Summary
The appellant, his father and another were charged with murder and convicted by the trial court. The first information referred to eye witnesses, of whom the prosecution examined only two. These two were chance witnesses of another village, but the others who belonged to the village where the occurrence took place, were not examined. The third accused was acquitted on appeal. by the High Court and the father died after his conviction was con firmed by the High Court. The appellants plea of private defence was rejected both by the trial court and the High Court.
Allowing the appeal to this Court,^HELD (Per M. H. Beg J.): Section 105 of the Evidence Act contains two kinds of burden on the accused who sets up an exception (i) the onus of proving the existence of circumstances bringing the case within any of the general or special exceptions in the I.P.C. Or in any other law; and (ii) the burden of introducing or showing evidence, resulting from the last part of the provision which says that the court shall presume the absence of such circumstances. The effect of the obligatory presumption at the end of Section 105 is that the court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self-defence as an exception to the criminal liability which would otherwise be there. But when both sides have led evidence of their respective versions the accused' can show, from the evidence on record, whether tendered by the prosecution or the defence that the mandatory presumption is removed. The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for acquittal. But the right of the accused to obtain the benefit of reasonable doubt is the necessary outcome and counter part of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. [762A-D;763E]In the present case, even if the appellant did not fully establish his plea. yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offense of murder namely the required mens rea. An examination of all the facts and circumstances revealed by the entire evidence, including the effect of non-production of the better evidence available which. for some unexplained reason was not produced, shows that the plea of private defence cannot be reasonably ruled out. Even if the deceased was not positively proved to be advancing threateningly with a spear poised for attack, towards the appellant or his father, yet, a consideration of the whole evidence leads to the inference that this was reasonably likely to be true. [763C-764A-E](1) The trial court was inclined to believe that the defence version was true to the extent that the deceased had rushed to the scene with a spear. It overlooked that the deceased while going to help P.W. 1, had actually expressed his intention to break the heads of the members of the accused party and that he was acting in such a was as to appear to be bent on physically aggressive interference in a quarrel between the two sides. If that was the conduct of the deceased, it is reasonable to infer that he must have done some- 758thing which gave rise to the right of private defence in favour of the appeallant Otherwise, the conduct of the appellant, in sparing, P W. 1, who according to the prosecution had given offence to his father in the past and on the day of the incident. and was advancing towards the father threatening to strike him with a spade, but shooting the deceased who appeared on the scene subsequently and was, according to the prosecution version unarmed becomes inexplicable If the right of self-defence had arisen the shooting could not be murder, even if the right was exceeded the offence could not he culpable homicide amounting to murder.[760B-F](2) Further, the prosecution version is supported only by two chance witnesses, hut the other persons, who had according to the prosecution version witnessed the occurrence and whose names were mentioned in the FIR. were neither produced by the prosecution nor were they examined as court witnesses [760G-761B](3) Moreover the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted the third accused who was also alleged to have shot with his pistol [764H]Parbhoo v. Emperor, AIR 1941 All 402(FB) and Rishi Kesh Singh ors. v. The State AIR 1970 All] 51 (FB), referred to (Per P. N. Bhagwati and R.S. Sarkaria, JJ) The appellant had established by a preponderance of probability, that the deceased was within a striking distance poised for imminent attack on the appellant with a spear, when the appellant fired the fatal shot, and hence. the death was caused by the appellant in the exercise of the right of private defence.[769F-G](1) Nothing turns on the evidence or the two witnesses who were examined but the approach of the trial court and the High Court to the plea of self-defense raised by the appellant was wrong necessitating a review of the evidence by this Court [767D,G](2) The burden on the accused under s.105, Evidence Act is not as onerous as that which lies on the prosecution under s 101, Evidence Act, to prove its case. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability [767-T](3) The plea of private defence was specifically taken by the appellant at the trial in his examination under s 342 Cr.P.C., and was put to P.W. 1. the chief eye-witness for the prosecution. The High Court was wrong in branching the plea as an after-though on the ground that he did not raise it in the committal court, especially when there is foundation for it in the prosecution evidence itself. The record also shows that only a composite question was put to the appellant and that he was not properly examined in the committal court. [767;768E-G](4) The appellant plea that the deceased was about to strike with his spear when the gun was fired was highly probable. The prosecution case was that, following the threatening gesture made by P.W. 1. to break the father's head with a spade and the call given by him, the appellant came to the scene of occurrence with a gun; that immediately thereafter the deceased came proclaiming that, he would break the heads of, and settle scores with everyone of, the accused party, and that the deceased had reached a distance of 3 or 4 paces from the appellant and was charging at him with the appellant fired. The prosecution story that the deceased was unarmed is improbable. He would not have behaved in that bold and truculent manner unless he was armed with a formidable weapon. [767H-767D](5) The defence witness also testified that he was attracted from his house to the scene of occurrence by the outcry of the father, that he saw the deceased 759armed with a spear running towards the scene of occurrence and that he saw the deceased Lying dead with a spear beside him. He was an independent witness and nothing was brought out in the cross-examination to show that he was either hostile towards the complainant's party or had any special interest in the accused. His version was probable and the High Court Was wrong in rejecting his evidence. [769D-F]See the full content of this document
Extract
Partap VS. The State Of U.P.
PETITIONER: PARTAP Vs.RESPONDENT: THE STATE OF U.P.DATE OF JUDGMENT10/09/1975BENCH: SARKARIA, RANJIT SINGHBENCH: SARKARIA, RANJIT SINGHBEG, M. HAMEEDULLAHBHAGWATI, P.N.CITATION: 1976 AIR 966 1976 SCR (1) 757 1976 SCC (2) 798CITATOR INFO : R 1979 SC 391 (9)F 1980 SC 660 (16)R 1990 SC1459 (21)ACT: Indian Evidence Act (1 of 1872) -Sec. 105 Prosecution for murder- Plea of self-defence-Scope of proof.JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.120 of 1971.Appeal by Special Leave from the Judgment and order dated the 24th July, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 581 of 1968.A. N. Mulla and O. N. Mohindroo for the Appellant.D. P. Uniyal and O. P. Rana for the Respondent.The Judgment of P. N. Bhagwati and R. S. Sarkaria was delivered by R. S. Sarkaria, J. Beg, J. gave a separate opinion.BEG, J. I have had the advantage of going through the judgement of my learned brother Sarkaria. I confess that I do not feel confident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities. But, I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt for the reasons given below.The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts. It gave rise to two Full Bench decisions of the Allahahad High Court, the first in Parbhoo v. Emperor,(l) and the second in Rishi Kesh Singh & ors. v. the State('). It does not seem to ha...
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