Kirender Sarkar & Ors vs State Of Assam

CRIMINAL APPEAL NO. 845 OF 2009 (Arising out of SLP (Crl.) 4145 of 2007)

Kirender Sarkar and Ors. ...Appellants

Versus

State of Assam ...Respondent

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 that

on 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.

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

..................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, April 27, 2009