Supreme Court of India
ARVIND KUMAR @ NEMICHAND & ORS.versusSTATE OF RAJASTHAN
- Citation
- 2021 INSC 764
- Decided
- 22 November 2021
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KISHAN KAUL
Holding
The evidence was inseparable and the prosecution failed to prove the offences beyond reasonable doubt; the accused were entitled to the benefit of doubt and the plea of private defence was deemed plausible, leading to the setting aside of their convictions.
Summary
The case arose from a land‑dispute over a pathway between the prime accused Surjaram and the deceased Ladduram, which escalated into a violent clash on 18‑07‑1989 resulting in two deaths and several injuries. The trial courts and the High Court delivered mixed judgments, convicting some accused under Section 302 r.w. Section 149 IPC and acquitting others, while further investigation added ten more accused. On appeal, the Supreme Court examined whether the prosecution had proved the charges beyond reasonable doubt, whether the plea of private defence under Sections 96‑102 IPC was viable, and whether the investigation was fair. The Court found the investigation defective, with suppression of crucial facts, contradictory witness statements, and no clear evidence of exceeding private defence. Applying the principle that inseparable evidence must be treated uniformly, the Court held that the prosecution failed to meet its burden and that the accused were entitled to the benefit of doubt, affirming the plea of private defence. Consequently, the convictions of the accused were set aside and the appeals of the de‑facto complainant were dismissed.
Issues considered
- The prosecution must prove the guilt of the accused beyond reasonable doubt under Section 302 r.w. Section 149 IPC.
- Whether the accused can successfully rely on the plea of private defence under Sections 96‑102 IPC and whether that defence was exceeded.
- Whether the investigation conducted under the CrPC was fair, defective or colourable, and the effect of any such defect on the convictions.
- The applicability of the doctrine falsus in uno‑falsus in omnibus to the evidence in this case.
- The scope and evidentiary requirements for invoking liability under Section 149 IPC (common object).
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 173(8)
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 149, s. 302, s. 96, s. 97, s. 98, s. 99
Subjects
private defencesection 149 IPCunfair investigationbenefit of doubtover‑implicationcriminal trialevidentiary standardsfalsus in uno‑falsus in omnibuscommon objectcivil dispute turned criminal
Judgment
[2021] 11 S.C.R. 237 237
ARVIND KUMAR @ NEMICHAND & ORS. A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 753 of 2017)
NOVEMBER 22, 2021 B
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Penal Code, 1860: s 302 rw s. 149 – Dispute between the
parties over the pathway, an order of stay obtained by the prime
accused and consequential panchayat also held on the date of
C
occurrence – Prime accused along with his son and 25 others got
into the land of the victim and other witnesses, and attacked them
with weapons – Death of two and injuries to others – Complaint
filed by eye-witness – Acquittal of two while conviction of five of
them – Acquittal of one more accused by the High Court while
upholding the conviction of the other four, and ordered for further D
investigation u/s 173(8) CrPC – Pursuant thereto, ten more accused
added – Conviction and sentence of four accused while one referred
to the Juvenile Justice Board, and acquittal of remaining five –
Upheld by the High Court – On appeal, held: Evidence adduced is
not separable – Common findings rendered to be made applicable
E
to all the accused – There are too many loopholes which cannot be
filled up, nor there is any evidence to come to a different conclusion
with respect to the offence committed including that of exceeding
the right of private defence – When the plea of private defence is
taken, the quality of material evidence have to be a bit higher than
that of the one required in a normal circumstance – Civil dispute F
between two groups of villagers turned into a criminal case –
Investigation not conducted in a fair manner – Denial of injuries to
the accused by the witnesses, though mentioned in the FIR – Place
of occurrence also doubtful – Case of over implication by witnesses
– Eyewitness’s evidence also does not inspire confidence – View
G
that the evidence of an injured witness has to be placed at a higher
pedestal may not apply to a case of private defence with the accused
also injured – Furthermore, doctor’s evidence does not support the
specific overt act – Genesis and origin of the occurrence and the
manner in which it took place are certainly suppressed – Thus, there
is unwarranted approach of the prosecution – Order of acquittal H
237
238 SUPREME COURT REPORTS [2021] 11 S.C.R.
A upheld – Reasoning adopted for the accused persons acquitted to
be applied to the case of the others as well – Thus, accused entitled
to the benefit of doubt as imprimatur given to the plea of private
defence as possible and plausible with due discharge of onus.
ss. 96 to 102 – Private defence – Plea of – Discussed.
B s. 149 – Scope of – Stated.
Motive – Effect of, on prosecution case – Stated.
Investigation: Fair Investigation, defective investigation and
colourable investigation – Explained.
C Doctrine/Principle: Falsus in uno-falsus in omnibus –
Principle of.
Allowing the appeals by the accused and dismissing the
appeals by the complainant, the Court
HELD: 1.1 An Investigating Officer being a public servant
D
is expected to conduct the investigation fairly. While doing so,
he is expected to look for materials available for coming to a
correct conclusion. He is concerned with the offense as against
an offender. It is the offense that he investigates. It is believed
that a pliable change is required in the mind of the Investigating
E Officer. After all, he is an officer of the court also and his duty is
to find out the truth and help the court in coming to the correct
conclusion. He does not know sides, either of the victim or the
accused but shall only be guided by law and be an epitome of
fairness in his investigation. [Para 40][258-G; 259-A-B]
F 1.2 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 the accused, unless it goes into the root of the
very case of the prosecution being fundamental in nature. While
dealing with a defective investigation, a court of law is expected
G to sift the evidence available and find out the truth on the principle
that every case involves a journey towards truth. There shall not
be any pedantic approach either by the prosecution or by the
court as a case involves an element of law rather than morality.
[Para 41][259-B-D]
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 239
RAJASTHAN
1.3 An offense would involve an element of mental rebellion A
when the mind of a person creates an action not supported by the
ethos and values of a social structure in the form of law. This
deviant behaviour is the harbinger of an offense ultimately. A
feeling of pain, sorrow or tragedy is mental. It is what is thought
and not what is suffered that constitutes an action. Such an action
B
might at times create a social deviance. It is this part which is
expected to be seen both by the Investigating Officer and the
court while dealing with a criminal case. [Para 43][259-E-F]
1.4 A fair investigation would become a colourable one when
there involves a suppression. Suppressing the motive, injuries
and other existing factors which will have the effect of modifying C
or altering the charge would amount to a perfunctory investigation
and, therefore, become a false narrative. If the courts find that
the foundation of the prosecution case is false and would not
conform to the doctrine of fairness as against a conscious
suppression, then the very case of the prosecution falls to the D
ground unless there are unimpeachable evidence to come to a
conclusion for awarding a punishment on a different charge. [Para
45][260-D-E]
Kumar v. State (2018) 7 SCC 536 : [2018] 5 SCR 343
– referred to. E
1.5 A private defence need not be set up in a particular
manner. Such a private defence need not be confined to the
individual accused alone, to be applied to the others. Though the
initial onus is on the accused to satisfy the court, the extent of
evidence is that of preponderance of probabilities. Thereafter, F
the onus shifts. Once a private defence is accepted, there are
two questions alone to the answered by the court, namely, the
defence coming within the purview of Section 96 to Section 102
IPC and the other acting in excess. The concept of acting in
excess has to be seen from the point of view of continued
existence of the apprehension of danger. When the apprehension G
gets effaced with the attack being continued by an accused taking
the plea of private defence, exceeding the said right would occur.
The weapons used in the process would attain significance
depending upon the facts of the case and if the injuries suffered
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240 SUPREME COURT REPORTS [2021] 11 S.C.R.
A by the accused unless being minor and superficial or suppressed
on purpose, the benefit shall enure. The omission on the part of
the prosecution to explain the injuries on the person of the accused
assumes much greater importance where the evidence consists
of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution
B
one. [Para 46, 47][260-F-H; 261-A-B; 265-D]
Kashiram v. State of M.P. (2002) 1 SCC 71 : [2001] 4
Suppl. SCR 263; State of Gujarat v. Bai Fatima (1975)
2 SCC 7 : [1975] 3 SCR 993 – referred to.
C 1.6 The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not have
strict application to the criminal jurisprudence in our country.
The principle governing sifting the chaff from the grain has to be
applied. However, when the evidence is inseparable and such an
attempt would either be impossible or would make the evidence
D unacceptable, the natural consequence would be one of avoidance.
The said principle has not assumed the status of law but continues
only as a rule of caution. One has to see the nature of discrepancy
in a given case. When the discrepancies are very material shaking
the very credibility of the witness leading to a conclusion in the
E mind 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. [Para
48][266-A-C]
Lakshmi Singh v. State of Bihar (1976) 4 SCC 394;
Anand Ramachandra Chougule v. Sidarai Laxman
F Chougala (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 assembly
with the common object becoming an unlawful one. The concept
G of constructive or vicarious liability is brought into this provision
by making the offense committed by one member of the unlawful
assembly to the others having the common object. It is the sharing
of the common object which attracts the offense committed by
one to the other members. Therefore, the mere presence in an
assembly per se would not constitute an offense, it does become
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 241
RAJASTHAN
one when the assembly is unlawful. It is the common object to A
commit an offense which results in the said offense being
committed. Therefore, though it is committed by one, a deeming
fiction is created by making it applicable to the others as well
due to the commonality in their objective to commit an offense.
Thus, it is for the prosecution to prove the factors such as the
B
existence of the assembly with a requisite number, the common
object for everyone, the object being unlawful, and an offense
committed by one such member. Courts will have to be more
circumspect and cautious while dealing with a case of accused
charged under Section 149 IPC, as it involves a deeming fiction.
Therefore, a higher degree of onus is required to be put on the C
prosecution to prove that a person charged with an offense is
liable to be punished for the offence committed by the others
under section 149 IPC. [Para 50][268-C-F]
Ranjit Singh v. State of Punjab (2013) 16 SCC 752 :
[2013] 13 SCR 633 – referred to. D
1.8 Motive might lose its significance when adequate
evidence in the form of eyewitnesses are available to the
acceptance of the court. But, when a motive might have the impact
of introducing a perceptible change to the very case projected by
the prosecution, in favour of the accused, it cannot be brushed E
aside. It becomes more relevant when an accused sets up the
plea of private defence. A common object and a motive may get
interconnected. Thus, a deliberate and intentional avoidance of
unimpeachable evidence qua motive would make the version of
the prosecution a serious suspect. [Para 51][270-G-H; 271-A]
F
2.1 The investigation has not been conducted in a fair
manner. The evidence of PW-18 is recorded who is none other
than the Government Doctor examined on behalf of the
prosecution. This witness with abundant clarity has reiterated
that accused were referred to him on 19.07.1989 by the police.
The injury reports under the two Exhibits indicate the nature of G
injuries 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
H
242 SUPREME COURT REPORTS [2021] 11 S.C.R.
A by PW-20 and PW-21. The fact that the injury reports did not
refer 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 time
of giving the complaint admitted that it was written by somebody
else who was present nearby. PW-5 contradicts himself by his
B
evidence in the second trial that it was written by a policeman. It
is beyond reasoning and human conduct that an unknown person
could be present in the police station and that too not to the
knowledge of PW-20. When PW-5 could write and possibly the
other witnesses present at the time of registration of Exhibit
C P-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 was
written. A very serious doubt certainly emerges in the mind on
the very genesis of the written complaint made by PW-5 and that
too in the teeth of the clear suppression made. The evidence
given by PW-11 that the accused were brought to the hospital
D
under the pretext of accident also cannot be accepted as the other
injured witnesses were also there and the post-mortem was done.
He also acknowledged the presence of the police. His evidence
was not accepted by PW-20 or PW-21. Once the said conclusion
is arrived based upon the records available, the entire so-called
E recovery cannot be relied upon. The preparation of plan followed
by other documents prepared during the investigation clearly
indicate the involvement of injured prosecution witnesses and
the explanation given in this regard is not satisfactory. [Para
52][271-B-G]
F 2.2 It is found that the injuries suffered are not simple
injuries and they are numerous. The injured accused were
admitted in the hospitals as in-patients. The investigation officer
did not go into the aspect of private defence deliberately. There
is a clear admission with respect to non-consideration of an order
of stay obtained, the complaint given by him, the earlier panchayat
G held between the parties and the wall constructed by him
preventing the prosecution witnesses and the deceased to reach
their respective places. Perhaps the prosecution would have come
to a different conclusion and so also the court if the truth was
placed accordingly. On the contrary, witnesses deny the injuries
to the accused, though the FIR makes a mention. [Para 53][271-
H
H; 272-A-C]
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 243
RAJASTHAN
2.3 The place of occurrence also creates doubts in the mind, A
on view of the contradiction between the map prepared on the
one side and the evidence of PW-20 along with the PW-5 and
PW-6. PW-20 has also admitted that it was prepared as per the
advice of PW-5. Evidence suggests that there was no blockage,
and the wall was constructed by the main accused and there is
B
not much of a distance between the place of occurrence and that
of the land of the accused. The occurrence also took place in the
courtyard which is an open space. Though it is contended for the
de facto complainant that there are concurrent findings of facts,
it is found that when the facts are not considered properly by the
courts and are contrary to the evidence on record, this Court can C
certainly invoke Article 136 of the Constitution of India. After
all, a criminal case stands on a different footing than that of a civil
case where onus lies heavily on the prosecution. There is a
conscious attempt not to go beyond the case as projected by the
prosecution witnesses. [Para 54][272-C-E]
D
2.4 The reasoning adopted by the Court for the accused
persons acquitted will have to be applied to the case of the others
as well in view of the said view expressed, as the suppression
made would be sufficient to disbelieve the case of the prosecution.
There is no adequate material for the Court to come to a different
conclusion with respect to the offence committed or for that matter, E
a case of exceeding the private defence. The accused persons
have taken the plea of private defence as well as a bare denial.
Once the Court has come to a conclusion that the other accused
persons who have been acquitted would not have been present,
the concept of private defence assumes more significance. The F
High Court itself has come to a conclusion, and so also the trial
court on the second occasion, that it is a case of over implication.
There is no error in the views expressed by the Court on that
count. [Para 55][272-F-H; 273-A]
2.5 The evidence adduced on behalf of the prosecution, G
particularly, the eyewitnesses does not inspire confidence. While
there is a clear denial of them having attacked the injured accused
persons, a mere statement that they carried logs would not be
sufficient to reject the plea of private defence especially in the
light of the injuries suffered. The witnesses speak of multiple
H
244 SUPREME COURT REPORTS [2021] 11 S.C.R.
A injuries suffered by the deceased and the other injured witnesses.
The view that the evidence of an injured witness has to be placed
at a higher pedestal may not apply to a case of private defence
with the accused also injured. The doctor’s evidence does not
support the specific overt act. Witnesses speak of knife, farsi
and spears being used at random. The overt act attributed to the
B
convicted accused using weapons such as farsi do not correspond
to the injuries. The injuries are primarily lacerated in nature.
The genesis and origin of the occurrence and the manner in which
it took place are certainly suppressed. When the plea of private
defence is taken, the quality of material evidence will have to be
C a bit higher than that of the one required in a normal circumstance.
The concern is with the role of the prosecution in proving the
case beyond reasonable doubt. Unfortunately, two lives have been
lost. However, mere suspicion on a moral ground can never be
the basis for a conviction. This Court can only lament the situation
brought forth by the unwarranted approach of the prosecution.
D
Incidentally, the views of the High Court is approved on the
acquittals rendered. [Para 56][273-A-F]
2.6 The prosecution witnesses though residing at different
places, stated to have gathered at the place of occurrence in large
number. Admittedly, the occurrence also happened during the
E night-time and there is no evidence to show existence of sufficient
light. [Para 57][273-F]
2.7 The evidence adduced on behalf of the prosecution in
the second trial, exposes the version of the prosecution much
more. Witnesses, once again, reiterate and re-confirm not only
F the factum of prior dispute and occurrence but also the closure
of the pathway days before. The discussion on the facts being
suppressed gets reinforced through the testimony of the
Government doctor for the second time. Even the courts found
that recoveries in some cases are found not proved. Findings
G have been given on the delay in filing of the FIR and over
implication by the witnesses. Thus, it can only be stated that the
second trial makes the case of the prosecution any better. There
is force in the submission by the accused that the acquittal by the
High Court, not challenged qua the first trial, would give the
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 245
RAJASTHAN
benefit to the similarly placed accused whose acquittal was A
challenged in the second trial. [Para 58][273-G-H; 274-A-B]
2.8 The evidence adduced is not separable and the common
findings rendered shall be made applicable to all the accused.
There are too many loopholes which cannot be filled up, nor is
there any evidence to come to a different conclusion including B
that of exceeding the right of private defence. What emerged as
a civil dispute between two groups of villagers turned into a
criminal case.The accused-appellants are entitled to the benefit
of doubt as imprimatur is given to the plea of private defence as
possible and plausible with due discharge of onus. [Para 59,
60][274-C-D] C
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 Aba
Kurane v. State of Maharashtra (1978) 1 SCC 474;
Lalji v. State of U.P. (1989) 1 SCC 437 : [1989] 1 SCR D
130; State of Karnataka v. Moin Patel (1996) 8 SCC
167 : [1996] 2 SCR 919; Kripal Singh v State of
Rajasthan (2019) 5 SCC 646 – referred to.
Case Law Reference
E
[2013] 13 SCR 633 referred to Para 36
[2014] 8 SCR 589 referred to Para 36
(1978) 1 SCC 474 referred to Para 39
[1989] 1 SCR 130 referred to Para 39
F
[1996] 2 SCR 919 referred to Para 39
(2019) 5 SCC 646 referred to Para 39
[2018] 5 SCR 343 referred to Para 44
[2001] 4 Suppl. SCR 263 referred to Para 46 G
(1976) 4 SCC 394 referred to Para 47
[1975] 3 SCR 993 referred to Para 47
[2019] 11 SCR 14 referred to Para 49
[2013] 13 SCR 633 referred to Para 50 H
246 SUPREME COURT REPORTS [2021] 11 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
753 of 2017.
From the Judgment and Order dated 18.02.2015 of the High Court
of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B. Criminal Appeal
No.449 of 1990.
B
With
Criminal Appeal Nos. 754-755 and 756 of 2017.
Ms. Vibha Dutta Makhija, Sr. Adv., Aftab Ali Khan, Ms. Tehsheena
Z. Hussain, Praveen Gaur, Ali Safeer Farooqi, Syed Imtiyaz Ali,
C
Ms. 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. for
D the Respondent.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. All these appeals sprout from a common occurrence. One set
E of appeals are filed by the accused qua the charges framed on the first
occasion. The other set of appeals are filed by the de facto complainant
over a trial started in pursuance to the order passed invoking Section
173(8) of the Criminal Procedure Code (CrPC), facilitating further
investigation, leading to the addition of ten more accused. No appeal has
F been filed against the dismissal of the appeal against acquittal and allowing
the appeal against convictions qua the first trial. On the appeals filed by
the convicted individuals, the de facto complainant filed his application
for intervention. We deem it appropriate to deal with them by our common
order, on the aforesaid scenario.
G Brief Sketch
2. The prime accused, by name Surjaram had a dispute with the
deceased over a pathway. The said pathway opens and runs through the
lands of the deceased and some other prosecution witnesses on the way
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 247
RAJASTHAN [M. M. SUNDRESH, J.]
to his dhani. The lands of the deceased and the pathway which is claimed A
by 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 of
stay in the revision petition filed by him. He had put up an obstruction by
way of a wall blocking the entry of the deceased and others into their
dhani and lands. Surjaram was also stated to have approached the local B
police. An effort was made to resolve the dispute through panchayat on
the date of the occurrence.
4. It is the case of the prosecution that Surjaram along with his
son and other accused numbering about 25 in total, got into the land of
the deceased Ladduram, who was sleeping in the courtyard along with C
other witnesses, and attacked them with farsi, barchi (small sword),
lathi, bhala and sword in the wee hours of 18.07.1989. The other
deceased Mohan and Brijender who were sleeping in their home nearby
were also dragged and attacked. The accused were stated to have come
in two jeeps. The evidence of the prosecution would also suggest that D
the wall constructed blocking the pathway was found to be opened.
5. PW-5, Harlal, a physically challenged person needing the
assistance of a stick to move around, had seen the occurrence from
about 15-20 feet distance. On the next day i.e., 19.07.1989 at about
6.00 a.m., PW-5 went to the police station and lodged a written complaint E
which 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 mysterious
stranger whose identity was not known to any of the prosecution
witnesses including PW-20. On the statement of PW-5 that it was written
in the police station, PW-20 feigned ignorance. Taking PW-5 along with
the other witnesses after sending the injured to the hospital, PW-20 took F
up the investigation. He drew the plan and prepared a report on the
suggestion of PW-5. It was signed by one of the other prosecution
witnesses who also spoke about the occurrence though strictly not as an
eyewitness.
G
6. All the injured witnesses and deceased Mohan were given
treatment by PW-17 on the first occasion. Thereafter the post-mortem
was done by PW-18, on the request made by PW-20. He also examined
two of the injured accused viz., Arvind and Ramnarayan. Following are
the injuries suffered as could be seen from Exhibit D-15 and D-16:
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248 SUPREME COURT REPORTS [2021] 11 S.C.R.
A “MEDICAL & HEALTH DEPARTMENT, RAJASTHAN
Injury Report of Sh. Arvind Kumar S/o Surjaram Caste-Jat
Dated of Examination: 19/07/89 AT 8:30 A.M.
B
C
D
E
F
G
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 249
RAJASTHAN [M. M. SUNDRESH, J.]
MEDICAL & HEALTH DEPARTMENT, RAJASTHAN A
Injury Report of Sh. Ramnarayan S/o Rambakxa Ram, Aged -25
years, Caste-Jat
Dated of Examination: 19/07/89 AT 9.00 A.M.
B
C
D
E
F
G
H
250 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 7. PW-18 gave a statement that he did treat both the injured accused
persons on the request made by the police and found the aforesaid
multiple injuries while taking them as in-patients and putting them through
further medical evaluation.
8. PW-21, who was the Additional Superintendent of Police at the
B relevant point of time, took up the investigation from PW-20 on 24.07.1989.
While PW-20 did the initial investigation including the preparation of
plan and sketch, inquest report and mahazar report, PW-21 is stated to
have arrested the accused on the same day, except Surjaram, who was
arrested 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,
C Om Prakash who was also an interested witness, has been shown as
the eyewitness. Strangely, the arrest of the accused, was shown to be
done 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, as
admitted by PW-11.
D 9. After completion of the investigation, out of the 13 persons
named by PW-5 in his written complaint, only seven have been charged
for the major offense punishable under Section 302 of the Indian Penal
code simplicitor and Section 302 read with Section 149 among other
sections. Almost all the witnesses are either close relatives or family
E members of the deceased. They are also stated to have been present at
the scene of occurrence despite having their dhanis at different places.
10. Before the trial court, in the first trial the prosecution has
examined 20 witnesses and marked 59 exhibits. On behalf of the defence
4 witnesses have been examined while marking 26 exhibits. In the second
F trial, the prosecution has examined 20 witnesses and marked 61 exhibits,
while the defence examined 4 witnesses and marked 16 exhibits. Some
of the accused pleaded private defence while the others made a simple
denial. This is the factual position governing both the cases.
11. The trial court on the first occasion acquitted two of the accused
G while convicting five of them. On appeal, the High Court acquitted one
more accused while confirming the conviction of the other four. In the
process it rejected the appeal filed against the acquittal.
12. In the meanwhile, yet another report was filed in pursuance to
the order passed under Section 173(8) of the CrPC providing for further
investigation. Thus, an array of accused numbering about 10 more were
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ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 251
RAJASTHAN [M. M. SUNDRESH, J.]
added and the case was taken up for trial for the second time over the A
same occurrence. This time, four of them were convicted while one
was referred to the Juvenile Justice Board being a juvenile in conflict
with law. The remaining five accused were acquitted. Thus, life sentence
was imposed on the four accused.
13. Once again, appeals were preferred before the High Court. B
This time, the High Court while dismissing the appeals filed against the
acquittal allowed the appeals filed by the convicted accused. Now all
the parties have filed their respective appeals before us, except the State.
Evidence Before the Court
14. We have perused the oral and documentary evidence produced C
before us in extenso. We would like to touch upon the evidence from
the side of the prosecution while keeping in mind the evidence put up by
the 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 clear
evidence of the existence of sufficient light. He actually went to take up D
logs and stones stored by him in a nearby place despite his apparent
inability to walk. He is a degree holder. He along with other witnesses
reached the office of PW-20 at about 06.0 0 a.m. on 19.07.1989. In his
evidence he has stated that he did not know as to who wrote the complaint
despite his ability to write. An explanation was given that he could not
write in view of the situation, though the other eyewitnesses including E
the injured witnesses were present. It is his evidence that it was written
at the police station. He was also aware of the civil proceedings including
the stay obtained against Ladduram. It is his further statement that the
way to the dhani of the prosecution witnesses and the field passing
through the field of Surjaram was indeed closed by him and they wanted F
it to be opened. He also used the pathway. An admission has been made
that in view of the presence of a large crowd one could not say who was
beating whom. The conduct of the panchayat on the morning of the date
of occurrence was admitted. He has also seen the accused attacking
the deceased and the injured witnesses with the weapons attributed to
them. G
15. PW-6 had deposed that the accused persons had come to his
house just prior to the occurrence on foot. He also had a dispute with
regard to the pathway, with the main accused Surjaram. He admits that
the field was belonging to Surjaram and the pathway was closed on the
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252 SUPREME COURT REPORTS [2021] 11 S.C.R.
A date of occurrence. He claims, he did not see the injuries suffered by
the injured accused. Surjaram’s field is adjacent to the field of Ladduram.
To elicit the contradiction made by him, the defence has marked Exhibit
D-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. He
once again speaks about the occurrence. On a specific query, he denied
B
the panchayat held.
16. PW-10, who is also an eyewitness, once again admitted the
fact 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 station
on the earlier occasion. This witness is the son of the deceased,
C Ladduram.
17. PW-11 speaks about the presence of about 20-25 accused
persons just prior to the occurrence. He is also the witness who is stated
to have signed most of the recoveries made by the prosecution including
the Exhibits P-21 – P-28 and P-31 to P-36. He is also the one who is
D aggrieved by the order of stay obtained by Surjaram. The defence also
confronted him with the statement made under Section 161 CrPC. This
witness for a change speaks about the presence of the accused on
19.07.1989 in the hospital. However, an explanation was given that they
have got themselves admitted on the pretext of an accident. Though the
E police personnel, including PW-21 was present, no action was taken.
However, it is his deposition that both the injured accused were under
the custody of the police during their stay in the hospital. Thus, the evidence
of PW-11 does indeed help the case of the defence that the actual arrest
was truly supressed. The further statement given by PW-11 is to the
effect that when he reached the police station in the morning both the
F headmen were present. It is also to be noted that he did acknowledge
the fact that there was an attempt at reconciliation on 18.07.1989 at the
police station, though he gives a different story that it was Surjaram who
was trying to attack him.
18. On the analysis of the aforesaid evidence, not only the presence
G of the accused at the time of the registration of the FIR could be
understood but also the factum of the dispute reaching the police station
as alleged by the defence, on the date of occurrence, though in the
morning hours, is clear.
19. PW-18 is the doctor who conducted the post-mortem. He has
H deposed that the cause for the death of the deceased, Mohan Singh was
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 253
RAJASTHAN [M. M. SUNDRESH, J.]
due to shock and excessive bleeding. It is also a result of multiple fractures A
and excessive injuries to the intestines. Prior to him, PW-17 conducted
the medical examination of the deceased, Mohan Singh, wherein he opined
that injuries nos. 1-3 are inflicted by a sharp-edged weapon, while the
remaining injuries have been caused by some blunt weapon. In his cross
examination he has stated that injury can be caused by a blunt weapon,
B
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 stated
that he also conducted the medical examination of Arvind Kumar and
Ramnarayan, the two injured accused persons. He acknowledged Exhibit
D-15 and D-16, strangely marked by the defence but not by the
prosecution, pertaining to the injury reports of the aforesaid two accused C
persons, carrying 25 and 20 injuries respectively. In his evidence as
PW-14 in the second trial, he made the following statement:
“I have also carried out the medical examination of the injuries
inflicted on the body of accused Arvind Kumar and Ram Narayan,
both of them remained admitted at the hospital only. Both of them D
were admitted patients. The medical examination of both accused
was done at the request of police station Laxmangarh. For the
injuries inflicted on the body of Arvind Kumar S/o Surjaram the
medical examination was carried out on 19.07.1989 at 7-8 in the
morning and the following injuries were found on his body…” E
21. We have no difficulty in accepting the said evidence of the
prosecution, especially in the absence of any re-examination, in coming
to the conclusion that the two injured accused suffered multiple injuries,
got admitted as in-patients, underwent further treatment and all this
happened on the advice made by PW-20 and PW-21 as the case may F
be. There is an obvious and clear suppression of the aforesaid facts.
22. PW-20, as stated, was the station officer who did the initial
investigation. He did not make any investigation on the motive part,
particularly with reference to the existing dispute between the parties
over the pathway, an order of stay having been obtained by Surjaram, G
and the consequential panchayat held. He admitted that he did not either
visit the pathway or the surrounding land. He did not seem to remember
by who, when and where the complaint was written. Though there was
some evidence to show that he met the accused he did not remember
meeting them. Clear evidence has been let in by him saying that the
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254 SUPREME COURT REPORTS [2021] 11 S.C.R.
A disputed pathway was open. He claims that he did not send the accused
to the hospital. The plan and sketch were prepared as per the advice of
PW-5. No investigation was done from the nearby houses and owners
of the nearby fields. At the time of preparation of the observation mahazar
report he did not record the statement of any witness as one of the
prosecution witnesses was available at the said place. There was no
B
wall as found by him blocking the pathway.
23. The evidence, as understood by us, obviously does not inspire
confidence. PW-20 has certainly supressed many facts including the
circumstances under which the FIR was registered and the reference
of the two injured witnesses to the hospital.
C
24. PW-21 took over the investigation which factum we have
recorded already. This officer holding a very high post made the arrest
of the accused person excepting Surjaram on 31.07.1989. As per the
arrest memos and Exhibits P-16 to P-18 and Exhibit P-9, Surjaram was
arrested on 08.08.1989, followed by the arrest memo under Exhibit
D P-36. In his evidence he says that on 02.08.1989 he wrote letters to
conduct medical examination of the accused persons. Even he was not
aware of the facts narrated above involving the civil dispute. He did not
remember as to whether he mentioned about the injuries inflicted on the
accused persons as per the arrest memo. However, he got the injury
E reports on 24.07.1989 itself. He did not even visit the disputed site nor
examined the landlords nearby.
25. From the evidence discussed, the arrest having been made in
the police station few days after the treatment was given to the two
injured witnesses, almost all the recovery memos found the name of
F PW-11, Om Prakash, who is an interested witness. We do not know as
to how and in what manner arrest could be made especially when the
evidence of PW-18 is clear in respect of the injuries suffered by the two
accused persons and they were under the custody of the police when
they were referred for treatment, which they took as in-patients.
Obviously, PW-21 also did not conduct any investigation on the injuries
G suffered by the accused. We do not wish to say anything more.
26. Witnesses examined on the side of the defence along with the
documents would primarily indicate two factors preceding the occurrence,
namely complaint having been made by Surjaram in the morning hours
of the date of occurrence, followed by an attempt to resolve the same
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 255
RAJASTHAN [M. M. SUNDRESH, J.]
through panchayat. Injury reports of the defence have been marked A
along with Section 161 CrPC statements given by the prosecution
witnesses in support of the case as projected by the defence.
27. The prosecution witnesses in the second trial are the same as
the first one, except with the addition of a few. Even here, Bhupendra
Singh arrayed as PW-3, had stated that the disputed path was closed B
days prior to the occurrence and the accused Ramnarayan was arrested
from the hospital. This again is yet another contradiction in the case of
the prosecution.
28. PW-4, Harlal, who was PW-5 in the earlier trial, identified
some more accused in the court. Even this witness, once again stated C
that the way to the farm of the deceased Laduram, was closed days
prior to the occurrence. While reiterating the statement made on the
first occasion during the earlier trial, a further statement has been made
that papers for writing the written complaint were taken from the
constable, though he was consistent that he did not know who wrote. It
is his further evidence that the occurrence took place not in one place D
but the area around it. Even on the date of occurrence, the pathway was
closed. However, he deposed to the effect that it was the SHO who
broke open the way which also contradicts the statement made by the
said officer.
29. Brijender, son of deceased Laduram is arrayed as PW-5 in E
the second trial. He denied the injuries on the accused. PW-8, Om
Prakash, in tune with the statement made by the other witnesses, made
an assertion that Surjaram has closed the path, as told to him by the
deceased Laduram. He was also aware of the civil proceedings between
the parties. PW-9, son of the deceased Laduram had stated that the F
boundary wall of the field of the accused Surjaram was removed by
them.
30. PW-20, who was the SHO at the relevant point of time, gave
his evidence in tune with the earlier one. In his evidence he has stated
that he did not make any inquiries with the neighbours of the deceased G
and the disputed way was open when he was travelling through it. There
was 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 report
under Exhibit P-10 and the place where it was written.
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256 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 31. Though the defence also let in evidence and marked certain
documents, we do not wish to elaborate on them as we have discussed
them already. Hence, reiteration, in our considered view, is not warranted.
Courts
32. We do not wish to go into the findings given either by the trial
B court or by the High Court separately with respect to the first chargesheet
and then the second chargesheet. Suffice it to state that there were
findings in favour of the accused with respect to over implication,
contradiction in the evidence of the prosecution witnesses, disbelieving
some of the witnesses including the delay involved in lodging the FIR
C and the test identification parade having not been conducted. The courts
also found that there are certain interpolations on the date on which
Section 161 CrPC statements have been recorded. On the second
occasion the courts did not approve the recoveries made.
33. While confirming the conviction it was accordingly held that
D there is evidence from the prosecution side that the convicted accused
are the aggressors, the place of occurrence is not in dispute, injuries, if
any, are minor and there are specific attacks that are attributed. On the
aforesaid reasoning conviction has been rendered by the High court
while confirming the judgment of the trial court
E SUBMISSIONS
On behalf of the accused
34. Submissions are made by the learned counsel appearing on
behalf of the Appellants/Accused and also the Respondents who were
acquitted. Thus, we would like to summarise the submissions together.
F A plea of private defence has been specifically taken which has not
been considered in the correct perspective by the courts below nor any
investigation done on that. The delay caused in the FIR which is stated
to have been registered at about 6:10 a.m. on 19.07.1989 having reached
the concerned magistrate only at 5.00 p.m. though a jeep was available
has not been explained by PW-20. The FIR number has not been
G
mentioned in the injury reports as corroborated by evidence of PW-17
and PW-18. The FIR appears to have been ante-dated. There is a clear
suppression by the investigating agency. No investigation has been done
on the motive. The site plan is contrary to the evidence of PW-20 and
PW-6. The courts below ought not to have accepted the evidence of
H prosecution witnesses being interested witnesses. There are material
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 257
RAJASTHAN [M. M. SUNDRESH, J.]
contradictions in the evidence given. The requisite parameters to be A
complied with for invoking Section 149 IPC are not available. At best, it
could be a case of a sudden fight. Having found the discrepancies in the
evidence and given the benefit of doubt to the accused, the same ought
to have been followed for the others. The occurrence has taken place in
an open spot. There is not much of a distance between the disputed
B
property and the place of occurrence. The recovery having not being
proved, though in the second case, ought to have been applied in the first
case as well. No independent witness was available during investigation
and also before the court. The injuries inflicted would indicate only
lacerated injuries and not incised. The medical evidence is contrary to
the ocular evidence with respect to the injuries suffered. Insofar as the C
accused persons who were acquitted, the High court has given cogent
reasoning. There is nothing perverse in the said findings rendered. Since
liberty of a person is involved, this Court can only interfere with the
plausible or a possible view of the High court on the ground of perversity
alone.
D
35. The accused persons acquitted by the High Court qua the
second trial are similarly placed like the others acquitted pertaining to
the first one and therefore, the said decision being not challenged, a
challenge made before this Court on the others is liable to be rejected.
The non-mentioning of the number of the FIR registered, in the injury
reports of not only the witnesses but also the accused, raises a serious E
doubt that the said FIR is ante-dated. Witnesses have identified the accused
wrongly and some of the witnesses, who signed the memos pertaining to
recovery have turned hostile.
36. The learned counsel made an attempt to draw support of the
submissions through the decisions referred hereunder: F
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
G
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 not
be interfered with insofar as the conviction rendered and merely because
the witnesses are either family members or relatives their evidence cannot H
258 SUPREME COURT REPORTS [2021] 11 S.C.R.
A be disbelieved. Specific and clear overt act has been attributed against
some of the accused. The multiple injuries suffered would lead to an
inference. A defective investigation would not enure to the benefit of the
accused. A mere delay per se can never be a ground for acquittal when
there is adequate evidence both oral and documentary in support of the
prosecution version. The plea of private defence and sudden fight are
B
intrinsically opposed to each other. The presence of the other accused
would be sufficient enough to attract Section 149 IPC. Mere discrepancies
in the evidence would not make the prosecution version as false. The
delay in sending an FIR is not substantial.
38. The HC has made an errorin recording wrong factual findings
C with respect to the evidence of PW-4 and PW-5, who clearly speak
about the presence of the accused who were acquitted by it in the second
trial. It did not consider the reasoning of the trial court as incorrect. The
evidence of PW-9 in the second trial has not been looked into in the
proper perspective.
D 39. The learned counsel made specific reliance upon the following
judgments:
1. Vishvas Aba Kurane v. State of Maharashtra, (1978) 1 SCC 474
2. Lalji v. State of U.P., (1989) 1 SCC 437
E 3. 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
DISCUSSION
F Fair, Defective, Colourable Investigation
40. An Investigating Officer being a public servant is expected to
conduct the investigation fairly. While doing so, he is expected to look
for materials available for coming to a correct conclusion. He is concerned
with the offense as against an offender. It is the offense that he
G investigates. Whenever a homicide happens, an investigating officer is
expected to cover all the aspects and, in the process, shall always keep
in mind as to whether the offence would come under Section 299 IPC
sans Section 300 IPC. In other words, it is his primary duty to satisfy
that a case would fall under culpable homicide not amounting to murder
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 259
RAJASTHAN [M. M. SUNDRESH, J.]
and then a murder. When there are adequate materials available, he A
shall not be overzealous in preparing a case for an offense punishable
under Section 302 IPC. We believe that a pliable change is required in
the mind of the Investigating Officer. After all, such an officer is an
officer of the court also and his duty is to find out the truth and help the
court in coming to the correct conclusion. He does not know sides, either
B
of the victim or the accused but shall only be guided by law and be an
epitome 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 the
accused, unless it goes into the root of the very case of the prosecution C
being fundamental in nature. While dealing with a defective investigation,
a court of law is expected to sift the evidence available and find out the
truth on the principle that every case involves a journey towards truth.
There shall not be any pedantic approach either by the prosecution or by
the court as a case involves an element of law rather than morality. D
42. Our aforesaid observation is to point out the approach of the
Investigating Officers and at times courts. There is a clear distinction in
the Code on knowledge and intention. We do not wish to reiterate the
settled position of law but meant only to state a sleeping mind.
43. An offense would involve an element of mental rebellion when E
the mind of a person creates an action not supported by the ethos and
values of a social structure in the form of law. This deviant behaviour is
the harbinger of an offense ultimately. A feeling of pain, sorrow or tragedy
is mental. It is what we think and not what we suffer that constitutes an
action in us. Such an action might at times create a social deviance. It is F
this part which is expected to be seen both by the Investigating Officer
and the court while dealing with a criminal case.
44. We would only reiterate the aforesaid principle qua a fair
investigation through the following judgment of Kumar v. State, (2018) 7
SCC 536: G
“27. The action of investigating authority in pursuing the case in
the manner in which they have done must be rebuked. The High
Court on this aspect, correctly notices that the police authorities
have botched up the arrest for reasons best known to them.
Although we are aware of the ratio laid down in Parbhu v. King
H
260 SUPREME COURT REPORTS [2021] 11 S.C.R.
A Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], wherein
the Court had ruled that irregularity and illegality of arrest would
not affect the culpability of the offence if the same is proved by
cogent evidence, yet in this case at hand, such irregularity should
be shown deference as the investigating authorities are responsible
for suppression of facts.
B
28. The criminal justice must be above reproach. It is irrelevant
whether the falsity lie in the statement of witnesses or the guilt of
the accused. The investigative authority has a responsibility to
investigate in a fair manner and elicit truth. At the cost of repetition,
I must remind the authorities concerned to take up the investigation
C in a neutral manner, without having regard to the ultimate result.
In this case at hand, we cannot close our eyes to what has
happened; regardless of guilt or the asserted persuasiveness of
the evidence, the aspect wherein the police has actively connived
to suppress the facts, cannot be ignored or overlooked.”
D 45. A fair investigation would become a colourable one when there
involves a suppression. Suppressing the motive, injuries and other existing
factors which will have the effect of modifying or altering the charge
would amount to a perfunctory investigation and, therefore, become a
false narrative. If the courts find that the foundation of the prosecution
E case is false and would not conform to the doctrine of fairness as against
a conscious suppression, then the very case of the prosecution falls to
the ground unless there are unimpeachable evidence to come to a
conclusion for awarding a punishment on a different charge.
Private defence
F 46. A private defence need not be set up in a particular manner.
Such a private defence need not be confined to the individual accused
alone, to be applied to the others. Though the initial onus is on the accused
to satisfy the court, the extent of evidence is that of preponderance of
probabilities. Thereafter, the onus shifts. Once a private defence is
G accepted, there are two questions alone to be answered by the court,
namely, the defence coming within the purview of Section 96 to Section
102 IPC and the other acting in excess. The concept of acting in excess
has to be seen from the point of view of continued existence of the
apprehension of danger. When the apprehension gets effaced with the
attack being continued by an accused taking the plea of private defence,
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 261
RAJASTHAN [M. M. SUNDRESH, J.]
exceeding the said right would occur. The weapons used in the process A
would attain significance depending upon the facts of the case and if the
injuries suffered by the accused unless being minor and superficial or
suppressed on purpose, the benefit shall enure. The following paragraphs
of the celebrated judgment of this Court in Kashiram v. State of M.P.,
(2002) 1 SCC 71 would be felicitous:
B
“22. A few relevant factual and legal aspects overlooked by the
High Court may now be noticed. The investigation suffers from a
serious infirmity which has to some extent prejudiced the accused
in their defence. The investigating officer having found one of the
accused having sustained injuries in the course of the same incident
in which those belonging to the prosecution party sustained injuries, C
the investigating officer should have at least made an effort at
investigating the cause of, and the circumstances resulting in,
injuries on the person of accused Prabhu. Not only the investigating
officer did not do so, he did not even make an attempt at recording
the statement of accused Prabhu. If only this would have been D
done, the defence version of the incident would have been before
the investigating officer and the investigation would not have been
one-sided.
23. Section 105 of the Evidence Act, 1872 provides that the burden
of proving the existence of circumstances which would bring the E
act of the accused alleged to be an offence within the exercise of
right of private defence is on him and the court shall presume the
absence of such circumstances. However, it must be borne in
mind that the burden on the accused is not so heavy as it is on the
prosecution. While the prosecution must prove the guilt of the
accused to its hilt, that is, beyond any reasonable doubt, the accused F
has to satisfy the standard of a prudent man. If on the material
available on record a preponderance of probabilities is raised which
renders the plea taken by the accused plausible then the same
should be accepted and in any case a benefit of doubt should
deserve to be extended to the accused (see Dahyabhai G
Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563] ,
State of Punjab v. Gurbux Singh [1995 Supp (3) SCC 734 : 1996
SCC (Cri) 88] and Vijayee Singh v. State of U.P. [(1990) 3 SCC
190 : 1990 SCC (Cri) 378 : AIR 1990 SC 1459] ). In Vijayee
Singh case [(1990) 3 SCC 190 : 1990 SCC (Cri) 378 : AIR 1990
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262 SUPREME COURT REPORTS [2021] 11 S.C.R.
A SC 1459] this Court emphasised the difference between a flimsy
or fantastic plea taken by the defence which is to be rejected
altogether and a reasonable though incompletely proved plea which
casts a genuine doubt on the prosecution version and would
therefore indirectly succeed. “It is the doubt of a reasonable, astute
and alert mind arrived at after due application of mind to every
B
relevant circumstance of the case appearing from the evidence
which is reasonable”. (SCC p. 218, para 29)
24. The High Court was also not right in criticising and discarding
availability of plea of self-defence to the accused persons on the
ground that the plea was not specifically taken by the accused in
C their statements under Section 313 CrPC and because the accused
Prabhu did not enter in the witness box. Though Section 105 of
the Evidence Act enacts a rule regarding burden of proof but it
does not follow therefrom that the plea of private defence should
be specifically taken and if not taken shall not be available to be
D considered though made out from the evidence available in the
case. A plea of self-defence can be taken by introducing such
plea in the cross-examination of prosecution witnesses or in the
statement of the accused persons recorded under Section 313
CrPC or by adducing defence evidence. And, even if the plea is
not introduced in any one of these three modes still it can be
E raised during the course of submissions by relying on the
probabilities and circumstances obtaining in the case as held by
this Court in Vijayee Singh case [(1990) 3 SCC 190 : 1990 SCC
(Cri) 378 : AIR 1990 SC 1459] . It is basic criminal jurisprudence
that an accused cannot be compelled to be examined as a witness
F and no adverse inference can be drawn against the defence merely
because an accused person has chosen to abstain from the witness
box.
25. We do not deem it necessary to state the law of private defence
of person in very many details, as, for our purpose, it would suffice
G to notice a few provisions of the Penal Code, 1860 and restate
only a few relevant and settled principles. Section 96 provides
that nothing is an offence which is done in exercise of the right of
private defence. Under Section 97 every person has a right, subject
to the restrictions contained in Section 99, to defend his own body,
and the body of another person, against any offence affecting the
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 263
RAJASTHAN [M. M. SUNDRESH, J.]
human body. Under Section 99 the right of private defence in no A
case extends to the inflicting of more harm than it is necessary to
inflict for the purpose of defence. Under Section 100, right of
private defence of the body extends to causing death if the offence
which occasions the exercise of such right is an assault which
reasonably causes an apprehension of death or grievous hurt,
B
amongst others. Under Section 101, save as provided by
Section 99, the right extends to the voluntary causing to the
assailant of any harm other than death. Under Section 102 the
right once available continues as long as an apprehension of danger
to the body continues. When the apprehension of danger has
ceased and yet a person continues his attack, he exceeds the C
right of private defence.
26. …On the principles already stated hereinabove and in the
circumstances in which the accused persons were placed, their
right of private defence extended even to the extent of causing
death so long as the apprehension continued. At the trial the first D
six witnesses examined by the prosecution were formal witnesses.
Sundera, PW 7 is the first witness examined by the prosecution at
the trial deposing to the incident. In his statement, during cross-
examination, the plea that the accused persons were acting in
exercise of right of private defence of person was specifically
introduced by suggesting that they were the members of the E
prosecution party who were the aggressors and the accused were
acting only in defence of their person. They wielded their weapons
when accused Prabhu was being assaulted and was under
apprehension of being killed or suffering grievous hurt.
28. In Dev Raj v. State of H.P. [1994 Supp (2) SCC 552 : 1994 F
SCC (Cri) 1489 : AIR 1994 SC 523] this Court has held that
where the accused received injuries during the same occurrence
in which the complainants were injured and when they have taken
the plea that they acted in self-defence, that cannot be lightly
ignored particularly in the absence of any explanation of their G
injuries by the prosecution.
30. Could any of the accused persons have been held guilty of
any offence for causing hurt with the aid of Section 149 IPC? We
have already held that the accused persons had right of private
defence of person of accused Prabhu available to them. The right H
264 SUPREME COURT REPORTS [2021] 11 S.C.R.
A of private defence need not necessarily be exercised for the
defence of one’s own person; it can be exercised for the defence
of the person of another. So long as an assembly of persons is
acting in exercise of the right of private defence it cannot be an
unlawful assembly. An assembly though lawful to begin with may
in the course of events become unlawful. So long as the accused
B
persons were acting in exercise of right of private defence, their
object was not unlawful and so there was no unlawful assembly
but once they exceeded the right, the assembly ceased to be lawful
and became an unlawful assembly. There too only such of the
members of the assembly who shared the object of doing anything
C in excess of the exercise of right of private defence, alone would
be liable to be punished for the acts committed in prosecution of
the common object or for their individual unlawful acts. The
assemblage of accused persons, five or more in number, cannot
wholly be held liable to conviction with the aid of Section 149 IPC
unless the whole assembly shared the common object of doing
D
anything in excess of the exercise of the right of private defence.
In the case at hand, the High Court has not arrived at a finding
that any of the injuries other than the one inflicted by Ramesh
were so inflicted after the members of the complainant party had
taken to their heels and yet Ramesh fired at them. If they had
E caused any injury before the members of the prosecution party
had turned their back and started running away from the scene of
occurrence, there was no unlawful assembly and none could have
been convicted either under Section 148 or with the aid of Section
149 IPC. There is no finding arrived at by the High Court, and
there is no positive evidence available on record to hold, that any
F
accused (other than Ramesh, as to whom we are dealing with
just hereinafter) caused any injury to anyone after the right of
private defence had ceased to be available.”
47. In Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, this
Court considered the effect of suppression of injuries suffered by the
G accused. Accordingly, it was held that if the injuries on the accused are
substantial and to the knowledge of prosecution, a failure to conduct the
investigation while denying the same would be fatal especially when a
doctor who examined the deceased and the injured accused deposes
otherwise. Paragraph 12 of the aforesaid judgement, states thus:
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 265
RAJASTHAN [M. M. SUNDRESH, J.]
“12. …It seems to us that in a murder case, the non-explanation A
of the injuries sustained by the accused at about the time of the
occurrence or in the course of altercation is a very important
circumstance from which the court can draw the following
inferences:
“(1) that the prosecution has suppressed the genesis and the origin B
of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries
on the person of the accused are lying on a most material point
and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the C
injuries on the person of the accused it is rendered probable so as
to throw doubt on the prosecution case.”
The omission on the part of the prosecution to explain the injuries
on the person of the accused assumes much greater importance where
the evidence consists of interested or inimical witnesses or where the D
defence gives a version which competes in probability with that of the
prosecution one. In the instant case, when it is held, as it must be, that
the appellant Dasrath Singh received serious injuries which have not
been explained by the prosecution, then it will be difficult for the court to
rely on the evidence of PWs 1 to 4 and 6, more particularly, when some E
of these witnesses have lied by stating that they did not see any injuries
on the person of the accused. Thus neither the Sessions Judge nor the
High Court appears to have given due consideration to this important
lacuna or infirmity appearing in the prosecution case. We must hasten to
add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2
SCC 7] there may be cases where the non-explanation of the injuries by F
the prosecution may not affect the prosecution case. This principle would
obviously apply to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and creditworthy,
that it far outweighs the effect of the omission on the part of the G
prosecution to explain the injuries. The present, however, is certainly not
such a case, and the High Court was, therefore, in error in brushing
aside this serious infirmity in the prosecution case on unconvincing
premises.
H
266 SUPREME COURT REPORTS [2021] 11 S.C.R.
A Falsus in Uno- Falsus in Omnibus
48. The principle that when a witness deposes falsehood, the
evidence in its entirety has to be eschewed may not have strict application
to the criminal jurisprudence in our country. The principle governing sifting
the chaff from the grain has to be applied. However, when the evidence
B is inseparable and such an attempt would either be impossible or would
make the evidence unacceptable, the natural consequence would be
one of avoidance. The said principle has not assumed the status of law
but continues only as a rule of caution. One has to see the nature of
discrepancy in a given case. When the discrepancies are very material
shaking the very credibility of the witness leading to a conclusion in the
C mind 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 in
Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8
SCC 50, which states thus:
D
“9. We have considered the respective submissions and perused
the materials on record. The relationship between parties and the
existence of a land dispute regarding which a civil suit was also
pending are undisputed facts. The fact that a verbal duel followed
by scuffle took place between the parties culminating in injuries is
E a concurrent finding of fact by two courts. The fact that the
accused also lodged an FIR with regard to the same occurrence
stands established by the evidence of PWs 19 and 22, the
investigating officers, who have admitted that the respondent-
accused had also lodged BRPS Cr. No. 79/02 — marked Ext.
F D-10, which was not investigated by them. Similarly, PW 11, the
police constable, deposed that two of the accused were admitted
in the District Hospital, Belgaum and that he was posted on watch
duty. The occurrence is of 7-6-2002 and respondent-Accused 1
and 2 were discharged on 11-6-2002. Their injury report has not
been brought on record by the prosecution and no explanation has
G been furnished in that regard.
10. The burden lies on the prosecution to prove the allegations
beyond all reasonable doubt. In contradistinction to the same, the
accused has only to create a doubt about the prosecution case
and the probability of its defence. An accused is not required to
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 267
RAJASTHAN [M. M. SUNDRESH, J.]
establish or prove his defence beyond all reasonable doubt, unlike A
the prosecution. If the accused takes a defence, which is not
improbable and appears likely, there is material in support of such
defence, the accused is not required to prove anything further.
The benefit of doubt must follow unless the prosecution is able to
prove its case beyond all reasonable doubt.
B
11. The fact that a defence may not have been taken by an
accused under Section 313 CrPC again cannot absolve the
prosecution from proving its case beyond all reasonable doubt. If
there are materials which the prosecution is unable to answer, the
weakness in the defence taken cannot become the strength of
the prosecution to claim that in the circumstances it was not C
required to prove anything. In Sunil Kundu v. State of Jharkhand
[Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2
SCC (Cri) 427] , this Court observed : (SCC pp. 433-34, para 28)
“28. … When the prosecution is not able to prove its case
beyond reasonable doubt it cannot take advantage of the fact D
that the accused have not been able to probabilise their defence.
It is well settled that the prosecution must stand or fall on its
own feet. It cannot draw support from the weakness of the
case of the accused, if it has not proved its case beyond
reasonable doubt.” E
12. The fact that an FIR was lodged by the accused with regard
to the same occurrence, the failure of the police to explain why it
was not investigated, coupled with the admitted fact that the
accused were also admitted in the hospital for treatment with
regard to injuries sustained in the same occurrence, but the injury F
report was not brought on record and suppressed by the
prosecution, creates sufficient doubts which the prosecution has
been unable to answer.
13. We find it difficult to concur with the submission on behalf of
the appellants that the failure of the prosecution to investigate the G
FIR lodged by the accused with regard to the same occurrence
or to place their injury reports on record was merely a defective
investigation. We are of the considered opinion that the failure of
the prosecution to act fairly and place all relevant materials with
regard to the occurrence before the court enabling it to take just
H
268 SUPREME COURT REPORTS [2021] 11 S.C.R.
A and fair decision has caused serious prejudice to them. A fair
criminal trial encompasses a fair investigation at the pre-trial stage,
a fair trial where the prosecution does not conceal anything from
the court and discharges its obligations in accordance with law
impartially to facilitate a just and proper decision by the court in
the larger interest of justice concluding with a fairness in sentencing
B
also.”
Scope of section 149
50. Section 149 of the Code deals with a common object. To attract
this provision there must be evidence of an assembly with the common
C object becoming an unlawful one. The concept of constructive or vicarious
liability is brought into this provision by making the offense committed by
one member of the unlawful assembly to the others having the common
object. It is the sharing of the common object which attracts the offense
committed by one to the other members. Therefore, the mere presence
in an assembly per se would not constitute an offense, it does become
D one when the assembly is unlawful. It is the common object to commit
an offense which results in the said offense being committed. Therefore,
though it is committed by one, a deeming fiction is created by making it
applicable to the others as well due to the commonality in their objective
to commit an offense. Thus, it is for the prosecution to prove the factors
E such as the existence of the assembly with a requisite number, the
common object for everyone, the object being unlawful, and an offense
committed by one such member. Courts will have to be more circumspect
and cautious while dealing with a case of accused charged under Section
149 IPC, as it involves a deeming fiction. Therefore, a higher degree of
onus is required to be put on the prosecution to prove that a person
F charged with an offense is liable to be punished for the offence committed
by the others under section 149 IPC. The principle governing the aforesaid
aspect 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 LJ
G 345] was one of the early cases in which this Court dealt with
Section 149 IPC. This Court held that mere presence in an
assembly does not make a person a member of the unlawful
assembly, unless it is shown that he had done or omitted to do
something which would show that he was a member of the
H unlawful assembly or unless the case fell under Section 142 IPC.
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 269
RAJASTHAN [M. M. SUNDRESH, J.]
Resultantly, if all the members of a family and other residents of A
the village assembled at the place of occurrence, all such persons
could not be condemned ipso facto as members of the unlawful
assembly. The prosecution in all such cases shall have to lead
evidence to show that a particular accused had done some overt
act to establish that he was a member of the unlawful assembly.
B
This would require the case of each individual to be examined so
that mere spectators who had just joined the assembly and who
were unaware of its motive may not be branded as members of
the 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. C
[AIR 1965 SC 202 : (1965) 1 Cri LJ 226] where this Court
explained that cases in which persons who are merely passive
witnesses and had joined the assembly out of curiosity, without
sharing the common object of the assembly stood on a different
footing; otherwise it was not necessary to prove that the person D
had committed some illegal act or was guilty of some omission in
pursuance of the common object of the assembly before he could
be fastened with the consequences of an act committed by any
other 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) E
“17. … The crucial question to determine in such a case is
whether the assembly consisted of five or more persons and
whether the said persons entertained one or more of the
common objects as specified by Section 141. While determining
this question, it becomes relevant to consider whether the F
assembly consisted of some persons who were merely passive
witnesses and had joined the assembly as a matter of idle
curiosity without intending to entertain the common object of
the assembly. It is in that context that the observations made
by this Court in Baladin [AIR 1956 SC 181 : 1956 Cri LJ 345] G
assume significance; otherwise, in law, it would not be
correct to say that before a person is held to be a member
of an unlawful assembly, it must be shown that he had
committed some illegal overt act or had been guilty of some
illegal omission in pursuance of the common object of the
H
270 SUPREME COURT REPORTS [2021] 11 S.C.R.
A assembly. In fact, Section 149 makes it clear that if an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
B
offence, is a member of the same assembly, is guilty of that
offence; and that emphatically brings out the principle that
the punishment prescribed by Section 149 is in a sense
vicarious and does not always proceed on the basis that
the offence has been actually committed by every member
C of the unlawful assembly.”
(emphasis supplied)
37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] this
Court held that while in a faction-ridden society there is always a
tendency to implicate even the innocent with the guilty, the only
D safeguard against the risk of condemning the innocent with the
guilty lies in insisting upon acceptable evidence which in some
measure implicates the accused and satisfies the conscience of
the court.
39. That in a faction-ridden village community, there is a tendency
E to implicate innocents also along with the guilty, especially when a
large number of assailants are involved in the commission of an
offence is a matter of common knowledge. Evidence in such cases
is bound to be partisan, but while the courts cannot take an easy
route to rejecting out of hand such evidence only on that ground,
F what ought to be done is to approach the depositions carefully
and scrutinise the evidence more closely to avoid any miscarriage
of justice.”
Motive
51. Motive might lose its significance when adequate evidence in
G the form of eyewitnesses are available to the acceptance of the court.
But, when a motive might have the impact of introducing a perceptible
change to the very case projected by the prosecution, in favour of the
accused, it cannot be brushed aside. It becomes more relevant when an
accused sets up the plea of private defence. A common object and a
motive may get interconnected. Thus, a deliberate and intentional
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 271
RAJASTHAN [M. M. SUNDRESH, J.]
avoidance of unimpeachable evidence qua motive would make the A
version of the prosecution a serious suspect.
Merits
52. We are distressed to note that the investigation has not been
conducted in a fair manner. We have already recorded the evidence of
PW-18 who is none other than the Government Doctor examined on B
behalf of the prosecution. This witness with abundant clarity has reiterated
that accused were referred to him on 19.07.1989 by the police. Added
to that, Exhibit D-15 and D-16 were marked by the defence. The injury
reports under the aforesaid two Exhibits indicate the nature of injuries
suffered. Two injured persons have been admitted as in-patient and treated C
on the request made by the prosecution. Despite questions having been
put, there were deliberate denials by PW-20 and PW-21. The fact that
the injury reports did not refer 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
time of giving the complaint admitted that it was written by somebody D
else who was present nearby. PW-5 contradicts himself by his evidence
in the second trial that it was written by a policeman. It is beyond reasoning
and human conduct that an unknown person could be present in the
police station and that too not to the knowledge of PW-20. When PW-5
could write and possibly the other witnesses present at the time of E
registration of Exhibit P-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 was written. A very serious doubt certainly emerges in our mind on the
very genesis of the written complaint made by PW-5 and that too in the
teeth of the clear suppression made. The evidence given by PW-11 that
the accused were brought to the hospital under the pretext of accident F
also cannot be accepted as the other injured witnesses were also there
and the post-mortem was done. He also acknowledged the presence of
the police. His evidence was not accepted by PW-20 or PW-21. Once
we come to the said conclusion based upon the records available, the
entire so-called recovery cannot be relied upon. The preparation of plan G
followed by other documents prepared during the investigation clearly
indicate the involvement of injured prosecution witnesses and the
explanation given in this regard is not satisfactory.
53. We find that the injuries suffered are not simple injuries and
they are numerous. The injured accused were admitted in the hospitals H
272 SUPREME COURT REPORTS [2021] 11 S.C.R.
A as in-patients. The investigation officer did not go into the aspect of
private defence deliberately. There is a clear admission with respect to
non-consideration of an order of stay obtained by Surjaram, the complaint
given by him, the earlier panchayat held between the parties and the
wall constructed by him preventing the prosecution witnesses and the
deceased to reach their respective places. Perhaps the prosecution would
B
have come to a different conclusion and so also the court if the truth
was placed accordingly. On the contrary, witnesses deny the injuries to
the accused, though the FIR makes a mention.
54. The place of occurrence also creates doubts in our mind, on
view of the contradiction between the map prepared on the one side and
C the evidence of PW-20 along with the PW-5 and PW-6. PW-20 has also
admitted that it was prepared as per the advice of PW-5. Evidence
suggests that there was no blockage, and the wall was constructed by
the main accused and there is not much of a distance between the place
of occurrence and that of the land of the accused. The occurrence also
D took place in the courtyard which is an open space. Though it is contended
by the learned counsel appearing for the de facto complainant that there
are concurrent findings of facts, we find that when the facts are not
considered properly by the courts and are contrary to the evidence on
record, this Court can certainly invoke Article 136 of the Constitution of
India. After all, a criminal case stands on a different footing than that of
E a civil case where onus lies heavily on the prosecution. There is a
conscious attempt not to go beyond the case as projected by the
prosecution witnesses.
55. The reasoning adopted by the Court for the accused persons
acquitted will have to be applied to the case of the others as well in view
F of the aforesaid view expressed by us already, as we find that the
suppression made would be sufficient to disbelieve the case of the
prosecution. There is no adequate material for the Court to come to a
different conclusion with respect to the offence committed or for that
matter, a case of exceeding the private defence. The accused persons
G have taken the plea of private defence as well as a bare denial. Once
the Court has come to a conclusion that the other accused persons who
have been acquitted would not have been present, the concept of private
defence assumes more significance. The High Court itself has come to
a conclusion, and so also the trial court on the second occasion, that it is
H
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF 273
RAJASTHAN [M. M. SUNDRESH, J.]
a case of over implication. We do not find any error in the views A
expressed 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 denial
of them having attacked the injured accused persons, a mere statement
that they carried logs would not be sufficient to reject the plea of private B
defence especially in the light of the injuries suffered. The witnesses
speak of multiple injuries suffered by the deceased and the other injured
witnesses. The view that the evidence of an injured witness has to be
placed at a higher pedestal may not apply to a case of private defence
with the accused also injured. The doctor’s evidence does not support
the specific overt act. Witnesses speak of knife, farsi and spears being C
used at random. The overt act attributed to the convicted accused using
weapons such as farsi do not correspond to the injuries. The injuries are
primarily lacerated in nature. This discussion we make in addition to our
primary conclusion we arrived at already. Suffice it to note that the
genesis and origin of the occurrence and the manner in which it took D
place are certainly suppressed. When the plea of private defence is
taken, the quality of material evidence will have to be a bit higher than
that of the one required in a normal circumstance. We are concerned
with the role of the prosecution in proving the case beyond reasonable
doubt. Unfortunately, two lives have been lost. However, mere suspicion
on a moral ground can never be the basis for a conviction. We can only E
lament that the situation has been brought forth by the unwarranted
approach of the prosecution. Incidentally, we approve the views of the
High Court on the acquittals rendered.
57. We may note that the prosecution witnesses though residing
at different places, stated to have gathered at the place of occurrence in F
large 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 the
second trial, as discussed by us earlier, exposes the version of the
prosecution much more. Witnesses, once again, reiterate and re-confirm G
not only the factum of prior dispute and occurrence but also the closure
of the pathway days before. Our discussion on the facts being suppressed
gets reinforced through the testimony of the Government doctor for the
second time. Even the courts found that recoveries in some cases are
found not proved. Findings have been given on the delay in filing of the H
274 SUPREME COURT REPORTS [2021] 11 S.C.R.
A FIR and over implication by the witnesses. Thus, we can only state that
the second trial makes the case of the prosecution any better. We also
find force in the submission made by the learned counsel appearing for
the accused that the acquittal by the High Court, not challenged qua the
first trial, would give the benefit to the similarly placed accused whose
acquittal was challenged in the second trial, though we have dealt with
B
larger issues.
59. After going through the judgments on four occasions by both
the courts, we find that the convictions rendered are to be interfered
with in the light of the discussions made. The evidence adduced is not
separable and the common findings rendered shall be made applicable
C to all the accused. There are too many loopholes which cannot be filled
up, nor is there any evidence to come to a different conclusion including
that of exceeding the right of private defence. What emerged as a civil
dispute between two groups of villagers turned into a criminal case.
60. We are thus inclined to hold that the Accused-Appellants are
D entitled to the benefit of doubt as we also give our imprimatur to the plea
of private defence as possible and plausible with due discharge of onus.
61. In the conspectus of above discussion, the appeals filed by the
accused 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 complainant
E i.e., Criminal Appeal Nos. 754-755 of 2017 are accordingly dismissed.
Nidhi Jain Appeals disposed of.
F
G
H
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