Holding

The 17:45 telephonic intimation is not an FIR; the 23:45 complaint is the FIR, and the eyewitness evidence establishes common intention, so the convictions under Sec. 302 r/w Sec. 34 IPC stand.

Summary

The case concerns the murder of Suhas on 5 July 2011, for which three accused—Netaji Achyut Shinde (A‑1), Samadhan Shinde (A‑2) and Balasaheb Shinde (A‑3)—were charged under Section 302 read with Section 34 IPC. A telephonic intimation at 17:45 was treated by the trial court as the FIR, leading to the conviction of A‑2 and acquittal of A‑1 and A‑3; the High Court later rejected that view, held the 23:45 complaint to be the proper FIR, and convicted all three based on consistent eyewitness testimony establishing a common intention. The Supreme Court affirmed that the 17:45 entry was not an FIR, that the eyewitness evidence proved participation and common intention despite the lack of specific injuries to the deceased, and that the trial court’s acquittals were erroneous. Consequently, the appeals were dismissed and the convictions upheld.

Issues considered

The telephonic information recorded at 17:45 constitutes an FIR or not
Whether the eyewitness testimony establishes common intention under Sec. 34 IPC despite absence of injuries attributable to A‑1 and A‑3
Whether the trial court erred in acquitting A‑1 and A‑3
The scope of appellate power to overturn an acquittal

Legislation cited

Subjects

FIRcommon intentionSection 34 IPCeyewitness testimonyappellate reviewacquittalmurdercriminal law

Judgment

[2021] 3 S.C.R. 255 255

NETAJI ACHYUT SHINDE (PATIL) & ANR. A
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 121 of 2019)
MARCH 23, 2021
B
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
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
C
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 D
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
E
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 – F
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
G
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
H
255
256 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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
B
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
C 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,
D 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
E 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.
F 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
G 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
H
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 257
MAHARASHTRA

SCC 336 : [2003] 3 Suppl. SCR 904; Surajit Sarkar A
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 B
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 C
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 D
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, E
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 doubt
that PW-6, PW-2 and PW-18 had in fact witnessed the entire F
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 G
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-
H
258 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
H SCC 779 : [1976] 3 SCR 876; Nandu Rastogi v. State
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 259
MAHARASHTRA

of Bihar (2002) 8 SCC 9 : [2002] 3 Suppl. SCR 30; A
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 B
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, C
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, D
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] E

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. F
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 G
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]

H
260 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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.
Case Law Reference
B [2001] 3 SCR 942 relied on Para 21
[2003] 3 Suppl. SCR 904 relied on Para 21
[2012] 13 SCR 634 relied on Para 22
[1976] 3 SCR 876 relied on Para 31
C
[2002] 3 Suppl. SCR 30 relied on Para 32
2020 (10) SCC 517 relied on Para 33
[1961] 3 SCR 120 relied on Para 35
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D No. 121 of 2019.
From the Judgment and Order dated 16.07.2018 of the High Court
of Judicature at Bombay, Bench at Aurangabad, in Criminal Appeal No.
46 of 2014.

E With
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.
F
The Judgment of the Court was delivered by
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
G 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
H the accused (first accused Netaji Achyut Shinde (Patil), second accused
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 261
MAHARASHTRA [S. RAVINDRA BHAT, J.]

Samadhan Shinde, and third accused Balasaheb Kalyanrao Shinde (Patil), A
[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 B
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, Osmanabad1 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 C
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 D
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 E
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 F
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 G
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,
1
Hereafter “the trial court”. H
262 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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
B
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
C 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 kill Suhas. Suhas got up and ran towards Sonar Galli. On the way,
D
the absconding accused Anant warned bystanders not to intervene, or
he would stab them. All accused followed the deceased Suhas, as he
entered Kothavale Jewellers. PW-2 stated that Satish Tekale and Pradip
Mete were present and when they asked the accused what they were
doing, one of the accused asked to bring a motorcycle. Upon this, one of
E them brought a motorcycle (No.MH- 25/W-1744 which had the
photograph of Anant Chonde on the front). All four accused left on that
motorcycle. PW-2 then telephoned PW-1 Ramhari Shinde, and· informed
about the incident; thereafter he went to Kothavale Jewellers, where
Suhas was lying with injuries. Pradip Mete and Satish Tekale took the
deceased to the government hospital; the doctor asked them to take the
F
injured to Ambajogai for further treatment. Accordingly, Ramhari, Vikas
Barkul, 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. During
cross examination, PW-2 admitted that Ramhari (PW-1) was his maternal
uncle. He stated that he did not inform the police immediately, though
G the police station was nearby. He further stated that 50-100 persons had
gathered at the place of the incident. PW-3 Balkrishna Gangadhar Bhawar
admitted to being the President of the Indian Nationalist Congress party
for Kallam district and that he did not report the incident to the police,
despite witnessing the incident. PW-4, similarly, corroborated the
testimony of PW-2 and PW-3.
H
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 263
MAHARASHTRA [S. RAVINDRA BHAT, J.]

5. The prosecution relied on the testimonies of P.W.2 Balasaheb A
Kshirsagar, P.W.3 Balkrishna Bhawar, P.W.4 Shivraj Ritapure and P.W.18
Ravindra Mohanlal Oza as eye witnesses to the incident. The other
main eyewitnesses were the doctor PW-12, who conducted the post-
mortem report. PW-19 and PW-20 were police officers who deposed
during the trial. Besides their statements, exhibits such as blood-stained
B
clothes worn by the accused, and material objects i.e. weapons, blood
stained soil, etc were produced.
6. The trial court treated the first information received at 17:45
hours on 05.07.2011 as the first information, and discarded the FIR
recorded later during the night, at 11:30 PM. It rejected the accused’s
argument that the eyewitnesses were all partisan and therefore, unreliable. C
Yet, based predominantly on the medical evidence, which it read as
negating any role of the accused Netaji (A-1) and Balasaheb (A-3),the
trial court acquitted them of the charges levelled. It further held that in
the absence of any injury of the kind attributed to these accused (who
are also appellants before this court), no finding of their culpability, to D
warrant a conviction, could be returned. As far as A-2, Samadhan is
concerned, the trial court held him guilty, on account of his participation
with the absconding accused, i.e. Anant, with whom he went away on a
motorcycle, driven by him (i.e. Samadhan).
7. An appeal was preferred by Samadhan, and the state (which E
was given leave to appeal by the High Court), against the findings of the
trial court, absolving Netaji and Balasaheb. At the High Court, these
findings of acquittal were reversed; they were convicted of the offences
charged, on an overall appreciation of the prosecution evidence. It was
held that the trial court completely overlooked the depositions of
eyewitnesses and gave no reasons why their statements were to be cast F
aside, and that it erred in giving overall primacy to medical evidence.
The testimonies of eyewitnesses, some of whom had no connection with
the deceased, as well as the recoveries made pursuant to the accused’s
statements, during investigation, had been ignored. On an overall
appreciation and analysis of the evidence, therefore, A-1 and A-3 were G
convicted; A-2 Samadhan’s conviction was affirmed.
Submissions of the accused/appellants
8. The appellants argued that the prosecution version, which is
that the first information report was lodged at 11:30 PM, is false. Mr. S.
H
264 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Nagamuthu, learned senior counsel relied upon the findings of the trial
court and highlighted that the first intimation about the crime was itself
complete and was received by the police station at 5.30 p.m. in the
evening. He drew the attention of this court to Ex. P. 82, which is the
extract of the case diary, which at Entry 392, recorded the event. Learned
counsel highlighted that once the police authorities knew of the
B
occurrence of a serious incident, they were supposed to immediately
lodge 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, as
the intervening time between the intimation (05:30 PM) of the crime and
C lodging of FIR was spent in finding the whereabouts of the accused and
gathering details of the crime. Learned counsel relied upon the testimony
of PW 18, as well as PW 5 and argued that the police had in fact started
investigation, soon after the event was known to them, which supports
the argument that the details of the crime were known at 5:30 PM.
D Drawing the attention of the court to the FIR, learned senior counsel
submitted that the initial information talked of an attack by one motorcycle
ridden by two persons. However, when the FIR was actually allegedly
recorded, this version disappeared and an improvement, which had
involved other accused in order that they be implicated, was registered.
Also, learned counsel stated that the intervening time between the initial
E intimation and the recording of actual FIR was spent in spinning a yarn,
and seeking support from entirely partisan witnesses who were in fact
not witnesses to the incident, and were in some manner connected to
the deceased or his family.
10. Learned counsel contended that the findings of the trial court
F with 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. State
of Maharashtra 3 and Nilesh Naik @ Mangushekhar v. State of
Goa4in 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, two
persons who arrived on motorcycle assaulted one person at the corner of municipal
counsel complex near vegetable market and the said person took shelter in the jewelery
shop to save his life. He is unconscious and injured. Therefore, send the police immediately
hence, entry is taken regarding communication to police station.”
3
2004 ALL MR (Cri) 1308
4
H 2010 (3) Bom CR (Cri) 201
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 265
MAHARASHTRA [S. RAVINDRA BHAT, J.]

which constitutes the first information report (FIR) and that the credibility A
of an “official” or formal FIR shown to have been registered later, is
suspect as it affords considerable leeway to the police to cook up fictions
and falsely implicate innocent persons.
11. It was contended next that the trial court’s approach in rejecting
or discarding the oral testimonies of witnesses, and giving primacy to the B
objective medical evidence, which pointed to the nature of injuries, was
correct. Elaborating on this aspect, it was submitted that several witnesses
such as PW-1, PW-3, PW-4 and Pw-6 were known to the deceased as
well as PW-1. The Counsel urged this court to take into consideration
the circumstance that there existed a long-standing political rivalry
between members of the deceased’s family and those of the accused. C
The deceased in fact lived at Kothala village. The other witnesses were
partisan inasmuch as they could not explain why they were present at
the scene of the crime. Emphasising on this aspect, the learned senior
counsel pointed out that although these partisan witnesses are alleged to
have witnessed the crime, they took no steps to report it to the police. D
Here it was submitted that the police station was barely hundred metres
away and even according to the testimony of PW 19, could be accessed
by a 5 minute walk. Furthermore, according to the prosecution, nearly a
hundred people were present and had witnessed the event. Despite this,
the prosecution was able to dig out witnesses who were blatantly partisan
and had their own motives to implicate the accused. E

12. It was submitted that each of the alleged eyewitnesses, such
as PW-1, PW-2, PW-3, PW-4 and PW-6 could not offer any explanation
as to why they were present. Pointing out to PW-3, it was submitted that
being a professor in a college, the witness could not claim his presence
at the scene of occurrence even though he lived a distance away. F
Similarly, PW-4 lived in an entirely different village and did not offer any
explanation for why he came to the place of incident at that very moment
of the occurrence. It was argued out that these two witnesses, despite
their closeness to the deceased, neither sought to assist him or come to
his aid, nor even reported to the police station –a serious and important G
omission that undermines their credibility as objective witnesses.
13. It was next argued that the dying declaration relied upon by
the prosecution is unreliable and varies with the medical evidence; in
fact, it is not corroborated by medical evidence. Senior counsel submitted
that having regard to the nature of the injuries, it was not possible (for H
266 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Suhas) to make any oral statement as the injuries were to the right side
of the maxilla and mandible. If there were injuries to the upper jaw and
lower jaw, it was not possible to give a dying declaration. If the deceased
was in a fit condition to speak, he would have narrated the incident. He
did not do so; the relatives gave the case history. Counsel stated that the
deceased was under the influence of alcohol. In view of these facts, the
B
dying declaration was unreliable, and could not be the basis of conviction
of the appellants. P.W.1 complainant and P.W.7 doctor, have stated that
the 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 in
the shop. Thus, considering the entire documentary and oral evidence, it
C was 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 contrary
to law and probability. It was submitted that the distance between the
D police station to Kothala is 15 to 20 K.M. The police allegedly travelled
the 15- 20 K.M. within five minutes. This renders the panchnama
regarding recovery of accused’s clothes doubtful and liable to be rejected.
Further, the recovery of the accused’s clothes under Section 27 was
from an open place and could not be considered. It was highlighted that
the sessions court held that the recovery was contrary to the inquest and
E seizure panchnamas. Different clothes were shown in the seizure and
inquest panchnamas. The prosecution did not give any explanation about
change of the deceased’s clothes in the inquest panchnama. Likewise,
the delay in furnishing the muddemal articles for testing more than two
months after they were sealed (on 06.02.2011) was not explained, giving
F rise to the possibility of tampering.
15. It was submitted that the nature of the wounds on the person
of the deceased, according to the medical evidence, only established
that the absconding accused had caused fatal injuries. There was no
evidence in the medico-legal report or the post mortem report to
G substantiate the prosecution story about the appellants’ involvement in
the crime; indeed, the doctor PW-7 nowhere supported the prosecution
theory by deposing that the kind of injuries attributable to the appellants
were present on the body. That apart, the prosecution could not prove
any prior concert, or meeting of minds between the absconding accused
and the present appellants, to implicate them for the crime under Section
H
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 267
MAHARASHTRA [S. RAVINDRA BHAT, J.]

34. In the absence of any proof of common intention, their conviction A
had to be upset; the acquittal of two of the accused, should not have
been interfered with by the High Court.
16. It was submitted that almost all the prosecution witnesses,
barring official witnesses and four independent witnesses, were related
to the complainant, and could not by and large, explain the reason for B
their presence at the site. This created a suspicion that the complainant
made out a story to falsely implicate the accused/appellants, who were
nowhere in the picture. Two vital eyewitnesses were not examined.
Given that the deceased was critically wounded and could not have
given a dying declaration, the police used the 6-7 hours interval to spin a
story and falsely implicate the appellant, as was correctly surmised by C
the trial court. That the appellants were not named in the first intimation
during the early part of the evening when the police received information
of the crime, clearly showed that they were not involved.
17. It was lastly urged that the recovery of the motorcycle too
could not be proved, as is seen from a close reading of the contradictory D
evidence of PW-6 and PW-11. Besides, the eyewitness accounts showed
that the motorcycle belonged to the absconding accused.
18. Counsel for the state urged this court not to interfere with the
findings in the impugned judgment. It was submitted that the trial court
was heavily influenced by the arguments on behalf of the accused that E
the first intimation about the crime, itself constituted the first information
report; therefore, it discarded the evidence of PW-1 that he had
complained to the police about the offence at 11:30 PM, and, instead
treated that as a statement under Section 161. It was urged that the
evidence of PW-8 with respect to alleged theft of the motorcycle was F
correctly disbelieved; the trial court was convinced that Samadhan, one
of the accused, was a participant in the crime, and shared the common
intention. The trial court also gave credence to medical evidence,
particularly the testimonies of PW-7 and PW-12, with respect to the
nature of injuries. It was submitted that however, the trial court acquitted
the other accused, i.e. Netaji Shinde A-1 and Balasaheb (A-3) by G
disbelieving the dying declaration and also by holding that there were no
injuries answering to the acts attributed to these accused, on the deceased.
19. Learned counsel for the state emphasized that the trial court
acted in complete error, in overlooking the ocular evidence of PW-2,
H
268 SUPREME COURT REPORTS [2021] 3 S.C.R.

A PW-3, PW-4, PW-5 and PW-18. These individuals were present at the
moment, though in different places, and witnessed the sequence of events,
whereby the accused went together, leading to the second accused
attacking the deceased with a sword, and the motorcycle number on
which the absconding accused was seated with Samadhan (A-2). The
exhortation of the other accused at the time of the attack, and afterwards,
B
as well as the role played by them were clearly deposed by these
witnesses. PW-5 was the owner of the jewellery shop into which the
injured Suhas rushed, bleeding copiously. Apart from witnessing the
collapse of Suhas, this witness also deposed to the seizure of various
articles from his shop. Similarly, PW-18 was the owner of Raviraj Beer
C Bar, and was standing near the place where the entire episode occurred.
These witnesses were all consistent regarding the nature of the attack
upon Suhas, and the role played by the accused.
20. The state argued that the trial court had erred in ignoring
these vital pieces of evidence, and had gone by suspicions. Its rather
D simplistic conclusion that the absence of any physical injuries (due to
blows, beatings etc) indicated that there was no common intention, was
clearly wrong. It was submitted that the High Court correctly held that
an overall appreciation of the evidence showed that the accused who
stood trial were guilty beyond reasonable doubt.
E Analysis and Conclusions
21. The first issue which this court considers is whether the
appellants are correct, in arguing that the initial intimation received by
the police on telephone (at 5.45 P.M.) on the day of the incident, constituted
an FIR. According to counsel, the information about the attack was
F sufficient, and the entry made in the police register was sufficient to be
treated 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 be
treated as a statement under Section 161 of the Cr.PC. A cryptic phone
call without complete information or containing part-information about
the commission of a cognizable offence cannot always be treated as an
G FIR. This proposition has been accepted by this Court in T.T. Antony v.
State of Kerala5 and Damodar v. State of Rajasthan6. A mere message
or a telephonic message which does not clearly specify the offence,
cannot be treated as an FIR.
5
(2001) 6 SCC 181
6
H (2004) 12 SCC 336
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 269
MAHARASHTRA [S. RAVINDRA BHAT, J.]

22. In Surajit Sarkar v. State of West Bengal7, this Court held A
as follows:
“37. A bare reading of this makes it clear that even though
oral information given to an officer-in-charge of a police
station can be treated as an FIR, yet some procedural
formalities are required to be completed. They include B
reducing the information in writing and reading it over to the
informant and obtaining his or her signature on the
transcribed information.
38. In the case of a telephonic conversation received from
an unknown person, the question of reading over that C
information to the anonymous informant does not arise nor
does the appending of a signature to the information, as
recorded, arise.”
23. Exhibit 85 – extract of the police station diary, Item 39 has
been extracted above). That entry at 17.45 hours merely states that D
Ravi Harkar and Vishwajeet Thombre 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
subsequent entries relevant for this purpose are numbers 42 at 18.45 hrs
(enclosing the recording receipt of MLC from the Rural Civil Hospital
Kallam) that one Suhas had been seriously injured and shifted to E
Ambajogai for further treatment. Enquiry was handed over to HC
Bansode. The next entry talks of arranging bandobast at Kothala. Entry
50 recorded the departure of striking force of PSI Karle which left for
Kothala. 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 F
out the details of the accused and the incident.
24. It is quite evident from the record, therefore, that the intimation
given by two individuals - Ravi Harkar and Vishwajeet Thombre 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 G
nor even the precise location where the incident occurred were
mentioned. 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
7
(2013) 2 SCC 146 H
270 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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.
B 25. This court is also of the opinion that there is no merit in the
arguments that the police sought to improve the initial version and
somehow roped in the accused falsely. In this regard, the reliance placed
upon Entry 39 at Ex. 85 which talks of two assaults (in the initial telephonic
intimation) is unfounded. Quite often, depending upon how and what
people see and perceive about an incident, when they narrate it
C subsequently, the rendition might not be accurate in describing the
sequence or even the facts completely. Much would depend on the relative
distances and the angles where those individuals might have been placed
or located, relative to the incident or event. Therefore, the inclusion or
omission of more than two accused cannot be a matter of grave suspicion.
D It may be in the 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 the omission to mention four assailants
falsifies the prosecution story.
26. The appellants had urged that the medical evidence was not
E in consonance with the prosecution version about their role in the attack
upon Suhas. The Trial Court was convinced that the absence of any
injury which corroborated the evidence of eye witnesses that the accused
had beaten Suhas, was sufficient to conclude that they were not involved.
The evidence of PW-7, i.e. the doctor who had examined Suhas
immediately after the attack indicated the following injuries:
F
1. “Cut would over left side head extending towards mandible
interiorly. Bleeding was there. Since was 20x4 c 2 cm. Having
shape of spindle, vertical, edges were clean cut and everted
out.

G 2. Cut wound over left side arm posterior aspect medically
bleeding 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, spindle
shape.
H
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 271
MAHARASHTRA [S. RAVINDRA BHAT, J.]

All the injuries were caused within six hours. Cause of injuries A
was hard object with sharp cutting edge. All the three injuries
were grievous in nature.”
27. PW-12, who was the doctor who conducted the postmortem
noticed that there were four injuries. The relevant part of PW-12’s
deposition is extracted below: B
“I found following external injuries on the body.
1. Stab wound present over right side of maxilla and mandible
upto bone deep, 30 cm x 3 cm in length. Oblique in direction
towards left eye, edges inverted, margins clean cut. Angle
right angel, reddish colour blood adherent at side. C

2. Stab wound present over left posterior aspect 25cm x 14
cm in length. Vertical in direction, exposing bone and muscles
edges irregular in direction, reddish colour blood adherent
at site.
D
3. Stab would present over right forearm anterior aspect, 8
cm x 3 cm length horizontal in direction 4 cm above to wrist
joint, angles right angle, edges inverted. Reddish coloured
blood adherent at site.
4. Abrasion present over left side of back 9 cm x 0.3 cm size
E
vertical 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. The
deposition of PW-2 (closely related to PW-1) and that of PW-4 appears F
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, Ravindra Oza, 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 G
Suhas with fist blows. PW-6, Satish Shahji Tekale was standing in front
of a tea stall when Suhas burst in, running from Shivaji Chowk. He was
bleeding and was chased by the appellants and Anant Shinde who were
shouting loudly that Suhas ought to be caught and killed. PW-6 claimed
that he and one Pradip Mete intervened and, in the meanwhile Suhas H
272 SUPREME COURT REPORTS [2021] 3 S.C.R.

A 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 (No.MH-25/
W-1744) by which the accused went after the attack.
29. PW-5 was the owner of the shop “Kothavale Jewellers”
B 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 him (Suhas) sword blows and further that he had been chased by
C them. PW-5 also deposed that Satish Tekale and Pradip Mete took Suhas
to the hospital.
30. 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
D police despite knowledge of identity of the deceased. In the opinion of
this Court, 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 Suhas. No physical injury could be
E 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
F 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 the absence of any overt
injury on the person of the deceased did not in any manner diminish the
G role played by the present appellants. The prosecution had alleged a
common intention on their part, with the absconding accused. According
to PW-13, on 11.07.2011 accused Samadhan Shinde made a statement
to police in his presence and disclosed that he had taken motorcycle
from Parmeshwar Patil and thereafter they went to Sonesangavi Phata
and recovered Bajaj make Discover Motorcycle No.MH-25/W-1744,
H
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 273
MAHARASHTRA [S. RAVINDRA BHAT, J.]

which was parked there, under panchanama Ex. 71. Ex.69 was prepared A
between 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 from
situation to situation and much depends on the facts of each case and
the role played by each accused. This was highlighted in Ramaswami
Avyangar v. State of Tamil Nadu8 , where, to establish common intention B
it was held that:
“12.... The acts committed by different confederates in the
criminal action may be different but all must in one way or
the other participate and engage in the criminal enterprise,
for instance, one may only stand guard to prevent any person C
coming to the relief of the victim, or may otherwise facilitate
the execution of the common design. Such a person also
commits an “act” as much as his co-participants actually
committing the planned crime. In the case of an offence
involving physical violence, however, it is essential for the
application of Section 34 that the person who instigates or D
aids the commission of the crime must be physically present
at the actual commission of the crime for the purpose of
facilitating or promoting the offence, the commission of which
is the aim of the joint criminal venture. Such presence of those
who in one way or the other facilitate the execution of the E
common design, is itself tantamount to actual participation in
the ‘criminal act’. The essence of Section 34 is simultaneous
consensus of the minds of persons participating in the criminal
action to bring about a particular result. Such consensus can
be developed at the spot and thereby intended by all of
them....” F

32. In Nandu Rastogi v. State of Bihar9, highlighting how there
can be inference regarding common intention this court observed that:
“17.... They came together, and while two of them stood guard
and prevented the prosecution witnesses from intervening, G
three of them took the deceased inside and one of them shot
him dead. Thereafter they fled together. To attract Section 34
Indian Penal Code it is not necessary that each one of the
8
(1976) 3 SCC 779
9
(2002) 8 SCC 9 H
274 SUPREME COURT REPORTS [2021] 3 S.C.R.

A Accused must assault the deceased. It is enough if it is shown
that they shared a common intention to commit the offence
and in furtherance thereof each one played his assigned role
by doing separate acts, similar or diverse....
33. Recently, in Subed Ali And Others v. The State Of Assam10
B this court ruled that
“Common intention consists of several persons acting in
unison to achieve a common purpose, though their roles may
be different. The role may be active or passive is irrelevant,
once common intention is established. There can hardly be
C any direct evidence of common intention. It is more a matter
of inference to be drawn from the facts and circumstances of
a case based on the cumulative assessment of the nature of
evidence available against the participants. The foundation
for conviction on the basis of common intention is based on
the principle of vicarious responsibility by which a person is
D held to be answerable for the acts of others with whom he
shared the common intention. The presence of the mental
element or the intention to commit the act if cogently
established is sufficient for conviction, without actual
participation in the assault. It is therefore not necessary that
E before a person is convicted on the ground of common
intention, he must be actively involved in the physical activity
of assault.”
34. Here, the physical presence of the accused (including Appellant
Nos. 1 and 3) at the site of the actual commission of the crime and the
F 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
G 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

10
H 2020 (10) SCC 517
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 275
MAHARASHTRA [S. RAVINDRA BHAT, J.]

upon the first intimation, treating it as the FIR, and therefore, proceeding A
to doubt the prosecution version. It found no lacunae in the testimonies
of the eyewitnesses discussed above. 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.
B
35. This court would now consider whether the High Court fell
into error in re-appreciating evidence and arriving at a different conclusion
than the trial court, and convicting the present appellants. Long ago, in
Sanwat Singh v. State of Rajasthan11 this court dealt with the powers
of an appellate court, in cases where trial courts in India record acquittal.
The court quoted the decision of the Privy Council with approval: C

“7. The scope of the powers of an appellate court in an appeal
against acquittal has been elucidated by the Privy Council
in Sheo Swarup v. King-Emperor [LR 61 IA 398] . There Lord
Russell observed at p. 404 thus:
D
“… the High Court should and will always give proper
weight and consideration to such matters as (1) the views
of the trial Judge as to the credibility of the witnesses,(2)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he
has been acquitted at his trial, (3) the right of the accused E
to the benefit of any doubt, and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at
by a Judge who had the advantage of seeing the
witnesses….”
Adverting to the facts of the case, the Privy Council proceeded F
to state,
“… They have no reason to think that the High Court failed
to take all proper matters into consideration in arriving at
their conclusions of fact.”
G
These two passages indicate the principles to be followed by
an appellate court in disposing of an appeal against acquittal
and also the proper care it should take in re-evaluating the
evidence. The Privy Council explained its earlier observations
11
(1961) 3 SCR 120 H
276 SUPREME COURT REPORTS [2021] 3 S.C.R.

A in Nur Mohammad v. Emperor [AIR 1945 PC 151] thus at p.
152:
“Their Lordships do not think it necessary to read it all
again, but would like to observe that there really is only
one principle, in the strict use of the word, laid down there;
B that is that the High Court has full power to review at large
all the evidence upon which the order of acquittal was
founded, and to reach the conclusion that upon that
evidence the order of acquittal should be reversed.”
These two decisions establish that the power of an appellate
C court in an appeal against acquittal is not different from that
it has in an appeal against conviction; the difference lies more
in the manner of approach and perspective rather than in the
content of the power”.
***********
D 36. In Balbir Singh v. State of Punjab12 this Court observed much
to the same effect thus at p. 222:
“It is now well settled that though the High Court has full
power to review the evidence upon which an order of acquittal
is founded, it is equally well settled that the presumption of
E innocence of the accused person is further reinforced by his
acquittal by the trial court and the views of the trial Judge as
to the credibility of the witnesses must be given proper weight
and consideration; and the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who had
F the advantage of seeing the witnesses must also be kept in
mind and there must be substantial and compelling reasons
for the appellate court to come to a conclusion different from
that of the trial Judge.
These observations only restate the principles laid down by
this Court in earlier decisions. There are other decisions of
G
this Court where, without discussion, this Court affirmed the
judgments of the High Courts where they interfered with an
order of acquittal without violating the principles laid down
by the Privy Council.”
12
H AIR 1957 SC 216
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF 277
MAHARASHTRA [S. RAVINDRA BHAT, J.]

37. Again, in Babu v. State of Kerala 13this court held that A
“findings of fact recorded by a court can be held to be perverse if
the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible
material” or if they are ‘against the weight of evidence’ or if they
suffer from the “vice of irrationality”.
B
38. This court, after considering the reasoning in the impugned
judgment, is of the opinion that 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 C
murderous assault on the deceased, Suhas, 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. D
39. For the above reasons, there is no merit in the present appeals;
they are dismissed without order on costs.

Devika Gujral Appeals dismissed.
E

F

G

13
2010 (9) SCC 189 H