Indra Bahadur Singh and Another vs The State of U.P.

S.S. Chauhan, J.—Through this appeal the appellants have challenged the judgment and conviction dated 8.2.1996 passed by the IVth Additional Sessions Judge, Sultanpur, thereby convicting the appellants u/s 307 read with Section 34 I.P.C. to seven years rigorous imprisonment and further u/s 323 read with Section 34 I.P.C. for a fine of Rs. 1,000/- each of the accused and in case of default to undergo three months rigorous imprisonment.

Appellant No. 3, Kare Deen Singh S/o Chhotai had died during the pendency of the appeal and hence the appeal abates against him.

The prosecution case as unfolded in the F.I.R. is that the appellants Indra Bahadur Singh, Samar Bahadur Singh and Kare Deen Singh (since deceased) on 19.6.1986 at about 12 p.m. in the noon in Village Dhaurhar, Police Station Peepar Pur, District Sultanpur came behind and attacked on complainant, Tej Bahadur Singh and his son Krishna Kumar Singh with an intention to kill them on account of old enmity while they were sitting at tube-well on a cot. Upon alarm being raised, the witnesses came to the spot and thereafter the appellants ran away from the spot. An F.I.R. was lodged by complainant, Tej Bahadur Singh at Crime No. 91 of 1986 under Sections 307 and 323 I.P.C., Police Station Peepar Pur, District Sultanpur. A cross F.I.R. was also registered at Crime No. 91A of 1986 under Sections 147, 148, 149, 323, 307 I.P.C. Both the F.I.R.s were investigated and final report was submitted in the F.I.R. lodged at Crime No. 91A of 1986, whereas a charge sheet was submitted in the F.I.R. lodged at Crime No. 91 of 1986. The accused persons were committed to the court of Sessions for being tried. The accused persons pleaded not guilty and thereafter charges were framed against them under Sections 307/34 and 323/34 I.P.C. Tej Bahadur Singh himself was examined as P.W.-1, Krishna Kumar Singh as P.W.-2, Subhash Singh as P.W.-3, Satish Chandra Tripathi, Investigating Officer as P.W.4 and Dr. Ashok Mohan as P.W.5 to prove the prosecution case.

The defence adduced Smt. Sarla Mishra, A.N.M. as DW.-1, Mahendra Kumar Tripathi, Pharmacist as D.W.-2. The photostat copies of the injury reports filed by the appellants were marked as Ex.Ka-1 and Ex.Ka-2 and the F.I.R. was the Ex.Ka-3.

The injuries reports (Ex.Ka-1 and Ex.Ka-2) go to show that Indra Bahadur Singh received one lacerated wound, two contusions, one abrasion and a traumatic swelling and Samar Bahadur Singh received one lacerated wound, two contusions, one abrasion and a traumatic swelling.

After conclusion of the evidence, the trial court came to the conclusion that the appellants have not been able to prove their injury reports nor they have been able to prove their incident. The counter version by the complainant party was reliable as they have taken prompt action in lodging the F.I.R., therefore, the trial court discarded the theory of self-defence and also rejected the arguments in regard to the unexplained injuries on the person of the appellants. The minor contradictions on the part of the Investigating Officer were also ignored. It was also found that specific efforts were not made by the defence to produce Dr. R.K. Gupta and neither it was confirmed from his pension papers and, therefore, the secondary evidence led by the appellants was rejected and they were convicted as aforesaid.

The argument advanced on behalf of the appellants is that the prosecution has come out with a specific case that the complaint party was totally unarmed and that they did not inflict any injury in self-defence. They were attacked upon by the accused appellants and they tried themselves by protesting physically and when a specific question was put during the course of cross-examination to the prosecution witnesses and the injured, they specifically stated that the appellants did not receive any injury. The submission, therefore, is that in view of the categorical case set up by the prosecution that no injury was received by the appellants, the implication of the appellants becomes doubtful as there are specific injuries sustained by the appellants and in absence of any explanation being given, the prosecution case becomes doubtful. It is not necessary that the appellants to prove the case by way of defence evidence, but upon preponderance of possibilities and upon considering the entire prosecution evidence if a doubt is created in regard to the prosecution case, then the accused is entitled for benefit of doubt. Further submission is that the injuries, as alleged by the prosecution, cannot be sustained as the alleged assault is said to be made on the complainant and his son, who were sitting on the cot and if the accused were standing and they attacked the complainant and his son in a sitting position, then the injuries would be received on the top of the head rather on the temporal region or any other region. It is also submitted that the incident has not taken place as alleged in the F.I.R., but it has taken place as alleged in the cross F.I.R. and that is why the injuries could not correspond to the manner of assault as alleged by the prosecution. The appellants have proved their case of cross version by examining D.W.-1 and D.W.-2 by placing on record the photostat copy of the injury reports and the F.I.R., which were proved by them as secondary evidence. The appellants also moved an application on 9.2.1995 for summoning the aforesaid final report submitted by the Investigating Officer, but the trial court has not ensured the summoning of the said final report and documents contained therein. Dr. R.K. Gupta, who examined the appellants, had retired long back and so an application was moved on 31.10.1995 to prove the injury reports by means of secondary evidence. Smt. Sarla Mishra proved the signatures of Dr. R.K. Gupta, whereas D.W.-2 Mahendra Kumar Tripathi, Pharmacist, who had been working in the Primary Health Centre, came along with the register and he specifically proved that the photostat copy is the true version of the report contained in the original register and so the accused persons have discharged their burden.

Learned A.G.A. on the other hand has submitted that the secondary evidence has not been up to the mark to prove the documents as alleged by the appellants. The scribe was not produced and neither any steps were taken for summoning the witnesses and no summons were issued to the witnesses. He has also placed reliance upon Section 32 of the Indian Evidence Act (hereinafter referred to as the ''Act''). He has further submitted that it has also not been proved as to whether the doctor was alive or dead. The burden was on the accused to prove the injury reports as contemplated u/s 101 of the Act and in accordance with Section 105 of the Act the accused has to prove and plead the cross case. It is further submitted that although an application was made u/s 313 Cr.P.C. that injuries were received in self-defence, but no documents were proved, so there was no question of disproving any document. He has also submitted that Section 96 I.P.C. gives right to private defence, but subject to limitation as contemplated u/s 99 I.P.C. The F.I.R. was lodged on the next date and no explanation for delay was given. He has also submitted that the defence cannot be raised by way of Section 313 Cr.P.C. and written statement is not permissible u/s 313 Cr.P.C. There was strong motive to commit the crime as the accused appellants wanted that the complainant may not give evidence in the murder case, which was pending against them and with that view they were attacked. After the present case, evidence was recorded in that case and the appellants were convicted for life. After the final report was submitted, the appellants should have filed protest application, but they accepted the final report, so the same became final. It is also submitted that for fault of Investigating Officer the prosecution cannot be thrown out.

I have heard learned Counsel for the parties and gone through the record.

The first question, which falls for consideration is as to in what manner and to what extent the right of private defence can be taken by the Court while considering the evidence on record and upon preponderance of possibilities where the defence is obliged to discharge its burden by adducing evidence to disprove the circumstances or upon preponderance of possibilities and considering the entire prosecution case if there is a doubt in the mind of the Judge, then whether the said evidence can be taken into consideration and the accused can be acquitted.

Learned Counsel for the appellants in order to put forward his argument that even if positive evidence is not led by the defence to dispel the prosecution against the accused, even then the Court can look into the entire evidence and comes to a conclusion that the accused persons acted in exercise of private defence. In support of his contention he has relied upon the case of Lakshmi Singh and Others Vs. State of Bihar, wherein the apex court held as under:

x x x x In Puran Singh v. The State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : (reported in Puran Singh and Others Vs. The State of Punjab, which was also a murder case this Court while following an earlier case observed as follows:

In State of Gujarat v. Sai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) : (reported in State of Gujarat Vs. Bai Fatima and Another, one of us (Untwalia, J.) speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance form which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of Pws.1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in state of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : (reported in State of Gujarat Vs. Bai Fatima and Another, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

In the case of Vijayee Singh and others Vs. State of U.P., , the apex court after considering the law laid down by the apex Court in various cases held as under:

The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following terms:

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 for such circumstances.

The Section to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him. The Section further lays down that the Court shall presume non-existence of circumstances bringing the case within an exception. The words "the burden of proving the existence of circumstances" occurring in the Section are very significant. It is well settled that "this burden" which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case beyond all reasonable doubts. It is also well-settled that the accused need not set up a specific plea of his offence and adduce evidence. That being so the question is: what is the nature of burden that lies on the accused u/s 105 if benefit of the general exception of private defence is claimed and how it can be discharged? In Woolmington v. The Director of Public Prosecutions [1935] AC 462, Viscount Sankey, L.C. observed:

When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or 588 provoked, the prisoner is entitled to be acquitted.

It is further observed:

Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence ... Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner''s guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception. If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Emperor v. U. Dampala AIR 1937 Rangoon 83, a full Bench of the Rangoon High Court following the Woolmington''s case held that the ratio therein is not in any way inconsistent with the law in British India, and that indeed the principles there laid down from valuable guide to the correct interpretation of Section 105 of the Evidence Act and the full Bench laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions pleaded, the accused is entitled to be acquitted if upon a consideration of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded.

We have noticed that Section 105 requires that 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 or special exception or proviso contained in any part of the Penal Code is on him and the Court shall presume the absence of such circumstances. This presumption is rebut table. In Parbhoo and Others Vs. Emperor, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken by the Full Bench in Dampala''s case. In Parbhoo''s case Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prosecution and never: shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt. "The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow there from that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case." In Dampala''s case Dunkley, J. while concurring with the majority view after discussing the law on the subject observed:

The conclusion, therefore, is that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from circumstances appearing from the prosecution evidence, that the existence of circumstances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence.

This case has been followed subsequently by a number of High Courts.

In K.M. Nanavati v. State of Maharashtra [1962] Supp. 1 SCR 567 it is observed that:

In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that Section the Courts shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved.....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 u/s 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all.

In Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, it is observed:

It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. The general burden never shifts and it always rests on the prosecution. But, u/s 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shah presume the absence of such circumstances. u/s 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances 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 u/s 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 Penal Code.

A careful reading of these two decisions would reveal that the statement of law therein neither expressly nor impliedly overrules or is in conflict with the majority view in Rishi Kesh Singh and Others Vs. The State, , the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo''s case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt. A majority of seven Judges approved the principle laid down in Parbhoo''s case. The Larger Bench also referred to various subsequent decisions of the Supreme Court including the Bhikari Vs. State of Uttar Pradesh, and Dahyabhai''s case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati''s case; Bhikari''s ease; Dahyabhai''s case and Mohar Rai & Bharath Rai''s case, held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo''s case. After analysing the view expressed by the Surpeme Court in the several above mentioned decisions, Beg, J. observed:

After a close scrutiny of every part of each of the seven opinions in Parbhoo and Others Vs. Emperor, 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 majority in Parbhoo and Others Vs. Emperor, I find it based on these three propositions which provide the ratio decidendi and this is all that needs to be clarified.

The practical result of the three propositions stated above is that an accused''s plea or an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are; firstly, a lifting of the initial obligatory presumption given at the end of Section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by "a preponderance of probability", which covers even a slight tilt of the balance of probability in favour of the accused''s plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the majority view in Parbhoo''s case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice.

Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the majority in Parbhoo''s case is in conformity with law, however, observed that the reasoning in support of the conclusions is erroneous. Beg, J. was not prepared to go to that extent. The majority speaking through Shri Mathut, J. laid down that the dictum in Parbhoo''s case which is still a good law, can, however, be modified as follows:

In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused person and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence.

Learned Counsel for the State, however, submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102 and 105. This very question has been answered by the Supreme Court in Nanavati''s case and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused. But 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 and the evidence relied upon by the accused in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder. The accused for the purpose of discharging this burden u/s 105 can rely also on the probabilities. As observed in Dahyabhai''s case "the accused will have to rebut the presumption that such circumstances did not exist" by placing material before the court which satisfies the standard of a prudent man and the material may consist of oral and documentary evidence, presumptions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden u/s 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. Therefore, there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act.

We have not come across any case of the Supreme Court where the ratio laid down in Parbhoo''s case and which was subsequently approved by a larger Bench in Rishi Kesh Singh''s case has been considered comprehensively.

In the case of Laxman Singh v. Poonam Singh and Ors. 2003 (4) Crimes 1 SC, their Lordships again reemphasized the same principle in para 6 of the judgment, which is as follows:

Only question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression ''right of private defence''. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. u/s 105 of the Indian Evidence Act, 1872 (in short ''the Evidence Act''), the burden of proof is on the accused, who sets of the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702 , State of Gujarat Vs. Bai Fatima and Another, State of U.P. Vs. Mohammad Musheer Khan and Others, and Mohinder Pal Jolly Vs. State of Punjab, . Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body u/s 97, that right extends u/s 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia Vs. State of Uttar Pradesh, runs as follows:

It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence.

While dealing with the similar in the case of Narain Singh and Ors. v. State of Haryana 2008 AIR SCW 2641, the apex court held as under:

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh and Others Vs. State of Bihar, A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.

In the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, the apex Court held as under:

Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.

A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

From the proposition and discussion of the law as propounded by the apex court herein-above, it is evident that the accused were not required to lead evidence specifically in support of their case, but in fact they were required to and were entitled to take such plea from the evidence of the prosecution and cross-examination. The accused persons have discharged their burden by proving the injury reports and the F.I.R., which were taken on record as Ext.Ka-1 and Ext.Ka-2 and Ext.Ka-3 and Smt. Sarla Mishra, A.N.M., who was posted at the relevant time with Dr. R.K. Gupta gave evidence to the effect that she knows the signature of Dr. R.K. Gupta and she has seen him while singing. Apart from it, she has not certified the contents, but D.W.-2, Mahendra Kumar Tripathi, Pharmacist, came along with the register and specifically stated that the carbon copy is the true copy of the entry made in the original register and so he proved the contents, so it cannot be said that the documents were not proved.

The question to be taken into consideration is that as to what extent the prosecution has come out with correct facts and proved their case and whether they have suppressed something from the Court while making statement and accusing the appellants or whether they have come out with clean hands and proved the version of the prosecution. The evidence on record goes to indicate that P.W.-1 and P.W.-2 including P.W.-3 have specifically stated in their statement that accused did not receive any injuries, but the injury reports, which were placed on record and got proved by secondary evidence certainly proved that the prosecution has not come out with true version and the accused persons did receive injuries and the same could not be explained by the prosecution, so the prosecution case has become doubtful in absence of explanation of injuries of appellant/accused.

The question as to whether the injuries sustained by the accused persons have been proved and the statements of D.W.-1 and D.W.-2 can be accepted under law, needs no further argument in view of the law laid down by the apex court in the case of Prithi Chand Vs. State of Himachal Pradesh, of the aforesaid decision the apex court held as under:

The prosecutrix was examined by Dr. C.S. Vedwa, who had issued the Medical Certificate, Ex. P-E dated 16th June, 1979. The Medical Certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and pubic hair were absent and there were abrasions of 3'' x 1/8'' and 2'' x 1/8'' on the lumber region. She also found signs of inflamation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and the vagina admitted one finger with difficulty. The girl''s Salwar was blood stained. It was taken in a sealed packet along with two slides and swabs. Unfortunately, this lady Doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave. The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through PW-2 Dr. Kapila, who was conversant with her hand-writing and signature, he having worked with her for about two years. He stated that the carbon copy of the certificate Ex P-E was prepared by Dr. Vedwa by one process and bears her signature. The learned Counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certificate was lost and not available. Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since one carbon copy was made by one uniform process the same was primary evidence within the meaning of explanation 2 to Section 62 of the Evidence Act. Therefore the medical certificate Ex. P-E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.

Similar question arose in the case of Hindustan Construction Company Ltd. Vs. Union of India (UOI)., in regard to veracity of the award, which was signed by the Arbitrator and the non-certification by the umpire to the effect that certified copy is the true copy and the missing words "certified to be true copy" above the signature of the Arbitrator were not found material and it was held that under law the same has to be accepted as true award. The apex court while dealing with the question of proving the documents by secondary evidence came to the conclusion that it can be proved by accurate or true and full reproduction of the original. In paras 5 and 6 of the aforesaid judgment, the apex court held as under:

(5) Now the word "copy" as such is not defined in the Indian Evidence Act, 1 of 1872. But we get an idea of what a copy is from the provisions of Section 63 of the Evidence Act. That section inter alia defines what secondary evidence means and includes, namely - (I) certified copies as provided in Section 76 of Evidence Act, (ii) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies and (iii) copies made from or compared with the original. Obviously, therefore, a copy means a document prepared from the original which is an accurate or true copy of the original. In Webster''s New World Dictionary, the word "copy" means "a thing made just like another; full reproduction or transcription". What the word "copy" in Section 14(2), therefore, requires is that it must be a full reproduction of the original and that it should be accurate or true. When a document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was, therefore, a copy of the original, and the only question that remains is whether it was signed, for if it was singed, it would be a singed copy.

(6) This brings us to the meaning of the word "sign" as used in the expression "signed copy". In Webster''s New World Dictionary the word "sign" means "to write one''s name on, as in acknowledging authorship, authorizing action, etc." To write one''s name is signature. Section 3(56) of the General Clauses Act No. 10 of 1897, has not defined the word "sing" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing one''s name on some document or paper. In Mohesh Lal v. Busunt Kumaree ILR (1881) Cal. 340, a question arose as to what "signature" meant in connection with Section 20 of the Limitation Act, No. IX of 1871. It was observed that "where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.

The aforesaid two cases are sufficient to reject the argument of learned A.G.A., who has submitted and argued that the injury reports could not have been proved by secondary evidence and the Doctor ought to have been produced and whatever steps were possible were taken by the appellants. The appellants moved an application on 9.2.1995 for summoning the final report submitted by the investigating Officer, which was not summoned in spite of the fact that an order was passed on the same day for summoning the same. Thereafter, another application was moved on 31.10.1995, wherein it was stated that in spite of sincere efforts being made by the accused persons Dr. R.K. Gupta was not traceable and neither his district was known and, therefore, they may be permitted to prove the documents by secondary evidence by presenting Smt. Sarla Misra, A.N.M. for which dasti summons were issued on the same day. The accused persons also moved an application on 9.10.1995 for summoning Dr. R.K. Gupta and the Record Keeper, Sadwa Chandrika P.H.C. On the said application an order was passed that steps be taken. All these facts go to indicate that whatever possible steps could be made by the accused persons were undertaken to prove the cross version and they have succeeded to a large extent to dispel the case of prosecution and to create doubt in the prosecution story when there was a specific statement that no injury has been received by the accused persons. On the basis of the law as propounded by the apex court, it is to be presumed that the accused persons were able to prove the cross version by filing photostat copies of the injury reports and the F.I.R., which were duly proved by means of secondary evidence.

The next point, which falls for consideration, is that whether the injuries as alleged by the prosecution could have been sustained by the injured when they were being attacked from the back side. The injury No. 1 sustained by complainant, Tej Bahadur Singh is lacerated wound measuring 3 cm x 0.5 cm bone deep over occipital region of head and 15 cm above C-7 cervical spine, but there was no report of the radiologist that the injury is sufficient in the ordinary course to cause death. The next injury was also a lacerated wound measuring 5 cm x 0.5 cm bone deep over occipital region of head and 2 cm medial to injury No. 1. Margins were irregular. The third injury was lacerated wound measuring 6.5 cm x 1 cm bone deep over left occipital region of head. 8 cm above left ear and the other is abrasion. Injury No. 1 was kept under observation, but no report was there to prove that it is dangerous to life. The injuries sustained by other injured, namely, Krishna Kumar Singh were lacerated wound measuring 1.5. cm x 0.5 cm scalp deep over right parietal region of head, 6 cm above right ear and the other was traumatic swelling. So, none of these injuries could have been sustained by the injured persons in a sitting position while they were attacked upon by the accused persons from the back side as alleged. If the complainant party were siting on a cot and the accused persons came behind and started assaulting the injured persons, then the injuries must in all circumstances are to be received on the top of the head rather on occipital region or on the temporal region. Once the injured stood up, then the injuries ought to have been received by them on the lower back of the body.

The counter version set up by the accused persons by way of written statement u/s 313 Cr.P.C. that while they were returning from Sultanpur city towards their house they were attacked upon by Shiv Nayak Singh S/o Chhotai Singh, Tej Bahadur Singh, Dal Bahadur Singh sons of Shiv Nayak Singh, Ajeet Kumar and Pappu @ Krishna Kumar sons of Tej Bahadur Singh with Lathi. Thereafter, Tej Bahadur Singh fired with his Katta upon Indra Bahadur Singh, which missed and thereupon Indra Bahadur Singh throw him to the ground. Thereafter all the persons attacked upon the appellants with Lathis and they received injuries in self-defence. Indra Bahadur Singh and his brother Samar Bahar Singh also used Lathis on account of which complainant and others received injuries. Hence, the story set up by the appellants appears to be more real story than the story set by the complainant party. But the trial court has erroneously ignored the injury reports, which were proved by secondary evidence and has also disbelieved the counter version set up by the accused persons. The appellants have given proper explanation of the injuries received by the prosecution witnesses, but the prosecution has totally denied the injuries being sustained by the accused persons, then in such circumstances the version, which gives a more real picture and explains the injuries sustained by both the sides is to believed upon in stead of throwing the said case to the ground. The appellants, therefore, cannot be said to have assaulted the complainant and his son as alleged by them as the injuries sustained by them do not correspond to the manner of assault.

The prosecution was having strong motive to attack the appellants, who were facing trial u/s 302 I.P.C. Had there been intention to kill the complainant and his son, then the appellants would have not attacked with Lathi, but rather they would use fire arms or deadly weapons, which also throws some doubt upon the prosecution case. The appellants have contested the case up till Commissioner''s court. It may be that the appellants have been convicted u/s 302 I.P.C., but in the present case it has to be seen as to what is the evidence available with the prosecution to prove the case beyond reasonable doubt and to the hilt to convict the appellants. The propositions of law laid down in Laxmi Singh''s case (supra) and the other cases apply with full force in the present case and, therefore, the appellants are entitled for benefit of doubt as they have been able to prove the case beyond reasonable doubt.

The case laws relied upon by the learned A.G.A. on the cases of Surendra Paswan v. State of Jharkhand AIR 2004 SC 742 , State of Gujarat Vs. Bai Fatima and Another, and Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, do not apply in the facts of the present case and they have been rendered in different context.

In the case of Bai Fatima (supra) their Lordships took the view that the right of private defence was not available to the accused on the ground that they have not taken the plea of private defence in their statement u/s 342 Cr.P.C. nor did they raise any basis for the said plea in the cross-examination or by adducing any defence evidence and in those circumstances the right of private defence was denied to the accused. The prosecution case was also taken to be of such a nature that the right of private defence was not spelt out.

In the case of Rizan and Anr. (supra) the proposition to the effect that minor and superficial injuries in contrast to the clear and cogent evidence are to be excluded, does not come to the rescue of the prosecution in this case as a specific plea has been taken and in para 13 of the aforesaid case it has been held that burden of establishing the plea of self-defence is of the accused and the burden stand discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record and the accused persons are not required to lead evidence and they can show such a plea by preponderance of probabilities.

In the case of Surendra Paswan (supra) the same principle has been reiterated and it has been laid down that where the accused sustained minor and superficial injuries against the clear and cogent evidence, the same has to be ignored, but the said proposition does not apply in the present case as the injuries were neither minor nor superficial in nature.

The minor injuries as alleged by the learned A.G.A. cannot be accepted as in the present case both the sides have received lacerated wounds. So one attacked the other with the same force and magnitude, it cannot be said that injuries were superficial in nature. The statement recorded u/s 313 Cr.P.C. goes to indicate that Indra Bahadur Singh fell unconscious and the condition of his brother, Samar Bahadur Singh was also serious and so they were immediately rushed to the nearest Primary Health Centre, Sadwa Chandrika where their medical examination was conducted and they admitted by the doctor. The next day father of the appellants attended a civil case in the court and thereafter lodged the report. This statement goes to indicate that the injuries were not superficial in nature, but rather they were serous to certain extent and that is why they were admitted by the doctor.

Considering the entire facts and circumstances of the case, it is apparent that the prosecution has failed to establish the injuries sustained by the appellants and the trial court has erred in convicting the appellants. Taking clue from Laxmi Singh''s case (supra), this Court has no option except to hold that appellants are entitled for benefit of doubt and are liable to be acquitted.

In the result, the appeal is allowed. The judgment and conviction dated 8.2.1996 passed by the learned IVth Additional Sessions Judge, Sultanpur is hereby set aside and the appellants are held not guilty of the offence under Sections 307/34 and 323/34 I.P.C. and they are acquitted of the same. The appellants are on bail. Their bail bonds and sureties are discharged for which they need not surrender unless wanted in any other case.