TMI Blog1968 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s case AIR1941All402 is not accurate, and needs qualification. Section 105, Indian Evidence Act, states: 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. Mr. P.C. Chaturvedi, appearing for the appellants conceded that when an accused pleads an exception in the Indian Penal Code, the burden of proof lies upon him. Parties are not agreed as to the manner in which the burden may be discharged. One can conceive three different modes: (1) by proving the exception beyond all reasonable doubt; (2) by proof through preponderance of probabilities; and (3) by creating a reasonable doubt in the mind of the Court. According to the learned Advocate-General, the second mode is the correct solution. According to Mr. Chaturvedi, the third mode is the correct method. It is well settled that when burden of proof lies upon an accused person, he ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of sudden fight and conflict and has to be dealt with under Section 300, I. P.C., Exception 4. Chapter IV of the Indian Penal Code deals with general exceptions. The right of private defence has been mentioned in Section 96 under Chapter IV of the Indian Penal Code. Insanity has been mentioned in Section 84, I. P.C. Under the Indian Law, a plea of insanity and a plea of private defence stand on the same footing. Under the English law, a plea of insanity is treated on the same footing as a statutory exception. It appears that under the English law, a plea of private defence is not treated on the same footing as a plea of insanity or a statutory exception. That makes the task of an accused pleading private defence comparatively easy. If it is considered that the law in India should be brought in line with the English law. Section 96 can be deleted from the Indian Penal Code. 7. In State of Madras v. Vaidyanatha Iyer 1958CriLJ232 , the Court was dealing with a case under the Prevention of Corruption Act. The High Court of Madras observed in its judgment thus: In any case, the evidence is not enough to show that the explanation offered by the accused can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or more of the ingredients of the offence. 10. In Bhikari v. State of U.P., 1966CriLJ63 , the Court quoted with approval the following passage from Dahyabhai v. State of Gujarat 1964CriLJ472 : The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions. (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime......the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.......... 11. In Harbhajan Singh v. State of Punjab, 1966CriLJ82 : Where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating reasonable doubt cannot be equated with proof by preponderance of probabilities. 14. Mr. P.C. Chaturvedi contended that under Section 105, Indian Evidence Act, the position of the accused is the same as that of an accused in a prosecution under Section 411, I. P.C. read with Section 114. Indian Evidence Act. Reliance was placed on Otto George Gfeller v. The King AIR 1943 PC 211. In Dhanvantari v. State of Maharashtra, 1964CriLJ437 it was explained that the position of the accused under Section 105, Indian Evidence Act is not the same as that of an accused in a prosecution under Section 411, I.P.C. It was explained on pages 579 and 580:-- That, however, was a case where the question before the jury was whether a presumption of the kind which in India may be raised under Section 114 of the Evidence Act could be raised from the fact of possession of goods recently stolen, that the possessor of the goods was either a thief or receiver of stolen property. In the case before us, however, the presumption arises not under Section 114 of the Evidence Act but under Section 4 (1) of the Prevention of Corruption Act. .................. The Court has no choice in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.'' 17. In it was observed on page 3:-- If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. Mr. P.C. Chaturvedi contended that exceptions are ingredients of every offence. For this contention, he relied upon Section 6 of the Penal Code. Section 6, I. P.C. states:-- Throughout this Code every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled 'General Exceptions.' though those exceptions are not repeated in such definition, penal provision or illustration. Section 6, I. P.C. is merely a device to avoid quoting lengthy excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Evidence Act and Section 105 of the Evidence Act. If it is considered that the present legal position is unsatisfactory, it is open to Parliament and State Legislatures to make the necessary amendments in the Indian Penal Code and the Indian Evidence Act. 21. In my opinion, the proposition of law laid down in AIR1941All402 has been too broadly stated and needs qualification. The true legal position is this. Whenever an accused person raises a plea based on some general exception, the burden of proof lies upon him under Section 105, Indian Evidence Act. That burden has to be discharged by preponderance of probabilities. So far as the accused is concerned, the standard of proof is the same as the standard of proof for a plaintiff or a defendant in civil proceedings. The accused cannot always secure an acquittal by merely creating a reasonable doubt in the mind of the Court as to whether the accused person is entitled to the benefit of the exception or not. If the nature of the case is such that a reasonable doubt arises as regards some ingredient of the offence, the accused is entitled to an acquittal. In other cases, a reasonable doubt as regards a certain exception wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given the benefit of the doubt regarding this essential prerequisite of the prosecution case and will be entitled to acquittal. 24. Oak C. J., in his separate judgment, has considered a case in which an accused who has caused grievous hurt to the complainant in a dispute over a field pleads that he was in possession of the field and that he acted in private defence of his property; and the evidence produced, though insufficient to prove the plea is enough to create a reasonable doubt as to which of the parties was actually in possession. In such a case, according to Oak C. J., the accused must be convicted. With this view, however, we most respectfully but emphatically disagree. If the Court were to find, in a case of that nature, that the evidence gave rise to a reasonable doubt as to whether the disputed field was in the possession of the-complainant or of the accused at the time of the incident, a simultaneous doubt would arise as to whether the accused had the necessary mens rea to make him guilty of the offence of grievous hurt; and in such circumstances the accused would in our opinion have to be acquitted on the ground that the prosecution had failed to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decided that case stated that the accused person 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 said general exception), a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception , they had in mind the doubt that may arise, on a consideration of the entire evidence (both prosecution and defence), with regard to the discharge of the primary burden resting on the prosecution to prove the guilt of the accused. That guilt can only be established if the prosecution is able to prove beyond reasonable doubt all the essentials that go to make up the offence, including the fundamental requirement of mens rea. As already pointed out, a doubt regarding the existence of mens rea must necessarily arise whenever there is a doubt in the mind of the Court as to whether the accused is entitled to the benefit of a general exception such as the right of private defence. Viewed in this light, the dictum of the Full Bench in Parbhoo's case is perfectly sound and requires no modification. 27. Our reply to the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and referred it to a larger Bench for consideration. The question as modified by Uniyal and Capoor, JJ. has already been reproduced above. 30. At the very outset it may be observed that all the questions involved or which can be said to be in issue pertaining to the scope and effect of Section 105 of the Evidence Act in criminal trials are concluded by the decisions of the Supreme Court, though in different circumstances-General Exceptions pleaded in those cases were under Sections 30 and 84, I. P.C., that is, accident and insanity. One case refers to the Exception to Section 499, I.P.C (Defamation). The other two cases relate to the statutory presumption under the Prevention of Corruption Act, 1947. The main point for consideration is whether the rule laid down in those Supreme Court decisions applies with equal force to all the General Exceptions and the special Exception or proviso contained in the Indian Penal Code. The case of Parbhoo and others AIR1941All402 related to the right of private defence (Section 96, I.P.C.,) and a similar plea was raised in defence in the instant case. We shall, therefore, confine ourselves chiefly to this General Exception though referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (See Sections 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence. As in England so in India, the prosecution must prove the quilt of the accused, i.e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of Section 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a prudent man. If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of prudent man the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the passage from 1964CriLJ472 , their Lordships of the Supreme Court observed as below:-- This passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to acquittal. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act. 37. In 1966CriLJ82 only one point was considered in detail namely, the nature and the extent of evidence which would discharge the onus of proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. 38. Thereafter, after quoting with approval the observations made by Duff, J., in R. v. Clark (1921) 61 SCR 608, which had been approved by Lord Hailsham in Sodeman v. R. 1936 2 AER 1138, and making a reference to the law laid down in R. v. Carr-Braint 1943 2 AER 156, it was observed as below:-- What the Court of Criminal Appeal held about the appellant in the said case before it, is substantially true about the appellant before us. If it can be shown that the appellant has led evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his case, he will be entitled to claim the benefit of Exception Nine. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that the burden of proof lying upon the accused under Section 4 (1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings, the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him. 41. In criminal trials where the accused puts forward a plea based on a General Exception, or a special Exception or proviso in the Indian Penal Code, three questions often arise; firstly on whom the burden of proof to establish the existence of the Exception or the proviso lies; secondly, the nature of evidence that shall justify the Court to hold that the Exception or proviso has been established; and thirdly, if the accused has not succeeded to rebut the presumption, how does his inabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reasonable doubt that the defence plea is looked into. However, where the case falls in the second category, the Court can acquit the accused if on consideration of the total material on record and the defence plea, there exists a reasonable doubt in its mind as to all or any of the ingredients of the offence charged. 44. In the first two reported cases it was also observed that the difference between the general presumption and the special presumption was more imaginary than real. In view of this observation it was contended by the learned Advocate for the appellants that when the result was the same, this Court should refuse to modify the dictum as such step may lead to utter confusion. It was also contended that a case under Section 80, I.P.C. alone was before the Supreme Court and hence the observations whereby Sections 77 78 79 81 and 88 of the Indian Penal Code were placed in the first category were 'obiter dicta' and not binding on this Court. Reliance was also placed upon Section 6, I.P.C. and Section 221 (5) Criminal Procedure Code in support of the contention that all the cases under the Indian Penal Code shall fall in one group, namely, the second grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to depart from its provisions on the ground of injustice or inequity. Its provisions must be given their full effect. It is now a settled law that the Evidence Act is a complete Code, not for assessment of evidence but for evidence which can be adduced in any suit or proceeding, the circumstances in which such evidence can be adduced and also on whom the burden of proof lies. This shall be evident from the preamble and also Section 5 thereof. Repeal of Section 2 of the Evidence Act shall make no difference as the repeal of a provision does not revive the provisions which had been repealed by the repealed provision. In other words, by the repeal of a provision there is no reenactment of the provisions which had earlier stood repealed. (See Maharaja Sris Chandra Nandy v. Rakhalananda, Collector of Gorakhpur v. Palakdhari Singh, (1890) ILR 12 All 1 (FB) and T.W. King v. Mrs. F.E. King AIR1945All190 . 47. To put it differently if the dictum under reference is contrary to the provisions of Section 105 of the Evidence Act, it must be suitably modified even though the practical effect thereof in all or most of the cases shall be the same. Further, the law laid down by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ingredients of the offence other than those connected with or co-related to the defence plea. If all such ingredients are established beyond doubt, the Court shall look into the defence plea to find out whether the presumption contemplated by Section 105 of the Evidence Act has been rebutted, that is, the absence of the circumstances benefit of which has been sought for has or has not been disproved. If the accused succeeds in rebutting the presumption, it is an end to the matter and he shall straight off be acquitted of the offence or convicted of a lesser offence on the ground that some of the ingredients of the main offence had not been established; but if the accused does not succeed in rebutting the presumption, that is, in disproving the absence of the circumstances, the Court shall consider the question from the point of view of general presumption of the innocence of the accused, whether the ingredients connected with or co-related to the defence plea have been established beyond doubt. Even though the accused may not be able to establish his plea, that is, to rebut the presumption under Section 105 of the Evidence Act, he may succeed in creating a reasonable doubt in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I shall naturally give an example which can be said to be beyond any controversy. Section 499, I.P.C. defines Defamation , while 'defamation' is punishable under Section 500, I.P.C. Section 500, I.P.C. lays down that:-- Whoever defames another shall be punished........ A person is said to defame another when by words either spoken or intended to be read, or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. This is subject to Exceptions detailed thereafter. The First Exception is that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. 53. The ingredients of Section 499, I.P.C. are the making or publishing of the imputation: intending to harm, or knowing or having reason to believe that such imputation shall harm, the reputation of such person. Where the accused pleads the benefit of the First Exception, what he suggests is that the allegation made is true and the imputation was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y intention knowledge, and not mere intention or knowledge. To make this point more clear it must be mentioned that it is a well established rule that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. Such observations made an Brend v. Wood (1946) 110 JP 317 were quoted with approval by their Lordships of the Privy Council in Srinivas Mall v. Emperor. Consequently, the ingredients of the offence under Section 300, I.P.C. are the doing of an act by which the death is caused, and the doing of the act with the intention, that is, criminal intention to cause death. Where the accused seeks the benefit of the General Exceptions contained in Sections 80 and 84, I.P.C., what he implies to mean is that he did not have the guilty intention at the time he caused the death. Consequently, at the initial stage the Court shall have to consider whether the prosecution has established beyond doubt that the death of the person was caused by or is the result of the act done by the accused. If so satisfied, the defence plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 105 of the Evidence Act. In other words, Section 6 can be of no help in considering the scope of Section 105 of the Evidence Act. 56. Similarly, Section 221 (5) of the Criminal Procedure Code provides that- The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. Illustration thereof is as below:-- (a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in Sections 299 and 300 of the Indian Penal Code; that it did not fall within any of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to Section 300, or that, if it did fall within Exception I, one or other of the three provisos to that exception apply to it. Section 221 (5). Cr. P.C. is a procedural clause and cannot affect the rights and liabilities of the parties, nor can it affect the burden of proof, that is, which party must establish a particular fact or matter in issue. Apparently, this provision was incorporated to make it clear that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this question had been raised at the Bar, it is necessary to make a few observations. 60. Our attention was drawn to the definition of preponderance of evidence as in vogue in America. In American Jurisprudence. 2nd Edition, Volume 30, the expression has been defined in Article 1164. In America the term means the weight, credit and value of the aggregate evidence on either side, and is usually considered to be synonymous with the term greater weight of the evidence , or greater weight of the credible evidence . It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of preponderance of evidence . 61. The phrase preponderance of probability appears to have been taken from Charles R. Cooper v. F.W. Slade (1857) 6 HLC 746. The observations made therein make it clear that what preponderance of probability means is more probable and rational view of the case , not necessarily as certain as the pleading should be. 62. On the basis of the definition of the words proved , disproved and not proved'', as contained in Section 3 of the Evidence Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequently, the provisions of this Act shall govern all the judicial proceedings in or before any Court. The Evidence Act applies equally to civil and criminal cases. It may, however, be mentioned that in the Evidence Act there are certain provisions applicable exclusively to civil proceedings and a few others to criminal trial only; but speaking broadly, it can be laid down that, the Evidence Act applies equally to both the civil and criminal proceedings. Further, there shall be no justification to depart from the express provisions contained in the Evidence Act. Such provisions shall govern the recording of evidence and also the question of the burden of proof. We cannot look into the English practice or the law prevalent in our country in the past on the ground of public policy or the interest of justice. To put it differently, the provisions of the Evidence Act must be strictly construed even though such a step may not conform with the ideas of the Court or may appear to be unjust or may cause hardship to the accused. (See Governor and Company of the Bank of England v. Vagliano Brothers 1891 AC 107 and Norendra Nath Sircar v. Kamalbasini Dasi (1895) 23 I.A. 18 . 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s view of the matter the accused can be deemed to have discharged the burden of proof only when he is in a position to disprove the absence of circumstances, that is, is able to discharge the onus in the manner the plaintiff or the defendant must in a civil proceeding. It would be a wrong proposition of law to say that in criminal trials where there exists a reasonable doubt in the mind of the Court, the Exception pleaded be deemed to have been proved. Section 105 of the Evidence Act makes no difference between the Exceptions or provisos contained in one enactment or the other. In the circumstances, the rule applicable to the General Exceptions under Sections 80 and 84, I.P.C. shall apply with equal force to the other General Exceptions contained in the Indian Penal Code or the special exceptions or proviso contained in this Code or in other enactments. 66. Two other points raised on behalf of the appellants may now be considered. It was argued that the term may presume shall have the same meaning as shall presume in case the Court decides to presume the existence of a fact. The suggestion thus made is that it is discretionary with the Court to presume or not to presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumed to be innocent and the prosecution must establish its case beyond reasonable doubt is a departure from the ordinary meaning of the term proved as contained in Section 3 of the Evidence Act. It is, however, a rule of caution and prudence laid down by the Courts of law how a prudent man must, in a criminal case, assess the evidence adduced by the prosecution. In the words used in Section 3 of the Evidence Act, the prosecution case is not deemed to have been 'proved', that is, is deemed to be 'not proved, even though in a civil proceeding the fact could, on the basis of such evidence, be deemed to have been 'proved'; and the effect of the above maxim is to regard a fact not proved , though in civil proceeding it could be deemed to be proved . The same cannot, however, be laid down for a provision where one has to consider whether the absence of circumstances had been disproved, or the existence of the circumstances had been proved. On the application of a rigorous rule, the Court can hold that the existence of circumstances had not been proved, or the absence of circumstances had not been disproved; but to say that the existence of circumstances shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge or intention. 69. The plea contemplated by Section 80 and Section 84, I. P. C. directly affects one of the ingredients of the offence, namely, the mens rea. The same can be said of the plea contemplated by Section 96, I. P. C. 70. Section 96, I. P. C. provides:-- Nothing is an offence which is done in the exercise of the right of private defence . The subsequent sections detail such right. Section 97 provides that every person has a right, subject to the restrictions contained in Section 99, to defend not only his person and property but also the person or property of others. 71. When an accused person acts in the exercise of the right of private defence, what is meant is that even though armed he had no prior intention to commit an offence and whatever he did was in the exercise of the rights given to him under the law. His act would thus not be illegal and, in the eye of law, the act cannot be deemed to have been done with a criminal or guilty intention or knowledge which is invariably the most important ingredient of a criminal offence. 72. At the very start of the argument the learned Advocate for the appellants had cited three illustra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omments on the first illustration shall apply with equal force to these illustrations also. In other words, the accused person shall not be convicted simply because the dictum under reference shall not be followed and instead the law as laid down by the Supreme Court shall be made applicable. * * * 74. Reference may now be made to the English decisions and the decisions of the High Courts in India to which our attention has been drawn. Woolmington v. The Director of Public Prosecutions 1935 AC 462 has been the foundation of decisions not only by the Courts in England but also in India. This case and also 1943 2 AER 156 were considered by the Supreme Court in some of the decisions referred to above. The rule of law laid down in 1935 AC 462 (supra) has been reproduced in Halsbury's Laws of England. In the circumstances, it is not necessary to make further comments on these three cases. 75. The rule enunciated by Viscount Sankey L. C. in 1935 AC 462 (supra) was relied upon in Mancini v. Director of Public Prosecutions 1942 AC 1. The King v. Kakelo 1923 2 KB 793 is a case where onus lay on the accused to prove that he was not an alien, and not upon the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the prosecution of the burden laid on it by Section 102. The burden of proof, so far as the entire proceeding is concerned, remains on the prosecution, even though the burden of the fact in issue pleaded by the accused is cast upon him by Section 105. ... ... ... There is, however, nothing in the Evidence Act to indicate that the failure of the accused to discharge the burden lightens the burden placed on the prosecution by Section 102. ... ... ... ... ... ... and the onus never changes . It is, therefore, manifest that even in cases to which Section 105 applies the prosecution has to prove the guilt of the accused. Should it in the consideration of the question whether A is guilty of murder, put aside the evidence produced by A, so to say, in a watertight compartment and exclude that evidence entirely from consideration? or should it take that evidence, for what it is worth into consideration along with the other evidence in the case and then make up its mind as to the guilt or innocence of A? I cannot but hold that it is only the latter alternative which is open to the Court and this is what follows from the definition of proved in the Act. It is one thing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judgment of Collister, J. all the more, when read with that of Braund, J., makes it clear that the minority Judges were of opinion that once the defence story of self-defence was rejected, that is, plea of the exception was not accepted, the 'Court cannot, looking at the evidence as a whole, including the evidence of self-defence, give to the accused the benefit of any reasonable doubt as to the guilt on the ground that the accused had acted in self-defence. 79. The Supreme Court has clearly laid down that even after the rejection of 'the defence plea the general onus remains on the prosecution and if there exists any reasonable doubt as to the guilt, its benefit shall go to the accused and he shall be entitled to acquittal even though he had failed to discharge the burden of proof placed upon him under Section 105. It shall thus appear that the majority judgment in Parbhoo's case expresses the law correctly, though the reply to the question referred to the Full Bench was not expressed 'in correct legal words. 80. To avoid unnecessary repetition later it may be added that the minority judgment in Parbhoo's case stands overruled by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the definition of proof as contained in Section 3 of the Evidence Act, the proof expected from both the prosecution and the accused is the same which would be, what a prudent man considers sufficient in the circumstances of the case; but in view of the presumption of the innocence of the accused, it is necessary for the prosecution to establish its case beyond reasonable doubt, while the accused has to establish his case in the manner a plaintiff or defendant has to make out his case in a civil proceeding. Further, there are not always two question involved, the proof of the case for the prosecution and the proof of the exception put forward by the defence. They are also not two separate questions to be decided separately , the second question arising after the first has been decided. This rule can be applied to only those cases which fall in the first category, and not those which fall in the second category detailed above. The Bombay case is more or less on the lines of the minority judgment in Parbhoo's case AIR1941All402 and cannot be said to correctly express the law. 82. The above Full Bench case was followed by the same High Court in Har Prasad G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the defence may rely to bring his case under any of the exceptions, etc., the burden of the accused is discharged. It is equally discharged when on a consideration of the whole of the evidence the Court is left in doubt as to whether the killing may have been under the circumstances disclosed in the evidence on record. 88. Parbhoo's case was followed in Kamla Singh v. The State AIR1955Pat209 and it was observed that the onus under Section 105 was discharged or could be taken as discharged once the Court is brought to a point where it becomes doubtful of the fact or when it cannot positively hold that the prisoner was then not of unsound mind and that he was capable of knowing the nature of the act alleged against him. For reason already indicated above, this is not a correct approach, though the accused, can be given the benefit of reasonable doubt as to his guilt. In other words, the Court can hold that the prosecution has not succeeded to establish its case beyond reasonable doubt. 89. In Etwa Oraon v. The State AIR1961Pat355 the earlier case of AIR1955Pat209 was not dissented from. It was observed that:-- The burden is discharged if the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e its general burden of proof, that is, to establish the case beyond any reasonable doubt. 3. In cases falling under the third category inability to discharge the burden of proof shall not, in each and every case, automatically result in the conviction of the accused. The Court shall still have to see how the facts proved affect the proof of the ingredients of the offence. In other words, if on consideration of the total evidence on record a reasonable doubt exists in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused, he shall be entitled to its benefit and hence to acquittal of the main offence even though he had not been in a position to prove the circumstances to bring his case within the exception. This shall be on the ground that the general burden of proof resting on the prosecution was not discharged. 4. The burden of proof on the prosecution to establish its case rests from the beginning to the end of the trial and it must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. 5. The burden placed on the accused is not so onerous as on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indian Evidence Act (hereinafter referred to as the Act also). I have endeavoured to show, in the course of this opinion, that Section 105 of the Act does not depart from the principles of English law of Evidence on the plea of private defence and that the majority view in Parbhoo's case AIR1941All402 were meant to answer questions which only arise in a case of reasonable doubt on the ingredients of an offence even where the exception pleaded is not established or completely proved. These questions did not arise in AIR 1968 SC 702 and in other cases of the Supreme Court which lay down that an exception pleaded can be completely proved only by a preponderance of probability. Application of different principles due to differing degrees of proof given by each side in different types of cases on facts 'does not involve a conflict of principles applied which have been taken from English law. For this reason and others, explained below in detail, I respectfully differ from the opinion expressed by my learned brethren who have referred this case to a Full Bench on the ground that decisions of the Supreme Court have cast a cloud of doubt on the correctness of the majority v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing doubts that his plea may be true. It was contended that the two burdens, one of the prosecution to prove its case beyond reasonable doubt, and the other of the accused, to prove his plea by a preponderance of probabilities had to be kept distinct and apart. It was urged that evidence tendered to discharge each burden had to be viewed separately and not confused. The majority view, in Parbhoo's case AIR1941All402 (supra) had, according to the Advocate General, wrongly treated the accused's burden as a minor one of bringing his case within an exception and had then held it to be capable of discharge by mere doubts instead of by credible or acceptable evidence. All proof, according to the Advocate General, has to rest on preponderance of probabilities' so as to appeal to reason and prudence, but the test adopted by the majority, for judging the accused's plea, was imprudent and unreasonable, and, therefore, illegal. Such a test, it was submitted, was inconsistent with the test of what was proved propounded by the Supreme Court in several recent cases, 1960CriLJ131 ; 1966CriLJ63 ; 1966CriLJ82 ; [1966]3SCR736 ,; AIR 1968 SC 702. The Advocate General went so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, based no doubt on probabilities, obliges the prudent man to equate reasonable doubt that the accused's case may be covered by an exception with proof of the exception in a criminal case. Such an elastic and variable concept of prudence and proof, which differs in its application from case to case, was implicit, according to learned counsel, in Section 3 of the Act itself. In criminal cases, involving deprivations of life and liberty, much depended on oral testimony which may be defective or perjured. Therefore, in order to avoid the lurking risks of grave injustice, it was necessary, according to learned counsel, not to unduly limit the scope of the principle of benefit of doubt. Learned counsel went to the extent of asking us to countenance even a fiction, if need be, so as to meet or to repeal the obligatory presumption under Section 105 and thus to remove what the learned counsel tried to depict as a possible impediment in the way of justice, equity, and prudence. The learned counsel invited us to consider the consequences in cases where evidence was so equibalanced, on a disputed question of possession of property or on the question whether one or the other party was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en stood under previous statutes, in order properly to interpret the statute in question. 99. In Shivanarayan Kabra v. State of Madras, 1967CriLJ946 also the Supreme Court referred to these rules. It held that, in construing the section of an Act and determining its true scope, it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the Statute for curing the mischief. 100. The concepts of 'proved', 'disproved', and 'not proved,' defined in alluringly simple terms in the Act, compress a great deal of judicial wisdom with history and processes of evolution and development behind them which have not yet ended. The term 'Burden of proof is not defined in the Act and cannot be fully understood without an exposition of its place and meaning in our procedural law as a whole. Nor an adequate understanding of the import of these 'basic concepts, even when they are Incorporated in a comprehensive code, we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is in the second sense that the term is more generally used, and must be applied in the following pages; and while the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly according as one scale of evidence or the other preponderates. 103. Whenever the law places a burden, of proof upon a party a presumption operates against it. Hence, burdens of proof and presumptions have to be considered together. It has been said that a rebuttable presumption always covers a gap in evidence, but the gap, and together' with it, the presumption will disappear as soon as there is credible evidence to fill the gap. The extent of the gap, in the eye of law, will vary with the nature of the presumption. The burden of establishing a plea connotes a bigger gap requiring more acceptable evidence to fill it than the burden of removing a presumption that no circumstances whatsoever exist to support the plea. As has been often pointed out, when there is ample evidence from both sides, the fate of the case is no longer determined by presumptions or burden of proof but by a careful selection of the correct version, based no dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own with any artificial additional probative effect; they may estimate it for just such intrinsic effect as it seems to have under all the circumstances. This much is a plain consequence in our mode of jury trial; and the fallacy has arisen through attempting to follow the ancient continental phraseology, which grew up under the quantitative system of evidence, fixing artificial rules for the judge's measurement of proof. 105. It is true that the rules of evidence indicated above were evolved in the course of development of a mode of trial in which the judge gave guidance on questions of law and the jury pronounced its verdicts on questions of fact. Nevertheless, when these very guiding principles were sought to be reduced to the form of a code, the basic principles could not be deemed to be abandoned or departed from without clear words to the contrary. In fact, it is not possible to appreciate the true meaning of a number of 'provisions of the Act, including Section 105, without exploring the law contained in the sources of the codification. If, however, the above mentioned expositions are kept in view, it becomes quite easy to interpret Section 105 of the Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a case, the prosecution could not use the presumption contained in the last part of Section 105 to secure a conviction. No doubt, the prosecution will fail, in such a case, because it has failed to prove its own case beyond reasonable doubt. But, the doubt it has failed to eliminate would have been introduced by proved facts relied upon by the accused to establish the plea of an exception. The facts relied upon for proving an exception could not be automatically equated with facts disproved or disentitle the accused from getting the benefit of an exception simply because he could not fully prove, by a 'preponderance of evidence, the exception pleaded. A plea taken but left in the region of not proved by the evidence on record may be enough, on a criminal charge, for a bare acquittal provided the doubt introduced by some proved facts and circumstances, displacing the initial obligatory presumption, is strong enough to reasonably shake the moral conviction of guilt of the accused on the charge levelled against him. This seems to me to be the line of reasoning underlying the majority view in Parbhoo's case. It seems to be both practical and just. It accords with very fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an individual opinion by Mulla, J. implied that all parties, other than prosecutors, were required to satisfy the test of preponderance of probability for proving their pleas or cases. To hold that the special burden of the prosecution to prove its case beyond reasonable doubt is higher than the burden which lies upon a party in a civil proceeding or upon an accused under Section 105 of the Act does not mean that the accused could establish his own plea completely by anything less than a preponderance of probabilities. Whenever the Supreme Court had held that the burden of the accused under Section 105 was discharged on a balancing of probabilties, it had referred to a full discharge of the burden; but, that was not the type of case under consideration in Parbhoo's case. 109. Again, to hold that, even if the accused failed to prove the plea fully, it was possible that he may yet succeed in shaking the foundations of the prosecution case and obtain an acquittal on a reasonable doubt is not to lessen the burden of what may be called a clean acquittal. There is a difference between a complete exoneration, which is only possible when an accused turns the balance of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable doubt which reacts on the whole case. He made it clear that the doubt he had in mind was one which pervades the whole case. In fact, the learned Judge indicated that it would be wrong to assume that the doubt before the Court did not affect the ingredients of the offence with which the accused has been charged (the words used by him are italicized here ). In other words, the nature of the doubt contemplated or assumed to exist for the purposes of answering the question before their Lord ships in that case was one which affected the ingredients of the offence. 111. In fact, Parbhoo's case AIR1941All402 was not concerned with the quantum of credible evidence in support of the plea of the accused which could infect , if I may use that word, the whole prosecution case and stamp it with doubt, even though it falls short of fully establishing the plea of private defence. The question framed in Prabhoo's case proceeded on the assumption that the evidence given by the accused was credible with regard to some of the circumstances proved in support of the plea of private defence and threw a reasonable doubt on an ingredient of an offence even if it did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any case of a real misunderstanding of the law by a trial Court occurs, it can be brought to the notice of this Court by appropriate proceedings taken by the State or by the complainant. 114. Perhaps the most Important aspect of Parbhoo's case AIR1941All402 which learned counsel for both sides seem to have assumed that we will see for ourselves, was stated by Iqbal Ahmad, C. J., at the outset when it was indicated that the real question before the Court in that case was whether the evidence produced by the accused persons, even though falling short of proving affirmatively the existence of the circumstances bringing the case within the exception pleaded by him, can be utilized as part of the entire evidence in the case for the purpose of showing that a reasonable doubt exists as to his guilt. The learned Chief Justice thus stated the prosecution's submission on this question. The argument is that, unless the accused succeeds in proving that his case comes within the exception or proviso pleaded by him, the evidence led by him must be totally discarded and the Court must proceed on the definite supposition that there was an entire absence of the 'exception& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stain, the plea of an exception upon the accused. There seemed, therefore, no particular reason for Section 105 in the Act unless the reasoning which appealed to the learned Chief Justice, that it effectively meets an argument based on Section 6, I. P. C., was present in the minds of the framers of Section 105 also. 116. Section 105 of the Act specifically refers to the provisions of the Indian Penal Code which were before the draftsman It must be presumed that the Legislature was fully aware of Section 6, I. P. C. Therefore, Section 105 of the Act seemed necessary in order to meet a possible construction which was not intended. In other words. Section 105 serves) the purpose sometimes served by a proviso (See: Maxwell's interpretation of Statutes 11th Edn., page 156). Of course, it could be looked upon as analogous to a proviso only if we view Section 6, I. P. C and Section 105 of the Act together. It is certainly difficult to see the purpose of Section 105 of the Act unless it is viewed in the context of Section 6, I. P. C. 117. The argument that some negative burden may rest upon the prosecution seems to have been accepted by the Advocate General by impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... James Fitzjames Stephen in drafting provisions of Sections 123 and 162 of the Act, observed that the learned counsel fairly conceded that recourse to extrinsic aid in interpreting the statutory provisions would be justified within well recognised limits; and that primarily the effect of statutory provisions must be judged on a fair and reasonable construction of the words used by the statute itself. The majority did not, however, expressly dissent from a somewhat different proposition stated by Subba Rao, J., when his Lordship said: The dictionary meanings do not help to decide the content of the said words. The content of the said words, therefore, can be gathered only from the history of the provisions. It has been acknowledged generally, with some exceptions, that the Indian Evidence Act was intended to and did in fact consolidate the English law of Evidence. It has been often stated with justification that Sir James Stephen has attempted to crystallise the principles contained in Taylor's work into substantive propositions. In case of doubt or ambiguity over the interpretation of any of the sections of the Evidence Act we can with profit look to the relevant English Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamentally wrong . 121. The English law on burdens of establishing cases in criminal trials is thus stated in Phipson's Evidence (10th Edn., paragraph 101, page 49): Generally in criminal cases (unless otherwise directed by statute) the presumption of innocence casts on the prosecutor the burden of proving every ingredient of an offence, even though negative averments be involved therein. Thus, in cases of murder the burden of proving death as a result of the voluntary act of the accused and malice on his part is on the prosecution ............ ...............And the prosecution is bound to negative any exception favourable to the defendant which is engrafted in the statutory description of the offence though not one contained in a separate clause . (Vide: Roberts v. Humphreys (1873) 8 QB 483; R. v. James (1902) 1 KB 540; R. V, Audley (1907) 1 KB 383. 122. If this was the state of law In England, round about 1872, as it appears from (1873) 8 QB 483 (supra), decided in 1873, it will be evident why Section 105 of our Evidence Act, passed in 1872, became necessary. Although, the exceptions contained in the Indian Penal Code, to which Section 105 of the Act ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden of the issue is on the prosecution, the case must, as we have seen, be proved beyond a reasonable doubt; though a prima facie case made by the prosecution and not rebutted by the accused may often amount to this, and suffice for conviction. When, however, the burden of an issue is upon, the accused, he is not in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; It is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution, which has still to discharge its original onus that never shifts, i.e., that of establishing on the whole case, guilt beyond a reasonable doubt . The cases relied upon for this statement of English law were: (1942) AC 1 : (1935) AC 462; R. v. Stoodart (1909) 25 TLR 612; R. v. Schama (1914) 84 LJKB 396 : (1943) KB 607; R. v. Cohen (1951) 1 KB 506; R. v. Dunbar. (1958) 1 QB 1. 126. The cases cited above in Phipson's Evidence to support the statement of the English law on the subject, include those which deal principally with the discharge of his full burden by an accused (e.g. 1943 1 KB 607 and 1958 1 QB 1 establishing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In my opinion, neither should preponderance of probability be confounded with and reduced to the level of a reasonable doubt only, nor can the principle of reasonable doubt be eliminated altogether in a criminal trial. Each of the two kinds of conclusion--proof of an exception by a preponderance of probability and reasonable doubt about guilt--reflects a different situation. As soon as a Court finds one of these two types of conclusion to be the correct one to reach in a case the other is necessarily excluded. 128. 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 statisfying 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate General, the only test of proof when an accused pleads an exception. The use of this expression by the Supreme Court, in circumstances indicated below, could be said to be the main reason for this reference to a Full Bench. This expression has also given rise to some differences of opinion between learned judges of this Court. Therefore, it seems to me to be very necessary to explain its meaning. 130. Preponderance , literally interpreted, means nothing more than an outweighing in the process of balancing however slight may be the tilt of the balance or the preponderance. I do not find sufficient grounds for holding that the word has been used in any other sense whenever it has been used either by our Supreme Court or by English Courts or by commentators such as Phipson or Sir John Woodroffe. It covers every tilt or preponderance of the balance of probability whether slight or overwhelming. In fact, the dividing line between a case of mere preponderance of probability by a slight tilt only of the balance of probability and a case of reasonable doubt is very thin indeed although it is there. A case of reasonable doubt must necessarily be one in which, on a balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gland under statutory provisions meant for clarifying the position. In Woolmington's case, however, the effect of Common Law rules of ordinary presumptions against the accused, arising from proof of commission of conscious acts, on the principle of Benefit of Doubt was explained. This was done in the context of the requirement to prove mens rea, still conventionally spoken of as malice aforethought , as an ingredient of the offence of murder in England and of a charge to the jury which could be vitiated by a misplaced emphasis. Nevertheless, the principles stated and explained there were general and basic. 132. Section 105 of the Act Is really a part of a general statement of principles derived from English Common Law rules such as those considered in Woolmington's case. It does not contain a statutory exception to any general principle. It lays down general rules for cases in which accused plead exceptions. It merely codifies, in careful and concise language, certain general rules of presumptions and burdens of proof for such cases, just as Sir Michael Foster attempted to state them in a somewhat different language. The view taken by Lord Sankey about such statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must prove all the ingredients of the offence with which the accused is charged do not help us in interpreting Section 105 of the Act. For example, in 1960CriLJ131 the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act (1947) from proof of certain facts, unless the contrary is proved , was considered. It was held there that the exception laid down by statute was a complete departure from the established principle of criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt. [1966]3SCR736 is also a case of a presumption under Section 4 of Prevention of Corruption Act where the accused was obliged, after proof by the prosecution of facts sufficient to raise the presumption, to disprove his guilt by leading evidence which could, by a preponderance of probabilities, establish the defence case. These are cases of presumptions of guilt or of true statutory exceptions to the principle of a full burden of proof upon the prosecution. 135. In 1966CriLJ63 it was held that, even in a case where insanity is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in holding here that as soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus , evidently took the view, also expressed by the majority in Parbhoo's case AIR1941All402 that Section 105 deals with the shifting burden and Section 101 with the stable burden, This was not a case of an equipoised balance of probabilities. Nor was it a case, where the prosecution version, although not improbable, was yet faced with a genuine or serious doubt. In this case, the Supreme Court did not really have the problem before it which was before this Court in Parbhoo's case AIR1941All402 . I, therefore, find no conflict whatsoever between what was held here by the Supreme Court and the majority view in Parbhoo's case AIR1941All402 . On the other hand, in my estimation, the views expressed by the Supreme Court in this case give considerable support, either directly or Indirectly, to the majority view in Parbhoo's case AIR1941All402 . 137. AIR 1968 SC 702 was another case in which the Supreme Court held that a party which had pleaded an exception (this was a case of private defence) must succee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crux of the problem of construction of Section 105 before this Court in Parbhoo's case lay in determining the true scope of the last few words of Section 105: The Court shall presume the absence of such circumstances . That problem is again before us. The decisions of the Supreme Court, particularly those in Nanavati's case (supra) and in Dahyabhai's case (supra), go a long way in enabling us to resolve the difficulty in the same way as the majority solved it in Parbhoo's case. I say so because the Supreme Court has held that, Section 105 does not limit or conflict with Section 101; that the accused would get the benefit of doubt even if he fails to prove his plea by a preponderance of probability but succeeds in casting a doubt on the prosecution version relating to an ingredient of an offence; that, the hands of the Court are not tied so that it is not legally bound to convict, even if the accused fails to discharge his burden fully but succeeds in raising a reasonable doubt (See: Dahyabhai's case 1964CriLJ472 about his intent in committing the alleged offence; that, the general law on the question of the fixed or primary burden of the prosecution, which la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... types of cases, the accused is required to bring his case within the exception pleaded by him. The question arises whether, in these cases, the accused becomes entitled to acquittal when he proves facts or circumstances raising genuine doubts, or providing reasons to believe that the exception may exist even though not fully proved. The Supreme Court was not considering the right of private defence specifically here and did not put it in the second category of cases. But, dealing with the plea of an accident in the doing of a lawful act in a lawful manner, covered by the exception found in Section 80, I. P. C., it held that the accused could, by proving only some of the facts necessary to establish the exception to the offence of culpable homicide, negative the offence or throw a reasonable doubt about the intention or the requisite state of mind which is the essence of the offence . In other words, whenever the facts proved throw the prosecution case into a state of doubt on intention or the requisite of state of mind the ingredients of the offence are affected. 143. Every offence against which a plea of private defence can be taken requires a state of mind or mens rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that unless the statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind . In other words, it is presumed to exist within or may be impliedly annexed to even a statutory definition of an offence unless the definition is in terms which necessarily exclude it. 145. A guilty mind, standing by itself, is not punishable under the law although, as Dr. Johnson's judgment on the actor Garrick, who said that he felt like a murderer when acting Richard III--that he should be hanged each time he acted Richard III--implied, it may be morally reprehensible. Mens rea as a state of mind becomes a part of a legally punishable offence only when it produces harmful results. It is manifested by intent, actual or presumed, gathered from acts or omissions which flow from it. It includes more than an immediate intent to injure. It partly embraces what falls under motive. As Paton points out ( Text book of Jurisprudence 3rd Ed. p. 275), the distinction between intention and motive Is not always so precise as may annear at first sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gredients of the offence. Mens rea cannot simultaneously be present and absent. Initially, the prosecution can rely on proof of the actual coupled with the obligatory presumption at the end of Section 105. But, an incompletely established plea will remove the initial presumption and can--not must--cast a reasonable doubt on the existence of mens rea which the prosecution must dispel to succeed. In most cases of alleged exercise of a right of private defence it is not difficult to arrive at a definite finding whether the right existed or not. In a genuine case of an exercise of the right of private defence, the primary intention is to protect from injury and the intent to injure the aggressor is as much secondary and consequential as the injuries themselves. Presence or absence of mens rea will be determined in such cases by the real or ulterior or primary intent. If that intent is to protect and defend, the consequential intention to injure will not make the act criminal. We cannot confine our attention to the immediate or consequential intent and forget the real intent for determining mens rea. 148. There seems to me to be no need to distinguish between the wrongful-ness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Similarly, there may be exceptional cases where, although no right to possess property may be involved, it may not be reasonably possible to decide which side had the primary aggressive intent and which side had the right and primary intent to defend. I, therefore, hold that cases in which the plea of private defence is taken would fall in the third category of cases classified by the Supreme Court in Nanavati's case (Supra) so that the plea, even if not fully proved may, when supported by sufficient evidence, make the prosecution case doubtful on an essential ingredient of the offence. 150. The views expressed by the Supreme Court and the propositions stated by the majority of judges of this Court in Parbhoo's case AIR1941All402 will not even appear to be inconsistent in any way if the factual context and assumptions on which each view rests are kept in mind. It has been rightly pointed out by Dr. A.L. Goodhart, in a very elaborate essay on Determining the Ratio Decidendi of a case (See: Jurisprudence in Action , 1953, Essays published by the Association of the Bar of New York), that the principle of a case is determined by taking into account the facts tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence charged has not been proved. On the other hand, the accused may be convicted even if the obligatory presumption under the last part of Section 105 of the Act is removed. The learned counsel for the accused also erroneously assumed, in putting forward this argument, that the accused must be deemed to have discharged his onus of proving an exception as soon as the initial obligatory presumption at the end of Section 105 is lifted. However, the conditional, optional presumption under Section 114 can be used to illustrate how various presumptions differ in function and application. 152. The common factor which operates in using a presumption, whether optional or obligatory. is the prudence and reasonableness which the Court is expected to employ. This is not defined by any provision dealing with a burden of proof or a presumption although the illustrations given in Section 114 indicate what it requires. It is only broadly defined by Section 3 of the Act. It covers a proof by preponderance of probability, where this is enough, and, in a criminal trial, also the higher degree of proof, by eliminating reasonable doubt, which the prosecution must provide. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this doubt, possibly in the course of argument to succeed after this. In other cases, the accused may have carried his case still further and established his plea by a preponderance of probabilities. Although, there is no provision in our Criminal Procedure Code for production of evidence in rebuttal by the prosecution, as of right, after the accused has established an exception by a preponderance of probability, yet, it is conceivable that, in exceptional cases, the prosecution may be able to demolish the defence case, even after it is fully proved, by some rebutting evidence which the Court is persuaded to admit under Section 540, Criminal P. C. in exercise of the Court's power to decide the case justly after finding out the whole truth. For example, the prosecution may be able to prove that a doctor, who had given evidence of the injuries on the accused, had undoubtedly fabricated evidence. Ultimately, these stages become parts of a single psychological process of appraisement of evidence as a whole which the judge goes through in his mind when considering, sifting, weighing, comparing, and testing the prosecution and defence versions and evidence, placed side by side, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same grounds or to the same extent in this country. The learned counsel for the accused answered this argument by pointing out that, irrespective of the ground on which this principle should be accepted, it must have the same force in India as in England after the final pronouncement of the Supreme Court on this matter. I may observe that Sode-man's case 1936 2 AER 1138 (Supra), citing observations of Duff, J., has been mentioned with approval by their Lordships of the Supreme Court in Harbhajan Singh's case 1966CriLJ82 . Speaking for myself, I do not see why principles of public policy or consideration of consequences of taking a particular view should not affect the interpretation to be given to statutory provisions dealing with basic norms when two interpretations of a statutory provision are open. Acting in this manner would not be legislation but an operation within the interstices of the Statute . I do not see why the principle of benefit of doubt deserves, either on grounds of public policy, or as a part of the concept of fair trial in a criminal case, to be given less recognition or force in this country. Methods of investigation of crime available to the prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private defence. 160. After a close scrutiny of every part of each of the seven opinions in Parbhoo's case AIR1941All402 I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court, have not been affected in the slightest degree by these decisions. These propositions are: firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved his plea fully; secondly, that the obligatory presumption at the end of Section 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and, thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the; accused is charged, the accused would be entitled to an acquittal. As I read the answer of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any general exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully established his plea, he will still be entitled to an acquittal, provided that, after weighing the evidence as a whole prudently (including the evidence given in support of the plea of the said general exception), the Court reaches the conclusion that, as a consequence of the doubt arising about the existence of the exception, the prosecution has failed to discharge its onus of proving the guilt of the accused beyond reasonable doubt T.P. Mukerjee, J. 163. I am in respectful agreement with the views expressed by my Lord the Chief Justice that the statement of law in Parbhoo's case AIR1941All402 is not accurate. I would like to add a short few words 164. The answer to the question referred to this Full Bench should follow from a correct interpretation of Section 105, Section 4 and Section 3 of the Indian Evidence Act. The terms of these sections have been quoted in the judgment of my Lord the Chief Justice and I do not reproduce them here to avoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused of proving an exception is lighter than the burden which lies on the prosecution of establishing the guilt of the accused. In 1966CriLJ82 the Supreme Court observed: Where an accused person is called to prove that his case falls under an exception, law treats that onus as discharged if the accused succeeds in proving a preponderance of probability. The onus on an accused person may well be compared to the onus on a party in civil proceedings ................. In a criminal proceeding the prosecution has to prove the guilt of an accused person beyond reasonable doubt but in a civil proceeding a party succeeds on the balance of probabilities. The distinction in the standard of proof in the two classes of cases cannot, I think, be better expressed than by quoting from the judgment of Denning, J., in Miller v. Minister of Pensions (1947) 2 AER 372. (Not cited at the bar). Speaking of the degree of proof required in a criminal case before an accused person is found guilty, Denning, J.. stated:-- That degree is well settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view taken by Broome, Gupta, Beg and Parekh, JJ. that the dictum laid down by the majority of Judges in Parbhoo's case AIR1941All402 is fundamentally correct and calls for a mere elucidation. In our opinion, there is no conflict between the decisions of the Supreme Court and Parbhoo's case AIR1941All402 and we agree that the question referred to this Full Bench should be answered in the affirmative. 170. We now proceed to give our own reasons for coming to this conclusion. The question that has been engaging the attention of this Full Bench loses much of its complexity, if it be clearly borne in mind that the task before a Court administering criminal justice is to determine whether a crime has been committed and, if so, whether the responsibility for it can be fastened on the accused. Before the Court proceeds to consider the responsibility or otherwise of the accused, it has to determine as to whether a crime has been committed at all. The burden of proving beyond reasonable doubt that a crime has been committed and that the accused is responsible for it rests upon the prosecution. 171. Crime may be described as an act or omission prohibited by law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three species of mens rea in Section 299 of the Indian Penal Code: (1) An intention to cause death; (2) an intention to cause bodily injury likely to cause death; (3) knowledge that death is likely to be caused. When an accused has killed another to protect his own life, he did have the intention to kill. In fact in most cases it is not denied by him that he had the requisite intention or knowledge. He merely claims that he was motivated by the desire to save his own life. To equate motive with mens rea would result in a confusion of legal concepts. Mens rea has been defined by Glanville Williams in his Criminal Law, The General Part Second Edition as follows: What, then, does the legal mens rea means. It refers to the mental element necessary for particular crime and this mental element may be either intention to do the immediate act or bring about the consequence or (in some crime) recklessness as to such act or consequence . In this sense of the expression, when a person commits homicide in exercise of the right of private defence either of property or of person, the element of mens rea contemplated by Section 299 of the Indian Penal Code is undoubtedly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise legal kind; it is a homicide and we do not vet know for certain if the law has forbidden that particular killing. If however there is for example evidence that the killing was the execution of ^a condemned prisoner by the legally appointed executioner, then it is an actual which the law, far from forbidding has indeed commanded, and therefore, it is not an actual reus; and it is described as a justifiable homicide , a homicide in accordance with, and not against, the law. Again if the death had been caused by a surgeon in the course of an operation which was recognised by him and by the medical profession in general to be dangerous (in the sense that it was medically advisable to risk the known chance that even when conducted with the best of skill and care it might cause the patient's death), this will be a risk which the law does not forbid to be taken but permits to be taken, and the killing will not be an actual reus............... However harmful or painful an event may be it is not an actual reus unless the law in the particular circumstances of the case has forbidden it to be brought about. The duly appointed executioner who has put to death a convicted criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our view, the claim to an Exception under Section 96 of the Indian Penal Code does not fall in the third category of cases, because if there is a reasonable doubt regarding the correctness or otherwise of the claim of the accused, none of the ingredients of the offence defined in Section 299 of the Indian Penal Code is affected. 175. To us it appears that Section 96 is more akin to Sections 77, 78, 79, 81 and 88 of the Indian Penal Code and falls in the second category of cases contemplated by the Supreme Court. Though the Supreme Court has held that as far as the second category of cases is concerned, the burden of bringing his case under the Exception lies on the accused, it has not proceeded to consider as to what would be the result if there is a reasonable doubt regarding the claim of the accused. The observation of the Supreme Court that the alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real applies, in our judgment, with equal force to the second category of cases; and if a doubt is created in the mind of the Court that the defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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