Criminal Appeal Nos
375 77 of 1987
From the Judgment and Order dated 22101984 in the Allahabad High Court in Crl
A Nos 1925 1808 of 1981 and Government Appeal No 2599 of 1981
RK Garg Prith Raj UR Lalit RL Kohli Shivpujan Singh Manoj Prashad Dalveer Bhandari T Sridharan NP and BS Chauhan for the appearing parties
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
On 295
1981 at about 8 AM a grave rioting took place in the village of Tirro in Varanasi District
1n the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos 1 and 2 were killed and Vijay Narain Singh PW 1 Uma Shankar Singh PW 2 and one Kailash Singh 577 received injuries
In respect of these offences 14 accused were tried under Sections 148 and 302 read with Sec
149 IPC Chirkut Singh Accused No 6 was tried for offence punishable under Section 307 IPC for attempting to commit the murder of PW 1 and the remaining accused under Section 307 read with Sec
149 IPC for causing injuries to Uma Shankar Singh PW 2 and Kailash Singh
It is alleged that the material prosecution witnesses deceased persons and the accused belong to the same village
Since 1972 there have been disputes between these two rival groups
A number of cases were also pending in the courts
On the day of occur rence at 8 AMPW 1 went to his pumping set
PW 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set
Deceased Nos 1 and 2 were proceeding alongwith the rasta towards the pumping set for taking bath
When they reached near the Khandhar old building of Vijay Pratap Singh Accused No 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them
All the 14 accused emerged out of the Khandar
Out of them Accused Nos 1 3 4 and 6 accused Nos
are being referred to as arrayed before the trial court were armed with guns and the rest were armed with lathis
They advanced towards deceased Nos 1 and 2
Accused No 1 fired a shot which hit deceased No 1 and he was immediately also shot at by accused No 3 Ranjit Singh and he fell down
In the meanwhile Accused No 4 Ram Briksh Singh fired at Deceased No 2 Virendra Singh who fell down and both deceased died on the spot
The other accused carrying lathis advanced towards PW 1 who ducked and escaped unhurt
Then the lathis wielding accused assaulted PW 1 Vijay Narain Singh PW 2 Uma Shankar Singh and Kailash Singh
PW 1 managed to escape and ran away
The trial court relying on the evidence of PWs 1 and 2 who are the main eye witnesses convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302 IPC read with Section 149 IPC
The convict ed accused preferred appeals
The State also filed appeal for enhancement of the sentence
A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals
Justice  Katju allowed the ap peals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dis missed all the appeals concurring with the trial court
The matter came up before a third Judge Seth J He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt
In that view of the matter he confirmed the convic 578 tion of Accused Nos 1 3 4 and 6 and acquitted the rest of the accused
Accused Nos 1 3 4 and 6 applied for special leave which was granted by this Court and theft appeals are numbered as Criminal Appeal Nos 375 7787 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos 372 7487
It is contended on behalf of the State that the occur rence has taken place in broad day light and merely because the witnesses are interested their evidence cannot be re jected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted
On the other hand the counsel appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated
It is also their further submission that the prosecution has not come forward with the whole truth and that the origin of the occurrence has been suppressed in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore none of the accused could be convicted
Before we consider these rival contentions some of the facts which are not indispute may be noted
There was a longstanding rivalry between the two groups
The time and place of occurrence are not in controversy
That the two deceased persons died of gun shots injuries also is not in dispute
PWs 1 and 2 also received injuries during the course of this occurrence
The prosecution in support of its case examined PWs 1 to 11
PW 7 the Doctor examined PW 2 at about 1140 AM on the same day and found 10 injuries
All of them were contusions and he opined that they might have been caused by a blunt object like lathi
On the same day he examined PW 1 and on his person he found four contusions which could have been caused by Lathis
The Doctor also examined Kailash Singh who was not examined as a witness
and found two contusions
PW 4 another Doctor who conducted postmortem on deceased No 2 Virendra Singh found two gun shots wounds on the cranial cavity
Injury No 1 is an entry wound and injury No 2 is an exist wound
Then he conducted the autop sy on the dead body of deceased No 1
He found two in juries the first one is on 579 the left nipple which is an entry wound and injury No 2 is on the left palm
On internal examination he found a bullet embedded and the same was recovered
PW 5 is the Investi gating Officer
After registration of the crime he undertook the investigation went to the scene of occurrence held the inquest of the two dead bodies and recorded the statement of the witnesses
He also found two live cartridges one of 16 bore and another of 12 bore
PW 3 is another eye witness
He deposed that Accused Nos 1 3 4 and 6 were armed with guns and the other were armed with lathis
Accused No 1 fired at the deceased No 1 and Accused No 3 also fired at him as a result of which he fell down and when deceased No 2 tried to move Accused No 4 shot at him and deceased No 2 also fell down
When PWs 1 2 and Kailash Singh rushed towards the place accused No 6 fired at PW 1 but he escaped
Then the lathi wielding persons beat PWs 1 and 2 and Kailash Singh
To the same effect is the evidence of P Ws 1 and 2 also
Under Section 3 13 Cr
PC all the circumstances appearing against the accused were put to them
They in general denied the offence
However among them accused Nos 6 7 8 9 11 13 and 14 admitted their presence at the scene of occurrence
Accused No 6 in par ticular stated that PW 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
PW 1 and other challenged and they chased accused No 6 and others and accused No 13 was shot at by PW 1 and others and he and accused No 14 were beaten with lathis and in defence he fired two gun shots hitting deceased Nos 1 and 2
He then went to the police station and lodged a report and deposited his gun and that PW 1 has falsely implicated him
As regards this report which is purported to have been given by accused No 6 PW 5 the Investigating Officer was questioned
He admitted that when he returned to the Police Station on 30th May 1980 he came to know that accused No 6 has surrendered his gun
He also admitted in the cross examination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken
Investigating Officer also admitted that when he saw accused Nos 13 and 14 he found injuries on them
The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No 13
It may be noted that the same has not been explained by the prosecution
PW 7 the Doctor admitted that he examined Accused No 14 and found on him a skindeep 12 x 2 lacerat ed wound on the left thigh and a wound certificate was issued
He also admitted that he examined accused No 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was refer 580 red to the radiologist
PW 7 however stated that he has not seen the report of the radiologist
The defence examined Dr SK Singh as DW 1
He deposed that he took the X ray of the right thigh of the accused No 13 Mahendra Kahar and the report was marked as an exhibit
He further deposed that the shadows in the X ray go to show that there were 10 radio opaque round shadows and these shadows may very well corre spond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone
His examina tion further showed that the pallets remained embedded in the thigh
Before the trial court as well as before the High Court firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused
acted in fight of self defence
Relying on the presence of gun shots injuries on accused No 13 it was strongly contended that the prosecution party have also used fire arms and there fore the accused were entitled to the fight of private defence
The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not suffer from any serious infirmity
So far as the plea of self defence is concerned the trial court held that the plea taken by accused No 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on
As regards the presence of injuries on the accused persons learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos 13 and 14 took the view that they are simple and that it is not proved that these in juries were received during the occurrence
Regarding the presence of the alleged gun shots injuries on accused No 13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time when this incident took place
In the appeal before the High Court Justice Katju took the view that the theory that the injuries on accused Nos 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No 2 was fired by a 16 Bore gun and that as admitted by the Investigating Officer PW 5 it was accused No 6 only in that area who had a licence for 16 Bore gun which was deposited by him in the police station after the occurrence
Coming to the injuries found on accused Nos 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye witnesses have not fur nished any explanation regarding those injuries and that these 581 witnesses have falsely implicated some of the accused due to enmity and therefore their evidence cannot be relied upon and accordingly ordered total acquittal
As already men tioned Justice Agrawal on the other hand agreed with the trial court completely
Justice Seth to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos 1 3 4 and 6 to whom specifically overt acts were attributed
Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No 14 was a simple one and he could have re ceived that even subsequent to the occurrence
With regard to the gun shots injuries found on accused No 13 Mahendra Kahar the learned Judge himself examined accused No 13 who was present in the Court when the appeal was being heard and found that hard substance were palpable underneath the flesh round about the location of his injury
In the circumstances it does appear that fire arm shots to exist underneath the location of injury found on the person of accused Mahendra Kahar
But he ultimately held that in all probability the pallets found in the leg of accused No 13 Mahendra Kahar must have been there long before the incident as in the view of the learned Judge it was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions
Seth J accordingly rejected the plea of self defence
Before we advert to the above contentions it becomes necessary to consider whether the accused No 13 Mahendra Kahar and accused No 14 Sant Singh received the injuries during the course of occurrence
PW 7 the Doctor examined accused No 13 Mahendra Kahar on 305
1980 at about 6 AM and he found the following injuries
Five tiny abrasions in the area of 4cm x 4cm on outer surface of fight thigh just above knee joint
The injured complained of pain in the right thumb and left forearm
In respect of injury No 1 the Doctor advised X ray with a view to ascertain whether or not there were pallets and pending the same he reserved his opinion
PW 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 AM on 295
PW 7 however stated that the X ray report was not shown to him
The evidence of PW 7 makes it clear that accused No 13 Mahendra Kahar received these injuries during the course of the 582 occurrence
DW 1 is the Doctor who took the X ray
He deposed that on 5680 he took the X ray of the fight thigh of the undertrial prisoner Mahendra Kahar accused No 13 and the same is marked as Ex Kha 12
On the basis of the X ray plate he opined that he noticed 10 radio opaque round shad ows in the injured and they correspond to the pallets fired by some fire arm
Justice Seth considered the evidence of these two Doctors
He also examined the accused in the Court and he found that hard substance were palpable underneath the flesh
As already mentioned he was of the view that these appeared to be pallets but according to him they must have been there long before the incident
The learned Judge took this view because he was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions
Having given our careful consideration we are unable to agree with the view taken by Seth JPW 7 the Doctor s evidence makes it clear that the external injuries were caused during this occur rence only and underneath the same these pallets were found by the radiologist DW 1
The injuries are not self in flicted
Therefore there is no basis whatsoever to presume that the pallets under the flesh must have been there al ready even before this occurrence took place
As a matter of fact accused No 13 Mahendra Kahar was referred to the Doctor PW 7 since there was an injury
PW 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 DW 1 the radiologist after taking the X ray concluded that under neath the injury pallets discharged from a fire arm were embedded in the flesh
Therefore the only view that is possible is that accused No 13 Mahendra Kahar received gun shot injuries during the course of this occurrence only
PW 7 also examined accused No 14 Sant Singh on the same day
He found a skin deep 12  x2  lacerated wound vertically inflicted on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain
The Doctor pointed out that the injury was simple and could have been caused by blunt weapon like a lathi
The injury was also stitched
It is suggested by the prosecution that this could have been a self inflicted one but again there is no basis for such presumption
The Investigating Officer said that on finding the injury on him he was sent for medical examination
As a matter of fact accused No 6 in his statement under Section 313 stated that accused Nos 13 and 14 received injuries and he also went to the police station and lodged a report to that effect
It therefore emerges that accused No 13 received gun shot injuries and accused No 14 received lacerated injury during the course of the same occurrence and these injuries must have been caused by some member 583 belonging to the prosecution party
Now the question is whether the prosecution has ex plained these injuries and if there is no such explanation what would be its effect We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused the prosecution case should automat ically be rejected without any further probe
He placed considerable reliance on some of the judgments of this Court
In Mohar Rai  Bharath  Rai vs The State of Bihar   it is observed Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabi lised
Under these circumstances the prosecution had a duty to explain those injuries
The evidence of Dr Bishnu Prasad Sinha PW 18 clearly shows that those injuries could not have been self inflicted and further according to him it was most unlikely that they would have been caused at the instance of the appellants themselves
Under these circum stances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries
In our judgment the failure of the prosecu tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the inci dent is not true or at any rate not wholly true
Further those injuries probabilise the plea taken by the appellants
 In another important case Lakshmi Singh and Ors
vs State of Bihar  after referring to the ratio laid down in Mohar Rai s case this Court observed Where the prosecution fails to explain the injuries on the accused two results follow 1 that the evidence of the prosecution witnesses is un true and that the injuries probabilise the plea taken by the appellants
It was further observed that In a murder case the non explanation of the injuries sustained by the accused at about the time of the occur 584 rence or in the course of altercation is a very important circumstance from which the court can draw the following inferences 1 that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version 2 that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable
3 that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one
 Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected
We are unable to agree
In Mohar Rai s case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true
Likewise in Lakshmi Singh s case also it is observed that any non expla nation of the injuries on the accused by the prosecution may affect the prosecution case
But such a non explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution
But where the evidence is clear cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case
Much depends on the facts and circumstances of each 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 PWs 1 to 3 in their evidence
The presence of these three witnesses could not be doubted at all
PWs 1 and 585 2 are the injured witnesses and PW 1 gave a report giving all the details
However he attributed specific overt acts to accused Nos 1 3 4 and 6 and made an omnibus allegation against the remaining accused
It is for this reason that Justice Seth found it to be safe to convict only accused Nos 1 3 4 and 6 who are the appellants before us
PWs 1 2 and 3 are the eye witnesses
We have carefully considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly untrustwor thy
No doubt they have not explained the injuries found on accused Nos 13 and 14
From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true ver sion
Though they are interested we find that their evi dence is clear cogent and convincing
The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecu tion party
As discussed above we are satisfied in this case that nonexplanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non explanation of injuries found on these two accused is that the accused could have had a right of pri vate defence or at any rate a reasonable doubt arises in this regard
The learned counsel for the defence however submits that if for any reason the prosecution case in its entirety is not rejected because of the non explanation of the in juries found on these two accused yet the right of private defence of the accused cannot be denied and that on that score also these four convicted accused are entitled to an acquittal
It is also their submission that a careful exami nation of the provisions of Sections 96 99 and 102 IPC would show that on a reasonable apprehension of grievous hurt or death the accused had a right even to the extent of causing the death of the assailants and they cannot be expected to modulate this right in such a situation and that in the instant case these four appellants were justified even to the extent of causing death of the two deceased by inflicting gun shot wounds
In this  context it is also submitted that the plea taken by accused No 6 Chirkut Singh that he shot at the two deceased persons in self defence cannot be brushed aside
We should at this juncture point out that the plea taken by accused No 6 Chirkut Singh does not commend itself
The same 586 appears to be an after thought
The observation report and other circumstances in the case would show that there were no fishing operations in the pond
Therefore the plea of accused No 6 Chirkut Singh that fishing operations were going on in the pond and that he and some of the other accused went there and that was the genesis and the origin of the occurrence has no basis whatsoever
On the other hand the evidence of the eye witnesses regarding the time place and manner of occurrence in general as put forward by the prosecution cannot be doubted at all
We shall now consider the submission whether the accused had the right of self defence
Learned counsel for the State contended that if the accused want to claim the benefit of the general or special exception of the right of private defence then they should plead and discharge the burden by establishing that they are entitled to the benefit of excep tion as provided under Section 105 of the Evidence Act
In other words the submission is that the burden of proof of the existence of such a right is on the accused and that in the instant case the accused have not discharged the burden and that mere presence of simple injuries on the accused cannot necessarily lead to an inference that they had a right of self defence
We have already held that having regard to the facts and circumstances of the case mere non explanation of these injuries by the prosecution cannot render the whole case unacceptable
We have also held that those injuries on one of the accused No 13 Mahendra Kahar were inflicted by a fire arm during the same occurrence
Under these circumstances the important question that we have to consider is whether the accused should be denied the benefit of an exception on the ground that the accused have not discharged the necessary burden of establishing their right to the benefit of the exception beyond all reasonable doubt just like the prosecution is bound under Section 102 of the Evidence Act or if upon a consideration of the evidence as a whole and the surrounding facts and circum stances of the case a reasonable doubt is created in the mind of the court about the existence of such a right wheth er the accused in such a situation is entitled to the benefit of the said exception ie the right of private defence
If so whether they have exceeded the same The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for consid erable time the opinions of the Courts were not uniform
As a matter of fact in Partap vs State of UP   this Court noted that the question 587 of law that arises here seems to have troubled several High Courts
 The phrase burden of proof is not defined in the Act
In respect of criminal cases it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts
This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt
Section 105 of the Evidence Act is in the following terms When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances
 The Section to some extent places the onus of proving any exception in a penal statute on the accused
The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him
The Section further lays down that the Court shall presume non existence of circumstances bringing the case within an exception
 The words the burden of proving the existence of circumstances occuring in the Section are very signifi cant
It is wellsettled that this burden which rests on the accused does not absolve the prosecution from discharg ing its initial burden of establishing the case beyond all reasonable doubts
It is also well settled that the accused need not set up a specific plea of his offence and adduce evidence
That being so the question is what is the nature of burden that lies on the accused under Section 105 if benefit of the general exception of private defence is claimed and how it can be discharged In Woolmington vs The Director of Public Prosecutions 1935 Appeal Cases 462 Viscount Sankey LC observed When evidence of death and malice has been given this is a question for the jury the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked
If the jury are either satisfied with his explanation or upon a review of all the evidence are left in reasonable doubt whether even if his explanation be not accepted  the act was unintentional or 588 provoked the prisoner is entitled to be acquitted
 It is further observed Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt
In either case he is enti tled to the benefit of the doubt
But while the prosecution must prove the guilt of the prisoner there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt he is not bound to satisfy the jury of his innocence 
Through out the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner s guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception
If at the end of and on the whole of the case there is reasonable doubt created by the evidence given by either the prosecution or the prisoner as to wheth er the prisoner killed the deceased with a malicious inten tion the prosecution has not made out the case and the prisoner is entitled to an acquittal
No matter what the charge or where the trial the principle that the prosecu tion must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained
 Emperor vs
U Dampala AIR 1937 Rangoon 83 a full Bench of the Rangoon High Court following the Woolmington s case held that the ratio therein is not in any way inconsistent with the law in British India and that indeed the princi ples there laid down from valuable guide to the correct interpretation of Section 105 of the Evidence Act and the full Bench laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions plead ed the accused is entitled to be acquitted if upon a con sideration of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded
We have noticed that Section 105 requires that when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any pan of the Penal Code is 589 on him and the Court shall presume the absence of such circumstances
This presumption is rebuttable
In Parbhoo and Ors
vs Emperor AIR 1941 Allahabad 402 a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act
The majority agreed with the view taken by the Full Bench in Dampala s case
In Parbhoo s case Bajpai J in his concurring judgment observed that Section 105 is stated in two forms that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prose cution and never shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt
The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow therefrom that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case
 In Dampala s case Dunkley J while concurring with the majori ty view after discussing the law on the subject observed The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evi dence adduced by him or from the circumstances appearing from the prosecution evidence that the existence of circum stances bringing the case within the exception or exceptions pleaded has been proved or upon a review of all the evi dence is left in reasonable doubt whether such circumstances had existed or not the accused in the case of a general exception is entitled to be acquitted or in the case of a special exception can be convicted of a minor offence This case has been followed subsequently by a number of High Courts
In KM Nanavati vs State of Maharashtra 1962 Suppl
1 SCR 567 it is observed that In India as it is in England there is a presumption of innocence in favour of the accused as a general rule and it is the duty of the prosecution  to prove the guilt of the accused
But when an accused relies upon the General Excep tions in the Indian Penal Code or on any special 590 exception or proviso contained in any other part of the Penal Code or in any law defining an offence Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presump tion
Under that Section the Courts shall presume the ab sence of circumstances bringing the case within any of the exceptions that is the Court shall regard the nonexistence of such circumstances as proved till they are disproved
This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecu tion or by the combined effect of such circumstances and the evidence adduced by the accused
But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged that burden never shifts
The alleged conflict between the general burden which lies on the prose cution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real
Indeed there is no conflict at all In Dahyabhai Chhaganbhai Thakkar vs State of Gujarat  it is observed It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt
The prosecution therefore in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code
The general burden never shifts and it always rests on the prosecution
But under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused and the Court shah presume the absence of such circumstances
Under Section 105 of the Evidence Act read with the definition of shall presume in Section 4 thereof the Court 591 shall regard the absence of such circumstances as proved unless after considering the matters before it it believes that the said circumstances existed Or their existence was so probable that a prudent man ought under the circum stances of the particular case to act upon the supposition that they did exist
To put it in other words the accused will have to rebut the presumption that such circumstances did not exist by placing material before the Court suffi cient to make it consider the existence of the said Circum stances so probable that a prudent man would act upon them
The accused has to satisfy the standard of a prudent man
If the material placed before the Court such as oral and documentary evidence presumptions admissions or even the prosecution evidence satisfied the test of prudent man the accused will have discharged his burden
The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasona ble doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself
It may for instance raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code
 A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parb hoo s case
However in Rishi Kesh Singh  Ors
vs The State AIR 1970 Allahabad 51 the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo s case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt
A majority of seven Judges approved the principle laid down in Parbhoo s case
The Larger Bench also referred to various subsequent decisions of the Supreme Court also including the Nanavati s case Bhikari vs State of Uttar Pradesh  and Dahyabhai s case Beg J as he then was in a separate but concurring judgment after referring to the Nanavati s case Bhikari s ease Dahyabhai s case and Mohar Rai  Bharath Rai s case held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo s case
After analysing the view expressed by the Surpeme Court in the several above mentioned decisions Beg J observed 592 After a close scrutiny of every part of each of the seven opinions in Parbhoo s case 1941 All LJ 619AIR 1941 All 402 FB
I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court have not been affected in the slightest degree by these decisions
These propositions are firstly that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved
his plea fully secondly that the obligatory presumption atthe end of Sec 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged and thirdly if the doubt though raised due to evidence in support of the exception pleaded is reasonable and affects an ingredient of the offence with which the accused is charged the accused would be entitled to an acquittal
As I read the answer of the majority in Parbhoo s case 1941 All LJ 619AIR 1941 All 402 FB
I find it based on these three propositions which provide the ratio decidendi and this is all that needs t6 be clarified
 The practical result of the three propositions stated above is that an accused s plea or an exception may reach one of three not sharply demarcated stages one succeeding the other depending upon the effect of the whole evidence in the case judged by the standard Of a prudent man weighing or balancing probabilities carefully
These stages are first ly a lifting of the initial obligatory presumption given at the end of Sec 105 of the Act secondly the creation of a reasonable doubt about the existence of an ingredient of the offence and thirdly a complete proof of the exception by a preponderance of probability which covers even a slight tilt of the balance of probability in favour of the ac cused s plea
The accused is not entitled to an acquittal if his plea does not get beyond the first stage
At the second stage he becomes entitled to acquittal by obtaining a bare benefit of doubt
At the third stage he is undoubtedly entitled to an acquittal
This in my opinion is the effect of the majority view in Parbhoo s case which directly re lates 593 tO first two stages only
The Supreme Court decisions have considered the last two stages so far but the first stage has not yet been dealt with directly or separately there in any case brought to our notice
 Mathur J with whom five Judges agreed while holding that ratio laid down by the majority in Parbhoo s case is in conformity with law however observed that the reasoning in support of the conclusions is erroneous
Beg J was not prepared to go to that extent
The majority speaking through Shri Mathut J laid  down that the dictum in Parbhoo s case which is still a good law can however be modified as follows In a case in which any General Exception in the Indian Penal Code or any special exception or proviso contained in another part of the same Code or in any law defining the offence is pleaded or raised by an accused persons and the evidence led in support of such plea judged by the test of the preponderance of probability as in a civil proceeding fails to displace the presumption arising from Section 105 of the Evidence Act in other words to disprove the absence of circumstances bringing the case within the said excep tion but upon a consideration of the evidence as a whole including the evidence given in support of the plea based on the said exception or proviso a reasonable doubt is created in the mind of the Court as regards one or more the ingre dients of the offence the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence Learned counsel for the State however submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102  and 105
This very question has been answered by the Supreme Court in Nanavati s case and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused
But the failure on the part of the accused to establish all the circumstances bringing his case under the exception 594 does not absolve the prosecution to prove the ingredients of the offence and the evidence relied upon by the accused in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder
The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities
As observed in Dahyabhai s case the accused will have to rebut the presumption that such circum stances did not exist by placing material before the court which satisfies the standard of a prudent man and the mate rial may consist of oral and documentary evidence presump tions admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself
Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act
We have not come across any case of the Supreme Court where the ratio laid down in Parbhoo s case and which was subsequently approved by a larger Bench in Rishi Kesh Singh s case has been considered comprehensively
However in Behram Khurshed Pesikaka vs The State of Bombay 1955 1 SCR 6 13 there is a specific reference to Parbhoo s case and Woolmington s case while considering the scope and the manner of the expression burden of proof  in the judgment of Hon  Venkatarama Ayyar J
But the learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High Court in Government of Bombay vs Sakur AIR 1947 Bombay 38 has taken a different view
In State of UPv Ram Swarup  a Bench consisting of MH Beg J as he then was YV Chandrachud and VR Krishna lyer JJ while considering the right of private defence put forward by the accused to some extent went into the question of burden of proof under Section 105 and a reference is made to a decision of the larger Bench in Rishi Kesh Singh s case
Chandrachud J who spoke for the Bench observed thus The judgment in Rishikesh Singh vs State AIR 1970 All 51 explains the true nature and effect of the different types 595 of presumptions arising under Section 105 of the Evidence Act
As stated is that judgment while the initial presump tion regarding the absence of circumstances bringing the case within an exception may be met by showing the existence of appropriate facts the burden to establish a plea of private defence by a balance of probabilities is a more difficult burden to discharge
The judgment points out that despite this position there may be cases where though the plea of private defence is not established by an accused on a balance of probabilities yet the totality of facts and circumstances may still throw a reasonable doubt on the existence of mensrea which normally is an essential ingre dient of an offence
The present is not a case of this latter kind
 We may also refer to a judgment of a Bench of three Judges consisting of MH Beg PN Bhagwati and RS Sarkaria JJ
in Partap s case
Sarkaria J speaking for himself and Bhagwati J observed We have carefully scrutinised the judgments of the courts below
In our opinion their finding in regard to the plea of self defence is clearly erroneous
They appear to have overlooked the distinction between the nature of burden that rests on an accused under Sec
105 Evidence Act to estab lish a plea of self defence and the one cast on the prosecu tion by Section 101 to prove its case
It is wellsettled that the burden on the accused is not as onerous as that which lies on the prosecution
While the prosecution is required to prove its case beyond a reasonable doubt the accused can discharge his onus by establishing a mere pre ponderance of probability
 Beg J however in a separate judgment felt a doubt about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities
But in his view what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt
Beg J referred to the judgments of the Full Bench in Parbhoo s case Nana vati s case and the larger Bench decision in Rishi Kesh Singh s case and applying the principles of benefit of doubt laid in the above three cases to the facts of the case before them observed Applying the principle of benefit of doubt as I had exp 596 lained above to the plea of private defence of person in the instant case
I think that even if the appellant did not fully establish his plea yet there is sufficient evidence both direct and circumstantial to justify the finding that the prosecution has not established its case beyond reasonable doubt against Partap on an essential ingredient of the offence of murder the required mensrea
After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which for some unexplained reason was not produced
I am not satisfied that the plea of private defence of person can be reasonably ruled out here
This is enough in my opinion to entitle the appellant to get the benefit of doubt   In Mohd Ramzani vs State of Delhi AIR 1980 SC 134 1 Sar karia J who spoke for the Bench observed that the onus which rests on the accused person under Section 105 Evi dence Act to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prose cution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt
There fore the contrary view taken by the Bombay High Court in Sakur s case and in State vs Bhima Devraj AIR 1956 Sau 77 that the burden is entirely on the accused to establish that he is entitled to the benefit of the exception does not lay down the correct law
At this stage it becomes necessary to consider the meaning of the words the Court shall presume the absence of such circumstances occurring in Section 105 of the Evidence Act
Section 4 of the Act explains the meaning of the term shall presume as to mean that the Court shall regard the fact as proved unless and until it is disproved From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved
In Section 3 of the Act meaning of the terms proved disproved and not proved are given
As per this provision a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
A fact is said to be disproved when after consid ering the matters before it the Court either believes 597 that it does not exist or considers its non existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does not exist
A fact is said to be not proved when it is neither proved nor disproved
 The first part of Section 105 as noted above lays down that when a person is accused of an offence the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances
In a given case the accused may discharge the burden by expressly proving the existence of such circumstances thereby he is able to disprove the absence of circumstances also
But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances then the case would fall in the category of not proved and the Court may presume the absence of such circumstances
In this background we have to examine the meaning of the words the Court shall presume the absence of such circumstances bearing in mind the general principle of criminal jurisprudence that the prose cution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused
It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect
In Phipson on Evidence 13th edn
page 44 a passage reads as follows The burden is upon the prosecution of proving a defendant s guilt beyond reasonable doubt before he is convicted
Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes
If on the whole case the jury have such a doubt the defendant is entitled to be acquitted Another passage at page 48 reads as follows  In criminal cases the prosecution discharge their eviden tial burden by adducing sufficient evidence to raise a prima facie case against the accused
If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt
In the absence of any defence evidence the chances that the prose cution has so succeeded fare greater
Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case
Discharge of the eviden tial burden by defence is not a pre requisite to an acquit tal
The accused is entitled to be acquitted if at the end of and on the whole of the case there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner  No matter what the charge   the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be enter tained
XX XX XX XX XX XX In many cases however the accused s defence will involve introducing new issues for example automatism provoca tion self defence duress etc
Once there is any evidence to support such explanations the onus of disproving them rests upon the prosecution
The accused either by cross examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two must place before the court such material as makes the defence a live issue fit and proper to be left to the jury
But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury s minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence
 Dealing with the presumptions of law the author has noted on page 60 thus Generally in criminal cases unless otherwise directed by statute and subject to 4 15 ante the presumption of inno cence casts on the prosecutor the burden of proving every ingredient of the offence even though negative averments be involved therein
Thus in cases of murder the burden 599 of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution
On charges of rape etc
the burden of proving non consent by the prosecutrix is on the prosecution and in bigamy that of proving the defendant s knowledge that his or her spouse was alive within the seven years last past Wigmore on evidence dealing with the Legal Effect of a presumption 3rd ed Vol
IX p 289 explains It must be kept in mind that the peculiar effect of a presumption of law  that is the real presumption is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary  from the opponent
If the opponent does offer evidence to the contrary sufficient to satisfy the Judge s requirement of some evidence the presumption disappears as a rule of Taylor in his Treatise on the Law of Evidence   12th Edn
1 page 259 points out On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prison er and that the law will presume innocence in the absence of convincing evidence to the contrary the burden of proof unless shifted by legislative interference will fall in criminal proceedings on the prosecuting party though to convict he must necessarily have recourse to negative evidence
Thus if a statute in the direct description of an offence and not by way of proviso a contain negative matter the indictment or information must also contain a negative allegation which must in general be supported by prima facie evidence
 Dealing with the presumptions the author says The proper direction as to onus of proof where prima facie evidence has been given on the part of the prosecution which if unanswered would raise a presumption upon which the jury might be justified in finding a verdict of guilty and the defendant has called evidence to rebut that presump tion is that if they accepted the explanation given 600 by and on behalf of the prisoner or if that explanation raised in their minds a reasonable doubt as to his guilt they should acquit him as the onus of proof that he was guilty still lay upon the prosecution
If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them
 It is held in Nanavati s case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions ie the Court shall regard the non existence of such circumstances as proved till they are disproved but this presumption can be rebutted by the accused by introducing evidence to sup port his plea of accident in the circumstances mentioned therein
This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused
Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused it is observed An illustration may bring out the meaning
The prosecution has to prove that the accused shot dead the deceased inten tionally and thereby committed the offence of murder within the meaning of section 300 of the Indian Penal Code the prosecu tion has to prove the ingredients of murder and one of the ingredients of that offence is that the accused intentional ly shot the deceased the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution the accused against whom a presumption is drawn under section 105 of the Evidence Act that the shooting was not by accident in the circumstances men tioned in section 80 of the Indian Penal Code may adduce evi dence to rebut that presumption
That evidence may not be sufficient to prove all the ingredients of section 80 of the Indian Penal Code but may prove that the shooting was by accident or inadvertance ie it was done without any intention or requisite state of mind which is the essence of the offence within the meaning of section 300 Indian Penal Code
or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder
In that event though the accused failed to bring his case 601 within the terms of section 80 of the Indian Penal Code the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused
In this view it might be said that the general burden to prove the ingredients of the offence unless there is a specific statute to the contrary is always on the prosecution but the burden to prove the circumstances coming under the exceptions lies upon the accused
The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence indeed the evidence though insufficient to establish the exception may be sufficient to negative one or more of the ingredients of the offence
 In Dahyabhai s case as already noted the relevant portion reads thus The evidence so placed may not be sufficient to discharge the burden under section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself
It may for instance raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in section 299 of the Penal Code
 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 evidencein criminal cases
Section 105 places burden of proof  on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable
Therefore taking the Section as a whole the burden of proof  and the presumption have to be considered together
It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises
But where the accused introduces material to dis place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt
The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised
More so when there are circumstances on the record gathered from the prosecution evidence chief and cross examinations pro 602 babilities and circumstances if any introduced by the accused either by adducing evidence or otherwise creating a reasonable doubt about the existence of the ingredients of the offence
In case of such a reasonable doubt the Court has to give the benefit of the same to the accused
The accused may also show on the basis of the material a prepon derance of probability in favour of his plea
If there are absolutely no circumstances at all in favour of the exist ence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised
But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal
From what has been discussed above it emerges that the presumption regarding the absence of existence of circum stances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above
If from such a rebuttal a reasonable doubt arises regarding his guilt the accused should get the benefit of the same
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged for instance from such a rebuttal evidence a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused
It can be argued that the concept of reasonable doubt  is vague in nature and the standard of burden of proof  contemplated under Section05 should be somewhat specific therefore it is difficult to reconcile both
But the gener al principles of criminal jurisprudence namely that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason able doubt are to be borne in mind
The reasonable doubt  is one which occurs to a prudent and reasonable man
Section 3 while explaining the meaning of the words proved disproved and not proved lays down the standard of proof namely about the existence or nonexistence of the circumstances from the point of view of a prudent man
The Section is so worded as to provide for two conditions of mind first that in which a man feels absolutely certain of a fact in other words believe it to exist and secondly in which though he may not feel absolutely certain of a fact he thinks it so extremely probable that a prudent man would under the circumstances act on the assump 603 tion of its existence
The Act while adopting the require ment of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability
It is this degree of cer tainty to be arrived where the circumstances before a fact can be said to be proved
A fact is said to be disproved when the Court believes that it does not exist or considers its non existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved ie neither proved nor disproved
It is this doubt which occurs to a reasonable man has legal recognition in the field of criminal dis putes
It is something different from moral conviction and it is also different from a suspicion
It is the result of a process of keen examination of the entire material on record by a prudent man 
There is a difference between a flimsy or fantastic plea which is to be rejected altogether
But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds
The doubt which the law contemplates is certainly not that of a weak or unduly vacillating capricious indolent drowsy or confused mind
It must be the doubt of the prudent man who assumed to possess the capacity to separate the chaff from the grain
It is the doubt of a reasonable astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence
It is not a doubt which occurs to a wavering mind
Lord Denning J in Miller vs Minister of Pensions while examining the degree of proof required in criminal cases stated That degree is well settled
It need not reach certainty but it must reach a high degree of probability
Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice
If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond rea sonable doubt
 Regarding the concept of benefit of reasonable doubt Lord Du Paraq in another context observed thus 604 All that the principle enjoins is a reasonable scepticism not an obdurate persistence in disbelief
It does not demand from the Judge a resolute and impenetrable incredulity
He is never required to close his mind to the truth
 Now let us examine the types of cases to which these principles underlined under Section 105 can be applied and to what extent The Section deals with the burden of proof in respect of the general exceptions special exceptions and proviso contained in the Penal Code or in any part of the same code or in any law defining the offence
It is already noted that the doctrine of burden of proof has to be the general law and the same remains always upon the prosecu tion
However in respect of the cases where the statute wholly places the burden of proof on the accused himself then the burden is more onerous on him
As already noted in Rishi Kesh Singh s case Mathur J speaking for the majori ty while affirming the view taken in Parbhoo s case ob served that in a case where any such exception is pleaded and the evidence led in support of such plea judged by the test of preponderance of probability fails to displace the presumption arising from Section 105 of the Evidence Act yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence the accused shall be entitled to the benefit of the reasonable doubt as to his guilt
In CSD Swami vs The State  the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act from proofof certain facts unless the contrary is proved was considered and it was held there that the exception laid down by statute was a complete departure from the estab lished principle of the criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt
 VD Jhin gan vs State of UP  also is a case deal ing with the presumption under Section 4 of the Prevention of Corruption Act under which the accused was under an obligation to disprove his guilt by adducing such evidence by which the preponderance of probabilities prove the de fence case
An examination of these cases would reveal that the statutory exception which modifies the operation of the general principle that the prosecution must prove all ingre dients of the offence with which the accused is charged to some extent stands on a different 605 However Beg J in his separate judgment in Rishi Kesh Singh s case observed thus It covers every tilt or preponderance of the balance of probability whether slight or overwhelming
In fact the dividing line between a case of mere preponderance of probability by a slight tilt only of the balance of proba bility and a case of reasonable doubt is very thin indeed although it is there
A case of reasonable doubt which must necessarily be one of which on a balancing of probabili ties two views are possible
What may appear to one reason able individual to be a case not fully proved may appearto another to be so proved on a balancing of probabilities
Such a case and only such a case would in my opinion be one of reasonable doubt
A mere preponderance of probability in favour of the exception pleaded by an accused would however constitute a complete proof of the exception for the accused but a state of reasonable doubt would not
 Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh vs State of Punjab  After citing Woolmington s case it is therein held that The principle of common law is part of the crimi nal law of the country
That is not to say that if an excep tion is pleaded by an accused person he is not required to
justify his plea but the degree and character of proof which the accused is expected to support his plea cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case
The onus on the accused may well be compared to the onus on a party in civil proceedings just as in civil proceedings the  Court which tries an issue makes its decision by adopt ing the test of probabilities So must a criminal court hold the  plea made by the accused proved if a preponderance of probability is established by the evidence led by him
 It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a considera tion of the evidence and facts and circumstances as a whole as regards one or more of the ingredients of the offence
Therefore in a case where the prosecution has discharged
its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance 606 of probabilities or he may carry his plea further and suc ceed in creating a reasonable doubt about an ingredient of an offence
Consequently in respect of the general excep tions special exceptions provisos contained in the Penal Code or in any law defining the offence the accused by one of these processes would be discharging the burden contem plated under Section 105 but in cases of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea he will be discharging the same by preponderance of probabilities and not by merely creating a doubt
At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi
There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions
Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily
Likewise in the case where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence he has to discharge the burden for example in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19 the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge
However it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act
We also make it clear that the principles laid down by us are only in respect of the said provision only
As we think that it would be appro priate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows The general burden of establishing the guilt of accused is always on the prosecution and it never shifts
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case
He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or as stated above he can indi rectly introduce such circumstances by way of cross examina tion and also rely on the probabilities and the other cir cumstances
Then the initial presumption against the accused regarding the non existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused
The 607 accused can also discharge the burden under Sec 105 by preponderance of probabilities in favour of his plea
In case of general exceptions special exceptions provisos contained in the Penal Code or in any law defining the offence the Court after due consideration of the evidence in the light of the above principles if satisfied would state in the first instance as to which exception the accused is entitled to then see whether he would be enti tled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accord ingly
In the instant case we are concerned with the exception of right of private defence
In the instant case a plea of right of private defence is raised
As noted above one of the accused received a 12 x2  lacerated wound and other accused received gun shot injuries
The plea that the non explanation of these injuries by the prosecution warrants rejection of the prosecution case is rejected as the evi dence of the material witnesses even otherwise found to be cogent convincing and acceptable but from the circumstances these two accused particularly one of them had received gun shot injuries during the course of the same occurrence is established
The accused have also adduced defence evi dence namely that of a Doctor in support of their plea
This material though by itself is not sufficient to establish the General Exception under Section 96 or the special exception No 2 to Section 300 IPC but creates a reasonable doubt about the existence of such a right
The accused have proved the infliction of injuries on them by the complainant party in the course of the occurrence
Therefore the obligatory initial presumption against them is removed and their plea appears to be reasonably true and consequently they are entitled to the right of self defence
The next question is whether they have exceeded this right
Learned counsel submits that the accused is not expected to modulate his right of self defence and that in the instant case it cannot with certainty be said that they have exceeded this right and therefore they are entitled to an acquittal
In Amjad Khan vs The State   on the facts and circumstances of the case it was held that the accused was entitled to a right of private defence of the body even to the extent of causing death as there was no time to have recourse to the authorities and had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family
These things could not be weighed in too fine a set of scales or in golden scales
 In 608 Puran Singh and Ors
vs State of Punjab  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 apprehension is enough to put the right of private defence into opera tion
It is also observed that the question whether a person having a right of private defence has used more force than is necessary would depend on the facts and circumstances of a particular case
In the case before us as per the evidence of the materi al witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath
Even in the plea set up by Chirkut Singh accused No 6 it is not stated specifically that deceased Nos 1 and 2 were armed with any deadly weapons
Therefore the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries
Therefore the offence com mitted by them would be one punishable under Section 304 Part 1 IPC
We accordingly set aside the conviction of the
appel lantsaccused Nos 1 3 4 and 6 Vijayee Singh Ranjit Singh Ram Briksh Singh and Chirkut Singh respectively for an offence punishable under Section 302149 IPC and the sentence of imprisonment for life awarded thereunder
In stead they are convicted under Section 304 Part I read with Section 34 IPC and sentenced each of them to undergo 10 years imprisonment
The other sentencesconvictions awarded to them are confirmed
The sentences shall run concurrently
Criminal Appeal Nos
375 77 of 1987 are allowed to this extent only and Criminal Appeal Nos 372 7487 are dis missed
RNJ Crl
A Nos 375 7787 are allowed and Crl
A Nos
372 7487 are dismissed


Summary:
The controversy that requires determination in this appeal is whether piece rated workers are entitled to over time wages for work done beyond the normal hours of 44 34 hours and upto 48 hours in a week ie for 3 14 hours in a week and the rate at which they should be paid the overtime wages for those hours
The workers of the Clothing Factory are divided into two categories viz i day workers and ii piece rated work ers
Whereas the day workers are paid wages in the scale of Rs260 400 on the basis of their actual attendance the piece rated workers are paid on actual output or production calculated on the basis of time required for making the item at an hourly rate to be arrived at in accordance with the formula prescribed for the purpose
According to the appel lants the piece rate system was introduced sometime in 1963 and since then the piece rate workers were paid overtime wages accordingly for work done beyond the normal working hours ie 44 34 hours 8 hours per day other than Satur days when the working hours are 4 34 hours but the same was abruptly stopped from 1983 so much so that they were even denied the wage at the normal rate for work done beyond normal hours and upto 48 hours
Being dissatisfied the appellant Union filed a writ petition in the High Court of Madras praying for a suitable direction to the respondents to pay the piece rate workers extra or overtime wages at the rate prescribed by section 591 of the Factories Act if the total working hours of any workman exceeded 44 34 hours in a week
The learned Single Judge of the High Court by his order dated 6th December 1983 dismissed the writ petition
An appeal was preferred by the appellant Union but whilst the said appeal was yet pending disposal by the High Court the appellant Union filed yet another writ 618 petition in the same High Court which was later transferred to the Central Administrative Tribunal and which has been disposed of by the Tribunal by the impugned order
Hence this appeal by the Union after obtaining special leave
The appeal preferred against the order of the learned single Judge of the High Court was later dismissed for default
The workers claim that they are entitled to extra wages for these 3 14 hours at double the normal rate in accord ance with section 591 of the Factories Act whereas the Union denies such liability
Dismissing the appeal this Court HELD There is no dispute that the workers are paid overtime wages for work done in excess of 9 hours on any day or 48 hours in any week in accordance with section 59 of the Factories Act
This section does not provide for overtime wages for work done in excess of the normal working hours and upto 48 hours
624C Under the Presidential order of 1st September 1959 overtime wage was payable for work in excess of normal working hours and upto 9 hours on any day or 48 hours in a week at the rate prescribed in the departmental rules
By the subsequent Presidential Order of 13th February 1963 the method of calculation and payment of overtime wage to piece workers was outlined
Under these orders the day workers are allowed overtime wages for working beyond the normal working hours whereas piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week
625A B In the instant case the grant of overtime wages for the period in excess of the normal working hours of 44 34 per week and upto 48 hours is governed by the relevant depart mental rules and Section 591 of the Factories Act comes into play only if a piece worker has worked beyond 9 hours in a day or 48 hours in a week and not otherwise
Further piece workers are allowed piece work profits as may be earned by them for working beyond normal working hours and upto 48 hours in a week
625G H Union of India vs
GH Kokil  distinguished