Mahendra Singh vs State of Uttaranchal

Barin Ghosh, C.J.—On 22nd October 1999, a first information report was lodged, where the appellant was one of the named accused persons. It was alleged that a death has taken place and a person has been severely injured, by reason of user of firearms. It was alleged that the appellant was having a rifle. It was also alleged that other accused persons were having guns and country made pistols. It was alleged that all the accused persons, including the appellant, in concert, committed the crime alleged in the first information report. This first information report was investigated, whereupon, a charge sheet was filed, where it was alleged, amongst others, that the appellant is guilty of commission of offences punishable under Sections 302 and 307 of the Indian Penal Code. On the said charge sheet, charge was framed. At the time of framing charge, it was alleged that the appellant has committed offences punishable u/s 302 read with Section 34 and Section 307 read with Section 34 of the Indian Penal Code.

In course of trial, prosecution relied upon postmortem report of the deceased and the injury report of the injured person. P.W.8 proved the postmortem report, whereas P.W.10 proved the injury report. As was indicated in the postmortem report that the deceased received pallet injuries, which were fired from guns, so was proved by P.W.8, who also clarified that the deceased did not receive any bullet injury. He accepted that bullets alone could be fired from rifle and not pallets. As was stated in the injury report, P.W.10 also stated that the injuries received were lacerated wounds. As was opined in the injury report that those lacerated wounds were received by reason of user of firearm, so the P.W. 10 deposed, while proving the injury report in course of trial. He opined that such injuries may be caused by guns, pistols and rifles, but he is unable to say by which those injuries were sustained. He made it clear that he has no knowledge as to what kind of wound can be made by user of either a rifle, or a gun, or a pistol.

No spent bullet, nor any empty cartridge of a bullet was found at the place of incident. No rifle was found in possession of the appellant and, no rifle was exhibited as a material exhibit.

While the deceased is the son of the person who received injuries, the person who lodged the first information report was the other son of the person, who received injuries. Both of them gave evidence in support of prosecution. While the informant was P.W. 1, the injured person was P.W. 3. In course of evidence, P.W. 1 accepted the fact that on a first information report lodged by the appellant, P.W. 1 was sent to prison in respect of murder of the son and the brother of the appellant.

It is true that P.W. 1 and P.W. 3, both in course of their evidence, stated that the appellant was present at the place of occurrence and he fired from the rifle that he was carrying. Apart from the said oral evidence, there is nothing on record, which would establish either the presence of the appellant at the place of occurrence, or that the appellant was having at that time a rifle in his hand and, even if, those two are assumed, there is nothing to show that the appellant fired from a rifle.

In terms of Section 34 of the Indian Penal Code there has to be a criminal act in furtherance of common intention. The criminal acts in the instant case are causing death of the deceased and causing injuries to P.W. 3. Apart from the fact that the deceased was done away with and P.W. 3 was injured, the prosecution has failed to establish the common intention. In any event, there is no evidence of overt act or actual participation by the appellant, as is evident from what has been stated above. The fact remains that the purported motive ascribed to the appellant that the action complained of was a retaliation of an earlier action is not acceptable, inasmuch as, in respect of the earlier action referred to above, the appellant had already taken recourse to law as was available. Further and, in any event, there being no charge u/s 120B of the Indian Penal Code against the appellant, he could not be prosecuted nor could be considered to have been prosecuted for the said motive.

It appears to us that the learned judge, who dealt with the matter, confused in between common intention and motive to commit a crime. We, accordingly allow the appeal, set aside the judgment and order under appeal and, set the appellant free, exonerating him of the charges, holding that the prosecution utterly failed to put home the charges against the appellant, who is in custody since 22nd October 1999, and direct his release forthwith. Let the copy of this judgment be sent to the court below with lower court records with a direction upon the court below to ensure release of the appellant forthwith.