VIJAYEE SINGH AND ORS. v. STATE OF UTTAR PRADESH

Citation: [1990] 2 S.C.R. 573

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, M. FATHIMA BEEVI, K. JAYACHANDRA REDDY

Case summary

That the two deceased persons died of gun-shots injuries also is not in dispute. 1and 2, who are ~-- the main eye witnesses, convicted all the 14 accused of the offences.

Judgment text

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. On 29. 5. 1981 at about 8 A. M. a grave rioting took place in the village of Tirro in Varanasi District. In -"' the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P. W. 1, Uma Shankar Singh, P. W. 2 and one Kailash Singh VIJAYEE SINGH v. STATE OF U. P. [REDDY, J. ] 577 received injuries. In respect of these offences 14 accused were tried under Sections 148 and 302 read with Sec. 149 I. P. C. Chirkut Singh, Accused No. 6 was tried for offence punishable under Section 307 ~- I. P. C. for attempting to commit the murder of P. W. 1and the remaining accused under Section 307 read with Sec. 149 I. P. C. for causing injuries to Uma Shankar Singh, P. W. 2 and Kailash Singh. It is alleged that the rraterial prosecution witnesses, deceased persons and the accused belong to the same village.

Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the courts. On the day of occurrence at 8 A. M. P. W. 1went T to his pumping set. P. W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 -f were proceeding alongwith the rasta towards the pumping set for taking bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 LaUan Singh exhorted the other accused who were all lying . in wait to kill them. All the 14. accused ·~ emerged out of the Khandar. Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile Accused No.

4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other ~·· . accused carrying lathis advanced towards P. W. 1 who ducked and escaped unhurt. Then the lathis-wielding accused assaulted P. W. 1 Vijay Narain Singh, P. W. 2 Uma Shankar Singh and Kail. ash Singh. P. W. 1 managed to escape and ran away. ~. The trial court relying on the evidence of P. Ws. 1and 2, who are ~-- the main eye witnesses, convicted all the 14 accused of the offences. for which they were charged and the substantial sentence awarded is ' imprisonment for life under Section 302 I. P. C. read with Section 149 I- I. P. C. The convicted accused preferred appeals. The State also filed appeal for . enhancement of the sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals.

Justice Katju allowed the appeals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dismissed all the appeals concurring with I the trial court. The matter came up before a third Judge Seth, J. He ~:;>.. _~ took the view that only such of those accused to whom specific overt acts were attributed could be covicted and the other should be given benefit of doubt. In. that yiew of the matter he confirmed the convic- 1. tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the accused. Accused Nos. 1, 3, 4 and 6 applied for special leave which was -------granted by this Court and their appeals are numbered as Criminal Appeal Nos. 375-77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos. 372-74/87.

It is contended on behalf of the State that the occurrenc;; ha;; taken place in broad-day light and merely because the witnesses are ·}· interested their evidence cannot be rejected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted. On the other hand, the counsel ,appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated.

It is also their "further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that nnder these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted. Before we consider these rival contentions some of the facts which are not indispute may be noted. There was a longstanding rivalary between the two groups. The time and place of occurrence are not in controversy. That the two deceased persons died of gun-shots injuries also is not in dispute. P. Ws. 1 and 2 also received injuries during the course of this occurrence. The prosecution in support of its case examined P. Ws 1 to 11. P. W. 7 the Doctor examined P. W. 2 at about 11. 40 A. M.

on the same day and·found 10 injuries. All of them were contusions and he opined that they might have been caused by a blunt object like lathi. On the same day, he examined P. W. 1 and on his person he found four contusions which could have been caused by Lathis. The Doctor also examined Kailash Singh, who was not examined as a witness. and found two contusions. P. W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun-shots ~~wounds on the cranial cavity. Injury No. 1 is an entry wound and injury No. 2 is an exist wound. Then he conducted the autopsy on the dead body of deceased No. 1. He found two injuries, the first one is on VIJAYEE SINGH v. ,STATE OF U. P. (REDDY, J. ] 579 the left nipple which is an entry wound and injury No. 2 is on the left palm. On internal examination he found a bullet embedded and the same was recovered. P. W. 5 is the Investigating Officer.

After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead-bodies and recorded the statement of the witnesses. He also found two live cartridges one of 16 bore and another of 12 bore. P. W. 3 is another eye-witness. He deposed that Accused Nos. 1, 3, 4 and 6 were armed with-guns and the other were armed with lathis. Accused No. 1fired at the deceased No. 1 and Accused No. 3 also fired at him as a result of which he fell down and when deceased No. 2 tried to move, Accused No. 4 shot at him and deceased No. 2 also fell down. When P. Ws 1, 2 and Kailash Singh rushed towards the place, accused No. 6 fired at P. W. 1 but he escaped. Then the lathi-wielding persons beat P. Ws 1 and 2 and Kailash Singh. To the same effect is the evidence of P. Ws 1and2 also. Under Section 313 Cr. P. C. all the circumst. ances appearing against the accused were put to them. They in general denied the offence.

However, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their presence at the scene of occurrence. Accused No. 6 in particular stated that P. W. 1 and others armed with guns, spears and lathis tried to' do fishing in the pond in which accused No. 6 had a share. Accused No. 6 and others went to the pond for fishing. P. W. 1 and other challenged and they chased accused No. 6 and others and accused No. 13 was shot at by P. W. 1 and others and he and accused No. 14 were beaten with lathis and in defence he fired two gun shots hitting deceased Nos. 1and 2. He then went to the police station and lodged a report and deposited his gun and that P. W. 1 h. as falsely implicated him. As regards this report which is purported to have been given by accused No. 6, P. W. 5 the Investigating Officer was questioned. He admitted that when he returned to the Police Station on 30th May, 1980 he came to know that accused No. 6 has surrendered his gun.

He also admitted in the crossexamination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken. Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them. The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No. 13. It may be noted that the same has not been explained by the prosecution. P. W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skindeep 12" x 2" lacerated wound on the left thigh and a wound certificate was issued. He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was refer- red to the radiologist. P. W. 7, however, stated that he has not seen the report of the radiologist. The defence examined Dr. S. K. Singh as -·~ D. W. 1.

He deposed that he took the X-ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit. He further deposed that the shadows in the X-ray go to show that there were 10 radio opaque round shadows and these shadows may very well correspond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone. His examination further showed that the pallets remained embedded in the thigh. Before the trial court as well as before the High Court, firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore, their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused acted in right of self-defence. Relying on the presence of gun-shots injuries on accused No.

13 it was strongly contended that the prosecution party have also used fire-arms and, therefore, the accused were entitled to the right of private defence. The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not su(fer from any serious infirmity. So far as the plea ofself-defence is concerned, the trial court held that the plea taken by accused No. 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on. As regards the presence of injuries on the accused persons, learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos. 13 and 14 took the view that they are simple and that it is not proved that these injuries were received during the occurrence. Regarding the presence of the alleged gun-shots injuries on accused No.

13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time ·when this incident took place. In the appeal before the High Court, Justice Katju took the view that the theory that the injuries on accused Nos. 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No. 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No. 2 was fired by a 16-Bore gun and that as admitted by the Investigating Officer, 0 P. W. 5, it was accused No. 6 only in that area who had a licence for 16-Bore gun which was deposited by him in the police station after the occurrence. Coming to the injuries found on accused Nos. 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye-witnesses have not furnished any explanation regarding those in. juries and that these VIJAYEE SINGH v. STATE OF U. P. '[REDDY, J.

l 581 witnesses have falsely implicated some of the accused due to enmity and, therefore, their evidence cannot be relied upon and accordingly ~- ordered total acquittal. As already mentioned Justice Agrawal, on the other hand, agreed with the trial court completely. Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed. Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No. 14 was , simple one and he could have received that even subsequent to the -f occurrence. With regard to the gun-shots injuries found on accused ' No. 13 Mahendra Kahar, the learned Judge himself examined accused No. 13 who was present in the Court when the appeal was being heard ~ and found that hard substance were palpable underneath the flesh ~ round about the location of his injury. In the circumstances it',does.

appear that fire-arm shots to exist underneath the location of injury ~- found on the person of accused Mahendra Kahar. But he ultimately held that in all probability the pallets found in the leg of accused No. 13 Mahendra Kahar must have been there long before the incident, as · in the view of the learned Judge it was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions. Seth, J. accordingly rejected the plea of selfdefence. Before we advert to the above contentions it becomes necessary -. ,;. to consider whether the accused No. 13 Mahendra Kahar and accused No. 14 Sant Singh received the injuries during the course of occurrence. P. W. 7 the Doctor examined accused No. 13 Mahendra Kahar on 30. 5. 1980 at about 6 A. M. and he found the following injuries. - 1. Five tiny abrasions in the area of 4cm x 4cm on outer surface / of right thigh just above knee joint. -- ~ 2.

The injured complained of pain in the right thumb and left ' forearm. In respect of injuty No. l.. the Doctor advised X-ray with a view to ascertain whether or not there were pallets; and pending the same he reserved his opinion. P. W. 7 also opined that injuries appeared to have been caused within 24 hours preceding the medical examination -~~ which correspond to the time of occurrence, namely, 8 A. M. on 29. 5. 1980. P. W. 7, however, stated that the X-ray report was not Shown to him. The evidence of P. W. 7 makes it clear that accused No. 1:. 'I Mahendra Kahar r. accused, two results follow: (! ) that the evidence of the prosecution witnesses is untrue; and that the injuries probabilise the plea taken by the appellants. I It was further observed that: -.. :...... "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occur- 584 -- would amount to throwing the burden on the prosecution not only to est!!

blish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otios~ 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 -~ I but the burden of proving the circumstances attracting the exception lies on the accused. But the failure on the part of the1 acetlsed· 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 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 doeumentary evidence, presumptions, admissions or even the prosecution evidence ··-...

, and the material so placed may not lle 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. Y- However, in Behram Khurshed Pesikaka v. The State of Bombay, [1955) 1 SCR 613 there is a specific reference to Parbhoo's case and Woolmington's case while considering the scope and the manner of the expression 'burden of proof', in the judgment of Hon' Venkatarama Ayyar, J.

But the learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High Court in Government of Bombay v. Sakur, AIR 1947 Bombay 38 has taken a different view. . . In State of U. P. v. Ram Swarup, AIR 1974 SC 1570 a Bench consisting of M. H. Beg, J. , as he then was, Y. V. Chandrachud and V. R. Krishna Iyer, JJ. , while considering the right of private defence put forward by the accused to some extent went into the question of burden of proof under Section 105 and a reference is made to a decision of the larger Bench in Rishi Kesh Singh's case. Chandrachud, J. who spoke for the Bench, observed thus: "The judgment in Rishikesh Singh v. State, AIR 1970 All 51 explains the true nature and effect of the different types , VIJAYEE SINGH v. STATE OF U. P. (REDDY, J. J 595 of presumptions arising under Section 105 of the Evidence Act. As stated in that judgment, while the initial presumption regardi.

,-ig the absence of circumstances bringing the case within an exception may be met by showing the existence of appropriate facts, the burden to establish a plea of private defence by a balance of probabilities is more difficult burden to discharge. The judgment points out that despite this position there may be cases where, though the plea of private defence is not established by an accused on a balance of probabilities, yet the totality of facts and circumstances may still throw a reas rove . , every fact necessary to substantiate his charge against a -Y prisoner, and that the law will presume innocence in the absence ·ofconvincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, • to convict, he must necessarily have recourse to negative evidence.

Thus, if a statute, in the direct description of an ~-offence, and not by way of proviso (a), contain negative matter, the indictment or information must also contain a ' negative allegation, which must in general be supported by -"prime facie evidence. " Dealing with the presumptions, the author says: ''The proper direction as to onus of proof where prima fai:ie evidence has been given on the part o. f the prosecution ' which, if· unanswered, would raise a presumption upon -~ which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presumption, is that if they accepted the explanation given by and on behalf of the prisoner, or if that explanation raised1n their minds a reasonable doubt as to his guilt, they should acquit him, as the onus of proof that he was guilty . --still lay upon the prosecution.

If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them. " It is held in Nanavati's case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i. e. the Court shall regard the non-existence of such circumstances as proved till they are disproved, but this presump- . tion can be rebutted by the accused by introducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused.

Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed: "An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn· under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned ins.

80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertance, i. e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300 Indian Penal Code. or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to bring his case VIJAYEE SINGH v. STATE OF U. P. (REDDY, J. ] 601 i within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of th~ offence have not been established or that the prosecution has not made out the case against the accused.

In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of tl). eingredients of the offence. " In Dahyabhai's case as already noted, the relevant portion reads thus: "The evidence so placed may not be sufficient to discharge the burden under s. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as. regards one or other of the necessary ingredients of the offence itself.

It may, for instance, raise a reasonable doubt in the · mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Penal Code. " The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places 'burden of proof' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises.

But where the accused introduces material to displace the presumption Which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are cir~umstances on the record (gathered from the prosecution evidence, chief and cross. examinations, pro- . babilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a --reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea.

If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal. From what has been discussed above it emerges that tl)e presumption regarding the absence of existence. of circumstances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused o should get the benefit of the same.

Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right ot private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section i05 of the Evidence Act should necessarily go to the accused. It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.

The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assump- VIJAYEE SINGH v. STATE OF U. P. [REDDY, l. ] 603 tion of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to -circumstances or condition of probability or improbability.

It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i. e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds.

The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to "separate the chaff from the grain". It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case 11ppearing from the evidence, It is not a doubt which occurs to a wavering mind. Lord Denning, J. in Miller v. Minister of Pensions, l1947] 2 All ER 373 white examining the degree of proof required in criminal cases stated: "That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice, If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "ofcourse, it is possible but not in the least probable", the case is proved beyond reasonable doubt. " Regarding the ·concept of benefit of reasonable doubt Lord Du Paraq, J. in another context observed thus: • "All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable -incredulity. He is never required to close his mind to the truth. " Now, let us examine the types of cases to which these principles underlined under Section 105 call be applied and to what extent? The Section deals with the burden of proof in respect of the genera! excep- ·--.. ,..

tions, special exceptions and proviso contained ln the Penal Code or in any paTt of the same code, or in any law defining the offence. It is already noted that the doctrine of burden of proof has to be the ~ general law and the same remains always-upon the prosecution. However, in respect of the cases where the statute wholly places the burden ,... of proof on the accused himself, then the burden is more onerous on him. As already noted in Rishi Kesh Singh's case Mathur, J.

speaking ( for the majority, while affirming the view taken in Parbhoo's case observed that in a case where any such exception is pleaded and the evidence led in support of such plea, judged by the test of preponderance of probability, fails to displace the presumption arising from Section 105 of the Evidence Act; yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the '¥accused shall be entitled to the benefit of the reasonable doubt as to _,'•· his guilt. In C. S. D. Swamiv. The State, AIR 1960SC7thecharacterof a presumption of guilt under Section 5 of the Prevention of Corruption Act from proof .

of certain facts "unless the contrary is proved" was considered and it was held there that the exception laid down by statute was "a complete departure from the establish¢d principle of l the criminal jurisprudence that the burden always lies upon the pro- ~ secution to prove all the ingredients of the offence charged and that .... ;, the burden never shifts on to the accused to disprove his guilt. " V. D. Jhingan v. State of U. P. , AIR 1966 SC 1762 also is a case dealing with the presumption under Section 4 of the Prevention of Corruption Act under which the accused was under an obligation to disprove his guilt by adducing such evidence by which the preponderance of probabilities prove the defence case. An examination of these cases would reveal that the statutory _..... exception which modifies the operation of the general principle that the prosecution must prove all ingredients of the offence with which the accused is charged, to some extent stands on a different footing.

VIJAYEE SINGH v. STAIB OF U. P. [REDDY, J. ] 605 However, Beg, J. in his separate judgment, in Rishi Kesh Singh's case observed thus: -- "It covers every tilt or preponderance of the balance of probability whether slight or overwhelming. In fact, the dividing line between a case of mere "preponderance of probability" by a slight tilt only of the balance of probability and a case of reasonable doubt is very thin indeed although it is there. A case of reasonable doubt which must neces- -r sarily be one of which, on a balancing of probabilities, two views are possible. What may appear to one reasonable individual to be a case not fully proved may appear. to yanother to be so proved on a balancing of probabilities. Such a case and only such a case would, in my opinion, be one of reasonable doubt. A mere preponderance of proba- -·I bility in favour of the exception pleaded by an accused ·-,...

-would, however, constitute a "complete" proof of the exception for the accused but a state of reasonable doubt would not. " Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh v. State ofPun}ab, AIR 1966 SC 97. After citing Woolmington's case it is therein held that "The principle of common law is part of the criminal law of the country. That is not to -/ say that if an exception is pleaded by an accused person he is not required to. justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil -...

proceedings the· Court which tries an issue makes its decision by adopting the test of probabilities, so must a crintinal court, hold the plea '>- made by the accused proved, if a preponderance of probability is established by the evidence led by him. " It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a consideralion of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence. Therefore, in a case where the prosecution has discharged its burden and where the -).....

, accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the ~ccused may proceed further and establish his plea by a preponderance of probabilities or he may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. Consequently in respect of the general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by on<; of these processes would be discharging the burden contemplated under Section 105 but in cases of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt. At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi.

There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions. Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to ·.. establish the same satisfactorily. Likewise in the case where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for exampie, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge. However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act. We also make it clear that the principles laid down by us are only in respect of the said provision only.

As we think that it would be appropriate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows: The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support·of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances.

Then the initial presumption against the -accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The VIJAYEE SINGH v. STAIB OF U. P. (REDDY, J. ] 6rJ7 accused can also discharge the burden under Sec. 105 by prepon· derance of probabilities in favour of his plea. In case of general excep· . -- tions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly. In the instant case we are concerned with the exception of right of private defence.

In the instant case a plea of right of private defence is raised. As noted above one of the accused received a 12' x2' lacerated wound and other accused received gun-shot injuries. The plea that the non-explanation of these injuries by the prosecution warrants rejection of the prosecution case, is rejected as the evidence of the material witnesses even otherwise found to be cogent, convinc· ing and acceptable but from the circumstances these. two accused particularly one of them had received gun-shot injuries during the course of the same occurrence is established. The accused have also adduced defence evidence namely that of a Doctor in support of their plea. This material though by itself is not sufficient to establish the General Exception under Section 96 or the special exception No. 2 to Section 300 IPC but creates a reasonable doubt about the existence of such a right.

The accused have proved the infliction of injuries on them by the complainant party in the course of the occurrence. Therefore, the obligatory initial presumption against them is removed and their plea appears to be reasonably true and consequently they are entitled to the right of self-defence. The next question is whether they have exceeded this right. Learned counsel submits that the accused is not expected to modulate his right of self·defehce and that in the ·instant case it cannot with certainty be said that they have exceeded this right and therefore, they are entitled to an acquittal. In Amjad Khan v. The State, [1952] SCR 567, on the facts and circumstances of the case it was held that the accused was entitled to a right of private defence of the body even to the extent of causing death as there was no time to have recourse to the authorities and had reasonable grounds for apprehending that either death or grievous hurt wo°'ld· be caused either to himself or to his family.

These things couldnot be weighed in too fine a set of scales or "in golden scales. " In Puran Singh and Ors. v. State of Punjab, AIR 1975 SC 1674 it is observed that the right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. It is also observed that the question whether a person having a right of private defence has used more force than is necessary would \depend on the facts and circumstances of a particular case. ln the case before us as per the evidence of the material witnesses the two deceased were dnly proceeding nlongwith the rasta towards the pump set for taking bath. Even in the plea set up by Chirkut Singh, accus~d No.

6, it is not stii. ted specifically that deceased Nos. 1 and 2 were armed with any deadly weapons. Therefore, ·the assailants had definitely exceeded the right of private defence when they wentto the extent of intentionally shooting them to death by inflicting bullet injuries. Therefore, the offence committed by them would be one punishable under Section 304 Part 1I. P. C. We accordingly set as,ide the conviction of the appellantsaccused Nos. l. 3, 4 and ~. Vijayee Singh, Ranjit Singh, Ram Bnksh Singh and Chirkut Singh0respecti\\ely for an offtlnce punishable under Section 302/149 l. P. C. and the sentence of imprisonment for li{e awarded ther. ,under.. Instead they are convicted under Section ']04 Part I re. ad with Section ~4 LP. C. and sentenced each of·tfiem to underga Hi years imprisonment. The other sentences/convictions awarded to them are confint)ed. The sentences shall run concurrently. Criminal Appeal Nos.

375-77 ,of 1987 are allowed to this extent only and Criminal Appeal Nos. 372-74/87 are dismissed. R. N. J. Cr!. A. Nos. 375-77/87 are allowed and Cr!. A. Nos. 372-74/87 are dismissed.