2021 Supreme(SC) 712

SUPREME COURT OF INDIA
(From the High Court of Judicature For Rajasthan at Jaipur)
SANJAY KISHAN KAUL, M.M. SUNDRESH, JJ.
ARVIND KUMAR @ NEMICHAND & ORS. - APPELLANTS
VERSUS
STATE OF RAJASTHAN - RESPONDENT
CRIMINAL APPEAL NO. 753 to 756 OF 2017
Decided On : 22-11-2021

IMPORTANT POINTS
(1) Investigating Officer being a public servant is expected to conduct investigation fairly – While doing so, he is expected to look for materials available for coming to a correct conclusion.
(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 benefit of accused, unless it goes into root of very case of prosecution being fundamental in nature.
(3) Right to private defence – Concept of acting in excess has to be seen from point of view of continued existence of apprehension of danger.
(4) Mere presence in an assembly per se would not constitute an offense, it does become one when assembly is unlawful.
(5) Motive might lose its significance when adequate evidence in form of eyewitnesses are available to acceptance of court – A common object and a motive may get interconnected.
(6) View that evidence of an injured witness has to be placed at a higher pedestal may not apply to a case of private defence with accused also injured.
(7) Mere suspicion on a moral ground can never be basis for conviction.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 173 – Crime Investigation – Murder case – Investigating Officer being a public servant is expected to conduct investigation fairly – While doing so, he is expected to look for materials available for coming to a correct conclusion – He is concerned with offense as against an offender – It is offense that he investigates – Whenever a homicide happens, investigating officer is expected to cover all aspects and, in process, shall always keep in mind as to whether offence would come under Section 299 IPC sans Section 300 IPC – It is his primary duty to satisfy that a case would fall under culpable homicide not amounting to murder and then a murder – When there are adequate materials available, he shall not be overzealous in preparing a case for an offense punishable under Section 302 IPC – A pliable change is required in mind of Investigating Officer – Such an officer is an officer of court also and his duty is to find out truth and help court in coming to correct conclusion – He does not know sides, either of victim or accused but shall only be guided by law and be an epitome of fairness in his investigation. (Para 40)

(B) Criminal Procedure Code, 1973 – Section 173 – Fair/Defective/Colourable Investigation – 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 benefit of accused, unless it goes into root of very case of prosecution being fundamental in nature – While dealing with a defective investigation, court of law is expected to sift evidence available and find out truth on principle that every case involves a journey towards truth – There shall not be any pedantic approach either by prosecution or by court as a case involves an element of law rather than morality – An offense would involve an element of mental rebellion when mind of a person creates an action not supported by ethos and values of a social structure in form of law – This deviant behaviour is 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 this part which is expected to be seen both by Investigating Officer and court while dealing with a criminal case – A fair investigation would become a colourable one when there involves a suppression – Suppressing motive, injuries and other existing factors which will have effect of modifying or altering charge would amount to a perfunctory investigation and become a false narrative – If courts find that foundation of prosecution case is false and would not conform to doctrine of fairness as against a conscious suppression, then very case of prosecution falls to ground unless there are unimpeachable evidence to come to a conclusion for awarding a punishment on a different charge. (Paras 41, 43 and 45)

(C) Indian Penal Code, 1860 – Section 100 – Right to private defence – A private defence need not be set up in a particular manner – Such a private defence need not be confined to individual accused alone, to be applied to others – Though initial onus is on accused to satisfy court, extent of evidence is that of preponderance of probabilities – Thereafter, onus shifts – Once a private defence is accepted, there are two questions alone to answered by court, namely, defence coming within purview of Section 96 to Section 102 IPC and other acting in excess – Concept of acting in excess has to be seen from point of view of continued existence of apprehension of danger – When apprehension gets effaced with attack being continued by an accused taking plea of private defence, exceeding said right would occur – Weapons used in the process would attain significance depending upon facts of the case and if injuries suffered by accused unless being minor and superficial or suppressed on purpose, benefit shall enure. (Para 46)

(D) Indian Penal Code, 1860 – Section 149 – Common object – To attract this provision there must be evidence of an assembly with common object becoming an unlawful one – Concept of constructive or vicarious liability is brought into this provision by making offense committed by one member of unlawful assembly to others having common object – It is sharing of common object which attracts offense committed by one to other members – Mere presence in an assembly per se would not constitute an offense, it does become one when assembly is unlawful – It is common object to commit an offense which results in said offense being committed – Though it is committed by one, a deeming fiction is created by making it applicable to others as well due to commonality in their objective to commit an offense – It is for prosecution to prove factors such as existence of assembly with a requisite number, common object for everyone, 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 – Higher degree of onus is required to be put on prosecution to prove that a person charged with an offense is liable to be punished for offence committed by others under Section 149 IPC. (Para 50)

(E) Indian Evidence Act, 1872 – Section 8 – Motive – Evidentiary value – Motive might lose its significance when adequate evidence in form of eyewitnesses are available to acceptance of court – But, when a motive might have impact of introducing a perceptible change to the very case projected by prosecution, in favour of accused, it cannot be brushed aside – It becomes more relevant when an accused sets up plea of private defence – A common object and a motive may get interconnected – Deliberate and intentional avoidance of unimpeachable evidence qua motive would make the version of prosecution a serious suspect. (Para 51)

(F) Indian Penal Code, 1860 – Sections 302/149 – Criminal Procedure Code, 1973 – Section 378 – Murder – Common object of unlawful assembly – In first and second charge-sheets, there were findings in favour of accused with respect to over implication, contradiction in evidence of prosecution witnesses, disbelieving some of witnesses including delay involved in lodging FIR and test identification parade having not been conducted – Courts also found that there are certain interpolations on date on which Section 161 Cr.P.C. statements have been recorded – On second occasion courts did not approve recoveries made – Investigation has not been conducted in a fair manner – There is doubt about suppression of written complaint – Preparation of plan followed by other documents prepared during investigation clearly indicate involvement of injured prosecution witnesses and explanation given in this regard is not satisfactory – Investigating officer did not go into aspect of private defence deliberately – Place of occurrence also creates doubts – When facts are not considered properly by courts and are contrary to evidence on record, Apex Court can certainly invoke Article 136 of Constitution of India – A criminal case stands on a different footing than that of a civil case where onus lies heavily on prosecution – There is conscious attempt not to go beyond case as projected by prosecution witnesses – Reasoning adopted by Court for accused persons acquitted will have to be applied to case of others as well – Accused persons have taken plea of private defence as well as a bare denial – Once Court has come to a conclusion that other accused persons who have been acquitted would not have been present, concept of private defence assumes more significance – View that evidence of an injured witness has to be placed at a higher pedestal may not apply to a case of private defence with accused also injured – Doctor’s evidence does not support specific overt act – Genesis and origin of occurrence and manner in which it took place are certainly suppressed – Two lives have been lost – However, mere suspicion on a moral ground can never be basis for conviction – Views of High Court on acquittals rendered approved. (Paras 32, 52 to 61)

Facts of the case:

Present appeals sprout from a common occurrence. One set 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 Criminal Procedure Code, facilitating further investigation, leading to addition of ten more accused. No appeal has been filed against the dismissal of the appeal against acquittal and allowing the appeal against convictions qua first trial. On the appeals filed by the convicted individuals, de facto complainant filed his application for intervention.

Findings of Court:

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, concept of private defence assumes more significance. 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. No error in the views expressed by Court on that count.

Result : Appeals filed by accused allowed and appeals filed by de facto complainant dismissed.