REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL   NO(s). 1006 OF 2010   ANAND RAMACHANDRA CHOUGULE ...APPELLANT(S)

VERSUS SIDARAI LAXMAN CHOUGALA AND OTHERS  ...RESPONDENT(S)

WITH

CRIMINAL APPEAL   NO(s). 1007 OF 2010   STATE OF KARNATAKA ...APPELLANT(S)

VERSUS SIDARAI LAXMAN CHOUGALA  AND OTHERS  ...RESPONDENT(S)

JUDGMENT NAVIN SINHA, J. The  present  two appeals  have  been  preferred  by  the

complainant and the State respectively. The challenge is to

the orders of the High Court, by which the respondents nos.3

and  4  have  been  acquitted,  and  the  conviction  of  the

respondents nos.1 and 2 to life imprisonment under Section

302/34 of the Indian Penal Code,1860 (hereinafter referred to

as ‘IPC’) has been altered to one under Section 304 Part I/34

sentencing them to seven years.  

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2. The complainant and the accused are related to each

other.  There was a land dispute between them. A civil suit is

also  stated  to  have  been  pending.  On  07.06.2002,  the

deceased along with others were returning to their  village.

When they reached near the house of one Yeellappa Patil, the

accused persons are alleged to have assaulted them leading

to  homicidal  death.  The  trial  court  convicted  all  the  four

accused.   The  High  Court  in  appeal  concluded  from  the

materials on record that the assault was made on the spur of

the  moment  without  premeditation  and  that  both  sides

having suffered injuries  the conviction ought  to  be altered

under  Section  304  Part  I,  IPC.  Two  of  the  accused  were

acquitted as their presence was found to be doubtful.  

3. Learned counsel  for  the appellants submitted that the

High  Court  erred  in  altering  the  conviction  to  one  under

Section 304 Part I, IPC.  The assault was premeditated. The

accused were armed with axe, koita and bamboo sticks.  PWs.

2 and 3 were injured witnesses.  There was no material  in

support of the plea of self defence or that the assault took

place on the spur of the moment.  No such defence was taken

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under Section 313,  Cr.P.C.  by the accused.   PWs.  4 and 5

were  also  eye  witnesses.   Minor  contradictions  and

discrepancies  in  the evidence of  the prosecution witnesses

were insufficient to doubt the prosecution case.  Relying upon

State of Uttar Pradesh vs. Faqirey, (2019) 5 SCC 605, it

was submitted that the conviction ought to be restored to one

under Section 302, IPC.

4. Reliance was also placed on  Pulicherla Nagaraju vs.

State of A.P., (2006) 11 SCC 444, and State of Rajasthan

thr. the Secretary vs. Kanhaiya Lal, (2019) 5 SCC 639, in

support of the submission that a single assault on the head

sufficient  to  cause death,  without  provocation  in  a  sudden

quarrel  or  fight justified conviction under Section 302,  IPC.

Reliance was further placed on Vijay Ramkrishan Gaikwad

vs.  State of  Maharashtra and another,  (2012)  11 SCC

592,  to  submit  that  even if  this  Court  were to  uphold  the

conviction under Section 304 Part I, IPC, the sentence ought

to be enhanced to ten years.

5. Relying  on  Raj  Kumar  vs.  State  of  Maharashtra,

(2009) 15 SCC 292, it has been submitted that if the accused 3

took  a  plea  of  self  defence,  burden  was  on  them  under

Section 105 of the Indian Evidence Act, 1872 to demonstrate

that  their  case  would  come  under  any  of  the  general

exceptions under the IPC.

6. If  the  First  Information Report  lodged by  the  accused

with regard to the same incident was not exhibited by the

prosecution  or  evidence  with  regard  to  hospitalization  and

injury reports of the accused were also not placed, relying on

Dayal Singh and others vs. State of Uttaranchal, (2012)

8 SCC 263 and Gajoo vs. State of Uttarakhand, (2012) 9

SCC 532 it was submitted that at best it may be a case of

defective investigation which cannot  dent the credibility  of

the  prosecution  case  with  regard  to  the  premediated

murderous assault with a common intention.

7. Learned counsel for the respondents-accused submitted

that  there  was  no  premediated  attack.   The  parties  being

related, and the existence of a land dispute between them,

when they met near the house of Yellappa Patil a verbal duel

ensued followed by  a  scuffle in  which  both  sides  received

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injuries.   The  F.I.R.  lodged  by  the  respondents,  their

admission  to  the  Hospital  for  treatment  and injury  reports

have all been suppressed by the prosecution.  The fact that

the  defence may not  have been taken under  Section 313,

Cr.P.C. was inconsequential as the prosecution had to prove

the charge beyond all reasonable doubt.  Reliance was placed

on Manoj Kumar vs. State of Himachal Pradesh, (2018) 7

SCC 327, to submit that in absence of a premediated plan to

attack, a sudden quarrel in the background of civil  dispute

with regard to land pending between the parties, the order of

the High Court calls for no interference.

8. We  have  considered  the  respective  submissions  and

perused the materials on record.  The relationship between

parties and the existence of a land dispute regarding which a

civil suit was also pending are undisputed facts. The fact that

a  verbal  duel  followed  by  scuffle  took  place  between  the

parties culminating in injuries is a concurrent finding of fact

by two Courts. The fact that the accused also lodged an F.I.R.

with regard to the same occurrence stands established by the

evidence of PWs. 19 and 22, the Investigating Officers, who

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have admitted that the respondents-accused had also lodged

BRPS  Cr.  No.79/02  –  marked  Exhibit  D-10,  which  was  not

investigated by them.  Similarly, PW 11, the Police Constable,

deposed that two of the accused were admitted in the District

Hospital,  Belgaum and that  he was posted on watch duty.

The  occurrence  is  of  07.06.2002  and  respondents-accused

nos. 1 and 2 were discharged on 11.06.2002.  Their  injury

report has not been brought on record by the prosecution and

no explanation has been furnished in that regard.  

9. The  burden  lies  on  the  prosecution  to  prove  the

allegations beyond all reasonable doubt. In contradistinction

to the same, the accused has only to create a doubt about

the prosecution case and the probability of its defence.  An

accused  is  not  required  to  establish  or  prove  his  defence

beyond all reasonable doubt, unlike the prosecution.  If the

accused  takes  a  defence,  which  is  not  improbable  and

appears likely, there is material in support of such defence,

the accused is  not required to prove anything further.  The

benefit of doubt must follow unless the prosecution is able to

prove its case beyond all reasonable doubt.   

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10. The fact that a defence may not have been taken by an

accused under Section 313, Cr.P.C. again cannot absolve the

prosecution  from  proving  its  case  beyond  all  reasonable

doubt.  If there are materials which the prosecution is unable

to answer, the weakness in the defence taken cannot become

the  strength  of  the  prosecution  to  claim  that  in  the

circumstances it was not required to prove anything. In Sunil

Kundu v. State of Jharkhand, (2013) 4 SCC 422, this Court

observed:

“28…When the prosecution is not able to prove its case  beyond  reasonable  doubt  it  cannot  take advantage of  the fact  that  the accused have not been  able  to  probabilise  their  defence.  It  is  well settled that the prosecution must stand or fall on its own  feet.  It  cannot  draw  support  from  the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.”

11.  The fact that an F.I.R. was lodged by the accused with

regard to the same occurrence, the failure of the police to

explain  why  it  was  not  investigated,  coupled  with  the

admitted  fact  that  the  accused  were  also  admitted  in  the

hospital for treatment with regard to injuries sustained in the

same occurrence, but the injury report was not brought on

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record and suppressed by the prosecution, creates sufficient

doubts which the prosecution has been unable to answer.

12. We  find  it  difficult  to  concur  with  the  submission  on

behalf of the appellants that the failure of the prosecution to

investigate the F.I.R.  lodged by the accused with regard to

the same occurrence or to place their injury reports on record

was  merely  a  defective  investigation.   We  are  of  the

considered opinion that the failure of the prosecution to act

fairly  and  place  all  relevant  materials  with  regard  to  the

occurrence before the court enabling it to take just and fair

decision has caused serious prejudice to them.  A fair criminal

trial encompasses a fair investigation at the pre-trial stage, a

fair  trial  where  the  prosecution  does  not  conceal  anything

from the court and discharges its obligations in accordance

with law impartially to facilitate a just and proper decision by

the court in the larger interest of justice concluding with a

fairness in sentencing also. The observations in Dayal Singh

(supra) are pertinent as follows:  

“22. Even the present case is a glaring example of irresponsible  investigation.  It,  in  fact,  smacks  of intentional  mischief  to  misdirect  the investigation as well as to withhold material evidence from the

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court. It cannot be considered a case of bona fide or unintentional omission or commission. It is not a case  of  faulty  investigation  simpliciter  but  is  an investigation  coloured  with  motivation  or  an attempt  to  ensure  that  the  suspect  can  go  scot- free…”  

13. The contention with regard to burden of proof on the

defence under Section 105, Indian Evidence Act,1872 is best

answered by  Partap vs. State of U.P., (1976) 2 SCC 798,

observing as follows:

“14. We have carefully scrutinised the judgments of the courts below. In our opinion, their finding in regard  to  the  plea  of  self-defence  is  clearly erroneous.  They  appear  to  have  overlooked  the distinction between the nature of burden that rests on an accused under Section 105 of the Evidence Act to establish a plea of self-defence and the one cast on the prosecution by Section 101 to prove its case.  It  is  well  settled  that  the  burden  on  the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove  its  case  beyond  a  reasonable  doubt,  the accused can discharge his onus by establishing a mere preponderance of probability.”

14. Dayal Singh (supra) is distinguishable on its own facts

as it did not relate to suppression of materials with regard to

the  accused  during  the  trial  in  addition  to  the  failure  to

investigate.   A  defective  investigation  shall  be  completely

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different from no investigation at all coupled with suppression

of the injury report arising out of another F.I.R with regard to

the same occurrence.

15. Gazoo (supra) is also distinguishable on its facts as it

related only to failure in obtaining the serologist report.

16. We also cannot find fault with the acquittal of accused

nos.3 and 4 by the  High Court  giving them the benefit  of

doubt after consideration of the evidence of P.W. 5 vis-à-vis

that of P.Ws. 2 and 3.

17. We, therefore, find no reason to interfere with the order

of the High Court.  The appeals are dismissed.

…………...................J. [ASHOK BHUSHAN]

…………...................J. [NAVIN SINHA]

NEW DELHI AUGUST 06, 2019.

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