NETAJI ACHYUT SHINDE (PATIL) & ANR. versus THE STATE OF MAHARASHTRA on 23 March 2021

[2021] 3 S.C.R. 255

NETAJI ACHYUT SHINDE (PATIL) & ANR.

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 121 of 2019)

MARCH 23, 2021

[L. NAGESWARA RAO, HEMANT GUPTA AND

S. RAVINDRA BHAT, JJ.]

Penal Code, 1860: s.302 r/w s.34 – Prosecution case wasthat on the fateful day, at 17:30, accused persons in furtherance oftheir common intention assaulted the victim-deceased and inflictedserious injuries with a sword as well as by fists blows and kicks –At 17:45, police received telephone information regarding theincident – Around 19:15, deceased succumbed to injuries in hospital– Based on the complaint of PW-1, FIR was registered at 23:45 pmat police station alleging involvement of appellants-accused andone absconding person – Trial court convicted A-2 – It, howeverfound evidence against A-1 and A-3 doubtful and acquitted them –Trial court treated the information received at 17.45 hours as afirst information and discarded FIR recorded later during the nightat 23:45 – It rejected the argument of accused that the eye witnesseswere partisan and hence unreliable, yet based predominantly onmedical evidence which read as negative in the role of A-1 and A-3– Trial court acquitted them of charges levelled holding that in theabsence of injuries of the kind attributed to these accused no findingof their culpability to warrant conviction was returned – As regardsA-2, trial court held him guilty on account of his participation withabsconding accused, with whom he moved away on motorcycle –High Court reversed acquittal of A-1 and A-3 and also affirmedconviction of A-2 – Hence instant appeal – Held: The consistenttestimony of all the eyewitnesses was that the appellants were partof the attack; they played an active role in assaulting the deceasedand chasing him, which eventually forced him to run into PW-5’sshop and collapse there – The material objects recovered from thesite as well as PW-5’s shop which included bloodstains clearlysupported the story of these eyewitnesses – The evidence i.e. theexhortation by these accused, their active role in attacking thedeceased, chasing him and leaving the crime scene together, clinched

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Athat there was a consensus of the minds of persons participating inthe criminal action to bring about a particular result – It was thisaspect which the trial court glaringly overlooked, and instead,misdirected itself grossly in focusing upon the first intimation, treatingit as the FIR, and therefore, proceeding to doubt the prosecutionversion – The eyewitness testimonies which clearly implicated themBin the crime, established their participation, and the depositionswhich showed that they played a part in achieving the commonintention of carrying the murderous assault on the deceased wasoverlooked by the trial court for trivial and immaterial reasons –High Court correctly reversed the acquittal, and recorded theCconviction against all the appellants.

FIR: A cryptic phone call without complete information orcontaining part-information about the commission of a cognizableoffence cannot always be treated as an FIR – A mere message or atelephonic message which does not clearly specify the offence,Dcannot be treated as an FIR – In the instant case, the intimationgiven by two individuals merely set out the bare facts of an attack;the information was incomplete; neither the name of the victim northe names of the alleged attackers nor even the precise locationwhere the incident occurred were mentioned – High Court, in theappeal before it, correctly inferred that the first information recordedEat 17.45 hrs could not be treated as an FIR – In these circumstances,the details of the event which occurred, the nature of the attack, theplace of the attack, the names and identities of the accused were setout fully when PW-1 recorded the statement at 23.45 hrs thatconstitutes the FIR.F

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD : 1. A cryptic phone call without complete informationor containing part-information about the commission of acognizable offence cannot always be treated as an FIR. Thisproposition has been accepted by this Court in T.T. Antony v. StateGof Kerala and Damodar v. State of Rajasthan. A mere message ora telephonic message which does not clearly specify the offence,cannot be treated as an FIR. [Para 21][268-G-H]

T.T. Antony v. State of Kerala (2001) 6 SCC 181 : [2001]3 SCR 942; Damodar v. State of Rajasthan (2004) 12

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SCC 336 : [2003] 3 Suppl. SCR 904; Surajit Sarkarv. State of West Bengal (2013) 2 SCC 146 : [2012] 13SCR 634 – relied on.

2. Entry in police diary at 17.45 hours states that two personsinformed telephonically that two persons arrived on a motorcycleand assaulted one individual at the corner of municipal councilcomplex. This intimation per se is incomplete. The last relevantentry is at 23.45 hrs, which is the complaint that ultimately gotconverted into the FIR, recorded by PW-1. This lists out thedetails of the accused and the incident. It is quite evident fromthe record, therefore, that the intimation given by two individualsmerely set out the bare facts of an attack; the information wasincomplete; neither the name of the victim nor the names of thealleged attackers nor even the precise location where the incidentoccurred were mentioned. The High Court, in the appeal beforeit, correctly inferred that the first information recorded at 17.45hrs could not be treated as an FIR. In these circumstances, thedetails of the event which occurred, the nature of the attack, theplace of the attack, the names and identities of the accused wereset out fully when PW-1 recorded the statement at 23.45 hrs –that constitutes the FIR. [Paras 23, 24][269-D-H; 270-A-B]

3. It is evident from the record that PW-2, PW-3, PW-4,PW-6 & PW-18 were eye witnesses according to the prosecution.The deposition of PW-2 (closely related to PW-1) and that of PW-4 appears to have been doubted to some extent by the Trial Court.However, what is clear from the entire reading of the record –including the judgment of the trial court is that there is no doubtthat PW-6, PW-2 and PW-18 had in fact witnessed the entireincident. PW-18 owned Raviraj Beer Bar and was clear about theassault by a sword by the absconding accused. He also mentionedthat the present appellants had assaulted the deceased with fistblows. PW-6 was standing in front of a tea stall when the deceasedburst in, running from Shivaji Chowk. He was bleeding and waschased by the appellants and Anant Shinde who were shoutingloudly that the deceased ought to be caught and killed. PW-6claimed that he and one Pradip Mete intervened and, in themeanwhile the deceased entered “Kothavale Jewellers”, afterwhich all the accused left on a motorcycle. The deposition of PW- A

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A6 was corroborated by that of PW-18; the latter also deposed thenumber of the motorcycle by which the accused went after theattack. [Para 28][271-F-H; 272-A]

4. PW-5 was the owner of the shop “Kothavale Jewellers”and though not a direct witness, immediately witnessed the eventsBconnected with the incident. He deposed as to Suhas enteringthe shop and asking him to save him. He also deposed that Suhaswas severely bleeding and that some people had surrounded hisshop and one was armed with a sword. He deposed that theabsconding accused had also given the deceased sword blowsand further that he had been chased by them. PW-5 also deposedCthat two persons took the deceased to hospital. [Para 29][272-B-C]

5. In the cross-examination of these eyewitnesses, nothingsignificant was elicited on behalf of the accused. The general lineof questioning appeared to be that the eye witness had notDreported to the police despite knowledge of identity of thedeceased. If any minor inconsistencies are found with respect todetails of the accused, they are inconsequential, having regardto the fact that the overall weight of evidence clearly points tothe role of the accused as those who attacked the deceased. Nophysical injury could be attributed to the present accused sinceEthe MLC and postmortem did not reveal any correspondingwound on account of fist blows or kicks. However, that does notconclude the issue in favour of the appellants. The consistenttestimony of all the eyewitnesses was clearly that the presentappellants were part of the attack; they played an active role inFassaulting Suhas and chasing him, which eventually forced him torun into PW-5’s shop and collapse there. The material objectsrecovered from the site as well as PW-5’s shop which includedbloodstains clearly supported the story of these eyewitnesses.Having regard to these circumstances, the absence of any overt injury on the person of the deceased did not in any mannerGdiminish the role played by the present appellants. Whatconstitutes proof of common intention, may differ from situationto situation and much depends on the facts of each case and therole played by each accused.[Paras 30, 31][272-D-G; 273-A-B]

Ramaswami Avyangar v. State of Tamil Nadu (1976) 3HSCC 779 : [1976] 3 SCR 876; Nandu Rastogi v. State of Bihar (2002) 8 SCC 9 : [2002] 3 Suppl. SCR 30;Subed Ali And Others v. The State Of Assam 2020 (10)SCC 517 - relied on.

6. The physical presence of the accused (includingAppellant Nos. 1 and 3) at the site of the actual commission ofthe crime and the deposition of independent witnesses about theirrole, clearly establishes that it was for the purpose of facilitatingthe offence, the commission of which was the aim of the jointcriminal venture. The presence of these accused, to facilitatethe execution of the common design amounts to actualparticipation in the criminal act. The evidence – i.e. the exhortationby these accused, their active role in attacking the deceased,chasing him and leaving the crime scene together, clinches thatthere was a consensus of the minds of persons participating inthe criminal action to bring about a particular result. It was thisaspect which the trial court glaringly overlooked, and instead,misdirected itself grossly in focusing upon the first intimation,treating it as the FIR, and therefore, proceeding to doubt theprosecution version. It found no lacunae in the testimonies ofthe eyewitnesses. However, proceeding on the thesis that thefirst intimation was the FIR, and that it did not describe the roleof four persons, but only mentioned two, the trial court acquittedthe two accused. [Para 34][274-F-H; 275-A-B]

Sanwat Singh v. State of Rajasthan [1961] 3 SCR 120– relied on.

7. The High Court was quite correct in reversing theacquittal of the two appellants who are now before this court.The eyewitness testimonies which clearly implicated them in thecrime, established their participation, and the depositions whichshowed that they played a part in achieving the common intentionof carrying the murderous assault on the deceased was overlookedby the trial court for trivial and immaterial reasons. Theappreciation of the evidence and all the circumstances appearingfrom the record, was clearly unreasonable and irrational. The HighCourt quite correctly reversed the acquittal, and recorded theconviction against all the appellants. [Para 38][277-B-D]

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APradeep s/o Narayanrao Rajgure v. State ofMaharashtra 2004 ALL MR (Cri) 1308; Nilesh Naik@ Mangushekhar v. State of Goa 2010 (3) Bom CR(Cri) 201 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealDNo. 121 of 2019.

From the Judgment and Order dated 16.07.2018 of the High Courtof Judicature at Bombay, Bench at Aurangabad, in Criminal Appeal No.46 of 2014.

WithE

Criminal Appeal No. 328 of 2021.

S. Nagamuthu, Sr. Adv, Anish R. Shah, Ms. Qurratulain, M/s.S.M. Jadhav and Company, Advs. for the Appellants.

Sachin Patil, Rahul Chitnis, Geo Joseph, Advs. for the Respondent.FThe Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The appellants, in these two appeals, impugn a commonjudgment of the Aurangabad Bench of the Bombay High Court convictingGthem of committing the offence punishable under Section 302 read withSection 34 of the Indian Penal Code. One appellant (all of them hereafterreferred to by name), the second accused Samadhan Shinde, wasconvicted by the trial court, while the other two were acquitted. Theseacquittals were reversed by the impugned judgment which convicted allHthe accused (first accused Netaji Achyut Shinde (Patil), second accused Samadhan Shinde, and third accused Balasaheb Kalyanrao Shinde (Patil),[hereafter referred to as A-1, A-2 and A-3 or by their names as Netaji,Samadhan and Balasaheb].

2. A first information report (FIR 80/2011) was registered at Kallampolice station, alleging the commission of offences punishable underSection 302 read with Section 34 IPC, i.e., the murderous attack on oneSuhas, the deceased. The statements of eyewitnesses as well as thedying declaration by the deceased Suhas were relied on in the chargesheet which was subsequently filed, implicating the accused. The learnedAdditional Sessions Judge, Osmanabad[1] framed charges against theaccused for the offences alleged against them. All accused pleaded notguilty and claimed trial. The prosecution examined 21 witnesses in supportof the charges. The defence of the accused was denial, and that theywere falsely implicated due to political enmity and property dispute. Thetrial court, on consideration of the evidence led by the prosecution,convicted A-2 Samadhan; it however, found the evidence against A-1Netaji Shinde and A-3 Balasaheb Shinde to be doubtful and acquittedthem.

3. The High Court granted the state leave to appeal; A-2Samadhan too appealed against his conviction and sentence. The HighCourt by the impugned judgment reversed the acquittal of A1 and A3and affirmed the conviction of A-2 Samadhan. All three are therefore inappeal.

The essential facts and evidence considered by the courts

4. The prosecution alleged that on 5.7.2011, at about 5.30 PM atShivaji Chowk, in front of one Raviraj Beer Bar at Kallam, districtOsmanabad, all the accused appellants further to their common intentionassaulted the deceased, Suhas and inflicted serious injuries with a swordas well as by fist blows and kicks. At about 7.15 PM, Suhas succumbedto his injuries, at the S.R.T.S. Medical College and Hospital, Ambajogai.Based on a complaint lodged by P.W.1 Ramhari Shinde, the FIR wasregistered at 11.45 PM at Kallam police station. The FIR alleged theinvolvement of the four individuals- i.e. the three appellants/accusedpersons, and one Anant Balasaheb Shinde; he could not however becharged and tried, as he absconded. The FIR was registered upon thecomplaint lodged at 11.45 PM hours of Ramhari Ganpatrao Shinde, 1 Hereafter “the trial court”.

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1 Hereafter “the trial court”.

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Aresident of village Kothala, Kallam stating that he was a social worker.The complainant, PW-1 Ramhari Shinde’s brother, Prakash had two sons;(the deceased Suhas and one Vikas). Ramhari Shinde was TalukaPresident of the Nationalist Congress Party for Kallam, Chairman ofKallam Taluka Market Committee, and Sarpanch of his village; thedeceased was taluka Vice President of the Youth Nationalist CongressBparty. He admitted that there was a police post near the Shivaji statue atKallam. He was informed about the incident by PW-2, BalasahebKshirsagar. PW-2 deposed that he was in front of Padmasinh PatilComplex, which is in Shivaji Square. When the deceased was gettingdown from his motorcycle in front of Raviraj Beer Bar, the accused andCabsconding accused went there on a motor cycle, with a sword in hand.He gave sword blows on the face, neck and hand of the deceased andthe other accused gave fist blows and kicks to the deceased. PW-2stated that the deceased fell down. As he was crossing the road toreach the spot where Suhas was, he heard the accused saying that theywould kill Suhas. Suhas got up and ran towards Sonar Galli. On the way,Dthe absconding accused Anant warned bystanders not to intervene, orhe would stab them. All accused followed the deceased Suhas, as heentered Kothavale Jewellers. PW-2 stated that Satish Tekale and PradipMete were present and when they asked the accused what they weredoing, one of the accused asked to bring a motorcycle. Upon this, one ofEthem brought a motorcycle (No.MH- 25/W-1744 which had thephotograph of Anant Chonde on the front). All four accused left on thatmotorcycle. PW-2 then telephoned PW-1 Ramhari Shinde, and· informedabout the incident; thereafter he went to Kothavale Jewellers, whereSuhas was lying with injuries. Pradip Mete and Satish Tekale took thedeceased to the government hospital; the doctor asked them to take theFinjured to Ambajogai for further treatment. Accordingly, Ramhari, VikasBarkul, Prashant Lomate and Satish Tekale took Suhas in the ambulance.At about 7.45 p.m., PW-2 learnt about the death of the deceased. Duringcross examination, PW-2 admitted that Ramhari (PW-1) was his maternaluncle. He stated that he did not inform the police immediately, thoughGthe police station was nearby. He further stated that 50-100 persons hadgathered at the place of the incident. PW-3 Balkrishna Gangadhar Bhawaradmitted to being the President of the Indian Nationalist Congress partyfor Kallam district and that he did not report the incident to the police,despite witnessing the incident. PW-4, similarly, corroborated thetestimony of PW-2 and PW-3.H

5. The prosecution relied on the testimonies of P.W.2 BalasahebKshirsagar, P.W.3 Balkrishna Bhawar, P.W.4 Shivraj Ritapure and P.W.18Ravindra Mohanlal Oza as eye witnesses to the incident. The othermain eyewitnesses were the doctor PW-12, who conducted the post-mortem report. PW-19 and PW-20 were police officers who deposedduring the trial. Besides their statements, exhibits such as blood-stainedclothes worn by the accused, and material objects i.e. weapons, bloodstained soil, etc were produced.

6. The trial court treated the first information received at 17:45hours on 05.07.2011 as the first information, and discarded the FIRrecorded later during the night, at 11:30 PM. It rejected the accused’sargument that the eyewitnesses were all partisan and therefore, unreliable.Yet, based predominantly on the medical evidence, which it read asnegating any role of the accused Netaji (A-1) and Balasaheb (A-3),thetrial court acquitted them of the charges levelled. It further held that inthe absence of any injury of the kind attributed to these accused (whoare also appellants before this court), no finding of their culpability, towarrant a conviction, could be returned. As far as A-2, Samadhan isconcerned, the trial court held him guilty, on account of his participationwith the absconding accused, i.e. Anant, with whom he went away on amotorcycle, driven by him (i.e. Samadhan).

7. An appeal was preferred by Samadhan, and the state (whichwas given leave to appeal by the High Court), against the findings of thetrial court, absolving Netaji and Balasaheb. At the High Court, thesefindings of acquittal were reversed; they were convicted of the offencescharged, on an overall appreciation of the prosecution evidence. It washeld that the trial court completely overlooked the depositions ofeyewitnesses and gave no reasons why their statements were to be castaside, and that it erred in giving overall primacy to medical evidence.The testimonies of eyewitnesses, some of whom had no connection withthe deceased, as well as the recoveries made pursuant to the accused’sstatements, during investigation, had been ignored. On an overallappreciation and analysis of the evidence, therefore, A-1 and A-3 wereconvicted; A-2 Samadhan’s conviction was affirmed.

Submissions of the accused/appellants

8. The appellants argued that the prosecution version, which isthat the first information report was lodged at 11:30 PM, is false. Mr. S.

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ANagamuthu, learned senior counsel relied upon the findings of the trialcourt and highlighted that the first intimation about the crime was itselfcomplete and was received by the police station at 5.30 p.m. in theevening. He drew the attention of this court to Ex. P. 82, which is theextract of the case diary, which at Entry 39[2], recorded the event. Learnedcounsel highlighted that once the police authorities knew of theBoccurrence of a serious incident, they were supposed to immediatelylodge an FIR.

9. Counsel took exception to the testimony of PW 19 and PW 20,who had deposed that the FIR was in fact lodged later at 11:30 PM, asthe intervening time between the intimation (05:30 PM) of the crime andClodging of FIR was spent in finding the whereabouts of the accused andgathering details of the crime. Learned counsel relied upon the testimonyof PW 18, as well as PW 5 and argued that the police had in fact startedinvestigation, soon after the event was known to them, which supportsthe argument that the details of the crime were known at 5:30 PM.DDrawing the attention of the court to the FIR, learned senior counselsubmitted that the initial information talked of an attack by one motorcycleridden by two persons. However, when the FIR was actually allegedlyrecorded, this version disappeared and an improvement, which hadinvolved other accused in order that they be implicated, was registered.Also, learned counsel stated that the intervening time between the initialEintimation and the recording of actual FIR was spent in spinning a yarn,and seeking support from entirely partisan witnesses who were in factnot witnesses to the incident, and were in some manner connected tothe deceased or his family.

10. Learned counsel contended that the findings of the trial courtFwith respect to the first intimation itself being an FIR are correct in law.He relied on the decisions in Pradeep s/o Narayanrao Rajgure v. Stateof Maharashtra[3] and Nilesh Naik @ Mangushekhar v. State ofGoa[4]in aid of his argument that it is the first intimation of the crime 2 Entry 39, part of Ex. 82, reads as follows:G“Ravi Harkar and Vishwajeet Thombre R/o. Kallam informed telephonically that, twopersons who arrived on motorcycle assaulted one person at the corner of municipalcounsel complex near vegetable market and the said person took shelter in the jeweleryshop to save his life. He is unconscious and injured. Therefore, send the police immediatelyhence, entry is taken regarding communication to police station.”3 2004 ALL MR (Cri) 1308H4 2010 (3) Bom CR (Cri) 201

which constitutes the first information report (FIR) and that the credibilityof an “official” or formal FIR shown to have been registered later, issuspect as it affords considerable leeway to the police to cook up fictionsand falsely implicate innocent persons.

11. It was contended next that the trial court’s approach in rejectingor discarding the oral testimonies of witnesses, and giving primacy to theobjective medical evidence, which pointed to the nature of injuries, wascorrect. Elaborating on this aspect, it was submitted that several witnessessuch as PW-1, PW-3, PW-4 and Pw-6 were known to the deceased aswell as PW-1. The Counsel urged this court to take into considerationthe circumstance that there existed a long-standing political rivalrybetween members of the deceased’s family and those of the accused.The deceased in fact lived at Kothala village. The other witnesses werepartisan inasmuch as they could not explain why they were present atthe scene of the crime. Emphasising on this aspect, the learned seniorcounsel pointed out that although these partisan witnesses are alleged tohave witnessed the crime, they took no steps to report it to the police.Here it was submitted that the police station was barely hundred metresaway and even according to the testimony of PW 19, could be accessedby a 5 minute walk. Furthermore, according to the prosecution, nearly ahundred people were present and had witnessed the event. Despite this,the prosecution was able to dig out witnesses who were blatantly partisanand had their own motives to implicate the accused.

12. It was submitted that each of the alleged eyewitnesses, suchas PW-1, PW-2, PW-3, PW-4 and PW-6 could not offer any explanationas to why they were present. Pointing out to PW-3, it was submitted thatbeing a professor in a college, the witness could not claim his presenceat the scene of occurrence even though he lived a distance away.Similarly, PW-4 lived in an entirely different village and did not offer anyexplanation for why he came to the place of incident at that very momentof the occurrence. It was argued out that these two witnesses, despitetheir closeness to the deceased, neither sought to assist him or come tohis aid, nor even reported to the police station –a serious and importantomission that undermines their credibility as objective witnesses.

13. It was next argued that the dying declaration relied upon bythe prosecution is unreliable and varies with the medical evidence; infact, it is not corroborated by medical evidence. Senior counsel submittedthat having regard to the nature of the injuries, it was not possible (for A

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ASuhas) to make any oral statement as the injuries were to the right sideof the maxilla and mandible. If there were injuries to the upper jaw andlower jaw, it was not possible to give a dying declaration. If the deceasedwas in a fit condition to speak, he would have narrated the incident. Hedid not do so; the relatives gave the case history. Counsel stated that thedeceased was under the influence of alcohol. In view of these facts, theBdying declaration was unreliable, and could not be the basis of convictionof the appellants. P.W.1 complainant and P.W.7 doctor, have stated thatthe condition of the deceased was critical and he was in shock. P.W. 5,the jewellery shop owner stated that the deceased had fallen down inthe shop. Thus, considering the entire documentary and oral evidence, itCwas submitted that the dying declaration does not inspire confidence,and should not be relied upon.

14. It was further argued that the recovery of the accused’s clothes– sought to be proved under Section 27 of the Evidence Act, was contraryto law and probability. It was submitted that the distance between theDpolice station to Kothala is 15 to 20 K.M. The police allegedly travelled

the 15- 20 K.M. within five minutes. This renders the panchnamaregarding recovery of accused’s clothes doubtful and liable to be rejected.Further, the recovery of the accused’s clothes under Section 27 wasfrom an open place and could not be considered. It was highlighted thatthe sessions court held that the recovery was contrary to the inquest andEseizure panchnamas. Different clothes were shown in the seizure andinquest panchnamas. The prosecution did not give any explanation aboutchange of the deceased’s clothes in the inquest panchnama. Likewise,the delay in furnishing the muddemal articles for testing more than twomonths after they were sealed (on 06.02.2011) was not explained, givingFrise to the possibility of tampering.

15. It was submitted that the nature of the wounds on the personof the deceased, according to the medical evidence, only establishedthat the absconding accused had caused fatal injuries. There was noevidence in the medico-legal report or the post mortem report toGsubstantiate the prosecution story about the appellants’ involvement inthe crime; indeed, the doctor PW-7 nowhere supported the prosecutiontheory by deposing that the kind of injuries attributable to the appellantswere present on the body. That apart, the prosecution could not proveany prior concert, or meeting of minds between the absconding accusedand the present appellants, to implicate them for the crime under SectionH

34. In the absence of any proof of common intention, their convictionhad to be upset; the acquittal of two of the accused, should not havebeen interfered with by the High Court.

16. It was submitted that almost all the prosecution witnesses,barring official witnesses and four independent witnesses, were relatedto the complainant, and could not by and large, explain the reason fortheir presence at the site. This created a suspicion that the complainantmade out a story to falsely implicate the accused/appellants, who werenowhere in the picture. Two vital eyewitnesses were not examined.Given that the deceased was critically wounded and could not havegiven a dying declaration, the police used the 6-7 hours interval to spin astory and falsely implicate the appellant, as was correctly surmised bythe trial court. That the appellants were not named in the first intimationduring the early part of the evening when the police received informationof the crime, clearly showed that they were not involved.

17. It was lastly urged that the recovery of the motorcycle toocould not be proved, as is seen from a close reading of the contradictoryevidence of PW-6 and PW-11. Besides, the eyewitness accounts showedthat the motorcycle belonged to the absconding accused.

18. Counsel for the state urged this court not to interfere with thefindings in the impugned judgment. It was submitted that the trial courtwas heavily influenced by the arguments on behalf of the accused thatthe first intimation about the crime, itself constituted the first informationreport; therefore, it discarded the evidence of PW-1 that he hadcomplained to the police about the offence at 11:30 PM, and, insteadtreated that as a statement under Section 161. It was urged that theevidence of PW-8 with respect to alleged theft of the motorcycle wascorrectly disbelieved; the trial court was convinced that Samadhan, oneof the accused, was a participant in the crime, and shared the commonintention. The trial court also gave credence to medical evidence,particularly the testimonies of PW-7 and PW-12, with respect to thenature of injuries. It was submitted that however, the trial court acquittedthe other accused, i.e. Netaji Shinde A-1 and Balasaheb (A-3) bydisbelieving the dying declaration and also by holding that there were noinjuries answering to the acts attributed to these accused, on the deceased.

19. Learned counsel for the state emphasized that the trial courtacted in complete error, in overlooking the ocular evidence of PW-2, A

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APW-3, PW-4, PW-5 and PW-18. These individuals were present at themoment, though in different places, and witnessed the sequence of events,whereby the accused went together, leading to the second accusedattacking the deceased with a sword, and the motorcycle number onwhich the absconding accused was seated with Samadhan (A-2). Theexhortation of the other accused at the time of the attack, and afterwards,Bas well as the role played by them were clearly deposed by thesewitnesses. PW-5 was the owner of the jewellery shop into which theinjured Suhas rushed, bleeding copiously. Apart from witnessing thecollapse of Suhas, this witness also deposed to the seizure of variousarticles from his shop. Similarly, PW-18 was the owner of Raviraj BeerCBar, and was standing near the place where the entire episode occurred.These witnesses were all consistent regarding the nature of the attackupon Suhas, and the role played by the accused.

20. The state argued that the trial court had erred in ignoringthese vital pieces of evidence, and had gone by suspicions. Its ratherDsimplistic conclusion that the absence of any physical injuries (due toblows, beatings etc) indicated that there was no common intention, wasclearly wrong. It was submitted that the High Court correctly held thatan overall appreciation of the evidence showed that the accused whostood trial were guilty beyond reasonable doubt.

EAnalysis and Conclusions

21. The first issue which this court considers is whether theappellants are correct, in arguing that the initial intimation received bythe police on telephone (at 5.45 P.M.) on the day of the incident, constitutedan FIR. According to counsel, the information about the attack wasFsufficient, and the entry made in the police register was sufficient to betreated as an FIR. It was submitted that the subsequent statement(registered late in the night at 11.45 P.M.) of the complainant, had to betreated as a statement under Section 161 of the Cr.PC. A cryptic phonecall without complete information or containing part-information aboutthe commission of a cognizable offence cannot always be treated as anGFIR. This proposition has been accepted by this Court in T.T. Antony v.State of Kerala[5] and Damodar v. State of Rajasthan[6]. A mere messageor a telephonic message which does not clearly specify the offence,cannot be treated as an FIR.

5 (2001) 6 SCC 181H6 (2004) 12 SCC 336

NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OFMAHARASHTRA [S. RAVINDRA BHAT, J.]

22. In Surajit Sarkar v. State of West Bengal[7], this Court heldas follows:

“37. A bare reading of this makes it clear that even thoughoral information given to an officer-in-charge of a policestation can be treated as an FIR, yet some proceduralformalities are required to be completed. They includereducing the information in writing and reading it over to theinformant and obtaining his or her signature on thetranscribed information.

38. In the case of a telephonic conversation received froman unknown person, the question of reading over thatinformation to the anonymous informant does not arise nordoes the appending of a signature to the information, asrecorded, arise.”

23. Exhibit 85 – extract of the police station diary, Item 39 hasbeen extracted above). That entry at 17.45 hours merely states thatRavi Harkar and Vishwajeet Thombre informed telephonically that twopersons arrived on a motorcycle and assaulted one individual at the cornerof municipal council complex. This intimation per se is incomplete. Thesubsequent entries relevant for this purpose are numbers 42 at 18.45 hrs(enclosing the recording receipt of MLC from the Rural Civil HospitalKallam) that one Suhas had been seriously injured and shifted toAmbajogai for further treatment. Enquiry was handed over to HCBansode. The next entry talks of arranging bandobast at Kothala. Entry50 recorded the departure of striking force of PSI Karle which left forKothala. The last relevant entry is at 23.45 hrs, which is the complaintthat ultimately got converted into the FIR, recorded by PW-1. This listsout the details of the accused and the incident.

24. It is quite evident from the record, therefore, that the intimationgiven by two individuals - Ravi Harkar and Vishwajeet Thombre merelyset out the bare facts of an attack; the information was incomplete;neither the name of the victim nor the names of the alleged attackersnor even the precise location where the incident occurred werementioned. Applying the tests indicated by the judgments of this Court(referred to previously), this court is of the opinion that the High Court,in the appeal before it, correctly inferred that the first information recorded AB

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Aat 17.45 hrs could not be treated as an FIR. In these circumstances, thedetails of the event which occurred, the nature of the attack, the placeof the attack, the names and identities of the accused were set out fullywhen PW-1 recorded the statement at 23.45 hrs – that constitutes theFIR.

B25. This court is also of the opinion that there is no merit in thearguments that the police sought to improve the initial version andsomehow roped in the accused falsely. In this regard, the reliance placedupon Entry 39 at Ex. 85 which talks of two assaults (in the initial telephonicintimation) is unfounded. Quite often, depending upon how and whatpeople see and perceive about an incident, when they narrate itCsubsequently, the rendition might not be accurate in describing thesequence or even the facts completely. Much would depend on the relativedistances and the angles where those individuals might have been placedor located, relative to the incident or event. Therefore, the inclusion oromission of more than two accused cannot be a matter of grave suspicion.DIt may be in the given case, an aspect to be kept in mind when othercircumstances pointing to false implication might well exist. Per se,however, it cannot be said that the omission to mention four assailantsfalsifies the prosecution story.

26. The appellants had urged that the medical evidence was notEin consonance with the prosecution version about their role in the attackupon Suhas. The Trial Court was convinced that the absence of anyinjury which corroborated the evidence of eye witnesses that the accusedhad beaten Suhas, was sufficient to conclude that they were not involved.The evidence of PW-7, i.e. the doctor who had examined Suhasimmediately after the attack indicated the following injuries:F

1. “Cut would over left side head extending towards mandibleinteriorly. Bleeding was there. Since was 20x4 c 2 cm. Havingshape of spindle, vertical, edges were clean cut and evertedout.

G2. Cut wound over left side arm posterior aspect medicallybleeding present. Since 10 cm x 4 cm 2cm spindle shape,vertical, edges clean cut, everted out.

3. Cut wound over right force arm anterior, 4 x2 x ½ cm.Bleeding was there, Edges were regular, everted, spindleshape.H

All the injuries were caused within six hours. Cause of injurieswas hard object with sharp cutting edge. All the three injurieswere grievous in nature.”

27. PW-12, who was the doctor who conducted the postmortemnoticed that there were four injuries. The relevant part of PW-12’sdeposition is extracted below:

“I found following external injuries on the body.

1. Stab wound present over right side of maxilla and mandibleupto bone deep, 30 cm x 3 cm in length. Oblique in directiontowards left eye, edges inverted, margins clean cut. Angleright angel, reddish colour blood adherent at side.

2. Stab wound present over left posterior aspect 25cm x 14cm in length. Vertical in direction, exposing bone and musclesedges irregular in direction, reddish colour blood adherentat site.

3. Stab would present over right forearm anterior aspect, 8cm x 3 cm length horizontal in direction 4 cm above to wristjoint, angles right angle, edges inverted. Reddish colouredblood adherent at site.

4. Abrasion present over left side of back 9 cm x 0.3 cm sizevertical in direction 19 cm above to PSIS reddish in colour.

All injuries were anti- mortem in nature.”

28. It is evident from the record that PW-2, PW-3, PW-4, PW-6& PW-18 were eye witnesses according to the prosecution. Thedeposition of PW-2 (closely related to PW-1) and that of PW-4 appearsto have been doubted to some extent by the Trial Court. However, whatis clear from the entire reading of the record – including the judgment ofthe trial court is that there is no doubt that PW-6, PW-2 and PW-18 hadin fact witnessed the entire incident. PW-18, Ravindra Oza, owned RavirajBeer Bar and was clear about the assault by a sword by the abscondingaccused. He also mentioned that the present appellants had assaultedSuhas with fist blows. PW-6, Satish Shahji Tekale was standing in frontof a tea stall when Suhas burst in, running from Shivaji Chowk. He wasbleeding and was chased by the appellants and Anant Shinde who wereshouting loudly that Suhas ought to be caught and killed. PW-6 claimedthat he and one Pradip Mete intervened and, in the meanwhile Suhas A

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Aentered “Kothavale Jewellers”, after which all the accused left on amotorcycle. The deposition of PW-6 was corroborated by that of PW-18; the latter also deposed the number of the motorcycle (No.MH-25/W-1744) by which the accused went after the attack.

29. PW-5 was the owner of the shop “Kothavale Jewellers”Band though not a direct witness, immediately witnessed the eventsconnected with the incident. He deposed as to Suhas entering the shopand asking him to save him. He also deposed that Suhas was severelybleeding and that some people had surrounded his shop and one wasarmed with a sword. He deposed that the absconding accused had alsogiven him (Suhas) sword blows and further that he had been chased byCthem. PW-5 also deposed that Satish Tekale and Pradip Mete took Suhasto the hospital.

30. In the cross-examination of these eyewitnesses, nothingsignificant was elicited on behalf of the accused. The general line ofquestioning appeared to be that the eye witness had not reported to theDpolice despite knowledge of identity of the deceased. In the opinion ofthis Court, if any minor inconsistencies are found with respect to detailsof the accused, they are inconsequential, having regard to the fact thatthe overall weight of evidence clearly points to the role of the accusedas those who attacked the deceased Suhas. No physical injury could beEattributed to the present accused since the MLC and postmortem didnot reveal any corresponding wound on account of fist blows or kicks.However, that does not conclude the issue in favour of the appellants.The consistent testimony of all the eyewitnesses was clearly that thepresent appellants were part of the attack; they played an active role inassaulting Suhas and chasing him, which eventually forced him to runFinto PW-5’s shop and collapse there. The material objects recoveredfrom the site as well as PW-5’s shop which included bloodstains clearlysupported the story of these eyewitnesses. Having regard to thesecircumstances, this court is of the opinion that the absence of any overtinjury on the person of the deceased did not in any manner diminish theGrole played by the present appellants. The prosecution had alleged acommon intention on their part, with the absconding accused. Accordingto PW-13, on 11.07.2011 accused Samadhan Shinde made a statementto police in his presence and disclosed that he had taken motorcyclefrom Parmeshwar Patil and thereafter they went to Sonesangavi Phataand recovered Bajaj make Discover Motorcycle No.MH-25/W-1744,H

which was parked there, under panchanama Ex. 71. Ex.69 was preparedbetween 10.30 to 10.55 p.m. and Ex.70 between 11.00 to 12.45 noon.

31. What constitutes proof of common intention, may differ fromsituation to situation and much depends on the facts of each case andthe role played by each accused. This was highlighted in RamaswamiAvyangar v. State of Tamil Nadu[8] , where, to establish common intentionit was held that:

“12.... The acts committed by different confederates in thecriminal action may be different but all must in one way orthe other participate and engage in the criminal enterprise,for instance, one may only stand guard to prevent any personcoming to the relief of the victim, or may otherwise facilitatethe execution of the common design. Such a person alsocommits an “act” as much as his co-participants actuallycommitting the planned crime. In the case of an offenceinvolving physical violence, however, it is essential for theapplication of Section 34 that the person who instigates oraids the commission of the crime must be physically presentat the actual commission of the crime for the purpose offacilitating or promoting the offence, the commission of whichis the aim of the joint criminal venture. Such presence of thosewho in one way or the other facilitate the execution of thecommon design, is itself tantamount to actual participation inthe ‘criminal act’. The essence of Section 34 is simultaneousconsensus of the minds of persons participating in the criminalaction to bring about a particular result. Such consensus canbe developed at the spot and thereby intended by all ofthem....”

32. In Nandu Rastogi v. State of Bihar[9], highlighting how therecan be inference regarding common intention this court observed that:

“17.... They came together, and while two of them stood guardand prevented the prosecution witnesses from intervening,three of them took the deceased inside and one of them shothim dead. Thereafter they fled together. To attract Section 34Indian Penal Code it is not necessary that each one of the 8 (1976) 3 SCC 779

9 (2002) 8 SCC 9

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AAccused must assault the deceased. It is enough if it is shownthat they shared a common intention to commit the offenceand in furtherance thereof each one played his assigned roleby doing separate acts, similar or diverse....

33. Recently, in Subed Ali And Others v. The State Of Assam[10]Bthis court ruled that “Common intention consists of several persons acting inunison to achieve a common purpose, though their roles maybe different. The role may be active or passive is irrelevant,once common intention is established. There can hardly beCany direct evidence of common intention. It is more a matterof inference to be drawn from the facts and circumstances ofa case based on the cumulative assessment of the nature ofevidence available against the participants. The foundationfor conviction on the basis of common intention is based onthe principle of vicarious responsibility by which a person isDheld to be answerable for the acts of others with whom heshared the common intention. The presence of the mentalelement or the intention to commit the act if cogentlyestablished is sufficient for conviction, without actualparticipation in the assault. It is therefore not necessary thatEbefore a person is convicted on the ground of commonintention, he must be actively involved in the physical activityof assault.”

34. Here, the physical presence of the accused (including AppellantNos. 1 and 3) at the site of the actual commission of the crime and theFdeposition of independent witnesses about their role, clearly establishesthat it was for the purpose of facilitating the offence, the commission ofwhich was the aim of the joint criminal venture. The presence of theseaccused, to facilitate the execution of the common design amounts toactual participation in the criminal act. The evidence – i.e. the exhortationby these accused, their active role in attacking the deceased, chasingGhim and leaving the crime scene together, clinches that there was aconsensus of the minds of persons participating in the criminal action tobring about a particular result. It was this aspect which the trial courtglaringly overlooked, and instead, misdirected itself grossly in focusing upon the first intimation, treating it as the FIR, and therefore, proceedingto doubt the prosecution version. It found no lacunae in the testimoniesof the eyewitnesses discussed above. However, proceeding on the thesisthat the first intimation was the FIR, and that it did not describe the roleof four persons, but only mentioned two, the trial court acquitted the twoaccused.

35. This court would now consider whether the High Court fellinto error in re-appreciating evidence and arriving at a different conclusionthan the trial court, and convicting the present appellants. Long ago, inSanwat Singh v. State of Rajasthan[11 ]this court dealt with the powersof an appellate court, in cases where trial courts in India record acquittal.The court quoted the decision of the Privy Council with approval:

“7. The scope of the powers of an appellate court in an appealagainst acquittal has been elucidated by the Privy Councilin Sheo Swarup v. King-Emperor [LR 61 IA 398] . There LordRussell observed at p. 404 thus:

“… the High Court should and will always give properweight and consideration to such matters as (1) the viewsof the trial Judge as to the credibility of the witnesses,(2)the presumption of innocence in favour of the accused, apresumption certainly not weakened by the fact that hehas been acquitted at his trial, (3) the right of the accusedto the benefit of any doubt, and (4) the slowness of anappellate court in disturbing a finding of fact arrived atby a Judge who had the advantage of seeing thewitnesses….”

Adverting to the facts of the case, the Privy Council proceededto state, “… They have no reason to think that the High Court failedto take all proper matters into consideration in arriving attheir conclusions of fact.”

These two passages indicate the principles to be followed byan appellate court in disposing of an appeal against acquittaland also the proper care it should take in re-evaluating theevidence. The Privy Council explained its earlier observations A

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Ain Nur Mohammad v. Emperor [AIR 1945 PC 151] thus at p.152:

“Their Lordships do not think it necessary to read it allagain, but would like to observe that there really is onlyone principle, in the strict use of the word, laid down there;Bthat is that the High Court has full power to review at largeall the evidence upon which the order of acquittal wasfounded, and to reach the conclusion that upon thatevidence the order of acquittal should be reversed.”

These two decisions establish that the power of an appellateCcourt in an appeal against acquittal is not different from thatit has in an appeal against conviction; the difference lies morein the manner of approach and perspective rather than in thecontent of the power”.

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D36. In Balbir Singh v. State of Punjab[12] this Court observed muchto the same effect thus at p. 222:

“It is now well settled that though the High Court has fullpower to review the evidence upon which an order of acquittalis founded, it is equally well settled that the presumption ofEinnocence of the accused person is further reinforced by hisacquittal by the trial court and the views of the trial Judge asto the credibility of the witnesses must be given proper weightand consideration; and the slowness of an appellate court indisturbing a finding of fact arrived at by a Judge who hadFthe advantage of seeing the witnesses must also be kept inmind and there must be substantial and compelling reasonsfor the appellate court to come to a conclusion different fromthat of the trial Judge.

These observations only restate the principles laid down bythis Court in earlier decisions. There are other decisions ofGthis Court where, without discussion, this Court affirmed thejudgments of the High Courts where they interfered with anorder of acquittal without violating the principles laid downby the Privy Council.”

37. Again, in Babu v. State of Kerala[13]this court held that“findings of fact recorded by a court can be held to be perverse ifthe findings have been arrived at by ignoring or excluding relevantmaterial or by taking into consideration irrelevant/inadmissiblematerial” or if they are ‘against the weight of evidence’ or if theysuffer from the “vice of irrationality”.

38. This court, after considering the reasoning in the impugnedjudgment, is of the opinion that the High Court was quite correct inreversing the acquittal of the two appellants who are now before thiscourt. The eyewitness testimonies which clearly implicated them in thecrime, established their participation, and the depositions which showedthat they played a part in achieving the common intention of carrying themurderous assault on the deceased, Suhas, was overlooked by the trialcourt for trivial and immaterial reasons. The appreciation of the evidenceand all the circumstances appearing from the record, was clearlyunreasonable and irrational. The High Court quite correctly reversedthe acquittal, and recorded the conviction against all the appellants.

39. For the above reasons, there is no merit in the present appeals;they are dismissed without order on costs.

Devika Gujral

Appeals dismissed.

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