Supreme Court of India
VIJAYEE SINGH AND ORS.versusSTATE OF UTTAR PRADESH
- Citation
- 1990 INSC 145
- Decided
- 20 April 1990
- Bench
- S RATNAVEL PANDIAN
Holding
Section 105 imposes a rebuttable presumption of absence of circumstances for an exception, but the prosecution retains the ultimate burden to prove the offence beyond reasonable doubt; when the accused raises a private‑defence plea, he must create reasonable doubt, and if such doubt exists the benefit of doubt applies, leading to conviction under Section 304 Part I rather than murder.
Summary
Four accused (Nos. 1, 3, 4 and 6) were originally convicted of murder under Section 302 read with Section 149 IPC for the killing of Mahendra Singh and Virendra Singh. On appeal, the Supreme Court examined the scope of Section 105 of the Indian Evidence Act, holding that the prosecution must prove the offence beyond reasonable doubt and that the statutory presumption of absence of circumstances for an exception is rebuttable. The Court ruled that when a plea of private defence is raised, the accused must create a reasonable doubt about the prosecution's case, and if such doubt exists, the benefit of doubt goes to the accused. The Court found that the accused had exceeded the right of private defence, converting the offence to culpable homicide not amounting to murder under Section 304 Part I IPC, and substituted the conviction accordingly. Consequently, the convictions under Section 302/149 were set aside and the appellants were sentenced to ten years’ rigorous imprisonment under Section 304 Part I read with Section 34 IPC, with other sentences running concurrently.
Issues considered
- The nature and effect of the presumption under Section 105 of the Indian Evidence Act.
- Whether the burden of proof shifts to the accused when a plea of private defence is raised and what standard of proof is required.
- The impact of the prosecution's failure to explain injuries on accused Nos. 13 and 14.
- Whether the accused exceeded the right of private defence, making the offence murder under Section 302/149 or culpable homicide under Section 304 Part I.
- The appropriate conviction and sentence for accused Nos. 1, 3, 4 and 6.
Legislation cited
- Indian Evidence Act, 1872s. 105, s. 3, s. 4
- Indian Penal Code, 1860s. 102, s. 148, s. 149, s. 299, s. 300, s. 302, s. 304 Part I, s. 307, s. 34, s. 80, s. 96, s. 99
Subjects
burden of proofSection 105presumptionprivate defencereasonable doubtmurderculpable homicideIndian Evidence ActIndian Penal Codeappellate jurisdiction
Judgment
VIJAYEE SINGH AND ORS.
A
v.
_ _c.---
STATE OF UTTAR PRADESH
APRIL 20, 1990
[S. RATNAVEL PANDIAN, M. FATHIMA BEEVI AND B
K. JAYACHANDRA REDDY, JJ.]
•
r Tndian Evidence Act: Section 105-'Burden of proof-What is
'fact'-When proved-When 'disproved'-Presumption court is entitled
to draw-What is.
-'t' c
14 accused were tried for offences under section 148 and 302 read
with Section 149 of I.P.C. for the murder of two pe..SOns named
Mahendra Singh and Virendra Singh and injuries to 3 others named
__.,,,, Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2and Kailash
Singh. Accused No. 6 Chirkut Singh was further tried under Section
307 l.P.C. for attempting to murder P.W. 1 and all the remaining D
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 con·
victed 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
-A preferred appeals to the High Court and the State filed appeals for E
enhancement of their sentence. A Division Bench of the Allahabad High
Court consisting of Justice Katju and Aggarwal heard the appeals.
While Justice Katju allowed the appeals by the accused and dismissed
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 F
conviction and sentence awarded to accused Nos. 1, 3, 4 and 6 only and
acquitted all the rest of the aecused on the view taken by him that the
)- specific overt acts were attributable to only tJtese four accused and the
rest should be given the benefit.of doubt.
Criminal Appeals Nos. 375-377 of 1987 by special leave were pre- G
'
ferred 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
I
other accused. Accepting the plea of the accused to the right of self-
-,>..__ defence but holding that they bad defmitely exceeded this right when
they went to the extent of intentionally shooting the deceased to death
and therefore the offence COillillitted was one punishable under section H
,·-
573
574 SUPREME COURT REPORTS I1990] 2 S.C.R.
A 304 Part I I.P.C. and not under Section 302 read with Seeton 149 I.P.C
Accordingly in partly allowing the Appeals fded by the convicted accused
and dismissing the State appeals, this Court,
HELD: A fact is said to be "proved" when, after considering the
matters before it, the Court either believes it to exist or considers its
B existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it exists. l596G-H]
A fact ts 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 cir-
cumstances. of the particular case, to act upon the supposition that it
C does not exist. A fact is said to be "not proved" when it is neither
"proved" nor "disproved". l596H; 597AJ
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
o respect of assessing the evidence in criminal cases. [60IE]
Section I 05 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 circumstances, which presumption is
always rebuttable. Taking the section as a whole the "burden of proof'' ,.\-_
E and the presumption have to be considered together. It is exiomatic
when the evidence is sufficient as to prove the existence of a fact conclu-
sively then no difficulty arises. But where the accused introduces material
to displace the presumption which may affect the prosecutio'l.,!'ase or
create a reasonable doubt about the existence of one or other ingre-
dients of the offence and then it would amount to a case where prosecu- -"'\
F lion failed to prove its own case beyond reasonable doubt. [60IF-G]
-{.
The initial obligatory presumption regarding circumstances gets
lifted when a plea of exception is raised. More so when there are
circumstances on the record, gathered from the prosecution evidence,
chief and cross examinations, probabilities and circumstances, if any,
G introduced by the accused, either by adduqing 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. [60IH; 602A]
The presumption regarding the absence of existence of circumst-
H ances regarding the exception can be rebutted by the accused by intro-
VUAYEE SINGH v. STATE OF U.P. 575
ducing evidence. If from such a rebuttal, a reasonable doubt arises
A
regarding his guilt, the accused should get the benefit of the same. Such ·
--- a reasonable doubt consequently negatives one or more of the ingre-
dients of the offence charged, for instance, from such a rebuttal evi-
deuce, a reasonable doubt arises about the right of private defence then
it follows that the prosecution has not established the necessary ingre-
dients of intention to commit the offence. In that way the benefit of a B
reasonable doubt which arises from the legal and factual considerations
even under Section 105 of the Evidence Act should necessarily go to the
'y accused. [602C-E]
Section 3 is so worded as to provide for two conditions of mind,
--Y first, that in which a man feels absolutely certain of fact, in other
words, "believes it to exist" and secondly in which though he may not c
feel absolutly 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
D
the same time contemplates of giving full effect to be given to circumst-
ances or condition of probability or improbability. It is this degree of
certainty to be arrived where the circumstances before a fact can be
said to be proved. [6030]
--1- E
The general burden of establishing the guilt of accused is always
on the prosecution and it never shills. 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 proba-
>---- bilities and circumstances obtaining in the case. [606F-G] F
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. l 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
G
shooting them to death by inflicting bullet injuries. Therefore, the off-
I
-:;...... ence committed by them would be one punishable under Section 304
Part I I.P.C. The conviction of accused No. 1, 3, 4 and 6 under Section
302 read with Section 149 I.P.C. and the sentence of rigorous imprison-
.- ment for life awarded thereunder is set aside and instead they are H
576 SUPREME COURT REPORTS (1990] 2 S.C.R.
convicted under SectiOJI 304 Part I read with Section 34 I.P.C. and each
A of them sentenced to undergo rigorous imprisonment for IO years.
Their other convictions/sentences are confirmed the sentences to run -----·
concurrently. l608C-E]
Mohar Rai & Bharath Rai v. The State of Bihar, (1968] 3 S.C.R.
B 525; Lakshmi Singh & Ors. v. State of Bihar, ]19761 4 SCC 394; Pratap
v. State of Uttar Pradesh, AIR 1976 S.C. 966; Woo/mington v.
The Director of Public Prosecutions, (1935] Appeal Cases 462;
Emperor v. U. Damapala, AIR 1937 RangGon 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 &
C Ors. v. The State, AIR 1970 Allahabad 51; Bhikari v. State of Uttar
Pradesh, AIR 1966 S.C. I; 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.
D 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; Harbhajan
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
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 375-77 of 1987.
From the Judgment and Order dated 22.10.1984 in the Allaha-
bad High Court in Cr!. A. Nos. 1925, 1808 of 1981 and Government
p Appeal No. 2599 of 1981. ··--"'
R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli, Sbivpujan Singh,
Manoj Prashad, Dalveer Bhandari, T. Sridharan (N.P.) and B.S.
Chauhan for the appearing parties.
G 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. In -"' -
the course of the said rioting two persons Mahendra Singh and
Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain
H Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh
VIJAYEE SINGH v. STATE OF U.P. [REDDY, J.] 577
received injuries. In respect of these offences 14 accused were tried
A
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 remain-
ing accused under Section 307 read with Sec. 149 I.P.C. for causing
in juries to Uma Shankar Singh, P. W. 2 and Kailash Singh. It is alleged
that the rraterial prosecution witnesses, deceased persons and the B
accused belong to the same village. Since 1972 there have been dis-
putes between these two rival groups. A number of cases were also
T pending in the courts. On the day of occurrence at 8 A.M. P.W. 1 went
to his pumping set. P.W. 2 Uma Shankar Singh and his relation
Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2
- f were proceeding alongwith the rasta towards the pumping set for tak-
ing bath. When they reached near the Khandhar (old building) of
c
Vijay Pratap Singh Accused No. 5 LaUan 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 D
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 E
escaped unhurt. Then the lathis-wielding accused assaulted P.W. 1
Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kail.ash 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 F
which they were charged and the substantial sentence awarded is
' imprisonment for life under Section 302 I.P.C. read with Section 149
I- I.P .C. The convicted 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 appeals filed by the G
accused and dismissed the appeal filed by the State but the other
learned Judge disagreed and dismissed all the appeals concurring with
I 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 covicted and the other should be given
benefit of doubt. In. that yiew of the matter he confirmed the convic- H
1.
578 SUPREME COURT REPORTS [1990] 2 S.C.R.
tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the
A accused. Accused Nos. 1, 3, 4 and 6 applied for special leave which was
granted by this Court and their 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.
B
It is contended on behalf of the State that the occurrenc;; ha;;
taken place in broad-day light and merely because the witnesses are ·}·
interested their evidence cannot be rejected 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
C and were highly interested have made omnibus allegations and it is
highly dangerous to accept their evidence because there is every likeli-
hood 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
D 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 nnder these
circumstances the truth from falsehood cannot be separated and there-
fore, none of the accused could be convicted.
E Before we consider these rival contentions some of the facts
which are not indispute may be noted. There was a longstanding riva-
lary 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.
F
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 in juries. 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 contu-
G sions 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 post-
mortem 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 autopsy on the
H dead body of deceased No. 1. He found two injuries, the first one is on
VIJAYEE SINGH v. ,STATE OF U.P. (REDDY, J.] 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 A
same was recovered. P. W. 5 is the Investigating Officer. After regist-
ration 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 B
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 c
Kailash Singh. To the same effect is the evidence of P .Ws 1and2 also.
Under Section 313 Cr.P.C. all the circumst.ances appearing against the
accused were put to them. They in general denied the offence. How-
ever, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their
presence at the scene of occurrence. Accused No. 6 in particular stated D
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
la this and in defence he fired two gun shots hitting deceased Nos. 1 and E
2. He then went to the police station and lodged a report and deposited
his gun and that P.W. 1 h.as 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- F
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 G
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" lacerated wound on the left thigh and a wound
certificate was issued. He also admitted that he examined accused No.
13 and he found five tiny abrasions in the area of 4cm x 4cm on outer
surface of right thigh just above knee joint and the injured was refer- H
580 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
red to the radiologist. P. W. 7, however, stated that he has not seen the
A 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
B may very well correspond to the pallets fired by some fire arms and the
same appear to have pierced upto muscles and bone. His examination
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
c 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 right of self-defence. Relying on the presence of gun-shots
injuries on accused No. 13 it was strongly contended that the prosecu-
tion party have also used fire-arms and, therefore, the accused were
D entitled to the right of private defence. The trial court accepted the
evidence of all the three witnesses holding that their evidence is consis-
tent and does not su(fer from any serious infirmity. So far as the plea
ofself-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
E 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 injuries were received during
the occurrence. Regarding the presence of the alleged gun-shots
injuries on accused No. 13 he pointed out that the medical evidence is
F 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,
0 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
H not furnished any explanation regarding those in.juries and that these
VIJAYEE SINGH v. STATE OF U.P.'[REDDY, J.l 581
witnesses have falsely implicated some of the accused due to enmity
A
and, therefore, their evidence cannot be relied upon and accordingly
~- ordered total acquittal. As already mentioned Justice Agrawal, on the
other hand, agreed with the trial court completely. Justice Seth, to
whom the case was referred because of the difference of opinion took a
third view and convicted only accused Nos. 1, 3, 4 and 6 to whom
specifically overt acts were attributed. Dealing with the plea of self B
defence Justice Seth held that lacerated injury on accused No. 14 was a
, simple one and he could have received that even subsequent to the
-f
' 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.
c
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 D
have entered the body through the external injuries which are des-
cribed 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 E
No. 14 Sant Singh received the injuries during the course of occur-
rence. 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 right thigh just above knee joint. F
~ 2. The injured complained of pain in the right thumb and left
' forearm.
In respect of injuty No. l..the Doctor advised X-ray with a view
to ascertain whether or not there were pallets; and pending the same G
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.
1:.'I Mahendra Kahar r.<;_ceived these injuries dllri?g the course of the H
582 SUPREME COURT REPORTS (1990] 2 S.C.R.
occurrence. D.W. 1 is the Doctor who took the X-ray. He deposed
A
that on 5.6.80 he took the X-ray of the right 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 shadows in the injured and they correspond to
the pallets fired by some fire-arm. Justice Seth considered the evi-
B dence 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 ·--y.
be pallets but according to him they must have been there long before
the incident. The learned Judge took this view because he was doubt-
ful that those pallets could have entered the body through the external ~
in juries which are described as tiny abrasions. Having given our care-
c ful 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 occurrence only and underneath the -:~
same these pallets were found by the radiologist D.W. 1. The injuries
, are not self-inflicted. Therefore, there is no basis whatsoever to pre·
D sume that the pallets under the flesh must have been there already
even before this occurrence took place. As a matter of fact accused
No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there
was an injury. P.W. 7 having examined him found that there were 10
'radio opaque round shadows underneath the injury and it was only for
that reason he referred the injured to the radiologist and D.W. 1 the v
E radiologist after taking the X-ray concluded that underneath the injury
pallets discharged from a fire-arm were embedded in the flesh. There-
fore, 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 ~
F 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 cau_sed by blunt -'._'
weapon like a lathi. The injury was also stitched. It is suggested by the
prosecution that this could have been a self-intlicted one but again
there is no basis for such presumption. The Investigating Officer said
G 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, therfore, .,_,L -
emerges that accused No. 13 received gun-shot injuries and accused
No. 14 received lacerated injury during the course of the same occur-
H rence and these in1uries must have been caused by some member
VUAYEE SINGH v. STATE OF U.P. [REDDY, J.] 583
belonging to the prosecution party.
A
~-
Now the question is whether the prosecution has explained these
in juries 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 B
automatically be rejected, without any fur~her probe. He placed con-
siderable 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 probabilised.
Under these circumstances the prosecution had a duty to
c
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 D
instance of the appellants themselves. Under these cir-
cumstances 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
prosecution to offer any explanation in that regard shows
~ that evidence of the prosecution witnesses relating to the E
incident 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: F
-c
.,>- "Where the prosecution fails to explain the injuries on the
accused, two results follow:
( !) that the evidence of the prosecution witnesses is
untrue; and that the injuries probabilise the plea taken by G
the appellants.
-..:...... It was further observed that:
I
"In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occur- H
584 <UPREME COURT REPORTS [ 1990] 2 S.C.R.
rence or in the course of altercation is a very important
A
, 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
B version;
(2) that the witnesses who have denied the presence of the '--<
injuries on the person of the accused are lying on a most t-
material point and, therefore, their evidence is unreliable.
c
(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 interes-
-
ted or inimical witnesses or where the defence gives a
version which competes in probability with that of the pro-
secution one."
D
Relying on these two cases the learned counsel for the defence con-
tended that in the instant case the prosecution has failed to explain the
in juries 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
E 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
F non-explanation 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 inimi-
cal 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
G 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 evi-
dence, and consequently the whole case. Much depends on the facts
and circumstances of each 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 pre-
H sence of these three witnesses could not be doubted at all. P.Ws 1 and
VUAYEE SINGH v. STATE OF U.P. (REDDY, J.] 585
2 are the injured witnesses and P.W. 1 gave a report giving all the
A
--
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
tonvict 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 con-
sidered their evidence and nothing material is elicited in the cross- B
examination which renders their evidence wholly untrustworthy. 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
presfnted a true version. Though they are interested, we find that
- their evidence is clear, cogent and convincing. The only reasonable
inference that can be drawn is that the two accused persons received
the injuries during the course of the occurrence which were inflicted
c
on them by some members of the prosecution party.
As discussed above we are satisfied in this case that non-
explanation of injuries on these two accused persons does not affect D
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
I found on these two accused is that the accused could have had a right
of private defence or at any rate a reasonable doubt arises in this
regard.
E
The learned counsel for the defence, however, submits that iffor
any reason the prosecution case in its entirety is not rejected because .
of the non-explanation of the injuries found on these two accused, yet
the right of private defence of the accused cannot be denied and that
on that score also these four convicted accused are entitled to an
acquittal. It is also their submission that a careful examination of the F
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 thi.s 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 G
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;;elf-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 H
586 SUPREME COURT REPORTS [1990] 2 S.C.R.
appears to be an after-thought. The observation report and other
A
circumstances in the case would show that there were no fishing opera-
tions 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
B 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.
I-
We shall now consider the submission whether the accused.)lad
c
the right of self-defence. Learned counsel for the State contendedlhat
if the accused want to claim the benefit of the general or special excep-
tion of the right of private defence then they should plead and dis-
charge the burden by establishing that they are entitled to the benefit
of exception as provided under Section 105 of the Evidence Act. In
~
'r
-
other words, the submission is that the burden of proof of the exist-
ence of such a right is on the accused and that in the instant case the
D accused have not discharged the burden and that mere presence of '
simple in juries 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-explana-
tion of these injuries by the prosecution cannot render the whole case )
unacceptable. We have also held that those injuries on one of the
~
E accused No. 13, Mahendra Kahar were inflicted by a fire-arm during
the same occurrence. Under these circumstances, the important ques-
tion 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
--1
F prosecution is bound under Section 102 of the Evidence Act, or if upon
a consideration of the evidence as a whole and the surrounding facts
and circumstances of the case, a reasonable doubt is created in the ~
mind of the court about the existence of such a right whether the
accused, in such a situation, is entitled to the benefit of the said excep-
tion, i.e. the right of private defence. If so, whether they have
G 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 considerable time the
opinions of the Courts were not uniform. As a matter of fact, in Partap
H v. State of U. P., AIR 1976 SC 966, this Court _noted "that the question
VUAYEE SINGH v. STATE OF U.P. [REDDY, J.) 587
of law that arises here seems to have troubled several High Courts." A
-~ 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 pre-
sumed to be innocent unless proved guilty by the prosecution and the B
accused is entitled to the benefit of every reasonable doubt. Section
105 of the Evidence Act is in the following terms:
-r
"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
c
in any other part of the same Code, or in any law defining
·y-· 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 D
• 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
--1"" circumstances" occuring in the Section are very significant. It is well- E
settled that "this burden" which rests on the accused does.not absolve
the prosecution from discharging 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 offel)Ce 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 F
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 G
evidence or by examination of the circumstances adduced
by the Crown that the act on his part which caused death
'
-1- 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, evenif his
explanation be not accepted, the act was unintentional or H
588 SUPREME COURT REPORTS (1990] 2 S.C.R.
provoked, the prisoner is entitled to be acquitted."
A
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
B cause a doubt as to his guilt. In either case, he is entitled to
the benefit of the doubt. But while the prosecution must
prove the guilt of the prisoner, there is no such burden laid
on the prisoner to prove his innocence an<l it is sufficient
for him to raise a doubt as to his guilt; he is not bound to
satisfy the jury of his innocence ... Throughout the web of
the English criminal law one golden thread is always to be
c seen, that it is the duty of the prosecution to prove the
prisoner's gllilt subject to what I have already $aid 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 th~ evidence given by
D either the prosecution or the prisoner, as to whether the
prisoner, killed the deceased with a malicious intention, the
prosecution has not made out the case and the prisoner is '
entitled to an acquittal. No matter what the charge or
where the trial, the principle that the prosecution must
prove ~e guilt of the prisoner is part of the common law of
E EnglajJ.d and no attempt to whittle it down can be
entertained."
In 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
F India, and that indeed the principles 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 pleaded, the accused is entitled to
be acquitted if upon a consideration of the evidence as a whole the
G 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 Sectio11 105 requires that when a person is
accused of any qffence, the burden of pmviug She existence of cir-
cumstances bringing the case within any of the General Exceptions or
H special exception or proviso contained in any pan of the Penal Code is
VIJAYEE SINGH v.·STATE OF U.P. (REDDY, J.] 589
on him and the Cl)urt shall presume the absence Of such circumstances. A
This presumption is r~buttable. In Parbhoo and Ors. v. Empero~, AIR
---~ 1941 Allahabad 404, a Full Beµch of seven Judges considerec:I the
~cope of Sections 102 and 105 of the EMdeµce Act. The majority
11greed with the view taken by the Full Jllench in Dampala's case. Iii
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 B
proof and that of a presumption and that the burden of proving the
guilt of the accused always rests on the prosecution and never: shifts
1- 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
c
Acr might come into play but it does not follow therefrom that the
--f' 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 _(leneral o; special exc~tions .Pervades the whole case." In
Vampa/a' s case Dunkley, J. while concurri.ng with the majority view D
after discussing the law on the subject observed:
· "The conclusion therefore is. that if th.e Court either is
satisfied from the examinatibn of the accused and the
-f
evidence adduced by him, or from the circumstances
appearing from the prosecution evidence, that the exis- i.
tence of circumstances bringirtg the case within the excep-
tion or exceptions pleaded has been proved, or upon a
review of all the evidence is left in reasonable doub.t
whether such circumstances had existed or not, the accused
in the case of a general exception is entitled to be acquit-
~
ted, or, in the case of a special exception, can be conv!cted f
)._ 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: :G
"In India, as it is in England, there is a presumption of ·
'
~;--.- innocence in favour of the accused as a general 111le, and it
is the duty of the prosecution· to prove the guilt of the
accused. But when an accused relies upon the General
Exceptions in the Indian Penal Code or on any special H
590 SUPREME COURT REPORTS [1990] 2 S.C.R.
exception or proviso contained in any other part of the
A 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
--
presumption ..Under that Section the Courts sh_all presume
the absence of circumstances bringing the case within any
B of the exQeptions, that is, the Court shall regard the non-
existence of such circumstances as proved till they are
disproved.
xx xx xx
xx xx xx
c
This presumption may also be rebutted by admissions made
or circumstances elicited by the evidence led by the pro-
secution or by the combined effect of such circumstances
and the evidence adduced by the accused. But the section
D does not in any way affect the burden that lies on the pro'
secution 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 prosecution and the special burden imposed on the
accused under Section 105 of the Evidence Act is more
E imaginary then real. Indeed, tilere 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
IF 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, there-
fore, in a case of homicide shall prove beyond reasonable
doubt that the accused caused death with the requisite
intention described in Section 29_9 of the Penal Code. The
G general burden never shifts and it always rests on the pro-
secution. But, under Section 105 of the Evidence Act the
burden of proving· the existence of circumstances bringing
!he case within the exception lies on the accused; and the
. Court shall presume the absence of such circumstances.
Urider Section 105 of the Evidence Act, read with the defi-
nation of "shall presume" in Section 4 thereof, the Court
VUAYEE SINGH v. STATE OF U.P. [REDDY, J,J 591
shall regard the absence of such circumstances as. proved A
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 circums-
tances of the particular case, to act upon the supposition
that they did exist. To put it in other words, the accused B
will have to rebut the presumption that such circumstances
did not exist, by placing material before the Court suffi-
.r cient to make it consider the existence of the said circums-
· tances so -probable that a prudent man would ·act upon
them. The accused has to satisfy the standard of a "prudent
'r. 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 "pru-
c
dent man", the accused will have disc~arged his burden.
-< The evidence so placed may not be sufficient to discharge
the burden under Section 105 of the Evidence Act, but it
may raise a reasonable doubt in the . mind of a Judge as
D
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."
_;y E
A careful reading_ of these two decisions would reveal that the state-
ment of law therein_neither expressly or iJn_p!iedly overrules or is in
conflict with the majority view in Parbhoo'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
F
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 Jyahyabhai's case, Beg, J., as he tihen was, in a separate but
concurring judgment after referring to the Nanavati's case; Bhikari's G
eas~; 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
-,L_
I
the majority view taken in Parbhoo's case. After analysing the view
expressed by the Surpeme Court in the several above mentioned deci-
sions, Beg, J. observed:
H
592 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
"After a close scrutiny of every part of each of the seven
A opinions in Parbhoo's case [1941] All LJ 619=AIR 1941
All 402 (FB). 1 have come to the conclusion that the majo-
rity 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 alto'
gether from consideration on the ground that the accused
has not proved his plea fully; secondly, that the ql)ligatory
·presumption at.tjie end of Sec. 105 is necessarily lifted at
c 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
0 an ingredient of the offence wi.th 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 to be clarified."
E
"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
F or balancing probabilities carefully. These stages are;
firstly, 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
G slight tilt of the balance of probability in favour of the
accused's plea. The accused is not entitled to an acquittal if
his plea does not get beyond the. first stage. At the second
stage, he becomes entitled to acquittal by obtaining a bare
benefit of doubt. At the third stage, he is undoubtedly
entitled to an acquittal. This., in my opinion, is the effect of
H the majority view in Parbhoo's case which directly relates
VUAYEE SINGH v. STATE OF U.P. [REDDY, J.] 593
to fast two stages only. The Supreme Court decisions have
A
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 confonnity with law, B
however, observed that the reasoning in s1;1p~ort of the conclusions is
erroneous. Beg, J. was not prepared to go to that extent. The majority
r, speaking through Shri Mathur, 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 c
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, D
fails to displace the presumptfon arising from Section 105
of the Evidence Act, in other words, to disprove the
absence of circumstances bringing the case within the said
exception; but upon a consideration of the evidence as a
whole, including the evidence given in support of the plea
-Y based on the said exception or proviso, a reasonable doubt E
is created in the mind of the Court, asregards one or more
ot the ingredients 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, howe.ver, submitted that if the F
.view taken by the Allahabad ·High Court is to be aceepted then it
>-- would amount to throwing the burden on the prosecution not only to
est!!blish the guilt of the accused 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 otios~ and there would be inconsistency between Sections G
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
I but the burden of proving the circumstances attracting the exception
lies on the accused. But the failure on the part of the1 acetlsed· to
establish all the circumstances .bringing his case under the exception H
594 SUPREME COURT REPORTS [1990) 2 S.C.R.
does not absolve the prosecution to prove the ingredients of the
A 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 ingre-
--
dients of the offence and, thus throw a reasonable doubt on the essen-
tial ingredients of the offence of murder. The accused for the purpose
B of discharging this burden under Section 105 can rely also on the
probabilities. As observed in Dahyabhai's case "the accused will have
to rebut the presumption that such circumstances did not exist" by
placing material before the court which satisfies the standard of a
prudent man and the material may consist of oral and doeumentary
evidence, presumptions, admissions or even the prosecution evidence ··-...,
and the material so placed may not lle sufficient to discharge the
C 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.
D
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 con-
sidered comprehensively.
E However, in Behram Khurshed Pesikaka v. The State of
Y-
Bombay, [1955) 1 SCR 613 there is a specific reference to Parbhoo's
case and Woolmington's case while considering the scope and the man-
ner of the expression 'burden of proof', in the judgment of Hon' Ven-
katarama 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
F 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 Iyer, JJ., while considering the right of private defence
G 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 deci-
sion 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
H 51 explains the true nature and effect of the different types ,
VIJAYEE SINGH v. STATE OF U.P. (REDDY, J.J 595
of presumptions arising under Section 105 of the Evidence
Act. As stated in that judgment, while the initial pre- A
sumption regardi.,-ig 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 B
out that 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 reas<mable doubt
. ..,.,..,. on the existence of "mensrea" which normally is an essen-
tial ingredient of an offence. The present is not a case of
this latter kind." C
. __,,..-- 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:
D
"We have carefully scrutinised the judgments of the courts
below. In our opfoion, 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
establish a plea of self-defence and the one cast on the E
prosecution by Section 10 I to prove its case. It is well-
settled that the burden on the accused is not as onerous as
that which lies on the prosecution. While the prosecution is
required to prove its case beyond a reasonable doubt, the
accused can discharge his onus by establishing a mere pre-
ponderance of probability."
F
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 judg- G
ments of the Full Bench in P11rbhoo's case; Nanavati's case and the
larger Bench decision in Rishi Kesh Singh's case and applying the
principles of benefit of doubt laid in the above three cases to the facts
of the case before them observed:
"App~ng the principle of benefit of doubt as I had exp- H
596 SUPREME COURT REPORTS [1990] 2 S.C.R.
Iained above, to the plea of private defence of person in the
A 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
B offence of murder; the required me!IS rea. 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 avail-
able which, for some unexplained reason, was not pro-
duced. I am not satisfied that the plea of private defence of
person can be reasonably ruled out here. This is enough, in
c my opinion, to entitle the appellant to get the benefit of
doubt."
In Mohd. Ramzani v. State of Delhi, AIR 1980 SC 1341 Sarkaria. J.,
who spoke for the Bench, observed that the onus which rests on the
D accused person under Section 105, Evidence Act, to establish his plea
of private defence is not as onerous as the unshifting burden which lies
on the prosecution to establish every ingredient of the offence with
which the accused is charged beyond reasonable doubt. Therefore, 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
y_
E the accused to establish that he is entitled to the benefit of the excep-
tion, does not lay down the correct law.
At tlus ·stage it becomes necessary to consider the. meaning of the
words ''the Court shall presume the absence of such circumstances"
occurring in Section 105 of the Evidence Act. Section 4 of the Act
F 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
G
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 ta 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"
H when, after considering the matters before it, the Court either believes
VIJAYEE SINGH v. STATE OF U.P. (REDDY, J.] 597
that it does not exist, or considers its non-existence so probable that a
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 B
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
c
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 D
jurisprudence that the prosecution 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 con- E
sider 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 defen-
dant's guilt beyond reasonable doubt before he is con-
victed. Even where the evidential burden shifts to the p ·
defendant the burden of establishing proof beyond reason-
able 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:' G
"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 defen.ce the tribunal of fact must decide whether the
prosecution has succeeded in discharging its persuasive H
598 SUPREME COURT REPORTS [1990] 2 S.C.R.
burden by proving its case beyond a reasonable doubt. In
A the absence of any defence evidence, the chances that the
prosecution has so succeeded are greater. Hence the
accused may be said to be under an evidential burden if the
prosecution has established a prima facie case. Discharge
of the evidential burden by defence is not a pre-requisite to
B an acquittal. The accused is entitled to be acquitted if at
the end of and on the whole of the case, there is a reason-
able 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-
c tained.
xx xx xx "r
xx xx xx
D
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 evi- Y-
E
dence 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 firand 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 --1
F
minds no reasonable doubt that the accused cannot be
absolve~ on the grounds of the alleged facts constituting ~
the defence."
Dealing with the presumptions of law, the author has noted on page
G 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
H be involved therein. Thus, in cases of murder' the burden
VIJAYEE SINGH v. STATE OF U.P. [REDDY, J.) 599
of proving de.ath as a result of a voluntary act of the
accused and "malice on his part js on tlie prosecution. On A
·--- - 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."
B
Wigmore on evidence, dealing with the "Legal Effect of a presump-
tion" (3rd ed., Vol. IX p. 289) explains:
-!~
"It must be kept in mind that the peculiar effect of a pre-
,,...-· sumption '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 c
the opponent. If the oppoµent does offer evidence to the
contrary (sufficient to satisfy the Judge's requirement of
~
some evidence), the presumption disappears as a rule of '
law."
D
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 J>rove
. , every fact necessary to substantiate his charge against a
-Y prisoner, and that the law will presume innocence in the E
absence ·ofconvincing 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 F
' matter, the indictment or information must also contain a
-"- negative allegation, which must in general be supported by
prime facie evidence."
Dealing with the presumptions, the author says:
G
''The proper direction as to onus of proof where prima
fai:ie evidence has been given on the part o.f 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
presumption, is that if they accepted the explanation given H
600 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
by and on behalf of the prisoner, or if that explanation
A
raised 1n 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."
B
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 presump-
. tion can be rebutted by the accused by introducing evidence to support
his plea of accident in the circumstances mentioned therein. This pre-
c sumption 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 pro-
secution and the burden to be discharged under Section 105 of the
D 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 prosecu-
tion has to prove that the accused shot dead the deceased
intentionally and thereby committed the offence of murder
E within the meaning of s. 300 of the Indian Penal Code; the
prosecution has to prove the ingredients of murder, and
one of the ingredients of that offence is that the accused
intentionally shot the deceased; the accused pleads that he
shot at the deceased by accident without any intention or
knowledge in the doing of a lawful act in a lawful manner
F 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 mentioned ins. 80 of the Indian Penal Code,
may adduce evidence to rebut that presumption. That evi-
dence may not be sufficient to prove all the ingredients of
G 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.
H In that event, though the accused failed to bring his case
VIJAYEE SINGH v. STATE OF U.P. (REDDY, J.] 601
i within the terms of s. 80 of the Indian Penal Code, the
Court may hold that the ingredients of th~ offence have not
A
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 B
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
establish the exception, may be sufficient to negative one
or more of tl).eingredients of the offence." c
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 D
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."
E
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. There- F
fore, taking the Section as a whole the 'burden of proof' and the
presumption have to be considered together. It is axiomatic when the
evidence is sufficient as to prove the existence of a fact conclusively
then no difficulty arises. But where the accused introduces material to
displace the presumption Which may affect the prosecution case or
create a reasonable doubt about the existence of one or other ingre- G
dients of the offence and then it would amount to a case where pro-
secution 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 cir~umstances on the record (gathered
from the prosecution evidence, chief and cross. examinations, pro- .H
602 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
babilities and circumstances, if any, introduced by the accused, either
A
by adducing evidence or otherwise) creating a reasonable doubt about
the existence of the ingredients of the offence. In case of such a ---
reasonable doubt, the Court has to give the benefit of the same to the
accused. The accused may also show on the basis of the material a
preponderance of probability in favour of his plea. If there are abso-
B lutely no circumstances at all in favour of the existence 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.
c From what has been discussed above it emerges that tl)e pre-
sumption regarding the absence of existence.of circumstances regard-
ing the exception can be rebutted by the accused by introducing evi-
dence in any one of the manners mentioned above. If from such a
rebuttal, a reasonable doubt arises regarding his guilt, the accused
o should get the benefit of the same. Such a reasonable doubt conse-
quently 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 ot 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
E which arises from the legal and factual considerations even under Sec-
tion i05 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 105 should be somewhat specific, therefore, it is difficult to
F reconcile both. But the general 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 reasonable
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
G down the standard of proof, namely, about the existence or non-
existence 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
H that a prudent man would under the circumstances act on the assump-
VIJAYEE SINGH v. STATE OF U.P. [REDDY, l.] 603
tion of its existence. The Act while adopting the requirement of the
A
-- prudent man as an appropriate concrete standard by which to measure
proof at the same time contemplates of giving full effect to be given to
circumstances or condition of probability or improbability. It is this
degree of certainty to be arrived where the circumstances before a fact
can be said to be proved. A fact is said to be disproved when the Court
believes that it does not exist or considers its non-existence so prob- B
able in the view of a prudent man and now we come to the third stage
where in the view of a prudent man the fact is not proved i.e. neither
proved nor disproved. It is this doubt which occurs to a reasonable
man, has legal recognition in the field of criminal disputes. It is some-
thing 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'. c
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 D
not that of a weak or unduly vacillating, capricious, indolent, drowsy
or confused mind. It must be the doubt of the prudent man who is
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
11ppearing from the evidence, It is not a doubt which occurs to a waver- E
ing mind.
Lord Denning, J. in Miller v. Minister of Pensions, l1947] 2 All
ER 373 white examining the degree of proof required in criminal cases
stated:
F
"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 G
only a remote possibility in his favour which can be dismis-
sed with the sentence "of course, it is possible but not in
the least probable", the case is proved beyond reasonable
doubt."
Regarding the ·concept of benefit of reasonable doubt Lord Du Paraq, H
J. in another context observed thus:
•
604 SUPREME COURT REPORTS I!990J 2 S.C.R.
"All that the principle enjoins is a reasonable scepticism,
A not an obdurate persistence in disbelief. It does not
demand from the Judge a resolute and impenetrable
incredulity. He is never required to close his mind to the
truth."
--
B Now, let us examine the types of cases to which these principles
underlined under Section 105 call be applied and to what extent? The
Section deals with the burden of proof in respect of the genera! excep- ·--..,..
tions, special exceptions and proviso contained ln the Penal Code or in
any paTt 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 prosecution. How-
c ever, 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 majority, while affirming the view taken in Parbhoo's case
observed that in a case where any such exception is pleaded and the
D evidence led in support of such plea, judged by the test of prepon-
derance 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
'¥-
E accused shall be entitled to the benefit of the reasonable doubt as to
_,'•·
his guilt. In C.S.D. Swamiv. The State, AIR 1960SC7thecharacterof
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 establish¢d principle of l
~
F the criminal jurisprudence that the burden always lies upon the pro-
secution to prove all the ingredients of the offence charged and that
....;,
the burden never shifts on to the accused to disprove his guilt." V.D.
Jhingan v. State of U.P., AIR 1966 SC 1762 also is a case dealing 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 probabili-
G
ties prove the defence 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 ingredients of the offence with which
H the accused is charged, to some extent stands on a different footing.
VIJAYEE SINGH v. STAIB OF U.P. [REDDY, J.] 605
However, Beg, J. in his separate judgment, in Rishi Kesh Singh's case
A
-- 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 probability B
and a case of reasonable doubt is very thin indeed although
it is there. A case of reasonable doubt which must neces-
-r sarily be one of which, on a balancing of probabilities, two
views are possible. What may appear to one reasonable
y- 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 c
one of reasonable doubt. A mere preponderance of proba-
-· ·-,...--
I bility 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." D
Somewhat to the same effect are the observations made by the
Supreme Court in Harbhajan Singh v. State of Pun}ab, AIR 1966 SC 97.
After citing Woolmington's case it is therein held that "The principle
of common law is part of the criminal law of the country. That is not to
-/ say that if an exception is pleaded by an accused person he is not E
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- F
ing the test of probabilities, so must a crintinal 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- G
lion 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
~ccused may proceed further and establish his plea by a preponderance H
606 SUPREME COURT REPORTS [1990] 2 S.C.R.
of probabilities or he may carry his plea further and succeed in creating
A a reasonable doubt about an ingredient of an offence. Consequently in
respect of the general exceptions, special exceptions, provisos
contained in the Penal Code or in any law defining the offence, the
accused by on<; of these processes would be discharging the burden
contemplated under Section 105 but in cases of the exceptions covered
B 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 pre-
ponderance 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
C 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 exam-
D pie, 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 circums-
tance 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
E 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
appropriate 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:
F 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 prob-
abilities and circumstances obtaining in the case. He may adduce the
G evidence in support ·of his plea directly or rely on the prosecution case
itself or, as stated above, he can indirectly introduce such circums-
tances by way of cross-examination and also rely on the probabilities
and the other circumstances. 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
H reasonable doubt arises the benefit of it should go to the accused. The
--
VIJAYEE SINGH v. STAIB OF U.P. (REDDY, J.] 6rJ7
accused can also discharge the burden under Sec. 105 by prepon· A
derance of probabilities in favour of his plea. In case of general excep·
.-- tions, 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 entitled for a complete acquittal of the B
offence charged or would be liable for a lesser offence and convict him
accordingly.
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
c
plea that the non-explanation of these injuries by the prosecution
warrants rejection of the prosecution case, is rejected as the evidence
of the material witnesses even otherwise found to be cogent, convinc·
ing and acceptable but from the circumstances these. two accused
particularly one of them had received gun-shot in juries during the D
course of the same occurrence is established. The accused have also
adduced defence evidence namely that of a Doctor in support of their
plea. This material though by 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 E
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. F
Learned counsel submits that the accused is not expected to modulate
his right of self·defehce 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 G
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 wo°'ld· 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 H
608 SUPREME COURT REPORTS [1990] 2 S.C.R.
A 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 the right could be exercised. A mere reasonable
B 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.
ln the case before us as per the evidence of the material witnes-
ses the two deceased were dnly proceeding nlongwith the rasta towards
c the pump set for taking bath. Even in the plea set up by Chirkut Singh,
accus~d No. 6, it is not stii.ted 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 wentto the
extent of intentionally shooting them to death by inflicting bullet
D injuries. Therefore, the offence committed by them would be one
punishable under Section 304 Part 1 I.P .C.
We accordingly set as,ide the conviction of the appellants-
accused Nos. l. 3, 4 and ~. Vijayee Singh, Ranjit Singh, Ram Bnksh
Singh and Chirkut Singh respecti\\ely for an offtlnce punishable under
0
E Section 302/149 l.P .C. and the sentence of imprisonment for li{e
awarded ther.,under .. Instead they are convicted under Section ']04
Part I re.ad with Section ~4 LP.C. and sentenced each of·tfiem to
underga Hi years imprisonment. The other sentences/convictions
awarded to them are confint)ed. The sentences shall run concurrently.
Criminal Appeal Nos. 375-77 ,of 1987 are allowed to this extent only
F and Criminal Appeal Nos. 372-74/87 are dismissed.
R.N.J. Cr!. A. Nos. 375-77/87 are allowed and
Cr!. A. Nos. 372-74/87 are dismissed.
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