REPORTABLE

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

J U D G M E N T

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