RATTIRAM & ORS. ETC.versusSTATE OF M.P. THROUGH INSPECTOR OF POLICE

                 [2013] 2 S.C.R. 1003


                  RATTIRAM & ORS. ETC.                             A
                               v.
   STATE OF M.P. THROUGH INSPECTOR OF POLICE
                          ETC.
         (Criminal Appeal No. 223 of 2008 etc.)
                                                                   B
                       APRIL 18, 2013
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

    PENAL CODE, 1860
                                                                   c
     s.3021149 - Victim stated to have been assaulted by a
number of accused resulting in his death - Conviction - Held:
The evidence establishes that five of the accused assaulted
the deceased - One of them died before filing of the appeals
- Conviction and sentence of life imprisonment of the
                                                                   0
remaining four is upheld - As far other accused persons are
concerned, there are contradictory statements leading to      a
reasonable doubt with regard to their presence at the place
of occurrence and assaulting the deceased - They are
accordingly acquitted - Evidence - Contradictory statements        E
of witnesses.
     CODE OF CRIMINAL PROCEDURE, 1973:

     s. 157 - Sending of special report to Magistrate - Held:
When there is delayed despatch of FIR, it is necessary on the      F
part of prosecution to give an explanation for delay -
However, if court is convinced as to truthfulness of prosecution
version and trustworthiness of its witnesses, delay in despatch
of FIR may not be regarded as detrimental to prosecution
case- In the case at hand, the evidence cannot be thrown
overboard as the version of witnesses deserves credence.           G

    The appellants alongwith three others were
prosecuted for causing the death of one 'D'. The case of
the prosecution was that on 29.9.1995 at about 11 p.m.
                         1003                                      H
    1004       SUPREME COURT REPORTS                        [2013f 2 S.C.R.

A when PWs.5,6,7 and 12 alongwith 'D' were at a shop to
  purchase medicine for PW.5, all the accused surrounded
  'D', attacked him and caused his death. The trial court
  convicted accused 'M' u/ss.148 and 302 IPC and the
  remaining accused u/ss.147 and 302 read with s.149 IPC,
B and sentenced all of them to imprisonment for life. On
  appeal, the High Court acquitted accused 'G' and upheld
  the conviction and sentence of the other accused.
  Accused 'Chh' had died during pendency of appeal
  before High Court and appellant 'B' died after the instant
c appeals were filed. The appeals were referred to a three-
  Judge Bench which answered the reference*.

       It was contended for the appellants that the finding
  of the trial court as accepted by the High court that all the
  accused had assaulted the deceased was founded
D absolutely on non-appreciation of the evidence; and that
  non-compliance of s.157 Cr.P .C. vitiated the trial.
          Allowing the appeals in part, the Court
        HELD: 1.1. The High Court in one line has stated that
E considering the overall evidence on record it could be
  said that barring accused 'G' all the other accused
  persons were present and they jointly assaulted the
  deceased. The concurrence of the High Court is bereft
  of any scrutiny of evidence. On a studied evaluation of
F the evidence on record, it is evident that accused 'Chh'
  exhorted and he along with accused 'Oh', 'M', 'B' and 'GD'
  assaulted the deceased. There is ample evidence on
  record to safely conclude that they formed an unlawful
  assembly and there was common object to assault the
G •
      It has been held in Rattiram & Ors. vs. State of M.P. Through Inspector of
         Police etc. 2012 (3) SCR 496 = 2012(4) SCC 516 that Mo/y and Another v.
         State of Kera/a 2004 (3) SCR = AIR 2004 SC 1890 and Vidyadharan v.
         State of Kera/a 2003 (5) Suppl. SCR 524 = (2004) 1 SCC 215 did not noted
         the decision in State of M.P. v. Bhooraji & Ors. 2001 (2) Suppl. SCR 128 =
         2001 AIR 3372, and as such, Moly and Vidyadharan are per incurium and
H        the view therein regarding retrial is overruled.
  RATIIRAM & ORS. ETC. v. STATE OF M.P. THROUGH 1005
           INSPECTOR OF POLICE ETC.
eventually, succumbed to the injuries inflicted in the         A
assault. There is clear cut evidence of their involvement
and PW-5 and PW-12 have categorically spoken about
their overt acts. Therefore conviction and sentence of
appellants 'Oh', 'M', 'B' and 'GD' is affirmed. [para 11, 19
and 22] [1012-G-H, 1013-A-B; 1016-D-E; 1018-D]                 B

     1.2. As far as other accused are concerned, there are
material contradictions about their presence at the place
of occurrence and assaulting the deceased. From t~e
appa'rent contradictions in the depositions of PW-5 and        C
PW-12, it seems that they have implicated the other
accused in the crime. Thus, their involvement in any overt
act is not proven by the prosecution. Therefore, the view
of the trial court which has been concurred with by the
High Court that all the accused persons had assaulted
the· deceased, can not be accepted. [para 11 and 19]           D
[1013-B-C; 1016-E-G]
    Baladin and Others v. State of Uttar Pradesh AIR 1956
SC 181; Masalti v. State of Uttar Pradesh 1964 SCR 133    =
AIR 1965 SC 202; Lalji v. State of Uttar Pradesh 1989 (1)      E
SCR 130 = (1989) 1 SCC 437; Bhargavan and Others v. State
of Kera/a 2003 (5) Suppl. SCR 535 = (2004) 12 SCC 414;
Debashis Daw and Others v. State of West Bengal 2010 (9)
SCR 654 = (2010) 9 SCC 111; Akbar Sheikh v. State of W
B. 2009 (7) SCR 518        =   (2009) 7 sec 415 and            F
Ramachandran and Others v. State of Kera/a 2011 (13)
SCR 923 = (2011) 9 SCC 257 • referred to.
      1.3. It is borne out in the evidence that the deceased
 was involved in many criminal offences and there was
 some bad blood between the accused persons and the            G
 deceased. In such a situation it is not unusual to
 implicate some more persons as accused along with the
.real assailants. [para 19] [1017-A-B]

                                                               H
    1006   SUPREME COURT REPORTS             [2013) 2 S.C.R.


A      1.4. Regard being had to the totality of the evidence
  on record, filtering the evidence of PW-5 and PW-12 and
  on studied evaluation thereof, it is not safe to hold that
  the accused-appellants 'R', 'K', 'RR' and 'S' were present
  at the spot and, therefore, it will be inappropriate to
B record a conviction against them with the aid of s. 149
  IPC as there is a reasonable doubt about their presence
  at the scene of occurrence. They are, accordingly,
  acquitted. [para 20-22] [1017-C-D; 1018-E-F]
      , 2. As regards non-compliance of s.157 Cr.PC, suffice
C it to say that when there is delayed despatch of the FIR,
    it is necessary on the part of the prosecution to give an
    expianation for the delay. The purpose behind sending
  . a copy of the FIR to the magistrate is to avoid any kind
    of suspicion being attached to the FIR. If the court is
D convinced as regards the truthfulness of the prosecution
    version and trustworthiness of the witnesses, the delay
    despatch of FIR may not be regarded as detrimental to ·
    the prosecution case. It would depend on the facts and
    circumstances of the case. In the case at hand, the
E evidence cannot be thrown overboard as the version of
    the witnesses deserves credence. [para 21] [1017-E and
    G-H; 1018-A-C]
       Gangula Ashok and Another v. State of Andhra Pradesh
F---2000 (1) SCR 468 =AIR 2000 SC 740 - referred to.
                       Case Law Reference:
    2000 (1) SCR 468           referred to             para 5
G 2004 (3) SCR 346             held per                para 5
                               incurium and
                               stood overruled
    2003 (5) Suppl. SCR 524    held per incurium   para 5
                               and stood overruled
H
 RATIIRAM & ORS. ETC. v. STATE OF M.P. THROUGH 1007
          INSPECTOR OF POLICE ETC.
 2001 (2) Suppl. SCR 128       referred to       para 5         A

 2012 (3) SCR 496              referred to       para 6
 AIR 1956 SC 181               referred to       para 13
 1964 SCR 133                  referred to       para 14        B
 1989 (1) SCR 130              referred to       para 15
 2003 (5) Suppl. SCR 535       referred to       para 16
 2010 (9) SCR 654              referred to       para 17
                                                                c
 2009 (7) SCR 518              referred to       para 17
 2011 (13) SCR 923             referred to       para 18

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 223 of 2008.                                                D
    From the Judgment and Order dated 12.03.2007 of the
High Court of Judicature, Madhya Pradesh at Jabalpur in
Criminal Appeal No. 1568 of 1996.
                              WITH                              E
Crl.A.No. 458 of 2008.

     Fakhruddin, Raj Kishor Choudhary, Surya Kamal Mishra,
Arishul Chandra, T. Mahipal, Anis Ahmed Khan, Shoaib Ahmad
Khan for the Appellants.                                        F

    Vibha Datta Makhija for the Respondent.

    The Judgmet of the Court was delivered by

     DIPAK MISRA, J. 1. In these two appeals assail is to the   G
judgment of conviction and order of sentence passed by the
Division Bench of the High Court of Judicature, Madhya
Pradesh at Jabalpur, in Criminal Appeal No. 1568 of 1996
whereby the High Court concurred with the judgment of
                                                                H
    1008     SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A conviction and order of sentence passed by the learned
  Additional Sessions Judge, Sagar, in Sessions Trial No. 97 of
  1995, except in respect of one Gorelal, Appellant No. 2 before
  the High Court and Accused No. 2 before the trial court, wherein
  the present appellants along with Gorelal stood convicted for
B offences under Section 302 read with Section 149 Indian Penal
  Code and other offences and sentenced to imprisonment for
  life with fine of Rs.1000/-, in default of payment of fine, to further
  undergo rigorous imprisonment for three months.

C        2. The factual score, as depicted, is that on 29.9.1995,
    deceased Dhruv @ Dau lat along with Ashok Kumar,. PW-5,
    Dheeraj, PW-6, Naresh, PW-7, and Leeladhar, PW-12, was
    returning home about 11.00 p.m. after attending a wrestling
    event which was organised at "Kher Mata" (temple) in
    Makronia, a village in the district of Sagar. As Ashok Kumar,
D   PW-5, complained of pain in the stomach, all of them went to
    the shop of Gorelal for purchasing madicine and when they
    reached the shop, all the accused persons coming from the
    house of Chhotelal surrounded deceased Daulat and started
    assaulting him and despite the beseeching and imploring by
E   the companions the accused persons continued the assault, as
    a result of which the deceased fell unconscious. As the
    prosecution story proceeds, he was tak~n to the hospital and,
    eventually, succumbed to his injuries. On an FIR being lodged,
    the criminal law was set in motion and after investigation the
F   appellants were charge-sheeted under Section 3(1)(x) of the-
    Scheduled Castes and the Scheduled Tribes (Prevention of
    Atrocities) Act, 1989 (for short "the Act"), but, eventually,
    charges were framed under Sections 147, 148 and 302 read
    with Section 149 IPC. The accused persons pleaded innocence
G   and false implication and claimed to be tried.

        3. The prosecution, in order to establish its case,
    examined 13 witnesses and exhibited number of documents.
    The defence chose not to adduce any evidence.

H
     RATIIRAM & ORS. ETC. v. STATE OF M. P. THROUGH 1009
       INSPECTOR OF POLICE ETC. [DIPAK MISRA, J.]
     4. The learned trial Judge, appreciating the evidence on       A
record, came to hold that the prosecution had brought home
the charges against accused, Mohan, under Sections 148 and
302 IPC and against the remaining accused persons under
Sections 147 and 302 IPC read with Section 149 IPC and
apart from imposing separate sentences under Section 147            B
IPC sentenced each of them to suffer imprisonment for life as
stated hereinbefore.

      5. Being dissatisfied with the judgment of conviction, the
appellants along with others preferred a singular criminal          C
appeal. In appeal, apart from raising various contentions on
merits, it was submitted that the entire trial was vitiated as it
had commenced and concluded without committal of the case
to the Court of Session by the competent court inasmuch as
the Sessions Court could not have directly taken cognizance
of the offence under the Act without the case being committed       D
for trial. To bolster the said contention reliance was placed on
Gangu/a Ashok and Another v. State of Andhra Pradesh1,
Moly and Another v. State of Kerala 2 and Vidyadharan v. State
of Kerafa 3• The High Court relied on decision in State of M. P.
v. Bhooraji & Ors4. and treated it to be a binding precedent        E
and declined to set aside the conviction or remit the matter for
de novo trial. The High Court proceeded to deal with the
appeals on merits and came to hold that except accused
Gorelal all other accused persons were present on the scene
of occurrence and had participated in the assault and,              F
accordingly, maintained the conviction and sentence in respect
of other accused persons and acquitted appellant No. 2 before
the High Court.

     6. For the sake of completeness, it is necessary to state      G
that when the matter was listed before a two-Judge Bench, it
1. AIR 2000 SC 740.
2. AIR 2004 SC 1890.
3.    (2004) 1 sec 21 s.
4.    AIR 2001 SC 3372.                                             H
    1010      SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A was noticed that there was a conflict between two lines of
  judgment of this Court and, accordingly, referred the matter to
  the larger Bench. The three-Judge Bench noticed that the real
  conflict or discord was manifest between Moly and Another
  (supra), Vidyadharan (supra) on one hand and Bhooraji & Ors.
B (supra) on the other and after due deliberation in Rattiram and
  others v. State of Madhya Pradesh through Inspector of
  Police5, came to hold as follows: -

          "66. Judged from these spectrums and analyzed on the
          aforesaid premises, we come to the irresistible conclusion
c         that the objection relating to non-compliance of Section 193
          of the Code, which eventually has resulted in directly
          entertaining and taking cognizance by the Special Judge
           under the Scheduled Castes and the Scheduled Tribes
          (Prevention of Atrocities) Act, 1989, does not vitiate the
D         trial and on the said ground alone, the conviction cannot
          be set aside or there cannot be a direction of retrial and,
          therefore, the decision rendered in Bhooraji (supra) lays
          down the correct law inasmuch as there is no failure of
          justice or no prejudice is caused to the accused.
E
          67. The decisions rendered in Moly (supra) and
          Vidyadharan (supra) have not noted the decision in
          Bhooraji (supra), a binding precedent, and hence they are
          per incuriam and further, the law laid down therein,
F         whereby the conviction is set aside or matter is remanded
          after setting aside the conviction for fresh trial, does not
          expound the correct proposition of law and, accordingly,
          they are hereby, to that extent, overruled."

       7. As the controversy on the said score has been put to
G rest, we are presently required to advert to the merits of the
  appeal. At this juncture, we may state that Chhotelal died after
  pronouncement of the decision in appeal by the High Court and
  Babulal has expired during the pendency of the appeal before
H   5.   c2012) 4 sec s1e.
 RATIIRAM & ORS. ETC. v. STATE OF M. P. THROUGH 1011
   INSPECTOR OF POLICE ETC. [DIPAK MISRA, J.]
this Court and, therefore, the appeal, as far as Babulal is         A
concerned, stands abated.

     8. Mr. Fakhruddin, learned senior counsel for the appellants
in Criminal Appeal No. 223 of 2008, has contended that the
finding by the trial court which has been accepted by the High
                                                                  8
Court that all the accused persons had assaulted is founded
on absolutely non-appreciation of evidence inasmuch as there
is nothing to implicate them in any of the overt acts. It is his
alternative submission that all the accused were not present at
the scene of occurrence and, therefore, the conviction in aid of C
Section 149 IPC of all the appellants herein is wholly
unsustainable.

      9. Mr. Anis Ahmed Khan, learned counsel appearing for
the appellants in Criminal Appeal No. 458 of 2008, has
submitted that there has been delay in lodging the FIR and          D ,
further copy of the report had not been sent to the Magistrate
as required under Section 157 of the Code and, therefore, the
trial is vitiated. It is also his submission that due to previous
animosity the informant has tried to rope in number of persons
though they had no role to play in the commission of the crime      E
in question and, hence, they deserve to be acquitted.

      10. Per contra, Ms. Vibha Dutta Makhija, learned counsel
for the State, would contend that there is evidence implicating
all the accused persons in the assault and even assuming no
overt act is attributed to them, they were a part of the unlawful   F
assembly being aware of the common object of assault and,
hence, the conviction under Section 149 IPC does not warrant
any interference.

     11. First, we shall advert to the issue whether all the G
accused persons had participated in the assault or not. Be it
noted, the learned trial Judge as well as the High Court has
taken into consideration that Ext. P-7, the FIR and relied on the ·
testimony of PW-5, Ashok Kumar and PW-12, Leeladhar, to
record a finding that all the accused persons had assaulted the H
    1012    SUPREME COURT REPORTS                (2013] 2 S.C.R.


A deceased. On a perusal of the FIR, it is seen that the allegation
   against Ramesh, Kanchedi, Babulal, Ramcharan and Rattiram
   is that they came with lathis to assault the deceased. There is
   mention in the FIR that Kanchedi Kurmi hit the deceased with
  a big piece of stone and Ramcharan Kurmi hit with a stick. The
B accused Babulal, Rattiram, Satyanarayan and Ramesh gave
  blows with fists and kicks. In the FIR it has been mentioned that
   Chhotelal exhorted to kill the deceased and Dhaniram Kurmi,
   Govardhan Kurmi, Badri Kurmi and Mohan Kurmi assaulted
   and specific overt acts have been attributed to them. Ashok
c Kumar, PW-5 in examination-in-chief has deposed that
  Dhaniram hit Daulat on the head with a stick, Mohan gave a
  blow on the head with a sword and Badri and Govardhan hit
   him on the back and hand. Thereafter, he has proceeded to
   depose that rest of the accused gave fists and kick blows. In ·
  the cross-examination, this witness, who had lodged the FIR,
0
   has stated that accused Chhotelal, Kanchedi, Ramcharan,
   Ramesh and Gorelal did not possess sticks. Thus, he has not
  stated that Kanchedi hit with a big stone. Leeladhar, PW-12,
  has stated about the exhortation made by Chhotelal and the ·
  blows given by Dhaniram and Mohan. As far as Chhotelal,
E Babulal, Satyanarayan, Rattiram and Gorelal are concerned, he
  has stated that they hit the deceased with their feet and
  clenched fists. In the cross-examination he has deposed that
   Babula! was not present at the place of occurrence. He has also
  stated that Daulat did not sustain any lathi blow on his legs. He
F has admitted that some persons were unarmed. Dheeraj, PW-
  6, and Naresh, PW-7, who were cited as eye-witnesses, have
  turned hostile. The learned trial Jadge, as is evident from the
  judgment, has not adverted to this facet and reached the
  conclusion that all the accused persons were armed and had
G assaulted the deceased. The High Court in one line has stated
  that considering the overall evidence on record it could be said
  that barring Gorelal all the other accused persons were present
  and jointly assaulted the deceased. The concurrence of the High
  Court, we may respectfully state, is bereft of any scrutiny of
H evidence. On a studied evaluation of the evidence on record,
  RATTIRAM & ORS. ETC. v. STATE OF M. P. THROUGH 1013
    INSPECTOR OF POLICE ETC. [DIPAK MISRA, J.]
we are of the considered opinion that Chhotelal exhorted and        A
he along with Dhaniram, Mohan, Badri and Govardhan
assaulted the deceased. We are disposed to think so because
there is clear cut evidence of their involvement and PW-5 and
PW-12 have categorically spoken about their overt acts
whereas as far as others are concerned, there are material          B
contradictions about their assaulting the deceased. Thus, their
involvement in any overt act is not proven by the prosecution
and, therefore, we are unable to accept the view of the learned
trial Judge which has been concurred with by the High Court
that all the accused persons had assaulted the deceased.            c
       12. The next limb of submission relates to justifiability of
conviction of all the accused persons in aid of Section 149 IPC.
The learned trial Judge has held that all the accused persons
were present and had assaulted the deceased. The High Court
has opined that there is no evidence against the appellant D
Gorelal. Ms. Makhija, learned counsel for the State would
contend that there is ample material that the accused-
appellants were present at the place of occurrence and their
common object is clear from the facts and circumstances-that ·
they shared the common object to assault the deceased and E
they were in know of the act to be done. Elaborating the same,
it is urged by her that it is not a case where the accused persons
were just bystanders but, in fact, came with others being aware
that some of the accused persons were carrying lathis amd
Mohan was carrying a sword .. Mr. Fakhruddin and Mr. Anis F
Ahmed Khan, learned counsel for the appellants, per contra,
would vehemently urge that the prosecution has really not
proven, barring the people who were involved in the assault,
that the other accused persons were really present and further
assuming that they were present, their mere presence would G
not attract the concept of common object as engrafted under
Section 149 IPC.                                              ·

     13. Before we proceed to analyse the evidence on this
score, we think it appropriate to refer to certain pronouncements   H
     1014     SUPREME COURT REPORTS                 [2013) 2 S.C.R.

A pertaining to attractability of Section 149 IPC. In Baladin and
  others v. State of Uttar Pradesh6 , a three-Judge Bench has
  opined as follows: -
          "It is well settled that mere presence in an assembly does
          not make such a person a member of an unlawful assembly
B
          unless it is shown that he had done something or omitted
          to do something which would make him a member of an
          unlawful assembly, or unless the case falls under section
          142, Indian Penal Code."
C      14. The dictum in the aforesaid case was considered by
  a four-Judge Bench in Masalti v. The State of Uttar Pradesh7 ,
  wherein the Bench distinguished the observations made in the
  case of Baladin (supra) on the ground that the said decision
  must be read in the context of special facts of that case and
D may not be treated as laying down an unqualified proposition
  of law. The four-Judge Bench, after explaining the said
  decision, proceeded to lay down as follows: -
          "It would not be correct to say that before a person is held
          to be a member of an unlawful assembly, it must be shown
E
          that he had committed some illegal overt act or had been
          guilty of some illegal omission in pursuance of the
          common object of the assembly. In fact, S. 149 make it
          clear that if an offence is committed by any member of an
          unlawful assembly in prosecution of the common object of
F         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; and that emphatically brings out the
G         principle that the punishment prescribed by S. 149 is in a
          sense vicarious and does not always proceed on the basis
          that the offence has been actually committed by every
          member of the unlawful assembly."
    6.   AIR 1956 SC 181.
H   7.   AIR 1965 SC 202.
 RATTIRAM & ORS. ETC. v. STATE OF M. P. THROUGH 1015
   INSPECTOR OF POLICE ETC. [DIPAK MISRA, J.]
     15. In Lalji v. State of U.P8. it has been observed that        A
common object of the unlawful assembly can be gathered from
the nature of the assembly, arms used by them and the
behaviour of the assembly at or before scene of occurrence. It
is an inference to be deduced from the facts and circumstances
of each case.                                                        B

     16. In Bhargavan and Others v. State of Kera/a 9 it has
been held that it cannot be laid down as general proposition
of law that unless an overt act is proved against a person who
is alleged to be a member of an unlawful assembly, it cannot         C
be said that he is a member of an assembly. The only thing
required is that he should have understood that the assembly
was unlawful and was likely to commit any of the acts which fall
within the purview of Section 141 IPC. The Bench emphasised
on the word "objecf' and proceeded to state that it means the
purpose or design and, in order to make it "common", it must         D
be shared by ali.

     17. In Debashis Daw and Others v. State of West
Benga/1°, this Court, after referring to the decision in Akbar
Sheikh v. State of WB. 11, observed that the prosecution in a        E
case of such nature is required to establish whether the
accused persons were present and whether they shared a
common object.

    18. In Ramachandran and Others v. State of Kera/a 12, this
Court has opined thus:.-                                             F

     "27. Thus, this Court has been very cautious in a catena
     of judgments that where general allegations are made
     against a large number of persons the court would
     categorically sarutinise the evidence and hesitate to convict   G
8. (1989) 1 sec 437.
9. (2004) 12 sec 414.
10. c2010) 9 sec 111.
11. (2009) 1sec415.
12. (1989) 1 sec 437.                                                H
    1016    SUPREME COURT REPORTS                  [2013) 2 $.C.R.


A       the large number of persons if th~ evidence available on
        record is vague. It is obligatory on the part of the court to
        examine that if the offence committed is not in direct
        prosecution of the common object, it yet may fall under the
        second part of Section 149 IPC, if the offence was such
B       as the members knew was likely to be committed. Further
        inference has to be drawn as to what was the number of
        persons; how many of them were merely passive
        witnesses; what were their arms and weapons. The
        number and nature of injuries is also relevant to be
c       considered. "Common object" may also be developed at
        the time of incident.·

          19. Applying the aforesaid principles, we are required to
    see whether all the appellants were present at the time of
    occurrence. We have already opined that Chhotelal exhorted
D   and other accused persons, namely, Dhaniram, Mohan, Sadri
    and Govardhan had assaulted the deceased and there is ample
    evidence on record to safely conclude that they formed an
    unlawful assembly and there was common object to assault the
    deceased who, eventually, succumbed to the injuries inflicted
E   in the assault. As far as other accused persons, namely,
    Babula!, Satyanarayan, Rattiram, Kanchedi, Ramcharan and
    Ramesh are concerned, there are really co·ntradictory
    statements with regard to the presence of the accused persons
    because PW-12 has stated that Babulal was not present at the
F   place of occurrence. Ashok Kumar, PW-5, has contradicted
    himself about the weapons carried by Kanchedi, Ramcharan,
    Ramesh and Gorelal. Leeladhar, PW-12, has not mentioned
    anything about Ramesh and Govardhan. From the apparent
    contradictions from the depositions of PW-5 and PW-12 it
G   seems that they have implicated Babul.al, Satyanarayan,
    Rattiram, Ramesh and Ramcharan in the crime. As far as
    Govardhan is concerned, PW-5 has clearly stated that he and
    Badri hit Daulat with sticks on the back and the neck. The
    medical evidence corroborates the same. Nothing has been
H   elicited in the cross-examination of PW-5 to discard his
 RATTIRAM & ORS. ETC. v. STATE OF M. P. THROUGH 1017
   INSPECTOR OF POLICE ETC. [DIPAK MISRA, J.]
testimony. It has come out in the evidence of PW-,13 that PW-          A
5 was going along with Babulal, Kanchedi and his brother. We
are referring to the same only to highlight that there is an attempt
to implicate number of persons. It is borne out in the evidence
that the deceased was involved in many criminal offences and
there was some bad blood between the accused persons and               B
the deceased. In such a situation it is not unusual to implicate
some more persons as accused along with the real assailants.

     20. Regard being had to the totality of the evidence on
record, filtering the evidence of PW-5 and PW-12 and on
studied evaluation we are of the considered opinion that it is         C
not safe to hold that the accused-appellants Ramesh, Kanchedi,
Rattiram and Satyanarayan were present at the spot and,
therefore, it will be inappropriate to record a conviction in aid
of Section 149 IPC and we are inclined to think so as we
entertain a reasonable doubt about their presence at the scene         D
of occurrence.

      21. We will be failing in our duty if we do not deal with the
contention of Mr. Khan that when there has been total non-
compliance of Section 157 of the Code of Criminal Procedure, E
the trial is vitiated. On a perusal of the judgment of the learned
trial Judge we notice that though such a stance had been feebly
raised before the learned trial Judge, no question was put to
the Investigating Officer in this regard in the cross-examination.
The learned trial Judge has adverted to the same and opined, F
regard being had to the creditworthiness of the testimony on
record that it could not be said that the FIR, Ext. P-7, was ante-
dated or embellished. It is worth noting that such a contention
was not raised before the High Court. Considering the facts and
circumstances of the case, we are disposed to think that the
finding recorded by the learned trial Judge cannot be found fault G
with. We may hasten to add that when there is delayed
despatch of the FIR, it is necessary on the part of the
prosecution to give an explanation forthe delay. We may further
state that the purpose behind sending a copy of the FIR to the H
    1018       SUPREME COURT REPORTS                [2013] 2 S.C.R.

A concerned magistrate is to avoid any kind of suspicion being
  attached to the FIR. Such a suspicion may compel the court to
  record a finding that there was possibility of the FIR being ante-
  timed or ante-dated. The court may draw adverse inferences
  against the prosecution. However, if the court is convinced as
B regards to the truthfulness of the prosecution version and
  trustworthiness of the witnesses, the same may not be regarded
  as detrimental to the prosecution case. It would depend on the
  facts and circumstances of the case. In the case at hand, on a
  detailed scrutiny of the evidence upon bestowing our anxious
c consideration, we find that the evidence cannot be thrown
  overboard as the version of the witnesses deserves credence
  as analysed before. Thus, this colossal complaint made by Mr.
  Khan pales into insignificance and the submission is repelled.
                            '
           22. In the result, we allow the appeals in part and affirm
D the judgment of conviction and order of sentence recorded
  against the appellants, namely, Dhaniram, Mohan, Sadri and
  Govardhan. Accused Mohan has been released after
  completing fourteer. years of imprisonment on getting the
  benefit of remission under Section 433A of the Code of
E Criminal Procedure. As far as Dhaniram is concerned, he is
  in custody. The accused-appellants, namely, Sadri and
  Govardhan are on bail. Their bail bonds are cancelled and they
  be taken into custody forthwith. The accused-appellants,
  namely, Satyanarayan, Ramesh, Kanchedi and Rattiram are
F acquitted and as they are on bail, they be discharged from their
  bail bonds.

    R.P.                                    Appeals partly allowed.