Telephonic message which does not clearly specify the offence, cannot be treated as an FIR: SC

Without mincing any words and without leaving any space for confusion of any kind, the Supreme Court has most recently on March 23, 2021 in a latest, learned, laudable and leading judgment titled Netaji Achyut Shinde (Patil) Vs. State of Maharashtra in Criminal Appeal No. 121 of 2019 With Criminal Appeal No(s). 328 of 2021 […]

Without mincing any words and without leaving any space for confusion of any kind, the Supreme Court has most recently on March 23, 2021 in a latest, learned, laudable and leading judgment titled Netaji Achyut Shinde (Patil) Vs. State of Maharashtra in Criminal Appeal No. 121 of 2019 With Criminal Appeal No(s). 328 of 2021 observed unambiguously that a telephonic message which does not clearly specify the offence cannot be treated as an FIR. In this case, the murder accused viz Samadhan Shinde, Netaji Achyut Shinde and Balasaheb Kalyanrao Shinde were convicted by the High Court. The Trial Court had acquitted Netaji and Balasaheb and convicted Samadhan. The High Court confirmed the conviction of Samadhan and reversed acquittal of others. While upholding the High Court judgment, the Apex Court Bench observed that the physical presence of the accused 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.

To start with, the ball is set rolling in para 1 of this brief, brilliant and balanced judgment authored by Justice S Ravindra Bhat for himself, Justice L Nageswara Rao and Justice Hemant Gupta wherein it is put forth that, “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), [hereafter referred to as A-1, A-2 and A-3 or by their names as Netaji, Samadhan and Balasaheb].”

To put things in perspective, the Bench then lays bare in para 2 that, “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, Osmanabad (hereafter “the trial court”) 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.”

What next unfolds is then stated in para 3 that, “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.”

While elaborating on the chain of events, the Bench then enunciates in para 4 that, “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 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 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.”

Of course, the Bench then states in para 5 that, “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.”

Pertinently enough, the Bench then observes in para 6 that, “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).”

Going forward, the Bench then specifies in para 7 that, “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 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.”

While striking the right chord and the right note, the Bench after listening to both sides then enunciates in para 21 that, “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 Kerala 5(2001) 6 SCC 181 and Damodar v. State of Rajasthan 6 (2004) 12 SCC 336. A mere message or a telephonic message which does not clearly specify the offence, cannot be treated as an FIR.” The last line of this para is very significant and forms the bedrock of this notable judgment also!

As it turned out, the Bench then points out in para 23 that, “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.”

As we see, the Bench then points out in para 24 that, “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.”

More pertinently, the Bench then makes it a point to mention in para 25 that, “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.”

It is worth noting that it is then envisaged in para 28 that, “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 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.”

What’s more, it is then noted in para 29 that, “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.”

It cannot be glossed over either that it is then pointed out in para 34 that, “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.”

Most pertinently, the Bench then holds in para 38 that, “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.”

As a corollary, the Bench then points out in para 39 that, “For the above reasons, there is no merit in the present appeals; they are dismissed without order on costs.”

In conclusion, the three-Judge Bench of Apex Court comprising of Justice S Ravindra Bhat, Justice L Nageswara Rao and Justice Hemant Gupta leaves no room of doubt whatsoever while deciding this latest judgment that telephonic message which does not clearly specify the offence cannot be treated as an FIR. The Apex Court Bench has thus rightly accorded the reasons also in this regard. So there is no reason why it must not be adhered to in totality as laid down by the three Judge Bench in this notable case so explicitly, elegantly and effectively.