1975 Supreme(SC) 341

SUPREME COURT OF INDIA
M.H. BEG, P.N. BHAGWATI AND R.S. SARKARIA, JJ.
Partap, Appellant
Versus
The State of U.P., Respondent.
Criminal Appeal No. 120 of 1971
Decided on 10-9-1975.
Advocates appeared
Mr. A. N. Mulla, Sr. Advocate, (Mr. O. N. Mohindroo, Advocate with him), for Appellant; Mr. D. P. Uniyal, Sr. Advocate, (Mr. O. P. Rana, Advocate with him), for Respondent.

Headnote:Evidence Act (1872) Section 105–Burden of proof–Requirements of–Accused pleading right of private defence–Prosecution not proving its case beyond reasonable doubt–Accused is entitled to the benefit of the section on his showing mere probability of the defence version even if not acceptable.

       Per Bhagwati & Sarkaria JJ.

       The findings of the courts below in regard to self defence is clearly erroneous and have over looked the distinction between the nature of burden that rests on an accused under section 105 Evidence Act to establish a plea of self defence and the one cast on the prosecution by section 101 to prove its case. It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.

       (Para 14)

       Per Beg, J.

       Provision of section 105 of the Evidence Act, contain what are really two kinds of burden on the accused who sets up an exception : firstly, there is the onus laid down of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or with any such special exception or proviso contained in any other part of the same Code or in any law defining the "offence" and secondly, there is the burden introducing or showing evidence which results from the last part of the provision which says that "the Court shall presume the absence of such circumstance." The effect of this obligatory presumption at the end of section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self–defence as an exception to the criminal liability which would be otherwise there. But, when both sides have led evidence of their respective versions, whether tendered by prosecution or the defence, that mandatory presumption is removed.

       (Para 33)

       Held further, that applying the principle of benefit of doubt to the plea of private defence of the person, even if the appellant did not fully established his plea, there is sufficient evidence, both direct and circumstantial and to justify that the prosecution has not established its case beyond reasonable doubt. After examining ail the facts and circumstances revealed by the prosecution evidence itself and considering the non production of the better evidence available which, for some unexplainable reason, was not produced the plea of private defence of person can be reasonably ruled out here. This is enough to entitle the appellant to get benefit of doubt.

       (Para 35)

       Penal Code (1860), Section 97–Right of private defence–Mere probability of the danger is sufficient to invoke the right of private defence.

       Per Bhagwati & Sarkaria, JJ.

       Held, that in view of the facts and circumstances of the case the appellant has succeeded in establishing by a preponderance of probability that the deceased was within a striking distance, when the latter fired the fatal gunshot. In such a situation, the appellant had reasonable and immediate apprehension that he would suffer death or grievous hurt if he did not fire at the deceased. Thus the death was, in all probability, caused by the appellant in the exercise of his right of private defence.

       (Para 22)

       Per Beg, J.

       The word "aggression" is generally used for an actual invasion of the property of another or an attack on the body of another. It is true that it is not necessary that an actual attack should commence before a right of private defence can arise. Nevertheless, a reasonable apprehension of injury could not be said to arise by a mere prohibition to dig up a "nail" or drain. It would arise if a man is advancing aggressively towards others holding out threats to break their heads even if he is armed with a lathi with which he would carry out such a declared intention, the extent of the right or its reasonable exercise.

       (Para 37)