F.I.R. NOT AN ENCYCLOPEDIA

F.I.R. not an encyclopedia of Prosecution case – Its Evidenciary value

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 845 OF 2009

(Arising out of SLP (Crl.) 4145 of 2007)

Kirender Sarkar and Ors. ...Appellants

Versus

State of Assam ...Respondent

(Also reported in AIR 2009 SC 2513 )

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the

Guwahati High Court, dismissing the appeals so far as appellants are concerned while

directing acquittal of some of the co-accused persons. Eighteen persons faced trial out of

which nine were acquitted by the trial Court and the High Court. One of the accused

persons died during the trial and seven accused persons, the present appellants were

convicted for offence punishable under Sections 147, 448 and 323 of Indian Penal Code,

1860 (in short the `IPC') and were sentenced to undergo rigorous imprisonment for one

year, six months and 3 months respectively.

3. Prosecution version in a nutshell is as follows:

On 30.7.1990 Md. Nazir Ahmed, Assistant Teacher of Ambari H.E. School lodged an

Ejahar, Ext. 1, with the Officer-in-charge, Murajhar Police Station, on the allegations thaton the same day at about 10 a.m. in the forenoon, the accused persons committed criminal trespass into the school and tried to give lesson in the classes and some outsider accused persons being armed with iron-rod, spear, lathi and fire-arm gheraoed the school and when the accused teachers entered into the school, the outsider antisocial elements committed criminal trespass into the school and started assaulting the clerk of the school and alongwith them students also started assaulting the clerk. The clerk was taken away after assaulting him and he was kept confined. The names of the following accused persons were stated in the Ejahar: i.e. 1. Fakaruddin S/o Kuti Mia, 2. Fakaruddin, 3. Kirendra Namsudra, 4. Botir Ali, 5. Abdul Gafur 6. Rezan Ali, 7. Abdul Sattar Hazi, 8. Kuti Mia, 9. Mslim Ali and 10. Abdul Karim. There is also mention in the FIR that he could identify the other accused persons if they are shown to him. On the strength of the Ejahar, a case was registered by the OIC being Murajhar Police Station case No. 73/90 under Sections 147/148/447/323/506 IPC. After few days, the injured Azizur Rahman died and therefore, section 302 IPC was added. The case was endorsed to Sri B. Kalita S.L of Police to investigate the case. The I.O. visited the place of occurrence, recorded the statements of the witnesses, collected the post-mortem report. After completion of the investigation, OIC Murajhar Police Station submitted charge sheet against the accused persons under Sections 147/148/447/323/506/302 IPC. On appearance of the accused persons in the court of learned S.D.J.M. Hojai, Sankardev

Nagar, copies of police papers were furnished to them and as the offence under section 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. The learned Sessions Judge, transferred the case to the Additional Sessions Judge who framed charges against the accused persons. Since the accused persons pleaded innocence, they were put on trial. Ten witnesses were examined to further the prosecution version. Two witnesses were examined by the accused persons to prove their innocence. The trial Court found the accused guilty and convicted them. An appeal was filed before the High Court. The High Court noticed that the accused persons were convicted on the basis of dying declaration (Ex.P-8). The High Court noted that on a combined reading of the FIR by PW-1 and dying declaration there was enough material against accused appellants Nos. 1, 3, 6, 7, 8, 9, 11 and 12 and inadequate so far as rest of the accused persons who were convicted by the trial Court. Accordingly, the appeal so far as present appellants are concerned was dismissed.

4. Learned counsel appearing for the appellants submitted that the deceased was

suspended from school. The Inspector of School wrote to the officer incharge of the local Police Station that the deceased was creating trouble and was causing obstruction in smooth running of the school. PW-2 was appointed as Head Master. His evidence is to the effect that guardians and students of the school drove away the deceases and closed the door. Even after suspension he came and created problems in the functioning of the school and, therefore, the Inspector of School was informed by PW-2. It is pointed out that names of some of the appellants are not mentioned in the FIR or the dying declaration and names of some appellants are there in the FIR and, therefore, there is conflict between the FIR and dying declaration and the appellants are entitled to the benefit. It is submitted that the defence version that the deceased was creating problems in the school after his suspension for which the Inspector of School was asked to give protection to the teachers has not been duly considered. There was also no external or internal injury.

5. Learned counsel for the State on the other hand supported the judgments of the

trial Court and the High Court.

6. The law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witnesses except that may be used for the purpose of contradicting maker of the report. Though the importance of naming the accused persons in the FIR cannot be ignored, but names of the accused persons have to be named at the earliest possible opportunity. The question is whether a person was impleaded by way of afterthought or not must be judged having regard to the entire factual scenario in each case. Therefore, non naming of one or few of the accused persons in the FIR is no reason to dis-believe the testimony of crucial witnesses. The evidence of PW-1 is clear and cogent. That being so, we find no merit in this appeal which is accordingly dismissed.

(Dr. ARIJIT PASAYAT) ............................J.

(Dr. MUKUNDAKAM SHARMA) ............J.

New Delhi,

April 27, 2009





IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 933 OF 2009

[Arising out of Special Leave Petition (Criminal) No. 9155 of 2008]

SUBHASH KUMAR ... APPELLANT

Versus

STATE OF UTTARAKHAND ... RESPONDENT

( ALSO REPORTED IN AIR 2009 SC 2490 )

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 27.08.2008 holding the appellant guilty for commission of offence under Section 324 read with Section 34 of the Indian Penal Code ("IPC" for short) and sentencing him to undergo one year's rigorous imprisonment and fine of Rs.1,000/- only.

3. One Surendra Kumar Sehgal was a student of D.B.S. (P.G.) College. Appellant herein also was a student of B.A. Part II of the same college. On 31.1.2000, when Surendra Kumar Sehgal was entering the college through its gate to attend his N.C.C. class, appellant along with three other persons who were armed with "Khukries" (a sharp edged weapon) assaulted him on instigation made by the appellant as a result

whereof he suffered five injuries, which are as under:

"i. Incised wound 6 cm x 1.0 cm muscle

deep on back side of head 11 cm above

right ear. This injury was fresh and it was

bleeding.

ii. Incised wound 2 cm x 0.5 cm x skin deep backside of

the head and 7 cm below the injury no.1 and the blood

was oozing from this injury.

iii. Incised wound 5 cm x 1 cm x muscle deep, on the left

of head and 6 cm above the left ear.

iv. Incised wound 2.5 cm x 1.1. cm x muscle deep. In the

left upper forearm of index finger of left hand from

which blood is coming out.

v. Incised wound 2 cm x 1 cm x muscle deep on the side

of middle finger of left hand and blood is coming out

this."

4. Appellant was tried for commission of an offence under Sections 307, read with Section 34 of the IPC along with Surendra @ Sonu, Manoj @ Monu and Hargopal. Surendra and Manoj are brothers of the appellant whereas Hargopal is their maternal uncle.

5. The learned trial judge recorded a judgment of conviction finding the accused persons guilty of commission of offence under Section 324 read with Section 34 of the IPC.

However, by reason of the impugned judgment whereas the other accused, namely, Surendra, @ Sonu, Manoj @ Monu & Hargopal were given the benefit of doubt, the judgment of conviction and sentence passed by the learned trial judge as against the appellant was upheld. However, his sentence was reduced to rigorous imprisonment for one year from three years.

6. Mr. Sanjeev Bhatnagar, learned counsel appearing on behalf of the appellant would urge:

(i) On a plain reading of the First Information Report ("FIR" for

short) it would appear that the appellant was not armed with

any "Khukri"; no overt act was attributed to him and his

involvement in the matter both in regard to possession of an

arm as also an instigation to others to assault him being an

outcome of improvement in the depositions of the

complainant before the court, the impugned judgment is

liable to be set aside.

(ii) Out of four accused, three having been acquitted, appellant in

any event could not have convicted with the aid of Section 34

of the IPC.

7. Mr. Jatinder Kumar Bhatia, learned counsel appearing on behalf of the State, on the other hand, would support the impugned judgment.

8. The occurrence took place at about 1.00 p.m. on 31.1.2000. The FIR was lodged on the same day at about 3.15 p.m. The statement of the informant was recorded by the Investigating Officer. It was hand written. Before us, the finding of fact arrived at by both the courts below that the informant received injuries inflicted on him by "Khukri (s)" is not in dispute. It also stands admitted that the first informant was assaulted with

a sharp edged weapon by more than one person. In the FIR, it had categorically been stated that the appellant along with three others who were armed with "Khukri" accosted him at about 1'O clock when he entered in the College through a gate.

9. It is also not in dispute that he sustained injuries on his head as also on his hand. He named Narendra Singh (P.W.1) as one of the eye-witnesses. He, however, was declared hostile. It has, however, not been disputed that the said Narendra Singh and one Shailly brought him to the hospital. He claimed to have identified the other three accused.

The High Court, however, accorded benefit of doubt to the three accused as no test identification parade was held.

The first informant, who examined himself as P.W.2, in his evidence stated:

"2. The incident is of 31.1.2000, day Monday

and time about 1 p.m. At that time I was going

to attend my NCC class in DBS College. As

soon as I parked my scooter outside on the stand

and entered in college, in the meantime

Subhash, Surender @ Sonu, Manoj and their

maternal uncle (Mama) Hargopal came behind

me. They had been holding Khukhries in their

hands. As these people came and Subhash put

his hand on my shoulder. I saw behind and in

the meantime Subhash said kill him "Jaan se

Maar Dalo Saley ko" after this Hargopal

assaulted with Khukhri on my head and

thereafter Subhash also started assaulting with

Khukhri and then all four people started very

badly to me. All the four accused are present in

the court."

Paragraph 9 of his evidence to which our attention has been drawn by Mr. Sanjeev Bhatnagar reads as under:-

"9. The inspector enquired from me with

regard to this case. I had written in the report

that Subhash was having Khukri. It is wrong to

suggest that it is not written anywhere in the

report that Subhash was holding Khukhri in

hand."

We may place on record that our attention has also been drawn to the deposition of Mr. R.K. Kanojiya, SI of P.S. Dalanwala, Dehradun who examined himself as P.W.4, which reads as under:

"17. I recorded the statement of Surendra

Kumar on 1.2.2000. When I went to take the

statement of injured to hospital then because of

his unconsciousness and did not record

statement of the doctor on 31.1.2000. I did not

write in the case diary that on 31.1.2000, the

injured was admitted on which bed and in which

ward. It is incorrect to suggest that I had not

gone to take the statement of the injured to

hospital on 31.1.2000. In the investigation, the

subscribe which I received in that all the

accused persons are shown having Khukri in

their hands, only Subhash is having Khukhri in

hand is not written."

From his evidence, it appears that he had gone to record the statement of the informant in the hospital on 31.1.2000; when he reached the hospital, the informant had become unconscious and was in a serious condition. His statement could be recorded only on 1.2.2000. It was on that date the other accused persons were named.

10. Appellant surrendered in the court of Chief Judicial Magistrate on 7.2.2000. Manoj and Surendra were arrested on 11.2.2000. It is only on 7.3.2000, Hargopal had surrendered before the court.

11. FIR as is well known is not to be treated to be an encyclopedia. Although the effect of a statement made in the FIR at the earliest point of time should be given primacy, it would not probably be proper to accept that all particulars in regard to commission of offence in detail must be furnished.

The prosecution has brought on record that four persons assaulted the injured. P.W. 2 sustained serious injuries. He felt unconscious but must have regained consciousness for some time. After he was brought to the hospital then he could get the FIR lodged. If the deposition of P.W. 4 is to be believed, the prosecution must be held to have proved that he became unconscious again as a result whereof his statement could not be recorded on that date.

12. Not only the courts below but also the parties proceeded on the basis that the FIR disclosed that the appellant was also armed with "Khukri". We say so because we do not find that the contention raised before us by Mr. Bhatnagar, viz., that the FIR did not disclose the same had been raised before the courts below. The only suggestion given to the Investigating Officer, as noticed hereinbefore, was that it was written that all accused were shown having Khukri in their hands and not Subhash alone.

13. The testimony of Surendra (P.W.2) - informant - had been relied upon by both the courts below. We do not think that any case has been made out to take a different view.

All the four accused were convicted by the learned trial judge. The High Court, however, having regard to the fact that the other accused had not been named in the FIR and no test identification parade was held thought it fit to extend the benefit of doubt in favour of three of them. That would not mean that on the same analogy, a judgment of acquittal should have been recorded in favour of the appellant also.

Keeping in view the place of occurrence, it will not be hazardous to presume that the incident had taken place within a very short time. P.W. 2 in his evidence stated that three persons came from behind. He might not have been able to remember their names at the time when the FIR was lodged. But, in our opinion, as the offence must have been committed by more than one person and the appellant having been named in the FIR and specific overt act having been attributed to him by P.W. 2 in his deposition, we are of the opinion that no case has been made out to

interfere with the impugned judgment.

14. For the aforementioned reasons, the appeal is dismissed.

[S.B. Sinha] .......................................J.

[Dr. Mukundakam Sharma] ..............J.


New Delhi;

May 06, 2009

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