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
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
