IMPORTANT POINTS
Accused has only to create a doubt about the prosecution case and the probability of its defence and not required to establish or prove his defence beyond all reasonable doubt. Benefit of doubt must be given to accused.
Taking no defence by the accused u/s 313 does not absolve prosecution from proving its case beyond all reasonable doubt.

JUDGMENT :

NAVIN SINHA, J.

1. 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.

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, koitaand 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 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 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 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 inconsequen