ivil Appeal No 3488 of 1988
From the Judgment and Order dated 147
1988 of the Madhya Pradesh High Court in Second Appeal No 17 of 1985
568 GL Sanghi SK Mehta Aman Vachher and Atul Nanda for the Appellants
Pramod Swarup for the Respondent
The Judgment of the Court was delivered by RM SAHAI J
This tenant s appeal is directed against order passed by Madhya Pradesh High Court in proceedings arising out of Section 121f of the MP Accommodation Control Act 1961
In 1976 the landlady filed an application for eviction under Section 121f of the Act as the accommodation in occupation of appellant was required bona fide for continu ing tailoring business of her son who was doing it since 1970 in a small room of the same premises in the lane which was both unsuitable and inadequate
Her claim was accepted by the Trial Court as necessity was valid and the landlady had a right to reside in any part of the house
In appeal various objections raised on behalf of tenant namely feasibility of shifting business to one more room in the house or that additional accommodation was available were repelled
It was further found that landlady s husband had a flourishing tailoring business during British days but it suffered setback and he later became blind
The appeal was however allowed and the application was dismissed as in opinion of Appellate Court the Trial Court had incorrectly understood the dimension of the shop
It did not find any merit in the submission that the shop was irregularly built and was unsuitable for doing business
After discussing the evidence it found that the business of landlady s son was very poor and not growing at all
Therefore the accommoda tion in his possession was not at all insufficient and unsuitability was also not proved
1n Second Appeal by the landlady the High Court did not agree with the Appellate Court and found that the need of the landlady was genuine and bona fide as the shop in dispute was not sufficient for four machines and two or three servants
Principal attack was on jurisdiction of High Court to interfere with finding of fact in second appeal
Defence was equally vehement
But it appears unnecessary to examine it as out of various aspects highlighted one was sufficiency of accommodation with tenant even if he vacated the shop in dispute
Since it was not clear from order of any Court time was granted on conclusion of argument to learned counsel for parties to file affidavit explaining the extent of accommo dation and the status of the tenant
Without going into status as that is disputed it 569 is apparent rather undisputed that landlady whose husband at one time had flourishing business is now in dire circum stances
To keep both the ends meet the family depends not only on meagre income from rent and tailoring shop but the landlady had even to part with another room of the same house adjacent to shop in dispute to one Rataley which is now in possession of tenant
Financial difficulty apart the tenant admittedly has not only this shop with 27 6 on one side and 20  on the other but another shop of approximately the same dimension
May be the wall in between the two rooms has been removed and entire has been converted into a big shop
But the tenant has two shops each with spacious accom modation facing the road and the landlady s son has one with irregular dimension of 10 9in front and 38  in back in a lane in most unhygienic conditions in front of which many doors of latrines of other houses open
Therefore on the one hand is the tenant in occupation of two big rooms in which he is carrying on business luxuriously whereas the landlady s son is sandwiched in back of her own house in unhealthy surroundings with not enough place for 3 or 4 machines with two or three helpers what to say of trial room or other facilities for customers
The pathetic and pitiable condition of the landlady with no injury to the tenant except that he shall be required to carry on business from one shop only are circumstances which prevent this Court from interfering with the order of the High Court as in our opinion substantial justice has been done between parties
Therefore it appears unnecessary to examine if the High Court committed any error in exercise of jurisdiction under Section 100 Civil Procedure Code
In the result the appeal fails and is dismissed
But there shall be no order as to costs
PSS Appeal dismissed


Summary:
14 accused were tried for offences under section 148 and 302 read with Section 149 of IPC for the murder of two persons named Mahendra Singh and Virendra Singh and injuries to 3 others named Vijay Narain Singh PW 1 Uma Shankar Singh PW 2 and Kailash Singh
Accused No 6 Chirkut Singh was further tried under Section 307 IPC for attempting to murder PW 1 and all the remaining accused under section 307 read with Section 149 IPC for causing injuries to Uma Shankar and Kailash Singh
The trial court relying on the evidence of PWs 1 and 2 who were the main eye witnesses convicted all the 14 accused under section 302 IPC read with Section 149 IPC and awarded them life imprisonment
The convicted accused preferred appeals to the High Court and the State filed appeals for enhancement of their sen tence
A Division Bench of the Allahabad High Court consist ing of Justice Katju and Aggarwal heard the appeals
While Justice Katju allowed the appeals by the accused and dis missed the State appeals Justice Aggarwal disagreeing with him dismissed all the appeals both by the accused and by the State
Consequently the matter was referred to a third judge
Justice Seth who confirmed the conviction and sen tence awarded to accused Nos 1 3 4 and 6 only and acquit ted all the rest of the accused on the view taken by him that the specific overt acts were attributable to only these four accused and the rest should be given the benefitof doubt
Criminal Appeals Nos
375 377 of 1987 by special leave were preferred by the convicted accused Nos 1 3 4 and 6 and Criminal Appeals Nos
372 374 of 1987 preferred by the State against the acquittal of other accused
Accepting the plea of the accused to the right of selfdefence but holding that they had definitely exceeded this right when they went to the extent of intentionally shooting the deceased to death and therefore the offence committed was one punishable under section 574 304 Part I IPC and not under Section 302 read with Sec tion 149 IPC Accordingly in partly allowing the Appeals filed by the convicted accused and dismissing the State appeals this Court HELD A fact is said to be proved when after consid ering the matters before R the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
596G H A fact is said to be disproved  when after considering the matters before it the Court either believes that it does not exist or considers its non existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does not exist
A fact is said to be not proved when it is neither proved nor disproved
596H 597A The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases
601E Section 105 places burden of proof  on the accused in the first part and in the second part there is a presumption which the Court can draw regarding the absence of the cir cumstances which presumption is always rebuttable
Taking the section as a whole the burden of proof and the pre sumption have to be considered together
It is exiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises
But where the accused introduces material to displace the presumption which may affect the prosecutioncase or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt
601F G The initial obligatory presumption regarding circum stances gets lifted when a plea of exception is raised
More so when there are circumstances on the record gathered from the prosecution evidence chief and cross examinations probabilities and circumstances if any introduced by the accused either by adducing evidence or otherwise creating a reasonable doubt about the existence of the ingredients of the offence
In case of such a reasonable doubt the Court has to give the benefit of the same to the accused
601H 602A The presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by intro 575 ducing evidence
If from such a rebuttal a reasonable doubt arises regarding his guilt the accused should get the benefit of the same
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged for instance from such a rebuttal evidence a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused
602C E Section 3 is so worded as to provide for two conditions of mind first that in which a man feels absolutely certain of fact in other words believes it to exist and secondly in which though he may not feel absolutely certain of a fact he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence
602G H 603A The Evidence Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of proba bility or improbability
It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved
603D The general burden of establishing the guilt of accused is always on the prosecution and it never shifts
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case
606F G In the instant case as per the evidence of the material witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath
Even in the plea set up by accused No 6 it is not stated specifically that deceased Nos 1 and 2 were armed with any deadly weap ons
Therefore the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries
Therefore the offence committed by them would be one punishable under Section 304 Part I IPC
The convic tion of accused No 1 3 4 and 6 under Section 302 read with Section 149 IPC and the sentence of rigorous impris onment for life awarded thereunder is set aside and instead they are 576 convicted under Section 304 Part I read with Section 34 IPC and each of them sentenced to undergo rigorous im prisonment for 10 years
Their other convictionssentences are confirmed the sentences to run concurrently
608C E Mohar Rai  Bharath Rai vs The State of Bihar   Lakshmi Singh  Ors
vs State of Bihar  Pratap vs State of Uttar Pradesh AIR 1976 SC 966 Woolmington vs The Director of Public Prosecutions 1935 Appeal Cases 462 Emperor vs U Damapala AIR 1937 Rangcon 83 Parbhoo  Ors
vs Emperor AIR 1941 Allahabad 402 KM Nanavati vs State of Maharashtra 1962 Suppl
1 SCR 567 Dahyabhai Chhaganbhai Thakkar vs State of Gujarat   Rishi Kesh Singh  Ors
vs The State AIR 1970 Allahabad 51 Bhikari vs State of Uttar Pradesh   Behram Khurshed Pesikaka vs The State of Bombay  Government of Bombay vs Sakur AIR 1947 Bombay 38 State of Uttar Pradesh vs Ram Swarup   Mohd Ramzani vs State of Delhi AIR 1980 SC 1341 State vs Bhima Devraj AIR 1956 Sau 77 Miller vs Minister of Pensions  CSD Swami vs The State   VD Jhingan vs State of Uttar Pradesh   Harbhaian Singh vs State of Punjab   Amjad Khan vs The State  and Puran Singh  Ors
vs State of Punjab   referred to