Supreme Court of India
KIRENDER SARKAR AND ORS.versusSTATE OF ASSAM
- Citation
- 2009 INSC 618
- Decided
- 27 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Non‑naming of accused persons in the FIR does not vitiate the conviction; the FIR is not substantive evidence for contradicting eyewitness testimony.
Summary
The incident involved a group of armed assailants who entered a school, assaulted a clerk and confined him. A teacher (PW‑1) lodged an FIR naming several accused, but some appellants were not mentioned in the FIR. The accused were convicted under Sections 147, 448 and 323 of the Indian Penal Code. On appeal, the appellants contended that the omission of their names from the FIR rendered the convictions unsafe. The Supreme Court held that an FIR is not required to be an exhaustive record of all facts or to name every accused, and it is not substantive evidence that can be used to contradict eyewitness testimony. Consequently, the non‑naming of a few accused in the FIR did not undermine the credibility of the witnesses, and the convictions were upheld.
Issues considered
- Whether the failure to name certain accused persons in the FIR invalidates the conviction of those persons under the Indian Penal Code.
Legislation cited
- Indian Penal Code, 1860s. 147, s. 323, s. 448
Subjects
FIRnon‑naming of accusedevidenceeye‑witness testimonyIndian Penal Codeconvictioncriminal procedure
Judgment
[2009] 6 S.C.R. 1133
KIRENDER SARKAR AND ORS. A
v.
STATE OF ASSAM
(Criminal Appeal No. 845 of 2009)
APRIL 27, 2009
B
. -)
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 - ss.147, 448 and 323 - Conviction
under, by Courts below - Challenged, on ground of non- c
naming of some convicts in the FIR - Held: FIR is not an
encyclopedia of the entire events and cannot contain the
minutest details of the events - FIR is not substantive
evidence and cannot be used for contradicting testimony of
eye witnesses except that it may be used for purpose of D
contradicting maker of the report - Non-naming of one or few
accused persons in the FIR is no reason to dis-believe the
testimony of crucial witnesses - On facts, the evidence of PW-
1, who lodged the FIR, was clear and cogent - Conviction
upheld - F.l.R. - Non-naming of accused - Effect of, on E
testimony of witness.
According to the prosecution, the accused persons,
armed with iron-rod, spear, lathi and fire-arm, committed
criminal trespass into a school; assaulted a school clerk
F
and kept him in confinement. PW1, a teacher in the said
'
"'! school, lodged FIR, pursuant to which the accused-
appellants were convicted by the Courts below under
ss.147, 448 and 323 IPC.
• In appeal to this Court, the conviction of the G
appellants was inter alia challenged on the ground that
names of some of the appellants was not mentioned in
the FIR.
'
~ 1133 H
1134 SUPREME COURT REPORTS [2009] 6 S.C.R.
1
A Dismissing the appeal, the Court
HELD: 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
B
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 accusing persons in the FIR cannot be ignored, but
c names of the accused persons have to be named at the
earliest possible opportunity. The question is whether a
person .vas 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
D accused persons in the FIR is no reason to dis-believe y
the testimony of crucial witnesses. The evidence of PW1
was clear and cogent. [Para 6] [1137-C-F]
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
E No. 845 of 2009.
From the Judgment & Order dated 2.3.2007 of the High
.Court of Gauhati in Criminal Appeal No. 335 of·2001.
S.B. Sanyal, Anil Kumar Sharma, Aditya Sharma and K.S.
F Rana for the Appellant.
Ng. J.R. Luwang, Momota Oinam and Corporate Law
Group for the Respondent.
The Judgment of the Court was delivered by
G
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
H t'
KIRENDER SARKAR AND ORS. v. STATE OF 1135
ASSAM [DR. ARIJIT PASAYAT, J.]
appeals so far as appellants are concerned while directing A
·~·
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 B
and 323 of Indian Penal Code, 1860 (in short the 'IPC') and
·~
-I
were sentenced to undergo rigorous imprisonment for one
year, six months and 3 months respectively.
I
3. Prosecution version in a nutshell is as follows:
c
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 D
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 · E
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, F
5. Abdul Gafur 6. Rezan Ali, 7. Abdul Sattar Hazi, 8. Kuti Mia,
I 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 OJC being Murajhar Police Station case No.
A
G
73/90 under Sections 147/148/447/323/506 JPC. After few
days, the injured Azizur Rahman died and therefore, section
302 IPC was added. The case was endorsed to Sri B. Kalila
S.L of Police to investigate the case. The 1.0. visited the place
of occurrence, recorded the statements of the witnesses,
' - H
1136 SUPREME COURT REPORTS (2009] 6 S.C.R
1
A collected the postmortem 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
8
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
c 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
D 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
E (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
F 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
G 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 · l
and closed the door. Even after suspension he came and
created problems in the functioning of the school and, therefore,
H the Inspector of School was informed by PW-2. It is poi!lted out
KIRENDER SARKAR AND ORS. v. STATE OF 1137
ASSAM [DR. ARIJIT PASAYAT, J.)
y
that names of some of the appellants are not mentioned in the A
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 B
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 C
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 cannofcontain the
minutest details of the events. When essentially material facts
are disclosed in the FIR that is sufficient. FIR is not substantive D
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 qf the accused persons have to be named at the earliest E
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 F
. evidence of PW-1 is clear ?Ind cogent. That being so, we find
no merit in this appeal which is accordingly dismissed.
B.B.B. Appeal dismissed.
-
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