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TMI Blog1968 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... oo'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 need not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 cannot reasonably be true, and so the benefit of doubt must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound 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 exceptions in description of offences. Strictly speaking, an exception cannot be treated as an ingredient of an offence. Further, Section 105 of the Evidence Act expressly lays down th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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 will not entitle the accused to an acquittal. William Broome, Bhagwan Das Gupta & Chaturbhuj Das Parekh, JJ. 22. We are in general agreement with the conclusions arrived at by Mathur, J. in this case (except t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rievous 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 beyond reasonable doubt an essential part of its case. 25. This, in our opinion, is precisely what the decision in AIR1941All402 was meant to convey. The judgments of all the four Judges supporting the majority view in that case lay stress o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question that has been referred to the present Full Bench for decision, therefore, is in the affirmative. Gyan Chand Mathur, J. 28. The question referred to this Full Bench is as below:-- "Whether the dictum of this Court in the case of AIR1941All402 to the effect that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 reference shall be made to other Exceptions, if necessary. An attempt shall be made to lay down the law which can be applied to all the cases in which the benefit of the General Exception or special Exception or proviso is claimed. 31. Where there exist clear decisions of the Supreme Court, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Sections 77 78 79 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 provision similar to Section 80 of the Indian Penal Code, but Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rules of burden of proof. Such an exception we find in Section 105 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity." "The doctrine of burden of proof in the context of the plea of insanity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 placed on an accused person claiming the benefit of an Exception. Observations on the other point are in consonance with the earlier decision. The relevant observations made on the point are as below:-- "There is consensus of judicial opinion in favour of the view that where the burden of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 probability is established by the evidence led by him." 39. Similar observations, though in brief, were made in AIR 1968 SC 702, which are as below:-- "The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt. 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 inability affect the result of the case, that is how is the conflict between the general presumption and the special presumption to be resolved? The rule on the first and third points has been laid down in detail in AIR1962SC605 (supra), and this rule was applied to a case of alleged insanity in 1964CriLJ472 (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 group detailed above. In this connection it was mentioned that when each and every case of the General Exception or the special Exception or proviso contained in the Indian Penal Code shall fall in the same group, this Court should, in the circumstances detailed above, not disturb the law as had been in existence for more than 25 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 High Courts must be expressed in such clear and unambiguous words that no one may feel any difficulty in enforcing it. The Courts of law do not merely read the Headnotes or the concluding or operating portion of the judgment. Consequently, if the dictum is suitably modified, the Courts shall know not only what changes have been made but why the changes were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 mind of the Court, and what the Courts of law shall say is that because there exists a reasonable doubt on some of the ingredients of the offence, the benefit thereof shall go to the accused and he shall deserve acquittal or convicted of a lesser offence. 51. In cases falling in the first category, where no ingredient of the offence is connected with or co-related to the Exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for the public good. The accused then does not challenge the two ingredients of Section 499, that is, the making and the publication of the imputation with the intention to harm the reputation of the other person. When the two facts raised in defence are in no way connected with the main ingredients of Section 499, I.P.C., the Court shall, first of all, have to record a fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; 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 shall be looked into whether the accused has succeeded to rebut the presumption, that, is to disprove the absence of the circumstances contemplated by the above sections. Once the accused succeeds in establishing his plea, he would deserve acquittal on account of there being no guilty intention; it is a different thing that he may be liable to conviction of the lesser offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is for the accused to plead the benefit of the Exception, and if no such plea is raised, the Court shall assume that the Exception did not exist, and on the main ingredients being established the accused can be convicted of such offence. 57. The above contention was evidently repelled in the Full Bench case of AIR1941All402 (supra). Iqbal Ahmad, C. J., expressed his opinion clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide, 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, a similar inference can be drawn. The term "proved" is defined as below:-- "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. Section 105 of the Evidence Act has been worded in clear and unambiguous terms and it shall apply to each and every case where the benefit of the General Exceptions, or the Special Exceptions or provisos contained in the Indian Penal Code, or in any other law is claimed. Section 105 reads as below:-- &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 presume and once the Court decides to presume the existence of a fact, the same rule shall apply as in a case where there is a statutory clause to presume the existence of the fact. Reliance was placed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deemed to have been proved or the absence of circumstances disproved shall not be correct, for the simple reason that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 illustrations where injustice shall be done to the accused if the benefit of the Exception, as contemplated by the dictum under refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosecution to prove that he was. This case cannot be of any help considering that therein the prosecution had itself adduced sufficient evidence to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution, 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 hold that the "exception" or "proviso" pleaded has not been proved and it is quite another t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nority 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 Supreme Court decision in 1964CriLJ472 (supra). While discussing the case of AIR 1956 Nag 187 (Supra), their Lordships made it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 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 Ghasi Ram Gupta v. State, AIR1952Bom184 . No further comments are therefore, nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defence establishes facts and circumstances which might lead to a reasonable inference that at the time of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the prosecution. The prosecution has to prove its case beyond reasonable doubt, but in determining whether the accused has been successful in discharging the onus, the Court shall look into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view in Parbhoo's case. I concur with the views expressed and conclusions recorded by my learned brethren Broome, Gupta, and Parekh JJ., and also with the conclusions reached by my learned brethren Gyanendra Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 far as to contend that, if the majority view in Parbhoo's case was correct, the weaker the case of an accused, and, therefore, the greater the doubt abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;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 the aggressor in a fight, that the astutest judge could not possibly determine which of two rival versions was correct. Learned counsel urged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to necessarily examine their sources, the context in which they were given statutory form, the purposes they were designed to serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden 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 doubt on preponderance of probabilities which has to be so compulsive or overwhelming in the case of a choice in favour of a convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which covers the burden of establishing as well as the duty of introducing evidence of exceptions set up by the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 firmly established principles of proof and burden of proof applicable to criminal trials in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 probability in his favour, and a bare benefit of doubt, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally widely misunderstood. If 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of proving special facts to sustain, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Sir 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , J., so much that he declared it to be "fundamentally 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 50): "When the 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 esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's right to the benefit of doubt itself. 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pointed out, the expression contains, according to the Advocate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant. Moreover, a glance at (1873) 8 QB 483 will indicate that, when offences were created by statute, the burden of proving exceptions was placed on the accused even in England 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 presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law in India was the same as that in England on the general principles found in Woolmington's case. 134. Cases dealing with a real statutory exception which does modify the operation of the principle that the prosecution 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, est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, was acquitted. As I have already explained, the majority view in Parbhoo's case, where quite a different problem was before this Court, also was that the accused could fully establish the exception pleaded by a "preponderance of probability." The Supreme Court, 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of doubt to the accused. The presumption would then operate practically as a rule of exclusion of evidence. It would, in that case, act as a genuine statutory exception snapping the golden thread of Anglo-Saxon Jurisprudence which we have adopted as our own. 140. The 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ception by the accused but demand from him a disproof of ingredients of an offence which are deemed to be established on proof of certain facts justifying the raising of a statutory presumption (e.g. Sections 4 and 5 of the Prevention of Corruption Act). In the second and third 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 word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is not abstruse. The principle is stated in the maxim: "actual non facet rheum, nisi mens sit rea" or "an act does not make one guilty unless the mind is also guilty". In AIR 1947 PC 135, the Privy Council adopted the rule, with regard to an alleged violation of Rule 81 (2) of Defence of India Rules, 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 inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totality of facts affecting intention at the time of commission of the alleged crime, I do not see why they cannot be similarly affected by findings of reasonable doubt on the question of the real intent in causing injuries in the course of an alleged exercise of a right of private defence. The ingredients of each of these pleas will necessarily overlap and collide with the ingredients 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention. And, it is likely that there will be counter-cases in which each side will claim a right to defend property and person. A definite finding on possession, which is usually not difficult, decides the fate of the case of each side in such situations. In very exceptional cases, however, it may not be possible to determine which side was in possession and which meant to disturb 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 factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation only. The conditional presumption under Section 114, when raised, goes the whole length of proving the guilt of the accused. The gap it will cover, when raised, is either of proof of intention in removing property or of proof of knowledge of the stolen character of goods. Where the explanation is accepted, the optional presumption is not raised at all and the prosecution will fail on the ground that an ingredient 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itially as held clearly by judges taking the majority view in Parbhoo's case AIR1941All402 . 154. My view, therefore, is that, in cases where the accused pleads exceptions, the obligatory presumption is lifted as soon as there is some evidence to support the plea. The accused may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. The prosecution will have to remove 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 prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution has failed to prove its case "beyond reasonable doubt" as well as a case where an accused pleading an exception establishes it fully so that the prosecution case is disproved. 157. The Advocate General also raised the question whether the principle of benefit of doubt, accepted in England as a matter of public policy the ground upon which it was placed by Lord Hailsham in, 1936-2 All ER 1138 was available to the accused on the 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 deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pat209 where reliance was placed on the majority decision in Parbhoo's case. Kamla singh's case was mentioned by the Supreme Court because, just as in Dahyabhai's case 1964CriLJ472 the plea of insanity as an exception was raised there. The precise problem considered in Parbhoo's case AIR1941All402 and the answer given there have not, so far as I am aware, come up for consideration before the Supreme Court in relation to the right of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re pleaded. After having anxiously examined every aspect of the question referred to us, I answer the question framed, in complete agreement with the conclusions of my learned brethren Broome, Gupta. Gyanendra Kumar, Yashoda Nandan and Parekh, JJ.. as follows:-- The answer of the majority of learned Judges who decided AIR1941All402 is still good law. It means that in a case in which, in answer to a prima facie prosecution case, 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A presumption of law cannot be successfully rebutted by merely raising a doubt, however, reasonable. Something more than raising a reasonable doubt is required for rebutting a presumption of law and it is necessary for the accused to show that his explanation is so probable that a prudent man ought, in the circumstances, to accept it. 166. The Advocate General frankly conceded that the burden on the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tful disagreement with the view taken by Oak. C. J. that in a case where an accused pleads that he had caused grievous hurt to the complainant in the exercise of his right of private defence of property but succeeds only in creating a reasonable doubt about his claim of being in possession over the field in question he will be liable to conviction. We also respectfully concur in the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim, it is not, in our opinion, quite accurate to say that one of the ingredients of the offence of culpable homicide, as defined in Section 299 of the Indian Penal Code, or the mens res is wanting. The offence of culpable homicide is fully defined in Section 299 and the mens rea necessary for the offence are also expressly enumerated in the section itself. There are 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 elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h distinct from the other............. On this footing the word actual carries only a factual significance, i.e. that a human deed has been effected. The addition of the word reus carries the further significance that in the factual circumstances of the deed there is a situation which the law has forbidden to be brought about. To have killed a man is, without more, an actual of no precise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the proof of the ingredients of the offence. In this category the Supreme Court has placed Sections 80 and 84 of the Indian Penal Code. Section 80 is concerned with an accident, where the consequences brought about are naturally unintentional; while Section 84 deals with the unsoundness of mind of the accused i.e. absence of capacity in the accused to form an intention. 174. In 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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