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Yusuf Sk. and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 34 of 1952
Judge
Reported inAIR1954Cal258
ActsCode of Civil Procedure (CPC) , 1908; ;Evidence Act, 1872 - Sections 3, 103 and 105; ;Indian Penal Code (IPC), 1860 - Sections 96, 99 and 326; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 154, 297 and 429
AppellantYusuf Sk. and ors.
RespondentThe State
Appellant AdvocateBibhuti Bhusan Das Gupta and ;Suresh Ch. Taluqdar, Advs.
Respondent AdvocateS.M. Bose, Adv. General and ;N.C. Sen, Adv.
Cases ReferredRex v. Carr
Excerpt:
- mitter, j. 1. this appeal involves a point of law of great importance in the administration of criminal justice, and as we find ourselves in respectful disagreement with at least one decision of a division bench of this court, that of roxburgh and blank, jj. in -- 'ashiruddin ahmed v. the king' air 1949 cal 182 (a), i feel it to be our duty to refer the question for the decision of a full bench to be constituted by the learned chief justice. my learned brother is, however, of the opinion that the said decision is not binding upon us and that the matter should accordingly rest here. i do not agree. moreover, the point of law is of such importance that it deserves to be considered by a fuller bench. this case must, therefore, be placed before the learned chief justice for such action as he.....
Judgment:

Mitter, J.

1. This appeal involves a point of law of great importance in the administration of criminal justice, and as we find ourselves in respectful disagreement with at least one decision of a Division Bench of this Court, that of Roxburgh and Blank, JJ. in -- 'Ashiruddin Ahmed v. The King' AIR 1949 Cal 182 (A), I feel it to be our duty to refer the question for the decision of a Full Bench to be constituted by the learned Chief Justice. My learned brother is, however, of the opinion that the said decision is not binding upon us and that the matter should accordingly rest here. I do not agree. Moreover, the point of law is of such importance that it deserves to be considered by a fuller Bench. This case must, therefore, be placed before the learned Chief Justice for such action as he may be minded to take.

2. The point of law involved concerns the nature and extent of the burden which is placed upon an accused by Section 105, Evidence Act which is as follows :

'When a person is accused for 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.'

3. Having regard to the terms of Section 105, the question for decision is : Is the extent of the onus on the accused the same as that which lies upon the prosecution or is the accused entitled to be acquitted if there is reasonable doubt as to the existence of the circumstances which bring the case within any of the exceptions concerned? Before we answer the question, we must state the facts which give rise to it.

4. In the course of a quarrel with their neighbours over the ownership of a tree, ' the appellants were alleged to have committed offences, 'inter alia' under Sections 148, 325 and 304, I. P. C. In the course of that quarrel, appellant Yusuf Shaikh is alleged to have picked up from the ground an axe and to have hit with it one Mir Hossain on his head. Mir Hossain died as a result of the injuries. It was the prosecution case that the tree concerned was in the joint possession of the appellants and their neighbours, the complainants, whereas the appellants' case was that it was in their exclusive possession and that they were its owners.

It was alleged that the quarrel started with an attempt on the part of the complainants to take away a branch of that tree when the appellants resisted saying that it was their property. Although various other defences were taken by the appellants, the right of private defence to both person and property was one of them. In dealing with this case the learned Sessions Judge charged the jury as follows :

'It is pertinent to tell you here that if the right of private defence is claimed by an accused as a lawful excuse for his act, the burden of proof rests upon him. Section 96, Penal Code is one of the general exceptions and lays down that nothing is an offence which is done in the exercise of the right of private defence. You must remember that 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 is upon him and the Court shall presume the absence of such circumstances (section 105 Evidence Act read and explained). It follows therefore that an accused is not entitled to the benefit of any exception such as that provided for in Section 98, Penal Code merely because there is a reasonable doubt in the mind of the Court about the existence of circumstances bringing the case within the exception.'

The concluding portion of the passage quoted involves the direction that in order to entitle an accused to the benefit of the exception in Section 96, Penal Code the accused must prove beyond reasonable doubt the existence of circumstances which bring the case within that exception. It is clear that if the learned Judge was wrong in so directing, it was a serious misdirection.

5. As to the topic of onus in a criminal trial,we can only repeat what has been, and we hopewill be, the main proposition of law, namely, thatthe burden of proving everything essential to theestablishment of a charge against an accused liesupon the prosecution and that that burden neverchanges. It is only in cases where the prosecution has brought home a charge, but the accusedwishes to avoid it by reason of any of the exceptions that the question of any onus being placedupon the accused arises. Section 105, EvidenceAct provides for it.

6. In some of the earlier Calcutta cases there were clear indications that whenever an accused pleaded any of the exceptions, the onus was upon him to establish the circumstances which entitled him to the protection of the exception. See --'Asiruddin Ahmed v. King Emperor' 8 Cal WN 714 (B). Pratt and Handley, JJ. who constituted the Bench observed :

'The law requires that when one man takes away the life of another man, he should show circumstances which justify his doing so. Even, assuming that the accused was exercising the right of private defence, it lay upon him to show that he did not exceed that right, and the onus lay upon him to prove the circumstances from which the Court might conclude that he was justified in going to such an extreme length as causing grievous hurt by killing a man. We cannot go upon surmises as to what took place. We are bound to decide by the evidence so far as we find it credible and we cannot assume the existence of circumstances which the accused has refrained from substantiating.'

The proposition of law as stated above is without any qualification.

In the Full Bench case or --'Emperor v. Upendra Nath Das' AIR 1915 Cal 773 (C), it was held that under Section 105, Evidence Act the Court had to regard the absence of grave and sudden provocation as proved until the contrary was proved by the accused on whom the onus lay. Here again the law of the matter was stated without any qualification.

In -- 'Robert Stuart Wauchope v.' Emperor' : AIR1935Cal800 , it was laid down that even when the legislature put upon the accused the burden of proving certain matters, he was in a much more favourable position than the prosecution, because he was not in general called upon to prove them beyond reasonable doubt, but it was sufficient if he succeeded in proving a 'prima facie' case. This proposition of law was also stated without any qualification.

In -- 'AIR 1949 Cal 182 (A)', Roxburgh and Blank, JJ. held that the standard of proof required from an accused was not the standard of proof required from the prosecution. This is how their Lordships expressed themselves : 'Our own opinion is that had the matter been, properly put to the jury together with the direction that the standard of proof required from the accused was not the standard of proof required from the prosecution, it is highly probable that they would have found in favour of the accused under Section 84 Penal Code and by the learned Judge's misdirection on this point there has been failure of justice.'

This was a case in which on the facts the learned Judges found that the accused was of unsound mind when he committed the crime. The proposition of law as laid down in this case was again without any qualification. It seems to me that although the learned Judges did not in terms interpret Section 105, Evidence Act, there can be no doubt that they were conscious of the provisions of Sections 101 and 105, Evidence Act.

In the meantime, a Full Bench of the Rangoon High Court in -- 'Emperor v. U. Damapala' AIR 1937 Rang 83 (E), had held that the principles laid down in the House of Lords case of _-- 'Wool-mington v. The 'Director of Public Prosecutions' 193'5 AC 462 (F), were in accord with the law as embodied in Section 105, Evidence Act. I feel, therefore, that this case -- 'AIR 1949 Cal 182 (A)', if not also the case in -- 'AIR 1933 Cal 800 (D)', in binding upon us and that in view of our disagreement with it we should refer the matter to a Full Bench for final adjudication.

In a recent case, -- 'Dhirendra Nath v. The State', : AIR1952Cal621 (G), Chakravartti and Sinha, JJ. touched upon the point but did not decide it. Chakravartti, J., as he then was, in delivering the judgment of the Court, observed :

'Whether or not an accused person, taking a plea of the right of private defence, is to prove it in the same manner as the prosecution is required to prove its case or whether a lower standard of proof would suffice, the accused must at least make a case out of which a plea of the right of private defence might arise.'

7. Reverting now to decisions of other High Courts, a Full Bench of the Rangoon High Court in -- 'AIR 1937 Bang 83 (E)', held that as to the standard of proof required of an accused, the law in India was the same as the law in England and that the House of Lords' decision in -- '1935 AC 462 (F)', was a binding authority in interpreting the terms of Section 105, Evidence Act.

The majority view of a Full Bench of the Allahabad High Court in -- 'Pratahoo v. Emperor' : AIR1941All402 , was in accord with the decision of the Rangoon Full Bench. The minority, consisting of Collister, Allsop and Braund, JJ., took the view that the relative law in England as laid down in -- 'Woolmington's case (F)', was not the same as the law in this country as embodied in Section 105, Evidence Act. The minority view was that nothing short of proof of circumstances bringing a case within one of the exceptions could entitle an accused to its benefit, once the prosecution had proved its case.

A special Bench of the Bombay High Court in -- 'Govt. of Bombay v. Sakur' AIR 1947 Bom 38 (1), held that Section 105, Evidence Act placed upon an accused an onus which he had to discharge.

Speaking generally, the same view was taken by the Saurastra High Court in --'Jadeja Danubha v. State' AIR 1952 Sau 3 (J).

The latest Bombay case, as far as we know, is the case of -- 'Harprasad Ghasiram v. State', : AIR1952Bom184 (K), in which it was held that the onus of proving an exception was on the defence. For the purpose of referring this matter to a Full Bench for its decision, it is not necessary to refer to any other case.

8. On a consideration of the relevant sections of the Indian Evidence Act, we have come to the conclusion that in order to avail himself of the protection of any of the exceptions, an accused must prove the presence of the circumstances mentioned in it. The standard of proof is that which is required by Section 3, Evidence Act. Therefore, If the accused fails affirmatively to establish the existence of the circumstances, he cannot taka advantage of the exception. The concluding words of Section 105, viz., 'the Court shall presume the absence of such circumstances' make it clear that the onus under Section 105 is not discharged until the presence of the circumstances is proved. Clause (2) of Section 4 provides ; 'Whether it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.' A 'fact' under Section 3 means and includes :

'(1) anything, state of things, or relation of things capable of being' perceived by the senses; (2) any mental condition of which any personis conscious.'

The expression 'facts in issue' means and includes :

'any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied In any suit or proceeding, necessarily follows.'

It is clear that the absence of certain circumstances is also a fact. Under Section 105 the Court shall presume a fact, namely, the absence of circumstances, as proved, unless and until it is disproved, that is, unless and until the absence of such facts is disproved. As we have already indicated, the question of an onus under Section 103 only arises after the prosecution has established the commission of an offence. Therefore, the proposition of law that the burden of proving everything essential to the establishment of a charge is upon the prosecution and that that burden never shifts is not affected by any onus which is cast upon the accused by Section 105, Evidence Act. This is what was meant by the Privy Council decision in -- 'Stephen Seneviratne v. The King' AIR 1936 PC 289 (1). In our view, 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.

9. I would, therefore, hold that the learned Sessions Judge's direction to the jury as to the topic of onus under Section 105, Evidence Act was a proper direction. That being so, the appeal is liable to be dismissed. In view of the difference alluded to above, no order can be passed at this stage. The final order must await the decision of another learned Judge or of a Full Bench, as the case may be.

Sen, J.

10. This appeal arises from a decision of Sri C. C. Chakravartty, Assistant Sessions Judge, Murshidabad.

11. The case arose out of a fight between close relatives. C. S. Plot No. 4425 of Mouza Nawda is a tank known as Dhalta Pukur. To the contiguous east of that tank is C. S. Plot No. 4424. The tank is the joint property of one Golam Rahaman and his brothers including one of the appellants Eusuf Shekh and of the paternal cousins of Golam Rahaman and Eusuf Sk. including the appellants Jiaratulla and Takdir AH. ,C. S. Plot No. 4424, on the other hand, is the exclusive property of the appellants; Golam Rahaman and his sons have no share therein. According to the prosecution case, there was a blackberry tree on the eastern bank of the tank, C. S. Plot No. 4425, appertaining to that plot, and on 4-7-1951, the appellants Eusuf Shekh, Jiaratulla, Takdir Ali and others cut down the branches of the blackberry tree and removed most of the branches.

At that time, Keramat Ali Shekh, Abdur Rahid and Mir Hossain, who were some of the sons of Golam Rahaman, were away from their home. It should be mentioned that the homesteads of the parties are situated in the close neighbourhood of the tank. When Keramat Ali. Mir Hossain and Abdur Rahid returned home, they found out that the branches o! the blackberry tree which they claimed as common property of the parties had been cut down and appropriated mostly by the accused's party. They, therefore, went to the bank of the tank and began to remove one big branch of the tree that was still lying at the spot. This was about 4 or 4-30 P.M. On seeing Keramat Ali, Abdur Rahid and Mir Hossain trying to remove the branch of the tree to their own house, the accused party consisting of the appellants Eusuf Shekh, Jiaratulla, Takdirali Shekh, Eadulla Shekh, Reastulla Shekh and Rahamatullah Shekh and other persons attacked Keramatali, Abdur Rahid and Mir Hossain. In the course of the incident, Eusuf Shekh gave a severe blow on the head of Mir Hossain with the back or blunt side of an axe and as a result of the injury, Mir Hossain fell down and became unconscious. He never recovered consciousness and died of the injury. Mahitan Bibi, mother of Keramatali, Abdur Rahid and Mir Hossain; Mesena Khatun, a sister of Keramatali, and others came and protested against Keramatali, Abdur Rahid and Mir Hossain being assaulted in that way by the accused party. Thereupon, Mahitan Bibi and Mesena Khatun were also assaulted by the accused party. Mesena Khatun had a fracture in a finger of the left hand. Abdur Rahid filed a petition of complaint in Court on 5-7-1951 but the petition of complaint was sent to the police for investigation. In due course, the police submitted a charge sheet against the appellants, and after a preliminary enquiry, resulting in the commitment of the appellants, the appellants were placed on trial before the learned Assistant Sessions Judge.

12. There was a charge under Section 304, Penal Code against Eusuf Shekh for culpable homicide not amounting to murder by intentionally causing the death of Mir Hossain. There was a charge under Section 325, Penal Code, against Eadulla Shekh for voluntarily causing grievous hurt to Mesena Khatun. There were several charges under Sections 323 and 324, Penal Code, against Jiaratulla, Rahamatullah, Takdirali, Eadulla and Reastulla for causing injuries to various persons of the complainant's party. There was also a charge, of rioting against all these appellants.

13. The defence case was that the blackberry tree stood on C. S. Plot No. 4424 of Mouza Nawda and was the exclusive property of the accused party, and that on 4-7-1951, Takdirali and Jiaratulla cut down some branches of the blackberry tree and at that time, the complainant's party consisting of Syed Ahmed, Keramat Ali, Abdur Rahid, Mir Hossain and others trespassed upon C. S. Plot No. 4424 and tried forcibly to carry away a branch of the blackberry tree which Takdirali and Jiaratulla had cut down, and in trying to carry away the branch of the tree, they also assaulted Takdirali, Jiaratulla and Reastulla.

Thus the accused party claimed the right of private defence against the complainant's party. In respect of Eusuf Shekh, a defence of alibi was taken. He stated, when questioned by the Court, that he had suffered from pleurisy on several occasions and he got an attack of fever attended with cough some 15 or 20 days before the date of occurrence and that on 3-7-1951, the day before the occurrence, he went away by the afternoon train to Ichapur & on 4-7-1951 he was at Ichapur consulting Dr. Anil Kanta Bhattacharjee and other doctors, and that he was not present at the time of the occurrence at all.

14. The jury returned a unanimous verdict of guilty against Eusuf Shekh under Section 326, Penal Code and the learned Judge, accepting the verdict of the jury, sentenced Eusuf Shekh to suffer rigorous imprisonment for six years. The jury found all the accused not guilty of the charge of rioting. They found Eadulla Shekh guilty of the charge under Section 325, Penal Code and the learned Judge accepting that verdict, sentenced Eadullah Shekh under Section 325, Penal Code, to suffer rigorous imprisonment for two years.

The jury also unanimously found Jiaratulla guilty on three counts under Section 323, Penal Code, for voluntarily causing hurt respectively to Mahitun Bibi, Abdur Rahid and Keramatali. They found Rahamatulla guilty on two counts under Section 323, Penal Code, for voluntarily causing hurt, respectively to Mesena Khatun and Keramatali, and on one count under Section 324, Penal Code for voluntarily causing hurt to Abdur Rahid with a pointed weapon; they found Takdirali guilty on one count under Section 323 Penal Code, for voluntarily causing hurt to Keramatali and on one count under Section 324, Penal Code for voluntarily causing hurt to Atadur Rahid with a pointed weapon; they found Eadulla Shekh guilty on one count under Section 323, Penal Code, for voluntarily causing hurt to Mir Hossain and they found Reasatulla guilty on two counts under Section 323, Penal Code for voluntarily causing hurt respectively to Mesena Khatun and Mir Hossain.

The learned judge accepted the unanimous verdict of the jury and sentenced the appellants to a fine of Rs. 500/- in default, rigorous imprisonment for six months for causing hurt to each of the women and to a fine of Rs. 100/-; in default, rigorous imprisonment for one month, for causing hurt to each of the men of the complainant's party.

15. In this appeal, the first point urged is that in laying down the law as regards the right of private defence, the learned Judge seriously misdirected the jury. The learned Judge explained the law relating to the right of private defence at length and referred to Sections 96 to 106, Penal Code and read out and explained the sections.

After explaining the law as contained in Sections 96 to 106, Penal Code, the learned Judge observed that if the right of private defence was claimed toy, the accused as lawful excuse for his act, the burden of proof would rest on him. In this connection, the learned Judge read out and explained Section 105, Evidence Act and then observed as follows:

'It follows, therefore, that an accused is not entitled to the benefit of any exception such as that provided for in Section 96, Penal Code merely because there is a reasonable doubt in the mind of the Court about the existence of circum-stances bringing the case within the exception. The burden of proving the existence of circumstances bringing the case within the exception is upon the accused and the Court shall presume the absence of such circumstances.'

16. It is urged by Mr. Talukdar, appearing on the half of the appellants, that this direction amounted to a misdirection; because, according to Mr. Talukdar, the correct position of law is that where the evidence adduced by the accused to show that the case falls within an exception fails to satisfy the Court of the existence of circumstances bringing the case within the exception pleaded, the accused is still entitled to be acquitted, if on a consideration of the evidence of both sides, the Court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the exception pleaded; that the test is not whether the accused has proved beyond reasonable doubt that he comes within the exception, but whether he has succeeded in throwing a reasonable doubt on the question of his guilt.

In support of this proposition, Mr. Talukdar has relied mainly on two rulings. The first case --'AIR 1937 Rang 83 (E)' is a Full Bench decision of the Rangoon High Court. In that case, the following question, amongst others, was referred for the decision of the Full Bench:

'(1) When a person is accused of any offence, and alleges the existence of circumstances which bring the case within the General Exceptions of 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, does Section 105, Evidence Act or any other rule of law provide that when facts 'prima facie' constituting the offence are proved by the prosecution, and from the examination of the accused or evidence tendered by the defence in attempted discharge of the burden of proof then laid upon the accused by the said Section (105), the Court has a reasonable doubt as to whether the said burden of proof has been discharged by the accused person, or as to the truth of the statement of the accused or evidence tendered, should the Court convict the accused?'

The Full Bench of three Judges gave unanimous reply in the negative, i.e., to the effect that the Court should not convict the accused where the Court has a reasonable doubt as to whether the burden of proof about the existence of circumstances bringing the case within a General Exception or a Special Exception of the Indian Penal Code has been discharged by the accused. In other words, the Court laid down that if the accused succeeded in raising a reasonable doubt that his defence might be true, the accused would be entitled to an acquittal.

17. The other case is an Allahabad Full Bench case -- 'AIR 1941 All 402 (H)'. Seven Judges of the Allahabad High Court constituted the Full Bench. By a majority of four to three they affirmed the proposition that in a case in which any general or special exception in the Penal Code is pleaded by an accused person and evidence is adduced in support of the plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general or special exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole, a reasonable doubt is created in the mind of the Court whether or not the accused person is entitled to the benefit of the said exception.

The Full Bench of the Rangoon High Court and the majority of the Judges of the Full Bench of the Allahabad High Court rested their decision on the authority of the House of Lords' case - '1935 AC 462 (F)'. In that case, the accused, Woolmington was tried for the murder of his wife by shooting her and a two-fold defence was taken, namely, that it was a case of accident, and that it was a case of the accused acting under provocation. Their Lordships of the House of Lords laid down the following law:

'If the jury are either satisfied with his (accused's) explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.'

18. Now, the corresponding provisions of the Indian Evidence Act are contained in Sections 101 and 105, taken with the definitions of 'proved', 'disproved' and 'not proved' in Section 3 and 'shall presume' in Section 4, Evidence Act. Section 105, Evidence Act provides that 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. Section 4, Evidence Act provides that whenever it is provided by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

It is clear, therefore, that according to the Indian Evidence Act, if after a review of the evidence, the Court is left in reasonable doubt whether the explanation of the accused is true or not, the Court cannot give the benefit of doubt to the accused. The Court is to regard as 'proved' the absence of circumstances bringing the case within any of the general or special exceptions, when the accused fails to satisfy the Court as to the existence of such circumstances. Caution is necessary in respect of English decisions on a point of law on which the Indian Law is codified, because in such cases, the Code or the statute alone will govern the Indian Law, and the English decisions may be used only to help to interpret the words of the statute if obscure. The House of Lords' decision laying down the law on the particular point of law of evidence is of the highest binding force on all courts in England, but where the provisions of the Code under which the Indian Courts are governed are different, the House of Lords' decision cannot be followed in India. In this connection I may refer to the observations of the Federal Court in -- 'Niharendu Datta Majumdar v. Emperor AIR 1942 FC 22 (M). At p. 24, second column, their Lordships of the Federal Court observed as follows:

'The Indian Evidence Act, 1872, is no doubt mainly based upon the English law; but it is by no means an exact reproduction of it. The English law of evidence also has never been codified, and judicial decisions may well have developed dr expanded some of its principles since 1872. Caution is therefore necessary in the application of English authorities on the subject in an Indian Court.'

19. A study of the case -- 'Woolmington v. The Director of Public Prosecutions (F)' shows that the House of Lords examined with reference to first principles the then existing statements of the law relating to the burden of proof resting on the accused to establish justification or alleviation of an act which is prima facie criminal, and restated the law in a way which considerably modified and developed the law on the point. Woolmington was convicted for the murder of his wife at the Bristol Assizes on 14-2-1935 before Swift J. and a jury.

Swift J. in his summing up to the jury stated 'If you come to the conclusion that she (Wopl-mington's wife) died in consequence of injuries from the gun which he was carrying, you are put by the law of this country in this position The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse of justification. 'In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner, unless they arise from the evidence produced against him for the law will presume the fact to have been founded in malice until the contrary appeareth'. (Foster's Crown Law (1762) p. 255). That has been the law of this country for all time since we had law. Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which caused the death can satisfy a jury that what happened was something less, something that might be alleviated, something that might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified.'

20. The above statement of law appears precisely to be the law as contained in Section 105, Evidence Act. The Court of Criminal Appeal dismissed Woolmington's appeal from the conviction by Swift J., observing that there could be no. question that the learned Judge laid down the law applicable to a case of murder in the way in which it is to be found in the old authorities.

The House of Lords conceded that there was-apparent authority for the law as laid down by the learned Judge; that the proposition of law was contained in Foster's Crown Law written in 1762; and that the passage from Foster was repeated in Stephen's Digest of Criminal Law; in the well known treatise of Archbold, Criminal Pleading, Evidence and Practice; in Russell on Crimes; and in the second edition of Halsbury's Laws of England, purporting to state the law as on 1-5-1933.

The House of Lords however disapproved of that statement of law, and observed that the principle that the prosecution must prove the guilt of the prisoner was part of the common law of England and that no attempt to whittle it down could be entertained; that where intent was an ingredient of a crime there was no onus on the accused to prove that the act alleged was, accidental; and that if at the end of and on the whole of the case there was a reasonable doubt. created by the evidence given by either the prosecution or the defence, as to whether the prisoner killed the deceased with a malicious intention, the prosecution had not made out the case and the prisoner was entitled to, an acquittal.

21. It should be noted that the House of Lord made an exception in respect of the defence of insanity, and did not seek to reverse the law laid down in the case of -- 'Reg v. M'Naughton' (1843) 4 St. Tr. (NS) 847 (N), viz., that insanity, if relied upon as a defence, must be established by the accused.

22. Thus as regards the defence of insanity, which comes within- the General Exceptions in the Indian Penal Code, the English Law remains the same as the Indian law as contained in Section 105, Evidence Act taken with illustration (a). As regards other defences falling within the General or special exceptions in the Indian Penal Code the law contained in Section 105, Evidence Act tallies with the older statements of the English law as contained in the authorities from Foster to Halsbury's Laws of England, second edition, and not, with the restatement of the law by the House of Lords in Woolmington's case. The law as restated by the House of Lords is no doubt more favourable to the accused, but it is not necessarily better calculated to secure justice; and we must in any case follow the very clear and strong terms of Section 105, Evidence Act which is the law of evidence in India.

23. It is true that in the Allahabad Full Bench, case and the Rangoon Full Bench case, their Lordships did mention the point that the law of evidence in India was the law as codified in the Indian Evidence Act. But they held, for reasons which appear to be unconvincing, that the Indian; Law on the point as laid down in Section 105, Evidence Act was identical with the law laid down in --'Woolmington v. The Director of Public Prosecutions (F)'.

24. Turning to the Allahabad Full Bench decision -- 'Parbhoo v. Emperor (H)', it appears that out of the seven Hon'ble Judges constituting the Full Bench, four Judges led by Iqbal Ahmad, C.J., decided to follow this House of Lords ruling while three other Judges led by Collister, J. refused to follow the ruling, and held the law as contained in Section 105, Evidence Act was quite different. Iqbal Ahmad, C. J., noticed the criticism that the law of evidence regulating judicial proceedings in India was governed by the Indian Evidence Act, and that it was not permissible to travel beyond the provisions of that Act and to allow the decision of the question under consideration to be coloured by the decision of the House of Lords in -- '(1935) AC 462 (P)'.

Iqbal Ahmad C. J., met this objection in two ways. Firstly, he observed that the Indian Evidence Act was little more than an attempt to reduce the English law to the form of express propositions arranged in their natural order with some modifications rendered necessary by the peculiar circumstances of India, and that in the circumstances, recourse, might be had to English decisions in order to interpret particular provisions of the Act when they were of doubtful import owing to the obscurity of the language in which they had been enacted. But his Lordship did not proceed to consider the point whether there was any obscurity in the language of Section 105, Evidence Act, and whether there was anything of doubtful import therein.

The second reply given by Iqbal Ahmad, C. J., was that though the Evidence Act did in certain respects differ from English law and supplied a distinct body of law as to the rules of evidence it, could not be believed that the framers of the Indian law could or did intend to depart from the English law on the subject under discussion, namely, the question of the burden of proof on the accused to establish a special defence. His Lordship observed that according to the fundamental principles governing the trial of criminal cases, the onus of proving everything essential to the establishment of the charge against the accused was on the prosecution, and therefore, the House of Lords laid down that where there was any doubt whether or not the accused was entitle-ed to the benefit of an exception, it could not be held that the charge had been proved.

It would appear that herein Iqbal Ahmad, C. J., was merely following the English law without considering the provisions of Section 105 and cognate sections of the Indian Evidence Act, and without considering that the English law on the point might have developed since the enactment of the Indian Evidence Act. In his judgment in the same case, Collister J. after analysing the decision of the Rangoon Full Bench, recited the relevant provisions of the Indian Evidence Act, and came to the conclusion that there was an irreconcilable difference between the Indian law on the subject & the English law as laid down in -- 'Woolming-ton v. The Director of Public Prosecutions' (F); and he came to the conclusion that the House of Lords' decision could not be followed in India.

The reasoning of Collister J failed to carry by a majority of four to three, as already observed. Prom the report of the Rangoon case, -- 'AIR 1937 Rang 83 (E)', it appears that the Government Advocate as well as the defence Advocate agreed in submitting to the Court that the Indian law of evidence as contained in Section 105, Evidence Act was identical with the law as laid down in --'Woolmington v. The Director of Public Prosecutions (F)' and the three Hon'ble Judges constituting the Bench accepted that submission, and Observed that all that Sections 105 and 106, Evidence Act required the accused to do was to lead some evidence in support of his contention, but that the accused had no liability to prove his contention conclusively, and it was sufficient if he could establish a reasonable doubt in the case for the prosecution, and that it was not necessary for him, to prove beyond reasonable doubt that he came within any of the exceptions. With due respect, it may be observed that this was reading the law as laid down by the House of Lords into the words of Sections 105 and 106, Evidence Act, without considering whether the words of the sections bear such interpretation. Their Lordships did not at all consider the effect of the second part of Section 105, Evidence Act, namely that the Court shall presume the absence of such circumstances. As regards the first part of the section, their Lordships took the words 'burden of proving' to mean the liability to lead evidence. But it is difficult to agree with that view. Particularly, in view of the last part of that section, it would be more logical to interpret the words. 'burden of proving' as meaning the burden of proving with the meaning of Section 3, Evidence Act, that is, of satisfying the Court as to the existence of circumstances alleged. In this connection I may refer to the observations of Collister, J. and Allsop, J. in the Allahabad Full Bench case. Both of them were strongly of the opinion that the words 'burden of proving' in Section 105, Evidencer Act could not mean the liability to lead evidence, but must mean the liability to satisfy the Court as to the existence of the particular facts, and I respectfully agree.

25. Mr. Talukdar, on behalf of the appellants, has referred to certain decisions of other High Courts, e.g., -- 'Holia Budhoo v. Emperor' and -- 'Narayan Raut v. Emperor' AIR 1948 Pat 294 (P), where the decision--in Woolmington's case has been followed. But, in these cases, it appears that the authority of the House of Lords was accepted without attempting an interpretation of Section 105, Evidence Act.

The question of interpretation of Section 105, Evidence Act was, however, considered by a Special Bench of the Bombay High Court in -- AIR 1947 Bom 38 (SB) (1). The Special Bench consisting, of three Hon'ble Judges of the Bombay High Court held that English law on the point as restated in -- 'Woolmington's case (F)', was different from the Indian law, as contained in Section 105, Evidence Act, and could not be followed in. India, observing as follows: 'Where the Indian statute is plain, it is not legitimate to construe it by reading into it a basis derived from the English Law, which may not in accordance with the plain meaning of the statute.'

In that case, their Lordships of the Bombay High. Court discussed the Allahabad Full Bench decision and the Rangoon Full Bench decision and decided to follow the minority view of the Allahabad Full Bench case. The following observations made by the Bombay Special Bench are relevant as summarising the Indian law on the subject; 'Once the prosecution has convinced the jury that they must act on the assumption that the accused has committed the act with which he is charged, (stabbing the deceased through his heart in this case), the effect of Section 105 is that 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 are 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.' This Bombay Special Bench decision has been followed in other Bombay cases of which I may refer to the case in -- ' : AIR1952Bom184 (K)'. It has also been followed by the newly constituted Saurashtra High Court in the case of --'AIR 1952 Sau 3 (J)'.

26. There is no decision of the Calcutta High Court where the interpretation of Section 105, Evidence Act and other relevant sections has been considered in the light of -- 'Woolmington's case (F)'. A review of the Calcutta cases on the point from the earliest times after the enactment of the Indian Evidence Act in 1872 goes to show that the Calcutta High Court has always taken, the view that when the accused takes up a special defence falling within a general or a special exception referred to in Section 105, the burden of proving the same is on the accused.

In the case of --- Jamsheer Sirdar, In re', 1 Cal L R 62 (Q), it was held as follows:

'It is for those who raise the plea of private defence to prove it. The act charged cannot be denied, and the plea of private defence raised as an alternative. If raised, a full account of the occurrence must be given in evidence.'

In -- '8 Cal W N 714 (B)', it was held as follows:

'When one man takes away the life of another man, the onus is on him to show circumstances which justify his doing so. If the act was done in the exercise of the right of private defence, it still lies on him to show that he did not exceed the right.'

These decisions were approved in a Full Bench decision of the Calcutta High Court in -- 'AIR 1915 Cal 773 (C)'. At p. 778, their Lordships observed as follows:

'It (question of grave and sudden provocation) is an exception, and the burden of proving the existence of circumstances bringing the case within the exception was upon the accused, and the Court had to presume the absence of such circumstances, that is to say, it had to regard the absence of such circumstances as proved unless and until the contrary was proved. (Evidence Act, Sections 105 and 4).'

In the course of the judgment, the decision in --'Jamsheer Sirdar's case (Q)' was expressly approved. In two recent cases, some contrary observations were made, but these cases do not in my opinion alter the law as understood in this Court. In -- 'AIR 1933 Cal 800 (D)', it appears to have been laid down by Lort Williams and Henderson, JJ. for the first time that;

'Even when the legislature has put upon the accused the burden of proving certain matters, he is in a much more favourable position than the prosecution, because he is not in general called upon to prove them beyond a reasonable doubt, but it is sufficient if he succeed in proving a 'prima facie' case.'

In this case, however, which was one under Section 409, I. P. C., and there was no special defence, their Lordships were not called upon to interpret Section 105, Evidence Act; and the above observation was anade in some abstract discussion on the law, and moreover, they relied for their authority on Phipson's Law of Evidence, which is a text book on the English Law of Evidence, for the proposition quoted above and did not consider whether the Indian Law on the point could be regarded as identical.

In the circumstances with great respect, this observation which was obiter cannot be accepted as good authority. In -- 'AIR 1949 Cal 182 (A)', Roxburgh and Blank JJ. repeated the proposition that the standard of proof required from the accused was not the standard of proof required from the prosecution, and a jury should be given, direction accordingly, so as to enable them to return a correct verdict. On the facts of the particular case, it might be held that the defence of insanity had been proved, without calling in aid this proposition that the standard of proof required of the accused was lower, because the case depended, to a large extent, on the confession of the accused, who was charged with the murder of his own son, and the confession of the accused showed that he was clearly suffering under a mental delusion, namely, of having been ordered by Heaven to give his son as sacrifice.

Therefore, the observation as to the standard of proof required from the accused was an 'obiter dicta'. The learned Judges gave no reasons for the observation, and made no reference to the Indian Evidence Act. The observation runs clearly contrary to the provisions of the Indian Evidence Act. The definitions of 'proved' disproved' and 'not proved' in Section 3, Evidence Act apply equally when the burden of proof is on the prosecution and when the burden of proof is on the accused. In the circumstances, I do not feel bound by the decision quoted above, and feel no need to refer the case to a Full Bench.

27. Mr. Talukdar, appearing for the appellants, has referred to certain other decisions including a decision of the Privy Council. But these cases do not deal with the question of interpretation of Section 105, Evidence Act. The Privy Council case referred to by him is -- 'AIR 1936 PC 289 (1)'. In that case, the question involved was a question of interpretation of Section 106, Evidence Act, namely, how far the prosecution could rely on the principle that where any fact is specially within the knowledge of any person, the burden of proving the fact is upon him, in proving the fact that the accused committed the offence charged against him. The Privy Council held that the prosecution could not rely on this principle for proving the facts constituting the charge against the accused. In this particular case before the Privy Council, Stephen Seneviratne was charged with the murder of his wife living in the same bungalow. But the evidence of the circumstances was a little ambiguous, that is, they might be interpreted in favour of the accused or against the accused, and the trial Judge relied on the principle laid down in Section 106, Evidence Act, and pointed out to the jury that the accused was in a position to explain the circumstances in connection with his wife's death but he had not chosen to do so.

Their Lordships observed that such a use of Section 106, Evidence Act was quite improper. There can be no questioning the principle laid down by the Privy Council in this case, because the burden of proving the facts constituting the charge, e.g., in this case, that the accused caused the death of his wife by doing any act, must always be on the prosecution; and the prosecution cannot take advantage of the fact that the accused could have explained the circumstances satisfactorily but has not chosen to do so. The Privy Council case does not touch the question with, which we are now concerned.

In -- 'B.. N. Chatterjee v. Dinesh Chandra' : AIR1948Cal58 ', it was held that the provisions of Section 106, Evidence Act should be applied with care and caution in criminal cases, but it could not be said that the provisions did - not apply at all to criminal cases. This ruling also has no bearing in the present case.

28. On a review of the case law on the point and on a careful consideration of the relevant provisions of the Indian Evidence Act, we must come to the conclusion that the Allahabad Full Bench decision and the Rangoon Full Bench decision do not lay down the law correctly and that the law of evidence on the point in India is different from the law laid down in the House of Lords' decision in -- 'Woolmington's case (F)'. The learned Assistant Sessions Judge's charge to the jury in connection with the law of the right of private defence and the burden of proof is in accordance with the provisions of the Indian Evidence Act, as explained in the Bombay Special Bench case, and we find that no misdirection was committed in this respect by the learned Judge.

29. The second, point urged by Mr. Talukdar for the appellants is that in dealing with the evidence in the case relating to the right of private defence pleaded by the accused, the learned Judge did not direct the jury properly. Both the parties admitted that there had been an incident over the attempt of Keramat, Afadur Rahid and Mir Hossain to take away a branch of the blackberry tree. The real point at issue was whether the tree was the common property of the parties, who were close relatives, or it was the exclusive property of the accused's party, and that depended on the question whether the tree stood on C. S. Plot No. 4425 or 4424 of Mouza Nawda. The learned Judge referred to the oral evidence of the parties on the point and then stated that neither party had got the two cadastral survey plots relayed by any competent Amin in order to ascertain whether the tree stood on C. S. Plot No. 4424 or 4425. It has been urged by Mr. Talukdar that the learned Judge wrongly put the onus on the prosecution and defence, and that it was not the onus of the defence at all to get the plots relayed by a competent Amin.

In this connection, I would observe that the burden was on the defence rather than on the prosecution to prove that the tree stood on C. S. Plot No. 4424, because, otherwise, the plea of the right of private defence could not be regarded as 'proved'. The prosecution case did not directly depend on the ownership of the tree. Even apart from this aspect of the case, the learned Judge only stated a fact which had been discussed at the trial, because it appears that some witnesses were cross-examined with reference to a survey by an Amin. There was, therefore, no misdirection in the charge.

In this connection, it rather appears that the learned Judge used some inadmissible evidence which was in favour of the defence. On behalf of the defence, Ext. A, a certified copy of a kobala, in respect of a share of C. S. Plot No. 4424 had been proved, but the executant of the Kobala, Manjura Khatun, was not examined. The learned Judge observed at one place that Ex. A was admitted in evidence only to prove the transaction of the sale. But though the contents of the Sale Deed were not admissible in view of the non-examination of Manjura Khatun, the learned Judge still referred to the contents and stated that the description of C. S. Plot No. 4424 in the Kobala showed that there was a blackberry tree standing on it, and that the defence case was that this was the blackberry tree in dispute. Thus, there was use of inadmissible evidence in favour of the accused. Though it was strictly illegal, it certainly cannot be said that the accused was prejudiced by such use of the contents o'f the Sale Deed Ex. A.

30. A further point urged in this connection is that while the learned Judge told the jury definitely that if they found in favour or the accused in respect of the tree, that is, if they found in favour of the accused as to the right of private defence of property, they must find the accused not guilty of the charge of rioting, under Sections 147 and 148, Penal Code, and the jury returned a verdict of not guilty in respect of all the accused in respect of the charge under Sections 147 and 148, Penal Code, the learned Judge failed to tell the jury specifically that if the jury found in favour of the accused in respect of the right of private defence of property, they should also find the accused not guilty of the specific charges under Sections 323 and 324, Penal Code.

In respect of the specific charges under Sections 323 and 324, Penal Code, the learned Judge dealt with the evidence in support of each separate charge & then he asked the jury to consider whether the accused had proved that they were entitled to the exception provided for in Section 96, Penal Code, that is, whether they were justified because they had acted in the exercise of the right of private defence.

In this connection he pointed out, as already stated, that the recital in the document Ex. A was in support of the accused's case, but he did not tell the jury specifically what would be the effect of this on most of the specific charges. This amounts to a non-direction which certainly misled the jury, because the jury found the accused guilty on all the specific charges under Sections 323 and 324, Penal Code, except in respect of one charge under Section 323 against Takdirali, for voluntarily causing hurt to Masema Khatun, in respect of which the learned Judge himself had pointed out to the jury that there was no reliable evidence in support of the charge.

It is, however, not necessary that the case should be sent back for re-trial for this defect, if the accused had the right of private defence of property, as the jury presumably found in view of their verdict in respect of the charges under Sections 147 and 148, Penal Code, it is clear that the specific charges under Sections 323 and 324, Penal Code for voluntarily causing hurt with a pointed weapon to Abdur Rahid, Keramat All and Mir Hossain, must fail. In respect of the assault of the women, clearly such assault could not be justified on the ground of the exercise of the right of private defence, because the women, according to the evidence, came to protest against the indiscriminate assault on Abdur Rahid, Keramatali and Mir Hossain. Moreover, the nature of the injury sustained by Masema Khatun shows that she could have had no weapon in her hand.

31. Accordingly, the verdict of the jury in respect of two of the counts of charges under Section 323 against Jiaratulla for voluntarily causing hurt to Abdur Rahid and Keramatali respectively; in respect of the charges under Sections 323 and 324 against Rahamatulla for causing hurt to Keramatali and Atadur Rahid respectively; in respect of charges under Sections 323 and 324 against Takdir Shekh for causing hurt to Keramatali and Abdur Rahid -respectively; in respect of the charge under Section 323 against Eadulla Shekh for causing hurt to Mir Hossain; and the charge under Section 323 against Reastulla for causing hurt to Mir Hossain must be set aside, the verdicts as to these charges being regarded as vitiated by the misdirection to the jury, and the conviction and the sentence passed in respect of the above charges must also be set aside. This does not, however, affect the verdict regarding the remaining offences, namely, the verdict against Eusuf Shekh under Section 326, Penal Code; the verdict against Jiaratulla in respect of one count of charge under Section 323 for causing hurt to Mahitan Bibi; the verdict in respect of the charge under Section 325 against Eadulla lor causing grievous hurt to Masema Khatun and the verdict in respect of the charge under Section 323 against Reastulla for voluntarily causing hurt to Masema Khatun.

32. The third point urged by Mr. Talukdar on behalf of the appellants is that in dealing with the evidence of 'alibi', which was the plea of Eusuf Shekh, the learned Judge misdirected the jury. The defence of Eusuf Shekh was that on 3-7-1951 in the afternoon, that is, on the day before the occurrence, he had gone away to Ichapur to the house of a relative and had medical treatment there on the day of occurrence, i.e., on 4-7-1951 and in support of this case, a doctor of Ichapur as well as Eusufs relative living at Ichapur were examined.

The learned Judge placed this evidence before the jury and other evidence produced by the defence in support thereof. The learned Judge also placed before the jury the evidence produced by the prosecution to show that Eusuf was present at the place of occurrence and that he had struck Mir Hossain on the head with the blunt side of an axe and the learned Judge then told the jury as follows: 'As judges of fact, you will have to decide as to which of the above two versions is true.' Mr. Talukdar urges that the learned Judge was dealing with the evidence in the case as if it were a civil case and he was ignoring the principle of law that it is for the prosecution to prove the cause, and that the burden of proof on the accused could never be of the same order as the burden of proof on the prosecution to prove the case against the accused. I have already dealt with the question of relative burden of proof in dealing with the first contention of Mr. Talukdar.

There is nothing in the Evidence Act to suggest that where the law places the burden of proving something on the accused, the burden is to be discharged in any other way than the burden which is on the prosecution. The definitions of 'proved', 'disproved' and 'not proved' in Section 3, Evidence Act apply in either case. When we are concerned with the question of an 'alibi', it is not a case of proving the existence of circumstances bringing the case within any of the general exceptions or special exceptions of the Indian Penal Code, and therefore, Section 105, Evidence Act does not apply. The section applicable is Section 103 which provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence. Illustration (a) specially mentions the case of a plea of 'alibi' and provides that it is for the accused who pleads 'alibi' to prove it.

The prosecution examined a number of witnesses who stated that Eusuf was at the place of occurrence and struck Mir Hossain on the head. The defence also examined some witnesses to show that Eusuf was on the day of occurrence at Ichapur and not present at Nawada at all. The jury and the Court could only consider the evidence adduced by the two sides as a whole and then decide which version was true. I do not, therefore, consider that there was any misdirection in the charge of the learned Judge.

Further, the learned Judge also told the jury after a discussion of the defence evidence as to 'alibi' that if on a consideration of the entire evidence on record, they accepted as true the defence of 'alibi' set up by the accused Eusuf, they must find him not guilty and there would be no occasion for the jury then to decide the further question whether or not the prosecution had substantiated the charge under Section 304, Penal Code against him; and that if the jury rejected the defence plea of 'alibi', then they must decide the further question whether the prosecution case was true or not and that the truth of the prosecution case would not follow even if the evidence of 'alibi' was rejected. This corrected any misapprehension that the jury might have got from the previous, direction that the jury would have to decide, which of the two versions was true. I find, therefore, that there was no misdirection in this connection.

33. The fourth point urged is that the learned Judge in dealing with the case of Eusuf only placed before the jury the defence of 'alibi' and did not place the further defence, that he was acting: in the exercise of the right of private defence of property and person. Now, Eusuf Shekh in his statement under Section 342, Criminal P. C., definitely stated that he was not present at the place of occurrence and that he was at Ichapur undergoing medical treatment at the time and evidence was adduced in support of that case. There are certain decisions that if the accused denies having; participated in the occurrence at all, the right-of private defence cannot arise.

In this connection, I may refer to -- '1 Cal LR 62 (Q)', where it was held that the act charged, could not be denied and the plea of private defence raised as an alternative; and also to the Full Bench decision in -- 'AIR 1915 Cal 773 (C)', where the law as laid down in --'Jamsheer Sirdar's case, (Q)', was approved. More recently, in --' : AIR1952Cal621 (G)', it was held as follows:

'A plea of the right of private defence can be taken by a person who admits the act charged against him, but pleads an excuse. If a person, however, states that he had not done the act, at all, it is difficult to see how at the same time the question of a light of private defence would arise.'

It is no doubt true that in some cases it has been held that where from the circumstances appearing in the case, the plea of the right of private defence appears to be a plea which could have been taken by the accused, the Court should put that case also to the jury. In this case, even if it is accepted that the accused's party had the right of private defence against the act of criminal trespass, and attempted theft of a branch of the tree by the complainant's party, such right of private defence could, in no case, extend to the voluntary causing of death of one of the complainant's party, viz., -- Mir Hossain. Mr. Talukdar appearing for the appellants has urged that some of the appellants also had injuries. The learned Judge referred to this fact and pointed, out that though some of the appellants had injuries, they were very slight.

On the other side, Keramatali had ten injuries on his person, Abdur Rahid had five injuries on, his person, Mahitan Bibi had four injuries, Masena Khatun had five injuries, and the deceased Mil Hossain, in addition to the fracture of his skull, had three or four other injuries on other parts of his body. As against that, the accused Reasatulla had two slight injuries on his person, accused Jiaratulla had three slight injuries and Takdirali had four slight injuries, mostly ecchymosis. It cannot, therefore, be said that there was any occasion for the accused party and, in particular, for Eusuf Shekh, to be acting in the exercise of the right of private defence of body. Accordingly, we do not find any substance in this point.

34. Fifthly, it has been urged that the learned Judge misdirected the jury as to the value to be given to the first information report. The learned Judge stated in the course of his charge that the petition of complaint filed by Abdur Rahid had been treated as the first information report in the case and the first information report was not a piece of substantive evidence, but that it was nevertheless of importance as it gave in writing the earliest information regarding the occurrence and that it could be used for corroboration or contradiction. This was a correct statement of the law and there was no misdirection.

Lastly, it has been urged that some witnesses mentioned in the petition of complaint were not examined and the learned Judge, though he mentioned this fact to the jury, did not tell them that they must draw an adverse inference against the prosecution case for non-examination of such witnesses. The learned Judge told the jury that they should remember that some of the witnesses mentioned in the petition of complaint had not been examined, but he did not expressly tell them that any adverse inference against the prosecution case might be drawn from, such non-examination. Though there was this non-direction, it cannot be held in this case to amount to a misdirection vitiating the trial, because the common case of the two parties was that there was the incident over the complainant's party attempting to take away a branch of the blackberry tree which had been cut down by the accused party. And, as to the identification of the accused, a large number of eye-witnesses was examined and some of them were common relatives of the parties. There could hardly be any prejudice caused to the accused's party, in the circumstances, from the non-examination of a few of the witnesses mentioned in the petition of complaint.

35. The sentence passed on Eusuf Shekh cannot be regarded as too severe in view of the nature of the injury caused by him to his ownephew, Mir Hossain, whose skull Taone was altogether fractured and who died without recovering consciousness. But the sentences passed on Jiaratulla under Section 323, I. P. C. and on Reasatulla under Section 323, I. P. C. for voluntarily causing hurt to Mahitan Bibi and Masema Khatun respectively appear to be too severe and in our opinion a fine of Rs. 200, in de'fault rigorous imprisonment for two months, would be sufficient to meet the ends of justice. In the case of Eadulla, a sentence of rigorous imprisonment for one year would in our opinion be sufficient for his offence under Section 325, I. P. C. for voluntarily causing grievous hurt to Masema Khatun.

36. I would therefore allow this appeal in part to the extent indicated above.

K.C. Das Gupta, J.

37. The appellants were tried by the Assistant Sessions Judge, Murshidabad, with the aid of a jury on different charges. The appellant Yusuf Sk, was tried on a charge under Section 304, Penal Code for having caused the death of Mir Hossain, Jearatulla Sk. on three charges under Section 323, Penal Code one for having voluntarily caused hurt to Mohitan Bibi, the second for having voluntarily caused hurt to Abdur Rahid and the third for having voluntarily caused hurt to Keramatali Sk.; Rahamatulla Sk. on two charges under Section 323, Penal Code, -- the first for having voluntarily caused hurt to Mesena Khatun and the second for having voluntarily caused hurt to Keramatali Sk., and also on a charge under Section 324, Penal Code for having voluntarily caused hurt to Abdur Rahid; Takdirali Sk. on a charge under Section 324, Penal Code for having voluntarily caused hurt to Abdur Rahid Sk. and on a second charge under Section 323, Penal Code for having voluntarily caused hurt to Keramatali Sk.; Eadulla on a charge under Section 325, Penal Code for having voluntarily caused grievous hurt to Mesena Khatun and also on a charge under Section 323, Penal Code for having voluntarily caused hurt to Mir Hossain; Reasatulla Sk. on two charges under Section 323, Penal Code, -- one having voluntarily caused hurt to Mesena Khatun and the other for having voluntarily caused hurt to Mir Hossain.

Yusuf, Rahamatulla and Takdirali were also tried on a charge under Section 148, Penal code and Jearatulla, Eadulla and Reasatulla on a charge under Section 147, Penal Code. In accordance with the unanimous verdict of the Jury the learned Judge acquitted the accused persons of the charges under Sections 148 and 147, Penal Code, acquitted Yusuf of the charge under Section 304, Penal Code but convicted him under Section 326, Penal Code and sentenced him to rigorous imprisonment for six years; convicted Jearatulla on all the three charges under Section 323, Penal Code & sentenced him to a fine of Rs. 500/- for the first charge and Rs. 100/-for each of the other two charges; acquitted Rahamatulla of the first charge under Section 323, Penal Code but convicted him on the second charge under Section 323, Penal Code and inflicted a fine of Rs. 100/-; convicted him also of the charge under Section 324, Penal Code and sentenced him to pay a fine of Rs. 100/-; convicted Takdirali of both the charges under Sections 323 and 324, Penal Code and sentenced to pay a fine of Rs. 100/-under Section 323, Penal Code and a fine for a similar amount for his offence under Section 324, Penal Code, convicted Eadulla of the charge under Section 325, Penal Code and sentenced him to two years' rigorous imprisonment, convicted him under Section 323, Penal Code and sentenced therefor to pay a fine of Rs. 100/-, convicted Reasatulla of both the charges under Section 323, Penal code and sentenced him to pay a fine of Rs. 500/- for the first charge of having voluntarily caused hurt to Mesena Khatun and a fine of Rs. 100/- for the other charge.

In all the cases the learned Judge also passed sentences of imprisonment in default of payment of fines.

38. The appeal came up for hearing before a Bench of this Court consisting of Mitter and Sen, JJ. As they did not agree as regards how the appeal should be disposed of, the case has been laid before me under the provisions of Section 429, Criminal P. C.

39. The prosecution case was that on 4-7-1951, when Mir Hossain and his brothers came to know that a 'Jam' tree standing near the bank of the tank which was their 'ejmali' property had been cut and one branch of the tree was left lying there, they went to remove that but were resists ed by the accused persons who were armed with lathis and that the different accused persons dealt lathi blows on them while some of the accused dealt lathi blows also on their mother Mohitan Bibi and sister Mesena Khatun who arrived when the assault on them was in progress. It is further alleged that Yusuf picked an axe which was lying there and struck Mir Hossain on the head with the blunt side thereof inflicting injuries which resulted in his death the following day.

40. The defence of Yusuf was that he was not at the place of occurrence at all but was away at Ichhapur for treatment of his different ailments. The principal defence of the other accused persons was that they acted in the exercise of their right of private defence of person and property, the 'Jam' tree being the property of Takdirali and Mir Hossain and others having no right thereto.

41. In his charge to the Jury the learned Assistant Sessions Judge made the following statement while speaking about the defence plea of the right of private defence ;

'....You must remember that 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 is upon him and the Court shall presume the absence of such circumstances. It follows therefore that an accused is not entitled to the benefit of any exception such as that provided for in Section 96, Penal Code merely because there is a reasonable doubt in the mind of the Court about the existence of circumstances bringing the case within the exception.'

The question whether in the case where the burden of proving anything is on an accused person he has to prove it in the same manner where the burden lies on the prosecution, namely, beyond reasonable doubt or whether the burden of proof required from the accused is less than that at the hands of the Prosecution in bringing the case beyond 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, has been considered by this Court more than once. In the case of -- 'Chang Chung Ching v. Emperor' : AIR1945Cal363 , where the Court had to consider whether the burden laid on the accused by Section 3 of Ordinance 33 of 1943 had been discharged, this Court laid down the proposition that the correct principle to apply to the case was that laid down by the Court of Criminal Appeal in the English case of -- 'Rex v. Carr-Briant', (1943) KB 607 (T), namely,

'in any case where, 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.'

In -- 'AIR 1949 Cal 182 (A)', when the Court had to consider whether there had been a misdirection in the learned Judge's charge to the Jury, the learned Judges gave their decision in these words :

'Our own opinion is that had the matter been properly put to the jury 'together with the direction that the standard of proof required by the accused was not the standard of proof required from the prosecution, it is highly probable that they would have found in favour of the accused under Section 84, Penal Code and by thelearned Judge's misdirection on this point there has been failure of justice.'

42. I find that the decision in 'Ashiruddiu Ahmad's case (A)', was cited before the learned Judges constituting the Appellate Bench. Mitter, J. thought that they were bound by that decision but Sen, J. thought that -- 'Ashiruddin Ahmad's case, (A)', in so far as it laid down that the standard of proof required from the accused was (not?) the standard of proof required from the Prosecution, was not binding on them and that it was merely 'obiter dicta'.

43. It seems clear to me that what the Court held in -- 'Ashiruddin Ahmad's case, (A)', was that the Judge had misdirected the Jury on two points, -- firstly, on the point of explaining the provisions of Section 84, Penal Code and secondly, on the point as regards the standard of proof required from the accused when the burden of proof was on the accused. They clearly held that by omitting to tell the Jury that the standard of proof required from the accused was not the standard of proof required from the Prosecution the learned Judge misdirected the Jury. I have not been able to understand how this decision can be said to be an 'obiter dictum' and not binding on the Court.

44. The learned Advocate-General who appeared before me on behalf of the state readily agreed that the decision in -- 'Ashiruddin Ahmad's case, (A)', as well as in -- 'Chang Chung Ching's case. (S)', are decisions binding on the Court.

45. In this position I think it would be useless for me to consider the question whether the above cases were rightly decided for, even though I were of opinion that they were not rightly decided. I am bound to follow them and it is not open to me sitting as a third Judge under Section 429, Criminal P. C., to refer the matter to a Division Bench.

46. I am therefore bound to hold that by directing the Jury that 'an accused is not entitled to the benefit of any exception such as that provided for in Section 96, Penal Code merely because there is a reasonable doubt in the mind of the Court about the existence of circumstances bringing the case within the exception', the learned Assistant Sessions Judge misdirected the Jury.

47. It seems to me that there is another point on which the learned Judge has directed the Jury in a way which cannot be considered proper. On the question of alibi the defence examined a witness, one Dr. Anil Kumar Bhattacharjee. It appears that they prayed for the examination of another witness, Dr. J. N. Dutt. The doctor however did not appear and was not examined. The learned Judge commented in his charge to the Jury on the non-examination of Dr. J. N. Dutt, but omitted to mention that the doctor had not attended Court in spite of summons being asked for and issued.

48-50. In view of these misdirections, it is necessary for me to consider the evidence on record to ascertain whether the misdirections have resulted in an erroneous verdict. (His Lordship after considering the evidence of both the prosecution and defence, proceeded:)

51. On a consideration of the entire evidence I have come to the conclusion that the Jury have rightly decided that Yusuf dealt the blows which resulted in Mir Hossain's death.

52. The question next arises whether he committed an offence under Section 326, Penal Code by this act. In coming to a conclusion on this it is necessary to consider the plea of the right of private defence. The prosecution case is that the 'Jam' tree over which, the dispute arose was 'ejmali'. The important circumstance however is that there was no mention of any 'jam' tree in the petition of complaint. If the 'Jam' tree had really been the 'ejmali' property, I am unable to believe that the person who lodged the petition of complaint would not state that clearly. In my judgment, it is because the 'Jam' tree was not the 'ejmali' property but was the property of Takdirali as suggested by the defence, that the petition of complaint is entirely silent of any dispute over the cutting of the 'Jam' tree or the cutting of the branches thereof.

There can be little doubt that it was when some people were cutting the 'Jam' tree on behalf of Takdirali that Mir Hossain and others came there to protest and, if possible, to resist and it was then that the accused party attacked. I am convinced on a consideration of the probabilities of the case that Mir Hossain and others must have carried some arms with them in coming to resist the act of the accused persons in cutting the 'Jam' tree or, if possible, carrying away some branches. My conclusion therefore is that Yusuf was entitled to inflict some injuries on Mir Hossain in the exercise of the right of private defence of property or person. I am clearly of opinion however that in striking Mir Hossain on the head with the blunt side of an axe he exceeded the right of private defence. The right of private defence of property did not. certainly extend to the causing of this blow. The injuries which some of the accused persons had received clearly show that the complainant's party were not armed in such a manner or did not do any act which could raise a reasonable apprehension of death or a grievous hurt being causing by Mir Hossain.

53. In view of my conclusion that Yusuf exceeded the right of private defence, I am of opinion that he did commit an offence under Section 326, Penal Code and that the misdirections mentioned above have not resulted in any erroneous verdict or failure of justice.

54. In view of my findings mentioned above, I hold that no offence was committed by Jearatulla Sk. by causing hurt to Abdur Rahid and Keramatali Sk. or by Rahamatulla Sk. by causing hurt to Keramatulla and Abdur Rahid or by Takdirali Sk. by causing hurt to Keramatulla and Abdur Rahid, by Eadulla by causing hurt to Mir Hossain, by Reasatulla by causing hurt to Mir Hossain, as these acts were committed in the exercise of the right of private defence of person and property.

55. My conclusion therefore is that the misdirection mentioned above has resulted in an erroneous verdict as regards these charges.

56. The position is different as regards the charge under Section 323, Penal Code against Jearatulla Sk. for causing hurt to Mahitan Bibi and the charge under Section 325, Penal Code, against Eadulla for causing hurt to Mesena Khatun. That Eadulla struck Mesena Khatun on her left hand with a lathi is the evidence of Mesena Khatun and others which I have no hesitation in believing. The evidence of Dr. Haradhone Bhaduri shows that there was a fracture of the phalange of the middle row of Mesena Khatun's left finger. I am convinced on a consideration of the evidence that Eadulla caused this fracture by striking her on the hand with a lathi and in striking her he knew it likely that grievous hurt would be caused. Quite clearly there can be no case of the right of private defence against this girl as the evidence does not make it even remotely probable that she either came to take away the branch of the tree or that any reasonable apprehension of injury arose from any of her acts.

57. The verdict of guilty under Section 325, Penal Code against Eadulla is therefore fully justified by the evidence and my conclusion is that the misdirection I have mentioned earlier has not resulted in an erroneous verdict or failure of justice as regards this charge.

58. There can be no doubt on the evidence of the eye-witnesses that Jearatulla struck Mohitan. Bibi and Reasatulla struck Mesena Khatun. As in my judgment the evidence does not even remotely make it probable that these acts were committed in the exercise of the right of private defence, offences under Section 323, Penal Code were committed by these two accused persons. As regards these two charges, the misdirections have therefore not resulted in an erroneous verdict.

59. My opinion therefore is that there is no ground for interfering with the order of conviction passed on the unanimous verdict of the Jury as regards the charge under Section 326, Penal Code against Yusuf, under Section 325, Penal Code against Eadulla, under Section 323, Penal Code against Reasatulla for hurt to Mesena and under Section 323, Penal Code against Jearatulla for hurt to Mahitan. The order of conviction for these offences will therefore stand. The learned Judge sentenced Yusuf to rigorous imprisonment for six years.

In consideration of the fact that he acted is the exercise of the right of private defence and without premeditation, I think a sentence of four years' rigorous imprisonment would meet the ends of justice. I therefore reduce the sentence passed on Yusuf to a sentence of rigorous imprisonment for four years, in view of the circumstances mentioned above, the sentences passed for the charge under Section 325, Penal Code against Eadulla, under Section 323, Penal Code against Jearatulla and under Section 323, Penal Code against Reasatulla also appear to me too severe. I reduce the sentences to a fine of Rs. 200/- under Section 325, Penal Code against Eadulla Sk. In default rigorous imprisonment for six months, to a fine of Rs. 100/- against Reasatulla Sk. in default rigorous imprisonment for three months, and to a fine of Rs. 100/- against. Jearatulla Sk. under Section 323, Penal Code in default rigorous imprisonment for three months. Yusuf Sk. will forthwith surrender to his bail and serve out the sentence. Jiaratulla, Rahamatulla, Eadulla, Reasutalla and Tagdir are acquitted of the other charges and the sentences thereunder set aside.


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