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PETITIONER: VIJAYEE SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT20/04/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR 1459            1990 SCR  (2) 573  1990 SCC  (3) 190        JT 1990 (2)   596  1990 SCALE  (1)163

ACT:     Indian Evidence Act: Section 105--Burden of  proof--What is ’fact’--When proved--When ’disproved’--Presumption  court is entitled to draw--What is.

HEADNOTE:     14 accused were tried for offences under section 148 and 302  read with Section 149 of I.P.C. for the murder  of  two persons named Mahendra Singh and Virendra Singh and injuries to  3 others named Vijay Narain Singh, P.W. 1,  Uma  Shankar Singh, P.W. 2 and Kailash Singh. Accused No. 6 Chirkut Singh was further tried under Section 307 I.P.C. for attempting to murder  P.W. 1 and all the remaining accused  under  section 307 read with Section 149 I.P.C. for causing injuries to Uma Shankar  and Kailash Singh. The trial court relying  on  the evidence  of  P.Ws 1 and 2 who were the main  eye  witnesses convicted  all the 14 accused under section 302 I.P.C.  read with Section 149 I.P.C. and awarded them life  imprisonment. The  convicted accused preferred appeals to the  High  Court and  the State filed appeals for enhancement of  their  sen- tence. A Division Bench of the Allahabad High Court consist- ing  of Justice Katju and Aggarwal heard the appeals.  While Justice  Katju allowed the appeals by the accused  and  dis- missed the State appeals, Justice Aggarwal disagreeing  with him,  dismissed all the appeals, both by the accused and  by the  State. Consequently the matter was referred to a  third judge.  Justice Seth who confirmed the conviction  and  sen- tence awarded to accused Nos. 1, 3, 4 and 6 only and acquit- ted  all  the rest of the accused on the view taken  by  him that the specific overt acts were attributable to only these four  accused  and the rest should be given  the  benefit,of doubt.     Criminal  Appeals Nos. 375-377 of 1987 by special  leave were  preferred by the convicted accused Nos. 1, 3, 4 and  6 and  Criminal Appeals Nos. 372-374 of 1987 preferred by  the State against the acquittal of other accused. Accepting  the plea of the accused to the right of selfdefence but  holding that they had definitely exceeded this right when they  went to  the  extent of intentionally shooting  the  deceased  to death and therefore the offence committed was one punishable

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under section 574 304  Part I I.P.C. and not under Section 302 read with  Sec- tion  149 I.P.C. Accordingly in partly allowing the  Appeals filed  by  the convicted accused and  dismissing  the  State appeals, this Court,     HELD: A fact is said to be "proved" when, after  consid- ering the matters before R, the Court either believes it  to exist or considers its existence so probable that a  prudent man  ought, under the circumstances of the particular  case, to act upon the supposition that it exists. [596G-H]     A fact is said to be ’disproved’ when, after considering 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". [596H; 597A]     The  maxim  that  the prosecution must  prove  its  case beyond  reasonable doubt is a rule of caution laid  down  by the  Courts of Law in respect of assessing the  evidence  in criminal cases. [601E]     Section  105 places "burden of proof’ on the accused  in the first part and in the second part there is a presumption which  the Court can draw regarding the absence of the  cir- cumstances,  which presumption is always rebuttable.  Taking the  section as a whole the "burden of proof" and  the  pre- sumption  have  to be considered together. It  is  exiomatic 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. [601F-G]     The  initial  obligatory presumption  regarding  circum- stances 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.  [601H; 602A]     The  presumption regarding the absence of  existence  of circumstances regarding the exception can be rebutted by the accused by intro- 575 ducing evidence. If from such a rebuttal, a reasonable doubt arises  regarding  his  guilt, the accused  should  get  the benefit  of the same. Such a reasonable  doubt  consequently negatives  one  or more of the ingredients  of  the  offence charged,  for  instance, from such a  rebuttal  evidence,  a reasonable  doubt arises about the right of private  defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section  105 of  the Evidence Act should necessarily go to  the  accused. [602C-E]     Section 3 is so worded as to provide for two  conditions of mind, first, that in which a man feels absolutely certain of fact, in other words, "believes it to exist" and secondly

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in  which  though he may not feel absolutely  certain  of  a fact, he thinks it so extremely probable that a prudent  man would  under the circumstances act on the assumption of  its existence. [602G-H; 603A]     The  Evidence 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  proba- bility  or improbability. It is this degree of certainty  to be arrived where the circumstances before a fact can be said to be proved. [603D]     The general burden of establishing the guilt of  accused is  always on the prosecution and it never shifts.  Even  in respect of the cases covered by Section 105 the  prosecution is  not absolved of its duty of discharging the burden.  The accused may raise a plea of exception either by pleading the same  specifically  or by relying on the  probabilities  and circumstances obtaining in the case. [606F-G]     In the instant case, as per the evidence of the material witnesses,  the two deceased were only proceeding  alongwith the rasta towards the pump set for taking bath. Even in  the plea  set up by accused No. 6 it is not stated  specifically that deceased Nos. 1 and 2 were armed with any deadly  weap- ons.  Therefore, the assailants had definitely exceeded  the right  of  private defence when they went to the  extent  of intentionally  shooting them to death by  inflicting  bullet injuries. Therefore, the offence committed by them would  be one  punishable under Section 304 Part I I.P.C. The  convic- tion  of  accused No. 1, 3, 4 and 6 under Section  302  read with Section 149 I.P.C. and the sentence of rigorous impris- onment for life awarded thereunder is set aside and  instead they are 576 convicted  under  Section 304 Part I read  with  Section  34 I.P.C.  and each of them sentenced to undergo  rigorous  im- prisonment  for 10 years. Their other  convictions/sentences are confirmed the sentences to run concurrently. [608C-E]     Mohar Rai & Bharath Rai v. The State of Bihar, [1968]  3 S.C.R. 525; Lakshmi Singh & Ors. v. State of Bihar, [1976] 4 SCC  394;  Pratap v. State of Uttar Pradesh, AIR  1976  S.C. 966;  Woolmington  v. The Director of  Public  Prosecutions, [1935]  Appeal Cases 462; Emperor v. U. Damapala,  AIR  1937 Rangcon  83; Parbhoo & Ors. v. Emperor, AIR  1941  Allahabad 402; K.M. Nanavati v. State of Maharashtra, [1962] Suppl.  1 SCR 567; Dahyabhai Chhaganbhai Thakkar v. State of  Gujarat, AIR  1964 S.C. 1563; Rishi Kesh Singh & Ors. v.  The  State, AIR  1970 Allahabad 51; Bhikari v. State of  Uttar  Pradesh, AIR  1966 S.C. 1; Behram Khurshed Pesikaka v. The  State  of Bombay, [1955] 1 SCR 613; Government of Bombay v. Sakur, AIR 1947  Bombay 38; State of Uttar Pradesh v. Ram  Swarup,  AIR 1974  S.C. 1570; Mohd. Ramzani v. State of Delhi,  AIR  1980 S.C.  1341; State v. Bhima Devraj, AIR 1956 Sau. 77;  Miller v.  Minister of Pensions, [1947] 2 All ER 373; C.S.D.  Swami v.  The  State, AIR 1960 S.C. 7; V.D. Jhingan  v.  State  of Uttar Pradesh, AIR 1966 S.C. 1762; Harbhaian Singh v.  State of Punjab, AIR 1966 S.C. 97; Amjad Khan v. The State, [1952] S.C.R.  567 and Puran Singh & Ors. v. State of  Punjab,  AIR 1975 S.C. 1674, referred to

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 375-77 of 1987.     From  the  Judgment and Order dated  22.10.1984  in  the

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Allahabad High Court in Crl. A. Nos. 1925, 1808 of 1981  and Government Appeal No. 2599 of 1981.     R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli,  Shivpujan Singh, Manoj Prashad, Dalveer Bhandari, T. Sridharan  (N.P.) and B.S. Chauhan for the appearing parties. The Judgment of the Court was delivered by     K. JAYACHANDRA REDDY, J. On 29.5. 1981 at about 8 A.M. a grave rioting took place in the village of Tirro in Varanasi District.  1n  the course of the said  rioting  two  persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed  and Vijay Narain Singh, P.W. 1, Uma  Shankar  Singh, P.W. 2 and one Kailash Singh 577 received  injuries. In respect of these offences 14  accused were  tried  under Sections 148 and 302 read with  Sec.  149 I.P.C.  Chirkut Singh, Accused No. 6 was tried  for  offence punishable under Section 307 I.P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307  read with Sec. 149 I.P.C. for causing injuries  to  Uma Shankar Singh, P.W. 2 and Kailash Singh. It is alleged  that the material prosecution witnesses, deceased persons and the 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  occur- rence  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  towards P.W. 1  who  ducked  and escaped  unhurt. Then the lathis-wielding accused  assaulted P.W.  1  Vijay Narain Singh, P.W. 2 Uma  Shankar  Singh  and Kailash Singh. P.W. 1 managed to escape and ran away.     The  trial court relying on the evidence of P.Ws. 1  and 2,  who  are the main eye witnesses, convicted  all  the  14 accused of the offences for which they were charged and  the substantial sentence awarded is imprisonment for life  under Section 302 I.P.C. read with Section 149 I.P.C. The convict- ed  accused preferred appeals. The State also  filed  appeal for  enhancement  of the sentence. A Division Bench  of  the Allahabad High Court consisting of Justice Katju and Justice Agrawal  heard the appeals. Justice’ Katju allowed  the  ap- peals filed by the accused and dismissed the appeal filed by the  State  but the other learned Judge disagreed  and  dis- missed all the appeals concurring with the trial court.  The matter  came  up before a third Judge Seth, J. He  took  the view that only such of those accused to whom specific  overt acts were attributed could be convicted and the other should be  given  benefit of doubt. In that view of the  matter  he confirmed the convic- 578 tion of Accused Nos.   1, 3, 4 and 6 and acquitted the  rest of  the  accused. Accused Nos.  1, 3, 4 and  6  applied  for special  leave  which was granted by this Court   and  theft

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appeals  are numbered as Criminal Appeal Nos. 375-77/87  and the State has preferred appeals against the acquittal of the other  remaining 10 accused which are numbered  as  Criminal Appeal Nos. 372-74/87.     It  is contended on behalf of the State that the  occur- rence has taken place in broad-day light and merely  because the  witnesses are interested their evidence cannot  be  re- jected and that the view taken by Justice Seth is  incorrect and the view taken by the trial court as well as by  Justice Agrawal  has to be accepted. On the other hand, the  counsel appearing for the accused submitted that witnesses who  were partisans  and  were  highly interested  have  made  omnibus allegations  and  it  is highly dangerous  to  accept  their evidence  because  there  is every  likelihood  of  innocent persons  having  been falsely implicated. It is  also  their further submission that the prosecution has not come forward with the whole truth; and that the origin of the  occurrence has  been suppressed in as much as injuries to some  of  the accused persons have not been explained and consequently  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.     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.     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 like lathi. 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-shots  wounds on  the cranial cavity. Injury No. 1 is an entry  wound  and injury No. 2 is an exist wound. Then he conducted the autop- sy  on  the dead body of deceased No. 1. He  found  two  in- juries, the first one is on 579 the left nipple which is an entry wound and injury No. 2  is on the left palm. On internal examination he found a  bullet embedded and the same was recovered. P.W. 5 is the  Investi- gating Officer. After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead-bodies and recorded the statement of the  witnesses. He also found two live cartridges one of  16 bore and another of 12 bore. P.W. 3 is another  eye-witness. He deposed that Accused Nos. 1, 3, 4 and 6 were armed  with- guns  and  the other were armed with lathis. Accused  No.  1 fired at the deceased No. 1 and Accused No. 3 also fired  at him as a result of which he fell down and when deceased  No. 2 tried to move, Accused No. 4 shot at him and deceased  No. 2  also fell down. When P.Ws 1, 2 and Kailash  Singh  rushed towards  the  place, accused No. 6 fired at P.W.  1  but  he escaped.  Then the lathi-wielding persons beat P.Ws 1 and  2 and  Kailash  Singh. To the same effect is the  evidence  of P  .Ws  1  and 2 also. Under Section 3 13  Cr.P.C.  all  the circumstances  appearing  against the accused  were  put  to them.  They  in general denied the offence.  However,  among

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them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted  their presence  at the scene of occurrence. Accused No. 6 in  par- ticular  stated  that  P.W. 1 and others  armed  with  guns, spears  and lathis tried to do fishing in the pond in  which accused No. 6 had a share. Accused No. 6 and others went  to the  pond for fishing. P.W. 1 and other challenged and  they chased accused No. 6 and others and accused No. 13 was  shot at  by  P.W.  1 and others and he and accused  No.  14  were beaten  with  lathis and in defence he fired two  gun  shots hitting  deceased Nos. 1 and 2. He then went to  the  police station  and lodged a report and deposited his gun and  that P.W.  1 has falsely implicated him. As regards  this  report which is purported to have been given by accused No. 6, P.W. 5 the Investigating Officer was questioned. He admitted that when he returned to the Police Station on 30th May, 1980  he came to know that, accused No. 6 has surrendered his gun. He also  admitted in the cross examination that the  crime  was registered on the basis 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 skindeep 12" x 2" lacerat- ed  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 refer- 580 red 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  corre- spond  to the pallets fired by some fire arms and  the  same appear  to have pierced upto muscles and bone. His  examina- tion  further showed that the pallets remained  embedded  in the thigh.     Before the trial court as well as before the High Court, firstly  it was contended on behalf of the accused that  the eye  witnesses  are highly interested and  therefore,  their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on  two of  the accused would go to show that the accused. acted  in fight of self-defence. Relying on the presence of  gun-shots injuries  on accused No. 13 it was strongly  contended  that the  prosecution party have also used fire-arms and,  there- fore,  the  accused were entitled to the  fight  of  private defence.  The trial court accepted the evidence of  all  the three  witnesses holding that their evidence  is  consistent and  does not suffer from any serious infirmity. So  far  as the plea of self-defence is concerned, the trial court  held that  the  plea taken by accused No. 6 was  to  be  rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on. As regards the  presence  of injuries on the accused  persons,  learned Sessions  Judge having regard to the nature and size of  the injuries found on accused Nos. 13 and 14 took the view  that they  are  simple and that it is not proved that  these  in- juries  were received during the occurrence.  Regarding  the

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presence of the alleged gun-shots injuries on accused No. 13 he pointed out that the medical evidence is inconclusive  on the  point  whether those injuries were caused at  the  time when this incident took place. In the appeal before the High Court, Justice Katju took the view that the theory that  the injuries  on  accused  Nos. 13 and 14  were  self  inflicted cannot be accepted and that the plea taken by accused No.  6 appears  to be probable in view of the fact that the  bullet found in the dead body of deceased No. 2 was fired by a  16- Bore gun and that as admitted by the Investigating  Officer, P.W.  5,  it was accused No. 6 only in that area who  had  a licence  for 16-Bore gun which was deposited by him  in  the police station after the occurrence. Coming to the  injuries found on accused Nos. 13 and 14 Justice Katju took the  view that  they received injuries during the course of  the  same occurrence  and that the three eye-witnesses have  not  fur- nished  any  explanation regarding those injuries  and  that these 581 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  men- tioned  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  re- ceived  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  found in the leg of accused No. 13  Mahendra  Kahar must  have  been there long before the incident, as  in  the view of the learned Judge it was doubtful that those pallets could  have entered the body through the  external  injuries which are described as tiny abrasions. Seth, J.  accordingly rejected the plea of self defence.     Before  we  advert to the above contentions  it  becomes necessary  to consider whether the accused No.  13  Mahendra Kahar  and accused No. 14 Sant Singh received  the  injuries during the course of occurrence. P.W. 7 the Doctor  examined accused No. 13 Mahendra Kahar on 30.5. 1980 at about 6  A.M. and he found the following injuries.    1. Five tiny abrasions in the area of 4cm x 4cm on  outer surface of fight thigh just above knee joint.   2.  The injured complained of pain in the right thumb  and left forearm.     In respect of injury No. 1 the Doctor advised X-ray with a  view to ascertain whether or not there were pallets,  and pending the same he reserved his opinion. P.W. 7 also opined that  injuries appeared to have been caused within 24  hours preceding  the medical examination which correspond  to  the time  of occurrence, namely, 8 A.M. on 29.5. 1980.  P.W.  7, however, stated that the X-ray report was not shown to  him. The  evidence of P.W. 7 makes it clear that accused  No.  13 Mahendra Kahar received these injuries during the course  of the 582

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occurrence.  D.W.  1 is the Doctor who took  the  X-ray.  He deposed that on 5.6.80 he took the X-ray of the fight  thigh of the undertrial prisoner Mahendra Kahar accused No. 13 and the same is marked as Ex-Kha- 12. On the basis of the  X-ray plate he opined that he noticed 10 radio opaque round  shad- ows in the injured and they correspond to the pallets  fired by  some fire-arm. Justice Seth considered the  evidence  of these two Doctors. He also examined the accused in the Court and  he found that hard substance were  palpable  underneath the  flesh.  As already mentioned he was of  the  view  that these appeared to be pallets but according to him they  must have been there long before the incident. The learned  Judge took  this view because he was doubtful that  those  pallets could  have entered the body through the  external  injuries which  are  described as tiny abrasions.  Having  given  our careful  consideration we are unable to agree with the  view taken by Seth, J.P.W. 7 the Doctor’s evidence makes it clear that  the external injuries were caused during  this  occur- rence only and underneath the same these pallets were  found by  the  radiologist D.W. 1. The injuries are  not  self-in- flicted. Therefore, there is no basis whatsoever to  presume that  the pallets under the flesh must have been  there  al- ready 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 under- neath  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 injury was simple and  could have  been caused by blunt weapon like a lathi.  The  injury was  also stitched. It is suggested by the prosecution  that this could have been a self-inflicted one but again there is no  basis  for such presumption. The  Investigating  Officer said  that  on  finding the injury on him he  was  sent  for medical  examination. As a matter of fact accused No.  6  in his statement under Section 313 stated that accused Nos.  13 and  14  received injuries and he also went  to  the  police station  and lodged a report to that effect. It,  therefore, emerges  that accused No. 13 received gun-shot injuries  and accused  No. 14 received lacerated injury during the  course of  the  same occurrence and these injuries must  have  been caused by some member 583 belonging to the prosecution party.     Now  the  question is whether the  prosecution  has  ex- plained  these injuries and if there is no such  explanation what would be its effect? We are not prepared to agree  with the  learned counsel for the defence that in each and  every case  where prosecution fails to explain the injuries  found on some of the accused, the prosecution case should automat- ically  be  rejected, without any further probe.  He  placed considerable  reliance  on  some of the  judgments  of  this Court.  In Mohar Rai & Bharath’ Rai v. The State  of  Bihar, [1968] 3 SCR 525, it is observed: "Therefore the version of the appellants that they sustained injuries  at the time of the occurrence is  highly  probabi-

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lised. Under these circumstances the prosecution had a  duty to explain those injuries. The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could  not have  been self-inflicted and further, according to  him  it was  most unlikely that they would have been caused  at  the instance  of the appellants themselves. Under these  circum- stances we are unable to agree with the High Court that  the prosecution had no duty to offer any explanation as  regards those injuries. In our judgment, the failure of the prosecu- tion  to  offer any explanation in that  regard  shows  that evidence of the prosecution witnesses relating to the  inci- dent  is  not true or at any rate not wholly  true.  Further those   injuries   probabilise  the  plea   taken   by   the appellants." In another important case Lakshmi Singh and Ors. v. State of Bihar,  [1976] 4 SCC 394, after referring to the ratio  laid down in Mohar Rai’s case, this Court observed: "Where the prosecution fails to explain the injuries on  the accused, two results follow: (1)  that the evidence of the prosecution witnesses  is  un- true;  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 occur- 584 rence  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 learned  counsel  for  the defence  contended that in the instant case the  prosecution has  failed to explain the injuries on the two  accused  and the  genesis  and  the origin of the  occurrence  have  been suppressed and a true version has not been presented  before the  Court and consequently the truth from falsehood  cannot be  separated and consequently the entire  prosecution  case must  be  rejected. We are unable to agree. In  Mohar  Rai’s case  it  is made clear that failure of the  prosecution  to offer  any explanation regarding the injuries found  on  the accused  may show that the evidence related to the  incident is  not  true or at any rate not wholly  true.  Likewise  in Lakshmi Singh’s case also it is observed that any non-expla- nation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation  may assume  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.  But  where the evidence is clear,  cogent  and creditworthy  and where the Court can distinguish the  truth from  falsehood  the  mere fact that the  injuries  are  not explained  by  the prosecution cannot by itself  be  a  sole basis  to reject such evidence, and consequently  the  whole case.  Much depends on the facts and circumstances  of  each

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case.  In the instant case, the trial court as well  as  the two  learned Judges of the High Court accepted the  prosecu- tion  case as put forward by P.Ws 1 to 3 in their  evidence. The  presence of these three witnesses could not be  doubted at all. P.Ws 1 and 585 2 are the injured witnesses and P.W. 1 gave a report  giving all the details. However, he attributed specific overt  acts to accused Nos. 1, 3, 4 and 6 and made an omnibus allegation against  the remaining accused. It is for this  reason  that Justice  Seth  found it to be safe to convict  only  accused Nos. 1, 3, 4 and 6 who are the appellants before us. P.Ws 1, 2 and 3 are the eye witnesses. We have carefully  considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly  untrustwor- thy. No doubt they have not explained the injuries found  on accused  Nos. 13 and 14. From this alone it cannot  be  said that  the  prosecution has suppressed the  genesis  and  the origin  of the occurrence and has not presented a true  ver- sion.  Though they are interested, we find that  their  evi- dence  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 prosecu- tion party.     As  discussed above we are satisfied in this  case  that nonexplanation 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  pri- vate  defence  or at any rate a reasonable doubt  arises  in this regard.     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  in- juries 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 exami- nation  of the provisions of Sections 96, 99 and 102  I.P.C. would  show  that on a reasonable apprehension  of  grievous hurt or death the accused had a right even to the extent  of causing  the  death  of the assailants and  they  cannot  be expected to modulate this right in such a situation and that in  the  instant case these four appellants  were  justified even  to the extent of causing death of the two deceased  by inflicting  gun-shot  wounds. In this’ context  it  is  also submitted  that  the plea taken by accused  No.  6,  Chirkut Singh  that  he shot at the two deceased  persons  in  self- defence cannot be brushed aside.     We should at this juncture point out that the plea taken by accused No. 6, Chirkut Singh does not commend itself. The same 586 appears  to be an after-thought. The observation report  and other  circumstances in the case would show that there  were no  fishing operations in the pond. Therefore, the  plea  of accused  No. 6, Chirkut Singh that fishing  operations  were going  on  in  the pond and that he and some  of  the  other accused  went there and that was the genesis and the  origin of  the  occurrence, has no basis whatsoever. On  the  other hand, the evidence of the eye-witnesses regarding the  time, place and manner of occurrence in general, as put forward by the prosecution, cannot be doubted at all.

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   We shall now consider the submission whether the accused had the right of self-defence. Learned counsel for the State contended  that if the accused want to claim the benefit  of the  general  or special exception of the right  of  private defence  then they should plead and discharge the burden  by establishing that they are entitled to the benefit of excep- tion  as provided under Section 105 of the Evidence Act.  In other  words, the submission is that the burden of proof  of the existence of such a right is on the accused and that  in the instant case the accused have not discharged the  burden and  that  mere presence of simple injuries on  the  accused cannot  necessarily  lead to an inference that  they  had  a right  of  self-defence. We have already  held  that  having regard  to  the facts and circumstances of  the  case,  mere non-explanation of these injuries by the prosecution  cannot render  the whole case unacceptable. We have also held  that those injuries on one of the accused No. 13, Mahendra  Kahar were  inflicted  by a fire-arm during the  same  occurrence. Under  these circumstances, the important question  that  we have to consider 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  circum- stances  of the case, a reasonable doubt is created  in  the mind of the court about the existence of such a right wheth- er  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?     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 consid- erable time the opinions of the Courts were not uniform.  As a  matter of fact, in Partap v. State of U.P., AIR  1976  SC 966, this Court noted "that the question 587 of law that arises here seems to have troubled several  High Courts."     The phrase "burden of proof" is not defined in the  Act. In respect of criminal cases, it is an accepted principle of criminal  jurisprudence  that the burden is  always  on  the prosecution  and never shifts. This flows from the  cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following terms: "When  a  person is accused of any offence,  the  burden  of proving  the  existence of circumstances bringing  the  case within  any  of the General Exceptions in the  Indian  Penal Code,  or within any special exception or proviso  contained in  any other part of the same Code, or in any law  defining the  offence, is upon him, and the Court shall  presume  the absence of such circumstances." The  Section to some extent places the onus of  proving  any exception  in a penal statute on the accused. The burden  of proving  the  existence of circumstances bringing  the  case within  the  exceptions mentioned therein is upon  him.  The Section further lays down that the Court shall presume  non- existence  of  circumstances  bringing the  case  within  an exception."  The words "the burden of proving the  existence of circumstances" occuring in the Section are very  signifi- cant.  It is wellsettled that "this burden" which  rests  on the accused does not absolve the prosecution from  discharg-

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ing  its initial burden of establishing the case beyond  all reasonable doubts. It is also well-settled that the  accused need  not set up a specific plea of his offence  and  adduce evidence. That being so the question is: what is the  nature of  burden  that lies on the accused under  Section  105  if benefit  of  the  general exception of  private  defence  is claimed and how it can be discharged? In Woolmington v.  The Director  of Public Prosecutions, [1935] Appeal  Cases  462, Viscount Sankey, L.C. observed: "When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show  by evidence  or by examination of the circumstances adduced  by the  Crown that the act on his part which caused  death  was either  unintentional  or provoked. If the jury  are  either satisfied with his explanation or, upon a review of all, the evidence  are left in reasonable doubt whether, even if  his explanation be not accepted,’ the act was unintentional or 588 provoked, the prisoner is entitled to be acquitted." It is further observed: "Just  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  enti- tled 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 ...  Through- out 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 wheth- er the prisoner killed the deceased with a malicious  inten- tion,  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  prosecu- tion  must  prove the guilt of the prisoner is part  of  the common law of England and no attempt to whittle it down  can be entertained."     Emperor  v.U. Dampala, AIR 1937 Rangoon 83 a full  Bench of  the Rangoon High Court following the Woolmington’s  case held  that the ratio therein is not in any way  inconsistent with  the law in British India, and that indeed the  princi- ples  there  laid down from valuable guide  to  the  correct interpretation  of Section 105 of the Evidence Act  and  the full  Bench laid down that even if the evidence  adduced  by the  accused fails to prove the existence  of  circumstances bringing the case within the exception or exceptions  plead- ed,  the accused is entitled to be acquitted if upon a  con- sideration of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded.     We  have noticed that Section 105 requires that  when  a person is accused of any offence, the burden of proving  the existence  of circumstances bringing the case within any  of the  General  Exceptions  or special  exception  or  proviso contained in any pan of the Penal Code is 589 on  him  and  the Court shall presume the  absence  of  such circumstances.  This presumption is rebuttable.  In  Parbhoo and Ors. v. Emperor, AIR 1941 Allahabad 402, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of

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the Evidence Act. The majority agreed with the view taken by the Full Bench in Dampala’s case. In Parbhoo’s case  Bajpai, J.  in his concurring judgment observed that Section 105  is stated  in  two forms, that of a rule as to  the  burden  of proof  and  that  of a presumption and that  the  burden  of proving the guilt of the accused always rests on the  prose- cution and never: shifts and the learned Judge further  held that the doubt cast in connection with the right of  private defence  must be a reasonable doubt and if there is  such  a reasonable doubt, it casts a doubt on the entire case of the prosecution  and that the result is that the accused gets  a benefit of doubt. "The presumption laid down in Section  105 of  the  Evidence Act might come into play but it  does  not follow  therefrom  that the accused must be  convicted  even when  the  reasonable doubt under the plea of the  right  of private  defence  or under any other plea contained  in  the general  or special exceptions pervades the whole case."  In Dampala’s case Dunkley, J. while concurring with the majori- ty view after discussing 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  evi- dence  adduced by him, or from the  circumstances  appearing from the prosecution evidence, that the existence of circum- stances bringing the case within the exception or exceptions pleaded  has been proved, or upon a review of all  the  evi- dence 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.      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  Excep- tions in the Indian Penal Code or on any special 590 exception  or  proviso contained in any other  part  of  the Penal  Code, or in any law defining an offence, Section  105 of the Evidence Act raises a presumption against the accused and  also throws a burden on him to rebut the said  presump- tion.  Under that Section the Courts shall presume  the  ab- sence  of circumstances bringing the case within any of  the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved. This presumption may also be rebutted by admissions made  or circumstances  elicited by the evidence led by the  prosecu- tion or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any  way affect the burden that lies on the  prosecution  to prove  all  the ingredients, of the offence with  which  the accused  is charged; that burden never shifts.  The  alleged conflict between the general burden which lies on the prose- cution  and the special burden imposed on the accused  under Section 105 of the Evidence Act is more imaginary then real. Indeed, there is no conflict at all." In  Dahyabhai Chhaganbhai Thakkar v. State of  Gujarat,  AIR 1964 SC 1563 it is observed: "It is fundamental principle of criminal jurisprudence  that an  accused  is presumed to be innocent and  therefore,  the burden  lies  on the prosecution to prove the guilt  of  the accused beyond reasonable doubt. The prosecution, therefore, in  a case of homicide shall prove beyond  reasonable  doubt

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that  the accused caused death with the requisite  intention described  in  Section 299 of the Penal  Code.  The  general burden never shifts and it always rests on the  prosecution. But,  under  Section 105 of the Evidence Act the  burden  of proving  the  existence of circumstances bringing  the  case within the exception lies on the accused; and the Court shah presume the absence of such circumstances. Under Section 105 of  the  Evidence Act, read with the  definition  of  "shall presume" in Section 4 thereof, the Court 591 shall  regard  the absence of such circumstances  as  proved unless, after considering the matters before it, it believes that  the said circumstances existed Or their existence  was so  probable  that a prudent man ought,  under  the  circum- stances of the particular case, to act upon the  supposition that  they did exist. To put it in other words, the  accused will  have to rebut the presumption that such  circumstances did  not exist, by placing material before the Court  suffi- cient to make it consider the existence of the said  Circum- stances 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 reasona- ble 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  Parb- hoo’s  case.  However,  in Rishi Kesh Singh &  Ors.  v.  The State, AIR 1970 Allahabad 51, the question that came up  for consideration  before  a  Larger Bench  consisting  of  nine Judges  was whether the dictum in Parbhoo’s case is still  a good  law  on the ground that some of the decisions  of  the Supreme  Court  have cast a cloud of doubt.  A  majority  of seven  Judges approved the principle laid down in  Parbhoo’s case.  The Larger Bench also referred to various  subsequent decisions of the Supreme Court also including the Nanavati’s case;  Bhikari v. State of Uttar Pradesh, AIR 1966 SC 1  and Dahyabhai’s case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati’s  case; Bhikari’s  ease;  Dahyabhai’s case and Mohar Rai  &  Bharath Rai’s case, held that there is no conflict between what  was held  by  the Supreme Court and the majority view  taken  in Parbhoo’s  case. After analysing the view expressed  by  the Surpeme Court in the several above mentioned decisions, Beg, J. observed: 592 "After  a close scrutiny of every part of each of the  seven opinions  in Parbhoo’s case [1941] All LJ 619=AIR  1941  All 402 (FB). I have come to the conclusion that the majority of their  Lordships  did  not lay down  anything  beyond  three important  propositions  which, if not  either  directly  or indirectly supported by decisions of their Lordships of  the Supreme Court have not been affected in the slightest degree by these decisions. These propositions are; firstly, that no evidence  appearing  in the case to  support  the  exception pleaded  by  the  accused can be  excluded  altogether  from consideration on the ground that the accused has not proved.

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his  plea fully; secondly, that the obligatory  .presumption at.the  end of Sec. 105 is necessarily lifted at least  when there  is  enough evidence on record to justify  giving  the benefit  of doubt to the accused on the question whether  he is  guilty  of the offence with which he  is  charged;  and, thirdly,  if  the doubt, though raised due  to  evidence  in support of the exception pleaded, is reasonable and  affects an  ingredient  of  the offence with which  the  accused  is charged, the accused would be entitled to an acquittal. As I read the answer of the majority in Parbhoo’s case [1941] All LJ 619=AIR 1941 All 402 (FB). I find it based on these three propositions  which provide the ratio decidendi and this  is all that needs t6 be clarified." "The practical result of the three propositions stated above is  that an accused’s plea or an exception may reach one  of three  not  sharply demarcated stages,  one  succeeding  the other,  depending upon the effect of the whole  evidence  in the case judged by the standard Of a prudent man weighing or balancing probabilities carefully. These stages are;  first- ly, a lifting of the initial obligatory presumption given at the  end of Sec. 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  ac- cused’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  re- lates 593 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 conformity with law, however, observed that the reasoning in support  of  the conclusions is erroneous. Beg, J.  was  not prepared to go to that extent. The majority speaking through Shri Mathut, J. laid’ down that the dictum in Parbhoo’s case which  is  still a good law, can, however,  be  modified  as follows: "In  a  case in which any General Exception  in  the  Indian Penal Code, or any special exception or proviso contained in another  part of the same Code, or in any law  defining  the offence, is pleaded or raised by an accused persons and  the evidence led in support of such plea, judged by the test  of the preponderance of probability, as in a civil  proceeding, fails  to displace the presumption arising from Section  105 of the Evidence Act, in other words, to disprove the absence of  circumstances bringing the case within the  said  excep- tion;  but upon a consideration of the evidence as a  whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more  the ingre- dients of the offence, the accused person shall be  entitled to  the benefit of the reasonable doubt as to his guilt  and hence to acquittal of the said offence."     Learned  counsel for the State, however, submitted  that if  the  view  taken by the Allahabad High Court  is  to  be accepted then it would amount to throwing the burden on  the prosecution  not only to establish the guilt of the  accused

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beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is  laid down then Section 105 of the Evidence Act would  be rendered  otiose  and there would be  inconsistency  between Sections 102’ and 105. This very question has been  answered by the Supreme Court in Nanavati’s case and it has been held that  the general burden of proving the ingredients  of  the offence  is  always  on the prosecution but  the  burden  of proving  the circumstances attracting the exception lies  on the  accused. But the failure on the part of the accused  to establish all the circumstances bringing his case under  the exception 594 does not absolve the prosecution to prove the ingredients of the  offence and the evidence relied upon by the accused  in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative 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 circum- stances did not exist" by placing material before the  court which satisfies the standard of a prudent man and the  mate- rial may consist of oral and documentary evidence,  presump- tions,  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.     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 comprehensively.     However,  in  Behram Khurshed Pesikaka v. The  State  of Bombay,  [1955] 1 SCR 6 13 there is a specific reference  to Parbhoo’s case and Woolmington’s case while considering  the scope and the manner of the expression ’burden of proof’, in the  judgment of Hon’ Venkatarama Ayyar, J. But the  learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High  Court in  Government  of Bombay v. Sakur, AIR 1947 Bombay  38  has taken a different view.     In State of U.P.v. Ram Swarup, AIR 1974 SC 1570 a  Bench consisting of M.H. Beg, J., as he then was, Y.V. Chandrachud and  V.R. Krishna lyer, JJ., while considering the right  of private  defence put forward by the accused to  some  extent went into the question of burden of proof under Section  105 and a reference is made to a decision of the larger Bench in Rishi  Kesh Singh’s case. Chandrachud, J. who spoke for  the Bench, observed thus: "The  judgment in Rishikesh Singh v. State, AIR 1970 All  51 explains the true nature and effect of the different types 595 of  presumptions arising under Section 105 of  the  Evidence Act. As stated is that judgment, while the initial  presump- tion  regarding  the absence of circumstances  bringing  the case within an exception may be met by showing the existence of  appropriate  facts, the burden to establish  a  plea  of private  defence  by a balance of probabilities  is  a  more difficult burden to discharge. The judgment points out  that

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despite  this position there may be cases where, though  the plea of private defence is not established by an accused  on a  balance of probabilities, yet the totality of  facts  and circumstances  may  still throw a reasonable  doubt  on  the existence of "mensrea" which normally is an essential ingre- dient  of  an  offence. The present is not a  case  of  this latter kind." We  may also refer to a judgment of a Bench of three  Judges consisting of M.H. Beg, P.N. Bhagwati and R.S. Sarkaria, JJ. in  Partap’s  case. Sarkaria, J. speaking  for  himself  and Bhagwati, J. observed: "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 Sec. 105, Evidence Act to  estab- lish a plea of self-defence and the one cast on the prosecu- tion  by  Section 101 to prove its case. It  is  wellsettled 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  pre- ponderance 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 Parbhoo’s case;  Nana- vati’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 exp- 596 lained  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 evidence,  both  direct and circumstantial, to  justify  the finding  that the prosecution has not established  its  case beyond  reasonable  doubt  against Partap  on  an  essential ingredient  of the offence of murder; the required  mensrea. After examining all the facts and circumstances revealed  by the prosecution evidence itself and the defence evidence and considering  the  effect  of non-production  of  the  better evidence  available which, for some unexplained reason,  was not  produced. I am not satisfied that the plea  of  private defence of person can be reasonably ruled out here. This  is enough,  in my opinion, to entitle the appellant to get  the benefit of doubt. ’ ’ In  Mohd. Ramzani v. State of Delhi, AIR 1980 SC 134 1  Sar- karia,  J., who spoke for the Bench, observed that the  onus which  rests on the accused person under Section  105,  Evi- dence  Act, to establish his plea of private defence is  not as onerous as the unshifting burden which lies on the prose- cution  to  establish every ingredient of the  offence  with which the accused is charged beyond reasonable doubt. There- fore,  the contrary view taken by the Bombay High  Court  in Sakur’s case and in State v. Bhima Devraj, AIR 1956 Sau.  77 that the burden is entirely on the accused to establish that he is entitled to the benefit of the exception, does not lay down the correct law.     At  this  stage  it becomes necessary  to  consider  the meaning of the words "the Court shall presume the absence of

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such circumstances" occurring in Section 105 of the Evidence Act.  Section 4 of the Act explains the meaning of the  term "shall  presume" as to mean that the Court shall regard  the fact  as  proved unless and until it is disproved.  ’From  a combined  reading of these two Sections it may  be  inferred that where the existence of circumstances bringing the  case within the exception is pleaded or is raised the Court shall presume  the absence of such circumstances as proved  unless and  until it is disproved. In Section 3 of the Act  meaning of  the  terms "proved", "disproved" and  "not  proved"  are given. As per this provision, a fact is said to be  "proved" when,  after  considering the matters before it,  the  Court either  believes it to exist, or considers its existence  so probable  that a prudent man ought, under the  circumstances of the particular case, to act upon the supposition that  it exists. A fact is said to be "disproved" when, after consid- ering the matters before it, the Court either believes 597 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."     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  shall  presume the  absence  of  such circumstances" bearing  in  mind  the general principle of criminal jurisprudence that the  prose- cution has to prove its case beyond all reasonable doubt and the  benefit  of  every reasonable doubt should  go  to  the accused.     It will be useful to refer to some of the passages  from the  text books of outstanding authors on evidence and  then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows: "The burden is upon the prosecution of proving a defendant’s guilt  beyond reasonable doubt before he is convicted.  Even where  the  evidential burden shifts to  the  defendant  the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the  jury have such a doubt the defendant is entitled to  be acquitted." Another passage at page 48 reads as follows:’ "In  criminal cases the prosecution discharge their  eviden- tial burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the  defence  the tribunal of fact must decide  whether  the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prose- cution has so succeeded fare greater. Hence the accused  may

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be said to be under an evidential burden if the  prosecution has established a prima facie case. Discharge of the eviden- tial burden by defence is not a pre-requisite to an  acquit- tal.  The accused is entitled to be acquitted if at the  end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the      prosecution or the prisoner  .....No matter what the      charge   ..... the principle that the prosecution must prove the  guilt  of  the prisoner is part of the  common  law  of England  and  no attempt to whittle it down  can  be  enter- tained. XX                           XX                       XX XX                           XX                       XX In  many cases, however, the accused’s defence will  involve introducing  new issues, for example,  automatism,  provoca- tion, self-defence, duress, etc. Once there is any  evidence to  support such "explanations" the onus of disproving  them rests  upon the prosecution.  The accused, either by  cross- examination  of  the prosecution witnesses  or  by  evidence called  on his behalf or by 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  inno- cence  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 599 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, dealing with the "Legal Effect  of  a presumption" (3rd ed., Vol. IX p. 289) explains: "It  must  be  kept in mind that the peculiar  effect  of  a presumption  ’of  law’ (that is, the  real  presumption)  is merely to invoke a rule of law compelling the jury to  reach the conclusion ’in the absence of evidence to the  contrary’ from  the opponent. If the opponent does offer  evidence  to the contrary (sufficient to satisfy the Judge’s  requirement of some evidence), the presumption disappears as a rule of Taylor in his ’Treatise on the Law of Evidence’ ( 12th  Edn. Vol. 1 page 259) points out: "On  the two fold ground that a prosecutor must prove  every fact necessary to substantiate his charge against a  prison- er,  and that the law will presume innocence in the  absence of convincing evidence to the contrary, the burden of proof, unless  shifted  by legislative interference, will  fall  in criminal  proceedings on the prosecuting party,  though,  to convict,  he  must  necessarily have  recourse  to  negative evidence.  Thus, if a statute, in the direct description  of an offence, and not by way of proviso (a), contain  negative matter,  the indictment or information must also  contain  a negative  allegation, which must in general be supported  by prima facie evidence." Dealing with the presumptions, the author says:

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"The proper direction as to onus of proof where prima  facie evidence  has  been  given on the part  of  the  prosecution which,  if unanswered, would raise a presumption upon  which the jury might be justified in finding a verdict of  guilty, and the defendant has called evidence to rebut that presump- tion, is that if they accepted the explanation given 600 by  and  on behalf of the prisoner, or if  that  explanation raised  in their minds a reasonable doubt as to  his  guilt, they  should  acquit him as the onus of proof  that  he  was guilty  still  lay upon the prosecution. If upon  the  whole evidence  the  jury are left in a real state  of  doubt  the prosecution  has failed to satisfy the onus of  proof  which lies upon them." It is held in Nanavati’s case that under Section 105 of  the act  the  Court shall presume the absence  of  circumstances bringing  the  case within any of the exceptions,  i.e.  the Court  shall regard the non-existence of such  circumstances as proved till they are disproved, but this presumption  can be  rebutted by the accused by introducing evidence to  sup- port  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  inten- tionally and thereby committed the offence of murder  within the meaning of s. 300 of the Indian Penal Code; the prosecu- tion has to prove the ingredients of murder, and one of  the ingredients of that offence is that the accused intentional- ly 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 presumption  is drawn under s. 105 of the Evidence Act  that the  shooting was not by accident in the circumstances  men- tioned  in s. 80 of the Indian Penal Code, may  adduce  evi- dence  to rebut that presumption. That evidence may  not  be sufficient  to  prove all the ingredients of s.  80  of  the Indian  Penal Code, but may prove that the shooting  was  by accident  or  inadvertance,  i.e. it was  done  without  any intention  or requisite state of mind, which is the  essence of  the offence, within the meaning of s. 300  Indian  Penal Code.  or  at any rate may throw a reasonable doubt  on  the essential  ingredients  of the offence of  murder.  In  that event, though the accused failed to bring his case 601 within  the  terms of s. 80 of the Indian  Penal  Code,  the Court may hold that the ingredients of the offence have  not been  established or that the prosecution has not  made  out the case against the accused. In this view it might be  said that  the  general burden to prove the  ingredients  of  the offence, unless there is a specific statute to the contrary, is  always on the prosecution, but the burden to  prove  the circumstances  coming  under the exceptions  lies  upon  the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the  exception does not absolve the prosecution to prove the ingredients of the  offence; indeed, the evidence, though  insufficient  to

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establish  the exception, may be sufficient to negative  one or more of the ingredients of the offence." In  Dahyabhai’s case as already noted, the relevant  portion reads thus: "The  evidence so placed may not be sufficient to  discharge the  burden  under s. 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 S. 299 of the Penal Code."     The  maxim  that  the prosecution must  prove  its  case beyond  reasonable doubt is a rule of caution laid  down  by the  Courts of Law in respect of assessing  the  evidence.in criminal cases. Section 105 places ’burden of proof’ on  the accused  in the first part and in the second part we find  a presumption  which the Court can draw regarding the  absence of the circumstances which presumption 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  dis- place 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, pro- 602 babilities  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 prepon- derance  of probability in favour of his plea. If there  are absolutely  no circumstances at all in favour of the  exist- ence of such an exception then the rest of the enquiry  does not  arise inspite of a mere plea being raised. But  if  the accused  succeeds  in creating a reasonable doubt  or  shows preponderance  of  probability in favour of  his  plea,  the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.     From  what has been discussed above it emerges that  the presumption  regarding the absence of existence  of  circum- stances  regarding  the  exception can be  rebutted  by  the accused  by introducing evidence in any one of  the  manners mentioned above. If from such a rebuttal, a reasonable doubt arises  regarding  his  guilt, the accused  should  get  the benefit  of the same. Such a reasonable  doubt  consequently negatives  one  or more of the ingredients  of  the  offence charged,  for  instance, from such a  rebuttal  evidence,  a reasonable  doubt arises about the right of private  defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section  105 of the Evidence Act should necessarily go to the accused.     It can be argued that the concept of ’reasonable  doubt’ is  vague  in nature and the standard of ’burden  of  proof’ contemplated  under Section/05 should be somewhat  specific,

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therefore, it is difficult to reconcile both. But the gener- al  principles of criminal jurisprudence, namely,  that  the prosecution  has to prove its case beyond  reasonable  doubt and that the accused is entitled to the benefit of a reason- able doubt, are to be borne in mind. The ’reasonable  doubt’ is one which occurs to a prudent and reasonable man. Section 3  while  explaining  the meaning  of  the  words  "proved", "disproved"  and  "not  proved" lays down  the  standard  of proof,  namely, about the existence or nonexistence  of  the circumstances  from the point of view of a prudent man.  The Section  is  so worded as to provide for two  conditions  of mind, first, that in which a man feels absolutely certain of a  fact, in other words, "believe it to exist" and  secondly in  which  though he may not feel absolutely  certain  of  a fact, he thinks it so extremely probable that a prudent  man would under the circumstances act on the assump- 603 tion  of its existence. The Act while adopting the  require- ment 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  cer- tainty  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  dis- putes.  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’.     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 prosecution version indirectly succeeds. The doubt which the law  contemplates is certainly not that of a weak or  unduly vacillating, capricious, indolent, drowsy or confused  mind. It  must  be  the doubt of the prudent man  who  assumed  to possess the capacity to "separate the chaff from the grain". It  is  the  doubt of a reasonable, astute  and  alert  mind arrived  at after due application of mind to every  relevant circumstances of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.     Lord  Denning,  J. in Miller v.  Minister  of  Pensions, [1947]  2  All ER 373 while examining the  degree  of  proof required in criminal cases stated: "That  degree is well-settled. It need not  reach  certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of  a doubt.  The  law would fail to protect the community  if  it admitted  fanciful  possibilities to deflect the  course  of justice.  If the evidence is so strong against a man  as  to leave  only a remote possibility in his favour which can  be dismissed  with the sentence "of course, it is possible  but not  in the least probable", the case is proved beyond  rea- sonable doubt." Regarding the concept of benefit of reasonable doubt Lord Du Paraq, in another context observed thus: 604 "All that the principle enjoins is a reasonable  scepticism, not an obdurate persistence in disbelief. It does not demand from  the Judge a resolute and impenetrable incredulity.  He

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is never required to close his mind to the truth."     Now,  let us examine the types of cases to  which  these principles  underlined under Section 105 can be applied  and to  what extent? The Section deals with the burden of  proof in respect of the general exceptions, special exceptions and proviso  contained in the Penal Code or in any part  of  the same code, or in any law defining the offence. It is already noted  that  the doctrine of burden of proof has to  be  the general  law and the same remains always upon  the  prosecu- tion.  However,  in respect of the cases where  the  statute wholly  places the burden of proof on the  accused  himself, then the burden is more onerous on him. As already noted  in Rishi Kesh Singh’s case Mathur, J. speaking for the  majori- ty,  while  affirming the view taken in Parbhoo’s  case  ob- served  that in a case where any such exception  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, AIR 1960 SC 7 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  estab- lished  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.  Jhin- gan v. State of U.P., AIR 1966 SC 1762 also is a case  deal- ing  with the presumption under Section 4 of the  Prevention of  Corruption  Act  under which the accused  was  under  an obligation  to disprove his guilt by adducing such  evidence by  which the preponderance of probabilities prove  the  de- fence case.     An  examination  of these cases would  reveal  that  the statutory  exception  which modifies the  operation  of  the general principle that the prosecution must prove all ingre- dients of the offence with which the accused is charged,  to some extent stands on a different 605 However,  Beg,  J. in his separate judgment, in  Rishi  Kesh Singh’s case observed thus: "It  covers  every tilt or preponderance of the  balance  of probability  whether  slight or overwhelming. In  fact,  the dividing  line  between  a case of  mere  "preponderance  of probability" by a slight tilt only of the balance of  proba- bility  and a case of reasonable doubt is very  thin  indeed although it is there. A case of reasonable doubt which  must necessarily  be one of which, on a balancing  of  probabili- ties, two views are possible. What may appear to one reason- able individual to be a case not fully proved may  appear.to another  to  be so proved on a balancing  of  probabilities. Such  a case and only such a case would, in my  opinion,  be one of reasonable doubt. A mere preponderance of probability in  favour  of the exception pleaded by  an  accused  would, however, constitute a "complete" proof of the exception  for the accused but a state of reasonable doubt would not." Somewhat to the same effect are the observations made by the Supreme  Court  in Harbhajan Singh v. State of  Punjab,  AIR 1966  SC 97. After citing Woolmington’s case it  is  therein

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held that "The principle of common law is part of the crimi- nal law of the country. That is not to say that if an excep- tion is pleaded by an accused person he is not required  to. justify  his  plea; but the degree and  character  of  proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the  prosecution  which is required to prove its  case.  The onus  on the accused may well be compared to the onus  on  a party  in  civil proceedings; just as in  civil  proceedings the’ Court which tries an issue makes its decision by adopt- ing the test of probabilities, So must a criminal court hold the’ plea made by the accused proved, if a preponderance  of probability  is established by the evidence led by him."  It can  thus  be seen that there is a dividing 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  considera- tion 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 606 of  probabilities or he may carry his plea further and  suc- ceed  in creating a reasonable doubt about an ingredient  of an  offence. Consequently in respect of the  general  excep- tions,  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  contem- plated  under  Section 105 but in cases  of  the  exceptions covered 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 merely creating a doubt.     At this stage we have to point out that these principles cannot  be made applicable to a case where the accused  sets up alibi. There the burden entirely lies on him and plea  of alibi does not come within the meaning of these  exceptions. Circumstances leading to alibi are within his knowledge  and as provided under Section 106 of the Act he has to establish the  same  satisfactorily. Likewise in the  case  where  the statute throws special burden on the accused to disprove the existence  of  the  ingredients of the offence,  he  has  to discharge  the  burden, for example, in  the  cases  arising under  Prevention  of Food Adulteration Act if  the  accused pleads  a defence under Section 19, the burden is on him  to establish the same since the warranty on which he relies  is a circumstance within his knowledge. However, it may not  be necessary to enumerate these kinds of cases as we are mainly concerned  in this case only with the scope and  application of  Section 105 of the Evidence Act. We also make  it  clear that  the principles laid down by us are only in respect  of the said provision only. As we think that it would be appro- priate  and useful to set out the sum and substance  of  the above discussions regarding the scope of Section 105 and  we accordingly state the same as follows:     The general burden of establishing the guilt of  accused is  always on the prosecution and it never shifts.  Even  in respect of the cases covered by Section 105 the  prosecution is  not absolved of its duty of discharging the burden.  The accused may raise a plea of exception either by pleading the same  specifically  or by relying on the  probabilities  and circumstances  obtaining  in  the case. He  may  adduce  the

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evidence  in  support of his plea directly or  rely  on  the prosecution  case itself or, as stated above, he  can  indi- rectly introduce such circumstances by way of cross-examina- tion  and also rely on the probabilities and the other  cir- cumstances. Then the initial presumption against the accused regarding  the non-existence of the circumstances in  favour of  his  plea gets displaced and on an  examination  of  the material  if  a reasonable doubt arises the  benefit  of  it should go to the accused. The 607 accused  can  also discharge the burden under  Sec.  105  by preponderance  of  probabilities in favour of his  plea.  In case  of  general exceptions, special  exceptions,  provisos contained  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  enti- tled  for  a complete acquittal of the  offence  charged  or would be liable for a lesser offence and convict him accord- ingly.     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  evi- dence  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  evi- dence namely that of a Doctor in support of their plea. This material though by itself is not sufficient to establish the General Exception under Section 96 or the special  exception No.  2  to Section 300 IPC but creates  a  reasonable  doubt about the existence of such a right. The accused have proved the infliction of injuries on them by the complainant  party in  the course of the occurrence. Therefore, the  obligatory initial  presumption against them is removed and their  plea appears  to  be reasonably true and  consequently  they  are entitled to the right of self-defence.     The  next  question is whether they have  exceeded  this right.  Learned  counsel  submits that the  accused  is  not expected  to modulate his right of self-defence and that  in the instant case it cannot with certainty be said that  they have exceeded this right and therefore, they are entitled to an acquittal.     In Amjad Khan v. The State, [1952] SCR 567, on the facts and  circumstances of the case it was held that the  accused was entitled to a right of private defence of the body  even to the extent of causing death as there was no time to  have recourse  to the authorities and had reasonable grounds  for apprehending  that  either death or grievous hurt  would  be caused  either  to himself or to his  family.  These  things could  not  be weighed in too fine a set of  scales  or  "in golden scales." In 608 Puran Singh and Ors. v. State of Punjab, AIR 1975 SC 1674 it is observed that the right of private defence of property or person, where there is real apprehension that the  aggressor might  cause  death or grievous hurt to  the  victim,  could extend to the causing of death also and it is not  necessary that death or grievous hurt should actually be caused before

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the right could be exercised. A mere reasonable apprehension is  enough to put the right of private defence  into  opera- tion. It is also observed that the question whether a person having  a right of private defence has used more force  than is necessary would depend on the facts and circumstances  of a particular case.     In the case before us as per the evidence of the materi- al witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath. Even in  the plea  set  up  by Chirkut Singh, accused No. 6,  it  is  not stated  specifically that deceased Nos. 1 and 2  were  armed with  any  deadly  weapons. Therefore,  the  assailants  had definitely  exceeded the right of private defence when  they went  to the extent of intentionally shooting them to  death by  inflicting bullet injuries. Therefore, the offence  com- mitted  by  them would be one punishable under  Section  304 Part 1 I.P.C.     We  accordingly set aside the conviction of the.  appel- lantsaccused  Nos.  1,  3, 4 and 6,  Vijayee  Singh,  Ranjit Singh,  Ram Briksh Singh and Chirkut Singh respectively  for an  offence punishable under Section 302/149 I.P.C. and  the sentence  of imprisonment for life awarded  thereunder.  In- stead they are convicted under Section 304 Part I read  with Section  34 I.P.C. and sentenced each of them to undergo  10 years imprisonment. The other sentences/convictions  awarded to them are confirmed. The sentences shall run concurrently. Criminal  Appeal  Nos. 375-77 of 1987 are  allowed  to  this extent  only  and Criminal Appeal Nos.  372-74/87  are  dis- missed. R.N.J.               Crl. A. Nos. 375-77/87 are allowed and                      Crl. A. Nos. 372-74/87 are dismissed. ?609