SUSANTA DAS & ORS.versusSTATE OF ORISSA

                         [2016] l S.C.R. 137



                      SUSANTA DAS & ORS.                                   A
                                   v.
                        STATE OF ORISSA
                  (Criminal Appeal No. 244 of 2009)
                         JANUARY 06, 2016                                  B
       [FAKKIR MOHAMED IBRAHIM KALIFULLA,
               UDAY UMESH LALIT, JJ.]
        Penal Code, 1860: s.302 rlw s.149 and s.326 - Conviction
 under - Prosecution case that on the day of incident, PW8, PWJJ           C
 and deceased were on motorcycle - Appellants five in number armed
 with deadly weapons obstructed their way and when these three
persons tried to escape, chased them and assaulted them with the
 aid of weapons held by them - As a result one died and PW8 and
 PWJJ received injuries - Conviction by courts below - On appeal,
held: Recoveries made at the spot disclose that all the appellants         D
were waiting at the spot - Recovery of weapons from the spot also
proved that the appellants while waiting their shared common object
- Evidence of PW7, 8 and lJ was to the effect that appellants
participated in the crime and all the five of them ran away from the
place of incident after causing severe injuries on the deceased as         E
well as PW8 and PWJJ - There was no doubt about the presence of
all the five appellants at the spot - The involvement and the extent
of participation by the appellants was sufficiently established by
the prosecution - In view of evidence of the eye witnesses, the
supporting version of the other witnesses read along with the expert
medical opinion, again supported by the Post Mortem report and             F
 the injury report, there is no reason to take a view different from the
view taken in the impugned judgment - The implication of all the
five accused was perfectly justified.
      Dismissing the appeals, the Court
      HELD: 1. The motive for the alleged assault is the grudge            G
of the accused-A 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, whiskey bottles etc., to show that they             H
                                137
138              SUPREME COURT REPORTS                    [2016] I S.C.R.


A     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. The evidence of P. W.8 showed
B
      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-A was
      holding a sword; Al was holding a Bhujali and rest of the accused
      were holding cycle chains. On seeing their sudden appearance.
c     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-A
      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-A dealt a sword blow on the
      backside of the head of the deceased, who cried for help.        Al,
D
      stated to have inflicted Bhujali blow on the left scapula of the
      deceased and      when Al 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. [Para 15]
      [145-F-H; 146-A-C]
E
         2. While the accused were thus inflicting injuries on P. W.11,
  P. W.8 made an attempt to flee, when accused-A dealt a sword
  blow on the left chest of P.W.8. When P.W.11, attempted to run
  away, A2 kicked more than thrice and on seeking a Trekker
  moving in that direction, the appellants stated to have ran away,
F which   was noticed by P. W. 7 who was crossing that side along
  with one 'D' who was not examined. In the evidence of P.Ws.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
G 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.
  P. Ws 8 and 11 while undergoing treatment at the hospital,
  immediately after the occurrence informed P.W.l, the uncle of
  the deceased, who reached the hospital. P.W.1 who gathered the
H information from P.Ws.8 and 11 as to how and in what manner
        SUSANTA DAS & ORS. v. STATE OF ORJSSA                          139



and by whom the injuries came to be inflicted, in his complaint        A
made a specific reference to the names of Al, A4 and accused-A
along with two others who were armed with bhnjalis, swords
and cycle chain caused the injuries on the deceased and P.Ws.8
and 11. Similarly, the immediate statements of P. W.8 and P. W.11
disclose the specific mention of Al, A3 and accused-A and the
                                                                       B
serious injuries inflicted by accused-A on the deceased as well
as P.Ws.8 & 11. [Paras 16, 17) [146-D-H; 147-A]
      3. A cumulative consideration of the evidence of P. W s.l,
7, 8 and 11 amply disclose that there were five who were involved
in the occurrence, viz., accused 1 to 4 and apart from the specific
role played by each one of them. Having regard to the motive           c
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-A being known to P. W. 7, there is no reason to
disbelieve their version. Therefore, the involvement and the           D
extent of participation by the appellants has been sufficiently
established by the prosecution with the required evidence.
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   E
view than what has been taken by the Division Bench. 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        F
cannot be fatal to the case of the prosecution. [Paras 18, 20, 25]
[147-B-C; 148-G; 150-A-B)
      4. There was no material to show or suggest that the F.l.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    G
it before SDJM by the Sub-Inspector of Police or the delay in
signing the F.I.R by SDJM was so very vital to doubt the case of
the prosecution. [Para 27) [150-D-E]
      Rotash v. State of Rajasthan (2006) 12 SCC 64: 2006
      (10) Suppl. SCR 264; Mritunjoy Biswas v. Pranab alias            H
140               SUPREME COURT REPORTS                       12016] I S.C.R.


A           Kuti Biswas and Another (2013) 12 SCC 796: 2013 (7)
             SCR 1105; Bishna alias Bhiswadeb Mahato and
            Others v. State of W.B. (2005) 12 SCC 657: 2005 (4)
            Suppl. SCR 892; Ajit Savant Majagvai Vs. State v.
            Karnataka (1997) 7 SCC 110: 1997 (3) Suppl. SCR
            444; Rajendran and Another v. State of T.N. (2004) 10
B
            sec 689 - referred to.
                             Case Law Reference
            2006 (10) Suppl. SCR 264           referred to.     Para 11
            2013 (7) SCR 1105                  referred to.     Para 11
c
            2005 (4) Suppl. SCR892             referred to.     Para 11
            1997 (3) Suppl. SCR 444            referred to.    Para 11
            (2004) 10 sec 689                  referred to.    Para 14
D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
      244 of2009
          From the Judgment and Order dated 15.10.2008 of the High Court
      of Orissa at Cuttack in Government Appeal No. 20 of 1999
                                      WITH
E        Crl. A. No. 1523 of2015
        Ratnakar Dash. Sibo Sankar Mishra, Y. K. Mishra, Niranjan, Anup
      Kumar (A.C.) for the Appellants.
          Ashok Panigrahi, Surajit Bhaduri, Nikhil Yadav for the Respondent.
F        The Judgment of the Court was delivered by:
          FAKKIR MOHAMED IBRAHIM KALIFULLA, J. I. 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
G     the acquittal of accused Nos. I 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 numbering
H     five, each one of them armed with deadly weapons obstructed them and
         SUSANTA DAS & ORS. v. STATE OF ORISSA                               141
        [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

when the three persons tried to escape, the accused chased them and          A
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      B
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.l, the uncle of the deceased, who rushed
to the hospital on hearing the news of the death of the deceased, after.
                                                                              c
gathering the information from P.Ws.8 and ll as to how the deceased
along with the injured eye witnesses were assaulted by the accused,
lodged the F.I.R. (Ex. I) 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 D
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 E
deceased (M.Os.IX & XI). M.0.1 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. I 0 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 LS are the documents in F
support of sending M.Os. to the State Forensic Science Laboratory and
the report received therefrom.
        4. On behalf of the prosecution, P.Ws.l to 14 were examined
and on the side of the defence, D.W.l was examined and Exs.D & D/l
were marked. The accused were arrested on different dates. The first         G
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.                                          H
142               SUPREME COURT REPORTS                          [20161 I S.C.R.


A            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 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
B
      evidence to support the in di vi dual role played by each of the accused
      except accused-Ashok Das alias Gopal Das and consequently while
      acquitting Al 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,
c     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 l.P.C and three years R.I for the
      offence under Section 326 l.P.C. and directed the punishment to run
      concurrently.
D
            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 Al to A4. As stated earlier, the High Court by
      the impugned judgment while reversing the acquittal of A 1 to A4 found
E
      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
F     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.

G           7. 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.
              8. Mr. Ratnakar Dash, learned Senior Counsel for the appellants,
      after taking us through the evidence of P. W s. l, 7, 8, 9, 11 and 13 as well
H
          SUSANTA DAS & ORS. v. STATE OF ORISSA                               143
         [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

as Ex.7/1 and 8/2 and certain other documents and also the conclusions        A
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.
                                                                              B
        9. According to the learned Senior Counsel, though Ex.I, F.I.R
came to be lodged at 5.45 p.m. at the instance of P.W.l, 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        c
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   D
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 Appc:al       E
No.244 of 2009 viz., Al toA4 were rightly acquitted by the Trial Court
giving them the benefit of doubt.
      I 0. Mr. An up 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          F
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., Al and            G
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        "
                                                                              "
144               SUPREME COURT REPORTS                        (2016] I S.C.R.


A     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 A I to
      A4 and accused-Ashok Das alias Gopal Das along with two others was
      specifically mentioned by P.W. l in his complaint, which came to be noted
B
      in the F.I.R (Ex.I) and that in the Section 161 statement of P.W.8 the
      names of Al 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
c     of time, the learned standing counsel contended that the statement of
      P.Ws. l, 8 and the F.I.R amply disclose the involvement of Al, 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
D     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 ofW.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 sec 110.
E            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.
 F           13. 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.PC. 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
G     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
H           as the members of that assembly knew to be likely to be
          SUSANTA DAS & ORS. v. STATE OF ORISSA                                 145
         [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      committed in prosecution of that object, every person who, at             A
      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 persons,           B
which is designated as unlawful assembly under Section 149 LP.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
                                                                                c
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           D
 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
                                                                                E
(supra), wherein, the description contained in Section 149 I.PC 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          F
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            G
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              H
146                SUPREME COURT REPORTS                           [2016] l S.C.R.


A     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; Al 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 l l that accused-Ashok Das alias Gopal Das gave a sword
B
      blow to P.W.8 on his face and when P.W. l l 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. Al, stated to have
      inflicted Bhujali blow on the left scapula of the deceased and when Al
c     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.
              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
D     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 s.7, 8 and 11, it is clearly noted that the appellants participated in the
E     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 l I. Having
      regard to the said evidence, as spoken to by P.Ws.7, 8 and I l, there can
      be no room for doubt about the presence of all the five appellants at the
      place of occurrence.
F             17. 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.l, the uncle of the deceased,
      who reached the hospital. P.W. l who gathered the information from
      P.Ws.8 and 11 as to how and in what manner and by whom the injuries
G     came to be inflicted, in his complaint which he lodged at 5.45 p.m. made
      a specific reference to the names of Al, 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 l l. Similarly, the immediate statement of P. W.8, disclose the specific
      mention of Al, A3 and accused-Ashok Das alias Gopal Das and the
H     serious injuries inflicted by accused-Ashok Das alias Gopal Das on the
          SUSANTA DAS & ORS. v. STATE OF ORISSA                               147
         [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

deceased as well as P.Ws.8 & 11. Similarly, in the immediate statement        A
of P.W.11, he specifically referred to the names of Al, A3 and accused-
Ashok Das alias Gopal Das and the manner in which the injuries were
inflicted upon them.
       18. A cumulative consideration of the evidence of P.Ws.l, 7, 8
and 11 amply disclose that there were five who were involved in the           B
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          c
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 injuries       D
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         E
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          F
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       G
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 documentary to       H
148               SUPREME COURT REPORTS                        [2016] I S.C.R.



A     show as to how all the five accused were duly present at the place of
      occurrence, in order to attract Section 149 1.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
B
      consequently none of the accused could escape from the invocation of
      Section 1491.P.C. in the murder of the deceased falling under Section
      3021.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
c     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, 8and11, having
      gone through the evidence in detail and the appreciation made by the
D     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
E
      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
F     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
G     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
H     decision reported in Rotash (supra), in paragraph 14, this Court has
         SUSANTA DAS & ORS. v. STATE OF ORISSA                               149
        [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

held as under:                                                               A
       "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              B
      the earliest possible opportunity. Even assuming that P. W. l
      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 ...... "             c
      (Emphasis added)
      24. 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           D
be usefully referred, which are as under:-
      "22. In Mulla v. State of UP. 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         E
      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 F
      Narayana v. State of A.P., Sone Lal v. State of UP., 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           G
         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)       H
150                   SUPREME COURT REPORTS                     [20161 1 S.C.R.



A            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 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.
B
             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 hostility displayed
      by P.W. IO, where all though sought to be relied upon heavily on behalf
c     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
      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
D     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
E     so very vital to doubt the case of the prosecution. We fully concur with
      the said view expressed by the Division Bench.
             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
 F    Amicus Curiae Mr. Anup Kumar, we recommend a fee of Rs.10,000/-
      to be paid to him.
      Devika Gujral                                            Appeals dismissed.