Murder Trial - Injured Witness's Evidence Not At A Higher Pedestal In A Case Of Private Defence Where The Accused Also Injured: Supreme Court

A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh allowed a batch of appeals filed by the accused assailing the charges framed in the first chargesheet, while it dismissed the set of appeals filed by the de facto complainant over a trial started pursuant to the second chargesheet filed after further investigation.

Factual Background

The accused and the deceased had a tussle over a pathway running through the land of the deceased. The accused got a stay order from the court in a matter pertaining to the claim over the pathway, and built a wall blocking entry of the deceased into his own land. Later, an attempt was made to resolve the dispute through the Panchayat. On the same day the accused along with his son and 25 other men were alleged to have entered the land of the deceased and attacked them with farsi, barchi (small sword), lathi, bhala and sword. Two other men in neighbouring houses were also alleged to have been attacked and killed. The accused persons were also injured. A person who had witnessed the occurence from about 15-20 feet distance, had lodged a complaint, the next morning. The trial court acquitted two of the accused, convicted five. The High Court acquitted one more and confirmed conviction for four. In the matter a further investigation was ordered under Section 173(8). Ten more accused were added and the case was taken up for trial for the second time. On the second occasion, the trial court convicted four and referred one accused to the Juvenile Justice Board. On appeal the High Court allowed the appeals filed by the accused and dismissed the ones filed against acquittal.

Contentions raised by the accused

It was the contention of the accused persons that their plea of private defence was neither investigated by the police nor considered by the courts below in the correct perspective. It is also asserted that though there was a considerable delay in registering the FIR and submitting it to the concerned magistrate, no explanation was provided by the Investigating Officer. The FIR number was also missing from the injury reports which was corroborated by prosecution witnesses. It was averred that it appeared from the circumstances that the FIR was ante-dated. The accused persons further argued that no investigation was conducted on motive; there were contradictions in evidence and depositions; courts below had accepted the evidence of interested witnesses, ingredients of S.149 IPC were not met; the injuries were only lacerated and not incised; there are contradiction in medical evidence; the witnesses have identified the accused wrongly and some of the witnesses who signed recovery memos had turned hostile.

Contentions raised by the de facto complainant and the State

The plea of the complaint was that the accused should not benefit from a defective investigation. Going a step further it was argued that a delay in registering FIR or discrepancies in evidence would not lead to acquittal when there is sufficient material to prove their guilt. It was pointed out that the plea of private defence and that of sudden fight taken by the accused are contrary to each other. The complainant emphasised that the presence of the other accused would be sufficient to attract S. 149 IPC.

Observations made by the Supreme Court

Colourable Investigation

The first issue that the Court dealt with was the nature of investigation. It observed that an investigating officer is supposed to cover all aspects of the matter while conducting investigation and is also to bear in mind that it is their duty to first satisfy that the offence would fall under culpable homicide not amounting to murder and then murder. Availability of adequate evidence should not automatically encourage them to prepare a case punishable under Section 302 IPC. The Court made a distinction between a defective investigation and colourable one. A defective investigation would not affect the culpability of the offence, unless the defect goes to the root of the prosecution. Referring to Kumar v. State (2018) 7 SCC 536, the Court noted that, on the other hand, an investigation which involved deliberate suppression would result in the prosecution falling flat unless there is unimpeachable evidence to come to a conclusion for awarding a punishment on a different charge.

Private Defence

Reiterating the ingredients to establish private defence, the Court placed reliance on Lakshmi Singh v. State of Bihar (1976) 4 SCC 394, to opine that, when there are substantial injuries on the accused and it is brought to the notice of the prosecution, then failure to conduct the investigation and denying the same would be fatal for the prosecution, especially when the doctor deposes otherwise. The Court observed -

"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. 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 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."

Falsus in Uno- Falsus in Omnibus

The Court noted that when a witness deposes falsehood then the evidence in its entirety cannot be discarded. But, if the evidence is inseparable, and the discrepancies are material, then it is open for the Court to either accept or reject it, as previously deliberated upon in Ramachandra Chougule v. Sidarai Laxman Chougala (2019) 8 SCC 50. The Court observed:

"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."

Scope of Section 149

Dealing with the contention of the accused that the ingredients of S. 149 IPC were not met, the Court cited Ranjit Singh v. State of Punjab (2013) 16 SCC 752 to assert that in order to establish a case under S. 149, it is imperative for the prosecution to prove - existence of assembly with a requisite number; the common object for everyone; the object being unlawful; and an offence committed by one such member. The Court opined that, since the provision involves a deeming fiction, a higher degree of onus is to be bestowed on the prosecution.

Motive

Motive might not be of much significance when there is adequate evidence, mainly eyewitnesses, before the Court. But, when motive makes a discernible change to the prosecution's case and in the favour of the accused it cannot be ignored, especially when a defence of private plea is set up. Therefore, the Court was of the view that -

"Thus, a deliberate and intentional avoidance of unimpeachable evidence qua motive would make the version of the prosecution a serious suspect."

Findings of the Supreme Court

The Court expressed its concern that the investigation was not conducted in a fair manner. The complaint which was written down by an unknown person did not inspire confidence. The missing reference of the FIR on the injury report was opined to have weakened the case of the prosecution. The recovery also suffered suspicion. The preparation of plan and other documents at the time of investigation indicated the involvement of the injured prosecution witnesses. There was deliberate omission on the part of the investigation officer to look into the plea of private defence. Further, there were contradictions in maps that located the place of occurrence.

With respect to the complainant's plea that the concurrent findings by the courts below not be unsettled, the Court held 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."

On the issue of evidence of eye-witnesses, the Court felt that it did not hold ground. It further held:

"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 Court observed that the onus of proving beyond reasonable doubt that the plea of private defence held no water was not met by the prosecution. Considering the innumerable loopholes in the prosecution's case, the Court was inclined to give the benefit of doubt to the plea of private defence and acquit the accused.

Case Title: ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF RAJASTHAN

Citation : LL 2021 SC 686

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