# PARTAP v. THE STATE OF U.P

- **Citation:** [1976] 1 S.C.R. 757
- **Court:** Supreme Court of India
- **Decided:** 1975-09-10
- **Case number:** Criminal Appeal No. 120 of 1971
- **Bench:** M. H. Beg, P. N. Bhagwat!, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/partap-v-the-state-of-u-p-6669
- **Pages:** 13

## Headnote

Indian Evidence Act ( 1 of 1872) -Sec. 105 -Prosecution for murderP/eai of self-defence -Scope of proof.
The appellant, his father and another were charged with murder and convicred by the trial cowt. The first information referred to eye witnesses. ofi·
whom the prosecution examined only two.
These two were chance witnesses.
of another village, but the others who belonged to the village where the occurrence took place. were not examined.
The third accused was acquitted on
appeaL by the High Oiurt aud the father died after his conviction was confinned by the High Court. The appellant's plea of private dofence was rejected
botfl by the trial court/and the< High Court.
Allowing the appeal to this Court,
HELD (Per M. H. Beg J.) : Section 105 of the Evidence Act contains two
kinds of burden on the accused who sets up. an exception, (i) the onus of prov~
ing the. existence of circumstance~ bringing the case within any of the general
or special exceptions i!l the I.P.C. or in any other law; and (ii) the burden of
introducing or showing evidence. resulting from the last part of the provision
which says that the court shall presume the absence of such
circumstances.
The effect of the obligatory presumption at the end of Section 105 is that th1>
court must start by assuming that no facts exist which could be taken into
consideration for considering the plea of self~defence as an exception to the
criminal liability which would otherwise be there. But when both sides have
Jed evidence of their, respeatiV'e V1ersions the accused can show. from the
evidence· on record, whether tendered by the· prosecution or the defence. that
the mandatory presumption is removed.
The last mentioned burden is not
really a burden of establishing the plea fully but of either introducing or showing the existence! of some evidence to justify the taldng uo of the plea. The
burden resulting from the obligatory presumption is not difficult to discharge
and its removal may not 'be enough for acquittal. But the rigbt of the accused
to obtain the benefit of reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable
doubt ~d that right is available to the accused even if he fails to discharge
his own duty to prove fully the exception pleaded.
[762A-D; 76JE]
In the present case, even if the appellant did not fully establish his plea,
yet, there fs sufficient evidence, both direct and circumstantial, to justify the
finding that the prosecution has not established its case beyond reasonable doubt
agwinst the appellant on an essential ingredient of the offence of innrder, nafilely,
the· required nrens rea. An examination of all the facts and circumstance,.;
revealed by the entire evidence, including the effect of non-production of the
better evidence available which. for some unexplained reason was not produced, shows that the plea Of private defence cannot be reasonably ruled out.
Even 1f the deceased was not Positively proved to be' advancing threateningly
with a spear Poised for attack, towards the appellant or his father, yet, a consideration of the whole evidence leads to the inference that this was reasonably
likely to be true.
[763G-764A, El
( 1) The trial court was inclined to believe that the defence version was
true to the extent that t!ie deceased bad rushed to the scene with a spear.
It overlooked that the deceased while going to help P.W. I, bad actually expressed bis intention to break the heads of the members of the accused party
and that he was acting in such a way as to appear to be bent on phys1cal1 y
aggressive interference in a quarrel between the two sides. If that was the
conduct of the deceased, it is reasonable to infer that he must have done some-
758
SUPREME COURT REPORTS·
[ l 976] 1 S.C.R.
thing which gave. rise to the right of private defence in favour of th~ appellant.
01h.;:nv1!le, the conduct of •he appellant, in ~paring P.\V. 1, wh.J according
to the prosecution ha

## Text

_Characters 0–39,910 of 41,896. This is a partial read: ask again with offset=39910 for what follows._

A
--\--" -. ,
11
B
.~
•
c
.. •
D
E
F
G
H
757
PARTAP
v.
THE STATE OF U.P.
September 10, 1975
[M. H. BEG, P. N. BHAGWAT! AND R. S. SARKARIA, JJ.J
Indian Evidence Act ( 1 of 1872) -Sec. 105 -Prosecution for murderP/eai of self-defence -Scope of proof.
The appellant, his father and another were charged with murder and convicred by the trial cowt. The first information referred to eye witnesses. ofi·
whom the prosecution examined only two.
These two were chance witnesses.
of another village, but the others who belonged to the village where the occurrence took place. were not examined.
The third accused was acquitted on
appeaL by the High Oiurt aud the father died after his conviction was confinned by the High Court. The appellant's plea of private dofence was rejected
botfl by the trial court/and the< High Court.
Allowing the appeal to this Court,
HELD (Per M. H. Beg J.) : Section 105 of the Evidence Act contains two
kinds of burden on the accused who sets up. an exception, (i) the onus of prov~
ing the. existence of circumstance~ bringing the case within any of the general
or special exceptions i!l the I.P.C. or in any other law; and (ii) the burden of
introducing or showing evidence. resulting from the last part of the provision
which says that the court shall presume the absence of such
circumstances.
The effect of the obligatory presumption at the end of Section 105 is that th1>
court must start by assuming that no facts exist which could be taken into
consideration for considering the plea of self~defence as an exception to the
criminal liability which would otherwise be there. But when both sides have
Jed evidence of their, respeatiV'e V1ersions the accused can show. from the
evidence· on record, whether tendered by the· prosecution or the defence. that
the mandatory presumption is removed.
The last mentioned burden is not
really a burden of establishing the plea fully but of either introducing or showing the existence! of some evidence to justify the taldng uo of the plea. The
burden resulting from the obligatory presumption is not difficult to discharge
and its removal may not 'be enough for acquittal. But the rigbt of the accused
to obtain the benefit of reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable
doubt ~d that right is available to the accused even if he fails to discharge
his own duty to prove fully the exception pleaded.
[762A-D; 76JE]
In the present case, even if the appellant did not fully establish his plea,
yet, there fs sufficient evidence, both direct and circumstantial, to justify the
finding that the prosecution has not established its case beyond reasonable doubt
agwinst the appellant on an essential ingredient of the offence of innrder, nafilely,
the· required nrens rea. An examination of all the facts and circumstance,.;
revealed by the entire evidence, including the effect of non-production of the
better evidence available which. for some unexplained reason was not produced, shows that the plea Of private defence cannot be reasonably ruled out.
Even 1f the deceased was not Positively proved to be' advancing threateningly
with a spear Poised for attack, towards the appellant or his father, yet, a consideration of the whole evidence leads to the inference that this was reasonably
likely to be true.
[763G-764A, El
( 1) The trial court was inclined to believe that the defence version was
true to the extent that t!ie deceased bad rushed to the scene with a spear.
It overlooked that the deceased while going to help P.W. I, bad actually expressed bis intention to break the heads of the members of the accused party
and that he was acting in such a way as to appear to be bent on phys1cal1 y
aggressive interference in a quarrel between the two sides. If that was the
conduct of the deceased, it is reasonable to infer that he must have done some-
758
SUPREME COURT REPORTS·
[ l 976] 1 S.C.R.
thing which gave. rise to the right of private defence in favour of th~ appellant.
01h.;:nv1!le, the conduct of •he appellant, in ~paring P.\V. 1, wh.J according
to the prosecution had given offence to his father in the past! and on the day
.Qf the incident, and was advancing towards the father threatening to strike him
wvith a S:pade, but shooting th'C' dccea<;cd who appeared on the scene subsc-
'QUcntly and was, according· to the .pros~cution version unarmed becon1es inexplicable.
If the right of ~If-defence had arisen the shooting cquld not tie
n1urder, even if the right" \Vas exceeded the offence could not be culpable
homicide amounting to murder.
f_760B-F]
(2) Further, the prosecution version is supportied only by two chance witnesses, but the other persons, who had according to the prosecution version
witnessed the occurrence and whose names were m-entioned in the FIR, were
neither produced by the prosecution nor were they examined as court witnesses.
[760G-76lB]
(3) Moreowr, the High Court itself did not rely on the stale111ents of the
.alleged eye witnesses when it ac'quitted the third accused who was. also alleged
to have ~hot with his pistol.
[764H]
Parbhoo v. E111peror, AIR 1941 AIL 402(FB) and Rishi Kl'sh Singh & On.
v. Tire State, AIR 1970 All]. 51 {FB), referred to.
(Per P. N. Bhagwati and R. S. Sarkaria, JJ.)
The appellant had established, by a preponderance of probability, that the
.deceased was within a striking distance poised for imminent attack on the appellant v.·ith '" spear. wheh the appellant fired the fatal shot, and hence, the death
was caused by the appellant in lhe exercise of
th.3 ri~ht of private
defence.
,!769F-GI
(I) Nothing turns on the evidence of the two witne&ses who wen: examined:
but the approach of the trial court and the High Coun to the plea of self·
.defence raised by the appel1ant was wrong. necessitating a rcvie'v of the evidence by this Court.
[7670, G)
(2) The btirdcn on the accused under s. 105, Evidence Act, is n0t :1'i or..:n_,u~
u:; that which lies on the prosecution under s. 101, Evidence Act, to "prove it"
case.
While the prosecution is required to prove its case be~ond reasonabk
doubt, the accused can discharge hi's onus by establishing a n1ere preponderance
of probability.
[767F-G]
( 3) The plea of private defence wa" specifically taken by the appellant J.l
the trial in his examination under s. 342, c·r.P.C., and was put to P.\V. 1, the
chief eye.witness for the· prosecution. ·The High Court was wrong: in brandin_c:
the plea as an after-thought on the ground that he did not raise it in lhc con1mittal court, especially \Vhoen there is foundation for it in the prose.:ution evidence itself.
The, record also shows that only a composite question was put
~o the appellant and that he was not properly examined in the comn1it1al
court.
[7670; 768E-G]
·
( 4) The appellant's plea that the deceased was about to strike with hi~
spear when the gun was fired was highly probable. The prosccuiion ca~ w::i.'
that, following the threatening gesture made by P.W. 1 to break the f:ith~r·s
head with a spade and the call given by him, the appellant came to the scene
_of occurrence with a gun; that immediat'.:!ly thereafter. the dece3scJ cru11c
proclaiming that, he would break the heads of, and settJC scores with everyon~
of, the accused !_}arty, and that the dee.eased had reached a distance of 3 or 4
paces from the appellant and was charl:,ing at him when the appellant fired.
The :prosecution story that the deceased was unarmed is improbable.
He woulJ
not have behaved in that bold and truculent inanner unless. he wus .irn1ed with
a formidable weapon. .
[767H-768D]
(5) The defence witnes:i also testified that he was attracted fro1n his house
-to .the scene of' occurrence by the outcry of the father, that he saw the deceased
A
'-+--
l\ '
B
j
1c
D
E
'
F
-(
G
.>-
l
~
H
A
~
·' .f
l
B
~
c
•
t -.
D
F
.,
'"'
<G
~
~
H
PART;AP V. U.P. STATE (Beg,/.)
759
armed with a s~ar running towards the scene of occurrence and that he baw
the de-ceased lying dead with a spear beside him. He- was an independent
witness and nothing was brought out in the cross~examination to show that he
was either hostile towards the complainant's party or had any ·special interest
in the accused.
His \iersion was probable and the High Court 'n':ts wron& in
rejecting his evidence.
[769D-F]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 120 of
1971.
Appeal by Special Leave from the Judgment and Order dated the
24th July, 1970 of the Allahabad High Court at Allahabad in Criminal
. Appeal No. 581 of 1968.
A. N. Mui/a and 0. N. Mohindroo for the Appellant.
D. P. Uniyal and 0. P. Rana for the Respondent.
The Judgment of P. N. Bhagwati and R. S. Sarkaria was delivered
by R. S. Sarkaria, J. Beg, J. gave a separate Opinion.
BEG, J. I have had the advantage of going through the judgment of
my learned brother Sarkaria. I confess that I do not feel confident
enough about the veracity of the defence case and the evidence found
in support of it to be able to hold that it is proved on a balance of probabiEties. But, I think that what transpires from a consideration of the
whole evid.ence is enough to entitle the accused to a benefit of doubt for
the reasons given beJo\v.
'
The findings of the Trial Court on the defence version indicate that
a question of law arise here which seems to have troubled several High
Courts. It gave rise to two Full Benc!J. decisions of the Allahabad High
Court, the first in Parbhao v. Emperor,( 1) and the second in Rishi
Kesh Sing/1 & Ors. v. the State('). It does not seem to have been considered in the same form by this Court. I think this is an appropriate
case ip which this Court could consider and decide it; and, it is because
this aspect of the case was ignored by the Trial Court as well as the High
Court that I consider this to be a fit case for a reconsideration of evidence and intcrcference by this Court under Article 136 o[ the Con-
~titution.
The Trial Court, after assuming that there may be some truth in the
defence version that Ram Nath had gone to the scene of occurrence
with a blza/a, said :
"Even if Ram Nath had arrived there armed with 'b/w/a'
there could be no apprehension of death or grievous hurt to
any one of the accused persons as the accused persons were
armed with gun and pistol and could defend themselves if
Ram Nath tried to strike them with 'bhala'.
Pratap and Suresh accused could not be justified in firing
gun-shots and pistol-shots at Ram Nath in the expectation
that Ram Nath may reach the place where Puttu Lal accu&~
was standing and may strike him with 'bha/a',
____ .,._, _________ -------·
(1) A.l.R. 1941 All. 402 (FB).
(2) AIR 1970 All. 51 (FB).
760
SUP.RBME COURT REPORTS
[1976] I S.C.R.
Pratap and Suresh accused had started from their house
with gun and pistol before they had known about the reaching
of Ram Nath at that place with a 'bha/a'. It can reasonably
be inferred from the own case of the defence that Pratap and
Suresh accused, or at least Pratap accused, had arrived there
with the intention of committing the murder of Raj Kumar or
of any body who may interfere in the wordy duel between
Raj Kumar P.W. and Puttu Lal accused".
This shows that the Trial Court was inclined to believe that the
defence version was true to the extent that Ram Nath had rushed to
A
B
the scene of occurrence with a bha/a, when a quarrel between the two
sides was taking place. But, it bverlooked here that Ram Nath, while
going to the help of Raj Kumar, had actually expressed his intention to
break the heads of· members of Puttu Lal's party. At any rate, accordC
ing to the prosecution evidence., Ram Nath was acting in such a way as
to appear like a "lion" bent on interference to protect Raj Kumar in a
quarrel between the two sides. If this was Ram Nath's conduct, could
he not have done something which gave rise to the right of private
defence of person ? If that right had arisen how could shooting him be
murder ? Even if it was exceeded the offence conld not be culpable
homicide amounting to murder.
It
Why should Pratap, the appellant, have spared Raj Kumar who,
according to the prosecution evidence itself, had given offence to Puttu
Lal in the past and then on the date of incident by actually demolishing
a nali and then advancing towards him with his phawra, threatening to
strike Puttu Lal, but shoot at Ram Nath who appeared subsequently
and was, according to the prosecution version, quite unarmed ? The
E
prosecution evidence is that Puttu Lal had called his son Pratap and
asked him to bring his gun only when Raj Kumar had threatened to
attack him with his phawra and had advanced towards Puttu Lal. Nevertheless, Pratap and Suresh are alleged to have shot down Ram Nath,
even though Ram Nath was empty handed, but did nothing to Raj
Kumar who was, according to the prosecution version, more offensive
and threatening with a pnawrah and was the cause of the who.le trouble!
F
Such conduct, attributed to Pratap and Suresh, in the setting alleged,
seems quite unnatural and eccentric.
Raj Kumar, P.W. I, also stated that Atma Ram, Achhe Ram and
Sia Ram, Pradhan, took their stand in parti land at about the same time
1-...t--.
41. •.
•
J
'"r
as Ram Nath had arrived on the scene and had asked Ram Nath not
to loose heart or to be discouraged as he was coming to deal with each
one of Raj Kumar's adversaries. Then, at Puttu La!'s instigation,
Pratap and Suresh are alleged to have shot at Ram Nath. Why is it
G , ).,
that this version of the obviously interested Raj Kumar, PW 1, is only
supported by two chance witnesses of another village, but neither Atma
Ram nor Achhe Ram, nor Sia Ram, Pradhan of village Sant Kuiyan,
who had, acco~ding to the prosecution version, witnessed the occurrence
not produced by the prosecution at all ? The prosecution could select
its witnesses. But, why was such an objectionable selection made? Was
it not a case in which the Court should have exercised its power under
Section 540 Criminal Procedure Code to summon at least Sia Ram,
H
A
).
B
c
•
r .. '
E
•
F
.,
4,,
G
>J.
H
PART/\P V. U.P. STATE (Beg, ], )
761
Pradhan, in whose grove Ram Nath was shot, so as to ascertain the
whole truth more satisfactorily ? Had not the Trial Court and the High
Court too readily assumed that absolu;e truth fell from the lips of prosecution witnesses as regards the commencement of aggression even when
their own statements contained admissions indicating that the whole or
the real truth had not been revealed by them ? These are some of the
doubts which the rather mechanical examination of evidence by the
Trial Court and the High Court do not dispel.
The question which arises in this case is : Even if the defence version is not held to be fully established, by a balance of probabilities,
were there not sufficient pointers in evidence of what was probably the
truth which leaked out from some statements of the prosecution witnesses themselves ? They had indicated the bellicose and threatening!
attitude of Ramnath while he was advancing. Did this not tend to corroborate the defence version that he was actually advancing menacingly
armed with a bhala piosed for an attack with it when he was shot at?
It was held in the case of Rishi Kesh Singh (supra) by a majority
of a Full Bench of nine Judges of the Allahabad High Court explaining
and relying upon the decisions of this Court discussed there (at p. 51)
"The accused person who pleads an exception is entitled
to be acquitted if upon a consideration of the evidence as a
whole (including the evidence given in support of the plea of
the general exception) a reasonable doubt is created in the
mind of the Court about the ~ilt of the accused".
In that case, the result of a consideration of the decisions of this Court
in relation to the provisions of Section l 05 of the Evidence Act was
summed up by me as follows (at page 97-98) :
". . . an accused's plea of an exception may reach one of
three not sharply demarcated stages, one succeeding the other,
depending upon the effect of the whole evidence in the case
judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are : firstly, a lifting
of the initial obligatory presumption given at the end of 5ection 105 of the Act; secondly, the creation of a reasonable
doubt about the existence of an ingredient of the offence; and,
thirdly, a complete proof of the exception by 'a preponderance
of probability', which covers even a slight tilt of the balance
of probability in favour of the accused's plea. The accused
is not entitled to an acquittal if his plea does not get beyond
the first stage. At the second stage, he becomes entitled to
acquittal by obtaining a bare benefit of doubt. At the third
stage, he is undoubtedlv entitled to an acquittal. This,
in my opinion, is the effect of the majority view in Parbl100'.•
case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so
far, but the first stage has not yet been dealt with directly or
separately there in any case brought to our notice."
18-L925SupCI/75
762
SUPR£ME COURT REPORTS
[1976] 1 S.C.R.
Provisions of Section 105 of the Evidence Act, which are applicable
in such cases, contain what are really two kinds of burden of the
accused who sets up an exception; firstly, there is the onus laid down
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, and, seoondly, there is the
burden of introducing or showing evidence which results from the last
part of the provision which says that "the Court shall presume the
absence of such circumstances". The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must
start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the
criminal liability which would otherwise be there.
But, when
both
A
B
sides have led evidence of their respective versions, the accused can
C
show, from any evidence on the record, whether tendered by the prosecution or the defence, that the mandatory presumption is removed. The
last mentioned burden is not really a burden of establishing the plea
fully but of either introducing or of showing the existence of some
"--~
,.
"-
'/-·
evidence to justify the taking up of the plea.
The burden resulting
_,
from the obligatory presumption is not difficult to discharge and its
, •
removal may not be enough for an acquittal.
D
Section 105 of the Evidence Act was thus explained in Rishi Kesh
Singh's case (supra) (at p. 95) :
"Even a literal interpretation of the first part of Section
105 could indicate that 'the burden of proving the existence
of circumstances bringing the case' within an exception is
E
meant to cover complete proof of the exception pleaded, by a
preponderance of probability, as well as proof of circumstances
showing that the exception may exist which will entitle, the
accused to the benefit of doubt on the ingredients of an offence.
If the intention was to confine the benefit of bringing a case
within an exception to cases where the exception was established by a pre-ponderance of probability, more direct and
definite language would have been employed by providing
that the accused must 'prove the existence' of the exception
pleaded. But, the language used in the first part of Section 105
seems to be deliberately less precise so that the accused, even
if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate
genuine doubt about his guilt introduced by the accused.
Again, the last part of Section 105, even if strictly and literally interpreted, does not justify reading into it the meaning
that the obligatory presumption must last until the accused's
plea is fully established and not just till circumstances (i.e. not
necessarily all) to support the plea are proved. Moreover, a
restrictive interpretation of Section 105, excluding an accused
from the benefit of bringing his case within an exception until
he fully proves it, is ruled out by the declaration of law by
the Supreme Court that there is no conflict between Section
F
G
H
..
;;.
~-
A
r·
B
c
D
E
F
H
PARTAP v. U.P. STATE (Beg, ],)
105 and the pro5ecution's duty to prove its case. bey012d
reasonable doubt.
Hence, the obligatory presumpt10n,
at
the end of Section 105, cannot be held to last until the accused
proves his exception fully by a preponderance of probability.
It is necessarily removed earlier or operates only initially as
held clearly by judges taking the majority view in Parbhoo's
case, 1941 All LJ 619-AIR 1941 All 402 (FB)".
It was also said there (at p. 89) :
763
"The legal position of a state of reasonable doubt may be
viewed and stated from two opposite angles. One may recognise, in a realistic fashion, that, although the law prescribes
only the higher burden of the prosecution to prove its case
beyond reasonable doubt and the accused's lower burden of
proving his plea by a preponderance of probability only, yet,
there is, in practice, a still lower burden of creating reasonable doubt about the accused's guilt, and that an accused can
obtain an acquittal by satisfying this lower burden too in practice.
The objection to stating the law in this fashion is that
it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the
law, that it only recognises what is true. Alternatively, one
may say that the right of the accused to obtain the benefit of
a reasonable doubt is the necessary outcome and counterpart
of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the
accused even if he fails to discharge his own duty to prove
fully the exception pleaded.
This technically more correct
way of stating the law was indicated by Woolmington's case
and adopted by the majority in Parbhoo's case. and, after
that, by the Supreme Court. It seems to me that so long as
the accused's legal duty to prove his plea fully as well as his
equally clear legal right to obtain the benefit of reasonable
doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of
mode in describing the position, from two different angles,
ts an immaterial matter of form only. Even if the latter form
appears somewhat artificial, it must be preferred
after its
adoption by the Supreme Court". (See: K. M. Nanavati v.
State of Maharashtra-AIR 1962 SC 605).
Applying the principle of benefit of doubt, as I had explained above,
to the plea of private defence of person in the instant case, I think that,
even if the appellant .did not fully establish his plea, yet, there is sufficient evideince, both direct and circumstantial, to justify the finding that
the prosecution has not established its case beyond reasonable doubt
against Pratap on an essential ingredient of the offence of murder : the
required mens rea.
After examining all the facts and circumstances
revealed by the prosecution evidence itself and the defence evidence and
considering the effect of non-production of the better evidence available
which, for some unexplained reason, was not produced, I am not satis- ·
764
SUPREME COURT REPORTS
[1976] 1 S.C.ll..
fied that the plea of private defence of person c_an be reasonably ruled
out here. This is enough, in my opinion, to enl!tle the appellant to get
the benefit of doubt.
I may observe here that the High Court had not only failed to grapple
with this difficulty arising from the evidence in the case and some of
the findings of the Trial Court, which seemed to think that the intention to murder or the required mens rea for murder must be presumed
from the mere fact of homicide (a wholly incorrect approach in a case
where a plea of private defence had been raised and sought to be established by some evidence), but, the High Court itself started from a
totally unsound premise when it observed :
"It was Puttu Lal who was committing aggression by insisting that Raj Kumar should not dismantle the Na!L
It is
again admitted by Puttu Lal that he cried out for help in response to which Pratap arrived armed with a double barrel
gun."
In other words, the High Court assumed that a mere insistence by
Puttu Lal that Raj Kumar should not dismantle the nali amounted to an
"aggression" begun. The word "aggression" is generally used for an
actual invasion of the property of another or an attack on the body of
another. It is true that it is not necessary that ari actual attack should
commence before a right of private defence can arise. Nevertheless, a
reasonable apprehension of injury could not be said to arise by a mere
prohibition to dig up a "nali'' or drain. It could arise if a man is
advancing aggressively towards others holding out threats to break their
heads even if he is armed with a lathi with which he could carry out such
a declared intention. The extent of the right or its justification is
another matter depending again upon facts which have a bearing on
extent of the right or its reasonable exercise. In the circmnstances of
the case before us, I think, we can hold, that, even if Ram Nath was
not positively proved to be threateningly advancing with a bhala poised
for attack towards Pratap, appellant, or Puttu Lal, yet, a consideration
of all the probabilities and evidence on record leads us to infer that this
was reasonably likely to be true. If this was so, it is clear that the
appellant must have discharged his gun when Ram Nath had advanced
and come near enough in a manner which must have been so menacing
as to raise an apprehension of an attack with the bhala. Such an
assumption fits in with medical evidence too showing that the shots
were fired from a close enough range to cause charring.
Another feature of the case is that the High Court itself did not rely
on the statements of the alleged eye witnesses when it acquitted Suresh,
who was also alleged to have shot with his pistol,, giving him the benefit
of doubt because, unlike Puttu Lal and Pratap, he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu LaL
A
B
·1
c
D
E
F
-<
G• >
I \
.;1...._~
H
-+·
(
1
~
~
~,,
'~
A
B
c
D
E
F
G
"
PART<IP v. U.P. STATE (Sarkaria, 1.)
765
I think, on an analysis of the whole evidence, th~t the
appella~t
Pratap was also entitled to the benefit of a doubt which could be said
to be reasonable.
I, therefore, concur in the order proposed by my learned Brother.
SARKARIA, J.
This appeal by special leave is directed against a
judgment of the High Court of Allahabad dismissing the appeal of
Partap appellant and maintaining his conviction under s. 302, Penal
Code.
The facts of the prosecution case as narrated at the trial by
Raj Kumar, the star witness of the prosecution, were as follows :
Raj Kumar had installed a Tubewell in his field
known as
'Chharelawala field' in the revenne estate of village Sant Kuiyan, in
the year 1962. The water pumped out from this tubewell was utilised
by him not only for irrigating his own fields but also those of the
neighbours against charges.
Subsequently, Puttu Lal accused
also
set up a tubewell in his land situate in the vicinity of Chharelawala
field.
Puttu Lal, too, started letting out the use of his tubewell on
hire.
An unhealthy competitio1n ensued between Raj Kumar and
Puttu Lal in this water business, and their relations became strained.
There was a water channel running
from north
to south in Raj
Kumar's field through which Puttu Lal used to supply water to others.
To the south of Chharelawala field, there is grove belonging to Sia
Ram, Panlhan of the village. The tubewell of Puttu Lal is located
towards the south of that grove.
To the west of the Chharelawala
field, is a plDt belonging to Puttu Lal.
Two or three days before the occurrence in question, there was an
exchange of hot words between Raj K;umar and Puttu Lal when the
latter insisted on taking water through the said channel. Raj Kumar
firmly refused Puttu Lal the use of that channel.
On 5-1-1967, at about 7.45 a.m., Raj Kumar and bis brothers,
Ramchander and Bbagwan Sahai, started demolishing their channel
so that Puttn Lal should not be able to supply water through it.
About fifteen minutes, thereafter, Puttu Lal and his son, Ram Parkash,
appeared on the northern ridge of the grove of Siya Ram. Puttu Lal
was carrying a lath~ and Ram Parkash a bbala.
Puttu Lal asked
Raj Kumar and his companions not to demolish the channel.
Raj
Kumar rndely refused asserting that the channel belonged to him and
he had every right to erase it.
Raj Kumar advanced towards Puttn
Lal threatening to break his head with the spade, and thus settle the
matter once for all.
On being so threatened, Puttu Lal shouted to his
son, the appellant, to come immediately with his gnn.
In response to
Puttu Lal's call, the appellant, armed with the double-barrel licensed
gun of Puttu Lal, and Puttn Lal's other son, Snresh, armed with a
pistol, came. A conple of minutes after the mival of the appellant
and Suresh, the deceased Ram Nath who was the son of Raj Kumar's
wife's brother, came out running from the grove.
He shouted
to
766
SUPREME COURT REPORTS
[1976] 1 S.C.R.
Raj Kumar not to be afraid as he would settle the matter with everyA
one of the accused and break their heads.
On seeing the deceased,
Puttu Lal said : "He thinks himself to be a lion, let us see h;m first
of all". On this instigation, Partap fired his gun at Ram Nath from
a distance of four or five paces.
On receiving the gun-shot, Ram
Nath turned back when he was hit by a second shot fired by Suresh
from his pistol.
Ram Nath dropped dead.
The accused then ran
away taking their weapons with them. Raj Kumar PW 1 went home,
B
scribed the report. Exh. ka-3, and handed it over in the Kain Ganj
Police Station, 8 miles away, at 9.30 a.m.
After registering a case
on the basis of this report, Sub-Inspector Kartar Singh reached the
spot and started the investigation. He prepared the inquest report and
sent the body for post-mortem examination.
The autopsy was conducted by Dr. S. P. Chaturvedi, PW 3, on
c
6-1-1967, at 12.40 p.m.
The Doctor found five gunshot wounds of
entry and three of exit on the
deadbody.
There was blackening
around all the wounds of entry.
The death,. in the opinion of the
Doctor, was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung. The accused surrendered
in the court of the Additional District Magistrate, Farrukhabad on
7-1-1969, and thereafter their custody was taken over by the Police.
D
After conducting the preliminary enquiry, the Magistrate committed
Puttu Lal, Suresh and Partap accused for trial to the court 0£ Session
on charges under ss. 302/34, 109, Penal Code.
All the three accused
were convicted and each of them was sentenced to imprisonment for
life and a fine of Rs. 200/-.
The plea of the accused was one of denial of the prosecution case.
Suresh pleaded alibi and alleged false implication.
Partap pleaded
that the deceased was about to strike him with a bhalla and consequently, he fired two shots, in self-defence, from his double-barrel gun
at the deceased.
The accused examined Chhotc Khan, DW 1, in defence.
E
The trial judge rejected the defence version and convicted and
F
sentenced the accused as aforesaid.
In appeal, the High Court acquitted Suresh accused but maintained the conviction of Puttu Lal and Partap. Before the admission
of the special leave petition under Article 136 of the Constitution by
this Court, Puttu Lal died.
Thus only the appellant's conviction survives for consideration in this appeal.
The decision of the courts below rests mainly on the testimony
of the three eye-witnesses, namely, Raj Kumar, PW 1, Atma Ram
PW 2, and Achhey Ram, PW 4.
Mr. A. N. Mulla, the learned Counsel ~or the appellant contends
that the evidence of P.Ws. 2 and 4 was not worthy of credence; that
being residents of another village and having failed to give a credible
reason for their presence at the scene of occurrence, they were chance
witnesses of the worst type; that as admitted by their brother,, Bisheshar
Dayal, PW 15, they were not only related to the deceased but were
G
H
)
J
PARl'AP v. U.P. STATE (Sarkaria, J.)
767
A
stock witnesses of the Police; that since the witnesses did not frankly
and fully admit their mutual blood relationship,. they were of a type
to whom truth, even in trifles, appeared to be unpalata,ble; that the
prosecution had failed to examine Siya Ram and Mahabir who were
also named as eye-witnesses in the F.I.R. and the courts below had
erred in not drawing an adverse inference against the prosecution on
B
that score.
Although this criticism levelled against P.Ws. 2 and 4
is
not
totally devoid of force, we do not think it a sufficient ground to depart
from the settled rule of practice according to which this Court does
not, in the absence of material irregularity, illegality or manifest error,
itself reappraise the evidence.
In spite of these infirmities, the courts
below have believed their presence at the time and place o~ occurC
rence.
The reasons given by the witnesses for their presence at the
spot, may be vulnerable, even wrong.
True, they are residents of the
neighbouring village, It or 2 miles away, and belong to the caste of
the deceased.
PW 15 may be bearing some relationship with the
deceased. But the fact remains that PWs 2 and 4 have been named
as eye-witnesses in the F.I.R. which was lodged in the Police Station,
8 miles away, with utmost promptitude.
D
E
F
G
H
Be that as it may, the fate of the case did not depend on the evidence of these two witnesses.
Raj Kumar's evidence corroborated
by the F.I.R. and the other evidence on the record, was by itself,
sufficient to hold that the appellant had fired a fatal shot
at
the
deceased from close range with the double-barrel gun of his father.
Thus, the only question that falls to be considered in this appal is,
whether Ram Nath was shot dead by the appellant in the exercise of
his right of private defence ?
We have carefully scrutinised the judgments of the courts below.
In our opinion, their finding in regard to the plea of self-defence is
clearly erroneous.
They appear to have overlooked he distinction
between the nature o~ burden that rests on an accused under s. 105,
Evidence Act to establish a plea of self-defence: and the one cast on the
prosecution by Section 101 to prove it.s case. It is well-settl·ed that the
burden on the accused is not as onerous as that which lies on· the
prosecution.
While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.
Since the approach of the courts below is basically wrong, it has
become necessary to examine the material on record bearing on the
plea of self .. defence. This plea wa• specifically taken by the appellant
at the trial in his examination under s. 342, Cr. P.C. It was put to
Raj Kumar PW 1, the chief witness of the prosecution,
in
crossexamination. Raj Kumar replied : "It is wrong to suggest that Ram
Nath would have murdered Partap if Partap had not fired at him.
Ram Nath had nothing in his hand." The courts below have accepted
without demur the ipse dixit of Raj Kumar that the deceased was unanned. We find it impossible to swallow this so improbable a version,
the credibility of which was extremely underminded by the telling
768
SUPREME COURT REPORTS
[1976] 1 S.C.R.
~ircumstances appearing in the prosecution evidence, itself. It was
A
the admitted case of the prosecution that following the threatening
gesture made by Raj Kumar to break Puttu Lal's head with the spade,
and the call given by Puttu Lal, the appellant came there armed with
a gun and immediately thereafter, the deceased came running, proclaiming that he would break the heads of and settle the scores with
everyone of the accused party. It is further admitted that the deceased had reached at a distance of 3 or 4 paces from the appellant when
B
the latter fired.
The blackening found around the wounds of entry on
the deadbody by the medical witness, confirm that the deceased was
within six feet of the assailant when he received those injuries. Again,
it is the case of the prosecution that at the time of the first gun-fire
the deceased was facing the appellant.
The medical evidence also
confirms it, inasmuch as two entrance wounds (1 and 5) were located
on the front side of the deceased. From this circumstance it is clearly
C
discernible that the deceased was charging at the gunman and had
reached within a striking distance when his charge was foiled by the
gun-fire. It is difficult to believe that the deceased would have behaved in the bold and truculent manner he did, iJi he were not armed
with a formidable weapon. It was put to Raj K;umar by the defence
that if the deceased was empty handed-as was a]]eged by the witness
-how did he proclaim to break the heads of the accused. The witD
ness had no satisfactory answer to it.
Conscious that he wa~ suppressing the fact in question, all that he could say in befuddled embarrassment, was : "I do not know with what weapon he was going to
break the heads."
The appellant's plea that the deceased was going to ~trike him with
a Bhalla, when the gun was fired, was highly probable.
E
One of the reasons given by the learned Judges of the High Court
for ignoring this plea was that it was belated and had not been set
up by the appellant during his examination in the Committal Court.
A glance at the record of that examination would show that he was
not properly examined in that court. Only a composite question with
regard to all the circumstances of the prosecution case, was put to
him in the Committal Court, which he denied. The omission of the
appellant to set up the plea of. private defence in the Committal Court,
therefore, was no ground to brand it as an after-thought, particularly
when there was foundation for it in the prosecution evidence, itself.
The circumstances appearing in the prosecution evidence, and the
statement of the appellant recorded under Sec. 342, Cr. P.C. did not
exhaust the material in support of the plea of self-defence. There was
the direct testimony of Chhote Khan, DW 1, who testified that he was
attracted from his house to the spot by the outcry of Puttu Lal accused
which was to the effect, that he was being killed.
Witness saw Ram
Nath deceased, armed with a spear, running towards the grove of
Siya Ram. Thereafter, he heard two reports of gun-fire. On reaching
the grove, the witness saw Ram Nath lying dead with a spear by his
side.
Partap appellant and Puttu Lal were also seen running away
from the scene.
Partap was, carrying a gun.
Witness did not see
Suresh and Ram Parkash there.
Excepting the precise
words
of
F
G
H
•
t
D
F
')
~.>
l
G ,
h
PART/IP v. U.P. STATE (Sarkaria, !.)
769
Puttu Lal"s call and the fact ofthe deceased being armed with a spear,
Chhote Khan's evidence in so far as it goes, fits in with the prosecution story.
The High Court has rejected his evidence without much discussion for two reasons; firslly, that he was not speaking the
truth
inasmuch as he stated that Puttu Lal was raising an outcry that he
was being killed; because it w.as no-body's case that any body as~ulted
or attempted to assault Puttu Lal.
Secondly, the witness did not
appear and make any statement before the
investigating officer.
Neither of these was a good ground to reject his testimony out of
hand. Chhote Khan was a resident of the same village.