SHANTILAL RATNAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE fact about Francis having died on 1-3-67 as a result of injuries said to have been caused by the accused with a stick on his head on the previous evening is no longer in dispute. What is, however, urged by Mr. Vin, the learned advocate for the appellant-accused, is that the act was committed in the exercise of his right of private defence and that way he is not guilty for the offence in question by reason of Section 96 of the Indian Penal Code. HIS contention was that the learned Sessions Judge has not properly considered the extent of proof that any such plea raised by the accused requires and about his having not properly appreciated the evidence of the main eye-witnesses in the case. According to him, the evidence of witness Ghanshyamalal Ex. 6 clearly establishes the deceased Francis being the aggressor at the incident and it was he who came out duly armed with a stick and gave the first blow to the accused. According to him, when he attempted to give another blow to him, he apprehended that he would be either done to death or caused any grievous hurt that he also gave the stick blow which hurt him on his head as a result of which he died on the next day. In those circumstances he is protected by reason of the provisions contained in Section 96 read with Section 97 part I and Section 100 cls. (1) and (2) of the Indian Penal Code. It may be also- mentioned at this stage that the prosecution has attempted to prove from the evidence on record that it was a free fight between the-parties and if after both of them got them selves armed with a stick and if in that mutual fight one causes injury to the other, no right of private defence is available to either side and in those circumstances, the learned Sessions Judge was perfectly right in convicting him for an offence under Section 304, Part It of the Indian Penal Code.

(2.) BEFORE we actually go to the appreciation of evidence of the eyewitnesses in the case, it may be essential to keep in mind the extent of proof which can be said to be essential for establishing any such plea of self-defence falling under the general exceptions in Chapter IV of the Indian Penal Code, for it is the contention of Mr. Vin that much though Section 105 of the Indian Evidence act contemplates that 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 the accused and the Court shall presume the absence of such circumstances, the decisions have laid down that the same extent of proof as is essential for establishing an offence viz. about the proof beyond any reasonable doubt in a criminal trial is not necessary and it would be enough if the accused is able to show the preponderance of probabilities that the act committed is in exercise of right of private defence. It would be enough, and will entitle him to claim the right so as to exonerate him from the act in question. It may not be necessary to refer to the various authorities and it would be enough to refer to the latest decision in the case of Harbhajan Singh v. State of Punjab. In that case it has been observed as follows: There is consensus of judicial opinion in favour of the view that 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. This, however, is the teat prescribed while deciding whether the prosecution has discharged its onus or proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where he is called upon to prove that his case falls under an Exception,. law treats the onus as discharged it he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. Then their Lordships have said thus: Where an accused person pleads an Exception he must justify his plea, but the degree and character of proof which be is expected to furnish in support of the plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings just as in civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him. While considering, therefore, the plea raised by the accused in the present case we have to keep in mind the extent of proof which is required to establish any such plea raised out of the general exceptions contemplated in Chapter IV of the Indian Penal Code. The same view has been taken by this Court in the case of Pravinchandra Ramnarayan Bhatt v. The State of Gujarat.

(3.) SECTION 96 of the Indian Penal Code says that nothing is an offence which is done in the exercise of the right of private defence and as provided in clause (1) of Section 97 of the Indian Penal Code, every person has a right. . . . to defend his own body, and the body of any other person, against any offence affecting the human body. Then Section 100 relates to as to when the right of private defence of the body extends to causing death. It provides as under: '100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: First.--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Secondly.--such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; * * * * Thus, any such right would extend even to the voluntary causing of death of any other person provided there is a reasonable apprehension of an assault and the death or grievous hurt is likely to be the consequence of such assault. Then Section 102 of the Indian Penal Code says as to when that right commences. It provides that the right of private defence of the body commences as soon as a reasonable apprehehsion of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. It is essential to note that it is not that any actual assault should have been committed so as to entitle the person assaulted to claim any right of private defence and it is enough if there arises a reasonable apprehension of danger from either an attempt or threat to commit any such offence. As already pointed out hereabove, the accused has got to show that such a right of private defence exists and that it was in exercise of that right he had given a blow with a stick which brought about the death of Francis on the evening of 1-3 67.