AI Drafter 
TaxTMI 
TaxTMI 
1968 (10) TMI 112
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....inion, the statement of law in Parbhoo's case AIR1941All402 is not accurate, and needs qualification. Section 105, Indian Evidence Act, states: "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 of such circumstances." Mr. P.C. Chaturvedi, appearing for the appellants conceded that when an accused pleads an exception in the Indian Penal Code, the burden of proof lies upon him. Parties are not agreed as to the manner in which the burden may be discharged. One can conceive three different modes: (1) by proving the exception beyond all reasonable doubt; (2) by proof through preponderance of probabilities; and (3) by creating a reasonable doubt in the mind of the Court. According to the learned Advocate-General, the second mode is the correct solution. According to Mr. Chaturvedi, the third mode is the correct method. It is well settled that when burden of proof lies up....
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....case of sudden fight and conflict and has to be dealt with under Section 300, I. P.C., Exception 4." Chapter IV of the Indian Penal Code deals with general exceptions. The right of private defence has been mentioned in Section 96 under Chapter IV of the Indian Penal Code. Insanity has been mentioned in Section 84, I. P.C. Under the Indian Law, a plea of insanity and a plea of private defence stand on the same footing. Under the English law, a plea of insanity is treated on the same footing as a statutory exception. It appears that under the English law, a plea of private defence is not treated on the same footing as a plea of insanity or a statutory exception. That makes the task of an accused pleading private defence comparatively easy. If it is considered that the law in India should be brought in line with the English law. Section 96 can be deleted from the Indian Penal Code. 7. In State of Madras v. Vaidyanatha Iyer 1958CriLJ232 , the Court was dealing with a case under the Prevention of Corruption Act. The High Court of Madras observed in its judgment thus: "In any case, the evidence is not enough to show that the explanation offered by the accused cannot reason....
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.... of the offence." 10. In Bhikari v. State of U.P., 1966CriLJ63 , the Court quoted with approval the following passage from Dahyabhai v. State of Gujarat 1964CriLJ472 : "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions. (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime......the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.........." 11. In Harbhajan Singh v. State of Punjab, 1966CriLJ82 : "Where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged it....
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....nce of probabilities. 14. Mr. P.C. Chaturvedi contended that under Section 105, Indian Evidence Act, the position of the accused is the same as that of an accused in a prosecution under Section 411, I. P.C. read with Section 114. Indian Evidence Act. Reliance was placed on Otto George Gfeller v. The King AIR 1943 PC 211. In Dhanvantari v. State of Maharashtra, 1964CriLJ437 it was explained that the position of the accused under Section 105, Indian Evidence Act is not the same as that of an accused in a prosecution under Section 411, I.P.C. It was explained on pages 579 and 580:-- "That, however, was a case where the question before the jury was whether a presumption of the kind which in India may be raised under Section 114 of the Evidence Act could be raised from the fact of possession of goods recently stolen, that the possessor of the goods was either a thief or receiver of stolen property. In the case before us, however, the presumption arises not under Section 114 of the Evidence Act but under Section 4 (1) of the Prevention of Corruption Act. .................. The Court has no choice in the matter, once it is established that the accused person has received a sum....
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....ase the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.'' 17. In it was observed on page 3:-- "If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted." Mr. P.C. Chaturvedi contended that exceptions are ingredients of every offence. For this contention, he relied upon Section 6 of the Penal Code. Section 6, I. P.C. states:-- "Throughout this Code every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled 'General Exceptions.' though those exceptions are not repeated in such definition, penal provision or illustration." Section 6, I. P.C. is merely a device to avoid quoting lengthy exceptions in description of offences. Strictly speaking, an exception cannot be treated as an ingredient of an offence. ....
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....open to Parliament and State Legislatures to make the necessary amendments in the Indian Penal Code and the Indian Evidence Act. 21. In my opinion, the proposition of law laid down in AIR1941All402 has been too broadly stated and needs qualification. The true legal position is this. Whenever an accused person raises a plea based on some general exception, the burden of proof lies upon him under Section 105, Indian Evidence Act. That burden has to be discharged by preponderance of probabilities. So far as the accused is concerned, the standard of proof is the same as the standard of proof for a plaintiff or a defendant in civil proceedings. The accused cannot always secure an acquittal by merely creating a reasonable doubt in the mind of the Court as to whether the accused person is entitled to the benefit of the exception or not. If the nature of the case is such that a reasonable doubt arises as regards some ingredient of the offence, the accused is entitled to an acquittal. In other cases, a reasonable doubt as regards a certain exception will not entitle the accused to an acquittal. William Broome, Bhagwan Das Gupta & Chaturbhuj Das Parekh, JJ. 22. We are in general agr....
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....s separate judgment, has considered a case in which an accused who has caused grievous hurt to the complainant in a dispute over a field pleads that he was in possession of the field and that he acted in private defence of his property; and the evidence produced, though insufficient to prove the plea is enough to create a reasonable doubt as to which of the parties was actually in possession. In such a case, according to Oak C. J., the accused must be convicted. With this view, however, we most respectfully but emphatically disagree. If the Court were to find, in a case of that nature, that the evidence gave rise to a reasonable doubt as to whether the disputed field was in the possession of the-complainant or of the accused at the time of the incident, a simultaneous doubt would arise as to whether the accused had the necessary mens rea to make him guilty of the offence of grievous hurt; and in such circumstances the accused would in our opinion have to be acquitted on the ground that the prosecution had failed to prove beyond reasonable doubt an essential part of its case. 25. This, in our opinion, is precisely what the decision in AIR1941All402 was meant to convey. The judgme....
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....exception), a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception", they had in mind the doubt that may arise, on a consideration of the entire evidence (both prosecution and defence), with regard to the discharge of the primary burden resting on the prosecution to prove the guilt of the accused. That guilt can only be established if the prosecution is able to prove beyond reasonable doubt all the essentials that go to make up the offence, including the fundamental requirement of mens rea. As already pointed out, a doubt regarding the existence of mens rea must necessarily arise whenever there is a doubt in the mind of the Court as to whether the accused is entitled to the benefit of a general exception such as the right of private defence. Viewed in this light, the dictum of the Full Bench in Parbhoo's case is perfectly sound and requires no modification. 27. Our reply to the question that has been referred to the present Full Bench for decision, therefore, is in the affirmative. Gyan Chand Mathur, J. 28. The question referred to this Full Bench is as below:-- "Whether the ....
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....be said to be in issue pertaining to the scope and effect of Section 105 of the Evidence Act in criminal trials are concluded by the decisions of the Supreme Court, though in different circumstances-General Exceptions pleaded in those cases were under Sections 30 and 84, I. P.C., that is, accident and insanity. One case refers to the Exception to Section 499, I.P.C (Defamation). The other two cases relate to the statutory presumption under the Prevention of Corruption Act, 1947. The main point for consideration is whether the rule laid down in those Supreme Court decisions applies with equal force to all the General Exceptions and the special Exception or proviso contained in the Indian Penal Code. The case of Parbhoo and others AIR1941All402 related to the right of private defence (Section 96, I.P.C.,) and a similar plea was raised in defence in the instant case. We shall, therefore, confine ourselves chiefly to this General Exception though reference shall be made to other Exceptions, if necessary. An attempt shall be made to lay down the law which can be applied to all the cases in which the benefit of the General Exception or special Exception or proviso is claimed. 31. Wher....
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....ce to support his plea of accident in the circumstances mentioned therein. 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. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (See Sections 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Sections 77 78 79 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances requi....
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....ll 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 the ingredients of the offence." "As in England so in India, the prosecution must prove the quilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of Section 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to Section 80 of the Indian Penal Code, but Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rules of b....
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....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 reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity." "The doctrine of burden of proof in the conte....
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.... committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to acquittal. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act." 37. In 1966CriLJ82 only one point was considered in detail namely, the nature and the extent of evidence which would discharge the onus of proof placed on an accused person claiming the benefit of an Exception. Observations on the other point are in consonance with the earlier decision. The relevant observations made on the point are as below:-- "There is consensus of judicial opinion in favour of the view tha....
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....n R. v. Clark (1921) 61 SCR 608, which had been approved by Lord Hailsham in Sodeman v. R. 1936 2 AER 1138, and making a reference to the law laid down in R. v. Carr-Braint 1943 2 AER 156, it was observed as below:-- "What the Court of Criminal Appeal held about the appellant in the said case before it, is substantially true about the appellant before us. If it can be shown that the appellant has led evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his case, he will be entitled to claim the benefit of Exception Nine. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him." 39. Similar observations, though in brief, were made in AIR 1968 SC 702, which are as below:-- "The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabiliti....
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....able doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings, the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him." 41. In criminal trials where the accused puts forward a plea based on a General Exception, or a special Exception or proviso in the Indian Penal Code, three questions often arise; firstly on whom the burden of proof to establish the existence of the Exception or the proviso lies; secondly, the nature of evidence that shall justify the Court to hold that the Exception or proviso has been established; and thirdly, if the accused has not succeeded to rebut the presumption, how does his inability affect the result of the case, that is how is the conflict between the general presumption and the special presumption to be resolved? The rule on the first and third points has been laid down in detail in AIR1962SC605 (supra), and this rule was applied to a case of alleged insanity in 1964CriLJ472 (supr....
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.... 44. In the first two reported cases it was also observed that the difference between the general presumption and the special presumption was more imaginary than real. In view of this observation it was contended by the learned Advocate for the appellants that when the result was the same, this Court should refuse to modify the dictum as such step may lead to utter confusion. It was also contended that a case under Section 80, I.P.C. alone was before the Supreme Court and hence the observations whereby Sections 77 78 79 81 and 88 of the Indian Penal Code were placed in the first category were 'obiter dicta' and not binding on this Court. Reliance was also placed upon Section 6, I.P.C. and Section 221 (5) Criminal Procedure Code in support of the contention that all the cases under the Indian Penal Code shall fall in one group, namely, the second group detailed above. In this connection it was mentioned that when each and every case of the General Exception or the special Exception or proviso contained in the Indian Penal Code shall fall in the same group, this Court should, in the circumstances detailed above, not disturb the law as had been in existence for more than 25....
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....dduced and also on whom the burden of proof lies. This shall be evident from the preamble and also Section 5 thereof. Repeal of Section 2 of the Evidence Act shall make no difference as the repeal of a provision does not revive the provisions which had been repealed by the repealed provision. In other words, by the repeal of a provision there is no reenactment of the provisions which had earlier stood repealed. (See Maharaja Sris Chandra Nandy v. Rakhalananda, Collector of Gorakhpur v. Palakdhari Singh, (1890) ILR 12 All 1 (FB) and T.W. King v. Mrs. F.E. King AIR1945All190 . 47. To put it differently if the dictum under reference is contrary to the provisions of Section 105 of the Evidence Act, it must be suitably modified even though the practical effect thereof in all or most of the cases shall be the same. Further, the law laid down by High Courts must be expressed in such clear and unambiguous words that no one may feel any difficulty in enforcing it. The Courts of law do not merely read the Headnotes or the concluding or operating portion of the judgment. Consequently, if the dictum is suitably modified, the Courts shall know not only what changes have been made but why the....
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....sought for has or has not been disproved. If the accused succeeds in rebutting the presumption, it is an end to the matter and he shall straight off be acquitted of the offence or convicted of a lesser offence on the ground that some of the ingredients of the main offence had not been established; but if the accused does not succeed in rebutting the presumption, that is, in disproving the absence of the circumstances, the Court shall consider the question from the point of view of general presumption of the innocence of the accused, whether the ingredients connected with or co-related to the defence plea have been established beyond doubt. Even though the accused may not be able to establish his plea, that is, to rebut the presumption under Section 105 of the Evidence Act, he may succeed in creating a reasonable doubt in the mind of the Court, and what the Courts of law shall say is that because there exists a reasonable doubt on some of the ingredients of the offence, the benefit thereof shall go to the accused and he shall deserve acquittal or convicted of a lesser offence. 51. In cases falling in the first category, where no ingredient of the offence is connected with or co-r....
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....ad, or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person." This is subject to Exceptions detailed thereafter. The First Exception is that "it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published." 53. The ingredients of Section 499, I.P.C. are the making or publishing of the imputation: intending to harm, or knowing or having reason to believe that such imputation shall harm, the reputation of such person. Where the accused pleads the benefit of the First Exception, what he suggests is that the allegation made is true and the imputation was made for the public good. The accused then does not challenge the two ingredients of Section 499, that is, the making and the publication of the imputation with the intention to harm the reputation of the other person. When the two facts raised in defence are in no way connected with the main ingredients of Section 499, I.P.C., the Court shall, first of all, have to record a finding w....
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....ions made an Brend v. Wood (1946) 110 JP 317 were quoted with approval by their Lordships of the Privy Council in Srinivas Mall v. Emperor. Consequently, the ingredients of the offence under Section 300, I.P.C. are the doing of an act by which the death is caused, and the doing of the act with the intention, that is, criminal intention to cause death. Where the accused seeks the benefit of the General Exceptions contained in Sections 80 and 84, I.P.C., what he implies to mean is that he did not have the guilty intention at the time he caused the death. Consequently, at the initial stage the Court shall have to consider whether the prosecution has established beyond doubt that the death of the person was caused by or is the result of the act done by the accused. If so satisfied, the defence plea shall be looked into whether the accused has succeeded to rebut the presumption, that, is to disprove the absence of the circumstances contemplated by the above sections. Once the accused succeeds in establishing his plea, he would deserve acquittal on account of there being no guilty intention; it is a different thing that he may be liable to conviction of the lesser offence; but if the acc....
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...." Illustration thereof is as below:-- "(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in Sections 299 and 300 of the Indian Penal Code; that it did not fall within any of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to Section 300, or that, if it did fall within Exception I, one or other of the three provisos to that exception apply to it." Section 221 (5). Cr. P.C. is a procedural clause and cannot affect the rights and liabilities of the parties, nor can it affect the burden of proof, that is, which party must establish a particular fact or matter in issue. Apparently, this provision was incorporated to make it clear that it is for the accused to plead the benefit of the Exception, and if no such plea is raised, the Court shall assume that the Exception did not exist, and on the main ingredients being established the accused can be convicted of such offence. 57. The above contention was evidently repelled in the Full Bench case of AIR1941All402 (supra). Iqbal Ahmad, C. J., expressed his opinion clearly by laying down that none....
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....mous with the term greater weight of the evidence", or "greater weight of the credible evidence". It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of "preponderance of evidence". 61. The phrase "preponderance of probability" appears to have been taken from Charles R. Cooper v. F.W. Slade (1857) 6 HLC 746. The observations made therein make it clear that what "preponderance of probability" means is "more probable and rational view of the case", not necessarily as certain as the pleading should be. 62. On the basis of the definition of the words "proved", "disproved" and "not proved'', as contained in Section 3 of the Evidence Act, a similar inference can be drawn. The term "proved" is defined as below:-- "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." When the evidence is of a overwhelming nature and is conclusive, there shall exist no ....
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....urther, there shall be no justification to depart from the express provisions contained in the Evidence Act. Such provisions shall govern the recording of evidence and also the question of the burden of proof. We cannot look into the English practice or the law prevalent in our country in the past on the ground of public policy or the interest of justice. To put it differently, the provisions of the Evidence Act must be strictly construed even though such a step may not conform with the ideas of the Court or may appear to be unjust or may cause hardship to the accused. (See Governor and Company of the Bank of England v. Vagliano Brothers 1891 AC 107 and Norendra Nath Sircar v. Kamalbasini Dasi (1895) 23 I.A. 18 . 65. Section 105 of the Evidence Act has been worded in clear and unambiguous terms and it shall apply to each and every case where the benefit of the General Exceptions, or the Special Exceptions or provisos contained in the Indian Penal Code, or in any other law is claimed. Section 105 reads as below:-- "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 I....
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....idence Act makes no difference between the Exceptions or provisos contained in one enactment or the other. In the circumstances, the rule applicable to the General Exceptions under Sections 80 and 84, I.P.C. shall apply with equal force to the other General Exceptions contained in the Indian Penal Code or the special exceptions or proviso contained in this Code or in other enactments. 66. Two other points raised on behalf of the appellants may now be considered. It was argued that the term "may presume" shall have the same meaning as "shall presume" in case the Court decides to presume the existence of a fact. The suggestion thus made is that it is discretionary with the Court to presume or not to presume and once the Court decides to presume the existence of a fact, the same rule shall apply as in a case where there is a statutory clause to presume the existence of the fact. Reliance was placed upon the case of AIR 1943 PC 211, where mere giving of a reasonable or plausible explanation was held to be sufficient to discharge the burden of proof. The definition of "may presume" and "shall presume", as contained in Section 4 of the Evidence Act, makes it clear that the discretiona....
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....t is, is deemed to be 'not proved, even though in a civil proceeding the fact could, on the basis of such evidence, be deemed to have been 'proved'; and the effect of the above maxim is to regard a fact "not proved", though in civil proceeding it could be deemed to be "proved". The same cannot, however, be laid down for a provision where one has to consider whether the absence of circumstances had been disproved, or the existence of the circumstances had been proved. On the application of a rigorous rule, the Court can hold that the existence of circumstances had not been proved, or the absence of circumstances had not been disproved; but to say that the existence of circumstances shall be deemed to have been proved or the absence of circumstances disproved shall not be correct, for the simple reason that on the basis of doubt, the fact is to be disbelieved, and not believed. I am, therefore, not inclined to agree with the proposition that on a reasonable doubt being created, a prudent man should proceed with the assumption that the existence of circumstances had been proved. 68. Section 105 of the Evidence Act, therefore, applies to each and every Exception or provi....
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....on 99, to defend not only his person and property but also the person or property of others. 71. When an accused person acts in the exercise of the right of private defence, what is meant is that even though armed he had no prior intention to commit an offence and whatever he did was in the exercise of the rights given to him under the law. His act would thus not be illegal and, in the eye of law, the act cannot be deemed to have been done with a criminal or guilty intention or knowledge which is invariably the most important ingredient of a criminal offence. 72. At the very start of the argument the learned Advocate for the appellants had cited three illustrations where injustice shall be done to the accused if the benefit of the Exception, as contemplated by the dictum under reference, was not given to the accused. It was said that where there was a dispute as to possession of property between A and B, and such disputes were followed by a marpit in which both the parties were injured, it shall be necessary to convict both the parties where the possession of either was doubtful, considering that none of the parties shall be able to discharge the burden of proof as contemplat....
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.... of decisions not only by the Courts in England but also in India. This case and also 1943 2 AER 156 were considered by the Supreme Court in some of the decisions referred to above. The rule of law laid down in 1935 AC 462 (supra) has been reproduced in Halsbury's Laws of England. In the circumstances, it is not necessary to make further comments on these three cases. 75. The rule enunciated by Viscount Sankey L. C. in 1935 AC 462 (supra) was relied upon in Mancini v. Director of Public Prosecutions 1942 AC 1. The King v. Kakelo 1923 2 KB 793 is a case where onus lay on the accused to prove that he was not an alien, and not upon the prosecution to prove that he was. This case cannot be of any help considering that therein the prosecution had itself adduced sufficient evidence to prove that the accused was an alien. 76. It was strongly argued on behalf of the State that the majority decision in AIR1941All402 (supra) was contrary to the decisions of the Supreme Court and can no longer be regarded as a good law. I have carefully gone through the judgments of Iqbal Ahmad, C. J., and Collister, J., which can be regarded as the leading judgments of the majority and minority Jud....
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....applies the prosecution has to prove the guilt of the accused." "Should it in the consideration of the question whether A is guilty of murder, put aside the evidence produced by A, so to say, in a watertight compartment and exclude that evidence entirely from consideration? or should it take that evidence, for what it is worth into consideration along with the other evidence in the case and then make up its mind as to the guilt or innocence of A? I cannot but hold that it is only the latter alternative which is open to the Court and this is what follows from the definition of "proved" in the Act. It is one thing to hold that the "exception" or "proviso" pleaded has not been proved and it is quite another thing to say that it has been disproved. If a reasonable doubt as to the existence of the exception or proviso exists the Court cannot, while considering the evidence as a whole, deny to the accused the benefit of that doubt". 78. Collister, J. personally preferred the law as enunciated by Viscount Sankey in Woolmington's case, and saw no reason-why the law in India as regards this, branch of burden of proof should differ from the law in England, but he regarded it ....
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....al onus remains on the prosecution and if there exists any reasonable doubt as to the guilt, its benefit shall go to the accused and he shall be entitled to acquittal even though he had failed to discharge the burden of proof placed upon him under Section 105. It shall thus appear that the majority judgment in Parbhoo's case expresses the law correctly, though the reply to the question referred to the Full Bench was not expressed 'in correct legal words. 80. To avoid unnecessary repetition later it may be added that the minority judgment in Parbhoo's case stands overruled by the Supreme Court decision in 1964CriLJ472 (supra). While discussing the case of AIR 1956 Nag 187 (Supra), their Lordships made it clear that they did not agree with the view expressed therein, namely, that the benefit of doubt which the law gives on the assumption of innocence is available only where the prosecution has not been able to connect the accused with the occurrence and it has nothing to do with the mental state of the accused. In other words, even if the accused is unable to substantiate the defence plea, the Court has to see whether the guilty intention or knowledge which is a materi....
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....for the prosecution and the proof of the exception put forward by the defence." They are also not "two separate questions to be decided separately", the second question arising after the first has been decided. This rule can be applied to only those cases which fall in the first category, and not those which fall in the second category detailed above. The Bombay case is more or less on the lines of the minority judgment in Parbhoo's case AIR1941All402 and cannot be said to correctly express the law. 82. The above Full Bench case was followed by the same High Court in Har Prasad Ghasi Ram Gupta v. State, AIR1952Bom184 . No further comments are therefore, necessary. 83. The observations of Mitter, J. in Yusuf Sk. v. The State, AIR1954Cal258 that the "question of an onus under Section 105 only arises after the prosecution has established the commission of an offence" and that the "standard of proof under Section 105, Evidence Act, is the same as the standard which is required of the prosecution in a criminal trial," are clearly against the Supreme Court decisions. The first observation may however, apply to a case falling in the first category. 84. In Re, Gampla Subbigadu....
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....ot of unsound mind and that he was capable of knowing the nature of the act alleged against him." For reason already indicated above, this is not a correct approach, though the accused, can be given the benefit of reasonable doubt as to his guilt. In other words, the Court can hold that the prosecution has not succeeded to establish its case beyond reasonable doubt. 89. In Etwa Oraon v. The State AIR1961Pat355 the earlier case of AIR1955Pat209 was not dissented from. It was observed that:-- "The burden is discharged if the defence establishes facts and circumstances which might lead to a reasonable inference that at the time of the commission of the offence the accused was of unsound mind, the unsoundness of his mind being of the nature or extent mentioned in Section 84, Indian Penal Code." Reasonable inference is not the same thing as reasonable doubt. It cannot also amount to 'proof as contemplated by Section 3 of the Evidence Act. The above observations are to some extent against the view expressed by the Supreme Court. 90. Brindaban Prasad v. The State AIR1964Pat138 is based upon the Supreme Court decision in the case of K.M. Nanawati v. State of Maharasht....
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.... though he had not been in a position to prove the circumstances to bring his case within the exception. This shall be on the ground that the general burden of proof resting on the prosecution was not discharged. 4. The burden of proof on the prosecution to establish its case rests from the beginning to the end of the trial and it must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. 5. The burden placed on the accused is not so onerous as on the prosecution. The prosecution has to prove its case beyond reasonable doubt, but in determining whether the accused has been successful in discharging the onus, the Court shall look into the preponderance of probabilities in the same manner as in a civil proceeding. In other words, the Court shall have to see whether a prudent man would, in the circumstances of the case, act on the supposition that the case falls within the exception or proviso as pleaded by the accused. 93. In this view of the matter the dictum laid down in AIR1941All402 (Supra) is partly erroneous and requires modification, though the decision, read as a whole is in conformity with the law. The dict....
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....tion of different principles due to differing degrees of proof given by each side in different types of cases on facts 'does not involve a conflict of principles applied which have been taken from English law. For this reason and others, explained below in detail, I respectfully differ from the opinion expressed by my learned brethren who have referred this case to a Full Bench on the ground that decisions of the Supreme Court have "cast a cloud of doubt" on the correctness of the majority view in Parbhoo's case. I concur with the views expressed and conclusions recorded by my learned brethren Broome, Gupta, and Parekh JJ., and also with the conclusions reached by my learned brethren Gyanendra Kumar and Yashoda Nandan, JJ. My learned brother Mukherjee, J. has also dissented from the majority view here which only reaffirms and explains the majority view in Parbhoo's case. I share the majority view here expressed, also by my learned brother D. S. Mathur, J., on this point, that the plea of private defence falls in the category of cases in which proof of the exception affects ingredients of the offence which the prosecution has to prove beyond reasonable doubt. I entirely ....
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.... to the Advocate General, has to rest on "preponderance of probabilities' so as to appeal to reason and prudence, but the test adopted by the majority, for judging the accused's plea, was imprudent and unreasonable, and, therefore, illegal. Such a test, it was submitted, was inconsistent with the test of what was "proved" propounded by the Supreme Court in several recent cases, 1960CriLJ131 ; 1966CriLJ63 ; 1966CriLJ82 ; [1966]3SCR736 ,; AIR 1968 SC 702. The Advocate General went so far as to contend that, if the majority view in Parbhoo's case was correct, the weaker the case of an accused, and, therefore, the greater the doubt about it, the brighter would be the prospect of an acquittal before the accused. This amounted, the learned counsel urged, to a direction to acquit accused with doubtful defences instead of acquitting them only on doubtful prosecution cases against them. It had, he informed us actually resulted in a number of unjustified acquittals and miscarriages of justice Doubt, the Advocate General argued, could only be an obstacle or impediment in the way of the prosecution but it could not be the foundation of or substitute for the positive proof required ....
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....el went to the extent of asking us to countenance even a fiction, if need be, so as to meet or to repeal the obligatory presumption under Section 105 and thus to remove what the learned counsel tried to depict as a possible impediment in the way of justice, equity, and prudence. The learned counsel invited us to consider the consequences in cases where evidence was so equibalanced, on a disputed question of possession of property or on the question whether one or the other party was the aggressor in a fight, that the astutest judge could not possibly determine which of two rival versions was correct. Learned counsel urged that, on the State's interpretation, both sides will have to be convicted in such cases as neither side could prove its defence case positively by a "preponderance of probabilities". Lastly, the learned counsel argued that Section 6 of the Indian Penal Code, read with Section 221 (5), Criminal Procedure Code, placed the burden upon the prosecution of negativing the exceptions pleaded by the accused. This conclusion, according to learned counsel, necessarily flows from the proposition that the absence of an exception was an ingredient of each offence defined by....
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....mple terms in the Act, compress a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended. The term 'Burden of proof is not defined in the Act and cannot be fully understood without an exposition of its place and meaning in our procedural law as a whole. Nor an adequate understanding of the import of these 'basic concepts, even when they are Incorporated in a comprehensive code, we have to necessarily examine their sources, the context in which they were given statutory form, the purposes they were designed to serve, and the functions they actually fulfil. Cut off from these moorings they may become ugly caricatures of that justice which all law is meant to serve. It is obvious that a mechanical interpretation with the help of a dictionary and rules of grammar, found to be inadequate on several occasions by our Supreme Court (e.g. Deputy Custodian Evacuee Property New Delhi v. Official Receiver of the Estate of Daulat Ram Surana, [1965]1SCR220 ; Kanwar Singh v. Delhi Administration, [1965]1SCR7 ; R.L. Arora v. State of U. P., [1964]6SCR784 ; State of U. P. v. C. Tobit. 1958CriLJ809 , may not suffice here als....
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....e of the presumption. The burden of establishing a plea connotes a bigger gap requiring more acceptable evidence to fill it than the burden of removing a presumption that no circumstances whatsoever exist to support the plea. As has been often pointed out, when there is ample evidence from both sides, the fate of the case is no longer determined by presumptions or burden of proof but by a careful selection of the correct version, based no doubt on preponderance of probabilities which has to be so compulsive or overwhelming in the case of a choice in favour of a conviction as to remove all reasonable doubt. In other words, the importance of burdens of proof and presumptions vanishes in the face of evidence given by both sides. They may, however, become decisive again in cases where evidence is equibalanced. Thus, their function is decisive only in cases where there is paucity of evidence on either side or the evidence given by the two sides is equibalanced. Neither a burden of proof nor a rebuttable presumption can be used for excluding any evidence. That is not their function at all but of other provisions of law. 104. In Phipson's Evidence (10th ed p. 838), it is pointed ou....
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....e, the basic principles could not be deemed to be abandoned or departed from without clear words to the contrary. In fact, it is not possible to appreciate the true meaning of a number of 'provisions of the Act, including Section 105, without exploring the law contained in the sources of the codification. If, however, the above mentioned expositions are kept in view, it becomes quite easy to interpret Section 105 of the Act which covers the burden of establishing as well as the duty of introducing evidence of exceptions set up by the accused. It becomes clear that the obligation of the Court to presume absence of circumstances supporting a plea is meant to pirate only initially. The presumption which the Court is obliged to make vanishes when any circumstances sup-j porting the exception are proved. On the other hand, the duty or the burden of the accused, dealt with in the first part of Section 105, to establish the exception pleaded may remain even after the initial presumption against him is removed as a result of evidence of either side. The obligation of the Court to presume initially absence of circumstances to support an exception cannot be used to eliminate or wipe out ....
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....al charge, for a bare acquittal provided the doubt introduced by some proved facts and circumstances, displacing the initial obligatory presumption, is strong enough to reasonably shake the moral conviction of guilt of the accused on the charge levelled against him. This seems to me to be the line of reasoning underlying the majority view in Parbhoo's case. It seems to be both practical and just. It accords with very firmly established principles of proof and burden of proof applicable to criminal trials in this country as well as with the provisions of the Act read as a whole. I confess that I fail to see any flaw in it, 107. The contrary view would erect the initial presumption under Section 105 into an artificial barrier against the entry of a reasonable doubt into the prosecution case even when the accused, though failing to fully prove an exception, actually creates a reasonable doubt. Not only is it humanly impossible for a judge to keep evidence confined in two separate watertight compartments of his mind, but it would also be illegal for him to do so. Apart from being much too unrealistic a view, this would restrict the powers of the Court to judge, on all the materi....
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....ase. 109. Again, to hold that, even if the accused failed to prove the plea fully, it was possible that he may yet succeed in shaking the foundations of the prosecution case and obtain an acquittal on a reasonable doubt is not to lessen the burden of what may be called a "clean acquittal." There is a difference between a complete exoneration, which is only possible when an accused turns the balance of probability in his favour, and a bare benefit of doubt, which is not entirely devoid of harmful consequences for the accused. The Supreme Court had also held that Section 105 did not prevent the Court from giving the benefit of doubt altogether to an accused pleading an exception, or in other words, Section 105 makes possible both kinds of acquittal--one by proving his plea fully and another by raising genuine doubt in the case. Ismail, J. observed to Parbhoo's case, that the difficulty to be resolved arose only in those limited number of cases where evidence in the case "falls short of proof but creates a reasonable doubt in the mind of the Court whether the accused person is or is not entitled to the benefit of the exception." He pointed out that the question before the Full ....
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.... case and stamp it with doubt, even though it falls short of fully establishing the plea of private defence. The question framed in Prabhoo's case proceeded on the assumption that the evidence given by the accused was credible with regard to some of the circumstances proved in support of the plea of private defence and threw a reasonable doubt on an ingredient of an offence even if it did not establish the plea of private defence by a preponderance of probabilities. The answers given in Parbhoo's case AIR1941All402 were based upon that assumption. It may be mentioned here that in each of the two Rangoon cases, which the majority purported "to follow in Parbhoo's case AIR1941All402 the plea of accused was quite substantially supported on facts. In Emperor v. U Damapala AIR 1937 Rang 83 the first question framed, which is relevant here, indicated that the exception was so well supported that the Court could be in doubt whether the exception itself was proved or not. In Nga Thein v. The King AIR 1941 Rang 175 the facts found against the victim and in favour of the accused were quite substantial. It is in cases of this sort that genuine doubts arise. 112. There is a diff....
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....The learned Chief Justice thus stated the prosecution's submission on this question. The argument is that, unless the accused succeeds in proving that his case comes within the exception or proviso pleaded by him, the evidence led by him must be totally discarded and the Court must proceed on the definite supposition that "there was an entire absence of the 'exception' or 'proviso' relied upon by the accused." It seems to me that on this question, involving a correct interpretation of the obligatory presumption at the end of Section 105, there is no escape from the answer given by the majority in Parbhoo's case unless the accused is to be denied the benefit of doubt altogether when he pleads an exception. Any answer other than the one given by the majority in Parbhoo's case will involve a clear (Sic) with propositions enunciated by the Supreme Court in Nanavatis case AIR1962SC605 and Dahyabhai's case 1964CriLJ472 and Bhikari's case 1966CriLJ63 discussed by me below, which necessarily mean that the whole evidence must determine the result. 115. Iqbal Ahmad, C. J.. in Parbhoo's case 1941 ALJ 619 : AIR 1941 AH 402 also referred to the argumen....
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....ous to a proviso only if we view Section 6, I. P. C and Section 105 of the Act together. It is certainly difficult to see the purpose of Section 105 of the Act unless it is viewed in the context of Section 6, I. P. C. 117. The argument that some negative burden may rest upon the prosecution seems to have been accepted by the Advocate General by implication when he conceded that the prosecution's burden extends to eliminating doubts which may arise from the evidence on the record. Section 105 of the Act could have been enacted to repel the more ambitious contention, which was actually advanced in Parbhoo's case by Sir Wazir Hasan and before us by Mr. P. C. Chaturvedi. that the prosecution must actually disprove, as a part of even its initial duty, all possible exceptions which may be set up by the accused because Section 6 of the I. P. C. annexes absence of exceptions to every definition of an offence. At least, its utility and effect do not seem to extend further than repelling such contentions because all else it enacts seems already covered by Section 103 of the Act. And, as we know, there is a presumption against redundancy. 118. The Advocate General repeated the a....
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....ish law of Evidence. It has been often stated with justification that Sir James Stephen has attempted to crystallise the principles contained in Taylor's work into substantive propositions. In case of doubt or ambiguity over the interpretation of any of the sections of the Evidence Act we can with profit look to the relevant English Common Law for ascertaining their true meaning". It is true that, where provisions of the Act are clear and unambiguous, no recourse to extrinsic matter, even if it consists of the sources of the codification, would be permissible. But, the position before us is, as already indicated, that it is not possible to fully bring out the meaning of Section 105 of the Act itself without reference to the principles found in the sources of the Act contained in English Law. At least, the aspect of Section 105 which was raised and considered in Parbhoo's case made it necessary to go to those sources. 120. The majority of the judges deciding Parbhoo's case did attach considerable importance to what was held by the House of Lords in Woolmington's case 1935 AC 462 (Supra). But, they also examined the meanings of the words used in the relevant provis....
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.... 1 KB 383. 122. If this was the state of law In England, round about 1872, as it appears from (1873) 8 QB 483 (supra), decided in 1873, it will be evident why Section 105 of our Evidence Act, passed in 1872, became necessary. Although, the exceptions contained in the Indian Penal Code, to which Section 105 of the Act refers, are contained in separate sections, yet the result of Section 6 of the Indian Penal Code could well be said to be that the exceptions were engrafted in every definition of an offence as though they formed parts of each section defining an offence. The language of Section 6, Indian Penal Code is quite explicit. Therefore, Section 105 of the Act became necessary so as to make it clear that, notwithstanding such a statutory provision, the ordinary rule of English law of Evidence, that an exception found in a separate clause or section has to be established by the party claiming its benefit, will apply in this country also. In other words, as I see it, Section 105 of the Act was introduced not in order to depart from but to make our law conform to the norms of English law of evidence on the subject. 123. The basic or primary burden of the prosecution is state....
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....KB 506; R. v. Dunbar. (1958) 1 QB 1. 126. The cases cited above in Phipson's Evidence to support the statement of the English law on the subject, include those which deal principally with the discharge of his full burden by an accused (e.g. 1943 1 KB 607 and 1958 1 QB 1 establishing a "preponderance of probability" in his favour as well as those (e.g. 1935 AC 462 which revolve round the prosecution's failure to discharge its burden of proving beyond reasonable doubt. To avoid confusion, it is necessary to bring out the difference clearly not only between the prosecution's higher onus of proving its case beyond reasonable doubt and the lower burden of the accused to prove an exception by a "preponderance of probability" only, but also between a complete proof and a reasonable doubt as different conclusions. Again, the process of balancing probabilities prudently, which is common to all cases, and the results of that process, which may differ from case to case, must also be clearly differentiated. 127. While the process of balancing probabilities is common for all cases, the burdens of the parties to establish their respective cases in a criminal trial are really on....
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....a still lower burden of creating reasonable doubt about the accused's guilt and that an accused can obtain an acquittal by statisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true. Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. This technically more correct way of stating the law was indicated by Woolmington's case and adopted by the majority in Parbhoo's case, and, after that, by the Supreme Court. It seems to me that so long as the accused's legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a me....
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.... 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 must necessarily be one in 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 another 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 probability 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. "Complete" proof for the prosecution cannot fall short of elimination of reasonable doubt about the ingredients of an offence. If one is clear about the meanings of the terms used no misapprehensions need arise. 131. It was contended by the Advocate General that the English Law had been misunderstood by the majority in Parbhoo's case inasmuch as Lord Sankey laid down in Woolmington's case (supra) that the principle of benefit of doubt....
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.... merely codifies, in careful and concise language, certain general rules of presumptions and burdens of proof for such cases, just as Sir Michael Foster attempted to state them in a somewhat different language. The view taken by Lord Sankey about such statements of the rules found in English law was: "Rather do I think they simply refer to stages in the trial of a case". In other words, they are more akin to rules of pleading than to rules determining quantum of proof. Lord Sankey pointed out that rules of Evidence found in earlier cases and statements of law are confused. He observed: "It was only later that Courts began to discuss such things as presumption and onus". He also said: "The word onus is used indifferently throughout the books, sometimes meaning the next move or next step in the process of proving and sometimes the conclusion." When Lord Sankey referred to a "statutory exception", he did not mean such general propositions or principles only, lying partly in the region of rules of pleading and partly of rules of evidence, which were enacted in Section 105 of the Act What was meant by Lord Sankey, when he spoke of a "statutory exception", was a real exception to the gen....
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....establish the defence case. These are cases of presumptions of guilt or of true statutory exceptions to the principle of a full burden of proof upon the prosecution. 135. In 1966CriLJ63 it was held that, even in a case where insanity is pleaded, the accused would be entitled to an acquittal if a doubt is created by any evidence in the case on the question whether the accused had the required mens rea when he committed the offence. Such a doubt was held to capable of shaking the prosecution case on an ingredient of the offence with which the accused is charged. It was also pointed out that "this was very different from saying that the prosecution must also establish the sanity of the accused" despite Section 105 of the Act. The last mentioned observation could be reconciled with the principle stated first only by adopting the majority view in Parbhoo's case which was that the prosecution was not called upon to discharge initially any burden of eliminating the exception, although, in order to satisfy its unshifting stable burden, it had to remove doubts introduced, in the course of trial, about the ingredients of the offence. The whole evidence was examined, including the accu....
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....ly, to the majority view in Parbhoo's case AIR1941All402 . 137. AIR 1968 SC 702 was another case in which the Supreme Court held that a party which had pleaded an exception (this was a case of private defence) must succeed due to a demonstration of "preponderance of probabilities" in favour of its version that right to possession of property was being vindicated legitimately by it. I find no statement of the law in this case also by their Lordships of the Supreme Court which either expressly or impliedly overrules or conflicts with the majority view of this Court in Parbhoo's case, 138. In 1964CriLJ472 where the plea of insanity of an accused was rejected their Lordships of the Supreme Court practically held what was held by the majority in Parbhoo's case. Several of the very propositions laid down by the majority in Parbhoo's case, AIR1941All402 were expressed here by the Supreme Court in a somewhat different language. It was very explicitly held here that even if the accused does not succeed hi discharging the burden of proving the exception pleaded, he will be entitled to an acquittal if he is able, with the help of all the material on the record, from whic....
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....g a reasonable doubt (See: Dahyabhai's case 1964CriLJ472 about his intent in committing the alleged offence; that, the general law on the question of the fixed or primary burden of the prosecution, which lasts till the end of the trial and is not curtailed by Section 105, is the same in India as it is in England. These propositions can only hold good if the same meaning is given to the duty imposed by the obligatory presumption upon the Court, as contrasted with the burden of the accused, which the majority of learned Judges of this Court gave to it in Parbhoo's case AIR1941All402 . 141. There are, however, two passages, one in Nanavati's case AIR1962SC605 and the other in Dahyabhai's case 1964CriLJ472 which have been quoted fully by my learned brother D. S. Mathur, J,, and the first partly by my learned brother Mukerjee, J. also, on the strength of which it could be urged that the significance of the obligatory presumption, contained in the last part of Section 105, has also been considered and pronounced upon by their Lordships of the Supreme Court. After having examined these passages very carefully in the context in which they occur, it seems to me that the S....
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.... or the requisite of state of mind" the ingredients of the offence are affected. 143. Every offence against which a plea of private defence can be taken requires a state of mind or mens rea on the part of the accused to be proved by the prosecution. This is usually gathered by circumstances raising a presumption about the intention. The defence may give some evidence pointing in another direction. This may actually negative mens rea as was the case in Amjad Khan v. The State, 1952CriLJ648 , where the Supreme Court pointed out that a reasonable apprehension of death or grievous hurt may justify killing in exercise of a right of private defence even before an actual attack on a person had commenced. In some cases, the defence may while falling short of negativing mens rea, be only able to show that its existence has become doubtful. In such cases, according to the view of the majority in Parbhoo's case, the accused would be entitled to an acquittal because the prosecution has failed to discharge its special burden of eliminating doubts. The accused may have failed to prove his plea but he gets a benefit which, whether it is called the benefit of the exception pleaded or of dou....
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....ls under motive. As Paton points out ("Text book of Jurisprudence" 3rd Ed. p. 275), the distinction between intention and motive Is not always so precise as may annear at first sight. Even if the distinction made in Salmond's jurisprudence (12th Ed. p. 372), between motive as the cause or the "ulterior object", which lies behind, and the immediate intention, which accompanies an act, is accepted, it is clear from Salmond's own explanation of mens rea as a basis of a criminal liability (See: Salmond's jurisprudence 12th Ex. p. 366), that wrong motivation overlaps mens rea. "A man is responsible", wrote Salmond, "not for his acts in themselves but for his acts coupled with the mens rea or the guilty mind with which he does them". The guilty mind is not only exhibited or proved by the immediate intent to injure but also by what may be called an "ulterior intention" actuating the action. 146. Investigation into the nature of Intent, both immediate and ulterior or underlying, is carried out in cases of insanity as well as of accident. An insane person may form the immediate intention to attack another person due to a delusion that he was about to be attacked by that other....
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....ate or consequential intent and forget the real intent for determining mens rea. 148. There seems to me to be no need to distinguish between the wrongful-ness or guilt of the mind and of the act in a case where a right of private defence is pleaded because the two must go together in such a case. It is true that causing of injury during the lawful exercise of a right of private defence is authorised by law just as an executioner is permitted to hang a condemned man in the discharge of his duty. In Keny's "Outlines of Criminal Law" (16th ed. at p. 21) we find: "One who had duly executed a condemned criminal had effected a homicide which was justifiable; his own innocence of crime stood really on the basis that the actual was not forbidden (and therefore, not reus), but it could equally well be established by the plea that he had done nothing wicked nor immoral and therefore, had displayed no mens rea". The actual stands on a separate footing only in exceptional cases. In cases of strict statutory liability the actual is punishable without the need to prove any mens rea and the only issue to be decided is whether the actual reuse is proved. In a case where a right of private d....
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....on", 1953, Essays published by the Association of the Bar of New York), that the principle of a case is determined by taking into account the facts treated by the Judge as material and his decision "as based thereon". The only criticism of this method, found in Salmond's Jurisprudence (12th ed. p. 181), is that Courts, in their quest for "the rule which the judge thought himself to be applying", tend to ignore it in practice. But, it was stated there: "any such rule must be evaluated in the light of facts considered by the Court to be material". Our Supreme Court certainly adopted the method, in Andhra Sugars Ltd. v. State of Andh. Pra. [1968]1SCR705 , when it held that a passage in a previous decision, which appeared to lay down a rule, "must be read with the facts of the case". If this method is followed, no conflict whatsoever between anything laid down by the Supreme Court and what was held by the majority in Parbhoo's case will even seem to arise. 151. I may now refer to an argument advanced by Mr. P. C. Chaturvedi, the learned counsel for the accused, relying on AIR 1943 PC 211. It was contended that the optional presumption arising under Section 114, Illustration ....
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....and, in a criminal trial, also the higher degree of proof, by eliminating reasonable doubt, which the prosecution must provide. 153. Even a literal interpretation of the first part of Section 105 could indicate that "the burden of proving the existence of circumstances bringing the case within" an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof f circumstances showing that the exception may exist which will entitle the accused to the benefit of doubt on the ingredients of an offence. If the intention was to confine the benefit of bringing a case within an exception to cases where he exception was established by a preponderance of probability, more direct and definite language would have been employed by providing that the accused must "prove the existence" of the exception pleaded. But, the language used in the first part of Section 105 seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his....
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....ering, sifting, weighing, comparing, and testing the prosecution and defence versions and evidence, placed side by side, with a view to pronouncing his judgment. At this stage, the obligatory presumption under Section 105 cannot stand in the way of an acquittal if evidence in the case justifies giving the accused the benefit of reasonable doubt on the charge. 155. The obligatory presumption thus fits into the whole procedural machinery regulating a criminal trial in this country only as a sort of proviso, inserted almost parenthetically by way of abundant caution, so as to prevent Courts from imagining circumstances in support of exceptions pleaded when they are unsupported by any proved circumstances. Its function does not extend to obstructing Courts in performing their duties to give effect to genuine doubts which may arise from facts proved. Its purpose and meaning can only be fully understood in the context of the whole scheme for the adduction of evidence in a criminal trial. Torn from this context it can operate only as a stumbling block and not as the aid to justice which it was, I have no doubt whatsoever, meant to be. 156. The duty and power of the Court to find out....
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....ven less recognition or force in this country. Methods of investigation of crime available to the prosecuting authorities in this country are still rudimentary and have not reached the level of scientific precision which they have attained in other countries. Powerful motives and factors come into play to conceal the actual offenders and to mislead prosecuting authorities in criminal cases every where. The adoption of short cuts by producing perjured evidence in support of hastily arrived at conclusions of prosecuting authorities are not less common in this country than elsewhere. However, I am content to base my opinion on this question on the strength of the declaration of law by the Supreme Court that the principle of benefit of doubt has the same force in this country as it has in England. Accused persons in this country are not entitled to a lesser protection than the accused in England when the Constitution itself protects life and liberty here against deprivation except one in accordance with the procedure prescribed by law. The meaning of our procedural or adjectival laws must, therefore, be determined in conformity with firmly established notions of a fair trial unless som....
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....is charged, the accused would be entitled to an acquittal. As I read the answer of the majority in Parbhoo's case AIR1941All402 I find it based on these three propositions which provide the ratio decidendi and this is all that needs to be clarified. 161. The practical result of the three propositions stated above is that an accused's plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are: firstly, a lifting of the initial obligatory presumption given at the end of Section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and, thirdly, a complete proof of the exception by "a preponderance of probability", which covers even a slight tilt of the balance of probability in favour of the accused's plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage,....
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....he Chief Justice and I do not reproduce them here to avoid repetition. 165. The effect of Section 105, read with Sections 3 and 4 of the Indian Evidence Act, was considered by the Supreme Court in the case of AIR1962SC605 of the report Subba Rao J., (as he then was) observed as follows: "The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England there is a presumption of 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 Dart 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 Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence....
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....onable 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 "of course, it is possible but not in the least probable", the case is proved beyond reasonable doubt." As regards the degree of cogency required to discharge a burden in a civil case, his Lordship stated: "That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not", the burden is discharged 'but if the probabilities are equal, It is not.'" (Emphasis (here in ') mine). 167. The burden on an accused person being the same as the burden on a party in a civil proceeding, it follows that if the balance or probabilities supports the plea of exception the buren on the accused person is discharged but if the Court is left in a state of reasonable doubt as to whether the accused person is or is not e....
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....hable by it. In this sense not every act of killing is a crime. To cite some examples of killing which are not forbidden by law but are in fact permitted by it, we may take a case where the killing is by way of execution of a prisoner sentenced to death by a Court competent to do so by the executioner appointed by lawful authority for that purpose. In cases of such homicides, which have sometime been described as "justifiable homicide", no crime can be said to have been committed and consequently no one can be found guilty for its commission. Likewise a case in which the accused pleads having committed homicide in the exercise of right of his private defence of person or property and also successfully establishes his claim, would, in our opinion, fall in the, same class. A person who kills another in order to save his own life cannot be said to have committed an act prohibited by law or a crime. If an accused claims protection of the Exception mentioned in Section 96 of the Indian Penal Code and fails to establish affirmatively by preponderance of probabilities that he had acted in exercise of the right claimed, but the evidence on record, taken as a whole, creates a doubt that the....
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....asonable doubt is created with regard to the claim of an accused to the protection of the Exception provided for by Section 96 of the Indian Penal Code, the accused becomes entitled, in our opinion, to the benefit of doubt and acquittal not because an ingredient of the offence under Section 299 of the Indian Penal Code or its mens rea becomes doubtful, but because a doubt is created as to whether the act attributed to him amounts to a crime at all. We find support for the view we are taking from the following passages from Russell on Crime, XI Edition: "The new conception that merely to bring about a prohibited harm should not involve a man in liability to punishment unless in addition he could be regarded as morally blameworthy came to be enshrined in the well known maxim actual non facit reum, nisi mens sit rea. This ancient maxim has remained unchallenged as a declaration of principle at common law throughout the centuries up to the present day. So long therefore, as it remains unchallenged no man should be convicted of crime at common law unless the two requirements which it envisages are satisfied, namely, that there must be both a physical element and a mental elemen....
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....sentence has killed a man with deliberate intent so to do, but he has committed no crime because the deed was not prohibited, but was actual commanded, by the law; again, the use in certain circumstances of even deadly force by any citizen in the prevention of the commission of a crime by another person, or in the arrest of one who has committed a felony, does not give rise to criminal liability. Similarly the law does not prohibit a limited chastisement of a child by a parent or schoolmaster, nor the causing of hurt in the course of many sports and games or in the performance of a surgical operation by one duly qualified. That the deed was not prohibited by law is a complete defence for the man who had done that deed, for although the actual was his, yet in the special circumstances of his case it was not reus". To our mind there is nothing in Section 105 of the Indian Evidence Act or Section 4 thereof which runs counter to the view expressed above. 173. The Supreme Court in AIR1962SC605 while considering the question of burden of proof resting on the accused, has laid down three different categories: "(1) A statute may throw the burden of proof of all or some of th....