Anand Ramachandra Chougule vs Sidarai Laxman Chougala

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 Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2019.08.06

sentencing them to seven years.

16:35:44 IST Reason:

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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

2 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

4 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

5 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

7 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

8 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

9 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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