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Saturday, February 6, 2016

mere non mentioning of two of the names in the F.I.R cannot be fatal to the case of the prosecution.=“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”.=when we examine the case on hand, the motive for the alleged assault is the grudge of the accused-Ashok Das alias Gopal Das who contested in the college student election in which P.W.8 also contested, who stated to have ultimately won the elections. According to the case of the prosecution, all the appellants gathered under a mango tree and the recoveries made at that spot disclose, whisky bottles etc., to show that they were waiting at the place of occurrence. The recovery of bhujali and the cover at the place of occurrence as disclosed in the inquest report supported by the version of P.W.13, investigating officer, clearly proved that the assailants while waiting at the spot, shared their common object. The common object shared by them resulted in the assault on P.W.8. We can deduce from the evidence of P.W.8 that at the spot, he could notice the accused making their appearance from behind a mango tree with each one of them holding a deadly weapon. According to P.W.8, accused-Ashok Das alias Gopal Das was holding a sword; A1 was holding a Bhujali and rest of the accused were holding cycle chains. On seeing their sudden appearance, while riding the motor cycle, P.W.11 apparently lost control and in that process, it is narrated by P.W.8 and 11 that accused-Ashok Das alias Gopal Das gave a sword blow to P.W.8 on his face and when P.W.11 fell down from the motorcycle along with P.W.8, A3 and A4 stated to have held the deceased while accused-Ashok Das alias Gopal Das dealt a sword blow on the backside of the head of the deceased, who cried for help. A1, stated to have inflicted Bhujali blow on the left scapula of the deceased and when A1 attempted to inflict another blow with the bhujali, the deceased stated to have attempted to catch hold of the bhujali and sustained injuries on his left hand. While the accused were thus inflicting injuries on P.W.11, P.W.8 they made an attempt to flee, when accused-Ashok Das alias Gopal Das dealt a sword blow on the left chest of P.W.8. When P.W.11, attempted to run away, A2 Pitambar kicked more than thrice and on seeking a Trekker moving in that direction, the appellants stated to have ran away, which was noticed by P.W.7 who was crossing that side along with one Debendra Padhi who was not examined. In the evidence of P.W.7, 8 and 11, it is clearly noted that the appellants participated in the crime and all five of them ran away from the place of occurrence after causing severe injuries on the deceased as well as P.Ws.8 and 11. Having regard to the said evidence, as spoken to by P.Ws.7, 8 and 11, there can be no room for doubt about the presence of all the five appellants at the place of occurrence.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.244 OF 2009

Susanta Das & Ors.                                 …Appellants

                                   VERSUS

State of Orissa                                    …Respondent

                                    With

                       CRIMINAL APPEAL NO.1523 of 2015

Ashok Das alias Gopal Das                          …Appellant

                                   VERSUS

State of Orissa                                    …Respondent



                               J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA

These two appeals arise out of a common judgment  dated  15.10.2008,  passed
in Criminal Appeal No.251 of 1997 preferred by the accused-Ashok  Das  alias
Gopal Das and Government Appeal No.20 of 1999 as against  the  acquittal  of
accused Nos.1   to 4.


As per the case of the prosecution on 03.04.1996, at about 04.00  p.m.  when
P.Ws.8, 11 and the deceased Padma Lochan Jena were proceeding  from  Bhadrak
to Agarapada  in  a  Rajdoot  Motorcycle,  about  half  a  kilometer  before
Kadabaranga Chhaka, the accused numbering five, each one of them armed  with
deadly weapons obstructed them and when the three persons tried  to  escape,
the accused chased them and assaulted them with the aid of the weapons  held
by them.  At that point of time, a trekker passed through the  road  and  on
seeing the same, the accused persons fled away.   The  trekker  however  did
not stop, but P.W.7 along with one Debendra Padhi who were  also  proceeding
on that road in a motorcycle stopped at the place of occurrence, helped  the
deceased as well as P.Ws.8 and 11 who were also injured by shifting them  to
a hospital in a mini bus called  Santoshi  coming  on  that  road  and  that
before they could reach the hospital the deceased Padma Lochan succumbed  to
the injuries.


At the hospital P.W.1,  the  uncle  of  the  deceased,  who  rushed  to  the
hospital on hearing the news of the death of the deceased,  after  gathering
the information from P.Ws.8 and 11 as to how the  deceased  along  with  the
injured eye witnesses were assaulted  by  the  accused,  lodged  the  F.I.R.
(Ex.1) by around 5.45 p.m. The injured were attended by  P.W.12  Doctor  who
issued the injury reports (Exs.7 & 8).  P.W.9, Dr.  S.  N.  Panda  conducted
autopsy on the body of  the  deceased  and  issued  Ex.6,  the  post  mortem
report.  Though P.W.10, the passenger in the Trekker was cited and  examined
as an eye witness to the  occurrence,  did  not  support  the  case  of  the
prosecution. P.Ws.13 and 14 were the investigating officers  and  the  major
portion of the investigation was conducted by  P.W.13.  P.W.13  recovered  a
Bhujali and the cover of  the  Bhujali  (M.Os.II  &  III)  and  the  wearing
apparels of the injured and the deceased (M.Os.IX & XI).  M.O.I  is  a  pair
of chappal, which  was  also  recovered  along  with  other  articles  viz.,
plastic comb, plastic glass, whisky and rum bottles. Ex.2  was  the  inquest
report and Ex.10 was the dead body challan. Exs.3  to  5  and  12  were  the
different seizure lists.  Ex.9 was the crime detailed form while  Exs.14  to
18 are the documents in support of  sending  M.Os.  to  the  State  Forensic
Science Laboratory and the report received therefrom.


On behalf of the prosecution, P.Ws.1 to 14 were examined and on the side  of
the defence, D.W.1 was examined and Exs.D & D/1 were  marked.   The  accused
were arrested on  different  dates.   The  first  accused  was  arrested  on
06.04.1996, the second accused was arrested on  11.04.1996,  the  third  and
fourth  accused  surrendered  before  Court  on  12.07.1996  and  19.07.1996
respectively. Accused-Ashok Das alias Gopal Das was arrested on  19.03.1997.
 The wearing apparels of the first accused was recovered which  was  stained
with blood, but the same was not sent for chemical analysis.


The appellants were charged for the offences under Sections 147,  148,  341,
326, 307, 302 r/w Section 149 I.P.C.  The accused  denied  the  charges  and
were tried by the Sessions Court.  Though the accused were charged  for  the
offence under Section 149, the Trial Court  while  analyzing  the  evidence,
both the eye witnesses account, medical  evidence,  as  well  as  the  other
evidence, took the view that there was no clinching evidence to support  the
individual role played by each  of  the  accused  except  accused-Ashok  Das
alias Gopal Das and consequently  while  acquitting  A1  to  A4,  ultimately
convicted the accused-Ashok Das  alias  Gopal  Das  for  the  offence  under
Section 302 I.P.C. for the killing of the deceased  Padma  Lochan  Jena  and
for causing grievous hurt on P.W.8, convicted  him  for  the  offence  under
Section 326 I.P.C.   He  was  acquitted  of  the  offence  under  the  other
Sections by granting the benefit of doubt.  Ultimately, he was imposed  with
the punishment of imprisonment for life for the offence  under  Section  302
I.P.C and three years R.I for the  offence  under  Section  326  I.P.C.  and
directed the punishment to run concurrently.


As against the said  conviction  and  sentence  imposed,  accused-Ashok  Das
alias Gopal Das preferred Criminal Appeal No.251 of 1997 while the State  of
Orissa preferred Government Appeal No.20 of 1999 against  the  acquittal  of
A1 to A4.  As stated earlier, the High Court by the impugned judgment  while
reversing the acquittal of A1 to A4 found them guilty of the offences  under
Section 302 r/w 149 I.P.C., Sections 148,  326  r/w  149,  307  r/w  149  of
I.P.C. and imposed them with the sentence of imprisonment for life  for  the
offence under Section 302 r/w 149 I.P.C. and they were acquitted of  offence
under Section 307 r/w 149 of I.P.C. Thus, convicting them for offence  under
Section 302 r/w 149 did not impose  a  separate  sentence  for  the  offence
under Section 326 r/w 149 and 148 I.P.C.  The appeal preferred  by  accused-
Ashok Das alias Gopal Das was dismissed. It is as against the  above  common
judgment of the Division Bench of the High Court, the appellants are  before
us.


We heard Mr. Ratnakar Dash, learned Senior Counsel  for  the  appellants  in
Crl.A.No.244  of  2009,  Mr.Anup  Kumar,  learned  Amicus  Curiae  for   the
appellant in Crl.A.No.1523 of 2015 and we also heard  Mr.  Ashok  Panigrahi,
learned counsel for the respondent State.


Mr. Ratnakar Dash, learned Senior Counsel for the appellants,  after  taking
us through the evidence of P.Ws.1, 7, 8, 9, 11 and 13 as well as Ex.7/1  and
8/2 and certain other documents  and  also  the  conclusions  drawn  by  the
learned Trial Judge and the analysis made by the Division Bench of the  High
Court, submitted that the offence under Section 302 as well as 326  r/w  149
was not made out in as much as though P.Ws.8 and 9 claim to be  injured  eye
witnesses, their evidence did not support the case of  the  prosecution  for
invoking Section 149 of I.P.C.


According to the learned Senior Counsel,  though  Ex.1,  F.I.R  came  to  be
lodged at 5.45 p.m. at the instance  of  P.W.1,  who  lodged  his  complaint
based on the information furnished by  P.Ws.8  and  11,  significantly,  the
names of all the accused were not mentioned in the F.I.R  and  even  in  the
Section 161 statement of P.W.8 and 11, the names of  all  the  accused  were
not mentioned.  The learned Senior Counsel also submitted that  in  none  of
the contemporaneous documents either  prepared  by  P.W.13  or  the  medical
reports, there was any specific reference to the names of all  the  accused,
in particular, the appellants for whom he appeared, in a  consistent  manner
in order to implicate  them  either  for  the  offence  of  killing  of  the
deceased or for causing any injury on P.Ws.8 and  11.   The  learned  Senior
Counsel therefore contended that in the light of the said  fact  viz.,  lack
of  necessary  evidence  to  show  the  participation  of  all  the  accused
together, the invocation of Section 149 I.P.C to rope in the appellants  for
whom he appeared was not made out and  consequently,  the  reversal  of  the
judgment of the Trial Court by the High Court  was  not  justified  and  the
appellants in Criminal Appeal No.244 of 2009 viz., A1  to  A4  were  rightly
acquitted by the Trial Court giving them the benefit of doubt.


Mr. Anup Kumar, learned Amicus Curiae for the appellant in Crl.A.No.1523  of
2015 in his submissions contended that he was alleged to have used  a  sword
in the occurrence, which was neither seized  nor  recovered;  there  was  no
blood stained cloth of the said accused recovered of  him;  that  there  was
delay in forwarding the F.I.R to  the  learned  Magistrate;  that  the  non-
examination of the person who accompanied P.W.7 was fatal  to  the  case  of
the prosecution; that the so called eye witness P.W.10 who claimed  to  know
two of the accused viz.,  A1  and  A2  did  not  support  the  case  of  the
prosecution and therefore on that ground as well, the conviction  is  liable
to be set aside.  The learned counsel also submitted that  no  reliance  can
be placed upon the version of  P.W.11  against  whom  a  criminal  case  was
pending.


As against the above submissions of the learned  counsel  for  the  accused,
the learned standing counsel for the respondent State argued that there  was
specific reference about each of the accused  in  the  evidence  which  came
into existence at the earliest point of  time.   According  to  the  learned
counsel, the reference to involvement of A1  to  A4  and  accused-Ashok  Das
alias Gopal Das along with two others was specifically  mentioned  by  P.W.1
in his complaint, which came to be noted in the F.I.R  (Ex.1)  and  that  in
the Section 161 statement of P.W.8  the  names  of  A1  and  A3  along  with
accused-Ashok Das alias Gopal Das was  specifically  referred.   Though  the
learned standing counsel fairly submitted that there  was  no  reference  to
the role played by A2 in any of the reports or statements, which  came  into
existence at the earliest  point  of  time,  the  learned  standing  counsel
contended that the statement of P.Ws.1, 8 and the F.I.R amply  disclose  the
involvement of A1, A3, A4 and accused-Ashok Das alias Gopal Das  apart  from
the fact  that  the  medical  evidence  fully  supported  the  case  of  the
prosecution.  The  learned  standing  counsel  placed  reliance   upon   the
decisions reported in Rotash Vs. State of Rajasthan  -  (2006)  12  SCC  64,
Mritunjoy Biswas Vs. Pranab alias Kuti Biswas and another -  (2013)  12  SCC
796 and Bishna alias Bhiswadeb Mahato and others Vs. State of W.B. -  (2005)
12 SCC 657. On behalf  of  the  appellants  reliance  was  placed  upon  the
decision reported in Ajit Savant Majagvai Vs. State of Karnataka - (1997)  7
SCC 110.


Having heard the learned counsel for the appellants and the learned  counsel
for the respondent State and having bestowed our  serious  consideration  to
the materials placed before us and the judgments  of  the  Trial  Court  and
that of the High Court, we are convinced that no interference is called  for
with the impugned judgment.


While discussing about the various  contentions  raised  on  behalf  of  the
appellants, since we are  concerned  with  the  conviction  imposed  on  the
appellants, for the offence  under  Section  302  I.P.C.  with  the  aid  of
Section 149 I.P.C., it will be necessary to clearly set out  the  nature  of
offence detailed in Section 149 I.P.C. Section 149 reads as under :


“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”.





When  we  read  Section  149,  since  at  the  very  outset  it  refers   to
participation of  each  member  of  an  unlawful  assembly,  it  has  to  be
necessarily shown that there was an assembly of five or more persons,  which
is designated as unlawful assembly under  Section  149  I.P.C.   When  once,
such a participation of five or more persons is shown,  who  indulge  in  an
offence as a member of  such  an  unlawful  assembly,  for  the  purpose  of
invoking Section 149, it is not necessary that there must be specific  overt
act played by each of the  member  of  such  an  unlawful  assembly  in  the
commission of an offence. What is required to be shown is the  participation
as a member in pursuance of a common object  of  the  assembly  or  being  a
member of that assembly, such person  knew  as  to  what  is  likely  to  be
committed in prosecution of any such common object.  In  the  event  of  the
proof of showing of either of the above conduct of a member of  an  unlawful
assembly, the offence, as stipulated in Section 149, will stand proved.   In
fact,  the  said  prescription  contained  in  Section  149  has  been  duly
understood by the Division Bench by making reference to some of the  earlier
decisions of this Court.  In this  context,  the  Division  Bench  chose  to
follow the decisions of this Court reported in  Rajendran  and  another  Vs.
State of T.N.  –  (2004)  10  SCC  689  and  Bishna  (supra),  wherein,  the
description contained in Section 149 I.P.C and in what  cases,  and  against
whom, the said provision can be applied has been clearly set out.


Keeping the above legal position pertaining to application of  Section  149,
when we examine the case on hand, the motive for the alleged assault is  the
grudge of the accused-Ashok  Das  alias  Gopal  Das  who  contested  in  the
college student election in which P.W.8 also contested, who stated  to  have
ultimately won the elections. According to the case of the prosecution,  all
the appellants gathered under a mango tree and the recoveries made  at  that
spot disclose, whisky bottles etc., to show that they were  waiting  at  the
place of occurrence. The recovery of bhujali and the cover at the  place  of
occurrence as disclosed in the inquest report supported by  the  version  of
P.W.13, investigating officer, clearly  proved  that  the  assailants  while
waiting at the spot, shared their common object.  The common  object  shared
by them resulted in the assault on P.W.8.  We can deduce from  the  evidence
of P.W.8 that at  the  spot,  he  could  notice  the  accused  making  their
appearance from behind a mango tree with each one of them holding  a  deadly
weapon.  According to P.W.8, accused-Ashok Das alias Gopal Das  was  holding
a sword; A1 was holding a Bhujali and  rest  of  the  accused  were  holding
cycle chains.  On seeing their sudden appearance,  while  riding  the  motor
cycle, P.W.11 apparently lost control and in that process,  it  is  narrated
by P.W.8 and 11 that accused-Ashok Das alias Gopal Das gave a sword blow  to
P.W.8 on his face and when P.W.11 fell down from the motorcycle  along  with
P.W.8, A3 and A4 stated to have held the deceased  while  accused-Ashok  Das
alias Gopal Das dealt a sword blow on  the  backside  of  the  head  of  the
deceased, who cried for help. A1, stated to have inflicted Bhujali  blow  on
the left scapula of the deceased and when A1 attempted  to  inflict  another
blow with the bhujali, the deceased stated to have attempted to  catch  hold
of the bhujali and sustained injuries on his left hand.


While the accused were thus inflicting injuries on P.W.11, P.W.8  they  made
an attempt to flee, when accused-Ashok Das alias Gopal  Das  dealt  a  sword
blow on the left chest of P.W.8.  When P.W.11, attempted  to  run  away,  A2
Pitambar kicked more than thrice and on seeking a  Trekker  moving  in  that
direction, the appellants stated to have ran  away,  which  was  noticed  by
P.W.7 who was crossing that side along with one Debendra Padhi who  was  not
examined. In the evidence of P.W.7, 8 and 11, it is clearly noted  that  the
appellants participated in the crime and all five of them ran away from  the
place of occurrence after causing severe injuries on the  deceased  as  well
as P.Ws.8 and 11.  Having regard to the  said  evidence,  as  spoken  to  by
P.Ws.7, 8 and 11, there can be no room for doubt about the presence  of  all
the five appellants at the place of occurrence.


It must be stated that P.Ws.8 and  11  while  undergoing  treatment  at  the
hospital, immediately after the occurrence  viz.,  between  04.00  p.m.  and
05.45 p.m. informed P.W.1, the  uncle  of  the  deceased,  who  reached  the
hospital. P.W.1 who gathered the information from P.Ws.8 and 11  as  to  how
and in what manner and by whom the injuries came to  be  inflicted,  in  his
complaint which he lodged at 5.45 p.m. made  a  specific  reference  to  the
names of A1, A4 and accused-Ashok Das alias Gopal Das along with two  others
who were armed with bhujalis, swords and cycle chain caused the injuries  on
the deceased and P.Ws.8 and  11.   Similarly,  the  immediate  statement  of
P.W.8, disclose the specific mention of A1, A3 and accused-Ashok  Das  alias
Gopal Das and the serious injuries  inflicted  by  accused-Ashok  Das  alias
Gopal Das on the deceased  as  well  as  P.Ws.8  &  11.  Similarly,  in  the
immediate statement of P.W.11, he specifically referred to the names of  A1,
A3 and accused-Ashok Das alias  Gopal  Das  and  the  manner  in  which  the
injuries were inflicted upon them.


A cumulative consideration of the evidence of P.Ws.1,  7,  8  and  11  amply
disclose that there were five who were involved  in  the  occurrence,  viz.,
accused 1 to 4 and  accused-Ashok  Das  alias  Gopal  Das,  apart  from  the
specific role played by each one  of  them.  Having  regard  to  the  motive
related to which the appellants stated to have nurtured  a  grievance  which
resulted in the assault on the deceased and P.Ws.8 and 11 and  all  of  whom
being known to the injured eye witnesses and accused-Ashok Das  alias  Gopal
Das being known to P.W.7, there is no reason to  disbelieve  their  version.
Therefore,  the  involvement  and  the  extent  of  participation   by   the
appellants has been sufficiently established by  the  prosecution  with  the
required evidence.


As far as the injuries sustained by the deceased as well as P.Ws.8  and  11,
the High Court has noted specifically about the injuries  as  was  noted  by
P.W.9 in the Post Mortem report, which was inflicted on the deceased at  the
time of the occurrence which when compared with the oral evidence spoken  to
by P.W.8, the High Court has found that the  same  fully  tallied  with  the
oral evidence of P.W.8. In paragraph  14,  the  High  Court  has  noted  the
various injuries and the evidence of P.W.8 in support of the said injuries.


Similarly in paragraphs 15 and 16,  the  High  Court  has  referred  to  the
injuries sustained by P.Ws.8 and 11, which were spoken  to  by  P.W.12,  who
attended on them and has found that the evidence of P.Ws.8 and 11 was  fully
corroborated by the medical evidence and thus there was no  scope  to  doubt
their version as to the manner in which the injuries were inflicted  on  the
deceased as well as the injured P.Ws.8 and  11.   Thus,  we  find  that  the
appreciation of evidence  of  the  eye  witnesses  account,  the  supporting
version of the other witnesses read along with the expert  medical  opinion,
again supported by the Post Mortem report and the injury  report,  there  is
no reason to take a different view than what has been taken by the  Division
Bench in the impugned judgment.


When we consider the submission of the appellants, in the  first  place,  it
was contended that the participation of the five accused was not  duly  made
out.  As far as the said contention is concerned, we have noted  extensively
the evidence both oral as well as documentary to show  as  to  how  all  the
five accused were duly present at the  place  of  occurrence,  in  order  to
attract Section 149 I.P.C. We have also found  that  based  on  the  medical
evidence as well as the injured  eye  witnesses  account  to  show  how  the
appellants  revealed  their  common  object   in   the   course   of   their
participation when the deceased and the  injured  witnesses  were  inflicted
with serious injuries with the aid of deadly weapons and  consequently  none
of the accused could escape from the invocation of  Section  149  I.P.C.  in
the murder of the deceased falling under Section 302 I.P.C. as well  as  the
grievous injuries caused on P.Ws.8 and 11.


The attempt of the learned Senior  Counsel  for  the  appellants  by  making
reference to Exs.7, 1, 8 and 2 wherein, there was  some  omission  to  refer
the names of some of the appellants, are  so  trivial  as  compared  to  the
overwhelming evidence both oral as well as documentary to  reject  the  said
contention.  Though the  learned  senior  counsel  attempted  to  show  some
contradiction in the evidence of P.Ws.1, 7, 8 and 11,  having  gone  through
the evidence in detail and the appreciation made by the  Division  Bench  of
the High Court, we find no serious dent in the evidence of  those  witnesses
which was otherwise supported by the expert medical evidence in the form  of
oral version of P.Ws.9 and 12 supported by injury  report  and  post  mortem
report.  We are not therefore persuaded to take a different view  than  what
has been taken by the  High  Court.   Since  the  Trial  Court  doubted  the
presence of all the accused and had proceeded to hold only  as  against  the
accused-Ashok Das alias Gopal Das by relying upon  the  specific  overt  act
alleged  against  him,  while  the  evidence  rendered  on  behalf  of   the
prosecution fully establish the participation of  all  the  accused  in  the
offence, we are convinced that the principles laid  down  in  the  decisions
referred to and relied upon by the learned counsel  for  the  appellants  in
such situations did show that the conclusions drawn by  the  Division  Bench
in the impugned judgments was fully justified and it has  duly  applied  the
principles set  out  in  the  decision  reported  in  Ajit  Savant  Majagvai
(supra). In paragraph 16 of the said judgment this Court has spelt  out  the
principles while hearing an appeal by the High Court against  the  order  of
acquittal passed by the trial Court, as to in what manner  the  appreciation
of evidence could be made and the conclusions can be drawn.


That apart, we find the  decisions  relied  upon  by  the  learned  standing
counsel for the State as reported in Rotash  (supra)  and  Mritunjoy  Biswas
(supra) duly supported the submissions. In the decision reported  in  Rotash
(supra), in paragraph 14, this Court has held as under:


“14. The first information report, as is well known, is not an  encyclopedia
of the entire case. It need  not  contain  all  the  details.  We,  however,
although did not intend to ignore the importance of naming of an accused  in
the first information report, but herein we  have  seen  that  he  had  been
named in the earliest possible opportunity. Even  assuming  that  P.W.1  did
not name him in the first information report, we do not find any  reason  to
disbelieve the statement of Mooli Dev, P.W.6. The question is as to  whether
a person was implicated by way of an afterthought  or  not  must  be  judged
having regard to the  entire  factual  scenario  obtaining  in  the  case……”
(Emphasis added)





In the decision reported in Mritunjoy Biswas (supra) in  paragraphs  22  and
23, this Court by referring to the earlier decisions  has  noted  the  legal
principles as to how a person not named in the F.I.R when proceeded  against
can be considered.  Paragraphs 22 and 23 can  be  usefully  referred,  which
are as under:-


“22. In Mulla v. State of U.P. the accused persons were  not  named  in  the
FIR. Taking into consideration the material brought  on  record,  the  Court
observed that though none was named in the FIR, yet subsequently  the  names
of the appellants had come into light during investigation and, hence,  non-
mentioning the names of the accused  persons  would  not  be  fatal  to  the
prosecution case.


23. In Ranjit Singh v. State of M.P. , after referring  to  the  authorities
Rotash, Rattan Singh v. State of H.P., Pedda  Narayana  v.  State  of  A.P.,
Sone Lal v. State of U.P.,  Gurnam  Kaur  v.  Bakshish  Singh  and  Kirender
Sarkar v. State of Assam, the Court opined that:  (Ranjit  Singh  case,  SCC
p.344, para 14)


“14….in case the informant fails to name a particular accused  in  the  FIR,
and the said accused  is  named  at  the  earliest   opportunity,  when  the
statements of witnesses are recorded, it cannot tilt the balance  in  favour
of the accused.”


   (Emphasis added)





When we apply the above principles  to  the  facts  of  this  case,  we  are
convinced that the  implication  of  all  the  five  accused  was  perfectly
justified and was supported by legal  evidence  as  was  spoken  to  by  the
relevant witnesses which was duly  corroborated  by  the  medical  evidence.
Therefore, mere non mentioning of two of the names in the  F.I.R  cannot  be
fatal to the case of the prosecution.


As far as the submission made on the ground that some of  the  weapons  were
not recovered,  expert  opinion  relating  to  blood  stain  and  the  delay
involved in forwarding the F.I.R to the Magistrate, non examination  of  the
person who accompanied P.W.7, the hostility displayed by P.W.10,  where  all
though sought to be relied upon heavily on behalf of the  accused,  we  find
that those facts do not materially affect the case of the prosecution.


In so far as the alleged delay in forwarding the F.I.R  to  the  Magistrate,
we find that the High Court was conscious of the said fact and  has  made  a
specific reference to  the  said  fact  in  paragraph  24  of  the  impugned
judgment wherein, it ultimately held that there was no  material  on  record
to show or suggest that the F.I.R was tampered or it  was  fabricated  at  a
later date by antedating it or the delay in sending the F.I.R  by  P.W.3  or
the delay in placing it before SDJM by the Sub Inspector of  Police  or  the
delay in signing the F.I.R by SDJM on 06.04.1996 was so very vital to  doubt
the case of the prosecution.  We fully concur with the said  view  expressed
by the Division Bench.


Having regard to our above conclusion, we do  not  find  any  merit  in  the
appeals, the appeals fail and the same are dismissed.


Having regard to the able assistance rendered by the learned  Amicus  Curiae
Mr. Anup Kumar, we recommend a fee of Rs.10,000/- to be paid to him.





                                                 ……………………………………………………………….J.


                                          [Fakkir Mohamed Ibrahim Kalifulla]











                                                 ………….………………………………………………….J.


                                                          [Uday Umesh Lalit]


New Delhi


January 06, 2016

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