The Hon’ble SC observed that a telephonic message which does not specify the offence so committed, cannot be treated as an FIR.
In the present matter, three accused were convicted for the offence of murder by the Hon’ble HC. Whereas in the Hon’ble Trial Court had acquitted two of the accused and convicted one of the accused of the offence of murder. Subsequently, the Hon’ble HC confirmed the conviction of one of the accused and overturned the acquittal of the two others.
Needful to mention one of the contentions raised by the appellant was that the preliminary information established on the day of the incident establishes an attack by one motorcycle ridden by two persons. However, when the FIR was allegedly recorded, this version was missing, which had tangled the other two accused so that they be implicated. According to the appellant, it is the first intimation of the crime which constitutes the FIR and that the credibility of a formal FIR shown to have been registered later, is suspect as it affords considerable scope to the police to cook up fictions and falsely implicate innocent persons.
Additionally, the appellant also argued that the subsequent statement of the complainant, had to be treated as a statement under Section 161 of the Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.PC., 1973”).
Soon after the Hon’ble Apex Court bench considered the issue as to whether the initial intimation received by the police on the telephone on the day of the incident constituted an FIR. The Hon’ble SC bench additionally cited the pronouncement made by the Hon’ble SC in the matter of T.T. Antony v. the State of Kerala (2001) 6 SCC 181 and Damodar v. State of Rajasthan (2004) 12 SCC 336 and besides declared 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.”
The Hon’ble SC after hearing the parties and noting the facts of the present case, held that “It is quite apparent from the record, that the intimation was given by two persons purely set out the unembellished 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 stated. Applying the tests directed by the judgments of the Hon’ble Court, the Hon’ble court thinks that the HC, in the appeal before it, correctly inferred that the first information recorded could not be treated as an FIR. In these situations, 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 that constitutes the FIR.
The Hon’ble bench also rejected the contention that the police pursued to improve the preliminary version and somehow roped in the accused falsely. “Quite often, depending upon how and what people see and perceive about an incident when they narrate it subsequently, the interpretation might not be precise in describing the order or even the facts wholly. Much would rest on the relative distances and the angles where those individuals might have been placed or located, relative to the incident or event. Therefore, the addition 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. However, it cannot be said that the omission to mention four attackers falsies the prosecution story.”, the bench added.
Upholding the Hon’ble HC judgment, the Hon’ble bench observed that the physical attendance of the accused at the site of the actual commission of the crime and the testimony of independent witnesses about their role, clearly establishes that it was to facilitate 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 appeal by these accused, their active role in attacking the deceased, chasing him, and leaving the crime scene together, settles 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 blatantly 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 omissions in the testimonies of the eyewitnesses discussed above. However, proceeding on the propositions that the first intimation was the FIR, and that it did not describe the role of four persons, but only mentioned two, the Hon’ble trial court acquitted the two accused”, the Hon’ble SC court said.
Case: Netaji Achyut Shinde (Patil) vs. State Of Maharashtra [CrA 121 OF 2019]
Coram: Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat
Counsel: Sr. Adv S. Nagamuthu
Citation: LL 2021 SC 176