Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

C RIMINAL APPEAL NO.2 4 4 OF 20 09

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

1.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.

2.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

Crl.A No.244/2009 & Crl.A No.1523/2015 1

Page 2 numbering five, each one of them armed with deadly weapons ob -

structed them and when the three persons tried to escape, the ac-

cused 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 motor -

cycle 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.

3.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 de -

ceased 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

Crl.A No.244/2009 & Crl.A No.1523/2015 2

Page 3 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 Labora-

tory and the report received therefrom.

4.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 wear -

ing apparels of the first accused was recovered which was stained

with blood, but the same was not sent for chemical analysis.

5.The appellants were charged for the offences under Sections 147,

148, 341, 326, 307, 302 r/w Section 149 I.P.C. The accused de -

Crl.A No.244/2009 & Crl.A No.1523/2015 3

Page 4 nied 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 punish-

ment to run concurrently.

6.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

Crl.A No.244/2009 & Crl.A No.1523/2015 4

Page 5 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 acquit-

ted 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 sepa-

rate 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.

7.We heard Mr. Ratnakar Dash, learned Senior Counsel for the appel-

lants in Crl.A.No.244 of 2009, Mr.Anup Kumar, learned Amicus Cu -

riae for the appellant in Crl.A.No.1523 of 2015 and we also heard

Mr. Ashok Panigrahi, learned counsel for the respondent State.

8.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 wit-

nesses, their evidence did not support the case of the prosecution

for invoking Section 149 of I.P.C.

Crl.A No.244/2009 & Crl.A No.1523/2015 5

Page 6 9.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 Se-

nior 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 par-

ticular, the appellants for whom he appeared, in a consistent man-

ner 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 conse -

quently, 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.

10.Mr. Anup Kumar, learned Amicus Curiae for the appellant in Cr-

l.A.No.1523 of 2015 in his submissions contended that he was al -

Crl.A No.244/2009 & Crl.A No.1523/2015 6

Page 7 leged 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 prose -

cution; 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.

11.As against the above submissions of the learned counsel for the

accused, the learned standing counsel for the respondent State ar-

gued 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 involve-

ment of A1 to A4 and accused-Ashok Das alias Gopal Das along

with two others was specifically mentioned by P.W.1 in his com -

plaint, 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

Crl.A No.244/2009 & Crl.A No.1523/2015 7

Page 8 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 .

12.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.

13.While discussing about the various contentions raised on behalf

of the appellants, since we are concerned with the conviction im-

posed on the appellants, for the offence under Section 302 I.P.C.

Crl.A No.244/2009 & Crl.A No.1523/2015 8

Page 9 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”.

14.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 per-

sons, 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 neces-

sary that there must be specific overt act played by each of the

member of such an unlawful assembly in the commission of an of -

fence. What is required to be shown is the participation as a mem-

ber 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

Crl.A No.244/2009 & Crl.A No.1523/2015 9

Page 10 member of an unlawful assembly, the offence, as stipulated in Sec-

tion 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 descrip-

tion 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.

15.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 elec-

tions. 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

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Page 11 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. Ac -

cording 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 hold-

ing 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 an-

other blow with the bhujali, the deceased stated to have attempted

to catch hold of the bhujali and sustained injuries on his left hand.

16.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

Crl.A No.244/2009 & Crl.A No.1523/2015 11

Page 12 crossing that side along with one Debendra Padhi who was not ex -

amined. 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.

17.It must be stated that P.Ws.8 and 11 while undergoing treat -

ment at the hospital, immediately after the occurrence viz., be -

tween 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 infor-

mation 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 imme-

diate statement of P.W.8, disclose the specific mention of A1, A3

and accused-Ashok Das alias Gopal Das and the serious injuries in-

flicted by accused-Ashok Das alias Gopal Das on the deceased as

well as P.Ws.8 & 11. Similarly, in the immediate statement of

Crl.A No.244/2009 & Crl.A No.1523/2015 12

Page 13 P.W.11, he specifically referred to the names of A1, A3 and ac -

cused-Ashok Das alias Gopal Das and the manner in which the in -

juries were inflicted upon them.

18.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. Hav-

ing regard to the motive related to which the appellants stated to

have nurtured a grievance which resulted in the assault on the de-

ceased and P.Ws.8 and 11 and all of whom being known to the in -

jured 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.

19.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 in-

juries 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

Crl.A No.244/2009 & Crl.A No.1523/2015 13

Page 14 P.W.8. In paragraph 14, the High Court has noted the various in -

juries and the evidence of P.W.8 in support of the said injuries.

20.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 man-

ner 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.

21.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 docu-

mentary 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

Crl.A No.244/2009 & Crl.A No.1523/2015 14

Page 15 their common object in the course of their participation when the

deceased and the injured witnesses were inflicted with serious in-

juries 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.

22.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 triv-

ial as compared to the overwhelming evidence both oral as well as

documentary to reject the said contention. Though the learned se-

nior 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

Crl.A No.244/2009 & Crl.A No.1523/2015 15

Page 16 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.

23.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 ig-

nore 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 as-

suming that P.W.1 did not name him in the first informa-

tion report, we do not find any reason to disbelieve the

statement of Mooli Dev, P.W.6. The question is as to

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Page 17 whether a person was implicated by way of an after -

thought or not must be judged having regard to the en -

tire factual scenario obtaining in the case …… ” (Emphasis

added)

24.In the decision reported in Mritunjoy Biswas (supra) in para-

graphs 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 ma -

terial 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., Gur-

nam 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 wit-

nesses are recorded, it cannot tilt the balance in favour

of the accused.”

(Emphasis added)

25.When we apply the above principles to the facts of this case, we

are convinced that the implication of all the five accused was per-

Crl.A No.244/2009 & Crl.A No.1523/2015 17

Page 18 fectly 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.

26.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 hostil -

ity 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.

27.In so far as the alleged delay in forwarding the F.I.R to the Mag-

istrate, 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.

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Page 19 28.Having regard to our above conclusion, we do not find any merit

in the appeals, the appeals fail and the same are dismissed.

29.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

Crl.A No.244/2009 & Crl.A No.1523/2015 19