1. The appellant (accused), has been convicted by the Second Additional Sessions Judge, Bhopal, under Section 302 of the Indian Penal Code for committing the murder of Mulchand by striking him with a bamboo-stick on his head on 9-10-1959 at village Barkheda-Nathu, and sentenced to imprisonment for life.
2. The prosecution case was that there was bad blood and enmity between the parties. On the date of. the incident, while the deceased Mulchand was in his field khasra No. 510/1 in the village, grazing cattle, the appellant suddenly came there from behind and hit him (Mulchand) on his head. The appellant hit him twice, the other blow being on the side of the chest (pasali), and then went away. The assault was witnessed by Dulichand (P. W. 6), a boy aged about ten years, who was present in the field with the deceased. On seeing the assault, Dulichand (P. W, 6), out of fright, had ran away to a distance of about 200 paces.
A little later, Brij Mohan (P. W. 8) came there to whom he (Dulichand) narrated the incident. Brij Mohan (P. W. 8) in turn called Pannalal (P. W. 1), the elder brother of the deceased, from his house. Pannalal (P. W. 10) enquired from the deceased as to who had assaulted him and got the reply that it was 'Bala Prasad'. Brij Mohan (P. W. 8) also alleges to have met the appellant on the way, when he was going to the grazing ground. He had then abused him and told him that he had already laid Mulchand (the deceased) to rest and some day he would beat him also. The appellant then had a lathi in his hand.
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14. The crucial point in this case is not, whether the appellant did or did not strike the deceased with a lathi on his head, but whether he struck him under circumstances which could sustain a plea on his behalf that it was done in self defence.
15. It is true that the plea arises on the evidence of Hari Singh (P. W. 9), Mitthoo Lal (P. W. 11) and Gupta (P. W. 17), and it was not raised by the appellant specifically in the committal Court or the trial Court. But, even so, it is our bounden duty to consider it if it reasonably arises From the evidence on record. In this case, however, the plea has been raised at the bar on behalf of the appellant.
16. In Chan Kau v. The Queen, (1955) AC 206 at p. 211 the Judicial Committee of the Privy Council has ruled that :
'In cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is for him, to establish provocation or any other defence apart from that of insanity. Since the decisions of the House of Lords in Woolmington v. Director of Public Prosecutions, 1935 AC 462 and Mancini v. Director of Public Prosecutions, 1942 AC 1, it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence. It has been expressly so decided in the case of self defence in Scotland and Canada, of, H.M. Advocate v. Doherty, 1954 SLT 169 and Latour v. The King, 1951-1 DLR 834'.
17. Speaking on the subject, Dixon, C.J. in Queen v. Howe, 32 ALJR 212 at p. 214 said :
'However, the defendant's counsel also put forward a plea of self defence. In dealing with that plea and the direction to the jury for which it called, it must not be forgotten that once it is raised upon evidence the jury, before they can convict of murder, must be persuaded beyond reasonable doubt that the factual constituents by which such a plea is made out or some one of them did not exist. The state of the law appears to be that once a ground is disclosed by the evidence upon which a plea oC self-defence may arise, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish that plea were not present. That appears to be the effect of the modern law: See 1955 AC 206 at p. 211.'
18. The law in India, as laid down under Section 105 of the Evidence Act, is not any differentthan that enunciated in Woolmington's case, 1935 AC 462 which is the basis of the aforesaid decisions : see Emperor v. U. Damapala, ILR 1936 Rang 666 : (AIR 1037 Rang 83) (FB), Parbhoo v. Emperor, ILR (1941) All 843 : (AIR 1941 All 402), and Holia Budhoo v. Emperor, ILR (1948) Nag 903: (AIR 1049 Nag 163). In Government of Bombay v. Sakur, AIR 1947 Bom 38, the Special Bench of the Bombay High Court took a contrary view; but at page 41 the learned Judge, Macklin J., who delivered the judgment of the Court, pointed out that the practical difference between the English and the Indian Law as to the proof of exceptions is not very great and that in the result it is often no more than a matter of words. Though it was further observed that a rigid application of the English' rule based upon the English Law may, in conceivable cases, result in the case being approached from a wrong point of view and in a miscarriage of justice, no such difficulty arises in this case, even if it be conceded that the difficulties envisaged therein were real. Consequently we have not pursued the matter to examine if and how far the English rule differs from the Indian law.
19. Even in England in Rex v. Carr Briant, 1943-KB 607, where under Section 2 of the Prevention of Corruption Act, 1916, on a charge under the Act, it is provided that a consideration shall be deemed to be given corruptly, unless the contrary is proved, the Court of Appeal ruled as follows at p. 612 :
'In any case were, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved', the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.'
Though in a previous case in Rex v. Ward, 1915-3 KB 696, when similar language had been used in the Larceny Act, 1916 (Section 28 (2) ), that very court (e. g. the Court of Criminal Appeal) had held that the jury had been misdirected when they had been told that it was for the appellant to satisfy them that he had the lawful excuse for the possession of house-breaking implements when he had given prima facie evidence of a lawful excuse. They held that on the accused giving prima facie evidence the onus was shifted on to the prosecution to prove that ho had not the lawful excuse.
20. In interpreting Section 105 of the Indian Evidence. Act we have always to bear in mind the basic principle of our criminal jurisprudence that) the accused is presumed to be innocent till his guilt is established by the prosecution beyond reasonable doubt. So strong is this presumption of innocence and so highly is the right of personal liberty prized that any attempt direct or indirect or which has the effect of casting the burden of proving his innocence upon the accused is looked upon with strong disfavour; The natural corollary of the presumption is that it is not for the accused toestablish his innocence and that if there is even the slightest doubt as to his guilt, the benefit must go to him.
The legal burden of proving beyond doubt everything that is essential for a conviction thus being on the prosecution as a matter of public policy, even where the law easts a burden on the accused to prove the existence of circumstances which bring the case under any of the exceptions or proviso, it does not expect from him the same standard of proof that is expected of the prosecution. This is expressed by saying that he has only an evidential burden of establishing a prima facie case, or that only a slight evidence is sufficient to discharge his burden and to shift the burden on the prosecution to prove his guilt beyond reasonable doubt, for as stated by Lord Sankey, L.C. in Woolmington's ease, 1935 AC 462 (supra) ;
'If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.'
21. It cannot be gainsaid that the guilt of the accused has to be determined on the whole of the evidence. It would be improper to assess the value of that evidence which favours the prosecution first and then to sec whether the presumption of guilt arising therefrom has been negatived by the prisoner. This would be very near saying that the accused would then be called upon to establish his innocence, which is not the law. The legal burden of proving the guilt remains on the prosecution throughout the case and never shifts.
What Section 105 of the Evidence Act provides is that the Court shall not presume the existence of facts which may bring a case within the exceptions, etc., i.e., the evidential burden of introducing evidence to establish any such circumstance is on him. So that if no' such evidence is on record, the accused shall run a grave risk of being convicted if the evidence against him led by the prosecution were to be believed. Such evidence may be introduced by the prosecution itself, or it may be introduced by the defence by the cross-examination of the prosecution witnesses, or by the statement of the accused under Section 342 of the Code of Criminal Procedure, or by defence evidence.
In all such cases, as soon as such evidence is introduced, which, if believed, would establish the circumstances on which the defence may rely to bring his case under any of the exceptions, etc., the burden of the accused is discharged. It is equally discharged when on a consideration of the whole of the evidence the Court is left in doubt as to whether the killing may have been under the circumstances disclosed in the evidence on record.
For the burden of proving the guilt beyond reasonable doubt is on the prosecution, and it must, before it can succeed, expressly negative every circumstance brought on the record which may tend to establish the defence. It is on the totality of the evidence that the guilt of the accused has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge.
22. Explaining the position under the English law, Lord Goddard, C. J., speaking for the Court of Criminal Appeal in Regina v. Lobell, 1957-1 QB 547 at p. 551, said :
'It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. It an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty.'
23. In the instant case neither the evidence of the eye-witness nor that of the other witnesses, at all --let alone satisfactorily -- explains the various facts which fairly raise and establish that the killing may well have been in self defence. Unless we are satisfied that one, or other, or all of the ultimate facts which establish the plea were not present, the conviction of the appellant cannot be sustained.
24. The deceased was armed with a ballam (Article A), for how else could the appellant obtain its possession and hand it over to Mitthoolal (P.W. 11). There appears to have been a quarrel between the parties over the founding up of the cattle of the deceased, which may have entered the field of the appellant. There is no other explanation for the genesis of the quarrel. The absence of blood stains at the spot where the prosecution witnesses say that the quarrel occurred shows that they may be lying on the point.
It appears most probable that the deceased had struck the appellant on his back with the stick part of the ballam (Article A) causing an injury and a swelling on it, which fact again has been concealed by the eye-witness Dulichand (P. W. 6), according to whom, the deceased had only a small stick of the thickness of the thumb which he did not use at all in striking the appellant. The story of the assault by the deceased on the appellant thus appears reasonably probable and if, under these circumstances, the appellant hit the deceased on his head with a stick in his hand, could it be said that he had no justification for it or that he had exceeded the right of private defence?
Faced with a situation where the deceased was an aggressor and was armed with a ballam, which he could have used as such, even though his first stroke was with the handle part of it, we agree with Homles, J, in Beard v. United States, 1895-158 U.S. 550 at p. 559 that 'detached reflection cannot be demanded in the presence of an upliftedknife', and hold that, under the circumstances, the appellant could have a reasonable apprehension of danger to his life and was therefore justified in completely disabling his adversary. We are further of opinion that if in that attempt he happened to inflict the injury with a little more force than absolutely necessary, he could not be held liable.
It is for such a situation that it is often said that one cannot weigh in golden scales what maximum amount of force is necessary to keep within the right of private defence : (see Amjad Khan v. The State, 1952 SCR 567 : (AIR 1952 SG 165)). The law makes every allowance to a person who apprehends a reasonable danger to his life from his adversary, and with intent of self preservation strong upon him pursues his defence a little further than what to a perfectly bystander may seem absolutely necessary.
25. The burden on the accused of establishing circumstances which bring the case under an exception is not as onerous as the burden on the prosecution of establishing its case beyond reasonable doubt. In the instant case the defence is established by proof of circumstances which support a plea of self defence from the prosecution evidence itself, which we have no reason to doubt and which the prosecution has not negatived.
26. The appeal is, therefore, allowed. The conviction and sentence of the appellant (accused) are hereby set aside and he is acquitted of the offence of murder. He shall be released forthwith.