Netaji Achyut Shinde (patil) & Anr. v. the State of Maharashtra
S. RAVINDRA BHAT, J.
1. The appellants, in these two appeals, impugn a com mon
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 Sh inde, 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
261
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 punishab le 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 1 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 prose cution,
convicted A-2 Samadhan; it however, found the evidence against A-1
Netaji Shinde and A-3 Balasaheb Shinde to be doubtful and ac quitted
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 a nd 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 Kalla m, 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 a lleged the
involvement of the four individuals- i.e. the three appellants/a ccused
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”.
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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, Chai rman of
Kallam Taluka Market Committee, and Sarpanch of his villa ge; 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, B alasaheb
Kshirsagar. PW-2 deposed that he was in front of Padmasi nh Patil
Complex, which is in Shivaji Square. When the deceased was get ting
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 an d
the other accused gave fist blows and kicks to the deceased. PW-2
stated that the deceased fell down. As he was crossin g 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,
the absconding accused Anant warned bystanders not to interve ne, 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 w ere
doing, one of the accused asked to bring a motorcycle. Upon this, one of
them brought a motorcycle (No.MH- 25/W-1744 which h ad 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 Jewelle rs, 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
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
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, co rroborated the
testimony of PW-2 and PW-3.
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5. The prosecution relied on the testimonies of P.W.2 Balasaheb
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 oth er
main eyewitnesses were the doctor PW-12, who conducted the post-
mortem report. PW-19 and PW-20 were police officers who depose d
during the trial. Besides their statements, exhibits such as blood-stained
clothes worn by the accused, and material objects i.e. weap ons, 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.
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 acc used (who
are also appellants before this court), no finding of their culpability, to
warrant a conviction, could be returned. As far as A-2, Sa madhan 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
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 dep ositions of
eyewitnesses and gave no reasons why their statements were to be cast
aside, and that it erred in giving overall primacy to medi cal 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
convicted; A-2 Samadhan’s conviction was affirmed.
Submissions of the accused/appellants
8. The appellants argued that the prosecution version, which i s
that the first information report was lodged at 11:30 PM, is false. Mr. S.
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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, w hich 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
occurrence of a serious incident, they were supposed to immediat ely
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
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.
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
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 connect ed to
the deceased or his family.
10. Learned counsel contended that the findings of the trial court
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 o f the crime
2 Entry 39, part of Ex. 82, reads as follows:
“Ravi Harkar and Vishwajeet Thombre R/o. Kallam informed telephonically that, two
persons who arrived on motorcycle assaulted one per son 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 2010 (3) Bom CR (Cri) 201
265
which constitutes the first information report (FIR) and that the credibility
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
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 decease d as
well as PW-1. The Counsel urged this court to take into conside ration
the circumstance that there existed a long-standing politic al rivalry
between members of the deceased’s family and those of the accused.
The deceased in fact lived at Kothala village. The other witnesses were
partisan inasmuch as they could not explain why they were pres ent at
the scene of the crime. Emphasising on this aspect, the learne d 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.
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.
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 di stance away.
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 witnesse s, 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
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 evi dence; 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
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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
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
was submitted that the dying declaration does not inspire co nfidence,
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
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
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
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 es tablished
that the absconding accused had caused fatal injuries. Ther e was no
evidence in the medico-legal report or the post morte m report to
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 pr ove
any prior concert, or meeting of minds between the absconding accused
and the present appellants, to implicate them for the crime under Section
267
34. In the absence of any proof of common intention, their convict ion
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 witn esses,
barring official witnesses and four independent witnesses, were related
to the complainant, and could not by and large, explain the re ason for
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 exa mined.
Given that the deceased was critically wounded and could not hav e
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
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
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
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, i nstead
treated that as a statement under Section 161. It was urged t hat the
evidence of PW-8 with respect to alleged theft of the mot orcycle was
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 medi cal 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 Balasa heb (A-3) by
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,
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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 a ccused
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,
as well as the role played by them were clearly depos ed 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 seizu re of various
articles from his shop. Similarly, PW-18 was the owner of Raviraj Beer
Bar, and was standing near the place where the entire episode occurred.
These witnesses were all consistent regarding the nature o f 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
simplistic conclusion that the absence of any physical in juries (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 acc used who
stood trial were guilty beyond reasonable doubt.
Analysis and Conclusions
21. The first issue which this court considers is wheth er 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 wa s
sufficient, and the entry made in the police register was sufficient to be
treated as an FIR. It was submitted that the subseq uent 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
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 (2004) 12 SCC 336
269
22. In Surajit Sarkar v. State of West Bengal 7, this Court held
as follows:
“37. A bare reading of this makes it clear that even thoug h
oral information given to an officer-in-charge of a police
station can be treated as an FIR, yet some procedur al
formalities are required to be completed. They incl ude
reducing the information in writing and reading it over to t he
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 tha t
information to the anonymous informant does not arise nor
does the appending of a signature to the informatio n, 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
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
Ambajogai for further treatment. Enquiry was handed ov er to HC
Bansode. The next entry talks of arranging bandobast at Kothala. Entry
50 recorded the departure of striking force of PSI Karle whic h 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
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 w as incomplete;
neither the name of the victim nor the names of the alleged at tackers
nor even the precise location where the incident oc curred 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
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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 constitute s the
FIR.
25. This court is also of the opinion that there is no merit in the
arguments that the police sought to improve the initial ve rsion 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 the y narrate it
subsequently, the rendition might not be accurate in desc ribing 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.
It may be in the given case, an aspect to be kept in mind when other
circumstances pointing to false implication might well ex ist. 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 n ot
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 exami ned Suhas
immediately after the attack indicated the following injuries:
1. “Cut would over left side head extending towards mandibl e
interiorly. Bleeding was there. Since was 20x4 c 2 cm. Hav ing
shape of spindle, vertical, edges were clean cut an d everted
out.
2. Cut wound over left side arm posterior aspect me dically
bleeding present. Since 10 cm x 4 cm 2cm spindle sh ape,
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, sp indle
shape.
271
All the injuries were caused within six hours. Cause of inj uries
was hard object with sharp cutting edge. All the three i njuries
were grievous in nature.”
27. PW-12, who was the doctor who conducted the postmortem
noticed that there were four injuries. The relevant par t of PW-12’s
deposition is extracted below:
“I found following external injuries on the body.
1. Stab wound present over right side of maxilla and mandibl e
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.
2. Stab wound present over left posterior aspect 25cm x 14
cm in length. Vertical in direction, exposing bone and mu scles
edges irregular in direction, reddish colour blood adherent
at site.
3. Stab would present over right forearm anterior as pect, 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 s ize
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 prosecu tion. 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 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 ass aulted
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
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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”
and though not a direct witness, immediately witnessed th e 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 s everely
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
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 ge neral line of
questioning appeared to be that the eye witness had not reported to the
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
attributed to the present accused since the MLC and postmor tem did
not reveal any corresponding wound on account of fist blows or kicks.
However, that does not conclude the issue in favour of the appell ants.
The consistent testimony of all the eyewitnesses was clear ly 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 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. 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 motor cycle
from Parmeshwar Patil and thereafter they went to Sonesangavi Phata
and recovered Bajaj make Discover Motorcycle No.MH-25/W-1744,
273
which was parked there, under panchanama Ex. 71. Ex.69 was prepared
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 cas e and
the role played by each accused. This was highlighted in Ramaswami
Avyangar v. State of Tamil Nadu8 , where, to establish common intention
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 ent erprise,
for instance, one may only stand guard to prevent any person
coming to the relief of the victim, or may otherwise fa cilitate
the execution of the common design. Such a person a lso
commits an “act” as much as his co-participants act ually
committing the planned crime. In the case of an off ence
involving physical violence, however, it is essentia l for the
application of Section 34 that the person who instiga tes or
aids the commission of the crime must be physically p resent
at the actual commission of the crime for the purpo se 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
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 c riminal
action to bring about a particular result. Such consensus can
be developed at the spot and thereby intended by al l of
them....”
32. In Nandu Rastogi v. State of Bihar 9, 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 interv ening,
three of them took the deceased inside and one of them s hot
him dead. Thereafter they fled together. To attract Section 34
Indian Penal Code it is not necessary that each one o f the
8 (1976) 3 SCC 779
9 (2002) 8 SCC 9
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
Accused must assault the deceased. It is enough if it is shown
that they shared a common intention to commit the offe nce
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 Assam 10
this court ruled that
“Common intention consists of several persons actin g in
unison to achieve a common purpose, though their roles may
be different. The role may be active or passive is irre levant,
once common intention is established. There can har dly be
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 natu re of
evidence available against the participants. The fou ndation
for conviction on the basis of common intention is ba sed on
the principle of vicarious responsibility by which a person is
held to be answerable for the acts of others with wh om he
shared the common intention. The presence of the me ntal
element or the intention to commit the act if cogen tly
established is sufficient for conviction, without a ctual
participation in the assault. It is therefore not necessary that
before a person is convicted on the ground of commo n
intention, he must be actively involved in the physical ac tivity
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
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 amount s to
actual participation in the criminal act. The evidence – i.e. the exhortation
by these accused, their active role in attacking the decea sed, 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 t he trial court
glaringly overlooked, and instead, misdirected itself grossly in focusing
10 2020 (10) SCC 517
275
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 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.
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 Rajasthan 11 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:
“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:
“… the High Court should and will always give prope r
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 accus ed, a
presumption certainly not weakened by the fact that he
has been acquitted at his trial, (3) the right of the acc used
to the benefit of any doubt, and (4) the slowness o f an
appellate court in disturbing a finding of fact arrive d at
by a Judge who had the advantage of seeing the
witnesses….”
Adverting to the facts of the case, the Privy Council p roceeded
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.”
These two passages indicate the principles to be follow ed by
an appellate court in disposing of an appeal against acquittal
and also the proper care it should take in re-evaluati ng the
evidence. The Privy Council explained its earlier observati ons
11 (1961) 3 SCR 120
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]
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 i s only
one principle, in the strict use of the word, laid do wn there;
that is that the High Court has full power to review at larg e
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
court in an appeal against acquittal is not different from that
it has in an appeal against conviction; the difference lies mo re
in the manner of approach and perspective rather than in the
content of the power”.
***********
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 ha s full
power to review the evidence upon which an order of acquittal
is founded, it is equally well settled that the presum ption of
innocence of the accused person is further reinforced by his
acquittal by the trial court and the views of the trial Jud ge 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 wh o had
the advantage of seeing the witnesses must also be kept in
mind and there must be substantial and compelling re asons
for the appellate court to come to a conclusion different from
that of the trial Judge.
These observations only restate the principles laid do wn by
this Court in earlier decisions. There are other dec isions of
this Court where, without discussion, this Court affirmed the
judgments of the High Courts where they interfered wi th an
order of acquittal without violating the principles laid down
by the Privy Council.”
12 AIR 1957 SC 216
277
37. Again, in Babu v. State of Kerala 13this court held that
“findings of fact recorded by a court can be held to be p erverse if
the findings have been arrived at by ignoring or excluding rele vant
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 ”.
38. This court, after considering the reasoning in the imp ugned
judgment, is of the opinion that the High Court was quite correc t 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, 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 rev ersed
the 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.
13 2010 (9) SCC 189
Devika Gujral Appeals dismissed.
NETAJI ACHYUT SHINDE (PATIL) & ANR. v. THE STATE OF
MAHARASHTRA [S. RAVINDRA BHAT, J.]