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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, S. RAVINDRA BHAT, JJ.
Netaji Achyut Shinde (Patil) And Another – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 121 of 2019 with Criminal Appeal No (S). 328 of 2021
Decided on : 23-03-2021
(A) Criminal Procedure Code, 1973 – Section 154 – 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 offence, cannot be treated as FIR. (Para 21)
(B) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Reversal of acquittal by High Court – Details of event which occurred, nature of attack, place of attack, names and identities of accused were set out fully in FIR – Quite often, depending upon how and what people see and perceive about an incident, when they narrate it subsequently, rendition might not be accurate in describing sequence or even facts completely – Much would depend on relative distances and angles where those individuals might have been placed or located, relative to incident or event – Inclusion or omission of more than two accused cannot be a matter of grave suspicion – It may be in given case, an aspect to be kept in mind when other circumstances pointing to false implication might well exist – Per se, however, it cannot be said that omission to mention four assailants falsifies prosecution story – If any minor inconsistencies are found with respect to details of accused, they are inconsequential, having regard to fact that overall weight of evidence clearly points to role of accused as those who attacked deceased – Absence of any overt injury on person of deceased did not in any manner diminish role played by present appellants – Eyewitness testimonies which clearly implicated them in crime, established their participation and depositions which showed that they played a part in achieving common intention of carrying murderous assault on deceased, was overlooked by trial court for trivial and immaterial reasons – High Court quite correctly reversed acquittal and recorded conviction against all appellants – Appeals dismissed. (Paras 24, 25, 30, 34, 38 and 39)
(C) Indian Penal Code, 1860 – Section 34 – Common intention – What constitutes proof of common intention, may differ from situation to situation – Much depends on facts of each case and role played by each accused. (Para 31)
Facts of the case:
Appellants, in these two appeals, impugn a common judgment of Aurangabad Bench of the Bombay High Court convicting them of committing offence punishable under Section 302 read with Section 34 of Indian Penal Code. One appellant was convicted by trial court, while the other two were acquitted. These acquittals were reversed by the impugned judgment which convicted all the accused (first accused Netaji Achyut Shinde (Patil), second accused Samadhan Shinde, and third accused Balasaheb Kalyanrao Shinde (Patil).
Findings of Court:
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, this court is of the opinion that absence of any overt injury on the person of the deceased did not in any manner diminish the role played by present appellants.
Result : Appeals dismissed.
JUDGMENT :
S. RAVINDRA BHAT, J.
1. The appellants, in these two appeals, impugn a common judgment of the Aurangabad Bench of the Bombay High Court convicting them of committing the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. One appellant (all of them hereafter referred to by name), the second accused Samadhan Shinde, was convicted by the trial court, while the other two were acquitted. These acquittals were reversed by the impugned judgment which convicted all the 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 Kallam police station, alleging the commission of offences punishable under Section 302 read with Section 34 IPC, i.e., the murderous attack on one Suhas, the deceased. The statements of eyewitnesses as well as the dying declaration by the deceased Suhas were relied on in the charge sheet which was subsequently filed, implicating the accused. The learned Additional Sessions Judge, Osmanabad[Hereafter "the trial court".] framed charges against the accused for the offences alleged against them. All accused pleaded not guilty and claimed trial. The prosecution examined 21 witnesses in support of the charges. The defence of the accused was denial, and that they were falsely implicated due to political enmity and property dispute. The trial court, on consideration of the evidence led by the prosecution, convicted A-2 Samadhan; it however, found the evidence against A-1 Netaji Shinde and A-3 Balasaheb Shinde to be doubtful and acquitted them.
3. The High Court granted the state leave to appeal; A-2 Samadhan too appealed against his conviction and sentence. The High Court by the impugned judgment reversed the acquittal of A1 and A3 and affirmed the conviction of A-2 Samadhan. All three are therefore in appeal.
The essential facts and evidence considered by the courts
4. The prosecution alleged that on 5.7.2011, at about 5.30 PM at Shivaji Chowk, in front of one Raviraj Beer Bar at Kallam, district Osmanabad, all the accused appellants further to their common intention assaulted the deceased, Suhas and inflicted serious injuries with a sword as well as by fist blows and kicks. At about 7.15 PM, Suhas succumbed to 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 was registered at 11.45 PM at Kallam police station. The FIR alleged the involvement of the four individuals- i.e. the three appellants/accused persons, and one Anant Balasaheb Shinde; he could not however be charged and tried, as he absconded. The FIR was registered upon the complaint lodged at 11.45 PM hours of Ramhari Ganpatrao Shinde, resident 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 Taluka President of the Nationalist Congress Party for Kallam, Chairman of Kallam Taluka Market Committee, and Sarpanch of his village; the deceased was taluka Vice President of the Youth Nationalist Congress party. He admitted that there was a police post near the Shivaji statue at Kallam. He was informed about the incident by PW-2, Balasaheb Kshirsagar. PW-2 deposed that he was in front of Padmasinh Patil Complex, which is in Shivaji Square. When the deceased was getting down from his motorcycle in front of Raviraj Beer Bar, the accused and absconding 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 and the other accused gave fist blows and kicks to the deceased. PW-2 stated that the deceased fell down. As he was crossing the road to reach the spot where Suhas was, he heard the accused saying that they would
(1) A mere message or a telephonic message which does not clearly specify offence, cannot be treated as FIR.(2) What constitutes proof of common intention, may differ from situation to situation.
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Murder conviction quashed for lack of proof that specific appellants inflicted fatal blow; eyewitness contradictions, medical evidence allowing death by fall, parity with acquitted co-accused, and un....
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