New Delhi, Apr 29 (ILNS) The Supreme Court today has allowed the appeal filed by a man seeking direction to set aside the order of Allahabad High Court which had cancelled his appeal against conviction under section 304 (II) IPC& under section 325 read with section 34 IPC. (Mishrilal @Suggan Vs The State of UP)
The Allahabad High Court had cancelled the appeal of one Mishrilal against conviction under Section 304 (II) (culpable homicide not amounting to murder) IPC and under Section 325 (voluntarily causing grievous hurt) read with Section 34 (criminal act done by several persons in common intention) IPC.
The Bench of Justice Navin Sinha and Justice Krishna Murari was hearing a plea filed by Mishrilal, challenging the Allahabad High Court order, which had upheld the order of the Trial Court, convicting him.
The Counsel appearing for the appellant submitted that Section 34 of IPC does not met out to the appellant, tried to show lacunae in the trial court verdict as his role in having a common intention to kill has not been established.
Justice Navin raised a query from the counsel, “Out of four accused persons, two are juveniles, you surrounded the deceased by lathi and danda, you say there was no common intentions among the accused persons. What more common intention you need?”
Counsel of appellant again tried to show the mistake in the findings of the trial court. He said in order to establish common intention, two or more persons were required and meeting of mind was necessary.
However, the Bench asked that whether the appellant has surrendered or not. To which, the Counsel for the appellant replied in affirmative. However, the order dated March 19 of the apex court said the appellant did not surrender before the trial court and the Supreme Court declined the application of the appellant for exempting him from surrendering.
The Supreme Court bench asked the appellant to file the Custody certificate within two weeks.
The AllahabadHC had held that, “The legal position for appreciation of testimony of a related witness is that though evidence of a closely related witness is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it but it cannot be discarded merely on the ground that the witnesses are related to each other or to the deceased. In case, the evidence has a ring of truth to it, is cogent, credible, and consistent it can and certainly should be relied upon.”
The Court also refused to accept the submission made by the counsel for the appellants who pointed out defects in the investigation with the contention that the Investigating Officer neither had collected the plain and blood stained earth nor recovered blood stained clothes of the injured. The presence of witnesses, therefore, was not proved by the prosecution.
The High Court had said, “this submission does not impress the Court, in as much as, in the case of defective investigation, the Court may be circumspect in evaluating the evidence, but it would not be right in acquiting the accused persons solely on account of the aforesaid defect. The lapse or omission of the investigating officer does not contradict the version of the eye-witnesses. It is settled that every defect in the investigation or lapse on the part of the Investigating Officer cannot be given undue importance as to do so would tantamount to playing into the hands of the Investigating Officer. If the investigation is designedly defective, it would result in perpetuating designed mischief and denial of justice to the complainant party.”
It further held that the death was caused by hemorrhage shock. It seems to the Court that the act of causing death was though with the knowledge that it was likely to cause death, but there was no intention to cause death or to cause such bodily injury which was likely to cause death. Hence, the conviction of accused persons Mishri @ Suggan and Manni lal under Section 304, Part -II read with Section 34 I.P.C cannot be said to suffer from any infirmity. The offence under Section 325 read with Section 34 for voluntary causing grievous hurt is also proved. The sentence for seven years rigourous imprisonment awarded by the trial court is found to be justified in the facts and circumstances of the case. No inteference, as such, is required in the judgment of the trial court.
The High Court had dismissed the appeal and noted that appellant no.1, Mishrilal @ Suggan is on bail.
The Court thereafter, cancelled his bail bonds and discharged sureties. It directed him to surrender before the court concerned forthwith from where he shall be sent to jail to undergo the sentence. ILNS/KY/RJ