1. This is an appeal by the Government of Bombay against the acquittal of accused No. 1 in a ease of murder tried before Mr. Justice Baja-dhyalraha and a special jury. The jury unanimously acquitted the rest of the accused; but they brought in a verdict of 7 to 2 for the acquittal of accused No, 1, and the learned Judge accepted that verdict and directed an acquittal The appeal is presented on grounds of misdirection, in particular misdirection as to the burden of proof lying upon an accused person who alleges circumstances bringing his case within one of the exceptions to the ordinary law, in this case the exception relating to the right of private defence.
2. The case arose out of the death of one Benjamin Samuel, who was stabbed through the heart on the evening of September 18, 1944, in full view of the general public in Hornby Vellard, Bombay. It was a special Jewish day; and the deceased was himself a Jew, as are all the accused. Accused Nos. 1 and 4 are brothers and were related to Benjamin Samuel by marriage, in that their sister was married to Benjamin's brother Isaac. There were serious quarrels between the two families; and in due course Isaac's wife obtained a divorce in March, 1944. On the day in question two parties from two rival synagogues went to Hornby Vellard to -worship, as that is the regular practice on this particular day of the Jewish year. The family of Benjamin Samuel was in the party belonging to one synagogue, and the accused and their friends were in the party belonging to the other synagogue. It seems beyond dispute that the deceased and his family on the conclusion of their part of the worship walked past the other group; and it was when the deceased was about to walk past the other group that the trouble occurred. There may or may not have been some general trouble. But however that may be, according to the evidence of three Jewish eye-witnesses, who cannot be said to be altogether independent, an -unprovoked attack with a knife was made by accused No. 1 upon Benjamin. He was stabbed through the heart and immediately collapsed j and so far as it goes this evidence is corroborated by the independent evidence of a Parsi who was passing on a bicycle at that moment and arrived in time to see the actual stab wound but not in time to see anything that had happened before. There is evidence to suggest that after the stabbing a violent and prolonged attempt was made to get the knife out of the hand of aectised No. 1, and to some extent that is borne out by the injuries to the fingers and other parts of the persons said to have participated in that particular struggle. But in the course of the trial and arguments an attempt was made to show that the injuries to the accused arose out of a previous attack by Benjamin, who on the suggestion of the defence is said to have had this particular knife in his hand in the first instance but had it snatched out of his hand by accused No. 1.
3. The defence as disclosed by the statement of accused No. 1 was that he found MS brother lying on the ground and the eye-witnesses Isaac and Moses kicking Mm and two or three more persons having a fight with accused No. 5 at some distance away. He says that Benjamin was standing near the railing; and that as soon as he saw the accused Benjamin rushed on him with an open knife and the accused caught hold of the knife with both his hands. He repudiates in his statement a suggestion which had been put to various witnesses but denied by them to the effect that Benjamin was accidentally stabbed in the course of a struggle; that is evidently his meaning, though lie does not express it very clearly. But he also says that he does not know whether that really is the case or whether the fact is that he took the knife from Benjamin's hand and stabbed him. It is to be noted that he does not in terms raise any plea, of self-defence. But self-defence played a prominent part in the arguments; and the principal ground of this appeal is that the learned Judge has misdirected the jury as to the obligations of an accused person who wishes to take advantage of a plea of self-defence. Other misdirections have been alleged in the memorandum of appeal, but they have not been seriously argued; and we do not think that there is any reason for going into them. The whole centre of the alleged misdirection is the plea of self-defence; and that is the only misdirection that we need consider.
4. The learned Judge in dealing with the evidence made it perfectly clear to the jury that there was no case whatever for supposing that Benjamin's death was due to anything other than a stab wound inflicted by the accused; and we think it impossible to suppose that the jury ever came to the conclusion that it was not proved by the prosecution that it was the accused who had stabbed Benjamin. That means that the prosecution had established the first thing which they had to establish, namely the fact of Benjamin having been stabbed by the accused.
5. The next question arising in the case in view of the arguments was whether the case came within the exception relating to the right of private defence. The learned Judge dealt exhaustively with the law of private defence and pointed out to the jury the points on which it would be necessary for them to be satisfied; and in that respect we cannot find anything to criticise in his sumining-up. But having stated his personal opinion of the law to be that the Court must either believe circumstances giving rise to the right of private defence to exist, or consider their existence so probable that a prudent man ought under the circumstances of that particular case to act upon the supposition that those circumstances did exist, he went on to direct the attention of the jury to certain judicial decisions, in particular the decision in Woolmington v. The Director of Public Prosecutions  A.C. 462 as showing, despite Section 105 of the Indian Evidence Act, that the jury could be left in reasonable doubt as to the existence of circumstances giving rise to the right of private defence but could yet acquit the accused, even though they found that it was he who stabbed the deceased. As a matter of principle we think it undesirable that judicial decisions should be cited to a jury, especially when they are in conflict with what the Judge has stated to be his personal opinion; and that the effect of citing decisions to this extent, particularly conflicting decisions, may well be to create a state of uncertainty in the minds of the jury as to what the law really is, whereas it is the duty of the Judge to lay down to the jury, in words that they can clearly understand, what the law really is. At the end of his citations the learned Judge did give directions to the jury; but, since those directions were not altogether in accordance with the personal opinion which he had expressed earlier, it would not have been surprising if the jury were left in a somewhat confused state as to what the law really was on the point. In the present case we do not however think that that is really material, since we have come to the conclusion that there was material upon which it was possible for the jury to arrive at the conclusion that circumstances existed giving rise to the right of private defence. What the learned Judge eventually said was this.--
As a direction in law, therefore, I would ask you to proceed upon the basis that if accused No. 1 in this case seeks the benefit of the exception of the right of private defence, then it would be sufficient for him if he makes out a prima facie cage which, on the conclusion of the evidence, leads the jury to entertain a reasonable doubt about the guilt of the accused '; and he went on to say:-But you must remember that the burden of bringing himself within the exception is on the accused, and to that extent he is bound by Section 105 to establish the existence of circumstances, whether they have been proved beyond reasonable doubt or not, which would after the whole evidence is recorded leave a doubt in the minds of the jury about the guilt of the accused.
There is the authority of Woolmington's case for that direction. There is also the authority of the Calcutta High Court in Robert Stuart Wauchope v. Emperor I.L.R.(1933) Cal. 168 cited by the learned Judge, and in the ease decided by the full bench of the Rangoon High Court in King-Emperor v. V. Damwpala I.L.R.(1986) Ran. 666 . There is also the majority opinion of a full bench of seven Judges of the Allahabad High Court in Emperor v. Parbhoo  All. 843. But in our view cases decided in England on the basis of the English law ought not to be applied rigidly to the construction of an Indian statute unless there is a corresponding statute in England; and here what we are dealing with is not the Common Law of England but the combined effect of Sections 3 and 105 of the Indian Evidence Act, where proof receives a statutory definition and it is stated that a Court shall presume the absence of circumstances bringing a case within the exceptions unless the accused discharges the burden of proving the existence of such circumstances.
6. We entirely agree with the view of those learned Judges of the Allahabad High Court who pointed out the objections to applying English decisions in a case like this; and indeed they are sufficiently obvious. When you have, as we have here, a statute which is perfectly plain in its terms, it is not, we think, legitimate to construe it by reading into it a basis derived from the English law which may not necessarily have been its basis at all (at any rate not the English law as' at present understood) and which is not in accordance with the plain meaning of the statute, The words of the statute are that an accused person 'has to prove that his case falls within one of the exceptions, and in the absence of such proof the Court is bound to presume the absence of such circumstances. Now we venture to think that a simple translation of the section itself into the terms of any particular case, vising the words of the section itself to do so, will make all possible doubt on the point disappear. The; definition of 'proved' is this:-
A fact is said to be proved when, after considering the matters before it, the Court believes it to exist, 01 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.
Leaving aside the case of the Court believing it to exist (which of course presents no difficulty at all), we turn to Section 105; and taking it to be established (which undoubtedly is the fact) that accused No. 1 stabbed Benjamin through the heart, so that in that respect there is nothing more for the prosecution to do, what the accused has to do is to prove the existence of circumstances bringing the case within the exception relating to the right of private defence; and if he does not prove the existence of such circumstances, then the Court will presume the absence of such circumstances. In other words what he has to do is to induce the jury to consider the existence of circumstances giving him a right of private defence to be so probable that as prudent men they ought in the circumstances of this particular case to act upon the supposition that he had a right of private defence. What he has to do in fact is; to show that there is enough probability of the existence of a right of private defence-enough probability in short of his being attacked himself or of somebody being attacked whom he desired to protect-to make the jury as prudent men regard it as their duty to act accordingly. Once the prosecution has convinced the jury that they must act upon the assumption that the accused has committed the act with which he is charged, the accused must prove to the jury that he has a right of private defence; if he does not prove that, then the act established by the prosecution stands as a criminal act and must be dealt with accordingly, There is no question of the jury being left with reasonable doubt of the guilt of the accused. If they arc left with reasonable doubt as to the accused having committed the act which is the basis of the charge, then of course the case for the prosecution has failed and no question of self-defence arises at all. But if the act which is the basis of the charge is established, then in the same way it is for the accused to prove the existence of circumstances bringing his case within the limits of the right of private defence; and 'proof must mean the same thing in either case.
7. I may here remark that, strictly speaking, the test is not the absence of reasonable doubt, though that is often a convenient way of expressing what is meant by 'proof. The test is really the estimate which a prudent man makes of the probabilities, having regard to what must be his duty as a result of his estimate. In each case, whether proof of the case for the prosecution or proof of the defence set up by the accused, it is the estimate of probabilities arrived at from this practical standpoint by a prudent man; and we think that in a case of this kind the two questions, the proof of the case for the prosecution and the proof of the exception put forward by the defence, are two separate questions to be decided separately, since the second question does not arise until the first has been decided. The English law is that if the jury is left in reasonable doubt upon a review of all the evidence, even after the explanation of the accused has been rejected, then the acquittal of the prisoner must follow. But in India, where Section 105 is so specifically and clearly enacted, it is surely impossible to adopt such a principle unless the prosecution itself has failed to prove its own part of the case in the first instance.
8. The practical difference between English and Indian law as to the proof of exceptions is not very great; in the result it is often no more than a matter of words. But I can imagine cases where a rigid application, of the English rule based upon the English law would result in the case being approached from a wrong point of view and in a miscarriage of justice. I do not think that that has happened here. But we have nevertheless thought it desirable to state what we believe to be the proper approach to the question whenever an accused person seeks to bring himself within exceptions to the ordinary law.
9. In this connection I may refer to a question which often arises, and that is the standard of proof required for such defences and whether it differs from the standard of proof required of the prosecution. It is to be noted that the Evidence Act nowhere attempts to assess the numerical value of the probabilities which would justify a prudent man in acting upon them, and it nowhere suggests either that the numerical values of the two sets of probabilities ought to be the same or that they ought not to be the same. It has been laid down in England, in particular in the recent decision of Rex v. Carr-Byiant  1 K. B. 607 that even in cases where the law presumes some matter against an accused person 'unless the contrary is proved', the jury should be directed that the burden on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish. As to the latter part of the statement there can of course be no question as to its applicability to India, since the definition of 'proof in itself centres round probability. As to the former part of the statement that the jury should be directed that the standard of proof is lower, it may well be that in practice the standard of proof required to bring a case within one of the exceptions is lower than the standard of proof required of the prosecution to establish its own ease. In practice that is undoubtedly so in many cases, though not necessarily in all. But that is not so much because the standard itself is lower as because the standard in every case is the requirements of the prudent man, and the prudent man might well consider it his duty to act upon circumstances in the one case which he might not consider to be a justification for action in the other ease. The test either way is the estimate of probability by the prudent man and the result on the prudent man's mind as to what his duty really is in all the circumstances of the particular case; and that, we think, should be the nature of the Judge's direction on the point; he should not say either that the accused should prove his case beyond reasonable doubt or that the burden on him is necessarily less than the burden on the prosecution.
10. The next question is whether we ought to accept the final order of the learned Judge. He has said: 'I accept the verdict as it is purely on a question of fact'. Section 305 of the Criminal Procedure Code requires that the Judge shall at once discharge the jury if he disagrees with the majority; and partly from what the learned Judge has said in the course of his summing-up as to his own opinion of the facts, and partly from the wording of his order accepting the verdict on the ground that it is purely on a question of fact, it is impossible not to read into the order a statement of disagreement with the verdict coupled with a reason for accepting it. The meaning is 'I would not accept the verdict if it were not purely on a question of fact'; and that can only mean that the Judge disagreed with the verdict. I may point out that the reason given for accepting the verdict, namely that it is purely on a question of fact, is really no reason at all, since every verdict of a jury is upon a question of fact; and rigidly applied this would mean that every Judge is bound to accept every verdict of a jury.
11. If we thought that in this particular case circumstances justified the order of a fresh trial, we should undoubtedly do what a Judge should normally do when he disagrees with the verdict of the jury and should ourselves order a new trial. But in the present case we do not think it necessary to do so. We have not heard all the arguments that can arise out of the evidence in the case; but it is clear that arguments were addressed to the jury to show that the whole story had not been given out by the prosecution witnesses, and that the contradictions in the evidence were such that there must have been a good deal behind the story given by the prosecution. They were also told that the injuries to Benjamin and the injuries to the accused showed that the knife must have been in Benjamin's hand in the first instance, thereby giving rise to an absolute right of private defence in the accused. The arguments, quite clearly, did not appeal to the learned Judge, and he told the jury so in clear terms. But at the same time he said that they were not bound by his opinion even though he gave strong reasons for it, and he left it to the jury. The jury brought in a verdict amounting to a declaration of an absolute right of private defence in the accused; and they could not reasonably have done so unless they bad first come to the conclusion that the probabilities of the knife having in the first instance been in the hands of Benjamin rather than the accused were such that they ought to act upon that assumption; and we think it probable that they did in fact come to the conclusion that there was reasonable ground for believing that the knife was in the first instance in the hands of Benjamin and not in the hands of the accused. It cannot be said that that would be an unreasonable conclusion. That being so we think that there were grounds f or accepting the verdict of the jury, and we decline to direct a fresh trial.
12. For these reasons we dismiss the appeal.