TMI Blog1974 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 307 of the Penal Code in regard to an alleged knife-attack on one Nanak Chand. The High Court of Allahabad has acquitted Ganga Ram and Ram Swarup in an appeal filed by them and has dismissed the appeal filed by the State Government challenging the acquittal of Somi and Subhash. In this appeal by special leave we are concerned only with the correctness of the judgment of acquittal in favour of Ganga Ram and Ram Swarup. Except for a solitary year, Ganga Ram held from the Municipal Board of Badaun the contract of Tehbazari in the vegetable market from 1954 to 1969. The deceased Munimji out-bid Ganga Ram in the annual auction of 1970-71 which led to the day-light outrage of June 7, 1970. At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market to purchase a basket of melons. The deceased declined to sell it saying that it was already marked for another customer. Hot words followed during which the deceased, asserting his authority, said that he was the Thekedar of the market and his word was final. Offended by this show of authority, Ganga Ram is alleged to have left in a huff. An hour later Ganga Ram went back to the market with his thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose who were belaboring Ganga Ram with lathis. But once we come to the conclusion that it was not unruly that Ram Swarup had used his gun in the circumstances narrated above, i.e. in order to save his aged father from the clutches and assaults of his assailants, he cannot be held guilty of murder or for the matter of that of any other offence . In regard to Ganga Ram the High Court held that he could not be found guilty under section 302 read with section 34 as his presence in the Subzimandi was not for the purpose of killing the deceased, as suggested by the prosecution, but he had more probably reached there alongwith his son Ram Swarup, on way back from their vegetable farm, in order to purchase melons. The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused had acted in self-defence. this position, though often overlooked, would be easy to understand if it is appreciated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count books of the deceased would have some relevance. The point of the matter was that three was trade rivalry between the deceased and Ganga Ram, their relations were under a deep strain and therefore the deceased declined to sell the melons to Ganga Ram The excuse which the deceased trotted out, may be true or false. And indeed, greater the falsity of that excuse greater the affront to Ganga Ram. The melon incident-formed a prelude to the main occurrence and was its immediate cause. By disbelieving it or by treating it alternatively as too trifling the High Court was left to wonder why Ganga Ram and Ram Swarup went to the market armed with a gun, which they admittedly did. The case of the prosecution that they went back to the market to retaliate against the highhandedness of the deceased was unacceptable to the High Court because it does not stand to reason that the appellants and their two other companions (sons of Ganga Ram) would walk into the lion's den in broad day light and be caught and beaten up, and even be done to death by the deceased, his partners and servants, besides hundreds of people who were bound to be present in the Sabzimandi at about 8 A.M. Such a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo appellants must have been going every early morning to have a round of their vegetable farm and returning home therefrom at about 8 A.M. in the sultry month of June. It is not surprising that on such return to Badaun on the morning of June 7, 1970 the appellants went to the Sabzimandi in order to purchase melons, when they were called to the Gaddi of the deceased, ultimately resulting in the fatal occurrence as suggested by the defence. The High Court assumed without evidence that Ganga Ram used to carry a gun to his vegetable farm and the whole of the conclusion reproduced above would appear to be based on the thin premise that Sona Ram had admitted that Ganga Ram had a village farm situated at distance of two miles from Badaun. We find it impossible to agree with the reasons given by the High Court as to why Ganga Ram and Ram Swarup went to the market and how they happened to carry a gun with them. It is plain that being slighted by the melon incident, they went to the market to seek retribution. The finding recorded by the High Court that the respondents went to the market for a casual purchase and that they happened to have a gun because it was their wont to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-defence is limited. It is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to- the injury to be averted, that is, the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. Undoubtedly, a person in fear of his life is not expected to modulate his defence step by step or tier by tier for as Justice Holmes said in Brown vs. United States ((1921) 256 U.S.) detached reflection cannot be demanded in the presence of an uplifted knife . But section 99 provides in terms clear and categorical that The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence . Compare for this purpose the injuries received by Ganga Ram with the injuries caused to the deceased in the alleged exercise of the right of private defence. Dr. N. A. Farooqi who examined Ganga Ram found that he had four contusions on his person and that the injuries were simple in nature. Assuming that Ganga Ram had received these injuries before Ram Swarup fired the fatal shot, there was clearly no justification on the part of Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been cognizant of this provision but the Judgment does not reflect its awareness of the provision and this we say not merely because section 105 as such has not been referred to in its Judgment. The importance of the matter under consideration is that sections 96 to 106 of the Penal Code which confer and define the limits of the right of private defence constitute a general exception to the, offences defined in the Code; in fact these sections are a part of Chapter IV headed General Exceptions . Therefore, the burden of proving the existence of circumstances which would bring the case within the general exception of the right of private defence is upon the respondents and the court must presume the absence of such circumstances The burden which rests on the accused to prove that any of the- general exceptions is attracted does not absolve the prosecution from discharging its initial burden and truly, the primary burden never shifts save when a statute displaces the presumption of innocence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence(1) . That is to say an accused may fail to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swarup fired the shot in defence of his father Ganga Ram. The circumstances of the case negative the existence of such a right. The conclusion of the High Court in regard to Ram Swarup being plainly unsupportable and leading as it does to a manifest failure of justice, we set aside the order acquitting Ram Swarup and restore that of the Sessions Court convicting him under section 302 of the Penal. Code. The possibility of a scuffle, of course not enough to justify, the killing of Munimji but bearing relevance on the sentence cannot, however, be excluded and we would therefore reduce the sentence of death imposed on Ram Swarup by the Sessions Court to that of life imprisonment. We also confirm the order of conviction and sentence under section 25 (1) (a) and section 27 of the Arms Act and direct that all the sentences shall run concurrently. (1) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat; [1964] 7 S.C.R. 361 (2) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat; Supra; Munshi Ram and Ors. vs. Delhi Administration, A.I.R. 1968, S.C. 702. In regard to Ganga Ram, however, though if we were to consider his case independently for ourselves we might have come to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection to the maintainability of this appeal which, we thought, was devoid of substance and could briefly be dealt with at the end of the judgment. He argues that the State Government has no locus stand to file in this Court an appeal against an order of acquittal passed by the High Court because no such right is conferred by the Code of Criminal Procedure or by the Constitution and there can be no right of appeal unless one is clearly given by statute. The Code of Criminal Procedure does not provide for an appeal to this Court. In Chapter XXXI ( of Appeals ), the only reference to an appeal to the Supreme Court is to be found in section 426(2B) which empowers the High Court to suspend the sentence and enlarge an accused on bail if the Supreme Court has granted to him special leave to appeal against any sentence which the High Court has imposed or maintained. But by section 417(1) of the Code the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by. any court other than a High Court. It is in pursuance of this power that State Governments file appeals in the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course limited to cases in which a substantial question of law as to the interpretation of the Constitution is involved. Article 134(1) extracted above shows that if the High Court reverses an order of acquittal and sentences the accused to death, he can appeal to the Supreme Court as a matter of right. A similar right is available to an accused whose case is withdrawn for trial by the High Court and who on being convicted is sentenced to death. In a case falling under Article 134(1) (a), the appeal against acquittal would .normally be filed in the High Court by the State Government under section 417(1) of the Code of Criminal Procedure. It is only in cases instituted upon complaint that the complainant can ask for special leave to appeal from the order of acquittal. If the State Government files in the High Court an appeal against an order of acquittal passed by the lower court and if in such an appeal the accused is sentenced to death, it seems to us patent that if the accused files an appeal in the Supreme Court against the judgment of the High Court, the State ,Government would be entitled to defend the appeal as a respondent interested in the decision of the High Court. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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