IMPORTANT POINT
Mere non-mentioning of some names in F.I.R. cannot be fatal to case of prosecution,

Headnote:(A) Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – Proof of – Acquittal of co-accused – Section 149 refers to participation of each member of an unlawful assembly – It has to be necessarily shown that there was an assembly of five or more persons which is designated as unlawful assembly under Section 149 I.P.C. – When once such 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 member of such an unlawful assembly in commission of an offence – What is required to be shown is participation as a member in pursuance of a common object of 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 proof of showing of either of above conduct of a member of an unlawful assembly, offence as stipulated in Section 149 will stand proved. (Para 14)
       (B) Indian Penal Code, 1860 – Sections 302 and 326 read with Section 149 – Murder – Common object of unlawful assembly – Acquittal of co-accused – Evidence of PWs inspiring confidence – Implication of all five accused was perfectly justified and was supported by legal evidence as was spoken to by relevant witnesses which was duly corroborated by medical evidence – Fact that some of weapons were not recovered, expert opinion relating to blood stain and delay involved in forwarding F.I.R to Magistrate, non-examination of person who accompanied P.W.7, hostility displayed by P.W.10, where all though sought to be relied upon heavily on behalf of accused, those facts do not materially affect case of prosecution – Mere non-mentioning of two of names in F.I.R. cannot be fatal to case of prosecution – Appeals dismissed. (Paras 25 to 28)
       (2006) 12 SCC 64 ; (2013) 12 SCC 796 ; (2004) 10 SCC 689; (2005) 12 SCC 657 – Relied.
       Facts of Case:
       Murder case. Present appeals arise out of a common judgment passed in Criminal Appeal preferred by accused-Ashok Das alias Gopal Das and Government Appeal as against acquittal of accused Nos.1 to 4.
       Findings of Court:
       When we apply above principles to the facts of this case, we are convinced that implication of all five accused was perfectly justified and was supported by legal evidence as was spoken to by relevant witnesses which was duly corroborated by medical evidence. Therefore, mere non-mentioning of two of the names in F.I.R. cannot be fatal to the case of prosecution.
       Result : Appeals dismissed.

JUDGMENT :

Fakkir Mohamed Ibrahim Kalifulla, J.

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 numbering five, each one of them armed with deadly weapons obstructed them and when the three persons tried to escape, the accused chased them and assaulted them with the aid of the weapons held by them. At that point of time, a trekker passed through the road and on seeing the same, the accused persons fled away. The trekker however did not stop, but P.W.7 along with one Debendra Padhi who were also proceeding on that road in a motorcycle stopped at the place of occurrence, helped the deceased as well as P.Ws.8 and 11 who were also injured by shifting them to a hospital in a mini bus called Santoshi coming on that road and that before they could reach the hospital the deceased Padma Lochan succumbed to the injuries.

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 deceased along with the injured eye witnesses were assaulted by the accused, lodged the F.I.R. (Ex.1) by around 5.45 p.m. The injured were attended by P.W.12 Doctor who issued the injury reports (Exs.7 & 8). P.W.9, Dr. S. N. Panda conducted autopsy on the body of the deceased and issued Ex.6, the post mortem report. Though P.W.10, the passenger in the Trekker was cited and examined as an eye witness to the occurrence, did not support the case of the prosecution. P.Ws.13 and 14 were the investigating officers and the major portion of the investigation was conducted by P.W.13. P.W.13 recovered a Bhujali and the cover of the Bhujali (M.Os.II & III) and the wearing apparels of the injured and the deceased (M.Os.IX & XI). M.O.I is a pair of chappal, which was also recovered along with other articles viz., plastic comb, plastic glass, whisky and rum bottles. Ex.2 was the inquest report and Ex.10 was the dead body challan. Exs.3 to 5 and 12 were the different seizure lists. Ex.9 was the crime detailed form while Exs.14 to 18 are the documents in support of sending M.Os. to the State Forensic Science Laboratory and the report received therefrom.

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 wearing 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 denied the charges and were tried by the Sessions Court. Though the accused were charged for the offence under Section 149, the Trial Court while analyzing the evidence, both the eye witnesses account, medical evidence, as well as the other evidence, took the view that there was no clinching evidence to support the individual role played by each of the accused except accused-Ashok Das alias Gopal Das and consequently while acquitting A1 to A4, ultimately convicted the accused-Ashok Das alias Gopal Das for the offence under Section 302 I.P.C. for the killing of the deceased Padma Lochan Jena and for causing grievous hurt on P.W.8, convicted him for the offence under Section

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2016 Supreme(SC) 37

IMPORTANT POINTMere non-mentioning of some names in F.I.R. cannot be fatal to case of prosecution,

Cases Referred (5)

IMPORTANT POINT
Mere non-mentioning of some names in F.I.R. cannot be fatal to case of prosecution,