  the  Chief  Judicial  

Magistrate Haridwar is directed to take him into custody and  

send him to jail to serve out the sentence, if any.  A copy of the  

judgment be sent to the said CJM by the Registry forthwith.

            …….……….…………………………...J.                                       [Dr. B.S.  

Chauhan]

       …….…….………………………………J.

Crl. Appeal No.1156 Of 2008 with connected matters                                            42  of 43

Page 43

              [Fakkir  Mohamed  Ibrahim  Kalifulla]

New Delhi;  May 03, 2013

Crl. Appeal No.1156 Of 2008 with connected matters                                            43  of 43