Judgment Case ID: 3317

Judgment:
N: Criminal Appeal No. 120 of 1971. Appeal by Special Leave from the Judgment and order dated the 24th July	 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 581 of 1968. A. N. Mulla and O. N. Mohindroo for the Appellant. D. P. Uniyal and O. P. Rana for the Respondent. The Judgment of P. N. Bhagwati and R. section Sarkaria was delivered by R. section Sarkaria	 J. Beg	 J. gave a separate opinion. BEG	 J. I have had the advantage of going through the judgement of my learned brother Sarkaria. I confess that I do not feel confident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities. But	 I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt for the reasons given below. The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts. It gave rise to two Full Bench decisions of the Allahahad High Court	 the first in Parbhoo vs Emperor	(l) and the second in Rishi Kesh Singh & ors. vs the State( '). It does not seem to have been considered in the same form by this Court. r I think this is an appropriate case in which this Court could consider and decide it	 and	 it is because this aspect of the case was ignored by the Trial Court as well as the High Court that I consider this to be a fit case for a reconsideration of evidence and interference by this Court under Article 136 or the Constitution. The Trial Court	 after assuming that there may be some truth in the defence version that Ram Nath had gone to the scene of occurrence with a bhala	 said: "Even if Ram Nath had arrived there armed with bhala	 there could be no apprehension of death or grievous hurt to any one of the accused persons as the accused persons were armed with gun and pistol and could defend themselves if Ram Nath tried t(3 strike them with 'bhala '. Pratap and Suresh 'accused could not be justified in firing gun shots and pistol shots at Ram Nath in the expectation that Ram Nath may reach the place where Puttu Lal accused was standing and may strike him with 'bhala '. (1) A.l. R. 1941 All. 402 (FB). (2) AIR 1970 All. Sl (FB). 760 Pratap and Suresh accused had started from their house A with gun and pistol before they had known about the reaching of Ram Nath at that place with a 'bhala '. It can reasonably be inferred from the own case of the defence that Pratap and Suresh accused	 or at least Pratap accused	 had arrived there with the intention of committing the murder of Raj Kumar or of any body who may interfere in the wordy duel between Raj Kumar P.W. and Puttu Lal accused". This shows that the Trial Court was inclined to believe that the defence version was true to the extent that Ram Nath had rushed to the scene of occurrence with a bhala	 when a quarrel between the two sides was taking place. But	 it overlooked here that Ram Nath	 while going to the help of Raj Kumar	 had actually expressed his intention to break the heads of members of Puttu Lal 's party. At any rate	 according to the prosecution evidence. 	 Ram Nath was acting in such a way as to appear like a "lion" bent on interference to protect Raj Kumar in a quarrel between the two sides. If this was Ram Nath 's conduct	 could he not have done something which gave rise to the right of private defence of person ? If that right had arisen how could shooting him be murder ? Even if it was exceeded the offence could not be culpable homicide amounting to murder. Why should Pratap	 the appellant	 have spared Raj Kumar who	 according to the prosecution evidence itself	 had given offence to Puttu Lal in the past and then on the date of incident by actually demolishing a nali and then advancing towards him with his phawra	 threatening to strike Puttu Lal	 but shoot at Ram Nath who appeared subsequently and was	 according to the prosecution version	 quite unarmed ? The prosecution evidence is that Puttu Lal had called his son Pratap and asked him to bring his gun only when Raj Kumar had threatened to attack him with his phawra and had advanced towards Puttu Lal. Nevertheless	 Pratap and Suresh are alleged to have shot down Ram Nath	 even though Ram Nath was empty handed	 but did nothing to Raj Kumar who was	 according to the prosecution version	 more offensive and threatening with a phawrah and was the cause of the whole trouble Such conduct	 attributed to Pratap and Suresh	 in the setting alleged	 seems quite unnatural and eccentric. Raj Kumar	 P.W. 1	 also stated that Atma Ram	 Achhe Ram and Sia Ram	 Pradhan	 took their stand in parti land at about the same time as Ram Nath had arrived on the scene and had asked Ram Nath not to loose heart or to be discouraged as he was coming to deal with each one of Raj Kumar 's adversaries. Then	 at Puttu Lal 's instigation	 Pratap and Suresh are alleged to have shot at Ram Nath. Why is it that this version of the obviously interested Raj Kumar	 PW 1	 is	 only supported by two chance witnesses of another village	 but neither Atma Ram nor Achhe Ram	 nor Sia Ram	 Pradhan of village Sant Kuiyan	 who had	 according to the prosecution version	 witnessed the occurrence not produced by the prosecution at all ? The prosecution could select its witnesses. But	 why was such an objectionable selection made ? Was it not a case in which the Court should have exercised its power under Section 540 Criminal Procedure Code to summon at least Sia Ram 761 Pradhan	 in whose grove Ram Nath was shot	 so as to ascertain the whole truth more satisfactorily ? Had not the Trial Court and the High Court too readily assumed that absolute truth fell from the lips of prosecution witnesses as regards the commencement of aggression even when their own statements contained admissions indicating that the whole or the real truth had not been revealed by them ? These are some of the doubts which the rather mechanical examination of evidence by the Trial Court and the High Court do not dispel. The question which arises in this case is: Even if the defence version is not held to be fully established	 by a balance of probabilities	 were there not sufficient pointers in evidence of what was probably the truth which leaked out from some statements of the prosecution witnesses themselves ? They had indicated the bellicose and threatening attitude of Ramnath while he was advancing. Did this not tend to corroborate the defence version that he was actually advancing menacingly armed with a bhala piosed for an attack with it when he was shot at ? It was held in the case of Rishi Kesh Singh (supra) by a majority of a Full Bench of nine Judges of the Allahabad High Court explaining and relying upon the decisions of this Court discussed there (at p. 51): "The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the built of the accused". In that case	 the result of a consideration of the decisions of this Court in relation to the provisions of Section 105 of the Evidence Act was summed up by me as follows (at page 97 98): ". an accused 's plea of an exception may reach one of three not sharply demarcated stages	 one succeeding the other	 depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are: firstly	 a lifting of the initial obligatory presumption given at the end of section 105 of the Act; secondly	 the creation of a reasonable doubt about the existence of an ingredient of the offence; and	 thirdly	 a complete proof of the exception by 'a preponderance of probability '	 which covers even a slight tilt of the balance of probability in favour of the accused 's plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage	 he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage	 he is undoubtedly entitled to an acquittal. This	 in my opinion	 is the effect of the majority view in Parbhoo '. case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far	 but the first stage has not yet been dealt with directly or separately there in any case brought to our notice." 18 L925SupCl/75 762 Provisions of Section 105 of the Evidence Act	 which are applicable in such cases	 contain what are really two kinds of burden of the accused who sets up an exception; firstly	 there is the onus laid down of proving the existence of circumstances bringing the case within any of the General exceptions in the Indian Penal Code	 or	 within any special exception or proviso contained in any other part of the same Code	 or in any law defining the offence	 and	 secondly	 there is the burden of introducing or showing evidence which results from the last part of the provision which says that "the Court shall presume the absence of such circumstances". The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there. But	 when both sides have led evidence of their respective versions	 the accused can show	 from any evidence on the record	 whether tendered by the prosecution or the defence	 that the mandatory presumption is removed. the last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough nor an acquittal. D Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh 's case (supra) (at P. 95): "Even a literal interpretation of the first part of Section 105 could indicate that 'the burden of proving the existence of circumstances bringing the case ' within an exception is meant to cover complete proof of the exception pleaded	 by a preponderance of probability	 as well as proof of circumstances showing that the exception may exist which will entitle	 the accused to the benefit of doubt on the ingredients of an offence. If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a pre ponderance of probability	 more direct and definite language would have been employed by providing that the accused must 'prove the existence ' of the exception pleaded. But	 the language used in the first part of Section 105 seems to be deliberately less precise so that the accused	 even if he fails to discharge his duty fully	 by establishing the existence of an exception	 may get the benefit of the exception in directly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused. Again	 the last part of Section 105	 even if strictly and literally interpreted	 does not justify reading into it the meaning that the obligatory presumption must last until the accused 's plea is fully established and not just till circumstances (i.e. not necessarily all) to support the plea are proved. Moreover	 a restrictive interpretation of Section 105	 excluding an accused 11 from the benefit of bringing his case within an exception until he fully proves it	 is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 763 105 and the prosecution 's duty to prove its case beyond reasonable doubt. Hence	 the obligatory presumption	 at the end of Section 105	 cannot be held to last until the accused proves his exception fully by a preponderance of probability. It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo 's case	 1941 All LJ 619 AIR 1941 All 402 (FB)". It was also said there (at p. 89): "The legal position of a state of reasonable doubt may Be viewed and stated from two opposite angles. One may recognise	 in a realistic fashion	 that	 although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused 's lower burden of proving his plea by a preponderance of probability only	 yet	 there is	 in practice	 a still lower burden of creating reason able doubt about the accused 's guilt	 and that an accused 's can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof	 although	 it may be said	 in defence of such a statement of the law	 that it only recognises what is true. Alternatively	 one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution 's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. This technically more correct way of stating the law was indicated by Woolmington 's case and adopted by the majority in Parbhoo 's case	 and	 after that	 by the Supreme Court. It seems to me that so long as the accused 's legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt	 upon a consideration of the whole evidence	 on an ingredient of an offence	 are recognised	 a mere difference of mode in describing the position	 from two different angles	 is an immaterial matter of form only. Even if the latter form appears somewhat artificial	 it must be preferred after its adoption by the Supreme Court". (See: K. M. Nanavati vs State of Maharashtra AIR Applying the principle of benefit of doubt	 as I had ' explained above	 to the plea of private defence of person in the instant case	 I think that	 even if the appellant did not fully establish his plea	 yet	 there is sufficient evidence	 both direct and circumstantial	 to justify the finding that the prosecution has not established its case beyond reasonable doubt against Pratap on an essential ingredient of the offence of murder: the required mens rea. After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which for some unexplained reason	 was not produced	 I am not satis 764 fied that the plea of private defence of person can be reasonably ruled A out here. This is enough	 in my opinion	 to entitle the appellant to get the benefit of doubt. I may observe here that the High Court had not only failed to grapple with this difficulty arising from the evidence in the case and some of the findings of the Trial Court	 which seemed to think that the intention to murder or the required mens rea for murder must be presumed from the mere fact of homicide (a wholly incorrect approach in a case where a plea of private defence had been raised and sought to be established by some evidence)	 but	 the High Court itself started from a totally unsound premise when it observed: "It was Puttu Lal who was committing aggression by insisting that Raj Kumar should not dismantle the Nali It is again admitted by Puttu Lal that he cried out for help in response to which Pratap arrived armed with a double barrel gun. " In other words	 the High Court assumed that a mere insistence by Puttu Lal that Raj Kumar should not dismantle the nali amounted to an "aggression" begun. The word "aggression" is generally used for an actual invasion of the property of another or an attack on the body of another. It is true that it is not necessary that an actual attack should commence before a right of private defence can arise. Nevertheless	 a reasonable apprehension of injury could not be said to arise by a mere prohibition to dig up a "nali" or drain. It could arise if a man is advancing aggressively towards others holding out threats to break their heads even if he is armed with a lathi with which he could carry out such a declared intention. The extent of the right or its justification is another matter depending again upon facts which have a bearing on extent of the right or its reasonable exercise. In the circumstances of the case before us	 I think	 we can hold	 that	 even if Ram Nath was not positively proved to be threateningly advancing with a bhala poised for attack towards Pratap	 appellant	 or Puttu Lal	 yet	 a consideration of all the probabilities and evidence on record leads us to infer that this was reasonably likely to be true. If this was so	 it is clear that the appellant must have discharged his gun when Ram Nath had advanced and come near enough in a manner which must have been so menacing as to raise an apprehension of an attack with the bhala. Such an assumption fits in with medical evidence too showing that the shots were fired from a close enough range to cause charring. Another feature of the case is that the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted Suresh	 who was also alleged to have shot with his pistol" giving him the benefit of doubt because	 unlike Puttu Lal and Pratap	 he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu Lal. 765 I think	 on an analysis of the whole evidence	 that the appellant Pratap was also entitled to the benefit of a doubt which could be said to be reasonable. I	 therefore	 concur in the order proposed by my learned Brother. SARKARIA	 J. This appeal by special leave is directed against a judgment of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his conviction under section 302	 Penal Code. The facts of the prosecution case as narrated at the trial by Raj Kumar	 the star witness of the prosecution	 were as follows: Raj Kumar had installed a Tubewell in his field known as 'Chharelawala.field ' in the revenue estate of village Sant Kuiyan	 in the year 1962. The water pumped out from this tubewell was utilised by him not only for irrigating his own fields but also those of the neighbours against charges. Subsequently	 Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala field. Puttu Lal	 too	 started letting out the use of his tubewell on hire. An unhealthy competition ensued between Raj Kumar and Puttu Lal in this water business	 and their relations became strained. There was a water channel running from north to south in Raj Kumar 's field through which Puttu Lal used to supply water to others. To the south of Chharelawala field	 there is grove belonging to Sia Ram	 Pardhan of the village. The tubewell of Puttu Lal is located towards the south of that grove. To the west of the Chharelawala field	 is a plot belonging to Puttu Lal. Two or three days before the occurrence in question	 there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel. Raj Kumar firmly refused Puttu Lal the use of that channel. on S 1 1967	 at about 7.45 a.m.	 Raj Kumar and his brothers Ramchander and Bhagwan Sahai	 started demolishing their channel so that Puttu Lal should not be able to supply water through it. About fifteen minutes thereafter	 Puttu Lal and his son	 Ram Parkash	 appeared on the northern ridge of the grove of Siya Ram. Puttu Lal was carrying a lathi and Ram Parkash a bhala. Puttu Lal asked Raj Kumar and his companions not to demolish the channel. Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it. Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade	 and thus settle the matter once for all. On being so threatened	 Puttu Lal shouted to his son	 the appellant	 to come immediately with his gun. In response to Puttu Lal 's call	 the appellant	 armed with the double barrel licensed gun of Puttu Lal	 and Puttu Lal 's other son	 Suresh	 armed with a pistol	 came. A couple of minutes after the arrival of the appellant and Suresh	 the deceased Ram Nath who was the son of Raj Kumar 's wife 's brother	 came out running from the grove. He shouted to 766 Raj Kumar not to be afraid as he would settle the matter with every A one of the accused and break their heads. On seeing the deceased	 Puttu Lal said: "He thinks himself to be a lion	 let us see him first of all". On this instigation	 Partap fired his gun at Ram Nath from a distance of four or five paces. On receiving the gun shot	 Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol. Ram Nath	 dropped dead. The accused then ran away taking their weapons with them. Raj Kumar PW 1 went home	 scribed the report. ka 3	 and handed it over in the Kain Ganj Police Station	 8 miles away	 at 9.30 a.m. After registering a case on the basis of this report	 Sub Inspector Kartar Singh reached the spot and started the investigation. He prepared the inquest report and sent the body for post mortem examination. The autopsy was conducted by Dr. section P. Chaturvedi	 PW 3	 on 6 1 1967	 at 12.40 p.m. The Doctor found five gunshot wounds of entry and three of exit on the deadbody. There was blackening around all the wounds of entry. The death	 in the opinion of the Doctor	 was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung. The accused surrendered in the court of the Additional District Magistrate	 Farrukhabad on 7 1 1969	 and thereafter their custody was taken over by the Police. After conducting the preliminary enquiry the Magistrate committed Puttu Lal	 Suresh and Partap accused for trial to the court of Session on charges under sections 302/34	 109 Penal Code All the three accused were convicted and each of them was sentenced to imprisonment for life and a fine of Rs. 200/ . The plea of the accused was one of denial of the prosecution case. Suresh pleaded alibi and alleged false implication. Partap pleaded that the deceased was about to strike him with a bhalla and consequently	 he fired two shots	 in self defence	 from his double barrel gun at the deceased. The accused examined Chhote Khan	 DW 1. in defence. The trial judge rejected the defence version and convicted and sentenced the accused as aforesaid. In appeal	 the High Court acquitted Suresh accused but maintained the conviction of Puttu Lal and Partap. Before the admission of the special leave petition under Article 136 of the Constitution by this Court	 Puttu Lal died. Thus only the appellant 's conviction survives for consideration in this appeal. The decision of the courts below rests mainly on the testimony of the three eye witnesses	 namely	 Raj Kumar	 PW 1	 Atma Ram PW 2	 and Achhey Ram	 PW 4. Mr. A. N. Mulla	 the learned Counsel for the appellant contends that the evidence of P.Ws. 2 and 4 was not worthy of credence; that being residents of another village and having failed to give a credible reason for their presence at the scene of occurrence	 they were chance witnesses of the worst type; that as admitted by their brother" Bisheshar Dayal	 PW 15	 they were not only related to the deceased but were 767 stock witnesses of the Police. that since the witnesses did not frankly and fully admit their mutual blood relationship" they were of a type to whom truth	 even in trifles	 appeared to be unpalatable; that the prosecution had failed to examine Siya Ram and Mahabir who were also named as eye witnesses in the F.I.R. and the courts below had erred in not drawing an adverse inference against the prosecution on that score. Although this criticism levelled against P.Ws. 2 and 4 is not totally devoid of force	 we do not think it a sufficient ground to depart from the settled rule of practice according to which this Court does not	 in the absence of material irregularity	 illegality or manifest error	 itself reappraise the evidence. In spite of these infirmities	 the courts below have believed their presence at the time and place of occurrence. The reasons given by the witnesses for their presence at the spot	 may be vulnerable	 even wrong. True	 they are residents of the neighbouring village	 1 1/2 or 2 miles away	 and belong to the caste of the deceased. PW 15 may be bearing some relationship with the deceased. But the fact remains that PWs 2 and 4 have been named as eye witnesses in the F.I.R. which was lodged in the Police Station	 8 miles away	 with utmost promptitude. Be that as it may	 the fate of the case did not depend on the evidence of these two witnesses. Raj Kumar 's evidence corroborated by the F.I.R. and the other evidence on the record	 was by itself	 sufficient to hold that the appellant had fired a fatal shot at the deceased from close range with the double barrel gun of his father. Thus	 the only question that falls to be considered in this appal is	 whether Ram Nath was shot dead by the appellant in the exercise of his right of private defence ? We have carefully scrutinised the judgments of the courts below. In our opinion	 their finding in regard to the plea of self defence is clearly erroneous. They appear to have overlooked he distinction between the nature of burden that rests on an accused under section 105 Evidence Act to establish a plea of self defence and the one cast on the prosecution by Section 101 to prove its case. It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt	 the accused can discharge his onus by establishing a mere preponderance of probability. Since the approach of the courts below is basically wrong	 it has become necessary to examine the material on record bearing on the plea of self defence. This plea was specifically taken by the appellant at the trial in his examination under section 342	 Cr. It was put to Raj Kumar PW 1	 the chief witness of the prosecution	 in cross examination. Raj Kumar replied: "It is wrong to suggest that Ram Nath would have murdered Partap if Partap had not fired at him. Ram Nath had nothing in his hand. " The courts below have accepted without demur the ipse dixit of Raj Kumar that the deceased was unarmed. We find it impossible to swallow this so improbable a version the credibility of which was extremely underminded by the telling 768 circumstances appearing in the prosecution evidence	 itself. It was the admitted case of the prosecution that following the threatening gesture made by Raj Kumar to break Puttu Lal 's head with the spade	 and the call given by Puttu Lal	 the appellant came there armed with a gun and immediately thereafter	 the deceased came running	 proclaiming that he would break the heads of and settle the scores with everyone of the accused party. It is further admitted that the deceased had reached at a distance of 3 or 4 paces from the appellant when the latter fired. The blackening found around the wounds of entry on the deadbody by the medical witness	 confirm that the deceased was within six feet of the assailant when he received those injuries. Again	 it is the case of the prosecution that at the time of the first gun fire the deceased was facing the appellant. The medical evidence also confirms it	 inasmuch as two entrance wounds (1 and 5) were located on the front side of the deceased. From this circumstance it is clearly discernible that the deceased was charging at the gunman and had reached within a striking distance when his charge was foiled by the gun fire. It is difficult to believe that the deceased would have behaved in the bold and truculent manner he did	 if he were not armed with a formidable weapon. It was put to Raj Kumar by the defence that if the deceased was empty handed as was alleged by the witness how did he proclaim to break the heads of the accused. The witness had no satisfactory answer to it. Conscious that he was suppressing the fact in question	 all that he could say in befuddled embarrassment	 was: '`I do not know with what weapon he was going to break the heads. " The appellant 's plea that the deceased was going to strike him with a Bhalla	 when the gun was fired	 was highly probable. one of the reasons given by the learned Judges of the High Court for ignoring this plea was that it was belated and had not been set up by the appellant during his examination in the Committal Court. A glance at the record of that examination would show that he was not properly examined in that court. Only a composite question with regard to all the circumstances of the prosecution case	 was put to him in the Committal Court	 which he denied. The omission of the appellant to set up the plea of private defence in the Committal Court	 therefore	 was no ground to brand it as an after thought	 particularly when there was foundation for it in the prosecution evidence	 itself. The circumstances appearing in the prosecution evidence	 and the statement of the appellant recorded under Sec 342	 Cr. P.C. did not exhaust the material in support of the plea of self defence. There was the direct testimony of Chhote Khan	 DW 1	 who testified that he was attracted from his house to the spot by the outcry of Puttu Lal accused which was to the effect	 that he was being killed. Witness saw Ram Nath deceased	 armed with a spear	 running towards the move of Siya Ram. Thereafter	 he heard two reports of gun fire. On reaching the grove	 the witness saw Ram Nath lying dead with a spear by his side. Partap appellant and Puttu Lal were also seen running away from the scene. Partap was carrying a gun. Witness did not see Suresh and Ram Parkash there. Excepting the precise words of 769 Puttu Lal 's call and the fact of the deceased being armed with a spear	 Chhote Khan 's evidence in so far as it goes	 fits in with the prosecution story. The High Court has rejected hi	 evidence without much discussion for two reasons; firstly	 that he was not speaking the truth inasmuch as he stated that Puttu Lal was raising an outcry that he was being killed	 because it was no body 's case that any body assaulted or attempted to assault Puttu Lal. Secondly	 the witness did not appear and make any statement before the investigating officer. Neither of these was a good ground to reject his testimony but of hand. Chhote Khan was a resident of the same village. The place of occurrence is not situated at a far off distance from the village	 Indeed	 it was the prosecution case that the appellant and deceased came to the spot after hearing the shouts of Puttu Lal and Raj Kumar. Chhote Khan 's coming to the spot from the village on hearing the same shouts	 was therefore	 equally probable. In any case	 his reaching the scene on hearing the reports of gun fire and seeing Ram Nath lying dead with a spear	 was a highly probable fact. Nor could his version that Puttu Lal was raising an outcry that he was being killed	 be rejected outright. It was admitted by Raj Kumar in cross examination	 that he and his companions had advanced 2 paces towards the accused Puttu Lal and others	 threatening to break their heads with the Phawra (spade and that the witness was then carrying (rather brandishing) the spade. It is further admitted that it was after this threat that Puttu Lal gave a call to the appellant to come armed with the gun. In the face of such a threat	 it was not improbable for Puttu Lal to cry out for help saying that he was being killed. Chhote Khan was an independent witness. Nothing was brought out in cross examination to show that he was hostile towards the complainant party or had any special interest in the defence. In the light of the above discussion	 the conclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability	 that the deceased was within a striking distance	 poised for imminent attack on the appellant with a spear	 when the latter fired the fatal gunshot. In such a situation	 the appellant had reasonable and immediate apprehension that he would suffer death or grieous hurt if he did not fire at the deceased. Thus the death was	 in all probability	 caused by the appellant in the exercise of his right of private defence. For the foregoing reasons we allow the appeal	 set aside the conviction of the appellant and acquit him. V.P.S Appeal allowed .

Summary:
The appellant	 his father and another were charged with murder and convicted by the trial court. The first information referred to eye witnesses	 of whom the prosecution examined only two. These two were chance witnesses of another village	 but the others who belonged to the village where the occurrence took place	 were not examined. The third accused was acquitted on appeal. by the High Court and the father died after his conviction was con firmed by the High Court. The appellants plea of private defence was rejected both by the trial court and the High Court. Allowing the appeal to this Court	 ^ HELD (Per M. H. Beg J.): Section 105 of the Evidence Act contains two kinds of burden on the accused who sets up an exception (i) the onus of proving the existence of circumstances bringing the case within any of the general or special exceptions in the I.P.C. Or in any other law; and (ii) the burden of introducing or showing evidence	 resulting from the last part of the provision which says that the court shall presume the absence of such circumstances. The effect of the obligatory presumption at the end of Section 105 is that the court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there. But when both sides have led evidence of their respective versions the accused ' can show	 from the evidence on record	 whether tendered by the prosecution or the defence that the mandatory presumption is removed. The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for acquittal. But the right of the accused to obtain the benefit of reasonable doubt is the necessary outcome and counter part of the prosecution 's undeniable duty to establish its case beyond reasonable doubt and that right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. [762A D; 763E] In the present case	 even if the appellant did not fully establish his plea. yet	 there is sufficient evidence	 both direct and circumstantial	 to justify the finding that the prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offense of murder namely the required mens rea. An examination of all the facts and circumstances revealed by the entire evidence	 including the effect of non production of the better evidence available which. for some unexplained reason was not produced	 shows that the plea of private defence cannot be reasonably ruled out. Even if the deceased was not positively proved to be advancing threateningly with a spear poised for attack	 towards the appellant or his father	 yet	 a consideration of the whole evidence leads to the inference that this was reasonably likely to be true. [763C 764A E] (1) The trial court was inclined to believe that the defence version was true to the extent that the deceased had rushed to the scene with a spear. It overlooked that the deceased while going to help P.W. 1	 had actually expressed his intention to break the heads of the members of the accused party and that he was acting in such a was as to appear to be bent on physically aggressive interference in a quarrel between the two sides. If that was the conduct of the deceased	 it is reasonable to infer that he must have done some 758 thing which gave rise to the right of private defence in favour of the appeallant Otherwise	 the conduct of the appellant	 in sparing	 P W. 1	 who according to the prosecution had given offence to his father in the past and on the day of the incident. and was advancing towards the father threatening to strike him with a spade	 but shooting the deceased who appeared on the scene subsequently and was	 according to the prosecution version unarmed becomes inexplicable If the right of self defence had arisen the shooting could not be murder	 even if the right was exceeded the offence could not he culpable homicide amounting to murder.[760B F] (2) Further	 the prosecution version is supported only by two chance witnesses	 hut the other persons	 who had according to the prosecution version witnessed the occurrence and whose names were mentioned in the FIR. were neither produced by the prosecution nor were they examined as court witnesses [760G 761B] (3) Moreover the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted the third accused who was also alleged to have shot with his pistol [764H] Parbhoo vs Emperor	 AIR 1941 All 402(FB) and Rishi Kesh Singh ors. vs The State AIR 1970 All] 51 (FB)	 referred to (Per P. N. Bhagwati and R.S. Sarkaria	 JJ) The appellant had established by a preponderance of probability	 that the deceased was within a striking distance poised for imminent attack on the appellant with a spear	 when the appellant fired the fatal shot	 and hence. the death was caused by the appellant in the exercise of the right of private defence.[769F G] (1) Nothing turns on the evidence or the two witnesses who were examined but the approach of the trial court and the High Court to the plea of self defense raised by the appellant was wrong necessitating a review of the evidence by this Court [767D	G] (2) The burden on the accused under s.105	 Evidence Act is not as onerous as that which lies on the prosecution under s 101	 Evidence Act	 to prove its case. While the prosecution is required to prove its case beyond reasonable doubt	 the accused can discharge his onus by establishing a mere preponderance of probability [767 T] (3) The plea of private defence was specifically taken by the appellant at the trial in his examination under s 342 Cr.P.C.	 and was put to P.W. 1. the chief eye witness for the prosecution. The High Court was wrong in branching the plea as an after though on the ground that he did not raise it in the committal court	 especially when there is foundation for it in the prosecution evidence itself. The record also shows that only a composite question was put to the appellant and that he was not properly examined in the committal court. [767;768E G] (4) The appellant plea that the deceased was about to strike with his spear when the gun was fired was highly probable. The prosecution case was that	 following the threatening gesture made by P.W. 1. to break the father 's head with a spade and the call given by him	 the appellant came to the scene of occurrence with a gun; that immediately thereafter the deceased came proclaiming that	 he would break the heads of	 and settle scores with everyone of	 the accused party	 and that the deceased had reached a distance of 3 or 4 paces from the appellant and was charging at him with the appellant fired. The prosecution story that the deceased was unarmed is improbable. He would not have behaved in that bold and truculent manner unless he was armed with a formidable weapon. [767H 767D] (5) The defence witness also testified that he was attracted from his house to the scene of occurrence by the outcry of the father	 that he saw the deceased 759 armed with a spear running towards the scene of occurrence and that he saw the deceased Lying dead with a spear beside him. He was an independent witness and nothing was brought out in the cross examination to show that he was either hostile towards the complainant 's party or had any special interest in the accused. His version was probable and the High Court Was wrong in rejecting his evidence. [769D F]