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SUPREME COURT OF INDIA
S.R. PANDIAN, M. FATHIMA-BEEVI AND K. JAYACHANDRA REDDY, JJ.
Vijayee Singh and others, Appellants
Versus
State of U.P., Respondent
Criminal Appeals Nos. 375-77 of 1987 (With Cri. Appeals Nos. 372-74 of 1987), D/- 20-4-1990.
Held, Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved".
The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Coon shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly, proving the existence of such circumstances, thereby he is Able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused. (Paras 16 & 17)
(ii) Evidence Act, 1872 - Section 105 -Scope of - Criminal Jurisprudence - The prosecution has discharged its burden - The accused pleads exception - If there is some evidence to support that plea the obligatory presumption u/s. 105 is lifted - The accused may establish his plea by preponderance of probabilities or he may succeed in creating a reasonable doubt about an ingredient of an offence - In respect of the general exceptions, special exceptions, provisos contained in the Penal Code, the accused by one of these processes would be discharging the burden contemplated u/s 105 - However, in cases of the exceptions covered by a specialties and where burden of proof is placed on the accused to establish his plea - These principles cannot be made applicable to a case where the accused sets up alibi.
Held: 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 matedal if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the, burden under Sec. 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly. (Para 27)
(iii) Evidence Act, 1872 - Section 105 - Indian Penal Code, 1860 - Section 302 r/ws 149 - Conviction under - Appeal- Eye witnesses being interested witnesses - However, their evidence is clear, cogent and convincing - Two accused persons received the injuries during the course of the occurrence – Non-explanation of these injuries by the prosecution - Plea of right of private defence - The accused also adduced defence evidence in support of their plea - Their plea appears to be reasonably true - However, they had definitely exceeded the right by inflicting bullet injuries - The obligatory initial presumption against them is removed - The offence committed by them would be one punishable u/s. 304 Part I of the Code.
Held: 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" x 2" 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, convincing and acceptable but from the circumstances these two accused particularly one of them had received gun-shot injuries during the course of the same occurrence is established. The accused have also adduced defence, 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 I.P.C. but creates a reason-able 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. (Para 28)
Further Held: In the case before us as per the evidence of the material witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath. Even in the plea set up by Chirkut Singh, Accused No. 6, it is not stated specifically that deceased Nos. 1 and 2 were armed with any deadly weapons. Therefore, the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries. Therefore, the offence committed by them would be one punishable under Section 304 Part I I.P.C. (Para 31)
(iv) Indian Penal Code, 1860 – Sections 96, 99 & 102 - Plea of self-Defence of person - The two deceased were only proceeding alongwith the rasta towards the pump set for taking bath - Deceased were not armed with deadly weapons - Assailants had definitely exceeded the right of private defence. When they went to the extent of intentionally shooting them to death by inflicting bullet injuries (Para 31)
Key Points: - The prosecution always bears the burden of proving guilt beyond reasonable doubt, and this burden does not shift (!) (!) . - Section 105 places a burden on the accused to prove the existence of circumstances bringing the case within an exception, but failure does not automatically defeat the prosecution case (!) (!) . - The presumption under Section 105 is rebuttable and can be displaced by evidence or circumstances creating reasonable doubt (!) (!) . - A plea of private defence may be supported by probabilities or circumstances, and if it raises a reasonable doubt, the accused is entitled to acquittal (!) (!) . - The accused must establish their plea on a preponderance of probabilities, but this is a lower burden than proving beyond reasonable doubt (!) (!) . - Non-explanation of injuries by the prosecution does not automatically invalidate the case, but it may raise a reasonable doubt about the version of events (!) (!) . - The right of private defence extends to causing death if there is a reasonable apprehension of grievous hurt, but the extent of force must be proportionate to the circumstances (!) (!) . - The court examines whether the accused exceeded the right of private defence based on facts and circumstances (!) (!) . - A reasonable doubt must be real and based on a prudent assessment of the evidence, not mere speculation (!) (!) . - Principles regarding presumptions and burdens under Section 105 are stated broadly, but specific statutory exceptions may impose higher burdens on the accused (!) (!) .
Judgment
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 received injuries. In respect of these offences 14 accused were tried under Sections 148 and 302 read with Section 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. 1 and 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 material prosecution witnesses, deceased persons and the accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the Courts. On the day of occurrence at 8 a.m. P.W. 1 went 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 were proceeding along with the rasta towards the pumping set for taking bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who Were all lying in wait to kill them. All the 14 accused emerged out of the Khandar. Out of them accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial Court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile accused No. 4 Ram Briksh Singh fired at deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other accused carrying lathis advanced towards 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 Kailash Singh. P.W. 1 managed to escape and ran away.
2. The trial Court relying on the evidence of P.Ws. 1 and 2, who are the main eye-witnesses, convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302, I. P.C. read with Section 149, 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 the trial Court. The matter came up before a third Judge Seth, J. He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt. In that view of the matter he confirmed the conviction 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 Appeals Nos. 375-77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeals Nos. 372-74/87.
3. It is contended on behalf of the State that the occurrence has 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
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