Omission To Mention Complete Details Of Assailants Does Not Falsify Prosecution Story: Supreme Court

The Supreme Court while disallowing the appeal filed by accused(s) against conviction has observed that per se omission to mention complete details of the assailants does not falsify the prosecution story.

“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.”, Full Bench of Justice L Nageshwar Rao, Justice Hemant Gupta & Justice S Ravindra Bhatt noted.

In the present matter, an FIR was filed alleging the commission of offences punishable under Section 302 read with Section 34 IPC, for murderous attack on the deceased. On consideration of the evidence led by the prosecution, the Trial Court convicted Accused No 2 Samadhan & acquitted Accused 1 Netaji Shinde & Accused 3 Balasaheb Shinde since it found the evidence against them doubtful. The Aurangabad Bench of Bombay High Court on granting the state leave to appeal reversed the acquittal of A1 & A3 & affirmed the conviction of A2 Samadhan. Thereafter, the accused(s) approached this Court against the 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.

The first issue that arose for consideration was whether the appellants were 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.

The appellant’s counsel in this regard contented that the information about the attack was sufficient, and the entry made in the police register was sufficient to be treated as an FIR. The Counsel further submitted that subsequent statements of the complainant that were registered late in the night at 11:45 P.M were to be treated as a statement u/s 161 CrPC,1973.

In this context, the Bench placed reliance on T.T. Antony v. State of Kerala (2001) 6 SCC 181 , Damodar v. State of Rajasthan (2004) 12 SCC 336 & Surajit Sarkar v. State of West Bengal (2013) 2 SCC 146 to observe that,

“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.”

Further, the Bench while upholding the Bombay High Court Judgement opined that the High Court correctly inferred that the FIR recorded at 17:45 hrs could not be treated as an FIR.

Concerning the minor inconsistencies with respect to the details of the accused the Bench further observed that the same were inconsequential as the overall weight of evidence clearly pointed out the role of the accused as those who attacked the deceased.

The Court referred to Ramaswami Avyangar v. State of Tamil Nadu (1976) 3 SCC 779, Nandu Rastogi v. State of Bihar (2002) 8 SCC 9 & Subed Ali And Others v. The State Of Assam 2020 (10) SCC 517 to observe that what constitutes proof of common intention, differs from situation to situation & much depends on the facts of each case and the role played by each accused.

“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.”, the Bench remarked.

Thus, the Bench while upholding the impugned judgement observed that the High Court was correct in reversing the appellant’s acquittal.

“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 Court observed.

Case Title: Netaji Achyut Shinde (Patil) & Anr. V. The State Of Maharashtra | Crl Appeal No 121 of 2019

Law Point/Statute Involved: Section 302 & Section 34 of Indian Penal Code,1860