ANAND RAMACHANDRA CHOUGULE versus SIDARAI LAXMAN CHOUGALA AND OTHERS

[2019] 11 S.C.R.

ANAND RAMACHANDRA CHOUGULE

SIDARAI LAXMAN CHOUGALA AND OTHERS

(Criminal Appeal No. 1006 of 2010)

BAUGUST 06, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Penal Code, 1860:

Alteration of conviction from u/s. 302/34 to s. 304 Part I/34 –CThere was verbal duel followed by scuffle between the parties –Prosecution alleged that accused persons assaulted the other party,which also led to homicidal death – Trial court convicted all thefour accused u/s 302/34 IPC – High Court held that the assaultwas made on spur of the moment without premeditation and thatDboth sides had suffered injuries and altered conviction u/s.304 PartI – Two accused were acquitted as their presence was found doubtful– On appeal, held: Parties were related to each other and there wasa land dispute between them – The verbal duel was followed by ascuffle is concurrent finding of fact by two Courts – AccusedEpersons had also lodged an FIR with regard to the same occurrence,which was not investigated – Police failed to explain why the saidFIR was not investigated – Further, accused were also admitted inthe hospital for treatment with regard to injuries sustained in thesame occurrence but the injury report was not brought on record –The facts were suppressed by the prosecution, which createsFsufficient doubts and prosecution was unable to answer the same –The benefit of doubt must follow unless the prosecution is able toprove its case beyond all reasonable doubt – No reason to interferewith the order of the High Court.

GDismissing the appeals, the Court

HELD: 1. On perusal of materials on record, therelationship between parties and the existence of land disputeregarding which civil suit was also pending are undisputed facts.The fact that verbal duel followed by scuffle took place betweenthe parties culminating in injuries is concurrent finding of factH

by two Courts. The fact that the accused also lodged an F.I.R.with regard to the same occurrence stands established by theevidence of PWs. 19 and 22, the Investigating Officers, who haveadmitted that the respondents-accused had also lodged BRPS,which was not investigated by them. Similarly, PW 11, the PoliceConstable, deposed that two of the accused were admitted in theDistrict Hospital and that he was posted on watch duty. Theoccurrence is of 07.06.2002 and respondents-accused nos. 1 and2 were discharged on 11.06.2002. Their injury report has notbeen brought on record by the prosecution and no explanationhas been furnished in that regard. [Para 8] [19-A-C]

2. The burden lies on the prosecution to prove theallegations beyond all reasonable doubt. In contradistinction tothe same, the accused has only to create doubt about theprosecution case and the probability of its defence. An accusedis not required to establish or prove his defence beyond allreasonable doubt, unlike the prosecution. If the accused takes adefence, which is not improbable and appears likely, there ismaterial in support of such defence, the accused is not requiredto prove anything further. The benefit of doubt must follow unlessthe prosecution is able to prove its case beyond all reasonabledoubt. [Para 9] [19-D-E]

3. The fact that defence may not have been taken by anaccused under Section 313, Cr.P.C. again cannot absolve theprosecution 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 strengthof the prosecution to claim that in the circumstances it was notrequired to prove anything. [Para 10] [19-F]

4. The fact that an F.I.R. was lodged by the accused withregard to the same occurrence, the failure of the police to explainwhy it was not investigated, coupled with the admitted fact thatthe accused were also admitted in the hospital for treatment withregard to injuries sustained in the same occurrence, but the injuryreport was not brought on record and suppressed by theprosecution, creates sufficient doubts which the prosecution hasbeen unable to answer. [Para 11] [20-A-B]

[2019] 11 S.C.R.

ASunil Kundu v. State of Jharkhand, (2013) 4 SCC422 : [2013] 5 SCR 924 – relied on.State of Uttar Pradesh v. Faqirey (2019) 5 SCC 605;Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC444 : [2006] 4 Suppl. SCR 633 ; State of Rajasthan thr.Bthe Secretary v. Kanhaiya Lal, (2019) 5 SCC 639; VijayRamkrishan Gaikwad v. State of Maharashtra andanother, (2012) 11 SCC 592 ; Raj Kumar v. State ofMaharashtra, (2009) 15 SCC 292 : [2009] 11 SCR 49;Dayal Singh and others v. State of Uttaranchal, (2012)C8 SCC 263 : [2012] 10 SCR 157 ; Gajoo v. State ofUttarakhand, (2012) 9 SCC 532 : [2012] 7 SCR 1033;Manoj Kumar v. State of Himachal Pradesh (2018) 7SCC 327 : [2018] 5 SCR 361; Partap v. State of U.P.,(1976) 2 SCC 798 : [1976] 1 SCR 757 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1006 of 2010.

From the Judgment and Order dated 30.11.2007 of the DivisionBench of High Court of Karnataka at Bangalore in Criminal AppealHNo. 22/2005

With

Criminal Appeal No. 1007 of 2010.

Joseph Aristotle S., Mrs. Priya Aristotle, Rijuk Sarkar, Mrs. FarahHashmi, Shanthakumar Mahale, Rajesh Mahale, Advs. for the Appellant.

Anil V. Katarki, Anil C. Nishani, Madhan Kanur, Ms. E. R.Sumathy, Advs. for the Respondents.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. The present two appeals have been preferred by the complainantand the State respectively. The challenge is to the orders of the HighCourt, by which the respondents nos.3 and 4 have been acquitted, andthe conviction of the respondents nos.1 and 2 to life imprisonment underSection 302/34 of the Indian Penal Code,1860 (hereinafter referred toas ‘IPC’) has been altered to one under Section 304 Part I/34 sentencingthem to seven years.

2. The complainant and the accused are related to each other.There was land dispute between them. civil suit is also stated tohave been pending. On 07.06.2002, the deceased along with others werereturning to their village. When they reached near the house of oneYeellappa Patil, the accused persons are alleged to have assaulted themleading to homicidal death. The trial court convicted all the four accused.The High Court in appeal concluded from the materials on record thatthe assault was made on the spur of the moment without premeditationand that both sides having suffered injuries the conviction ought to bealtered under Section 304 Part I, IPC. Two of the accused were acquittedas their presence was found to be doubtful.3. Learned counsel for the appellants submitted that the HighCourt erred in altering the conviction to one under Section 304 Part I,IPC. The assault was premeditated. The accused were armed withaxe, 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 theassault took place on the spur of the moment. No such defence wastaken under Section 313, Cr.P.C. by the accused. PWs. 4 and 5 werealso eye witnesses. Minor contradictions and discrepancies in the evidenceof the prosecution witnesses were insufficient to doubt the prosecutioncase. Relying upon State of Uttar Pradesh vs. Faqirey, (2019) 5 SCC605, it was submitted that the conviction ought to be restored to oneunder Section 302, IPC.

A4. Reliance was also placed on Pulicherla Nagaraju vs. Stateof A.P., (2006) 11 SCC 444, and State of Rajasthan thr. the Secretaryvs. Kanhaiya Lal, (2019) 5 SCC 639, in support of the submission thata single assault on the head sufficient to cause death, without provocationin sudden quarrel or fight justified conviction under Section 302, IPC.BReliance was further placed on Vijay Ramkrishan Gaikwad vs. Stateof Maharashtra and another, (2012) 11 SCC 592, to submit that evenif 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) 15CSCC 292, it has been submitted that if the accused took plea of selfdefence, burden was on them under Section 105 of the Indian EvidenceAct, 1872 to demonstrate that their case would come under any of thegeneral exceptions under the IPC.

6. If the First Information Report lodged by the accused withDregard to the same incident was not exhibited by the prosecution orevidence with regard to hospitalization and injury reports of the accusedwere also not placed, relying on Dayal Singh and others vs. State ofUttaranchal, (2012) 8 SCC 263 and Gajoo vs. State of Uttarakhand,(2012) 9 SCC 532 it was submitted that at best it may be case ofdefective investigation which cannot dent the credibility of the prosecutionEcase with regard to the premediated murderous assault with commonintention.7. Learned counsel for the respondents-accused submitted thatthere was no premediated attack. The parties being related, and theexistence of land dispute between them, when they met near the houseFof Yellappa Patil verbal duel ensued followed by scuffle in whichboth sides received injuries. The F.I.R. lodged by the respondents, theiradmission to the Hospital for treatment and injury reports have all beensuppressed by the prosecution. The fact that the defence may not havebeen taken under Section 313, Cr.P.C. was inconsequential as theGprosecution 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 premediated plan toattack, sudden quarrel in the background of civil dispute with regard toland pending between the parties, the order of the High Court calls forno interference.H8. We have considered the respective submissions and perusedthe materials on record. The relationship between parties and the existenceof land dispute regarding which civil suit was also pending areundisputed facts. The fact that verbal duel followed by scuffle tookplace between the parties culminating in injuries is concurrent findingof 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 evidenceof PWs. 19 and 22, the Investigating Officers, who have admitted thatthe respondents-accused had also lodged BRPS Cr. No.79/02 – markedExhibit D-10, which was not investigated by them. Similarly, PW 11, thePolice Constable, deposed that two of the accused were admitted in theDistrict Hospital, Belgaum and that he was posted on watch duty. Theoccurrence is of 07.06.2002 and respondents-accused nos. 1 and 2 weredischarged on 11.06.2002. Their injury report has not been brought onrecord by the prosecution and no explanation has been furnished in thatregard.

9. The burden lies on the prosecution to prove the allegationsbeyond all reasonable doubt. In contradistinction to the same, the accusedhas only to create doubt about the prosecution case and the probabilityof its defence. An accused is not required to establish or prove hisdefence beyond all reasonable doubt, unlike the prosecution. If theaccused takes defence, which is not improbable and appears likely,there is material in support of such defence, the accused is not requiredto prove anything further. The benefit of doubt must follow unless theprosecution is able to prove its case beyond all reasonable doubt.

10. The fact that defence may not have been taken by anaccused under Section 313, Cr.P.C. again cannot absolve the prosecutionfrom proving its case beyond all reasonable doubt. If there are materialswhich the prosecution is unable to answer, the weakness in the defencetaken cannot become the strength of the prosecution to claim that in thecircumstances 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 beyondreasonable doubt it cannot take advantage of the fact that theaccused have not been able to probabilise their defence. It is wellsettled that the prosecution must stand or fall on its own feet. Itcannot draw support from the weakness of the case of theaccused, if it has not proved its case beyond reasonable doubt.”

ABC

A11. The fact that an F.I.R. was lodged by the accused with regardto the same occurrence, the failure of the police to explain why it wasnot investigated, coupled with the admitted fact that the accused werealso admitted in the hospital for treatment with regard to injuries sustainedin the same occurrence, but the injury report was not brought on recordBand suppressed by the prosecution, creates sufficient doubts which theprosecution has been unable to answer.

12. We find it difficult to concur with the submission on behalf ofthe 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 placeCtheir injury reports on record was merely defective investigation. Weare of the considered opinion that the failure of the prosecution to actfairly and place all relevant materials with regard to the occurrencebefore the court enabling it to take just and fair decision has causedserious prejudice to them. fair criminal trial encompasses fairinvestigation at the pre-trial stage, fair trial where the prosecution doesDnot conceal anything from the court and discharges its obligations inaccordance with law impartially to facilitate just and proper decisionby the court in the larger interest of justice concluding with fairness insentencing also. The observations in Dayal Singh (supra) are pertinentas follows:E“22. Even the present case is glaring example of irresponsibleinvestigation. It, in fact, smacks of intentional mischief to misdirectthe investigation as well as to withhold material evidence fromthe court. It cannot be considered case of bona fide orunintentional omission or commission. It is not case of faultyFinvestigation simpliciter but is an investigation coloured withmotivation or an attempt to ensure that the suspect can go scot-free…”

13. The contention with regard to burden of proof on the defenceunder Section 105, Indian Evidence Act,1872 is best answered by PartapGvs. State of U.P., (1976) 2 SCC 798, observing as follows:

“14. We have carefully scrutinised the judgments of the courtsbelow. In our opinion, their finding in regard to the plea of self-defence is clearly erroneous. They appear to have overlookedthe distinction between the nature of burden that rests on anHaccused under Section 105 of the Evidence Act to establish

plea of self-defence and the one cast on the prosecution by Section101 to prove its case. It is well settled that the burden on theaccused is not as onerous as that which lies on the prosecution.While the prosecution is required to prove its case beyond areasonable doubt, the accused can discharge his onus byestablishing mere preponderance of probability.”

14. Dayal Singh (supra) is distinguishable on its own facts as itdid not relate to suppression of materials with regard to the accusedduring the trial in addition to the failure to investigate. defectiveinvestigation shall be completely different from no investigation at allcoupled with suppression of the injury report arising out of another F.I.Rwith regard to the same occurrence.

15. Gazoo (supra) is also distinguishable on its facts as it relatedonly to failure in obtaining the serologist report.

16. We also cannot find fault with the acquittal of accused nos.3and 4 by the High Court giving them the benefit of doubt afterconsideration 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 theHigh Court. The appeals are dismissed.

Ankit Gyan

Appeals dismissed.