NETAJI ACHYUT SHINDE (PATIL) & ANR. versus THE STATE OF MAHARASHTRA

Citation: [2021] 3 S.C.R. 255 · Decided: 23-03-2021 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

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Judgment (excerpt)

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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 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
   [2021] 3 S.C.R. 255
255
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
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; Dam

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