ARVIND KUMAR @ NEMICHAND & ORS. versus STATE OF RAJASTHAN on 22 November 2021

[2021] 11 S.C.R. 237

ARVIND KUMAR @ NEMICHAND & ORS.

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STATE OF RAJASTHAN

(Criminal Appeal No. 753 of 2017)

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NOVEMBER 22, 2021

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Penal Code, 1860: s 302 rw s. 149 – Dispute between theparties over the pathway, an order of stay obtained by the primeaccused and consequential panchayat also held on the date ofoccurrence – Prime accused along with his son and 25 others gotinto the land of the victim and other witnesses, and attacked themwith weapons – Death of two and injuries to others – Complaintfiled by eye-witness – Acquittal of two while conviction of five ofthem – Acquittal of one more accused by the High Court whileupholding the conviction of the other four, and ordered for furtherinvestigation u/s 173(8) CrPC – Pursuant thereto, ten more accusedadded – Conviction and sentence of four accused while one referredto the Juvenile Justice Board, and acquittal of remaining five –Upheld by the High Court – On appeal, held: Evidence adduced isnot separable – Common findings rendered to be made applicableto all the accused – There are too many loopholes which cannot befilled up, nor there is any evidence to come to a different conclusionwith respect to the offence committed including that of exceedingthe right of private defence – When the plea of private defence istaken, the quality of material evidence have to be a bit higher thanthat of the one required in a normal circumstance – Civil disputebetween two groups of villagers turned into a criminal case –Investigation not conducted in a fair manner – Denial of injuries tothe accused by the witnesses, though mentioned in the FIR – Placeof occurrence also doubtful – Case of over implication by witnesses– Eyewitness’s evidence also does not inspire confidence – Viewthat the evidence of an injured witness has to be placed at a higherpedestal may not apply to a case of private defence with the accusedalso injured – Furthermore, doctor’s evidence does not support thespecific overt act – Genesis and origin of the occurrence and themanner in which it took place are certainly suppressed – Thus, thereis unwarranted approach of the prosecution – Order of acquittal CDEFGH237

Aupheld – Reasoning adopted for the accused persons acquitted tobe applied to the case of the others as well – Thus, accused entitledto the benefit of doubt as imprimatur given to the plea of privatedefence as possible and plausible with due discharge of onus.

ss. 96 to 102 – Private defence – Plea of – Discussed.Bs. 149 – Scope of – Stated.

Motive – Effect of, on prosecution case – Stated.

Investigation: Fair Investigation, defective investigation andcolourable investigation – Explained.CDoctrine/Principle: Falsus in uno-falsus in omnibus –Principle of.

Allowing the appeals by the accused and dismissing theappeals by the complainant, the Court HELD: 1.1 An Investigating Officer being a public servantDis expected to conduct the investigation fairly. While doing so,he is expected to look for materials available for coming to acorrect conclusion. He is concerned with the offense as againstan offender. It is the offense that he investigates. It is believedthat a pliable change is required in the mind of the InvestigatingEOfficer. After all, he is an officer of the court also and his duty isto find out the truth and help the court in coming to the correctconclusion. He does not know sides, either of the victim or theaccused but shall only be guided by law and be an epitome offairness in his investigation. [Para 40][258-G; 259-A-B]

F1.2 There is a subtle difference between a defectiveinvestigation, and one brought forth by a calculated and deliberateaction or inaction. A defective investigation per se would not enureto the benefit of the accused, unless it goes into the root of thevery case of the prosecution being fundamental in nature. Whiledealing with a defective investigation, a court of law is expectedGto sift the evidence available and find out the truth on the principlethat every case involves a journey towards truth. There shall notbe any pedantic approach either by the prosecution or by thecourt as a case involves an element of law rather than morality.[Para 41][259-B-D]

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1.3 An offense would involve an element of mental rebellionwhen the mind of a person creates an action not supported by theethos and values of a social structure in the form of law. Thisdeviant behaviour is the harbinger of an offense ultimately. Afeeling of pain, sorrow or tragedy is mental. It is what is thoughtand not what is suffered that constitutes an action. Such an actionmight at times create a social deviance. It is this part which isexpected to be seen both by the Investigating Officer and thecourt while dealing with a criminal case. [Para 43][259-E-F]

1.4 A fair investigation would become a colourable one whenthere involves a suppression. Suppressing the motive, injuriesand other existing factors which will have the effect of modifyingor altering the charge would amount to a perfunctory investigationand, therefore, become a false narrative. If the courts find thatthe foundation of the prosecution case is false and would notconform to the doctrine of fairness as against a conscioussuppression, then the very case of the prosecution falls to theground unless there are unimpeachable evidence to come to aconclusion for awarding a punishment on a different charge. [Para45][260-D-E]

Kumar v. State (2018) 7 SCC 536 : [2018] 5 SCR 343– referred to.

1.5 A private defence need not be set up in a particularmanner. Such a private defence need not be confined to theindividual accused alone, to be applied to the others. Though theinitial onus is on the accused to satisfy the court, the extent ofevidence is that of preponderance of probabilities. Thereafter,the onus shifts. Once a private defence is accepted, there aretwo questions alone to the answered by the court, namely, thedefence coming within the purview of Section 96 to Section 102IPC and the other acting in excess. The concept of acting inexcess has to be seen from the point of view of continuedexistence of the apprehension of danger. When the apprehensiongets effaced with the attack being continued by an accused takingthe plea of private defence, exceeding the said right would occur.The weapons used in the process would attain significancedepending upon the facts of the case and if the injuries suffered AB

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Aby the accused unless being minor and superficial or suppressedon purpose, the benefit shall enure. The omission on the part ofthe prosecution to explain the injuries on the person of the accusedassumes much greater importance where the evidence consistsof interested or inimical witnesses or where the defence gives aversion which competes in probability with that of the prosecutionBone. [Para 46, 47][260-F-H; 261-A-B; 265-D]

Kashiram v. State of M.P. (2002) 1 SCC 71 : [2001] 4Suppl. SCR 263; State of Gujarat v. Bai Fatima (1975)2 SCC 7 : [1975] 3 SCR 993 – referred to.

C1.6 The principle that when a witness deposes falsehood,the evidence in its entirety has to be eschewed may not havestrict application to the criminal jurisprudence in our country.The principle governing sifting the chaff from the grain has to beapplied. However, when the evidence is inseparable and such anattempt would either be impossible or would make the evidenceDunacceptable, the natural consequence would be one of avoidance.The said principle has not assumed the status of law but continuesonly as a rule of caution. One has to see the nature of discrepancyin a given case. When the discrepancies are very material shakingthe very credibility of the witness leading to a conclusion in theEmind of the court that it is neither possible to separate it nor torely upon, it is for the said court to either accept or reject. [Para48][266-A-C]

Lakshmi Singh v. State of Bihar (1976) 4 SCC 394;Anand Ramachandra Chougule v. Sidarai LaxmanFChougala (2019) 8 SCC 50 : [2019] 11 SCR 14 –referred to.

1.7 Section 149 of the Code deals with a common object.To attract this provision there must be evidence of an assemblywith the common object becoming an unlawful one. The conceptGof constructive or vicarious liability is brought into this provisionby making the offense committed by one member of the unlawfulassembly to the others having the common object. It is the sharingof the common object which attracts the offense committed byone to the other members. Therefore, the mere presence in anassembly per se would not constitute an offense, it does becomeH

one when the assembly is unlawful. It is the common object tocommit an offense which results in the said offense beingcommitted. Therefore, though it is committed by one, a deemingfiction is created by making it applicable to the others as welldue to the commonality in their objective to commit an offense.Thus, it is for the prosecution to prove the factors such as theexistence of the assembly with a requisite number, the commonobject for everyone, the object being unlawful, and an offensecommitted by one such member. Courts will have to be morecircumspect and cautious while dealing with a case of accusedcharged under Section 149 IPC, as it involves a deeming fiction.Therefore, a higher degree of onus is required to be put on theprosecution to prove that a person charged with an offense isliable to be punished for the offence committed by the othersunder section 149 IPC. [Para 50][268-C-F]

Ranjit Singh v. State of Punjab (2013) 16 SCC 752 :[2013] 13 SCR 633 – referred to.

1.8 Motive might lose its significance when adequateevidence in the form of eyewitnesses are available to theacceptance of the court. But, when a motive might have the impactof introducing a perceptible change to the very case projected bythe prosecution, in favour of the accused, it cannot be brushedaside. It becomes more relevant when an accused sets up theplea of private defence. A common object and a motive may getinterconnected. Thus, a deliberate and intentional avoidance ofunimpeachable evidence qua motive would make the version ofthe prosecution a serious suspect. [Para 51][270-G-H; 271-A]

2.1 The investigation has not been conducted in a fairmanner. The evidence of PW-18 is recorded who is none otherthan the Government Doctor examined on behalf of theprosecution. This witness with abundant clarity has reiteratedthat accused were referred to him on 19.07.1989 by the police.The injury reports under the two Exhibits indicate the nature ofinjuries suffered. Two injured persons have been admitted as in-patient and treated on the request made by the prosecution.Despite questions having been put, there were deliberate denials A

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Aby PW-20 and PW-21. The fact that the injury reports did notrefer the FIR also weakens the case of the prosecution further.This puts the very case of the prosecution in serious doubt. PW-5 and PW-20 along with the other witnesses present at the timeof giving the complaint admitted that it was written by somebodyelse who was present nearby. PW-5 contradicts himself by hisBevidence in the second trial that it was written by a policeman. Itis beyond reasoning and human conduct that an unknown personcould be present in the police station and that too not to theknowledge of PW-20. When PW-5 could write and possibly theother witnesses present at the time of registration of ExhibitCP-12 and P-13, there is no reason to involve an unknown stranger.PW-20 says that he did not know by whom and where it waswritten. A very serious doubt certainly emerges in the mind onthe very genesis of the written complaint made by PW-5 and thattoo in the teeth of the clear suppression made. The evidencegiven by PW-11 that the accused were brought to the hospitalDunder the pretext of accident also cannot be accepted as the otherinjured witnesses were also there and the post-mortem was done.He also acknowledged the presence of the police. His evidencewas not accepted by PW-20 or PW-21. Once the said conclusionis arrived based upon the records available, the entire so-calledErecovery cannot be relied upon. The preparation of plan followedby other documents prepared during the investigation clearlyindicate the involvement of injured prosecution witnesses andthe explanation given in this regard is not satisfactory. [Para52][271-B-G]

F2.2 It is found that the injuries suffered are not simpleinjuries and they are numerous. The injured accused wereadmitted in the hospitals as in-patients. The investigation officerdid not go into the aspect of private defence deliberately. Thereis a clear admission with respect to non-consideration of an orderof stay obtained, the complaint given by him, the earlier panchayatGheld between the parties and the wall constructed by himpreventing the prosecution witnesses and the deceased to reachtheir respective places. Perhaps the prosecution would have cometo a different conclusion and so also the court if the truth wasplaced accordingly. On the contrary, witnesses deny the injuriesto the accused, though the FIR makes a mention. [Para 53][271-HH; 272-A-C]

2.3 The place of occurrence also creates doubts in the mind,on view of the contradiction between the map prepared on theone side and the evidence of PW-20 along with the PW-5 andPW-6. PW-20 has also admitted that it was prepared as per theadvice of PW-5. Evidence suggests that there was no blockage,and the wall was constructed by the main accused and there isnot much of a distance between the place of occurrence and thatof the land of the accused. The occurrence also took place in thecourtyard which is an open space. Though it is contended for thede facto complainant that there are concurrent findings of facts,it is found that when the facts are not considered properly by thecourts and are contrary to the evidence on record, this Court cancertainly invoke Article 136 of the Constitution of India. Afterall, a criminal case stands on a different footing than that of a civilcase where onus lies heavily on the prosecution. There is aconscious attempt not to go beyond the case as projected by theprosecution witnesses. [Para 54][272-C-E]

2.4 The reasoning adopted by the Court for the accusedpersons acquitted will have to be applied to the case of the othersas well in view of the said view expressed, as the suppressionmade would be sufficient to disbelieve the case of the prosecution.There is no adequate material for the Court to come to a differentconclusion with respect to the offence committed or for that matter,a case of exceeding the private defence. The accused personshave taken the plea of private defence as well as a bare denial.Once the Court has come to a conclusion that the other accusedpersons who have been acquitted would not have been present,the concept of private defence assumes more significance. TheHigh Court itself has come to a conclusion, and so also the trialcourt on the second occasion, that it is a case of over implication.There is no error in the views expressed by the Court on thatcount. [Para 55][272-F-H; 273-A]

2.5 The evidence adduced on behalf of the prosecution,particularly, the eyewitnesses does not inspire confidence. Whilethere is a clear denial of them having attacked the injured accusedpersons, a mere statement that they carried logs would not besufficient to reject the plea of private defence especially in thelight of the injuries suffered. The witnesses speak of multiple AB

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Ainjuries suffered by the deceased and the other injured witnesses.The view that the evidence of an injured witness has to be placedat a higher pedestal may not apply to a case of private defencewith the accused also injured. The doctor’s evidence does notsupport the specific overt act. Witnesses speak of knife, farsiand spears being used at random. The overt act attributed to theBconvicted accused using weapons such as farsi do not correspondto the injuries. The injuries are primarily lacerated in nature.The genesis and origin of the occurrence and the manner in whichit took place are certainly suppressed. When the plea of privatedefence is taken, the quality of material evidence will have to beCa bit higher than that of the one required in a normal circumstance.The concern is with the role of the prosecution in proving thecase beyond reasonable doubt. Unfortunately, two lives have beenlost. However, mere suspicion on a moral ground can never bethe basis for a conviction. This Court can only lament the situationbrought forth by the unwarranted approach of the prosecution.DIncidentally, the views of the High Court is approved on theacquittals rendered. [Para 56][273-A-F]

2.6 The prosecution witnesses though residing at differentplaces, stated to have gathered at the place of occurrence in largenumber. Admittedly, the occurrence also happened during theEnight-time and there is no evidence to show existence of sufficientlight. [Para 57][273-F]

2.7 The evidence adduced on behalf of the prosecution inthe second trial, exposes the version of the prosecution muchmore. Witnesses, once again, reiterate and re-confirm not onlyFthe factum of prior dispute and occurrence but also the closureof the pathway days before. The discussion on the facts beingsuppressed gets reinforced through the testimony of theGovernment doctor for the second time. Even the courts foundthat recoveries in some cases are found not proved. FindingsGhave been given on the delay in filing of the FIR and overimplication by the witnesses. Thus, it can only be stated that thesecond trial makes the case of the prosecution any better. Thereis force in the submission by the accused that the acquittal by theHigh Court, not challenged qua the first trial, would give the H

benefit to the similarly placed accused whose acquittal waschallenged in the second trial. [Para 58][273-G-H; 274-A-B]

2.8 The evidence adduced is not separable and the commonfindings rendered shall be made applicable to all the accused.There are too many loopholes which cannot be filled up, nor isthere any evidence to come to a different conclusion includingthat of exceeding the right of private defence. What emerged asa civil dispute between two groups of villagers turned into acriminal case.The accused-appellants are entitled to the benefitof doubt as imprimatur is given to the plea of private defence aspossible and plausible with due discharge of onus. [Para 59,60][274-C-D]

Ranjit Singh v. State of Punjab (2013) 16 SCC 752 :[2013] 13 SCR 633; State of Rajasthan v. Manoj Kumar(2014) 5 SCC 744 : [2014] 8 SCR 589; Vishvas AbaKurane v. State of Maharashtra (1978) 1 SCC 474;Lalji v. State of U.P. (1989) 1 SCC 437 : [1989] 1 SCR130; State of Karnataka v. Moin Patel (1996) 8 SCC167 : [1996] 2 SCR 919; Kripal Singh v State ofRajasthan (2019) 5 SCC 646 – referred to.

Case Law Reference

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.753 of 2017.

From the Judgment and Order dated 18.02.2015 of the High Courtof Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B. Criminal AppealNo.449 of 1990.B

With

Criminal Appeal Nos. 754-755 and 756 of 2017.

Ms. Vibha Dutta Makhija, Sr. Adv., Aftab Ali Khan, Ms. TehsheenaZ. Hussain, Praveen Gaur, Ali Safeer Farooqi, Syed Imtiyaz Ali,CMs. Shaiyra Khanna, Rajat S. Roy, Nripendra Nath Bain, Anand Mishra,N. A. Usmani, Amrendra Kumar, Sanjay Jain, Advs. for the Appellants.

Ashish Kumar, AAG, Ratnakar Dash, Sr. Adv., Rameezuddin Raza,Ms. Harsha Vinoy, Milind Kumar, Sudarshan Singh Rawat, Advs. forDthe Respondent.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. All these appeals sprout from a common occurrence. One setEof appeals are filed by the accused qua the charges framed on the firstoccasion. The other set of appeals are filed by the de facto complainantover a trial started in pursuance to the order passed invoking Section173(8) of the Criminal Procedure Code (CrPC), facilitating furtherinvestigation, leading to the addition of ten more accused. No appeal hasFbeen filed against the dismissal of the appeal against acquittal and allowingthe appeal against convictions qua the first trial. On the appeals filed bythe convicted individuals, the de facto complainant filed his applicationfor intervention. We deem it appropriate to deal with them by our commonorder, on the aforesaid scenario.

Brief SketchG

2. The prime accused, by name Surjaram had a dispute with thedeceased over a pathway. The said pathway opens and runs through thelands of the deceased and some other prosecution witnesses on the way H

to his dhani. The lands of the deceased and the pathway which is claimedby Surjaram as that of his own, are surrounded by the lands of the latter.

3. In view of the dispute aforesaid, Surjaram obtained an order ofstay in the revision petition filed by him. He had put up an obstruction byway of a wall blocking the entry of the deceased and others into theirdhani and lands. Surjaram was also stated to have approached the localpolice. An effort was made to resolve the dispute through panchayat onthe date of the occurrence.

4. It is the case of the prosecution that Surjaram along with hisson and other accused numbering about 25 in total, got into the land ofthe deceased Ladduram, who was sleeping in the courtyard along withother witnesses, and attacked them with farsi, barchi (small sword),lathi, bhala and sword in the wee hours of 18.07.1989. The otherdeceased Mohan and Brijender who were sleeping in their home nearbywere also dragged and attacked. The accused were stated to have comein two jeeps. The evidence of the prosecution would also suggest thatthe wall constructed blocking the pathway was found to be opened.

5. PW-5, Harlal, a physically challenged person needing theassistance of a stick to move around, had seen the occurrence fromabout 15-20 feet distance. On the next day i.e., 19.07.1989 at about6.00 a.m., PW-5 went to the police station and lodged a written complaintwhich was reduced in writing as the FIR under Exhibit P-13 by PW-20.The written complaint is said to have been written by a mysteriousstranger whose identity was not known to any of the prosecutionwitnesses including PW-20. On the statement of PW-5 that it was writtenin the police station, PW-20 feigned ignorance. Taking PW-5 along withthe other witnesses after sending the injured to the hospital, PW-20 tookup the investigation. He drew the plan and prepared a report on thesuggestion of PW-5. It was signed by one of the other prosecutionwitnesses who also spoke about the occurrence though strictly not as aneyewitness.

6. All the injured witnesses and deceased Mohan were giventreatment by PW-17 on the first occasion. Thereafter the post-mortemwas done by PW-18, on the request made by PW-20. He also examinedtwo of the injured accused viz., Arvind and Ramnarayan. Following arethe injuries suffered as could be seen from Exhibit D-15 and D-16:

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248SUPREME COURT REPORTS

A“MEDICAL & HEALTH DEPARTMENT, RAJASTHANInjury Report of Sh. Arvind Kumar S/o Surjaram Caste-JatDated of Examination: 19/07/89 AT 8:30 A.M.

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MEDICAL & HEALTH DEPARTMENT, RAJASTHAN

Injury Report of Sh. Ramnarayan S/o Rambakxa Ram, Aged -25years, Caste-Jat Dated of Examination: 19/07/89 AT 9.00 A.M.

BCDEFGH

7. PW-18 gave a statement that he did treat both the injured accusedpersons on the request made by the police and found the aforesaidmultiple injuries while taking them as in-patients and putting them throughfurther medical evaluation.

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8. PW-21, who was the Additional Superintendent of Police at theBrelevant point of time, took up the investigation from PW-20 on 24.07.1989.While PW-20 did the initial investigation including the preparation ofplan and sketch, inquest report and mahazar report, PW-21 is stated tohave arrested the accused on the same day, except Surjaram, who wasarrested on 08.08.1989 at the police station itself and made the recoveries.It is interesting to note that in almost all the recovery memos PW-11,COm Prakash who was also an interested witness, has been shown as the eyewitness. Strangely, the arrest of the accused, was shown to bedone on 31.07.1989, whereas two of the injured accused among them,were referred to the hospital by the police as early as on 19.07.1989, asadmitted by PW-11.D

9. After completion of the investigation, out of the 13 personsnamed by PW-5 in his written complaint, only seven have been chargedfor the major offense punishable under Section 302 of the Indian Penalcode simplicitor and Section 302 read with Section 149 among othersections. Almost all the witnesses are either close relatives or familyEmembers of the deceased. They are also stated to have been present atthe scene of occurrence despite having their dhanis at different places.

10. Before the trial court, in the first trial the prosecution hasexamined 20 witnesses and marked 59 exhibits. On behalf of the defence4 witnesses have been examined while marking 26 exhibits. In the secondFtrial, the prosecution has examined 20 witnesses and marked 61 exhibits,while the defence examined 4 witnesses and marked 16 exhibits. Someof the accused pleaded private defence while the others made a simpledenial. This is the factual position governing both the cases.

11. The trial court on the first occasion acquitted two of the accusedGwhile convicting five of them. On appeal, the High Court acquitted onemore accused while confirming the conviction of the other four. In theprocess it rejected the appeal filed against the acquittal.

12. In the meanwhile, yet another report was filed in pursuance tothe order passed under Section 173(8) of the CrPC providing for furtherinvestigation. Thus, an array of accused numbering about 10 more wereH

added and the case was taken up for trial for the second time over thesame occurrence. This time, four of them were convicted while onewas referred to the Juvenile Justice Board being a juvenile in conflictwith law. The remaining five accused were acquitted. Thus, life sentencewas imposed on the four accused.

13. Once again, appeals were preferred before the High Court.This time, the High Court while dismissing the appeals filed against theacquittal allowed the appeals filed by the convicted accused. Now allthe parties have filed their respective appeals before us, except the State.

Evidence Before the Court

14. We have perused the oral and documentary evidence producedbefore us in extenso. We would like to touch upon the evidence fromthe side of the prosecution while keeping in mind the evidence put up bythe defence. PW-5 is the author of the First Information Report (FIR).He is said to have seen the occurrence at night where there is no clearevidence of the existence of sufficient light. He actually went to take uplogs and stones stored by him in a nearby place despite his apparentinability to walk. He is a degree holder. He along with other witnessesreached the office of PW-20 at about 06.0 0 a.m. on 19.07.1989. In hisevidence he has stated that he did not know as to who wrote the complaintdespite his ability to write. An explanation was given that he could notwrite in view of the situation, though the other eyewitnesses includingthe injured witnesses were present. It is his evidence that it was writtenat the police station. He was also aware of the civil proceedings includingthe stay obtained against Ladduram. It is his further statement that theway to the dhani of the prosecution witnesses and the field passingthrough the field of Surjaram was indeed closed by him and they wantedit to be opened. He also used the pathway. An admission has been madethat in view of the presence of a large crowd one could not say who wasbeating whom. The conduct of the panchayat on the morning of the dateof occurrence was admitted. He has also seen the accused attackingthe deceased and the injured witnesses with the weapons attributed tothem.

15. PW-6 had deposed that the accused persons had come to hishouse just prior to the occurrence on foot. He also had a dispute withregard to the pathway, with the main accused Surjaram. He admits thatthe field was belonging to Surjaram and the pathway was closed on the A

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Adate of occurrence. He claims, he did not see the injuries suffered bythe injured accused. Surjaram’s field is adjacent to the field of Ladduram.To elicit the contradiction made by him, the defence has marked ExhibitD-3 which is the statement given under Section 161 CrPC by him.PW-9 identified some of the accused for the first time in the court. Heonce again speaks about the occurrence. On a specific query, he deniedBthe panchayat held.

16. PW-10, who is also an eyewitness, once again admitted thefact that the field of Surjaram is situated on both sides of the pathway.He denied the factum of the dispute having reached to the police stationon the earlier occasion. This witness is the son of the deceased,CLadduram.

17. PW-11 speaks about the presence of about 20-25 accusedpersons just prior to the occurrence. He is also the witness who is statedto have signed most of the recoveries made by the prosecution includingthe Exhibits P-21 – P-28 and P-31 to P-36. He is also the one who isDaggrieved by the order of stay obtained by Surjaram. The defence alsoconfronted him with the statement made under Section 161 CrPC. Thiswitness for a change speaks about the presence of the accused on19.07.1989 in the hospital. However, an explanation was given that theyhave got themselves admitted on the pretext of an accident. Though theEpolice personnel, including PW-21 was present, no action was taken.However, it is his deposition that both the injured accused were underthe custody of the police during their stay in the hospital. Thus, the evidenceof PW-11 does indeed help the case of the defence that the actual arrestwas truly supressed. The further statement given by PW-11 is to theeffect that when he reached the police station in the morning both theFheadmen were present. It is also to be noted that he did acknowledgethe fact that there was an attempt at reconciliation on 18.07.1989 at thepolice station, though he gives a different story that it was Surjaram whowas trying to attack him.

18. On the analysis of the aforesaid evidence, not only the presenceGof the accused at the time of the registration of the FIR could beunderstood but also the factum of the dispute reaching the police stationas alleged by the defence, on the date of occurrence, though in themorning hours, is clear.

19. PW-18 is the doctor who conducted the post-mortem. He hasHdeposed that the cause for the death of the deceased, Mohan Singh was due to shock and excessive bleeding. It is also a result of multiple fracturesand excessive injuries to the intestines. Prior to him, PW-17 conductedthe medical examination of the deceased, Mohan Singh, wherein he opinedthat injuries nos. 1-3 are inflicted by a sharp-edged weapon, while theremaining injuries have been caused by some blunt weapon. In his crossexamination he has stated that injury can be caused by a blunt weapon,but it can also be caused by sharp edged weapon on rare occasions.

20. It is very relevant to note that PW-18 in clear terms has statedthat he also conducted the medical examination of Arvind Kumar andRamnarayan, the two injured accused persons. He acknowledged ExhibitD-15 and D-16, strangely marked by the defence but not by theprosecution, pertaining to the injury reports of the aforesaid two accusedpersons, carrying 25 and 20 injuries respectively. In his evidence asPW-14 in the second trial, he made the following statement:

“I have also carried out the medical examination of the injuriesinflicted on the body of accused Arvind Kumar and Ram Narayan,both of them remained admitted at the hospital only. Both of themwere admitted patients. The medical examination of both accusedwas done at the request of police station Laxmangarh. For theinjuries inflicted on the body of Arvind Kumar S/o Surjaram themedical examination was carried out on 19.07.1989 at 7-8 in themorning and the following injuries were found on his body…”

21. We have no difficulty in accepting the said evidence of theprosecution, especially in the absence of any re-examination, in comingto the conclusion that the two injured accused suffered multiple injuries,got admitted as in-patients, underwent further treatment and all thishappened on the advice made by PW-20 and PW-21 as the case maybe. There is an obvious and clear suppression of the aforesaid facts.

22. PW-20, as stated, was the station officer who did the initialinvestigation. He did not make any investigation on the motive part,particularly with reference to the existing dispute between the partiesover the pathway, an order of stay having been obtained by Surjaram,and the consequential panchayat held. He admitted that he did not eithervisit the pathway or the surrounding land. He did not seem to rememberby who, when and where the complaint was written. Though there wassome evidence to show that he met the accused he did not remembermeeting them. Clear evidence has been let in by him saying that the A

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Adisputed pathway was open. He claims that he did not send the accusedto the hospital. The plan and sketch were prepared as per the advice ofPW-5. No investigation was done from the nearby houses and ownersof the nearby fields. At the time of preparation of the observation mahazarreport he did not record the statement of any witness as one of theprosecution witnesses was available at the said place. There was noBwall as found by him blocking the pathway.

23. The evidence, as understood by us, obviously does not inspireconfidence. PW-20 has certainly supressed many facts including thecircumstances under which the FIR was registered and the referenceof the two injured witnesses to the hospital.C

24. PW-21 took over the investigation which factum we haverecorded already. This officer holding a very high post made the arrestof the accused person excepting Surjaram on 31.07.1989. As per thearrest memos and Exhibits P-16 to P-18 and Exhibit P-9, Surjaram wasarrested on 08.08.1989, followed by the arrest memo under ExhibitDP-36. In his evidence he says that on 02.08.1989 he wrote letters toconduct medical examination of the accused persons. Even he was notaware of the facts narrated above involving the civil dispute. He did notremember as to whether he mentioned about the injuries inflicted on theaccused persons as per the arrest memo. However, he got the injuryEreports on 24.07.1989 itself. He did not even visit the disputed site norexamined the landlords nearby.

25. From the evidence discussed, the arrest having been made inthe police station few days after the treatment was given to the twoinjured witnesses, almost all the recovery memos found the name ofFPW-11, Om Prakash, who is an interested witness. We do not know asto how and in what manner arrest could be made especially when theevidence of PW-18 is clear in respect of the injuries suffered by the twoaccused persons and they were under the custody of the police whenthey were referred for treatment, which they took as in-patients.Obviously, PW-21 also did not conduct any investigation on the injuriesGsuffered by the accused. We do not wish to say anything more.

26. Witnesses examined on the side of the defence along with thedocuments would primarily indicate two factors preceding the occurrence,namely complaint having been made by Surjaram in the morning hoursof the date of occurrence, followed by an attempt to resolve the sameH

through panchayat. Injury reports of the defence have been markedalong with Section 161 CrPC statements given by the prosecutionwitnesses in support of the case as projected by the defence.

27. The prosecution witnesses in the second trial are the same asthe first one, except with the addition of a few. Even here, BhupendraSingh arrayed as PW-3, had stated that the disputed path was closeddays prior to the occurrence and the accused Ramnarayan was arrestedfrom the hospital. This again is yet another contradiction in the case ofthe prosecution.

28. PW-4, Harlal, who was PW-5 in the earlier trial, identifiedsome more accused in the court. Even this witness, once again statedthat the way to the farm of the deceased Laduram, was closed daysprior to the occurrence. While reiterating the statement made on thefirst occasion during the earlier trial, a further statement has been madethat papers for writing the written complaint were taken from theconstable, though he was consistent that he did not know who wrote. Itis his further evidence that the occurrence took place not in one placebut the area around it. Even on the date of occurrence, the pathway wasclosed. However, he deposed to the effect that it was the SHO whobroke open the way which also contradicts the statement made by thesaid officer.

29. Brijender, son of deceased Laduram is arrayed as PW-5 inthe second trial. He denied the injuries on the accused. PW-8, OmPrakash, in tune with the statement made by the other witnesses, madean assertion that Surjaram has closed the path, as told to him by thedeceased Laduram. He was also aware of the civil proceedings betweenthe parties. PW-9, son of the deceased Laduram had stated that theboundary wall of the field of the accused Surjaram was removed bythem.

30. PW-20, who was the SHO at the relevant point of time, gavehis evidence in tune with the earlier one. In his evidence he has statedthat he did not make any inquiries with the neighbours of the deceasedand the disputed way was open when he was travelling through it. Therewas no wall in existence at that point of time. As stated by him earlier,he had deposed that he did not know the author of the written reportunder Exhibit P-10 and the place where it was written.

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256SUPREME COURT REPORTS

31. Though the defence also let in evidence and marked certaindocuments, we do not wish to elaborate on them as we have discussedthem already. Hence, reiteration, in our considered view, is not warranted.

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32. We do not wish to go into the findings given either by the trialBcourt or by the High Court separately with respect to the first chargesheetand then the second chargesheet. Suffice it to state that there werefindings in favour of the accused with respect to over implication,contradiction in the evidence of the prosecution witnesses, disbelievingsome of the witnesses including the delay involved in lodging the FIRCand the test identification parade having not been conducted. The courtsalso found that there are certain interpolations on the date on whichSection 161 CrPC statements have been recorded. On the secondoccasion the courts did not approve the recoveries made.

33. While confirming the conviction it was accordingly held thatDthere is evidence from the prosecution side that the convicted accusedare the aggressors, the place of occurrence is not in dispute, injuries, ifany, are minor and there are specific attacks that are attributed. On theaforesaid reasoning conviction has been rendered by the High courtwhile confirming the judgment of the trial court SUBMISSIONSE

On behalf of the accused

34. Submissions are made by the learned counsel appearing onbehalf of the Appellants/Accused and also the Respondents who wereacquitted. Thus, we would like to summarise the submissions together.FA plea of private defence has been specifically taken which has notbeen considered in the correct perspective by the courts below nor anyinvestigation done on that. The delay caused in the FIR which is statedto have been registered at about 6:10 a.m. on 19.07.1989 having reachedthe concerned magistrate only at 5.00 p.m. though a jeep was availablehas not been explained by PW-20. The FIR number has not beenGmentioned in the injury reports as corroborated by evidence of PW-17and PW-18. The FIR appears to have been ante-dated. There is a clearsuppression by the investigating agency. No investigation has been doneon the motive. The site plan is contrary to the evidence of PW-20 andPW-6. The courts below ought not to have accepted the evidence ofHprosecution witnesses being interested witnesses. There are material contradictions in the evidence given. The requisite parameters to becomplied with for invoking Section 149 IPC are not available. At best, itcould be a case of a sudden fight. Having found the discrepancies in theevidence and given the benefit of doubt to the accused, the same oughtto have been followed for the others. The occurrence has taken place inan open spot. There is not much of a distance between the disputedproperty and the place of occurrence. The recovery having not beingproved, though in the second case, ought to have been applied in the firstcase as well. No independent witness was available during investigationand also before the court. The injuries inflicted would indicate onlylacerated injuries and not incised. The medical evidence is contrary tothe ocular evidence with respect to the injuries suffered. Insofar as theaccused persons who were acquitted, the High court has given cogentreasoning. There is nothing perverse in the said findings rendered. Sinceliberty of a person is involved, this Court can only interfere with theplausible or a possible view of the High court on the ground of perversityalone.

35. The accused persons acquitted by the High Court qua thesecond trial are similarly placed like the others acquitted pertaining tothe first one and therefore, the said decision being not challenged, achallenge made before this Court on the others is liable to be rejected.The non-mentioning of the number of the FIR registered, in the injuryreports of not only the witnesses but also the accused, raises a seriousdoubt that the said FIR is ante-dated. Witnesses have identified the accusedwrongly and some of the witnesses, who signed the memos pertaining torecovery have turned hostile.

36. The learned counsel made an attempt to draw support of thesubmissions through the decisions referred hereunder:

1. Kashi Ram Case (2002) 1 SCC 71

2. Lakshmi Singh Case (1976) 4 SCC 394

3. Ranjit Singh v. State of Punjab, (2013) 16 SCC 752

4. State of Rajasthan v. Manoj Kumar, (2014) 5 SCC 744

On behalf of the de facto complainant and the State

37. Findings of fact rendered by both the courts below shall notbe interfered with insofar as the conviction rendered and merely becausethe witnesses are either family members or relatives their evidence cannot AB

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Abe disbelieved. Specific and clear overt act has been attributed againstsome of the accused. The multiple injuries suffered would lead to aninference. A defective investigation would not enure to the benefit of theaccused. A mere delay per se can never be a ground for acquittal whenthere is adequate evidence both oral and documentary in support of theprosecution version. The plea of private defence and sudden fight areBintrinsically opposed to each other. The presence of the other accusedwould be sufficient enough to attract Section 149 IPC. Mere discrepanciesin the evidence would not make the prosecution version as false. Thedelay in sending an FIR is not substantial.

38. The HC has made an errorin recording wrong factual findingsCwith respect to the evidence of PW-4 and PW-5, who clearly speakabout the presence of the accused who were acquitted by it in the secondtrial. It did not consider the reasoning of the trial court as incorrect. Theevidence of PW-9 in the second trial has not been looked into in theproper perspective.D39. The learned counsel made specific reliance upon the followingjudgments:

1. Vishvas Aba Kurane v. State of Maharashtra, (1978) 1 SCC 474

2. Lalji v. State of U.P., (1989) 1 SCC 437

E3. State of Karnataka v. Moin Patel, (1996) 8 SCC 167

4. Karnataka v. Moin Patel, (1996) 8 SCC 167

5. Kripal Singh v State of Rajasthan (2019) 5 SCC 646

DISCUSSIONF

Fair, Defective, Colourable Investigation

40. An Investigating Officer being a public servant is expected toconduct the investigation fairly. While doing so, he is expected to lookfor materials available for coming to a correct conclusion. He is concernedwith the offense as against an offender. It is the offense that heGinvestigates. Whenever a homicide happens, an investigating officer isexpected to cover all the aspects and, in the process, shall always keepin mind as to whether the offence would come under Section 299 IPCsans Section 300 IPC. In other words, it is his primary duty to satisfythat a case would fall under culpable homicide not amounting to murder H

and then a murder. When there are adequate materials available, heshall not be overzealous in preparing a case for an offense punishableunder Section 302 IPC. We believe that a pliable change is required inthe mind of the Investigating Officer. After all, such an officer is anofficer of the court also and his duty is to find out the truth and help thecourt in coming to the correct conclusion. He does not know sides, eitherof the victim or the accused but shall only be guided by law and be anepitome of fairness in his investigation.

41. There is a subtle difference between a defective investigation,and one brought forth by a calculated and deliberate action or inaction.A defective investigation per se would not enure to the benefit of theaccused, unless it goes into the root of the very case of the prosecutionbeing fundamental in nature. While dealing with a defective investigation,a court of law is expected to sift the evidence available and find out thetruth on the principle that every case involves a journey towards truth.There shall not be any pedantic approach either by the prosecution or bythe court as a case involves an element of law rather than morality.

42. Our aforesaid observation is to point out the approach of theInvestigating Officers and at times courts. There is a clear distinction inthe Code on knowledge and intention. We do not wish to reiterate thesettled position of law but meant only to state a sleeping mind.

43. An offense would involve an element of mental rebellion whenthe mind of a person creates an action not supported by the ethos andvalues of a social structure in the form of law. This deviant behaviour isthe harbinger of an offense ultimately. A feeling of pain, sorrow or tragedyis mental. It is what we think and not what we suffer that constitutes anaction in us. Such an action might at times create a social deviance. It isthis part which is expected to be seen both by the Investigating Officerand the court while dealing with a criminal case.

44. We would only reiterate the aforesaid principle qua a fairinvestigation through the following judgment of Kumar v. State, (2018) 7SCC 536:

“27. The action of investigating authority in pursuing the case inthe manner in which they have done must be rebuked. The HighCourt on this aspect, correctly notices that the police authoritieshave botched up the arrest for reasons best known to them.Although we are aware of the ratio laid down in Parbhu v. King A

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Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], whereinthe Court had ruled that irregularity and illegality of arrest wouldnot affect the culpability of the offence if the same is proved bycogent evidence, yet in this case at hand, such irregularity shouldbe shown deference as the investigating authorities are responsiblefor suppression of facts.

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28. The criminal justice must be above reproach. It is irrelevantwhether the falsity lie in the statement of witnesses or the guilt ofthe accused. The investigative authority has a responsibility toinvestigate in a fair manner and elicit truth. At the cost of repetition,I must remind the authorities concerned to take up the investigationCin a neutral manner, without having regard to the ultimate result.

In this case at hand, we cannot close our eyes to what hashappened; regardless of guilt or the asserted persuasiveness ofthe evidence, the aspect wherein the police has actively connivedto suppress the facts, cannot be ignored or overlooked.”

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45. A fair investigation would become a colourable one when thereinvolves a suppression. Suppressing the motive, injuries and other existingfactors which will have the effect of modifying or altering the chargewould amount to a perfunctory investigation and, therefore, become afalse narrative. If the courts find that the foundation of the prosecutionEcase is false and would not conform to the doctrine of fairness as againsta conscious suppression, then the very case of the prosecution falls tothe ground unless there are unimpeachable evidence to come to aconclusion for awarding a punishment on a different charge.

Private defence

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46. A private defence need not be set up in a particular manner.Such a private defence need not be confined to the individual accusedalone, to be applied to the others. Though the initial onus is on the accusedto satisfy the court, the extent of evidence is that of preponderance ofprobabilities. Thereafter, the onus shifts. Once a private defence isGaccepted, there are two questions alone to be answered by the court,namely, the defence coming within the purview of Section 96 to Section102 IPC and the other acting in excess. The concept of acting in excesshas to be seen from the point of view of continued existence of theapprehension of danger. When the apprehension gets effaced with theattack being continued by an accused taking the plea of private defence, H

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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OFRAJASTHAN [M. M. SUNDRESH, J.]

exceeding the said right would occur. The weapons used in the processwould attain significance depending upon the facts of the case and if theinjuries suffered by the accused unless being minor and superficial orsuppressed on purpose, the benefit shall enure. The following paragraphsof the celebrated judgment of this Court in Kashiram v. State of M.P.,(2002) 1 SCC 71 would be felicitous:

“22. A few relevant factual and legal aspects overlooked by theHigh Court may now be noticed. The investigation suffers from aserious infirmity which has to some extent prejudiced the accusedin their defence. The investigating officer having found one of theaccused having sustained injuries in the course of the same incidentin which those belonging to the prosecution party sustained injuries,the investigating officer should have at least made an effort atinvestigating the cause of, and the circumstances resulting in,injuries on the person of accused Prabhu. Not only the investigatingofficer did not do so, he did not even make an attempt at recordingthe statement of accused Prabhu. If only this would have beendone, the defence version of the incident would have been beforethe investigating officer and the investigation would not have beenone-sided.

23. Section 105 of the Evidence Act, 1872 provides that the burdenof proving the existence of circumstances which would bring theact of the accused alleged to be an offence within the exercise ofright of private defence is on him and the court shall presume theabsence of such circumstances. However, it must be borne inmind that the burden on the accused is not so heavy as it is on theprosecution. While the prosecution must prove the guilt of theaccused to its hilt, that is, beyond any reasonable doubt, the accusedhas to satisfy the standard of a prudent man. If on the materialavailable on record a preponderance of probabilities is raised whichrenders the plea taken by the accused plausible then the sameshould be accepted and in any case a benefit of doubt shoulddeserve to be extended to the accused (see DahyabhaiChhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563] ,State of Punjab v. Gurbux Singh [1995 Supp (3) SCC 734 : 1996SCC (Cri) 88] and Vijayee Singh v. State of U.P. [(1990) 3 SCC190 : 1990 SCC (Cri) 378 : AIR 1990 SC 1459] ). In VijayeeSingh case [(1990) 3 SCC 190 : 1990 SCC (Cri) 378 : AIR 1990

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SC 1459] this Court emphasised the difference between a flimsyor fantastic plea taken by the defence which is to be rejectedaltogether and a reasonable though incompletely proved plea whichcasts a genuine doubt on the prosecution version and wouldtherefore indirectly succeed. “It is the doubt of a reasonable, astuteand alert mind arrived at after due application of mind to everyrelevant circumstance of the case appearing from the evidencewhich is reasonable”. (SCC p. 218, para 29)

24. The High Court was also not right in criticising and discardingavailability of plea of self-defence to the accused persons on theground that the plea was not specifically taken by the accused intheir statements under Section 313 CrPC and because the accusedPrabhu did not enter in the witness box. Though Section 105 ofthe Evidence Act enacts a rule regarding burden of proof but itdoes not follow therefrom that the plea of private defence shouldbe specifically taken and if not taken shall not be available to beconsidered though made out from the evidence available in the case. A plea of self-defence can be taken by introducing suchplea in the cross-examination of prosecution witnesses or in thestatement of the accused persons recorded under Section 313CrPC or by adducing defence evidence. And, even if the plea isnot introduced in any one of these three modes still it can be

raised during the course of submissions by relying on theprobabilities and circumstances obtaining in the case as held bythis Court in Vijayee Singh case [(1990) 3 SCC 190 : 1990 SCC(Cri) 378 : AIR 1990 SC 1459] . It is basic criminal jurisprudencethat an accused cannot be compelled to be examined as a witnessand no adverse inference can be drawn against the defence merelybecause an accused person has chosen to abstain from the witnessbox.

25. We do not deem it necessary to state the law of private defenceof person in very many details, as, for our purpose, it would sufficeto notice a few provisions of the Penal Code, 1860 and restateonly a few relevant and settled principles. Section 96 providesthat nothing is an offence which is done in exercise of the right ofprivate defence. Under Section 97 every person has a right, subjectto the restrictions contained in Section 99, to defend his own body,and the body of another person, against any offence affecting the human body. Under Section 99 the right of private defence in nocase extends to the inflicting of more harm than it is necessary toinflict for the purpose of defence. Under Section 100, right ofprivate defence of the body extends to causing death if the offencewhich occasions the exercise of such right is an assault whichreasonably causes an apprehension of death or grievous hurt,amongst others. Under Section 101, save as provided bySection 99, the right extends to the voluntary causing to theassailant of any harm other than death. Under Section 102 theright once available continues as long as an apprehension of dangerto the body continues. When the apprehension of danger hasceased and yet a person continues his attack, he exceeds theright of private defence.

26. …On the principles already stated hereinabove and in thecircumstances in which the accused persons were placed, theirright of private defence extended even to the extent of causingdeath so long as the apprehension continued. At the trial the firstsix witnesses examined by the prosecution were formal witnesses.Sundera, PW 7 is the first witness examined by the prosecution atthe trial deposing to the incident. In his statement, during cross-examination, the plea that the accused persons were acting inexercise of right of private defence of person was specificallyintroduced by suggesting that they were the members of theprosecution party who were the aggressors and the accused wereacting only in defence of their person. They wielded their weaponswhen accused Prabhu was being assaulted and was underapprehension of being killed or suffering grievous hurt.

28. In Dev Raj v. State of H.P. [1994 Supp (2) SCC 552 : 1994SCC (Cri) 1489 : AIR 1994 SC 523] this Court has held thatwhere the accused received injuries during the same occurrencein which the complainants were injured and when they have takenthe plea that they acted in self-defence, that cannot be lightlyignored particularly in the absence of any explanation of theirinjuries by the prosecution.

30. Could any of the accused persons have been held guilty ofany offence for causing hurt with the aid of Section 149 IPC? Wehave already held that the accused persons had right of privatedefence of person of accused Prabhu available to them. The right AB

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Aof private defence need not necessarily be exercised for thedefence of one’s own person; it can be exercised for the defenceof the person of another. So long as an assembly of persons isacting in exercise of the right of private defence it cannot be anunlawful assembly. An assembly though lawful to begin with mayin the course of events become unlawful. So long as the accusedBpersons were acting in exercise of right of private defence, theirobject was not unlawful and so there was no unlawful assemblybut once they exceeded the right, the assembly ceased to be lawfuland became an unlawful assembly. There too only such of themembers of the assembly who shared the object of doing anythingCin excess of the exercise of right of private defence, alone wouldbe liable to be punished for the acts committed in prosecution ofthe common object or for their individual unlawful acts. Theassemblage of accused persons, five or more in number, cannotwholly be held liable to conviction with the aid of Section 149 IPCunless the whole assembly shared the common object of doingDanything in excess of the exercise of the right of private defence.In the case at hand, the High Court has not arrived at a findingthat any of the injuries other than the one inflicted by Rameshwere so inflicted after the members of the complainant party hadtaken to their heels and yet Ramesh fired at them. If they hadEcaused any injury before the members of the prosecution partyhad turned their back and started running away from the scene ofoccurrence, there was no unlawful assembly and none could havebeen convicted either under Section 148 or with the aid of Section149 IPC. There is no finding arrived at by the High Court, andthere is no positive evidence available on record to hold, that anyFaccused (other than Ramesh, as to whom we are dealing withjust hereinafter) caused any injury to anyone after the right ofprivate defence had ceased to be available.”

47. In Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, thisCourt considered the effect of suppression of injuries suffered by theGaccused. Accordingly, it was held that if the injuries on the accused aresubstantial and to the knowledge of prosecution, a failure to conduct theinvestigation while denying the same would be fatal especially when adoctor who examined the deceased and the injured accused deposesotherwise. Paragraph 12 of the aforesaid judgement, states thus:H

“12. …It seems to us that in a murder case, the non-explanationof the injuries sustained by the accused at about the time of theoccurrence or in the course of altercation is a very importantcircumstance from which the court can draw the followinginferences:

“(1) that the prosecution has suppressed the genesis and the originof the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injurieson the person of the accused are lying on a most material pointand therefore their evidence is unreliable;

(3) that in case there is a defence version which explains theinjuries on the person of the accused it is rendered probable so asto throw doubt on the prosecution case.”

The omission on the part of the prosecution to explain the injurieson the person of the accused assumes much greater importance wherethe evidence consists of interested or inimical witnesses or where thedefence gives a version which competes in probability with that of theprosecution one. In the instant case, when it is held, as it must be, thatthe appellant Dasrath Singh received serious injuries which have notbeen explained by the prosecution, then it will be difficult for the court torely on the evidence of PWs 1 to 4 and 6, more particularly, when someof these witnesses have lied by stating that they did not see any injurieson the person of the accused. Thus neither the Sessions Judge nor theHigh Court appears to have given due consideration to this importantlacuna or infirmity appearing in the prosecution case. We must hasten toadd that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2SCC 7] there may be cases where the non-explanation of the injuries bythe prosecution may not affect the prosecution case. This principle wouldobviously apply to cases where the injuries sustained by the accused areminor and superficial or where the evidence is so clear and cogent, soindependent and disinterested, so probable, consistent and creditworthy,that it far outweighs the effect of the omission on the part of theprosecution to explain the injuries. The present, however, is certainly notsuch a case, and the High Court was, therefore, in error in brushingaside this serious infirmity in the prosecution case on unconvincingpremises.

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AFalsus in Uno- Falsus in Omnibus

48. The principle that when a witness deposes falsehood, theevidence in its entirety has to be eschewed may not have strict applicationto the criminal jurisprudence in our country. The principle governing siftingthe chaff from the grain has to be applied. However, when the evidenceBis inseparable and such an attempt would either be impossible or wouldmake the evidence unacceptable, the natural consequence would beone of avoidance. The said principle has not assumed the status of lawbut continues only as a rule of caution. One has to see the nature ofdiscrepancy in a given case. When the discrepancies are very materialshaking the very credibility of the witness leading to a conclusion in theCmind of the court that it is neither possible to separate it nor to rely upon,it is for the said court to either accept or reject.

49. The said principle of law has been dealt with by this court inAnand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8SCC 50, which states thus:D

“9. We have considered the respective submissions and perusedthe materials on record. The relationship between parties and theexistence of a land dispute regarding which a civil suit was alsopending are undisputed facts. The fact that a verbal duel followedby scuffle took place between the parties culminating in injuries isEa concurrent finding of fact by two courts. The fact that theaccused also lodged an FIR with regard to the same occurrencestands established by the evidence of PWs 19 and 22, theinvestigating officers, who have admitted that the respondent-accused had also lodged BRPS Cr. No. 79/02 — marked Ext.FD-10, which was not investigated by them. Similarly, PW 11, thepolice constable, deposed that two of the accused were admittedin the District Hospital, Belgaum and that he was posted on watchduty. The occurrence is of 7-6-2002 and respondent-Accused 1and 2 were discharged on 11-6-2002. Their injury report has notbeen brought on record by the prosecution and no explanation hasGbeen furnished in that regard.

10. The burden lies on the prosecution to prove the allegationsbeyond all reasonable doubt. In contradistinction to the same, theaccused has only to create a doubt about the prosecution caseand the probability of its defence. An accused is not required to H

establish or prove his defence beyond all reasonable doubt, unlikethe prosecution. If the accused takes a defence, which is notimprobable and appears likely, there is material in support of suchdefence, the accused is not required to prove anything further.The benefit of doubt must follow unless the prosecution is able toprove its case beyond all reasonable doubt.

11. The fact that a defence may not have been taken by anaccused under Section 313 CrPC again cannot absolve theprosecution from proving its case beyond all reasonable doubt. Ifthere are materials which the prosecution is unable to answer, theweakness in the defence taken cannot become the strength ofthe prosecution to claim that in the circumstances it was notrequired to prove anything. In Sunil Kundu v. State of Jharkhand[Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2SCC (Cri) 427] , this Court observed : (SCC pp. 433-34, para 28)

“28. … When the prosecution is not able to prove its casebeyond reasonable doubt it cannot take advantage of the factthat the accused have not been able to probabilise their defence.It is well settled that the prosecution must stand or fall on itsown feet. It cannot draw support from the weakness of thecase of the accused, if it has not proved its case beyondreasonable doubt.”

12. The fact that an FIR was lodged by the accused with regardto the same occurrence, the failure of the police to explain why itwas not investigated, coupled with the admitted fact that theaccused were also admitted in the hospital for treatment withregard to injuries sustained in the same occurrence, but the injuryreport was not brought on record and suppressed by theprosecution, creates sufficient doubts which the prosecution hasbeen unable to answer.

13. We find it difficult to concur with the submission on behalf ofthe appellants that the failure of the prosecution to investigate theFIR lodged by the accused with regard to the same occurrenceor to place their injury reports on record was merely a defectiveinvestigation. We are of the considered opinion that the failure ofthe prosecution to act fairly and place all relevant materials withregard to the occurrence before the court enabling it to take just A

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Aand fair decision has caused serious prejudice to them. A faircriminal trial encompasses a fair investigation at the pre-trial stage,a fair trial where the prosecution does not conceal anything fromthe court and discharges its obligations in accordance with lawimpartially to facilitate a just and proper decision by the court inthe larger interest of justice concluding with a fairness in sentencingBalso.”

Scope of section 149

50. Section 149 of the Code deals with a common object. To attractthis provision there must be evidence of an assembly with the commonCobject becoming an unlawful one. The concept of constructive or vicariousliability is brought into this provision by making the offense committed byone member of the unlawful assembly to the others having the commonobject. It is the sharing of the common object which attracts the offensecommitted by one to the other members. Therefore, the mere presencein an assembly per se would not constitute an offense, it does becomeDone when the assembly is unlawful. It is the common object to commitan offense which results in the said offense being committed. Therefore,though it is committed by one, a deeming fiction is created by making itapplicable to the others as well due to the commonality in their objectiveto commit an offense. Thus, it is for the prosecution to prove the factorsEsuch as the existence of the assembly with a requisite number, thecommon object for everyone, the object being unlawful, and an offensecommitted by one such member. Courts will have to be more circumspectand cautious while dealing with a case of accused charged under Section149 IPC, as it involves a deeming fiction. Therefore, a higher degree ofonus is required to be put on the prosecution to prove that a personFcharged with an offense is liable to be punished for the offence committedby the others under section 149 IPC. The principle governing the aforesaidaspect is taken note of by this court in Ranjit Singh v. State of Punjab,(2013) 16 SCC 752:

“35. Baladin v. State of U.P. [AIR 1956 SC 181 : 1956 Cri LJG345] was one of the early cases in which this Court dealt withSection 149 IPC. This Court held that mere presence in anassembly does not make a person a member of the unlawfulassembly, unless it is shown that he had done or omitted to dosomething which would show that he was a member of theHunlawful assembly or unless the case fell under Section 142 IPC.

Resultantly, if all the members of a family and other residents ofthe village assembled at the place of occurrence, all such personscould not be condemned ipso facto as members of the unlawfulassembly. The prosecution in all such cases shall have to leadevidence to show that a particular accused had done some overtact to establish that he was a member of the unlawful assembly.This would require the case of each individual to be examined sothat mere spectators who had just joined the assembly and whowere unaware of its motive may not be branded as members ofthe unlawful assembly.

36. The observations made in Baladin case [AIR 1956 SC 181 :1956 Cri LJ 345] were considered in Masalti v. State of U.P.[AIR 1965 SC 202 : (1965) 1 Cri LJ 226] where this Courtexplained that cases in which persons who are merely passivewitnesses and had joined the assembly out of curiosity, withoutsharing the common object of the assembly stood on a differentfooting; otherwise it was not necessary to prove that the personhad committed some illegal act or was guilty of some omission inpursuance of the common object of the assembly before he couldbe fastened with the consequences of an act committed by anyother member of the assembly with the help of Section 149 IPC.The following passage is apposite in this regard: (Masalti case[AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , AIR p. 211, para 17)

“17. … The crucial question to determine in such a case iswhether the assembly consisted of five or more persons andwhether the said persons entertained one or more of thecommon objects as specified by Section 141. While determiningthis question, it becomes relevant to consider whether theassembly consisted of some persons who were merely passivewitnesses and had joined the assembly as a matter of idlecuriosity without intending to entertain the common object ofthe assembly. It is in that context that the observations madeby this Court in Baladin [AIR 1956 SC 181 : 1956 Cri LJ 345]assume significance; otherwise, in law, it would not becorrect to say that before a person is held to be a memberof an unlawful assembly, it must be shown that he hadcommitted some illegal overt act or had been guilty of someillegal omission in pursuance of the common object of the AB

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Aassembly. In fact, Section 149 makes it clear that if anoffence is committed by any member of an unlawfulassembly in prosecution of the common object of thatassembly, or such as the members of that assembly knewto be likely to be committed in prosecution of that object,every person who, at the time of the committing of thatBoffence, is a member of the same assembly, is guilty of thatoffence; and that emphatically brings out the principle thatthe punishment prescribed by Section 149 is in a sensevicarious and does not always proceed on the basis thatthe offence has been actually committed by every memberCof the unlawful assembly.”

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(emphasis supplied)

37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] thisCourt held that while in a faction-ridden society there is always atendency to implicate even the innocent with the guilty, the onlyDsafeguard against the risk of condemning the innocent with theguilty lies in insisting upon acceptable evidence which in somemeasure implicates the accused and satisfies the conscience ofthe court.

39. That in a faction-ridden village community, there is a tendencyEto implicate innocents also along with the guilty, especially when alarge number of assailants are involved in the commission of anoffence is a matter of common knowledge. Evidence in such casesis bound to be partisan, but while the courts cannot take an easyroute to rejecting out of hand such evidence only on that ground,Fwhat ought to be done is to approach the depositions carefullyand scrutinise the evidence more closely to avoid any miscarriageof justice.”

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Motive

51. Motive might lose its significance when adequate evidence inGthe form of eyewitnesses are available to the acceptance of the court.But, when a motive might have the impact of introducing a perceptiblechange to the very case projected by the prosecution, in favour of theaccused, it cannot be brushed aside. It becomes more relevant when anaccused sets up the plea of private defence. A common object and amotive may get interconnected. Thus, a deliberate and intentionalH

avoidance of unimpeachable evidence qua motive would make theversion of the prosecution a serious suspect.

Merits

52. We are distressed to note that the investigation has not beenconducted in a fair manner. We have already recorded the evidence ofPW-18 who is none other than the Government Doctor examined onbehalf of the prosecution. This witness with abundant clarity has reiteratedthat accused were referred to him on 19.07.1989 by the police. Addedto that, Exhibit D-15 and D-16 were marked by the defence. The injuryreports under the aforesaid two Exhibits indicate the nature of injuriessuffered. Two injured persons have been admitted as in-patient and treatedon the request made by the prosecution. Despite questions having beenput, there were deliberate denials by PW-20 and PW-21. The fact thatthe injury reports did not refer the FIR also weakens the case of theprosecution further. This puts the very case of the prosecution in seriousdoubt. PW-5 and PW-20 along with the other witnesses present at thetime of giving the complaint admitted that it was written by somebodyelse who was present nearby. PW-5 contradicts himself by his evidencein the second trial that it was written by a policeman. It is beyond reasoningand human conduct that an unknown person could be present in thepolice station and that too not to the knowledge of PW-20. When PW-5could write and possibly the other witnesses present at the time ofregistration of Exhibit P-12 and P-13, there is no reason to involve anunknown stranger. PW-20 says that he did not know by whom and whereit was written. A very serious doubt certainly emerges in our mind on thevery genesis of the written complaint made by PW-5 and that too in theteeth of the clear suppression made. The evidence given by PW-11 thatthe accused were brought to the hospital under the pretext of accidentalso cannot be accepted as the other injured witnesses were also thereand the post-mortem was done. He also acknowledged the presence ofthe police. His evidence was not accepted by PW-20 or PW-21. Oncewe come to the said conclusion based upon the records available, theentire so-called recovery cannot be relied upon. The preparation of planfollowed by other documents prepared during the investigation clearlyindicate the involvement of injured prosecution witnesses and theexplanation given in this regard is not satisfactory.

53. We find that the injuries suffered are not simple injuries andthey are numerous. The injured accused were admitted in the hospitals A

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Aas in-patients. The investigation officer did not go into the aspect ofprivate defence deliberately. There is a clear admission with respect tonon-consideration of an order of stay obtained by Surjaram, the complaintgiven by him, the earlier panchayat held between the parties and thewall constructed by him preventing the prosecution witnesses and thedeceased to reach their respective places. Perhaps the prosecution wouldBhave come to a different conclusion and so also the court if the truthwas placed accordingly. On the contrary, witnesses deny the injuries tothe accused, though the FIR makes a mention.

54. The place of occurrence also creates doubts in our mind, onview of the contradiction between the map prepared on the one side andCthe evidence of PW-20 along with the PW-5 and PW-6. PW-20 has alsoadmitted that it was prepared as per the advice of PW-5. Evidencesuggests that there was no blockage, and the wall was constructed bythe main accused and there is not much of a distance between the placeof occurrence and that of the land of the accused. The occurrence also

Dtook place in the courtyard which is an open space. Though it is contendedby the learned counsel appearing for the de facto complainant that thereare concurrent findings of facts, we find that when the facts are notconsidered properly by the courts and are contrary to the evidence onrecord, this Court can certainly invoke Article 136 of the Constitution ofIndia. After all, a criminal case stands on a different footing than that ofEa civil case where onus lies heavily on the prosecution. There is aconscious attempt not to go beyond the case as projected by theprosecution witnesses.

55. The reasoning adopted by the Court for the accused personsacquitted will have to be applied to the case of the others as well in viewFof the aforesaid view expressed by us already, as we find that thesuppression made would be sufficient to disbelieve the case of theprosecution. There is no adequate material for the Court to come to adifferent conclusion with respect to the offence committed or for thatmatter, a case of exceeding the private defence. The accused personsGhave taken the plea of private defence as well as a bare denial. Oncethe Court has come to a conclusion that the other accused persons whohave been acquitted would not have been present, the concept of privatedefence assumes more significance. The High Court itself has come toa conclusion, and so also the trial court on the second occasion, that it is H

a case of over implication. We do not find any error in the viewsexpressed by the Court on that count.

56. The evidence adduced on behalf of the prosecution, particularly,the eyewitnesses do not inspire confidence. While there is a clear denialof them having attacked the injured accused persons, a mere statementthat they carried logs would not be sufficient to reject the plea of privatedefence especially in the light of the injuries suffered. The witnessesspeak of multiple injuries suffered by the deceased and the other injuredwitnesses. The view that the evidence of an injured witness has to beplaced at a higher pedestal may not apply to a case of private defencewith the accused also injured. The doctor’s evidence does not supportthe specific overt act. Witnesses speak of knife, farsi and spears beingused at random. The overt act attributed to the convicted accused usingweapons such as farsi do not correspond to the injuries. The injuries areprimarily lacerated in nature. This discussion we make in addition to ourprimary conclusion we arrived at already. Suffice it to note that thegenesis and origin of the occurrence and the manner in which it tookplace are certainly suppressed. When the plea of private defence istaken, the quality of material evidence will have to be a bit higher thanthat of the one required in a normal circumstance. We are concernedwith the role of the prosecution in proving the case beyond reasonabledoubt. Unfortunately, two lives have been lost. However, mere suspicionon a moral ground can never be the basis for a conviction. We can onlylament that the situation has been brought forth by the unwarrantedapproach of the prosecution. Incidentally, we approve the views of theHigh Court on the acquittals rendered.

57. We may note that the prosecution witnesses though residingat different places, stated to have gathered at the place of occurrence inlarge number. Admittedly, the occurrence also happened during the night-time and there is no evidence to show existence of sufficient light.

58. The evidence adduced on behalf of the prosecution in thesecond trial, as discussed by us earlier, exposes the version of theprosecution much more. Witnesses, once again, reiterate and re-confirmnot only the factum of prior dispute and occurrence but also the closureof the pathway days before. Our discussion on the facts being suppressedgets reinforced through the testimony of the Government doctor for thesecond time. Even the courts found that recoveries in some cases arefound not proved. Findings have been given on the delay in filing of the AB

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AFIR and over implication by the witnesses. Thus, we can only state thatthe second trial makes the case of the prosecution any better. We alsofind force in the submission made by the learned counsel appearing forthe accused that the acquittal by the High Court, not challenged qua thefirst trial, would give the benefit to the similarly placed accused whoseacquittal was challenged in the second trial, though we have dealt withBlarger issues.

59. After going through the judgments on four occasions by boththe courts, we find that the convictions rendered are to be interferedwith in the light of the discussions made. The evidence adduced is notseparable and the common findings rendered shall be made applicableCto all the accused. There are too many loopholes which cannot be filledup, nor is there any evidence to come to a different conclusion includingthat of exceeding the right of private defence. What emerged as a civildispute between two groups of villagers turned into a criminal case.

60. We are thus inclined to hold that the Accused-Appellants areDentitled to the benefit of doubt as we also give our imprimatur to the pleaof private defence as possible and plausible with due discharge of onus.

61. In the conspectus of above discussion, the appeals filed by theaccused i.e., Criminal Appeal No. 753 of 2017 and Criminal Appeal No.756 of 2017 are allowed and the appeals filed by the de facto complainantEi.e., Criminal Appeal Nos. 754-755 of 2017 are accordingly dismissed.

Nidhi Jain

Appeals disposed of.

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