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TMI Blog1990 (4) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... tion witnesses, deceased persons and the 6 accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the courts. On the day of occurrence at 8 A.M. P.W. 1 went to his pumping set. P.W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 were proceeding alongwith the rasta towards the pumping set for taking bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them. All the 14 accused emerged out of the Khandar. Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile Accused No. 4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other accused carrying lathis advanced toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted. 4. Before we consider these rival contentions some of the facts which are not indispute may be noted. There was a longstanding rivalry between the two groups. The time and place of occurrence are not in controversy. That the two deceased persons died of gun-shots injuries also is not in dispute. P.Ws. 1 and 2 also received injuries during the course of this occurrence. 5. The prosecution in support of its case examined P.Ws 1 to 11. P.W. 7 the Doctor examined P.W. 2 at about 11.40 A.M. on the same day and found 10 injuries. All of them were contusions and he opined that they might have been caused by a blunt object likelathi. On the same day, he examined P.W. 1 and on his person he found four contusions which could have been caused by Lathis. The Doctor also examined Kailash Singh, who was not examined as a witness, and found two contusions. P.W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun-sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken. Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them. The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No. 13. It may be noted that the same has not been explained by the prosecution. P.W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skin deep 12 x 2 lacerated wound on the left thigh and a wound certificate was issued. He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was referred to the radiologist. P.W. 7, however, stated that he has not seen the report of the radiologist. The defence examined Dr. S.K. Singh as D.W. 1. He deposed that he took the X-ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit. He further deposed that the shadows in the X-ray go to show that there were 10 radio opaque round shadows and these shadows may very well correspond to the pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished any explanation regarding those injuries and that these witnesses have falsely implicated some of the accused due to enmity and, therefore, their evidence cannot be relied upon and accordingly ordered total acquittal. As already mentioned Justice Agrawal, on the other hand, agreed with the trial court completely. Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed. Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No. 14 was a simple one and he could have received that even subsequent to the occurrence. With regard to the gun-shots injuries found on accused No. 13 Mahendra Kahar, the learned Judge himself examined accused No. 13 who was present in the Court when the appeal was being heard and found that hard substance were palpable underneath the flesh round about the location of his injury. In the circumstances it does appear that fire-arm shots to exist underneath the location of injury found on the person of accused Mahendra Kahar. But he ultimately held that in all probability the pallets f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the external injuries were caused during this occurrence only and underneath the same these pallets were found by the radiologist D.W. 1. The injuries are not self-inflicted. Therefore, there is no basis whatsoever to presume that the pallets under the flesh must have been there already even before this occurrence took place. As a matter of fact accused No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there was an injury. P.W. 7 having examined him found that there were 10 radio opaque round shadows underneath the injury and it was only for that reason he referred the injured to the radiologist and D.W. 1 the radiologist after taking the X-ray concluded that underneath the injury pallets discharged from a fire-arm were embedded in the flesh. Therefore, the only view that is possible is that accused No. 13 Mahendra Kahar received gun-shot injuries during the course of this occurrence only. P.W. 7 also examined accused No. 14 Sant Singh on the same day. He found a skin-deep 12' x2' lacerated wound vertically inflicted on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain. The Doctor pointed out that the inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served: Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and that the injuries probabilise the plea taken by the appellants. It was further observed that: In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. Relying on these two cases the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersion. Though they are interested, we find that their evidence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party. 10. As discussed above we are satisfied in this case that non-explanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non-explanation of injuries found on these two accused is that the accused could have had a right of private defence or at any rate a reasonable doubt arises in this regard. 11. The learned Counsel for the defence, however, submits that if for any reason the prosecution case in its entirety is not rejected because of the non-explanation of the injuries found on these two accused, yet the right of private defence of the accused cannot be denied and that on that score also these four convicted accused are entitled to an acquittal. It is also their submission that a careful examination of the provisions of Sections 96, 99 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is whether the accused should be denied the benefit of an exception on the ground that the accused have not discharged the necessary burden of establishing their right to the benefit of the exception beyond all reasonable doubt just like the prosecution is bound under Section 102 of the Evidence Act, or if upon a consideration of the evidence as a whole and the surrounding facts and circumstances of the case, a reasonable doubt is created in the mind of the court about the existence of such a right whether the accused, in such a situation, is entitled to the benefit of the said exception, i.e. the right of private defence. If so, whether they have exceeded the same? 14. The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for considerable time the opinions of the Courts were not uniform. As a matter of fact, in Partap v. State of U.P. [1976]1SCR757 , this Court noted that the question of law that arises here seems to have troubled several High Courts. 15. The phrase burden of proof is not defined in the Act. In respect of criminal cases, it is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.... Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception. If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussing the law on the subject observed: The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circumstances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence. This case has been followed subsequently by a number of High Courts., 17. In K.M. Nanavati v. State of Maharashtra [1962] Suppl. 1 SCR 567 it is observed that: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a prudent man . If the material placed before the Court such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of prudent man , the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code. A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parbhoo's case. However, in Rishi Kesh Singh and Ors. v. The State AIR1970All51 , the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are; firstly, a lifting of the initial obligatory presumption given at the end of Section 105 of the Act; secondly the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by a preponderance of probability , which covers even a slight tilt of the balance of probability in favour of the accused's plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the majority view in Parbhoo's case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice. Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the majority in Parbhoo's case is in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gative one or other of the ingredients of the offence and, thus throw a reasonable doubt on the essential ingredients of the offence of murder. The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities. As observed in Dahyabhai's case the accused will have to rebut the presumption that such circumstances did not exist by placing material before the court which satisfies the standard of a prudent man and the material may consist of oral and documentary evidence, presumptions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act. 19. We have not come across any case of the Supreme Court where the ratio laid down in Parbhoo's case and which was subsequently approved by a larger Bench in Rishi Kesh Singh's case has been considered comprehensiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the one cast on the g 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. Beg, J., however in a separate judgment felt a doubt 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 in his view what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt. Beg, J. referred to the judgments of the Full Bench in Pqrbhoo's case; Nanavati's case and the larger Bench decision in Rishi Kesh Singh's case and applying the principles of benefit of doubt laid in the above three cases to the facts of the case before them observed: Applying the principle of benefit of doubt as I had explained above, to the plea of private defence of person in the instant case. I think that, even if the appellant did not fully establish his plea, yet, there is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be not proved when it is neither proved nor disproved. 23. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of not proved and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words the Court sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence. Dealing with the presumptions of law, the author has noted on page 60, thus: Generally in criminal cases (unless otherwise directed by statute and subject to 4-15 ante) the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein. Thus, in cases of murder, the burden of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution. On charges of rape, etc. the burden of proving non-consent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant's knowledge that his or her spouse was alive within the seven years last past. Wigmore on evidence, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused by introducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed: An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man 28. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is pleaded and the evidence led in support of such plea, judged by the test of preponderance of probability, fails to displace the presumption arising from Section 105 of the Evidence Act; yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused shall be entitled to the benefit of the reasonable doubt as to his guilt. In C.S.D. Swami v. The State 1960CriLJ131 the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act from proof of certain facts unless the contrary is proved was considered and it was held there that the exception laid down by statute was a complete departure from the established principle of the criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt. V.D. Jhingan v. State of U.P. [1966]3SCR736 also is a case dealing with the presumption under Section 4 of the Prevention of Corruption Act under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a consideration of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence. Therefore, in a case where the prosecution has discharged its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance of probabilities or he may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. Consequently in respect of the general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contemplated under Section 105 but in cases of the exceptions covered 3 by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly. 34. In the instant case we are concerned with the exception of right of private defence. In the instant case a plea of right of private defence is raised. As noted above one of the accused received a 12'x2' lacerated wound and other accused received gun-shot injuries. The plea that the non-explanation of these injuries by the prosecution warrants rejection of the prosecution case, is rejected as the evidence of the material witnesses even otherwise found to be cogent, convincing and acceptable but from the circumstances these two accused particularly one of them had received gun-shot injuries during the course of the same occurrence is established. The accused have also adduced defence evidence namely that of a Doctor in support of their plea. This material though by its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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