Netaji Achyut Shinde(Patil) vs The State Of Maharashtra on 23 March, 2021


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Supreme Court of India

Netaji Achyut Shinde(Patil) vs The State Of Maharashtra on 23 March, 2021

Author: S. Ravindra Bhat

Bench: L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat

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                                                                  REPORTABLE

                   IN THE SUPREME COURT OF INDIA
                  CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO. 121 OF 2019



NETAJI ACHYUT SHINDE (PATIL) & ANR.                         ….APPELLANT(S)



                                       VERSUS



THE STATE OF MAHARASHTRA                                    ....RESPONDENT(S)


                                      WITH


                   CRIMINAL APPEAL NO (s). 328 OF 2021




                                    JUDGEMENT

S. RAVINDRA BHAT, J.

1. The appellants, in these two appeals, impugn a common judgment of the
Aurangabad Bench of the Bombay High Court convicting them of committing the
offence punishable under Section 302 read with Section 34 of the Indian Penal
Code. One appellant (all of them hereafter referred to by name), the second accused
Samadhan Shinde, was convicted by the trial court, while the other two were
acquitted. These acquittals were reversed by the impugned judgment which
convicted all the accused (first accused Netaji Achyut Shinde (Patil), second
accused Samadhan Shinde, and third accused Balasaheb Kalyanrao Shinde (Patil),
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[hereafter referred to as A-1, A-2 and A-3 or by their names as Netaji, Samadhan
and Balasaheb].

2. A first information report (FIR 80/2011) was registered at Kallam police
station, alleging the commission of offences punishable under Section 302 read with
Section 34 IPC, i.e., the murderous attack on one Suhas, the deceased. The
statements of eyewitnesses as well as the dying declaration by the deceased Suhas
were relied on in the charge sheet which was subsequently filed, implicating the
accused. The learned Additional Sessions Judge, 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 of the
charges. The defence of the accused was denial, and that they were falsely
implicated due to political enmity and property dispute. The trial court, on
consideration of the evidence led by the prosecution, convicted A-2 Samadhan; it
however, found the evidence against A-1 Netaji Shinde and A-3 Balasaheb Shinde
to be doubtful and acquitted them.

3. The High Court granted the state leave to appeal; A-2 Samadhan too appealed
against his conviction and sentence. The High Court by the impugned judgment
reversed the acquittal of A1 and A3 and affirmed the conviction of A-2 Samadhan.
All three are therefore in appeal.

The essential facts and evidence considered by the courts

4. The prosecution alleged that on 5.7.2011, at about 5.30 PM at Shivaji Chowk,
in front of one Raviraj Beer Bar at Kallam, district Osmanabad, all the accused
appellants further to their common intention assaulted the deceased, Suhas and
inflicted serious injuries with a sword as well as by fist blows and kicks. At about
7.15 PM, Suhas succumbed to his injuries, at the S.R.T.S. Medical College and
Hospital, Ambajogai. Based on a complaint lodged by P.W.1 Ramhari Shinde, the

1Hereafter “the trial court”.

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FIR was registered at 11.45 PM at Kallam police station. The FIR alleged the
involvement of the four individuals- i.e. the three appellants/accused persons, and
one Anant Balasaheb Shinde; he could not however be charged and tried, as he
absconded. The FIR was registered upon the complaint lodged at 11.45 PM hours of
Ramhari Ganpatrao Shinde, resident of village Kothala, Kallam stating that he was a
social worker. The complainant, PW-1 Ramhari Shinde’s brother, Prakash had two
sons; (the deceased Suhas and one Vikas). Ramhari Shinde was Taluka President of
the Nationalist Congress Party for Kallam, Chairman of Kallam Taluka Market
Committee, and Sarpanch of his village; the deceased was taluka Vice President of
the Youth Nationalist Congress party. He admitted that there was a police post near
the Shivaji statue at Kallam. He was informed about the incident by PW-2,
Balasaheb Kshirsagar. PW-2 deposed that he was in front of Padmasinh Patil
Complex, which is in Shivaji Square. When the deceased was getting down from his
motorcycle in front of Raviraj Beer Bar, the accused and absconding accused went
there on a motor cycle, with a sword in hand. He gave sword blows on the face,
neck and hand of the deceased and the other accused gave fist blows and kicks to
the deceased. PW-2 stated that the deceased fell down. As he was crossing the road
to reach the spot where Suhas was, he heard the accused saying that they would kill
Suhas. Suhas got up and ran towards Sonar Galli. On the way, 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 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 injured to Ambajogai for further treatment.
Accordingly, Ramhari, Vikas Barkul, Prashant Lomate and Satish Tekale took Suhas
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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,
corroborated the testimony of PW-2 and PW-3.

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 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 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. 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 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 was given leave
to appeal by the High Court), against the findings of the trial court, absolving Netaji
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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 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 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. 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 39 2, recorded the event.
Learned counsel highlighted that once the police authorities knew of the 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 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,

2Entry 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 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.”
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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 connected 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 Goa4
in aid of his argument that it is the first intimation of
the crime 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 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. 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

32004 ALL MR (Cri) 1308
42010 (3) Bom CR (Cri) 201
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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 distance 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 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 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 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
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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 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 established that the absconding accused had
caused fatal injuries. There was no evidence in the medico-legal report or the post
mortem 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 prove any prior
concert, or meeting of minds between the absconding accused and the present
appellants, to implicate them for the crime under Section 34. In the absence of any
proof of common intention, their conviction 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 their presence at the site. This created
a suspicion that the complainant made out a story to falsely implicate the
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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 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,
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 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 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, 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
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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 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 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 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.

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 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 FIR. This proposition has been
accepted by this Court in T.T. Antony v. State of Kerala5 and Damodar v. State of

5(2001) 6 SCC 181
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Rajasthan6. A mere message or a telephonic message which does not clearly specify
the offence, cannot be treated as an FIR.

22. In Surajit Sarkar v. State of West Bengal7, this Court held 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
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 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 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 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 out the details of the accused and the incident.

6(2004) 12 SCC 336
7(2013) 2 SCC 146
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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 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 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.

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
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. 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 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
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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:

1. “Cut would over left side head extending towards mandible
interiorly. Bleeding was there. Since was 20×4 c 2 cm. Having shape
of spindle, vertical, edges were clean cut and everted out.

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.

All the injuries were caused within six hours. Cause of injuries 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:

“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.

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.

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
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 to have been doubted to some extent by the Trial
Court. However, what is clear from the entire reading of the record – including the
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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 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
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 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 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 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 postmortem did not reveal any corresponding
wound on account of fist blows or kicks. However, that does not conclude the issue
15

in favour of the appellants. The consistent testimony of all the eyewitnesses was
clearly that the present appellants were part of the attack; they played an active role
in assaulting Suhas and chasing him, which eventually forced him to run into PW-
5’s shop and collapse there. The material objects recovered from the site as well as
PW-5’s shop which included bloodstains clearly supported the story of these
eyewitnesses. Having regard to these circumstances, 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 motorcycle from Parmeshwar Patil and thereafter
they went to Sonesangavi Phata and recovered Bajaj make Discover Motorcycle
No.MH-25/W-1744, 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 case 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 enterprise, for instance, one
may only stand guard to prevent any person 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 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 common design, is itself tantamount to actual

8(1976) 3 SCC 779
16

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….”

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, 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 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 Assam 10 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 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 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
before a person is convicted on the ground of common intention,
he must be actively involved in the physical activity of assault.”

9(2002) 8 SCC 9
102020 (10) SCC 517
17

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 amounts to actual participation in the criminal act. The evidence – i.e. the
exhortation by these accused, their active role in attacking the deceased, chasing
him and leaving the crime scene together, clinches that there was a consensus of the
minds of persons participating in the criminal action to bring about a particular
result. It was this aspect which the trial court glaringly overlooked, and instead,
misdirected itself grossly in focusing upon the first intimation, treating it as the FIR,
and therefore, proceeding to doubt the prosecution version. It found no lacunae in
the testimonies of the eyewitnesses 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
Rajasthan11this 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 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

11(1961) 3 SCR 120
18

not weakened by the fact that he has been acquitted at his
trial, (3) the right of the accused 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 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 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 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; 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 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”.

***********

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
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
12 AIR 1957 SC 216
19

consideration; and 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 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 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.”

37. Again, in Babu v. State of Kerala13 this court held that “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”.

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 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.

132010 (9) SCC 189
20

39. For the above reasons, there is no merit in the present appeals; they are
dismissed without order on costs.

…………………………………J
[L.NAGESWARA RAO]

……………………………………………J
[HEMANT GUPTA]

………………………………………….J
[S. RAVINDRA BHAT]

New Delhi,
March 23, 2021.



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