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

The Supreme Court has held that the principle that the evidence of an injured witness has to be placed at a higher pedestal may not apply to a case of private defence when the accused is also injured. 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 InvestigationThe 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 DefenceReiterating 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 ...

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

Sohini Chowdhury

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