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Reserved
Criminal Appeal No.72 of 1996
Indra Bahadur Singh and another ... Appellants
Versus
The State of U.P. ... Respondent
--------------
Hon'ble S.S. Chauhan, J.
Through this appeal the appellants have challenged the judgment and
conviction dated 8.2.1996 passed by the IVth Additional Sessions Judge,
Sultanpur, thereby convicting the appellants under Section 307 read with Section
34 I.P.C. to seven years rigorous imprisonment and further under Section 323
read with Section 34 I.P.C. for a fine of Rs.1,000/- each of the accused and in
case of default to undergo three months rigorous imprisonment.
Appellant No.3, Kare Deen Singh S/o Chhotai had died during the
pendency of the appeal and hence the appeal abates against him.
The prosecution case as unfolded in the F.I.R. is that the appellants Indra
Bahadur Singh, Samar Bahadur Singh and Kare Deen Singh (since deceased) on
19.6.1986 at about 12 p.m. in the noon in Village Dhaurhar, Police Station Peepar
Pur, District Sultanpur came behind and attacked on complainant, Tej Bahadur
Singh and his son Krishna Kumar Singh with an intention to kill them on account
of old enmity while they were sitting at tube-well on a cot. Upon alarm being
raised, the witnesses came to the spot and thereafter the appellants ran away from
the spot. An F.I.R. was lodged by complainant, Tej Bahadur Singh at Crime
No.91 of 1986 under Sections 307 and 323 I.P.C., Police Station Peepar Pur,
District Sultanpur. A cross F.I.R. was also registered at Crime No.91A of 1986
under Sections 147, 148, 149, 323, 307 I.P.C. Both the F.I.R.s were investigated
and final report was submitted in the F.I.R. lodged at Crime No.91A of 1986,
whereas a charge sheet was submitted in the F.I.R. lodged at Crime No.91 of
1986. The accused persons were committed to the court of Sessions for being
tried. The accused persons pleaded not guilty and thereafter charges were framed
against them under Sections 307/34 and 323/34 I.P.C. Tej Bahadur Singh himself
was examined as P.W.-1, Krishna Kumar Singh as P.W.-2, Subhash Singh as
P.W.-3, Satish Chandra Tripathi, Investigating Officer as P.W.4 and Dr. Ashok
Mohan as P.W.5 to prove the prosecution case.
The defence adduced Smt. Sarla Mishra, A.N.M. as DW.-1, Mahendra
Kumar Tripathi, Pharmacist as D.W.-2. The photostat copies of the injury reports
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filed by the appellants were marked as Ex.Ka-1 and Ex.Ka-2 and the F.I.R. was
the Ex.Ka-3.
The injuries reports (Ex.Ka-1 and Ex.Ka-2) go to show that Indra Bahadur
Singh received one lacerated wound, two contusions, one abrasion and a
traumatic swelling and Samar Bahadur Singh received one lacerated wound, two
contusions, one abrasion and a traumatic swelling.
After conclusion of the evidence, the trial court came to the conclusion
that the appellants have not been able to prove their injury reports nor they have
been able to prove their incident. The counter version by the complainant party
was reliable as they have taken prompt action in lodging the F.I.R., therefore, the
trial court discarded the theory of self-defence and also rejected the arguments in
regard to the unexplained injuries on the person of the appellants. The minor
contradictions on the part of the Investigating Officer were also ignored. It was
also found that specific efforts were not made by the defence to produce Dr. R.K.
Gupta and neither it was confirmed from his pension papers and, therefore, the
secondary evidence led by the appellants was rejected and they were convicted as
aforesaid.
The argument advanced on behalf of the appellants is that the prosecution
has come out with a specific case that the complaint party was totally unarmed
and that they did not inflict any injury in self-defence. They were attacked upon
by the accused appellants and they tried themselves by protesting physically and
when a specific question was put during the course of cross-examination to the
prosecution witnesses and the injured, they specifically stated that the appellants
did not receive any injury. The submission, therefore, is that in view of the
categorical case set up by the prosecution that no injury was received by the
appellants, the implication of the appellants becomes doubtful as there are
specific injuries sustained by the appellants and in absence of any explanation
being given, the prosecution case becomes doubtful. It is not necessary that the
appellants to prove the case by way of defence evidence, but upon preponderance
of possibilities and upon considering the entire prosecution evidence if a doubt is
created in regard to the prosecution case, then the accused is entitled for benefit
of doubt. Further submission is that the injuries, as alleged by the prosecution,
cannot be sustained as the alleged assault is said to be made on the complainant
and his son, who were sitting on the cot and if the accused were standing and
they attacked the complainant and his son in a sitting position, then the injuries
would be received on the top of the head rather on the temporal region or any
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other region. It is also submitted that the incident has not taken place as alleged
in the F.I.R., but it has taken place as alleged in the cross F.I.R. and that is why
the injuries could not correspond to the manner of assault as alleged by the
prosecution. The appellants have proved their case of cross version by examining
D.W.-1 and D.W.-2 by placing on record the photostat copy of the injury reports
and the F.I.R., which were proved by them as secondary evidence. The appellants
also moved an application on 9.2.1995 for summoning the aforesaid final report
submitted by the Investigating Officer, but the trial court has not ensured the
summoning of the said final report and documents contained therein. Dr. R.K.
Gupta, who examined the appellants, had retired long back and so an application
was moved on 31.10.1995 to prove the injury reports by means of secondary
evidence. Smt. Sarla Mishra proved the signatures of Dr. R.K. Gupta, whereas
D.W.-2 Mahendra Kumar Tripathi, Pharmacist, who had been working in the
Primary Health Centre, came along with the register and he specifically proved
that the photostat copy is the true version of the report contained in the original
register and so the accused persons have discharged their burden.
Learned A.G.A. on the other hand has submitted that the secondary
evidence has not been up to the mark to prove the documents as alleged by the
appellants. The scribe was not produced and neither any steps were taken for
summoning the witnesses and no summons were issued to the witnesses. He has
also placed reliance upon Section 32 of the Indian Evidence Act (hereinafter
referred to as the ‘Act’). He has further submitted that it has also not been proved
as to whether the doctor was alive or dead. The burden was on the accused to
prove the injury reports as contemplated under Section 101 of the Act and in
accordance with Section 105 of the Act the accused has to prove and plead the
cross case. It is further submitted that although an application was made under
Section 313 Cr.P.C. that injuries were received in self-defence, but no documents
were proved, so there was no question of disproving any document. He has also
submitted that Section 96 I.P.C. gives right to private defence, but subject to
limitation as contemplated under Section 99 I.P.C. The F.I.R. was lodged on the
next date and no explanation for delay was given. He has also submitted that the
defence cannot be raised by way of Section 313 Cr.P.C. and written statement is
not permissible under Section 313 Cr.P.C. There was strong motive to commit the
crime as the accused appellants wanted that the complainant may not give
evidence in the murder case, which was pending against them and with that view
they were attacked. After the present case, evidence was recorded in that case
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and the appellants were convicted for life. After the final report was submitted,
the appellants should have filed protest application, but they accepted the final
report, so the same became final. It is also submitted that for fault of
Investigating Officer the prosecution cannot be thrown out.
I have heard learned counsel for the parties and gone through the record.
The first question, which falls for consideration is as to in what manner
and to what extent the right of private defence can be taken by the Court while
considering the evidence on record and upon preponderance of possibilities
where the defence is obliged to discharge its burden by adducing evidence to
disprove the circumstances or upon preponderance of possibilities and
considering the entire prosecution case if there is a doubt in the mind of the
Judge, then whether the said evidence can be taken into consideration and the
accused can be acquitted.
Learned counsel for the appellants in order to put forward his argument
that even if positive evidence is not led by the defence to dispel the prosecution
against the accused, even then the Court can look into the entire evidence and
comes to a conclusion that the accused persons acted in exercise of private
defence. In support of his contention he has relied upon the case of Lakshmi
Singh and others etc., vs. State of Bihar, AIR 1976 SC 2263, wherein the apex
court held as under:
” 11. x x x x In Puran Singh v. The State of Punjab,
Criminal Appeal No.266 of 1971 decided on April 25, 1975 =
(reported in AIR 1975 SC 1674) which was also a murder case this
Court while following an earlier case observed as follows:
” In State of Gujarat v. Sai Fatima (Criminal Appeal
No.67 of 1971 decided on March 19, 1975)= (reported in AIR 1975
SC 1478) one of us (Untwalia, J.) speaking for the Court, observed
as follows:
“In a situation like this when the prosecution fails to explain
the injuries on the person of an accused, depending on the facts of
each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the
members of the prosecution party in exercise of the right
of self defence.
(2) It makes the prosecution version of the occurrence doubtful
and the charge against the accused cannot be held to have
been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.”
The facts of the present case clearly fall within the four
corners of either of the first two principles laid down by this
judgment. In the instant case, either the accused were fully justified
in causing the death of the deceased and were protected by the
5right of private defence or that if the prosecution does not explain
the injuries on the person of the deceased the entire prosecution
case is doubtful and the genesis of the occurrence is shrouded in
deep mystery, which is sufficient to demolish the entire prosecution
case.”
It seems to us that in a murder case, the non-explanation of
the injuries sustained by the accused at about the time of the
occurrence or in the course of altercation is a very important
circumstance form 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 it is rendered probable so as
to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain 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. In the instant case,
when it is held, as it must be, that the appellant Dasrath Singh
received serious injuries which have not been explained by the
prosecution, then it will be difficult for the Court to rely on the
evidence of Pws.1 to 4 and 6 more particularly, when some of these
witnesses have lied by stating that they did not see any injuries on
the person of the accused. Thus neither the Sessions Judge nor the
High Court appears to have given due consideration to this
important lacuna or infirmity appearing in the prosecution case.
We must hasten to add that as held by this Court in state of Gujarat
v. Bai Fatima, Criminal Appeal No.67 of 1971 decided on March
19, 1975 : (reported in AIR 1975 SC 1478) there may be cases
where the non-explanation of the injuries by the prosecution may
not affect the prosecution case. This principle would obviously
apply to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and cogent,
so independent and disinterested, so probable, consistent and
credit-worthy, that it far outweights the effect of the omission on the
part of the prosecution to explain the injuries. The present,
however, is certainly not such a case, and the High Court was,
therefore, in error in brushing aside this serious infirmity in the
prosecution case on unconvincing premises.”
In the case of Vijayee Singh and others v. State of U.P., (1990) 3 SCC
190, the apex court after considering the law laid down by the apex Court in
various cases held as under:
” 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
6is 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:
“105. 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 for 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 presumenon-existence of circumstances
bringing the case within an exception. The words “the burden of
proving the existence of circumstances” occurring in the Section
are very significant. It is well settled that “this burden” which rests
on the accused does not absolve the prosecution from discharging
its initial burden of establishing the case beyond all reasonable
doubts. It is also well-settled that the accused need not set up a
specific plea of his 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
v. The Directorof Public Prosecutions, [1935] Appeal Cases 462,
Viscount Sankey, L.C. observed:
“When evidence of death and malice has been given (this is
a question for the jury), the prisoner is entitled to show, by
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 entitled to the benefit of
the doubt. But while the prosecution must prove the guilt of the
prisoner, there is no such burden laid on the prisoner to prove his
innocence 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 …
Throughout 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 whether the prisoner killed the
deceased with a malicious intention, the prosecution has not made
out the case and the prisoner is entitled to an acquittal. No matter
what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the
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common law of England and no attempt to whittle it down can be
entertained.”
Emperor v. U. Dampala, AIR 1937 Rangoon 83, a full Bench of
the Rangoon High Court following the Woolmington’s case held
that the ratio therein is not in any way inconsistent with the law in
British India, and that indeed the principles there laid down from
valuable guide to the correct interpretation of Section 105 of the
Evidence Act and the full Bench laid down that even if the evidence
adduced by the accused fails to prove the existence of
circumstances bringing the case within the exception or exceptions
pleaded, the accused is entitled to be acquitted if upon a
consideration of the evidence as a whole the 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
part of the Penal Code is on him and the Court shall presume the
absence of such circumstances. This presumption is rebuttable.
In Parbhoo and Ors. v. 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 prosecution 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
majority 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 evidence
adduced by him, or from circumstances appearing from the
prosecution evidence, that the existence of circumstances bringing
the case within the exception or exceptions pleaded has been
proved, or upon a review of all the evidence 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 K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR
567 it is observed that:
“In India, as it is in England, there is a presumption of
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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; to put it in
other words, the accused is presumed to be innocent until his guilt
is established by the prosecution. But when an accused relies upon
the General Exceptions in the Indian Penal Code or on any special
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 presumption. Under that
Section the Courts shall presume the absence 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 prosecution 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 prosecution and the special
burden imposed on the accused under Section 105 of the Evidence
Act is more imaginary than real. Indeed, there is no conflict at all.”
In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat,
AIR 1964 SC 1563 it is observed:
“It is fundamental principle of criminal jurisprudence that
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 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
circumstances 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 sufficient to make it consider the
existence of the said Circumstances 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, satisfies 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 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
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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 nor impliedly
overrules or is in conflict with the majority view in Parbhoo’s case.
However, in Rishi Kesh Singh & Ors. v. The State, AIR 1970
Allahabad 51, the question that came up for consideration before
a Larger Bench consisting of nine Judges was whether the dictum
in Parbhoo’s case is still a good 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 including the
Nanavati’s case; Bhikari v. State of Uttar Pradesh, AIR 1966 SC 1
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:
“After a close scrutiny of every part of each of the seven
opinions in Parbhoo’s case [1941] All LJ 619=AIR 1941All 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
at the 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 619 =
AIR 1941 All 402 (FB) I find it based on these three propositions
which provide the ratio decidendi and this is all that needs to be
clarified.”
“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; firstly, a lifting of the
initial obligatory presumption given at the end of Sec. 105 of the
Act; secondly, the creation of a reasonable doubt about the
existence of an ingredient of the offence; and thirdly, a complete
proof of the exception by “a preponderance of probability”, which
10
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’s 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.”
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 person 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 exception; 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 of the
ingredients of the offence, the accused person shall be entitled to
the benefit of the reasonable doubt as to his guilt and hence to
acquittal of the said offence.”
Learned counsel for the State, 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 Section105 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 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
11
will have to rebut the presumption that such circumstances did not
exist” by placing material before the court which satisfies the
standard of a prudent man and the material may consist of oral
and documentary evidence, presumptions, 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.”
In the case of Laxman Singh vs. Poonam Singh and others, 2003 (4)
Crimes 1 SC, their Lordships again reemphasized the same principle in para 6 of
the judgment, which is as follows:
” 6. Only question which needs to be considered, is the
alleged exercise of right of private defence. Section 96, IPC
provides that nothing is an offence which is done in the exercise
of the right of private defence. The Section does not define the
expression ‘right of private defence’. It merely indicates that
nothing is an offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person acted in
the exercise of the right of private defence is a question of fact to
be determined on the facts and circumstances of each case. No
test in the abstract for determining such a question can be laid
down. In determining this question of fact, the Court must
consider all the surrounding circumstances. It is not necessary for
the accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to
consider such a plea. In a given case the Court can consider it
even if the accused has not taken it, if the same is available to be
considered from the material on record. Under Section 105 of the
Indian Evidence Act, 1872 (in short ‘the Evidence Act’), the
burden of proof is on the accused, who sets of the plea of self-
defence, and, in the absence of proof, it is not possible for the
Court to presume the truth of the plea of self-defence. The Court
shall presume the absence of such circumstances. It is for the
accused to place necessary material on record either by himself
adducing positive evidence or by eliciting necessary facts from
the witnesses examined for the prosecution. An accused taking the
plea of the right of private defence is not required to call
evidence; he can establish his plea by reference to circumstances
transpiring from the prosecution evidence itself. The question in
such a case would be a question of assessing the true effect of the
prosecution evidence, and not a question of the accused
discharging any burden. Where the right of private defence is
pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was
12necessary for either warding off the attack or for forestalling the
further reasonable apprehension from the side of the accused. The
burden of establishing the plea of self-defence is on the accused
and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on
record. (See Munshi Ram and Ors. v. Delhi Administration (AIR
1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975 SC
1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226),
and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private
defence of body. If a person has a right of private defence of
body under Section 97, that right extends under Section 100 to
causing death if there is reasonable apprehension that death or
grievous hurt would be the consequence of the assault. The oft
quoted observation of this Court in Salim Zia v. State of U.P. (AIR
1979 SC 391), runs as follows:
“It is true that the burden on an accused person to
establish the plea of self-defence is not as onerous as the one
which lies on the prosecution and that, while the prosecution is
required to prove its case beyond reasonable doubt, the accused
need not establish the plea to the hilt and may discharge his onus
by establishing a mere preponderance of probabilities either by
laying basis for that plea in the cross-examination of the
prosecution witnesses or by adducing defence evidence.”
While dealing with the similar in the case of Narain Singh and others v.
State of Haryana, 2008 AIR SCW 2641, the apex court held as under:
” The number of injuries is not always a safe criterion for
determining who the aggressor was. It cannot be stated as a
universal rule that whenever the injuries are on the body of the
accused persons, a presumption must necessarily be raised that
the accused persons had caused injuries in exercise of the right of
private defence. The defence has to further establish that the
injuries so caused on the accused probabilise the version of the
right of private defence. Non-explanation of the injuries
sustained by the accused at about the time of occurrence or in the
course of altercation is a very important circumstance. But mere
non-explanation of the injuries by the prosecution may not affect
the prosecution case in all cases. This principle applies to cases
where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent and credit-
worthy, that it far outweighs the effect of the omission on the part
of the prosecution to explain the injuries. [See Lakshmi Singh v.
State of Bihar (AIR 1976 SC 2263)]. A plea of right of private
defence cannot be based on surmises and speculation. While
considering whether the right of private defence is available to an
accused, it is not relevant whether he may have a chance to inflict
severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an accused,
the entire incident must be examined with care and viewed in its
proper setting. Section 97 deals with the subject matter of right of
private defence. The plea of right comprises the body or property
13
(i) of the person exercising the right; or (ii) of any other person;
and the right may be exercised in the case of any offence against
the body, and in the case of offences of theft, robbery, mischief or
criminal trespass, and attempts at such offences in relation to
property. Section 99 lays down the limits of the right of private
defence. Sections 96 and 98 give a right of private defence against
certain offences and acts. The right given under Sections 96 to 98
and 100 to 106 is controlled by Section 99. To claim a right of
private defence extending to voluntary causing of death, the
accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or
grievous hurt would be caused to him. The burden is on the
accused to show that he had a right of private defence which
extended to causing of death. Sections 100 and 101, IPC define
the limit and extent of right of private defence.”
In the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4
SCC 54, the apex Court held as under:
” Furthermore, whereas prosecution must prove the guilt
of an accused beyond all reasonable doubt, the standard of proof
so as to prove a defence on the part of an accused is
“preponderance of probabilities”. Inference of preponderance of
probabilities can be drawn not only from the materials brought on
records by the parties but also by reference to the circumstances
upon which he relies.
A statutory presumption has an evidentiary value. The
question as to whether the presumption whether stood rebutted or
not, must, therefore, be determined keeping in view the other
evidence on record. For the said purpose, stepping into the
witness box by the appellant is not imperative. In a case of this
nature, where the chances of false implication cannot be ruled
out, the background fact and the conduct of the parties together
with their legal requirements are required to be taken into
consideration.”
From the proposition and discussion of the law as propounded by the apex
court herein-above, it is evident that the accused were not required to lead
evidence specifically in support of their case, but in fact they were required to
and were entitled to take such plea from the evidence of the prosecution and
cross-examination. The accused persons have discharged their burden by proving
the injury reports and the F.I.R., which were taken on record as Ext.Ka-1 and
Ext.Ka-2 and Ext.Ka-3 and Smt. Sarla Mishra, A.N.M., who was posted at the
relevant time with Dr. R.K. Gupta gave evidence to the effect that she knows the
signature of Dr. R.K. Gupta and she has seen him while singing. Apart from it,
she has not certified the contents, but D.W.-2, Mahendra Kumar Tripathi,
Pharmacist, came along with the register and specifically stated that the carbon
copy is the true copy of the entry made in the original register and so he proved
14
the contents, so it cannot be said that the documents were not proved.
The question to be taken into consideration is that as to what extent the
prosecution has come out with correct facts and proved their case and whether
they have suppressed something from the Court while making statement and
accusing the appellants or whether they have come out with clean hands and
proved the version of the prosecution. The evidence on record goes to indicate
that P.W.-1 and P.W.-2 including P.W.-3 have specifically stated in their statement
that accused did not receive any injuries, but the injury reports, which were
placed on record and got proved by secondary evidence certainly proved that the
prosecution has not come out with true version and the accused persons did
receive injuries and the same could not be explained by the prosecution, so the
prosecution case has become doubtful in absence of explanation of injuries of
appellant/accused.
The question as to whether the injuries sustained by the accused persons
have been proved and the statements of D.W.-1 and D.W.-2 can be accepted
under law, needs no further argument in view of the law laid down by the apex
court in the case of Prithi Chand vs. State of Himachal Pradesh, AIR 1989 SC
702: 1989 Cr. L.J. 841. In para 4 of the aforesaid decision the apex court held as
under:
” The prosecutrix was examined by Dr. C.S. Vedwa, who
had issued the Medical Certificate, Ex. P-E dated 16th June,
1979. The Medical Certificate shows that the prosecutrix had not
developed secondary sex characters, auxiliary and pubic hair
were absent and there were abrasions of 3′ x 1/8′ and 2′ x 1/8′ on
the lumber region. She also found signs of inflamation around
the vulva; the vagina was bleeding, the hymen was absent with
the edges torn and there was tenderness all around. The hymen
was bleeding on touch and the vagina admitted one finger with
difficulty. The girl’s Salwar was blood stained. It was taken in a
sealed packet along with two slides and swabs. Unfortunately,
this lady Doctor who had delivered a child was not available for
giving evidence as she had proceeded on long leave. The learned
Sessions Judge felt that it would not be possible to secure her
presence without undue delay, and therefore, permitted the
prosecution to prove the certificate through PW-2 Dr. Kapila, who
was conversant with her hand-writing and signature, he having
worked with her for about two years. He stated that the carbon
copy of the certificate Ex P-E was prepared by Dr. Vedwa by one
process and bears her signature. The learned counsel for the
appellant contended that this certificate was inadmissible in
evidence since the prosecution has failed to prove that the
original certificate was lost and not available. Section 32 of the
Evidence Act provides that when a statement, written or verbal,
is made by a person in the discharge of professional duty whose
attendance cannot be procured without an amount of delay, the
15same is relevant and admissible in evidence. Besides, since one
carbon copy was made by one uniform process the same was
primary evidence within the meaning of explanation 2 to Section
62 of the Evidence Act. Therefore the medical certificate Ex. P-E
was clearly admissible in evidence. That apart, there is strong,
reliable and dependable evidence of the prosecution witnesses
which clearly proves that the prosecutrix was raped by the
appellant.”
Similar question arose in the case of M/s Hindustan Construction Co.
Ltd. vs. The Union of India, AIR 1967 SC 526, in regard to veracity of the
award, which was signed by the Arbitrator and the non-certification by the
umpire to the effect that certified copy is the true copy and the missing words
“certified to be true copy” above the signature of the Arbitrator were not found
material and it was held that under law the same has to be accepted as true
award. The apex court while dealing with the question of proving the documents
by secondary evidence came to the conclusion that it can be proved by accurate
or true and full reproduction of the original. In paras 5 and 6 of the aforesaid
judgment, the apex court held as under:
” (5) Now the word “copy” as such is not defined in the
Indian Evidence Act, 1 of 1872. But we get an idea of what a copy
is from the provisions of Section 63 of the Evidence Act. That
section inter alia defines what secondary evidence means and
includes, namely – (I) certified copies as provided in Section 76 of
Evidence Act, (ii) copies made from the original by mechanical
processes which in themselves insure the accuracy of the copy,
and copies compared with such copies and (iii) copies made from
or compared with the original. Obviously, therefore, a copy means
a document prepared from the original which is an accurate or
true copy of the original. In Webster’s New World Dictionary, the
word “copy” means “a thing made just like another; full
reproduction or transcription”. What the word “copy” in Section
14 (2), therefore, requires is that it must be a full reproduction of
the original and that it should be accurate or true. When a
document is an accurate or true and full reproduction of the
original it would be a copy. In the present case it is not in dispute
that what was produced by Sri Dildar Hussain was a true or
accurate and full reproduction of the original. It was, therefore, a
copy of the original, and the only question that remains is
whether it was signed, for if it was singed, it would be a singed
copy.
(6) This brings us to the meaning of the word “sign” as
used in the expression “signed copy”. In Webster’s New World
Dictionary the word “sign” means “to write one’s name on, as in
acknowledging authorship, authorizing action, etc.” To write
one’s name is signature. Section 3 (56) of the General Clauses Act
No.10 of 1897, has not defined the word “sing” but has extended
its meaning with reference to a person who is unable to write his
name to include “mark” with its grammatical variations and
16cognate expressions. This provision indicates that signing means
writing one’s name on some document or paper. In Mohesh Lal v.
Busunt Kumaree, (1881) ILR 6 Cal. 340, a question arose as to
what “signature” meant in connection with Section 20 of the
Limitation Act, No.IX of 1871. It was observed that “where a
party to a contract signs his name in any part of it in such a way
as to acknowledge that he is the party contracting, that is a
sufficient signature”. It was further observed that the document
must be signed in such a way as to make it appear that the person
signing it is the author of it, and if that appears it does not matter
what the form of the instrument is, or in what part of it the
signature occurs.”
The aforesaid two cases are sufficient to reject the argument of learned
A.G.A., who has submitted and argued that the injury reports could not have
been proved by secondary evidence and the Doctor ought to have been produced
and whatever steps were possible were taken by the appellants. The appellants
moved an application on 9.2.1995 for summoning the final report submitted by
the investigating Officer, which was not summoned in spite of the fact that an
order was passed on the same day for summoning the same. Thereafter, another
application was moved on 31.10.1995, wherein it was stated that in spite of
sincere efforts being made by the accused persons Dr. R.K. Gupta was not
traceable and neither his district was known and, therefore, they may be
permitted to prove the documents by secondary evidence by presenting Smt.
Sarla Misra, A.N.M. for which dasti summons were issued on the same day. The
accused persons also moved an application on 9.10.1995 for summoning Dr.
R.K. Gupta and the Record Keeper, Sadwa Chandrika P.H.C. On the said
application an order was passed that steps be taken. All these facts go to indicate
that whatever possible steps could be made by the accused persons were
undertaken to prove the cross version and they have succeeded to a large extent
to dispel the case of prosecution and to create doubt in the prosecution story
when there was a specific statement that no injury has been received by the
accused persons. On the basis of the law as propounded by the apex court, it is to
be presumed that the accused persons were able to prove the cross version by
filing photostat copies of the injury reports and the F.I.R., which were duly
proved by means of secondary evidence.
The next point, which falls for consideration, is that whether the injuries
as alleged by the prosecution could have been sustained by the injured when they
were being attacked from the back side. The injury no.1 sustained by
complainant, Tej Bahadur Singh is lacerated wound measuring 3 cm x 0.5 cm
bone deep over occipital region of head and 15 cm above C-7 cervical spine, but
17
there was no report of the radiologist that the injury is sufficient in the ordinary
course to cause death. The next injury was also a lacerated wound measuring 5
cm x 0.5 cm bone deep over occipital region of head and 2 cm medial to injury
no.1. Margins were irregular. The third injury was lacerated wound measuring
6.5 cm x 1 cm bone deep over left occipital region of head. 8 cm above left ear
and the other is abrasion. Injury no.1 was kept under observation, but no report
was there to prove that it is dangerous to life. The injuries sustained by other
injured, namely, Krishna Kumar Singh were lacerated wound measuring 1.5. cm
x 0.5 cm scalp deep over right parietal region of head, 6 cm above right ear and
the other was traumatic swelling. So, none of these injuries could have been
sustained by the injured persons in a sitting position while they were attacked
upon by the accused persons from the back side as alleged. If the complainant
party were siting on a cot and the accused persons came behind and started
assaulting the injured persons, then the injuries must in all circumstances are to
be received on the top of the head rather on occipital region or on the temporal
region. Once the injured stood up, then the injuries ought to have been received
by them on the lower back of the body.
The counter version set up by the accused persons by way of written
statement under Section 313 Cr.P.C. that while they were returning from
Sultanpur city towards their house they were attacked upon by Shiv Nayak Singh
S/o Chhotai Singh, Tej Bahadur Singh, Dal Bahadur Singh sons of Shiv Nayak
Singh, Ajeet Kumar and Pappu @ Krishna Kumar sons of Tej Bahadur Singh
with Lathi. Thereafter, Tej Bahadur Singh fired with his Katta upon Indra
Bahadur Singh, which missed and thereupon Indra Bahadur Singh throw him to
the ground. Thereafter all the persons attacked upon the appellants with Lathis
and they received injuries in self-defence. Indra Bahadur Singh and his brother
Samar Bahar Singh also used Lathis on account of which complainant and others
received injuries. Hence, the story set up by the appellants appears to be more
real story than the story set by the complainant party. But the trial court has
erroneously ignored the injury reports, which were proved by secondary
evidence and has also disbelieved the counter version set up by the accused
persons. The appellants have given proper explanation of the injuries received
by the prosecution witnesses, but the prosecution has totally denied the injuries
being sustained by the accused persons, then in such circumstances the version,
which gives a more real picture and explains the injuries sustained by both the
sides is to believed upon in stead of throwing the said case to the ground. The
18
appellants, therefore, cannot be said to have assaulted the complainant and his
son as alleged by them as the injuries sustained by them do not correspond to the
manner of assault.
The prosecution was having strong motive to attack the appellants, who
were facing trial under Section 302 I.P.C. Had there been intention to kill the
complainant and his son, then the appellants would have not attacked with Lathi,
but rather they would use fire arms or deadly weapons, which also throws some
doubt upon the prosecution case. The appellants have contested the case up till
Commissioner’s court. It may be that the appellants have been convicted under
Section 302 I.P.C., but in the present case it has to be seen as to what is the
evidence available with the prosecution to prove the case beyond reasonable
doubt and to the hilt to convict the appellants. The propositions of law laid down
in Laxmi Singh’s case (supra) and the other cases apply with full force in the
present case and, therefore, the appellants are entitled for benefit of doubt as they
have been able to prove the case beyond reasonable doubt.
The case laws relied upon by the learned A.G.A. on the cases of Surendra
Paswan vs. State of Jharkhand, AIR 2004 SC 742, The State of Gujarat vs. Bai
Fatima and another, AIR 1975 SC 1478 and Rizan and another vs. State of
Chhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, AIR
2003 SC 976, do not apply in the facts of the present case and they have been
rendered in different context.
In the case of Bai Fatima (supra) their Lordships took the view that the
right of private defence was not available to the accused on the ground that they
have not taken the plea of private defence in their statement under Section 342
Cr.P.C. nor did they raise any basis for the said plea in the cross-examination or
by adducing any defence evidence and in those circumstances the right of private
defence was denied to the accused. The prosecution case was also taken to be of
such a nature that the right of private defence was not spelt out.
In the case of Rizan and another (supra) the proposition to the effect that
minor and superficial injuries in contrast to the clear and cogent evidence are to
be excluded, does not come to the rescue of the prosecution in this case as a
specific plea has been taken and in para 13 of the aforesaid case it has been held
that burden of establishing the plea of self-defence is of the accused and the
burden stand discharged by showing preponderance of probabilities in favour of
that plea on the basis of the material on record and the accused persons are not
required to lead evidence and they can show such a plea by preponderance of
19
probabilities.
In the case of Surendra Paswan (supra) the same principle has been
reiterated and it has been laid down that where the accused sustained minor and
superficial injuries against the clear and cogent evidence, the same has to be
ignored, but the said proposition does not apply in the present case as the injuries
were neither minor nor superficial in nature.
The minor injuries as alleged by the learned A.G.A. cannot be accepted as
in the present case both the sides have received lacerated wounds. So one
attacked the other with the same force and magnitude, it cannot be said that
injuries were superficial in nature. The statement recorded under Section 313
Cr.P.C. goes to indicate that Indra Bahadur Singh fell unconscious and the
condition of his brother, Samar Bahadur Singh was also serious and so they were
immediately rushed to the nearest Primary Health Centre, Sadwa Chandrika
where their medical examination was conducted and they admitted by the doctor.
The next day father of the appellants attended a civil case in the court and
thereafter lodged the report. This statement goes to indicate that the injuries were
not superficial in nature, but rather they were serous to certain extent and that is
why they were admitted by the doctor.
Considering the entire facts and circumstances of the case, it is apparent
that the prosecution has failed to establish the injuries sustained by the appellants
and the trial court has erred in convicting the appellants. Taking clue from Laxmi
Singh’s case (supra), this Court has no option except to hold that appellants are
entitled for benefit of doubt and are liable to be acquitted.
In the result, the appeal is allowed. The judgment and conviction dated
8.2.1996 passed by the learned IVth Additional Sessions Judge, Sultanpur is
hereby set aside and the appellants are held not guilty of the offence under
Sections 307/34 and 323/34 I.P.C. and they are acquitted of the same. The
appellants are on bail. Their bail bonds and sureties are discharged for which
they need not surrender unless wanted in any other case.
January 18th , 2010
Rao/-