# State of U.P v. Tulsi Ram

- **Citation:** (2026) 4 ILRA 1645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-30
- **Case number:** Government Appeal No. 91 of 1987
- **Bench:** Rajnish Kumar, Mrs. Babita Rani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-tulsi-ram-54412
- **Pages:** 23

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4 All. State of U.P. Vs. Tulsi Ram
1645

(b) Whether the observation made in Paragraph 35 of the Full Bench decision in Puran
Singh v. State of U.P. (2010) 2 UPLBEC 947 regarding holding of "full fledged enquiry" after
suspension of license can be read in such a manner as would require the whole gamut of steps
required in disciplinary proceedings of Government servants to be followed?"

The Division Bench gave the following answers to the questions: -

(i) It is held that the parameters for an enquiry to be conducted against the licensee for
the irregularities committed by the licensee in terms of the Distribution of Essential Commodities is
on broad principles of natural justice where the competent authority shall provide a show cause
notice to the licensee indicating the violations and irregularities committed by the licensee with
sufficient particularity to enable him to respond to the same and after affording an opportunity
of hearing, the decision can be taken by the competent authority by a reasoned and a speaking
order. The enquiry envisaged is summary in nature and does not entail a detailed hearing, akin
to a departmental enquiry;

(ii) It is held that the words "full fledged enquiry" as used by the Full Bench of this Court
in the decision of Puran Singh (supra) has to be read in context with paras 4 and 5 of the
Government Order of July 2004 and the scheme therein which merely requires adherence to the
principles of natural justice and does not provide for a detailed enquiry involving various stages
and steps as are required to be met in disciplinary enquiry against a government servant."

(Emphasis added)

21. The order sought to be reviewed is in conformity with the aforesaid principles laid down
by the Division Bench in Shankar Prasad v. State of U.P. (supra) and it does not suffer from any
error, much less an error apparent on the face of the record. The Review Application lacks merit
and the same is dismissed.
----------
(2026) 4 ILRA 1645
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.04.2026

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE MRS. BABITA RANI, J.

Government Appeal No. 91 of 1987

State of U.P. ...Appellant
Versus
Tulsi Ram ...Respondent

Issue for Consideration
A. Whether the learned Trial Court has rightly accorded the benefit of self-defence to the accused?
B. Whether the failure of the prosecution in explaining the injuries on the person of the accused renders the
entire prosecution story untrustworthy?
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Whether the impugned order and judgment of acquittal bears any illegality or perversity?

Head Notes
The Indian Evidence Act, 1872-Section 105; The Indian Penal Code, 1860-Sections 96, 99 & 100Evidence proved by prosecution reasonably established that incident was authored and provoked
by accused. It is not the case of accused that deceased and injured criminally trespassed their
premises with weapons and they had no safe alternative, but to inflict injuries to them to save
themselves. No evidence what so ever, has been adduced by accused to prove that they acted in
self defence, except the doctor who proved injuries on the body of accused Harnaam. Therefore,
observations of learned trial court that accused acted in self defence and rendering them benefit
of acquittal bears material illegality-Even if it is accepted that there was some quarrel and
heated exchange between accused and the informant and his deceased brother, it cannot be
accepted that such a heated exchange gave the accused the right to self-defence to the extent of
causing death.

The injuries established on the person of accused are simple in nature, therefore, in the wake of
evidence on record, non-explanation of his injuries is not so much fatal which may render the
case of prosecution as unreliable

The injuries were not result of intentional killing but the accused certainly must have been
aware of the fact that blow from such weapon could even result in death- It is clear that despite
knowing that blow of bhala could have caused death of victim, both accused with common
intention and in a fit of rage, gave blow resulting in the death of victim, and therefore, are found
guilty of committing offence of culpable homicide not amounting to murder and causing simple
hurt to complainant.

Held-That impugned judgement and order passed by learned trial court acquitting the accused from all the
charges, is patently perverse and not sustainable in the eyes of law and is hereby liable to be reversed and
set aside and accused Jagat Pal and Harnaam are liable to be held guilty for committing the offence under
Section 304 Part II/34 and under Section 323/34 of IPC.
 Appeal allowed. (E-15)

(Para 27, 28, 38, 43, 44 & 45)

Case Law Cited
State of Madhya Pradesh v. Ramesh; (2005) 9 SCC 705, Lakshmi Singh and Others v. State of Bihar; (1976) 4
SCC 394 and State of Gujarat v. Bai Fatima & Another; (1975) 2 SCC 7; Vijayee Singh and Ors v. State Of
Uttar Pradesh; (1990) 3 SCC 190; Darshan Singh v. State of Punjab; (2010) 2 SCC 333; Bihari Lal v. State of
Bihar (now Jharkhand) (2008) 15 SCC 778; Thoti Manohar v. State of Andhra Pradesh (2012) 7 SCC 723

List of Acts
The Indian Evidence Act, 1872; The Indian Penal Code, 1860

List of Keywords
Accused clearly exceeded the force by causing more harm than was required ; Right of private defence; Does
not extend to inflicting more harm than necessary; Non-explanation of minor injuries sustained by accused; Is
not fatal to the prosecution

Case Arising From
Present appeal has been filed by the State of U.P. challenging the judgment and order dated 31.03.1986
passed by the Special Sessions Judge, Unnao acquitting the respondents for the charges under Sections
302/323 read with Section 34 of the Indian Penal Code,1860 in re: State v. Tulsi Ram and others, bearing S.T.
4 All. State of U.P. Vs. Tulsi Ram
1647
No. 386/84 and in re: State vs. Harnaam, under Section 25 of the Arms Act in S.T. No. 235/85, police station
Makhi, District Unnao.

Appearances for Parties
Counsel for Appellant(s) : Shri Bireshwar Nath,
Counsel for Respondent(s) : Ram Naresh Singh Chauhan

(Delivered by Hon'ble Mrs. Babita Rani, J.)

1. Heard Sri Arunendra, learned AGA for the State/appellant and Shri Ram Naresh
Singh Chauhan, learned counsel for the respondents.

 2. The present appeal has been filed by the State of U.P. challenging the judgment and order
dated 31.03.1986 passed by the Special Sessions Judge, Unnao acquitting the respondents
(hereinafter referred to as accused) for the charges under Sections 302/323 read with Section
34 of the Indian Penal Code,1860 (hereinafter referred to as 'IPC' for brevity) in re: State v.
Tulsi Ram and others, bearing S.T. No. 386/84 and in re: State vs. Harnaam, under Section
25 of the Arms Act in S.T. No. 235/85, police station Makhi, District Unnao.

3. During pendency of the appeal, accused Tulsiram and Lakshmi Narain, had passed
away and thus, the instant appeal was abated on their behalf by this Court vide order dated
28.11.2022. Now instant appeal survives only for accused Jagat Pal and Harnaam.

4. Brief facts of the case are that on 15.06.1984, at about 10:00 AM, the informant's
brother, Jamuna Prasad (deceased) was fixing parnala on his roof and the informant, Amrit
Lal(PW1), was putting up mud on his rooftop. The accused opposed installation of parnala
on the ground that the same would result in the flow of water on their roof. However,
Jamuna Prasad refused to budge and continued fixing the parnala stating that the rain water
had been flowing to the roof of the accused through the parnala from old times. This resulted
in a heated exchange between the two sides, and on the instigation of accused Tulsi Ram,
accused Lakshmi Narayan with lathi, Harnaam with bhala and Jagat Pal with lathi having
iron rings on it, came and assaulted the person of Jamuna Prasad (deceased) with their lethal
weapon. PW1, who was on his roof, rushed to save his brother Jamuna Prasad and in this
process, he was also beaten up by them. The incident was witnessed by PW2, who was
working on his roof as well as other neighbours working on their roof who assembled on
hearing the hues and cries. The accused, thereafter, fled away from the spot with their
weapons. When the injured Jamuna Prasad was being taken to hospital for treatment by
complainant Amrit Lal by a bullock cart, he succumbed to injuries. Complainant Amrit Lal
submitted an application of incident to the police concerned to lodge the first information
report.

5. On the basis of written tehrir (Ex. Ka.1) of complainant Amrit Lal (PW1), the first
information report (Ex. Ka.3) was registered in Police Station- Makhi on 15.06.1984 under
Sections 302/323 of IPC by PW 4 Head Constable Shubh Karan Singh. The investigation
was entrusted to PW7, Sh Ram Lal Yadav, who reached on the spot and after nomination of
panch, prepared the panchnama of the body Ex. Ka10 and collected blood soaked clothes
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
and soil samples vide recovery memo Ex. Ka14 and 15 as well. The site plan Ex. Ka16 was
prepared at the instance of complainant PW1. Post-mortem of the body was conducted by
Dr. S.P. Rastogi (PW5), who prepared the report Ex. Ka-8. On 17.06.1984, the accused
namely Harnaam and Lakshmi Narayan were arrested. Accused Harnaam in custody made a
disclosure statement that he had hidden the lathi and bhala used in the incident in his house.
He led to the place and got the bhala and lathi recovered from the dung store. The subjected
weapons were taken into possession and sealed on the spot in presence of witnesses vide
recovery memo Ex. Ka 2, and site plan of recovery of weapons was prepared. On
17.06.1984, on the basis of recovery of bhala by PW7, first information report was
registered by PW4 against accused Harnaam under Sections 4/25 of Arms Act, 1959.

6. After the completion of entire investigation and prima-facie evidence collected
against accused, charge-sheet was filed against all accused under Sections 302/323 IPC
including section 4/25 of Arms Act against accused Harnaam. The magistrate took
cognisance of case and committed the case for trial to the court of sessions. Learned
Sessions Judge framed charges under Section 302 read with Section 34 IPC and Section 323
IPC against Harnaam, Jagat Pal and Lakshmi Narayan and Section 302 read with Section
114 IPC against Tulsi Ram whereas in connected Sessions Trial No. 235/85, charge against
accused Harnaam was framed under Section 25 of the Arms Act, 1959, to which they all
pleaded not guilty and claimed a trial.

7. The prosecution examined as many as 9 witnesses in it's support and closed evidence
while accused examined Dr. L.D. Shukla, the jail doctor as DW-1 who examined Harnaam
on 17.06.1984.

8. PW1, the informant and injured witness, stated that on the day of occurrence, his
brother Jamuna Prasad (deceased) was fixing an old parnala on his roof, which is above the
roof of the accused respondents. Accused Tulsi Ram told Jamuna Prasad not to fix the
parnala but Jamuna Prasad refused to budge and told Tulsi Ram that the parnala was an old
one and the water has always flown towards the roof of the accused. Tulsi Ram then
instigated Lakshmi Narain, Jagat Pal and Harnaam to bring lathi and bhala and immediately
accused Lakshmi Narayan with lathi, Jagat Pal with lathi and Harnaam with bhala came on
the roof of Jamuna Prasad and started assaulting him with the lathis and bhala. When PW1
Amrit Lal tried to intervene, the respondents assaulted him too. Neighbours Ramsevak,
Baijnath, Guruprasad and Dayashankar, who were also working on their roofs, came rushing
upon hearing the screams of PW1 and his brother. The accused respondents then fled away
from the scene and PW1 started carrying his injured brother Jamuna Prasad to the police
station. However, just outside the village, Jamuna Prasad succumbed to his injuries, so PW1
brought his deceased brother back home. Thereafter, PW1 wrote a complaint (Ex Ka1) and
handed over the same in the police station. PW2, Guruprasad, is eye witness of the incident
and has corroborated the testimony of PW1. PW3, Ram Chandra, is a witness to the
recovery of the bhala and lathi at the instance of accused Harnaam and proved not only the
disclosure statement of accused and recovery of weapons, but also his undoubted presence at
the time of recovery of weapon in question.
4 All. State of U.P. Vs. Tulsi Ram
1649

9. PW5, Dr S.P. Rastogi conducted the autopsy of Jamuna Prasad and prepared the
post-mortem report (Ex Ka 8) on 16.06.1984, which disclosed the following injuries:

a. Lacerated wound 1.5" x 3" x scalp deep, present on left side scalp-middle part,
5.5" above the left eye brow and 3.5" above the left ear, 1" outer (left) to mid-line, 3" distal
to the choti, clotted blood adherent to the margino.

b. Stab wound 0.5" x 0.5" x chest cavity deep, present on left side scalp middle
part of back, 8" below the lower end of left scapula and 1" left to the vertebral column.
Directions of the wound is from left oblique upwards, medially on opening the chest cavity,
left side chest cavity full of fluid and clotted blood, left lung lower lobe at its dorsal aspect
shows stab 0.3" x 0.3" and left verticle 0.2" x 0.2" stab wound.

The injuries were reported to be about one day old. The internal examination disclosed
stab wound present on the left lung and the cause of death was reported to be shock and
haemorrhage as a result of ante mortem injury no. 2. PW5 stated in his testimony that the
injury no. 2 was more likely to have been caused by a bhala. Genuineness of the postmortem report was admitted by the respondents under Section 294 of the Code of Criminal
Procedure, 1973.

10. PW6, Dr G.P. Awasthi, medically examined the informant PW1 Amrit Lal and
found the following injuries on his person (Ex Ka 9):

a). Lacerated wound 2 cm x 0.5 cm x scalp deep present on the occipital region of
the skull.

b). Contusion 6 cm x 3 cm present over the back left scapular region

c). Traumatic swelling 4 cm x 2 cm present over the dorsal aspect of left foot. The
aforementioned injuries, in the opinion of PW6, were of a simple nature and had been
caused by a blunt object.

11. The sole defence witness (DW1), Dr LD Shukla, performed the medical
examination of accused Harnaam on 19.06.1984 and found the following injuries on his
person.

a). Contusion 2 c.m. x 1 c.m. on right side of face at maxillary prominence.

b.) Traumatic injury on dorsum of right hand measuring 10 c.m. x 8 c.m. swelling
is covered by multiple contusions

c). Circumferential traumatic swelling around the wrist joint in left hand. Swelling
is extending up to 4 c.m. above wrist left forearm.

d). Complaint of pain on both buttock and right foot but no visible injury seen

On the nature of injuries, DW1 stated that the injuries were simple in nature and
were caused by a blunt object. The injuries were reported to be around 5 days old. The
medical report was marked as Ex. Kha1.

12. Upon appreciating the evidence available on record and on the basis of the
testimonies of the various witnesses, the learned Trial Court came to the conclusion that the
1650 INDIAN LAW REPORTS ALLAHABAD SERIES
accused had acted in self-defence for the protection of their person and property and thus,
the accused were acquitted of all the charges. The learned Trial Court found that the
prosecution had failed to explain the injuries as recorded on the person of the accused
Harnaam by DW1 and such a failure was held to be fatal on the part of the prosecution.

13. The learned counsel for the appellant /state has challenged the impugned judgment
primarily on the ground that the learned Trial Court wrongly and erroneously observed that
the presence of unexplained simple injuries on the person of accused Harnaam entitled him
to claim the plea of self-defence. The counsel for the state vociferously contended that the
injuries on the body of the accused were of such a minor and simple nature, that the
prosecution was not required to explain them. Further, the learned Trial Court failed to
appreciate that in view of the minor and trivial nature of the injuries, the right of selfdefence cannot be said to have extended to the extent of causing death. The learned counsel
submitted that the case of the prosecution had been established beyond reasonable doubt by
adducing the cogent, consistent and reliable ocular evidence of eyewitness PW2 as well as
injured witness PW1, thus, the acquittal as recorded by the learned Trial Court was not
sustainable. Concluding the arguments, the appellant placed on reliance on the law laid
down by Hon'ble supreme court in State of Madhya Pradesh v. Ramesh; (2005) 9 SCC
705, Lakshmi Singh and Others v. State of Bihar; (1976) 4 SCC 394 and State of
Gujarat v. Bai Fatima & Another; (1975) 2 SCC 7.

14. Per contra, the learned counsel for the respondents has contended that on
15.06.1984, the informant and his brother were fixing the parnala on their roof to which the
respondents objected and this resulted in a hot exchange between the two sides. Thereafter,
the informant and his brother, Jamuna Prasad started assaulting accused Harnaam with a
lathi and resultantly, accused Harnaam sustained injuries. This forced the accused to act in
defence of their person and property which resulted in the death of Jamuna Prasad. The
accused/respondents thereafter approached police station for lodging an FIR against the
informant and his deceased brother but the police did not register the FIR and instead took
them in custody on the same day.

15. The respondents have further contended that their plea of self-defence stands
corroborated by the injuries present on the body of accused Harnaam as recorded by the Jail
doctor (DW1). The prosecution has failed to explain his injuries and thus, the learned trial
court has passed a well-reasoned and sound legal principle-based judgment extending them
the benefit of self-defence and thereby acquitting them observing the presentation version
being produced with concealment of true and material facts of not explaining injuries of
accused. The accused in support of their arguments, placed reliance in the principles laid
down by Hon'ble Supreme Court in Kumar v. State represented by Inspector of police;
(2018) 7 SCC 536, Mohan Alias Srinivas v. State of Karnataka; AIRONLINE 2021 SC
1184, Lakshmi Singh and Others v. State of Bihar; (1976) 4 SCC 394, State of UP v.
Atar Singh and others; AIR 2008 Supreme Court 411, Anwar Ali v. State of Himachal
Pradesh; AIR 2020 SC (Criminal) 1649, Supreme Court and Jairam & Others v. State
of U.P.; Criminal Appeal No. 877 of 1982 (judgment dated 28.11.2025). Concluding the
4 All. State of U.P. Vs. Tulsi Ram
1651
arguments, it is submitted that the order and judgement of acquittal passed by learned trial
court warrants no interference and appeal deserves to be dismissed.

ISSUES EMERGED FOR CONSIDERATION AND ADJUDICATION:-

16. Having heard the rival submissions advanced by the learned counsels for the
contesting parties and having meticulously perused the record, the following issues emerge
for consideration and record:

a. Whether the learned Trial Court has rightly accorded the benefit of self-defence
to the accused?

b. Whether the failure of the prosecution in explaining the injuries on the person of
the accused renders the entire prosecution story untrustworthy?

c. Whether the impugned order and judgment of acquittal bears any illegality or
perversity?

ANSWER TO THE HEREIN ABOVE FORMULATED ISSUES:-

17. Before commencing to pen down an answer to Issue No. (a), it is deemed
appropriate to refer to some significant provisions and judicial precedents which are
germane to the facts and disputes of the present case.

18. The right to private defence is contained under Chapter IV of IPC, which deals with
General Exceptions. Section 96 of IPC states that nothing is an offence which is done in
exercise of the right of private defence. Section 99 of IPC states that the right of private
defence does not extend to inflicting more harm than necessary of the purpose of selfdefence. Section 100 of IPC stipulates the circumstances under which the right to selfdefence extends to causing death. The relevant sections are reproduced hereunder:

"96. Things done in private defence.-Nothing is an offence which is done in the
exercise of the right of private defence.

97. Right of private defence of the body and of property.-Every person has a
right, subject to the restrictions contained in section 99, to defend-

First.-His own body, and the body of any other person, against any offence
affecting the human body;

Secondly.-The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or
criminal trespass.

***

99. Acts against which there is no right of private defence.-There is no right of
private defence against an act which does not reasonably cause the apprehension of death
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith
under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his office though that
direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have
recourse to protection of the public authorities.

Extent to which the right may be exercised.-The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose
ofdefence.

Explanation 1.-A person is not deprived of the right of private defence against an
act done, or attempted to be done, by a public servant, as such, unless he knows or has
reason to believe, that the person doing the act is such public servant.

Explanation 2.-A person is not deprived of the right of private defence against an
act done, or attempted to be done, by the direction of a public servant, unless he knows, or
has reason to believe, that the person doing the act is acting by such direction, or unless
such person states the authority under which he acts, or if he has authority in writing, unless
he produces such authority, if demanded.

100. When the right of private defence of the body extends to causing death.-The
right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if
the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:-

First.-Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;

Secondly.-Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault;

Thirdly.-An assault with the intention of committing rape;

Fourthly.-An assault with the intention of gratifying unnatural lust;

Fifthly.-An assault with the intention of kidnapping or abducting;

Sixthly.-An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.

Seventhly.-An act of throwing or administering acid or an attempt to throw or
administer acid which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such act.

19. Section 105 of the Indian Evidence Act, 1872 states that the burden of proving the
plea of self-defence is on the accused person who takes such defence. The plea of selfdefence is a question of fact which has to be determined on the basis of the facts of each
case. The accused is not required to prove the defence beyond reasonable doubt and it will
suffice if the accused is able to show the preponderance of probability in favour of the plea
of right of self-defence.
4 All. State of U.P. Vs. Tulsi Ram
1653

20. In Vijayee Singh and Ors v. State Of Uttar Pradesh; (1990) 3 SCC 190 the
Hon'ble Supreme Court observed that:

"16. The phrase "burden of proof" is not defined in the Act. In respect of criminal
cases, it is an accepted principle of criminal jurisprudence that the burden is always on the
prosecution and never shifts. This flows from the cardinal principle that the accused is
presumed to be innocent unless proved guilty by the prosecution and the accused is entitled
to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following
terms:

"105. When a person is accused of any offence, the burden of proving the existence
of circumstances bringing the case within any of the General Exceptions in the Indian Penal
Code, or within any special exception or proviso contained in any other part of the same
Code, or in any law defining the offence, is upon him, and the Court shall presume the
absence of such circumstances."

The Section to some extent places the onus of proving any exception in a penal
statute on the accused. The burden of proving the existence of circumstances bringing the
case within the exceptions mentioned therein is upon him. The Section further lays down that
the Court shall presume non-existence of circumstances bringing the case within an
exception." The words "the burden of proving the existence of circumstances" occuring in
the Section are very significant. It is well settled that "this burden" which rests on the
accused does not absolve the prosecution from discharging its initial burden of establishing
the case beyond all reasonable doubts. It is also well-settled that the accused need not set up
a specific plea of his offence and adduce evidence. That being so the question is: what is the
nature of burden that lies on the accused under Section 105 if benefit of the general
exception of private defence is claimed and how it can be discharged? In Woolmington v.
The Director of Public Prosecutions, [1935] Appeal Cases 462, Viscount Sankey, L.C.
observed:

"When evidence of death and malice has been given (this is a question for the
jury), the prisoner is entitled to show by evidence or by examination of the circumstances
adduced by the Crown that the act on his part which caused death was either unintentional
or provoked. If the jury are either satisfied with his 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."

It is further observed:

"Just as there is evidence on behalf of the prosecution so there may be evidence on
behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled
to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner,
there is no such burden laid on the prisoner to prove his innocence and it is sufficient for
him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence ...

Throughout the web of the English criminal law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any stationary exception. If, at
the end of and on the whole of the case, there is reasonable doubt created by the evidence
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
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. No matter what the charge or where the trial, the
principle that the prosecution must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained."

(Emphasis added by court)

...................................

21. In Ramesh (supra) the Hon'ble Supreme Court made the following observations
regarding the plea of self-defence:

"10. Only question which needs to be considered, is the alleged exercise of right
of private defence. Section 96, IPC provides that nothing is an offence which is done in the
exercise of the right of private defence. The Section does not define the expression 'right of
private defence'. It merely indicates that nothing is an offence which is done in the exercise
of such right. Whether in a particular set of circumstances, a person legitimately acted in
the exercise of the right of private defence is a question of fact to be determined on the facts
and circumstances of each case. No test in the abstract for determining such a question can
be laid down. In determining this question of fact, the Court must consider all the
surrounding circumstances. It is not necessary for the accused to plead in so many words
that he acted in self-defence. If the circumstances show that the right of private defence was
legitimately exercised, it is open to the Court to consider such a plea. In a given case the
Court can consider it even if the accused has not taken it, if the same is available to be
considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872
(in short 'the Evidence Act'), the burden of proof is on the accused, who sets up the plea of
self-defence, and, in the absence of proof, it is not possible for the Court to presume the
truth of the plea of self-defence. The Court shall presume the absence of such circumstances.
It is for the accused to place necessary material on record either by himself adducing
positive evidence or by eliciting necessary facts from the witnesses examined for the
prosecution. An accused taking the plea of the right of private defence is not necessarily
required to call evidence; he can establish his plea by reference to circumstances
transpiring from the prosecution evidence itself. The question in such a case would be a
question of assessing the true effect of the prosecution evidence, and not a question of the
accused discharging any burden. Where the right of private defence is pleaded, the defence
must be a reasonable and probable version satisfying the Court that the harm caused by the
accused was necessary for either warding off the attack or for forestalling the further
reasonable apprehension from the side of the accused. The burden of establishing the plea
of self-defence is on the accused and the burden stands discharged by showing
preponderance of probabilities in favour of that plea on the basis of the material on record.
(See Munshi Ram and Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat v.
Bai Fatima (AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226),
and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577). Sections 100 to 101 define
the extent of the right of private defence of body. If a person has a right of private defence of
4 All. State of U.P. Vs. Tulsi Ram
1655
body under Section 97, that right extends under Section 100 to causing death if there is
reasonable apprehension that death or grievous hurt would be the consequence of the
assault. The oft quoted observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC
391), runs as follows:

"It is true that the burden on an accused person to establish the plea of selfdefence is not as onerous as the one which lies on the prosecution and that, while the
prosecution is required to prove its case beyond reasonable doubt, the accused need not
establish the plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea in the cross-examination
of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond
reasonable doubt. It is enough for him to show as in a civil case that the preponderance of
probabilities is in favour of his plea.

11. The number of injuries is not always a safe criterion for determining who the
aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the
body of the accused persons, a presumption must necessarily be raised that the accused
persons had caused injuries in exercise of the right of private defence. The defence has to
further establish that the injuries so caused on the accused probabilise the version of the
right of private defence. Non-explanation of the injuries sustained by the accused at about
the time of occurrence or in the course of altercation is a very important circumstance. But
mere non-explanation of the injuries by the prosecution may not affect the prosecution case
in all cases. This principle applies to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of
the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v.
State of Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the right of private defence is
available to an accused, it is not relevant whether he may have a chance to inflict severe
and mortal injury on the aggressor. In order to find whether the right of private defence is
available to an accused, the entire incident must be examined with care and viewed in its
proper setting."

(Emphasis added by court)

22. The right of private defence is a defensive right, serving a social purpose,
which cannot be given such a wide meaning as to sub serve vindictive purposes. In Darshan
Singh v. State of Punjab; (2010) 2 SCC 333, the Hon'ble Apex Court held:

"54. In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the court
observed that

"18. The right of self-defence is a very valuable right, serving a social purpose
and should not be construed narrowly....... Situations have to be judged from the subjective
point of view of the accused concerned in the surrounding excitement and confusion of the
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
moment, confronted with a situation of peril and not by any microscopic and pedantic
scrutiny. In adjudging the question as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be inappropriate, as held by this court, to
adopt tests by detached objectivity which would be so natural in a court room, or that which
would seem absolutely necessary to a perfectly cool bystander. The person facing a
reasonable apprehension of threat to himself cannot be expected to modulate his defence
step by step with any arithmetical exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal circumstances."

23. In view of the above-mentioned legal position, we proceed to analyse the facts of
the instant case. It is worth-while to mention here that the accused have not disputed the day,
time, place of occurrence and further the injuries inflicted on the person of deceased Jamuna
Prasad, who succumbed due to the injuries sustained in occurrence. Moreover, there is no
dispute that both are neighbours and had adjacent rooftop of their respective houses. The
rooftop of deceased on which he was installing parnala, was higher to that of the accused
and the water had to flow to the roof of the accused, to which they raised objection. But the
deceased ignored the protest of accused and continued with his work, and therefore, a
dispute arose over this matter. Further, this fact is also not disputed that PW1 informant
Amrit Lal along with deceased and accused was present on the spot at the relevant time. The
accused has not confronted substantially the lacerated and stab injuries sustained by
deceased and rather had admitted genuineness of post mortem report of deceased, and thus
the fact of injuries being outcome of lathi and bhala as opined by PW5 is not disputed.
Prosecution further led evidence of PW3 Ram Chandra and PW 7 investigating officer who
deposed and corroborated the fact of arrest of accused Lakshmi Narayan and disclosure
statement of accused Harnaam regarding hiding of weapons used in offence and to get them
recovered and further leading recovery of weapons in their presence and same was taken
into custody on the spot vide recovery memo under the signature of witnesses. Thus, in view
of admitted incident by accused and adducing ocular evidence, prosecution successfully
proved its case beyond reasonable doubt.

24. On the contrary, accused submitted that on being opposed for not installing parnala
on his roof as the water would be flowing on their roof, the deceased became violent and
opened assault on them. It is further case of accused that it was the deceased, who was
adamant to damage their roof and the act of deceased was falling in the category of offence
of mischief and they got every right to protect their property, therefore, in order to protect
their person and property as well, the deceased sustained and succumbed to injuries, while
PW1 received simple injuries in same occurrence. According to the submissions of accused,
they had clear case of right of private defence but the prosecution has not put forth the true
material facts of occurrence and narrated only their injuries in complete non-explanation of
injuries suffered by accused Harnaam during the occurrence, therefore, learned trial court
while taking serious note of non- explanation of injuries of accused, rightly disbelieved
prosecution version and observed that accused were acting in the self defence while causing
injuries and acquitted them.
4 All. State of U.P. Vs. Tulsi Ram
1657

25. Now the question that needs redressal is whether informant and his brother can be
termed aggressors on the basis of the facts and evidence available on record, thus, entitling
the accused to claim the benefit of plea of self-defence. As observed above, it is not disputed
that PW1 along with his brother Jamuna Prasad and accused were present on their respective
roofs on the day of occurrence. PW2 has deposed and established his presence on his roof at
the relevant time. Jamuna Prasad was repairing the parnala, while PW1 was putting mud on
his roof. The repair work being carried on was opposed by accused, due to the reason of
deceased having the roof higher than the accused and installation of parnala in the direction
of roof of accused, would have caused flow of water on their roof, but deceased did not pay
heed and on the instigation of Tulsi Ram, co-accused Harnaam and Lakshmi Narayan
attributed fatal injuries to Jamuna Prasad leading to his death and when PW1 tried to
interfere and save his brother, he was also given beatings by accused.