N Criminal Appeal No 120 of 1971
Appeal by Special Leave from the Judgment and order dated the 24th July 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No 581 of 1968
A N Mulla and O N Mohindroo for the Appellant
D P Uniyal and O P Rana for the Respondent
The Judgment of P N Bhagwati and R section Sarkaria was delivered by R section Sarkaria J Beg J gave a separate opinion
BEG J I have had the advantage of going through the judgement of my learned brother Sarkaria
I confess that I do not feel confident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities
But I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt for the reasons given below
The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts
It gave rise to two Full Bench decisions of the Allahahad High Court the first in Parbhoo vs Emperorl and the second in Rishi Kesh Singh  ors
vs the State 
It does not seem to have been considered in the same form by this Court
r I think this is an appropriate case in which this Court could consider and decide it and it is because this aspect of the case was ignored by the Trial Court as well as the High Court that I consider this to be a fit case for a reconsideration of evidence and interference by this Court under Article 136 or the Constitution
The Trial Court after assuming that there may be some truth in the defence version that Ram Nath had gone to the scene of occurrence with a bhala said Even if Ram Nath had arrived there armed with bhala there could be no apprehension of death or grievous hurt to any one of the accused persons as the accused persons were armed with gun and pistol and could defend themselves if Ram Nath tried t3 strike them with bhala 
Pratap and Suresh accused could not be justified in firing gun shots and pistol shots at Ram Nath in the expectation that Ram Nath may reach the place where Puttu Lal accused was standing and may strike him with bhala 
1 Al
R 1941 All
402 FB
2 AIR 1970 All
Sl FB
760 Pratap and Suresh accused had started from their house A with gun and pistol before they had known about the reaching of Ram Nath at that place with a bhala 
It can reasonably be inferred from the own case of the defence that Pratap and Suresh accused or at least Pratap accused had arrived there with the intention of committing the murder of Raj Kumar or of any body who may interfere in the wordy duel between Raj Kumar PW and Puttu Lal accused
This shows that the Trial Court was inclined to believe that the defence version was true to the extent that Ram Nath had rushed to the scene of occurrence with a bhala when a quarrel between the two sides was taking place
But it overlooked here that Ram Nath while going to the help of Raj Kumar had actually expressed his intention to break the heads of members of Puttu Lal s party
At any rate according to the prosecution evidence
 Ram Nath was acting in such a way as to appear like a lion bent on interference to protect Raj Kumar in a quarrel between the two sides
If this was Ram Nath s conduct could he not have done something which gave rise to the right of private defence of person  If that right had arisen how could shooting him be murder  Even if it was exceeded the offence could not be culpable homicide amounting to murder
Why should Pratap the appellant have spared Raj Kumar who according to the prosecution evidence itself had given offence to Puttu Lal in the past and then on the date of incident by actually demolishing a nali and then advancing towards him with his phawra threatening to strike Puttu Lal but shoot at Ram Nath who appeared subsequently and was according to the prosecution version quite unarmed  The prosecution evidence is that Puttu Lal had called his son Pratap and asked him to bring his gun only when Raj Kumar had threatened to attack him with his phawra and had advanced towards Puttu Lal
Nevertheless Pratap and Suresh are alleged to have shot down Ram Nath even though Ram Nath was empty handed but did nothing to Raj Kumar who was according to the prosecution version more offensive and threatening with a phawrah and was the cause of the whole trouble Such conduct attributed to Pratap and Suresh in the setting alleged seems quite unnatural and eccentric
Raj Kumar PW 1 also stated that Atma Ram Achhe Ram and Sia Ram Pradhan took their stand in parti land at about the same time as Ram Nath had arrived on the scene and had asked Ram Nath not to loose heart or to be discouraged as he was coming to deal with each one of Raj Kumar s adversaries
Then at Puttu Lal s instigation Pratap and Suresh are alleged to have shot at Ram Nath
Why is it that this version of the obviously interested Raj Kumar PW 1 is only supported by two chance witnesses of another village but neither Atma Ram nor Achhe Ram nor Sia Ram Pradhan of village Sant Kuiyan who had according to the prosecution version witnessed the occurrence not produced by the prosecution at all  The prosecution could select its witnesses
But why was such an objectionable selection made  Was it not a case in which the Court should have exercised its power under Section 540 Criminal Procedure Code to summon at least Sia Ram 761 Pradhan in whose grove Ram Nath was shot so as to ascertain the whole truth more satisfactorily  Had not the Trial Court and the High Court too readily assumed that absolute truth fell from the lips of prosecution witnesses as regards the commencement of aggression even when their own statements contained admissions indicating that the whole or the real truth had not been revealed by them  These are some of the doubts which the rather mechanical examination of evidence by the Trial Court and the High Court do not dispel
The question which arises in this case is Even if the defence version is not held to be fully established by a balance of probabilities were there not sufficient pointers in evidence of what was probably the truth which leaked out from some statements of the prosecution witnesses themselves  They had indicated the bellicose and threatening attitude of Ramnath while he was advancing
Did this not tend to corroborate the defence version that he was actually advancing menacingly armed with a bhala piosed for an attack with it when he was shot at  It was held in the case of Rishi Kesh Singh supra by a majority of a Full Bench of nine Judges of the Allahabad High Court explaining and relying upon the decisions of this Court discussed there at p 51 The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole including the evidence given in support of the plea of the general exception a reasonable doubt is created in the mind of the Court about the built of the accused
In that case the result of a consideration of the decisions of this Court in relation to the provisions of Section 105 of the Evidence Act was summed up by me as follows at page 97 98 
an accused s plea of an exception may reach one of three not sharply demarcated stages one succeeding the other depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully
These stages are firstly a lifting of the initial obligatory presumption given at the end of section 105 of the Act secondly the creation of a reasonable doubt about the existence of an ingredient of the offence and thirdly a complete proof of the exception by a preponderance of probability  which covers even a slight tilt of the balance of probability in favour of the accused s plea
The accused is not entitled to an acquittal if his plea does not get beyond the first stage
At the second stage he becomes entitled to acquittal by obtaining a bare benefit of doubt
At the third stage he is undoubtedly entitled to an acquittal
This in my opinion is the effect of the majority view in Parbhoo 
case which directly relates to first two stages only
The Supreme Court decisions have considered the last two stages so far but the first stage has not yet been dealt with directly or separately there in any case brought to our notice 18 L925SupCl75 762 Provisions of Section 105 of the Evidence Act which are applicable in such cases contain what are really two kinds of burden of the accused who sets up an exception firstly there is the onus laid down of proving the existence of circumstances bringing the case within any of the General exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence and secondly there is the burden of introducing or showing evidence which results from the last part of the provision which says that the Court shall presume the absence of such circumstances
The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there
But when both sides have led evidence of their respective versions the accused can show from any evidence on the record whether tendered by the prosecution or the defence that the mandatory presumption is removed
the last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea
The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough nor an acquittal
D Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh s case supra at P 95 Even a literal interpretation of the first part of Section 105 could indicate that the burden of proving the existence of circumstances bringing the case  within an exception is meant to cover complete proof of the exception pleaded by a preponderance of probability as well as proof of circumstances showing that the exception may exist which will entitle the accused to the benefit of doubt on the ingredients of an offence
If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a pre ponderance of probability more direct and definite language would have been employed by providing that the accused must prove the existence  of the exception pleaded
But the language used in the first part of Section 105 seems to be deliberately less precise so that the accused even if he fails to discharge his duty fully by establishing the existence of an exception may get the benefit of the exception in directly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused
Again the last part of Section 105 even if strictly and literally interpreted does not justify reading into it the meaning that the obligatory presumption must last until the accused s plea is fully established and not just till circumstances ie not necessarily all to support the plea are proved
Moreover a restrictive interpretation of Section 105 excluding an accused 11 from the benefit of bringing his case within an exception until he fully proves it is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 763 105 and the prosecution s duty to prove its case beyond reasonable doubt
Hence the obligatory presumption at the end of Section 105 cannot be held to last until the accused proves his exception fully by a preponderance of probability
It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo s case 1941 All LJ 619 AIR 1941 All 402 FB
It was also said there at p 89 The legal position of a state of reasonable doubt may Be viewed and stated from two opposite angles
One may recognise in a realistic fashion that although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused s lower burden of proving his plea by a preponderance of probability only yet there is in practice a still lower burden of creating reason able doubt about the accused s guilt and that an accused s can obtain an acquittal by satisfying this lower burden too in practice
The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof although it may be said in defence of such a statement of the law that it only recognises what is true
Alternatively one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution s undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded
This technically more correct way of stating the law was indicated by Woolmington s case and adopted by the majority in Parbhoo s case and after that by the Supreme Court
It seems to me that so long as the accused s legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt upon a consideration of the whole evidence on an ingredient of an offence are recognised a mere difference of mode in describing the position from two different angles is an immaterial matter of form only
Even if the latter form appears somewhat artificial it must be preferred after its adoption by the Supreme Court
See K M Nanavati vs State of Maharashtra AIR Applying the principle of benefit of doubt as I had  explained above to the plea of private defence of person in the instant case I think that even if the appellant did not fully establish his plea yet there is sufficient evidence both direct and circumstantial to justify the finding that the prosecution has not established its case beyond reasonable doubt against Pratap on an essential ingredient of the offence of murder the required mens 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 available which for some unexplained reason was not produced I am not satis 764 fied that the plea of private defence of person can be reasonably ruled A out here
This is enough in my opinion to entitle the appellant to get the benefit of doubt
I may observe here that the High Court had not only failed to grapple with this difficulty arising from the evidence in the case and some of the findings of the Trial Court which seemed to think that the intention to murder or the required mens rea for murder must be presumed from the mere fact of homicide a wholly incorrect approach in a case where a plea of private defence had been raised and sought to be established by some evidence but the High Court itself started from a totally unsound premise when it observed It was Puttu Lal who was committing aggression by insisting that Raj Kumar should not dismantle the Nali It is again admitted by Puttu Lal that he cried out for help in response to which Pratap arrived armed with a double barrel gun
 In other words the High Court assumed that a mere insistence by Puttu Lal that Raj Kumar should not dismantle the nali amounted to an aggression begun
The word aggression is generally used for an actual invasion of the property of another or an attack on the body of another
It is true that it is not necessary that an actual attack should commence before a right of private defence can arise
Nevertheless a reasonable apprehension of injury could not be said to arise by a mere prohibition to dig up a nali or drain
It could arise if a man is advancing aggressively towards others holding out threats to break their heads even if he is armed with a lathi with which he could carry out such a declared intention
The extent of the right or its justification is another matter depending again upon facts which have a bearing on extent of the right or its reasonable exercise
In the circumstances of the case before us I think we can hold that even if Ram Nath was not positively proved to be threateningly advancing with a bhala poised for attack towards Pratap appellant or Puttu Lal yet a consideration of all the probabilities and evidence on record leads us to infer that this was reasonably likely to be true
If this was so it is clear that the appellant must have discharged his gun when Ram Nath had advanced and come near enough in a manner which must have been so menacing as to raise an apprehension of an attack with the bhala
Such an assumption fits in with medical evidence too showing that the shots were fired from a close enough range to cause charring
Another feature of the case is that the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted Suresh who was also alleged to have shot with his pistol giving him the benefit of doubt because unlike Puttu Lal and Pratap he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu Lal
765 I think on an analysis of the whole evidence that the appellant Pratap was also entitled to the benefit of a doubt which could be said to be reasonable
I therefore concur in the order proposed by my learned Brother
SARKARIA J
This appeal by special leave is directed against a judgment of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his conviction under section 302 Penal Code
The facts of the prosecution case as narrated at the trial by Raj Kumar the star witness of the prosecution were as follows Raj Kumar had installed a Tubewell in his field known as Chharelawalafield  in the revenue estate of village Sant Kuiyan in the year 1962
The water pumped out from this tubewell was utilised by him not only for irrigating his own fields but also those of the neighbours against charges
Subsequently Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala field
Puttu Lal too started letting out the use of his tubewell on hire
An unhealthy competition ensued between Raj Kumar and Puttu Lal in this water business and their relations became strained
There was a water channel running from north to south in Raj Kumar s field through which Puttu Lal used to supply water to others
To the south of Chharelawala field there is grove belonging to Sia Ram Pardhan of the village
The tubewell of Puttu Lal is located towards the south of that grove
To the west of the Chharelawala field is a plot belonging to Puttu Lal
Two or three days before the occurrence in question there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel
Raj Kumar firmly refused Puttu Lal the use of that channel
on S 1 1967 at about 745 am Raj Kumar and his brothers Ramchander and Bhagwan Sahai started demolishing their channel so that Puttu Lal should not be able to supply water through it
About fifteen minutes thereafter Puttu Lal and his son Ram Parkash appeared on the northern ridge of the grove of Siya Ram
Puttu Lal was carrying a lathi and Ram Parkash a bhala
Puttu Lal asked Raj Kumar and his companions not to demolish the channel
Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it
Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade and thus settle the matter once for all
On being so threatened Puttu Lal shouted to his son the appellant to come immediately with his gun
In response to Puttu Lal s call the appellant armed with the double barrel licensed gun of Puttu Lal and Puttu Lal s other son Suresh armed with a pistol came
A couple of minutes after the arrival of the appellant and Suresh the deceased Ram Nath who was the son of Raj Kumar s wife s brother came out running from the grove
He shouted to 766 Raj Kumar not to be afraid as he would settle the matter with every A one of the accused and break their heads
On seeing the deceased Puttu Lal said He thinks himself to be a lion let us see him first of all
On this instigation Partap fired his gun at Ram Nath from a distance of four or five paces
On receiving the gun shot Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol
Ram Nath dropped dead
The accused then ran away taking their weapons with them
Raj Kumar PW 1 went home scribed the report
ka 3 and handed it over in the Kain Ganj Police Station 8 miles away at 930 am
After registering a case on the basis of this report Sub Inspector Kartar Singh reached the spot and started the investigation
He prepared the inquest report and sent the body for post mortem examination
The autopsy was conducted by Dr section P Chaturvedi PW 3 on 6 1 1967 at 1240 pm
The Doctor found five gunshot wounds of entry and three of exit on the deadbody
There was blackening around all the wounds of entry
The death in the opinion of the Doctor was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung
The accused surrendered in the court of the Additional District Magistrate Farrukhabad on 7 1 1969 and thereafter their custody was taken over by the Police
After conducting the preliminary enquiry the Magistrate committed Puttu Lal Suresh and Partap accused for trial to the court of Session on charges under sections 30234 109 Penal Code All the three accused were convicted and each of them was sentenced to imprisonment for life and a fine of Rs 200 
The plea of the accused was one of denial of the prosecution case
Suresh pleaded alibi and alleged false implication
Partap pleaded that the deceased was about to strike him with a bhalla and consequently he fired two shots in self defence from his double barrel gun at the deceased
The accused examined Chhote Khan DW 1
in defence
The trial judge rejected the defence version and convicted and sentenced the accused as aforesaid
In appeal the High Court acquitted Suresh accused but maintained the conviction of Puttu Lal and Partap
Before the admission of the special leave petition under Article 136 of the Constitution by this Court Puttu Lal died
Thus only the appellant s conviction survives for consideration in this appeal
The decision of the courts below rests mainly on the testimony of the three eye witnesses namely Raj Kumar PW 1 Atma Ram PW 2 and Achhey Ram PW 4
Mr A N Mulla the learned Counsel for the appellant contends that the evidence of PWs 2 and 4 was not worthy of credence that being residents of another village and having failed to give a credible reason for their presence at the scene of occurrence they were chance witnesses of the worst type that as admitted by their brother Bisheshar Dayal PW 15 they were not only related to the deceased but were 767 stock witnesses of the Police
that since the witnesses did not frankly and fully admit their mutual blood relationship they were of a type to whom truth even in trifles appeared to be unpalatable that the prosecution had failed to examine Siya Ram and Mahabir who were also named as eye witnesses in the FIR and the courts below had erred in not drawing an adverse inference against the prosecution on that score
Although this criticism levelled against PWs 2 and 4 is not totally devoid of force we do not think it a sufficient ground to depart from the settled rule of practice according to which this Court does not in the absence of material irregularity illegality or manifest error itself reappraise the evidence
In spite of these infirmities the courts below have believed their presence at the time and place of occurrence
The reasons given by the witnesses for their presence at the spot may be vulnerable even wrong
True they are residents of the neighbouring village 1 12 or 2 miles away and belong to the caste of the deceased
PW 15 may be bearing some relationship with the deceased
But the fact remains that PWs 2 and 4 have been named as eye witnesses in the FIR which was lodged in the Police Station 8 miles away with utmost promptitude
Be that as it may the fate of the case did not depend on the evidence of these two witnesses
Raj Kumar s evidence corroborated by the FIR and the other evidence on the record was by itself sufficient to hold that the appellant had fired a fatal shot at the deceased from close range with the double barrel gun of his father
Thus the only question that falls to be considered in this appal is whether Ram Nath was shot dead by the appellant in the exercise of his right of private defence  We have carefully scrutinised the judgments of the courts below
In our opinion their finding in regard to the plea of self defence is clearly erroneous
They appear to have overlooked he distinction between the nature of burden that rests on an accused under section 105 Evidence Act to establish a plea of self defence and the one cast on the prosecution by Section 101 to prove its case
It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution
While the prosecution is required to prove its case beyond a reasonable doubt the accused can discharge his onus by establishing a mere preponderance of probability
Since the approach of the courts below is basically wrong it has become necessary to examine the material on record bearing on the plea of self defence
This plea was specifically taken by the appellant at the trial in his examination under section 342 Cr
It was put to Raj Kumar PW 1 the chief witness of the prosecution in cross examination
Raj Kumar replied It is wrong to suggest that Ram Nath would have murdered Partap if Partap had not fired at him
Ram Nath had nothing in his hand
 The courts below have accepted without demur the ipse dixit of Raj Kumar that the deceased was unarmed
We find it impossible to swallow this so improbable a version the credibility of which was extremely underminded by the telling 768 circumstances appearing in the prosecution evidence itself
It was the admitted case of the prosecution that following the threatening gesture made by Raj Kumar to break Puttu Lal s head with the spade and the call given by Puttu Lal the appellant came there armed with a gun and immediately thereafter the deceased came running proclaiming that he would break the heads of and settle the scores with everyone of the accused party
It is further admitted that the deceased had reached at a distance of 3 or 4 paces from the appellant when the latter fired
The blackening found around the wounds of entry on the deadbody by the medical witness confirm that the deceased was within six feet of the assailant when he received those injuries
Again it is the case of the prosecution that at the time of the first gun fire the deceased was facing the appellant
The medical evidence also confirms it inasmuch as two entrance wounds 1 and 5 were located on the front side of the deceased
From this circumstance it is clearly discernible that the deceased was charging at the gunman and had reached within a striking distance when his charge was foiled by the gun fire
It is difficult to believe that the deceased would have behaved in the bold and truculent manner he did if he were not armed with a formidable weapon
It was put to Raj Kumar by the defence that if the deceased was empty handed as was alleged by the witness how did he proclaim to break the heads of the accused
The witness had no satisfactory answer to it
Conscious that he was suppressing the fact in question all that he could say in befuddled embarrassment was I do not know with what weapon he was going to break the heads
 The appellant s plea that the deceased was going to strike him with a Bhalla when the gun was fired was highly probable
one of the reasons given by the learned Judges of the High Court for ignoring this plea was that it was belated and had not been set up by the appellant during his examination in the Committal Court
A glance at the record of that examination would show that he was not properly examined in that court
Only a composite question with regard to all the circumstances of the prosecution case was put to him in the Committal Court which he denied
The omission of the appellant to set up the plea of private defence in the Committal Court therefore was no ground to brand it as an after thought particularly when there was foundation for it in the prosecution evidence itself
The circumstances appearing in the prosecution evidence and the statement of the appellant recorded under Sec 342 Cr
PC did not exhaust the material in support of the plea of self defence
There was the direct testimony of Chhote Khan DW 1 who testified that he was attracted from his house to the spot by the outcry of Puttu Lal accused which was to the effect that he was being killed
Witness saw Ram Nath deceased armed with a spear running towards the move of Siya Ram
Thereafter he heard two reports of gun fire
On reaching the grove the witness saw Ram Nath lying dead with a spear by his side
Partap appellant and Puttu Lal were also seen running away from the scene
Partap was carrying a gun
Witness did not see Suresh and Ram Parkash there
Excepting the precise words of 769 Puttu Lal s call and the fact of the deceased being armed with a spear Chhote Khan s evidence in so far as it goes fits in with the prosecution story
The High Court has rejected hi evidence without much discussion for two reasons firstly that he was not speaking the truth inasmuch as he stated that Puttu Lal was raising an outcry that he was being killed because it was no body s case that any body assaulted or attempted to assault Puttu Lal
Secondly the witness did not appear and make any statement before the investigating officer
Neither of these was a good ground to reject his testimony but of hand
Chhote Khan was a resident of the same village
The place of occurrence is not situated at a far off distance from the village Indeed it was the prosecution case that the appellant and deceased came to the spot after hearing the shouts of Puttu Lal and Raj Kumar
Chhote Khan s coming to the spot from the village on hearing the same shouts was therefore equally probable
In any case his reaching the scene on hearing the reports of gun fire and seeing Ram Nath lying dead with a spear was a highly probable fact
Nor could his version that Puttu Lal was raising an outcry that he was being killed be rejected outright
It was admitted by Raj Kumar in cross examination that he and his companions had advanced 2 paces towards the accused Puttu Lal and others threatening to break their heads with the Phawra spade and that the witness was then carrying rather brandishing the spade
It is further admitted that it was after this threat that Puttu Lal gave a call to the appellant to come armed with the gun
In the face of such a threat it was not improbable for Puttu Lal to cry out for help saying that he was being killed
Chhote Khan was an independent witness
Nothing was brought out in cross examination to show that he was hostile towards the complainant party or had any special interest in the defence
In the light of the above discussion the conclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability that the deceased was within a striking distance poised for imminent attack on the appellant with a spear when the latter fired the fatal gunshot
In such a situation the appellant had reasonable and immediate apprehension that he would suffer death or grieous hurt if he did not fire at the deceased
Thus the death was in all probability caused by the appellant in the exercise of his right of private defence
For the foregoing reasons we allow the appeal set aside the conviction of the appellant and acquit him
VPS Appeal allowed 


Summary:
The appellant his father and another were charged with murder and convicted by the trial court
The first information referred to eye witnesses of whom the prosecution examined only two
These two were chance witnesses of another village but the others who belonged to the village where the occurrence took place were not examined
The third accused was acquitted on appeal
by the High Court and the father died after his conviction was con firmed by the High Court
The appellants plea of private defence was rejected both by the trial court and the High Court
Allowing the appeal to this Court  HELD Per M H Beg J Section 105 of the Evidence Act contains two kinds of burden on the accused who sets up an exception i the onus of proving the existence of circumstances bringing the case within any of the general or special exceptions in the IPC Or in any other law and ii the burden of introducing or showing evidence resulting from the last part of the provision which says that the court shall presume the absence of such circumstances
The effect of the obligatory presumption at the end of Section 105 is that the court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there
But when both sides have led evidence of their respective versions the accused  can show from the evidence on record whether tendered by the prosecution or the defence that the mandatory presumption is removed
The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or showing the existence of some evidence to justify the taking up of the plea
The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for acquittal
But the right of the accused to obtain the benefit of reasonable doubt is the necessary outcome and counter part of the prosecution s undeniable duty to establish its case beyond reasonable doubt and that right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded
762A D 763E In the present case even if the appellant did not fully establish his plea
yet there is sufficient evidence both direct and circumstantial to justify the finding that the prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offense of murder namely the required mens rea
An examination of all the facts and circumstances revealed by the entire evidence including the effect of non production of the better evidence available which
for some unexplained reason was not produced shows that the plea of private defence cannot be reasonably ruled out
Even if the deceased was not positively proved to be advancing threateningly with a spear poised for attack towards the appellant or his father yet a consideration of the whole evidence leads to the inference that this was reasonably likely to be true
763C 764A E 1 The trial court was inclined to believe that the defence version was true to the extent that the deceased had rushed to the scene with a spear
It overlooked that the deceased while going to help PW 1 had actually expressed his intention to break the heads of the members of the accused party and that he was acting in such a was as to appear to be bent on physically aggressive interference in a quarrel between the two sides
If that was the conduct of the deceased it is reasonable to infer that he must have done some 758 thing which gave rise to the right of private defence in favour of the appeallant Otherwise the conduct of the appellant in sparing P W 1 who according to the prosecution had given offence to his father in the past and on the day of the incident
and was advancing towards the father threatening to strike him with a spade but shooting the deceased who appeared on the scene subsequently and was according to the prosecution version unarmed becomes inexplicable If the right of self defence had arisen the shooting could not be murder even if the right was exceeded the offence could not he culpable homicide amounting to murder760B F 2 Further the prosecution version is supported only by two chance witnesses hut the other persons who had according to the prosecution version witnessed the occurrence and whose names were mentioned in the FIR
were neither produced by the prosecution nor were they examined as court witnesses 760G 761B 3 Moreover the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted the third accused who was also alleged to have shot with his pistol 764H Parbhoo vs Emperor AIR 1941 All 402FB and Rishi Kesh Singh ors
vs The State AIR 1970 All 51 FB referred to Per P N Bhagwati and RS Sarkaria JJ The appellant had established by a preponderance of probability that the deceased was within a striking distance poised for imminent attack on the appellant with a spear when the appellant fired the fatal shot and hence
the death was caused by the appellant in the exercise of the right of private defence769F G 1 Nothing turns on the evidence or the two witnesses who were examined but the approach of the trial court and the High Court to the plea of self defense raised by the appellant was wrong necessitating a review of the evidence by this Court 767DG 2 The burden on the accused under s105 Evidence Act is not as onerous as that which lies on the prosecution under s 101 Evidence Act to prove its case
While the prosecution is required to prove its case beyond reasonable doubt the accused can discharge his onus by establishing a mere preponderance of probability 767 T 3 The plea of private defence was specifically taken by the appellant at the trial in his examination under s 342 CrPC and was put to PW 1
the chief eye witness for the prosecution
The High Court was wrong in branching the plea as an after though on the ground that he did not raise it in the committal court especially when there is foundation for it in the prosecution evidence itself
The record also shows that only a composite question was put to the appellant and that he was not properly examined in the committal court
767768E G 4 The appellant plea that the deceased was about to strike with his spear when the gun was fired was highly probable
The prosecution case was that following the threatening gesture made by PW 1
to break the father s head with a spade and the call given by him the appellant came to the scene of occurrence with a gun that immediately thereafter the deceased came proclaiming that he would break the heads of and settle scores with everyone of the accused party and that the deceased had reached a distance of 3 or 4 paces from the appellant and was charging at him with the appellant fired
The prosecution story that the deceased was unarmed is improbable
He would not have behaved in that bold and truculent manner unless he was armed with a formidable weapon
767H 767D 5 The defence witness also testified that he was attracted from his house to the scene of occurrence by the outcry of the father that he saw the deceased 759 armed with a spear running towards the scene of occurrence and that he saw the deceased Lying dead with a spear beside him
He was an independent witness and nothing was brought out in the cross examination to show that he was either hostile towards the complainant s party or had any special interest in the accused
His version was probable and the High Court Was wrong in rejecting his evidence
769D F