# ARVIND KUMAR @ NEMICHAND & ORS v. STATE OF RAJASTHAN

- **Citation:** [2021] 11 S.C.R. 237
- **Court:** Supreme Court of India
- **Decided:** 2021-11-22
- **Case number:** Criminal Appeal No. 753 of 2017
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arvind-kumar-nemichand-ors-v-state-of-rajasthan-34749
- **Pages:** 38

## Headnote

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
[2021] 11 S.C.R. 237
237
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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 s

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ARVIND KUMAR @ NEMICHAND & ORS.
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 753 of 2017)
NOVEMBER 22, 2021
[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
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
[2021] 11 S.C.R. 237
237
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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]
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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
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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
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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
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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]
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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
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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
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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.
Case Law Reference
[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
[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
(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
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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.
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,
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
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
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
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.
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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to his dhani. The lands of the deceased and the pathway which is claimed
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
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
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
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
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
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.
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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"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.
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MEDICAL & HEALTH DEPARTMENT, RAJASTHAN
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.
ARVIND KUMAR @ NEMICHAND & ORS. v. STATE OF
RAJASTHAN [M. M. SUNDRESH, J.]
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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
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,
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.
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
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
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
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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added and the case was taken up for trial for the second time over the
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.
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
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
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
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
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.
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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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
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,
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
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
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
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
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
deposed that the cause for the death of the deceased, Mohan Singh was
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due to shock and excessive bleeding. It is also a result of multiple fractures
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,
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
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
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..."
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
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,
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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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
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.
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
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
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
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
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
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through panchayat. Injury reports of the defence have been marked
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
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
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
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
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
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
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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31.