Penal Code, 1860: s.302 r/w s.34 – Prosecution case was that on the fateful day, at 17:30, accused persons in furtherance of their common intention assaulted the victim-deceased and inflicted serious injuries with a sword as well as by fists blows and kicks – At 17:45, police received telephone information regarding the incident – Around 19:15, deceased succumbed to injuries in hospital – Based on the complaint of PW-1, FIR was registered at 23:45 pm at police station alleging involvement of appellants-accused and one absconding person – Trial court convicted A-2 – It, however found evidence against A-1 and A-3 doubtful and acquitted them – Trial court treated the information received at 17.45 hours as a first information and discarded FIR recorded later during the night at 23:45 – It rejected the argument of accused that the eye witnesses were partisan and hence unreliable, yet based predominantly on medical evidence which read as negative in the role of A-1 and A-3 – Trial court acquitted them of charges levelled holding that in the absence of injuries of the kind attributed to these accused no finding of their culpability to warrant conviction was returned – As regards A-2, trial court held him guilty on account of his participation with absconding accused, with whom he moved away on motorcycle – High Court reversed acquittal of A-1 and A-3 and also affirmed conviction of A-2 – Hence instant appeal – Held: The consistent testimony of all the eyewitnesses was that the appellants were part of the attack; they played an active role in assaulting the deceased and chasing him, which eventually forced him to run into PW-5’s shop and collapse there – The material objects recovered from the site as well as PW-5’s shop which included bloodstains clearly supported the story of these eyewitnesses – The evidence i.e. the exhortation by these accused, their active role in attacking the deceased, chasing him and leaving the crime scene together, clinched that there was a consensus of the minds of persons participating in the criminal action to bring about a particular result – It was this aspect 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 the prosecution version – The eyewitness testimonies which clearly implicated them in the crime, established their participation, and the depositions which showed that they played a part in achieving the common intention of carrying the murderous assault on the deceased was overlooked by the trial court for trivial and immaterial reasons – High Court correctly reversed the acquittal, and recorded the conviction against all the appellants.
FIR: A cryptic phone call without complete information or containing part-information about the commission of a cognizable offence cannot always be treated as an FIR – A mere message or a telephonic message which does not clearly specify the offence, cannot be treated as an FIR – In the instant case, the intimation given by two individuals merely set out the bare facts of an attack; the information was incomplete; neither the name of the victim nor the names of the alleged attackers nor even the precise location where the incident occurred were mentioned – High Court, in the appeal before it, correctly inferred that the first information recorded at 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, the place of the attack, the names and identities of the accused were set out fully when PW-1 recorded the statement at 23.45 hrs that constitutes the FIR.
Dismissing the appeals, the Court
HELD : 1. A cryptic phone call without complete information or containing part-information about the commission of a cognizable offence cannot always be treated as an FIR. This proposition has been accepted by this Court in T.T. Antony v. State of Kerala and Damodar v. State of Rajasthan. A mere message or a 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 SCC 336 : [2003] 3 Suppl. SCR 904; Surajit Sarkar v. State of West Bengal (2013) 2 SCC 146 : [2012] 13 SCR 634 – relied on.
2. Entry in police diary at 17.45 hours states that two persons informed telephonically that two persons arrived on a motorcycle and assaulted one individual at the corner of municipal council complex. This intimation per se is incomplete. The last relevant entry is at 23.45 hrs, which is the complaint that ultimately got converted into the FIR, recorded by PW-1. This lists out the details of the accused and the incident. It is quite evident from the record, therefore, that the intimation given by two individuals merely set out the bare facts of an attack; the information was incomplete; neither the name of the victim nor the names of the alleged attackers nor even the precise location where the incident occurred were mentioned. The High Court, in the appeal before it, correctly inferred that the first information recorded at 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, the place of the attack, the names and identities of the accused were set 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 PW4 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 doubt that PW-6, PW-2 and PW-18 had in fact witnessed the entire incident. PW-18 owned Raviraj Beer Bar and was clear about the assault by a sword by the absconding accused. He also mentioned that the present appellants had assaulted the deceased with fist blows. PW-6 was standing in front of a tea stall when the deceased burst in, running from Shivaji Chowk. He was bleeding and was chased by the appellants and Anant Shinde who were shouting loudly that the deceased ought to be caught and killed. PW-6 claimed that he and one Pradip Mete intervened and, in the meanwhile the deceased entered “Kothavale Jewellers”, after which all the accused left on a motorcycle. The deposition of PW-
6 was corroborated by that of PW-18; the latter also deposed the number of the motorcycle by which the accused went after the attack. [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 events connected with the incident. He deposed as to Suhas entering the shop and asking him to save him. He also deposed that Suhas was severely bleeding and that some people had surrounded his shop and one was armed with a sword. He deposed that the absconding accused had also given the deceased sword blows and further that he had been chased by them. PW-5 also deposed that two persons took the deceased to hospital. [Para 29] [272-B-C]
5. In the cross-examination of these eyewitnesses, nothing significant was elicited on behalf of the accused. The general line of questioning appeared to be that the eye witness had not reported to the police despite knowledge of identity of the deceased. If any minor inconsistencies are found with respect to details of the accused, they are inconsequential, having regard to the fact that the overall weight of evidence clearly points to the role of the accused as those who attacked the deceased. No physical injury could be attributed to the present accused since the MLC and postmortem did not 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 the present appellants were part of the attack; they played an active role in assaulting Suhas and chasing him, which eventually forced him to run into PW-5’s shop and collapse there. The material objects recovered from the site as well as PW-5’s shop which included bloodstains 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 manner diminish the role played by the present appellants. What constitutes proof of common intention, may differ from situation to situation and much depends on the facts of each case and the role played by each accused.[Paras 30, 31][272-D-G; 273-A-B] Ramaswami Avyangar v. State of Tamil Nadu (1976) 3 SCC 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 (including Appellant Nos. 1 and 3) at the site of the actual commission of the crime and the deposition of independent witnesses about their role, clearly establishes that it was for the purpose of facilitating the offence, the commission of which was the aim of the joint criminal venture. The presence of these accused, to facilitate the execution of the common design amounts to actual participation in the criminal act. The evidence – i.e. the exhortation by these accused, their active role in attacking the deceased, chasing him and leaving the crime scene together, clinches that there was a consensus of the minds of persons participating in the criminal action to bring about a particular result. It was this aspect 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 the prosecution version. It found no lacunae in the testimonies of the eyewitnesses. However, proceeding on the thesis that the first intimation was the FIR, and that it did not describe the role of four persons, but only mentioned two, the trial court acquitted the 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 the acquittal of the two appellants who are now before this court. The eyewitness testimonies which clearly implicated them in the crime, established their participation, and the depositions which showed that they played a part in achieving the common intention of carrying the murderous assault on the deceased was overlooked by the trial court for trivial and immaterial reasons. The appreciation of the evidence and all the circumstances appearing from the record, was clearly unreasonable and irrational. The High Court quite correctly reversed the acquittal, and recorded the conviction against all the appellants. [Para 38][277-B-D] Pradeep s/o Narayanrao Rajgure v. State of
Maharashtra 2004 ALL MR (Cri) 1308; Nilesh Naik @ Mangushekhar v. State of Goa 2010 (3) Bom CR (Cri) 201 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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