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 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 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 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 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 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 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.
s. 149 – Scope of – Stated.
Motive – Effect of, on prosecution case – Stated. Investigation: Fair Investigation, defective investigation and colourable investigation – Explained.
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 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 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]
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 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]
1.3 An offense would involve an element of mental rebellion 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 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 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 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.
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, 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 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 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 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.
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 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 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
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 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 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 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 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.
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 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]
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 injuries suffered. Two injured persons have been admitted as inpatient and treated 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. PW5 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 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 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 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 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]
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 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][271H; 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 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 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 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]
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, 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 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, 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 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 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 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. 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 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 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 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 benefit to the similarly placed accused whose acquittal was 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 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]
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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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