If you give further details of the case like case number, party name etc then I can readily give the else.

Else you have to wait for sometime so I can finish research and come back to you.

It was passed on 20.10.2016 and not on 3rd November.

The details are IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1482 OF 2013

YOGESH SINGH … APPELLANT(S)

:Versus:

MAHABEER SINGH & ORS. … RESPONDENT(S)

Go to the Supreme Court website and type this number. You would find the whole decision.

I have to search for it.

If you disclose the actual reason then i can guide you further.

. In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361, Supreme Court observed thus:

"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.]"

Supreme Court of India

Ghurey Lal vs State Of U.P on 30 July, 2008

Author: D Bhandari

Bench: R.V. Raveendran, Dalveer Bhandari

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.155 OF 2006

Ghurey Lal ... Appellant

Versus

State of U.P. ... Respondent

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the High Court of Allahabad dated 11th November, 2005 passed in Criminal Appeal No. 365 of 1981.

2. This is a murder case in which the trial court acquitted the accused. The High Court reversed the trial court's decision, finding the accused guilty. In doing so, the appellate court failed to give proper weight to the views of the trial court as to credibility of witnesses, thereby ignoring the standards by which the appellate courts consider appeals against acquittals.

3. We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has "very substantial and compelling reasons."

4. In giving our reasons for reversing the appellate court's judgment and restoring that of the trial court, we provide a brief review of the facts, the reasoning of the trial and High Court as well as the standards by which appeals against acquittals are reviewed according to settled principles of criminal jurisprudence in our country.

5. Before turning to the facts that were before the trial court, we note that there is an interesting coincidence in this case. The names of both the accused and the deceased are Ghurey Lal. Therefore, to avoid confusion, we have referred to them as "accused" and "deceased."

6. Brief facts, according to prosecution, which are necessary to dispose of this appeal are recapitulated as under:-

It appears that at the heart of this matter lies a property dispute. The accused testified in favour of his great-grand daughter, Ram Devi. This testimony went against the deceased, creating enmity between the parties.

7. On 14.3.1979, the deceased, Shiv Charan P.W.1, Brij Raj Singh P.W.2, Yad Ram P.W.4, Nathi Lal (not examined) and Bishambhar (not examined) had taken the customary Gur (Jaggery) during the Holi festival.

8. On their way home, they happened to pass by the home of the accused. The accused was standing just outside his home and was holding a shot gun. The accused began to verbally abuse the deceased. Thereafter, the accused fired one single shot from his gun, killing the deceased with a bullet and causing injuries to Brij Raj Singh P.W. 2 with pellets. Hearing the gun shot, some people quickly assembled at the scene. The accused fled to his room, which he locked from inside. The uncle of the deceased, Shiv Charan, lodged the FIR that very evening, the 14th March, 1979 at 6.15 p.m., at the Barhan Police Station in the District of Agra.

9. The accused provided his own version of the event. According to the statement of the accused under section 313 of the Code of Criminal Procedure, he went to the place of Kanchan Singh where Gur (Jaggery) was being distributed. One Bal Mukand told the accused to leave the Gur distribution ceremony, as the deceased, Brij Raj Singh P.W. 2, Yad Ram P.W.4, Nathi Lal and Bishambhar had collected pharsa, lathis and kattas declaring that they will deal with him (accused) when he comes there. On hearing this, the accused returned to his home and grabbed his gun. The deceased and others then arrived at his home, brandishing weapons. The deceased carried a pharsa, Nathi Lal had a katta, Brij Raj Singh a knife and Yad Ram and Bishambhar possessed lathis. To threaten and check them, the accused aimed his gun at them. This was to no avail. The deceased and others struck at the accused, hitting his gun. Nathi Lal fired his katta, causing pellet injuries to Brij Raj Singh P.W.2. A scuffle ensued in which the deceased's group tried to snatch away his gun. In the scuffle, the gun was accidentally fired, killing the deceased. The accused sustained pharsa and lathi blows on the butt and barrel of the gun. Fearing for his life, the accused went to his room and locked the door from inside.

10. Brij Raj Singh P.W. 2 was sent to the Government Hospital, Barhan for medical examination. Dr. Govind Prasad P.W.3 found the following injuries on the person of Brij Raj Singh, P.W. 2:

1. Round lacerated wound 0.3 cm x 0.3 cm on right side back 10 cms away from mid line 9 cms below border of scapula. Margins burnt and inverted, and tattooing present in an area of 5 cms. No pellets palpable. Bleeding present.

2. Lacerated wound of exit 1.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury no. 1. Skin burnt and tattooing present in the area of 5 cm x 5 cms. Merging of the wound inverted. No pellets palpable.

11. The Doctor opined that the injuries were caused by a firearm. He advised that x-rays be taken and that the injuries be kept in observation. In his opinion, the injuries were caused by a gun shot and were of fresh duration. In his opinion, the injuries could have been caused around 4 p.m. The doctor sent the memo Ex. Ka-4 on the same day, informing the case of Medico legal nature to the Barhan Police Station.

12. The autopsy on the deceased was conducted by Dr. Ram Kumar Gupta, P.W.5, Medical Officer, SNM Hospital, Firozabad, District Agra. It revealed the following ante-mortem injuries on the deceased:

1. Gun shot wound of entry 2.5 cm x 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect.

2. Gun shot wound of exit 5 cm x 4 cm x through and through on right side back of neck 5 cm below right ear corresponding to injury no. 1 with margins averted.

The Doctor opined that the cause of death was due to shock and hemorrhage as a result of ante-mortem injury.

13. The prosecution examined Shiv Charan P.W.1, Brij Raj Singh P.W.2 and Yad Ram P.W.4 as eye witnesses of the occurrence. Dr. Govind Prasad P.W.3, Medical Officer In- charge, who had medically examined Brij Raj Singh, proved the injury report Ext. Ka 3. Dr. Ram Kumar Gupta P.W. 5, who had conducted autopsy on the dead body of the deceased, was also examined. On internal examination, he found semi digested food material in the small intestine and there was faecal matter present in the large intestines. He prepared the post-mortem report Ex. Ka-5. In his opinion, the death of the deceased had taken place around 4 p.m. on 14.3.79 on account of the said injuries and shock.

14. The accused was charged with killing the deceased under section 302 of the Indian Penal Code (For short, IPC) and with causing simple injuries to the injured under section 323 IPC. He was also charged with attempting to murder Brij Raj under section 307 IPC. The accused appellant denied the charges, pleaded not guilty and asked to be tried.

15. The crucial question which arose for consideration was whether the injuries caused to Brij Raj Singh P.W.2 could have been caused by the same shot that killed the deceased. If that was possible, the prosecution version became probable. But if the shot that killed the deceased and the shot that caused injuries to Brij Raj Singh were from different weapons, then the defence version was more probable. Shri B. Rai, Ballistic Expert, Forensic Science Laboratory, U.P. was called as court witness No.1. He was asked to explain the nature of the 12 bore cartridges and give an opinion, for which he wanted time to carry out experiments in the laboratory. The gun was given to him and he performed a test in his laboratory in the light of the statements of the eye-witnesses, medical report and site-plan. He submitted his report, Ex. C- Ka.1, wherein he clearly opined that injuries Nos. 1 and 2 of the deceased were possible by the gun Ex.3 of the accused and injuries Nos.1 and 2 of the injured Brij Raj Singh were possible by another fire. By "fire", it is clear from the record that the Ballistic Expert was referring to a "firearm".

16. Ultimately, we must answer the following question: Whether the prosecution story of a single shot causing injury to two persons, that is bullet injury to deceased and pellet injury to Brij Raj Singh, with the accused as the aggressor, stands sufficiently proved beyond reasonable doubt?

17. In order to decide whether a single shot was fired or in fact two different shots were fired, we must carefully examine the versions of the prosecution and the defence and the report of the Ballistic Expert. According to the trial court, the medical evidence coupled with the Ballistic Expert report revealed the existence of two fires from two weapons and as such was inconsistent with the prosecution story. The trial court further provided that it is difficult to separate falsehood from the truth, as some material aspects of the occurrence appeared to have been deliberately withheld. "One has to separate the chaff from the grain and it is difficult to lay hand upon what part of the prosecution evidence is true and what part is untrue". According to the accused, the trial court had taken a reasonable and possible view of the entire evidence on record.

18. The post-mortem report Ex. Ka-5, photo lash Ex. Ka-7 and the statement of Dr. Ram Kumar Gupta P.W.5 indicate that the wound of entry was on the right side of the neck 2 cm. lateral middle line on front aspect. The exit wound was on the right side back of neck 5 cm. below the right ear. This means that the bullet had entered from the front side of the neck from a distance of 2 cm. lateral to middle line, and it had come out from the back of the neck at a place 5 cm. below the right ear. In this way, the trial court reasoned that the barrel of the gun, when discharging, was slanting vertical. The mouth of the barrel was upward and its butt downward. The barrel and the butt were not horizontal to the ground at that time.

19. The trial court observed that injury no. 1 (wound of entry) on Brij Raj Singh P.W.2 was on the right side of his back 10 cm. away from the mid line, 9 cms. below the lower border of scapula. Injury no. 2 (wound of exit) was on the right side of his back 8 cm. away and lateral from injury no.1. This means that the exit wound was by the side of the entry wound at a distance of 8 cm.

20. The dictionary meaning of `lateral' is "by the side" and this means that the two injuries caused by pellets to Brij Raj Singh P.W.2 were horizontal and not vertical. The trial court opined that the single shot could not have caused vertical injury to one person and horizontal injury to another. It found it doubtful and not sufficiently proved that the same shot could have injured Brij Raj Singh and killed the deceased.

21. This conclusion is further fortified by the report of the Ballistic Expert Sri B. Rai court witness No.1. He has given a definite opinion after making actual experiments by firing shots. This was done from the distance at which the occurrence was said to have taken place. The eye-witnesses had testified to this distance. The Ballistic Expert opined that the injuries to Brij Raj Singh P.W.2 were from a different shot from the one that killed the deceased.

22. The relevant part of the evidence of the Ballistic Expert reads as under:

"2. Question- Whether bullet and Chharras both be used in 12 bore gun or not?

Ans.- 12 bore gun have no bullet. It has small chharas, big chharas or one single ball shot with diameter about 0645."

23. The Ballistic Expert after studying the post-mortem report observed as under:

"Studying the Post Mortem report No. 51/79 of deceased Ghurey Lal and injury report of Brijraj Singh dated 14.3.79, statement of doctor and witnesses and site plan and keeping the result of above experiments in mind, I reached in conclusion that injury No. 1 and 2 possible to sustain to deceased Ghurey Lal by this gun from the distance of 10 feet and injury No. 1 and 2 of injured Brij Raj Singh seems to sustain by some other shot."

24. The Ballistic Expert categorically stated that in cartridges of standard 12 bore shot guns, bullets from other rifles cannot be used with small and big chharas (pellets). Therefore, the trial court concluded that both the injuries were not possible by a single firearm.

25. Leading experts of forensic science, particularly ballistic experts, do not indicate that from a single cartridge both bullets and pellets can be fired. Professor Apurba Nandy in his book "Principles of Forensic Medicine", first published in 1995 and reprinted in 2001, discussed cartridges. Professor Nandy mentioned that in some cases, instead of multiple pellets, a single shot or metallic ball, usually made of lead, is used. We note that the discussion regarding cartridges exclusively mentions pellets. No mention of bullets and pellets in cartridges is found in the numerous volumes of scholarly literature that we have consulted. Relevant discussion reads as under: p. 241 "The Cartridges (the ammunitions)-

The cartridge of a shotgun and the cartridge of a rifled weapon are essentially different in their makes.

The cartridge of a shot gun - (Fig. 10.69) The cartridge of a shotgun has the following parts and contents-

1. The cartridge case - The longer anterior part of the cartridge case is made of card board. The posterior part and the posterior surface is made of brass. The margin of the breach end of the cartridge case is rimmed, so that, the cartridge can be properly placed inside the chamber and with pressure on the rim the empty cartridge case can be easily ejected out of the chamber. The anterior margin of the cartridge case is twisted inward to keep the pellets and other materials inside the case compact. The anterior part of the cartridge case is made of cardboard, for which, with production of gas inside the cartridge case it can slightly expand so that, the twisted grip by the anterior margin will be released and the pellets can come out of the case. The posterior metallic part keeps the shape of the breach end of the cartridge intact. It helps to maintain the right position of the cartridge in the chamber, so that, the percussion pin of the hammer strikes the percussion cap rightly at the breach surface of the cartridge. At the central part at the breach end inside the cartridge case is the percussion cap.

2. The percussion cap - It contains primer or priming mixture and there are some vents or openings on the wall of the percussion cap. When the posterior surface of the percussion cap is struck by the percussion pin, the priming mixture which consists of a mixture either of mercury fulminate, pot, pot, chlorate and antimony sulphide or of antimony sulphide with lead styphnate, lead peroxide, barium nitrate or tetracene, gets ignited due to the pressure and friction and fire comes out through the vents or openings on the wall of the percussion cap.

3. Contents inside the cartridge case.

Surrounding the percussion cap is the gun powder or the propellant charge which cannot ignite by pressure or friction and which on being ignited does not produce flame but produces huge amount of gas. Usually the gunpowder of the shotguns contains charcoal, pot, nitrate and sulphur. This combination of the gunpowder is known as black powder, as it produce much smoke. Now-a-days semi smokeless gun powder is in use in shot guns which is a combination of 80% of black powder and 20% of smokeless powder. Smokeless powder is ordinarily used in the cartridges of rifles (nitrocellulose or a combination of nitrocellulose and nitroglycerine). The black powder produces 200 - 300 ml. of gas per grain. In front of the gunpowder, inside the cartridge case, there is a thin cardboard disc. In front of the cardboard, disc is placed the wad. The wad is made of soft substance like, felt, cork, straw or rug. In front of the wad, there is another card board disc. In front of this disc, the pellets are placed. The pellets are spherical projectiles used in shot guns. Their size may be variable, according to the need and make. One ounce of pellets may consist of 6 to 2,600 of them. In front of the pellets there is another cardboard disc on the anterior margin of which the anterior margin of the cartridge case is twisted. The functions of the wad are to give compactness to the gunpowder, to prevent admixture of propellant charge and the pellets and prevent leakage of the gas produced after the firing. Wad also cleans the inner surface of the barrel after the pellets pass out through the barrel. To facilitate this cleaning, some greasy material is soaked in the wad. In between the propellant charge and the wad there is a cardboard disc so that the greasy substance in the wad will not be soaked by the propellant charge and become useless. In between the wad and the pellets there is a disc which in one hand prevents impregnation of the pellets in the soft wad and on the other, prevents leakage of the greasy substance from the wad in the pellets which would otherwise become adhesive to each other loosing their dispersion capacity. The anterior - most disc, placed in front of the pellets, give compactness to the pellets and the whole content of the cartridge case.

Shots of different sizes are suitable for different purposes. Accordingly "Buck shots" or "Bird shots" have different sized shots or pellets for hunting wild birds or other prey.

In some cases instead of multiple pellets a single hot or metallic ball, usually made up of lead, is used. "Rifled slugs" are single shot projectiles for shot guns with prominent parallel grooves on the surface."

26. In this book, the assessment of the direction of firing from the margin of the wound of entrance has also been given, which reads thus: p. 257 "Assessment of the direction of firing from the margin of the wound of entrance -

(i) (a) In case of shotgun injury, the pattern of dispersion of the pellets give the direction of the firing. The pellets disperse over wider area as it travels more. Hence firing is suspected to have been from the side opposite to the side of wider dispersion of the pellets. ......"

27. "Firearms in Criminal Investigation and Trials" was written by a distinguished professor Dr. B.R. Sharma. He has written in some detail about 12 bore guns. This book also defines Pellet Pattern which reads thus: p.204 "Pellet Pattern The area covered (pellet spread) by the pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered by the pellets. The spread of the pellets is affected mainly by the length of the barrel of the firearm and its muzzle characteristics (whether it is choked or not). The condition of the ammunition also affects the results. If experiments are performed with the same firearm and ammunition of the same make and batch, the test patterns provide fairly accurate estimates of the range.

Generally, the whole charge enters the body en masse up to a range of about two metres in a factory-made 12-bore shotgun. It forms a rat-hole of about two to six centimetres in diameter. The rat-hole is surrounded by individual holes when the range of fire is about two to seven metres..."

28. The trial court stated that in the FIR itself it is mentioned that the injuries to Brij Raj Singh were by pellets and that of the deceased by a bullet. The Ballistic Expert has stated that the cartridge containing pellets cannot contain a bullet. Accordingly, the trial court reasoned that two weapons were used.

29. The Ballistic Expert is a disinterested, independent witness who has technical knowledge and experience. It follows that the trial judge was fully justified in placing reliance on his report.

30. The trial court also observed that removing the body of the deceased from the place of occurrence creates doubt that the prosecution was planning to substitute another story for the real facts. As such, the possibility that the deceased and his group were the aggressors is not ruled out. It is possible that pharsa and lathi blows had made the marks that were found on the gun. The gun may have snatched all of a sudden, causing it to fire upon the deceased and Brij Raj. Under the circumstances of the case, the use of another weapon, which had caused injuries to Brij Raj Singh P.W.2, is also not ruled out.

31. The trial court further observed that the substratum of the prosecution story about the injuries to Brij Raj Singh is not established beyond reasonable doubt and the story of shooting the deceased by the same shot fired by the accused is not separable from other doubtful evidence of eye- witnesses. The circumstances show that the possibility of aggression on the part of the complainant side is not ruled out, then the benefit of doubt for killing the deceased by the accused would also go to the accused.

32. The trial court also found force in the plea of right of private defence as set up by the accused. The trial court mentioned that there is force in this argument where the circumstances of the case show that two fire arms were used in the occurrence. The accused was all alone in his house at that time. The availability of a second weapon is possible only when the complainant side had brought it to the scene. This circumstance supports the defence case, that the complainants' side was the aggressor and they had come armed with weapons to the scene. It follows that the accused would apprehend grievous hurt and danger to his life. Accordingly, the right of self defence was open to him.

33. In the concluding paragraph of the judgment, the trial court observed that when neither the prosecution nor the defence version is complete, then it is obvious that both the parties are withholding some information from the court. The burden of proving the charge to the hilt lies upon the prosecution. It has failed to discharge its burden. Thus, the benefit has to go to the accused. According to the trial court, the accused could not be convicted for the charges framed against him. He was entitled to get the benefit of doubt and, consequently, the accused had to be acquitted of the charges under sections 302, 307 and 323 IPC.

34. The State, aggrieved by the trial court's judgment, preferred an appeal before the High Court.

35. The High Court in appeal re-appreciated the entire evidence and came to the conclusion that the trial court's judgment was perverse and unsustainable. It therefore set aside the trial court judgment and convicted the accused under section 302 IPC for the murder of the deceased and under section 324 IPC for injuring Brij Raj Singh and sentenced him to life imprisonment and for six months R.I. respectively.

36. Against the impugned judgment of the High Court, the accused appellant has preferred appeal to this court. We have been called upon to decide whether the trial court judgment was perverse and the High Court was justified in setting aside the same or whether the impugned judgment is unsustainable and against the settled legal position?

37. We deem it appropriate to deal with the main reasons by which the trial court was compelled to pass the order of acquittal and the main reasons of the High Court in reversing the judgment of the trial court.

MAIN REASONS FOR ACQUITTAL BY THE TRIAL COURT:

38. The trial court acquitted the accused for the following reasons:

1. The prosecution story of single shot injury to two persons one standing horizontally and the other vertically stands totally discredited by the medical and the evidence of Ballistic Expert.

2. According to the FIR, the deceased received a spherical ball (ball shot) bullet injury and Brij Raj Singh P.W.2 received pellet injuries. The accused's gun had a cartridge that could only contain pellets. The Ballistic Expert has clearly stated that a cartridge containing pellets cannot contain a bullet. As such, it appears that two weapons were used.

3. Dr. Ram Kumar Gupta, P.W.5 who conducted the post-mortem of the deceased, clearly stated that the deceased received injuries from a bullet whereas Dr. Govind Prasad Bakara who had examined Brijraj Singh P.W.2 clearly stated that both injuries were caused by a pellet.

Therefore, according to medical evidence coupled with the evidence of the Ballistic Expert, two firearms must have been used.

This version is quite inconsistent with the prosecution story.

4. The injuries received by Brij Raj Singh P.W.2 were from the back side and the injury received by the deceased was from the front side and this shows that two weapons may have been used.

5. Removal of the body of the deceased from the place of occurrence also created doubt with regard to the veracity of the prosecution version.

6. The possibility that the deceased and the complainant's side were aggressors and had gone there and caused pharsa and lathi blows on the accused cannot be ruled out because of the marks on the gun Ex.3. That the said gun was fired in snatching all of a sudden, injuring the deceased also cannot be ruled out from the circumstances of the case.

7. The trial court did not discard the defence version of right of private defence as pleaded by the accused.

8. The trial court observed that it is difficult to separate falsehood from the truth, where some material aspects of the occurrence seem to have been deliberately withheld. It is a well- established principle of criminal jurisprudence that when two possible and plausible explanations co-exist, the explanation favourable to the accused should be adopted. MAIN REASONS FOR REVERSAL OF ACQUITTAL ORDER:

39. The High Court gave the following reasons for setting aside the acquittal:

1. A perusal of the post-mortem report goes to show that autopsy conducted on the dead body of the deceased revealed ante-

mortem gunshot wound of entry 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect having corresponding wound of exit 5 cm x 4 cm on right side back of neck 5 cm below right ear. Therefore, this injury was almost horizontal.

2. Medical examination of injured Brij Raj Singh revealed a round lacerated wound of entry 0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 on right side back 0.8 cm away and lateral from injury no. 1. Thus, this injury was also almost horizontal.

3. The observation made by the trial judge that firearm injury caused to the deceased was vertical and to that of Brij Raj Singh horizontal is wholly fallacious.

4. A layman does not understand the

distinction between a cartridge

containing pellets and the bullet. In

common parlance, particularly in villages when a person sustains injuries by gun shot, it is said that he has received `goli' injury. Ghurey Lal fired at his uncle with his gun causing him Goli (bullet) injury and Brij Raj Singh also received pellet (chhara) injury which goes to show that injuries received by them were caused by two different weapons. There is hardly any difference between bullet and pellet for a layman. From 12 bore gun cartridge is fired and 12 bore cartridge always contain pellets though size of pellets may be different.

5. A perusal of the post-mortem reports goes to show that autopsy conducted on the dead body of the deceased revealed ante- mortem gun shot wound of entry 2.5 cms.

through and through on right side neck 2 cm lateral to midline of neck front aspect having corresponding wound of exit 5 cm x 4cm on right side back of neck 5 cm below right ear. Therefore, this injury was almost horizontal.

6. The medical examination of injured Brij Raj Singh revealed a round lacerated wound of entry 0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury no.1. Thus, this injury was also almost horizontal.

7. The learned trial judge had noted the evidence of B. Rai, Ballistic Expert, C.W.1 that both the injuries would have been caused by two shots. While B. Rai, Ballistic Expert, C.W.1 had given the said opinion, he had also stated in his cross- examination by the prosecution that if the assailant fired from place `C' and the person receiving pellet injury standing at place `B' would have turned around, on dispersal of pellets he could have received the pellet injuries if deceased and injured both would have stood in the same line of firing.

OUR CONCLUSIONS:

40. We disagree with the High Court. Admittedly, the deceased died of a bullet injury whereas Brij Raj Singh, P.W. 2 received pellet injuries. It is well settled that a cartridge cannot contain pellet and bullet shots together. Therefore, the injuries on deceased and injured P.W. 2 clearly establish that two shots were fired from two different fire arms.

41. The High Court also observed that the laymen, meaning thereby the villagers, hardly know the difference between a bullet and a pellet. This finding has no basis, particularly in view of the statement of all the witnesses on record. Wherever the witnesses wanted to use `bullet' they have clearly used `Goli' or `bullet' and wherever they wanted to use `pellet' they have clearly used the word `Chharra' which means pellets, so to say that the witnesses did not understand the distinction between the two is without any basis or foundation.

42. Mr. Sushil Kumar, learned senior advocate appearing for the appellant, submitted that the judgment of the trial court was based on the correct evaluation of the evidence and the view taken by the trial court was definitely a reasonable and plausible. Therefore, according to the settled legal position, the High Court was not justified in interfering with the judgment of the trial court.

43. Shri Ratnakar Das, learned senior advocate appearing for the respondent State submitted that the impugned order of the High Court is consistent with the settled legal position. He submitted that once an order of acquittal is challenged then the appellate court has all the powers which are exercised by the trial court. We agree that the appellate court is fully empowered to re-appreciate and re-evaluate the entire evidence on record.

44. We deem it appropriate to deal with some of the important cases which have been dealt with under the 1898 Code by the Privy Council and by this Court. We would like to crystallize the legal position in the hope that the appellate courts do not commit similar lapses upon dealing with future judgments of acquittal.

45. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR 1934 Privy Council

227. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under: (at p. 230):

"..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.."

The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill- founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

46. This Court again in the case of Surajpal Singh & Others v. State, AIR 1952 SC 52, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:

"It is well established that in an appeal under S. 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

47. This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.

48. In Tulsiram Kanu v. The State, AIR 1954 SC 1, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.

49. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision.

50. The same principle has been followed in Atley v. State of U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the Court said:

"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."

51. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217. Bose, J. expressing the majority view observed (at p.220):

"It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab (AIR 1953 SC 76, at pp.77-78); and if the trial Court takes a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really strong reasons for reversing that view. Surajpal Singh v. State AIR 1952 SC 52 at

54."

52. In Balbir Singh v. State of Punjab AIR 1957 SC 216, this Court again had an occasion to examine the same proposition of law. The Court (at page 222) observed as under:

"It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."

53. A Constitution Bench of this Court in M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, observed as under:

"There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. ........

The test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.

The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court."

54. In Noor Khan v. State of Rajasthan, AIR 1964 SC 286, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:

"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

55. In Khedu Mohton & Others v. State of Bihar, (1970) 2 SCC 450, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observed as under:

"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal."

(emphasis supplied)

56. In Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793, the Court observed thus:

"An appellant aggrieved by the overturning of his acquittal deserves the final court's deeper concern on fundamental principles of criminal justice......

........ But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration, In our view the High Court's judgment survives this exacting standard."

57. In Lekha Yadav v. State of Bihar (1973) 2 SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:

"The different phraseology used in the judgments of this Court such as-

(a) substantial and compelling reasons:

(b) good and sufficiently cogent reasons;

(c) strong reasons.

are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified."

58. In Khem Karan & Others v. State of U.P. & Another AIR 1974 SC 1567, this Court observed:

"Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony."

59. In Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288, Justice Khanna speaking for the Court provided the legal position:

"22. It is well settled that the High Court in appeal under Section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses."

60. In Umedbhai Jadavbhai v. The State of Gujarat (1978) 1 SCC 228, the Court observed thus:

"In an appeal against acquittal, the High Court would not ordinarily interfere with the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice."

61. In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361, the Court observed thus:

"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.]"

{emphasis supplied}

62. In Tota Singh & Another v. State of Punjab (1987) 2 SCC 529, the Court reiterated the same principle in the following words:

"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."

(emphasis supplied)

63. In Ram Kumar v. State of Haryana 1995 Supp. (1) SCC 248, this Court had another occasion to deal with a case where the court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under:

".. the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse."

64. This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J&K, (1997) 7 SCC 677, the Court observed as under:

"8. ........ that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction........"

65. In Sambasivan & Others v. State of Kerala (1998) 5 SCC 412, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:

7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

66. In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:-

"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided."

67. In Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:

"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.

11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.

12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity."

(emphasis supplied)

68. In C. Antony v. K.G. Raghavan Nair, (2003) 1 SCC 1 had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:

"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court."

69. In State of Karnataka v. K. Gopalkrishna, (2005) 9 SCC 291, while dealing with an appeal against acquittal, the Court observed:

"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."

70. In The State of Goa v. Sanjay Thakran, (2007) 3 SCC 755, this Court relied on the judgment in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 and observed as under:

"15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. ... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."

The Court further held as follows:

"16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below."

71. In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415, this Court held:

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty.

The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

74. Had the well settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution.

75. We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquitting the accused and also the reasoning of the High Court for reversal of the judgment of acquittal. We have also dealt with a number of cases decided by the Privy Council and this Court since 1934. In our considered opinion, the trial court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. We are clearly of the opinion that the reasoning given by the High Court for overturning the judgment of the trial court is wholly unsustainable and contrary to the settled principles of law crystallized by a series of judgment.

76. On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position as explained above is that if the trial court's view is possible and plausible, the High Court should not substitute the same by its own possibl

Vijayee Singh And Ors vs State Of Uttar Pradesh on 20 April, 1990 Supreme court

From what has been discussed above it emerges that the presumption regarding the absence of existence of circum- stances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same. Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused. It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section/05 should be somewhat specific, therefore, it is difficult to reconcile both. But the gener- al principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason- able doubt, are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assump-

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1482 OF 2013

YOGESH SINGH … APPELLANT(S)

:Versus:

MAHABEER SINGH & ORS. … RESPONDENT(S)

is there any judgement of supreme court prior to this judgement of anwar p.v. 2014 or after this judgement of supreme court.

Vijayee Singh And Ors vs State Of Uttar Pradesh on 20 April, 1990

Supreme Court of India

Vijayee Singh And Ors vs State Of Uttar Pradesh on 20 April, 1990

Equivalent citations: 1990 AIR 1459, 1990 SCR (2) 573

Author: K J Reddy

Bench: Reddy, K. Jayachandra (J)

PETITIONER:

VIJAYEE SINGH AND ORS.

Vs.

RESPONDENT:

STATE OF UTTAR PRADESH

DATE OF JUDGMENT20/04/1990

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1990 AIR 1459 1990 SCR (2) 573

1990 SCC (3) 190 JT 1990 (2) 596

1990 SCALE (1)163

ACT:

Indian Evidence Act: Section 105--Burden of proof--What

is 'fact'--When proved--When 'disproved'--Presumption court

is entitled to draw--What is.

HEADNOTE:

14 accused were tried for offences under section 148 and

302 read with Section 149 of I.P.C. for the murder of two

persons named Mahendra Singh and Virendra Singh and injuries

to 3 others named Vijay Narain Singh, P.W. 1, Uma Shankar

Singh, P.W. 2 and Kailash Singh. Accused No. 6 Chirkut Singh

was further tried under Section 307 I.P.C. for attempting to

murder P.W. 1 and all the remaining accused under section

307 read with Section 149 I.P.C. for causing injuries to Uma

Shankar and Kailash Singh. The trial court relying on the

evidence of P.Ws 1 and 2 who were the main eye witnesses

convicted all the 14 accused under section 302 I.P.C. read

with Section 149 I.P.C. and awarded them life imprisonment.

The convicted accused preferred appeals to the High Court

and the State filed appeals for enhancement of their sen-

tence. A Division Bench of the Allahabad High Court consist-

ing of Justice Katju and Aggarwal heard the appeals. While

Justice Katju allowed the appeals by the accused and dis-

missed the State appeals, Justice Aggarwal disagreeing with

him, dismissed all the appeals, both by the accused and by

the State. Consequently the matter was referred to a third

judge. Justice Seth who confirmed the conviction and sen-

tence awarded to accused Nos. 1, 3, 4 and 6 only and acquit-

ted all the rest of the accused on the view taken by him

that the specific overt acts were attributable to only these

four accused and the rest should be given the benefit,of

doubt.

Criminal Appeals Nos. 375-377 of 1987 by special leave

were preferred by the convicted accused Nos. 1, 3, 4 and 6

and Criminal Appeals Nos. 372-374 of 1987 preferred by the

State against the acquittal of other accused. Accepting the

plea of the accused to the right of selfdefence but holding

that they had definitely exceeded this right when they went

to the extent of intentionally shooting the deceased to

death and therefore the offence committed was one punishable

under section

574

304 Part I I.P.C. and not under Section 302 read with Sec-

tion 149 I.P.C. Accordingly in partly allowing the Appeals

filed by the convicted accused and dismissing the State

appeals, this Court,

HELD: A fact is said to be "proved" when, after consid-

ering the matters before R, 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 upon the supposition that it exists. [596G-H]

A fact is said to be 'disproved' when, after considering

the matters before it, the Court either believes that it

does not exist, or considers its non-existence so probable

that a prudent man ought, under the circumstances of the

particular case, to act upon the supposition that it does

not exist. A fact is said to be "not proved" when it is

neither "proved" nor "disproved". [596H; 597A]

The maxim that the prosecution must prove its case

beyond reasonable doubt is a rule of caution laid down by

the Courts of Law in respect of assessing the evidence in

criminal cases. [601E]

Section 105 places "burden of proof' on the accused in

the first part and in the second part there is a presumption

which the Court can draw regarding the absence of the cir-

cumstances, which presumption is always rebuttable. Taking

the section as a whole the "burden of proof" and the pre-

sumption have to be considered together. It is exiomatic

when the evidence is sufficient as to prove the existence of

a fact conclusively then no difficulty arises. But where the

accused introduces material to displace the presumption

which may affect the prosecution,case or create a reasonable

doubt about the existence of one or other ingredients of the

offence and then it would amount to a case where prosecution

failed to prove its own case beyond reasonable doubt.

[601F-G]

The initial obligatory presumption regarding circum-

stances gets lifted when a plea of exception is raised. More

so when there are circumstances on the record, gathered from

the prosecution evidence, chief and cross examinations,

probabilities and circumstances, if any, introduced by the

accused, either by adducing evidence or otherwise creating a

reasonable doubt about the existence of the ingredients of

the offence. In case of such a reasonable doubt, the Court

has to give the benefit of the same to the accused. [601H;

602A]

The presumption regarding the absence of existence of

circumstances regarding the exception can be rebutted by the

accused by intro-

575

ducing evidence. If from such a rebuttal, a reasonable doubt

arises regarding his guilt, the accused should get the

benefit of the same. Such a reasonable doubt consequently

negatives one or more of the ingredients of the offence

charged, for instance, from such a rebuttal evidence, a

reasonable doubt arises about the right of private defence

then it follows that the prosecution has not established the

necessary ingredients of intention to commit the offence. In

that way the benefit of a reasonable doubt which arises from

the legal and factual considerations even under Section 105

of the Evidence Act should necessarily go to the accused.

[602C-E]

Section 3 is so worded as to provide for two conditions

of mind, first, that in which a man feels absolutely certain

of fact, in other words, "believes it to exist" and secondly

in which though he may not feel absolutely certain of a

fact, he thinks it so extremely probable that a prudent man

would under the circumstances act on the assumption of its

existence. [602G-H; 603A]

The Evidence Act while adopting the requirement of the

prudent man as an appropriate concrete standard by which to

measure proof at the same time contemplates of giving full

effect to be given to circumstances or condition of proba-

bility or improbability. It is this degree of certainty to

be arrived where the circumstances before a fact can be said

to be proved. [603D]

The general burden of establishing the guilt of accused

is always on the prosecution and it never shifts. Even in

respect of the cases covered by Section 105 the prosecution

is not absolved of its duty of discharging the burden. The

accused may raise a plea of exception either by pleading the

same specifically or by relying on the probabilities and

circumstances obtaining in the case. [606F-G]

In the instant case, as per the evidence of the material

witnesses, the two deceased were only proceeding alongwith

the rasta towards the pump set for taking bath. Even in the

plea set up by accused No. 6 it is not stated specifically

that deceased Nos. 1 and 2 were armed with any deadly weap-

ons. Therefore, the assailants had definitely exceeded the

right of private defence when they went to the extent of

intentionally shooting them to death by inflicting bullet

injuries. Therefore, the offence committed by them would be

one punishable under Section 304 Part I I.P.C. The convic-

tion of accused No. 1, 3, 4 and 6 under Section 302 read

with Section 149 I.P.C. and the sentence of rigorous impris-

onment for life awarded thereunder is set aside and instead

they are

576

convicted under Section 304 Part I read with Section 34

I.P.C. and each of them sentenced to undergo rigorous im-

prisonment for 10 years. Their other convictions/sentences

are confirmed the sentences to run concurrently. [608C-E]

Mohar Rai & Bharath Rai v. The State of Bihar, [1968] 3

S.C.R. 525; Lakshmi Singh & Ors. v. State of Bihar, [1976] 4

SCC 394; Pratap v. State of Uttar Pradesh, AIR 1976 S.C.

966; Woolmington v. The Director of Public Prosecutions,

[1935] Appeal Cases 462; Emperor v. U. Damapala, AIR 1937

Rangcon 83; Parbhoo & Ors. v. Emperor, AIR 1941 Allahabad

402; K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1

SCR 567; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat,

AIR 1964 S.C. 1563; Rishi Kesh Singh & Ors. v. The State,

AIR 1970 Allahabad 51; Bhikari v. State of Uttar Pradesh,

AIR 1966 S.C. 1; Behram Khurshed Pesikaka v. The State of

Bombay, [1955] 1 SCR 613; Government of Bombay v. Sakur, AIR

1947 Bombay 38; State of Uttar Pradesh v. Ram Swarup, AIR

1974 S.C. 1570; Mohd. Ramzani v. State of Delhi, AIR 1980

S.C. 1341; State v. Bhima Devraj, AIR 1956 Sau. 77; Miller

v. Minister of Pensions, [1947] 2 All ER 373; C.S.D. Swami

v. The State, AIR 1960 S.C. 7; V.D. Jhingan v. State of

Uttar Pradesh, AIR 1966 S.C. 1762; Harbhaian Singh v. State

of Punjab, AIR 1966 S.C. 97; Amjad Khan v. The State, [1952]

S.C.R. 567 and Puran Singh & Ors. v. State of Punjab, AIR

1975 S.C. 1674, referred to

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 375-77 of 1987.

From the Judgment and Order dated 22.10.1984 in the Allahabad High Court in Crl. A. Nos. 1925, 1808 of 1981 and Government Appeal No. 2599 of 1981.

R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli, Shivpujan Singh, Manoj Prashad, Dalveer Bhandari, T. Sridharan (N.P.) and B.S. Chauhan for the appearing parties. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. On 29.5. 1981 at about 8 A.M. a grave rioting took place in the village of Tirro in Varanasi District. 1n the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh received injuries. In respect of these offences 14 accused were tried under Sections 148 and 302 read with Sec. 149 I.P.C. Chirkut Singh, Accused No. 6 was tried for offence punishable under Section 307 I.P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307 read with Sec. 149 I.P.C. for causing injuries to Uma Shankar Singh, P.W. 2 and Kailash Singh. It is alleged that the material prosecution witnesses, deceased persons and the accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the courts. On the day of occur- rence at 8 A.M.P.W. 1 went to his pumping set. P.W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 were proceeding alongwith the rasta towards the pumping set for taking bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them. All the 14 accused emerged out of the Khandar. Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile Accused No. 4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other accused carrying lathis advanced towards P.W. 1 who ducked and escaped unhurt. Then the lathis-wielding accused assaulted P.W. 1 Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kailash Singh. P.W. 1 managed to escape and ran away. The trial court relying on the evidence of P.Ws. 1 and 2, who are the main eye witnesses, convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302 I.P.C. read with Section 149 I.P.C. The convict- ed accused preferred appeals. The State also filed appeal for enhancement of the sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals. Justice' Katju allowed the ap- peals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dis- missed all the appeals concurring with the trial court. The matter came up before a third Judge Seth, J. He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt. In that view of the matter he confirmed the convic-

tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the accused. Accused Nos. 1, 3, 4 and 6 applied for special leave which was granted by this Court and theft appeals are numbered as Criminal Appeal Nos. 375-77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos. 372-74/87.

It is contended on behalf of the State that the occur- rence has taken place in broad-day light and merely because the witnesses are interested their evidence cannot be re- jected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted. On the other hand, the counsel appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated. It is also their further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted. Before we consider these rival contentions some of the facts which are not indispute may be noted. There was a longstanding rivalry between the two groups. The time and place of occurrence are not in controversy. That the two deceased persons died of gun-shots injuries also is not in dispute. P.Ws. 1 and 2 also received injuries during the course of this occurrence.

The prosecution in support of its case examined P.Ws 1 to 11. P.W. 7 the Doctor examined P.W. 2 at about 11.40 A.M. on the same day and found 10 injuries. All of them were contusions and he opined that they might have been caused by a blunt object like lathi. On the same day, he examined P.W. 1 and on his person he found four contusions which could have been caused by Lathis. The Doctor also examined Kailash Singh, who was not examined as a witness. and found two contusions. P.W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun-shots wounds on the cranial cavity. Injury No. 1 is an entry wound and injury No. 2 is an exist wound. Then he conducted the autop- sy on the dead body of deceased No. 1. He found two in- juries, the first one is on the left nipple which is an entry wound and injury No. 2 is on the left palm. On internal examination he found a bullet embedded and the same was recovered. P.W. 5 is the Investi- gating Officer. After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead-bodies and recorded the statement of the witnesses. He also found two live cartridges one of 16 bore and another of 12 bore. P.W. 3 is another eye-witness. He deposed that Accused Nos. 1, 3, 4 and 6 were armed with- guns and the other were armed with lathis. Accused No. 1 fired at the deceased No. 1 and Accused No. 3 also fired at him as a result of which he fell down and when deceased No. 2 tried to move, Accused No. 4 shot at him and deceased No. 2 also fell down. When P.Ws 1, 2 and Kailash Singh rushed towards the place, accused No. 6 fired at P.W. 1 but he escaped. Then the lathi-wielding persons beat P.Ws 1 and 2 and Kailash Singh. To the same effect is the evidence of P .Ws 1 and 2 also. Under Section 3 13 Cr.P.C. all the circumstances appearing against the accused were put to them. They in general denied the offence. However, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their presence at the scene of occurrence. Accused No. 6 in par- ticular stated that P.W. 1 and others armed with guns, spears and lathis tried to do fishing in the pond in which accused No. 6 had a share. Accused No. 6 and others went to the pond for fishing. P.W. 1 and other challenged and they chased accused No. 6 and others and accused No. 13 was shot at by P.W. 1 and others and he and accused No. 14 were beaten with lathis and in defence he fired two gun shots hitting deceased Nos. 1 and 2. He then went to the police station and lodged a report and deposited his gun and that P.W. 1 has falsely implicated him. As regards this report which is purported to have been given by accused No. 6, P.W. 5 the Investigating Officer was questioned. He admitted that when he returned to the Police Station on 30th May, 1980 he came to know that, accused No. 6 has surrendered his gun. He also admitted in the cross examination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken. Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them. The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No.

13. It may be noted that the same has not been explained by the prosecution. P.W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skindeep 12" x 2" lacerat- ed wound on the left thigh and a wound certificate was issued. He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was refer-

red to the radiologist. P.W. 7, however, stated that he has not seen the report of the radiologist. The defence examined Dr. S.K. Singh as D.W. 1. He deposed that he took the X-ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit. He further deposed that the shadows in the X-ray go to show that there were 10 radio opaque round shadows and these shadows may very well corre- spond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone. His examina- tion further showed that the pallets remained embedded in the thigh.

Before the trial court as well as before the High Court, firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore, their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused. acted in fight of self-defence. Relying on the presence of gun-shots injuries on accused No. 13 it was strongly contended that the prosecution party have also used fire-arms and, there- fore, the accused were entitled to the fight of private defence. The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not suffer from any serious infirmity. So far as the plea of self-defence is concerned, the trial court held that the plea taken by accused No. 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on. As regards the presence of injuries on the accused persons, learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos. 13 and 14 took the view that they are simple and that it is not proved that these in- juries were received during the occurrence. Regarding the presence of the alleged gun-shots injuries on accused No. 13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time when this incident took place. In the appeal before the High Court, Justice Katju took the view that the theory that the injuries on accused Nos. 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No. 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No. 2 was fired by a 16- Bore gun and that as admitted by the Investigating Officer, P.W. 5, it was accused No. 6 only in that area who had a licence for 16-Bore gun which was deposited by him in the police station after the occurrence. Coming to the injuries found on accused Nos. 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye-witnesses have not fur- nished any explanation regarding those injuries and that these witnesses have falsely implicated some of the accused due to enmity and, therefore, their evidence cannot be relied upon and accordingly ordered total acquittal. As already men- tioned Justice Agrawal, on the other hand, agreed with the trial court completely. Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed. Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No. 14 was a simple one and he could have re- ceived that even subsequent to the occurrence. With regard to the gun-shots injuries found on accused No. 13 Mahendra Kahar, the learned Judge himself examined accused No. 13 who was present in the Court when the appeal was being heard and found that hard substance were palpable underneath the flesh round about the location of his injury. In the circumstances it does appear that fire-arm shots to exist underneath the location of injury found on the person of accused Mahendra Kahar. But he ultimately held that in all probability the pallets found in the leg of accused No. 13 Mahendra Kahar must have been there long before the incident, as in the view of the learned Judge it was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions. Seth, J. accordingly rejected the plea of self defence.

Before we advert to the above contentions it becomes necessary to consider whether the accused No. 13 Mahendra Kahar and accused No. 14 Sant Singh received the injuries during the course of occurrence. P.W. 7 the Doctor examined accused No. 13 Mahendra Kahar on 30.5. 1980 at about 6 A.M. and he found the following injuries.

1. Five tiny abrasions in the area of 4cm x 4cm on outer surface of fight thigh just above knee joint.

2. The injured complained of pain in the right thumb and left forearm.

In respect of injury No. 1 the Doctor advised X-ray with a view to ascertain whether or not there were pallets, and pending the same he reserved his opinion. P.W. 7 also opined that injuries appeared to have been caused within 24 hours preceding the medical examination which correspond to the time of occurrence, namely, 8 A.M. on 29.5. 1980. P.W. 7, however, stated that the X-ray report was not shown to him. The evidence of P.W. 7 makes it clear that accused No. 13 Mahendra Kahar received these injuries during the course of the occurrence. D.W. 1 is the Doctor who took the X-ray. He deposed that on 5.6.80 he took the X-ray of the fight thigh of the undertrial prisoner Mahendra Kahar accused No. 13 and the same is marked as Ex-Kha- 12. On the basis of the X-ray plate he opined that he noticed 10 radio opaque round shad- ows in the injured and they correspond to the pallets fired by some fire-arm. Justice Seth considered the evidence of these two Doctors. He also examined the accused in the Court and he found that hard substance were palpable underneath the flesh. As already mentioned he was of the view that these appeared to be pallets but according to him they must have been there long before the incident. The learned Judge took this view because he was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions. Having given our careful consideration we are unable to agree with the view taken by Seth, J.P.W. 7 the Doctor's evidence makes it clear that the external injuries were caused during this occur- rence only and underneath the same these pallets were found by the radiologist D.W. 1. The injuries are not self-in- flicted. Therefore, there is no basis whatsoever to presume that the pallets under the flesh must have been there al- ready even before this occurrence took place. As a matter of fact accused No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there was an injury. P.W. 7 having examined him found that there were 10 ' radio opaque round shadows underneath the injury and it was only for that reason he referred the injured to the radiologist and D.W. 1 the radiologist after taking the X-ray concluded that under- neath the injury pallets discharged from a fire-arm were embedded in the flesh. Therefore, the only view that is possible is that accused No. 13 Mahendra Kahar received gun-shot injuries during the course of this occurrence only. P.W. 7 also examined accused No. 14 Sant Singh on the same day. He found a skin-deep 12' x2' lacerated wound vertically inflicted on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain. The Doctor pointed out that the injury was simple and could have been caused by blunt weapon like a lathi. The injury was also stitched. It is suggested by the prosecution that this could have been a self-inflicted one but again there is no basis for such presumption. The Investigating Officer said that on finding the injury on him he was sent for medical examination. As a matter of fact accused No. 6 in his statement under Section 313 stated that accused Nos. 13 and 14 received injuries and he also went to the police station and lodged a report to that effect. It, therefore, emerges that accused No. 13 received gun-shot injuries and accused No. 14 received lacerated injury during the course of the same occurrence and these injuries must have been caused by some member belonging to the prosecution party.

Now the question is whether the prosecution has ex- plained these injuries and if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automat- ically be rejected, without any further probe. He placed considerable reliance on some of the judgments of this Court. In Mohar Rai & Bharath' Rai v. The State of Bihar, [1968] 3 SCR 525, it is observed:

"Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabi- lised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circum- stances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecu- tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the inci- dent is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."

In another important case Lakshmi Singh and Ors. v. State of Bihar, [1976] 4 SCC 394, after referring to the ratio laid down in Mohar Rai's case, this Court observed: "Where the prosecution fails to explain the injuries on the accused, two results follow:

(1) that the evidence of the prosecution witnesses is un- true; and that the injuries probabilise the plea taken by the appellants.

It was further observed that:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occur-

rence or in the course of altercation is a very important circumstance from 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 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."

Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected. We are unable to agree. In Mohar Rai's case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case also it is observed that any non-expla- nation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume 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. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. In the instant case, the trial court as well as the two learned Judges of the High Court accepted the prosecu- tion case as put forward by P.Ws 1 to 3 in their evidence. The presence of these three witnesses could not be doubted at all. P.Ws 1 and 2 are the injured witnesses and P.W. 1 gave a report giving all the details. However, he attributed specific overt acts to accused Nos. 1, 3, 4 and 6 and made an omnibus allegation against the remaining accused. It is for this reason that Justice Seth found it to be safe to convict only accused Nos. 1, 3, 4 and 6 who are the appellants before us. P.Ws 1, 2 and 3 are the eye witnesses. We have carefully considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly untrustwor- thy. No doubt they have not explained the injuries found on accused Nos. 13 and 14. From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true ver- sion. Though they are interested, we find that their evi- dence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecu- tion party.

As discussed above we are satisfied in this case that nonexplanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non-explanation of injuries found on these two accused is that the accused could have had a right of pri- vate defence or at any rate a reasonable doubt arises in this regard.

The learned counsel for the defence, however, submits that if for any reason the prosecution case in its entirety is not rejected because of the non-explanation of the in- juries found on these two accused, yet the right of private defence of the accused cannot be denied and that on that score also these four convicted accused are entitled to an acquittal. It is also their submission that a careful exami- nation of the provisions of Sections 96, 99 and 102 I.P.C. would show that on a reasonable apprehension of grievous hurt or death the accused had a right even to the extent of causing the death of the assailants and they cannot be expected to modulate this right in such a situation and that in the instant case these four appellants were justified even to the extent of causing death of the two deceased by inflicting gun-shot wounds. In this' context it is also submitted that the plea taken by accused No. 6, Chirkut Singh that he shot at the two deceased persons in self- defence cannot be brushed aside.

We should at this juncture point out that the plea taken by accused No. 6, Chirkut Singh does not commend itself. The same appears to be an after-thought. The observation report and other circumstances in the case would show that there were no fishing operations in the pond. Therefore, the plea of accused No. 6, Chirkut Singh that fishing operations were going on in the pond and that he and some of the other accused went there and that was the genesis and the origin of the occurrence, has no basis whatsoever. On the other hand, the evidence of the eye-witnesses regarding the time, place and manner of occurrence in general, as put forward by the prosecution, cannot be doubted at all.

We shall now consider the submission whether the accused had the right of self-defence. Learned counsel for the State contended that if the accused want to claim the benefit of the general or special exception of the right of private defence then they should plead and discharge the burden by establishing that they are entitled to the benefit of excep- tion as provided under Section 105 of the Evidence Act. In other words, the submission is that the burden of proof of the existence of such a right is on the accused and that in the instant case the accused have not discharged the burden and that mere presence of simple injuries on the accused cannot necessarily lead to an inference that they had a right of self-defence. We have already held that having regard to the facts and circumstances of the case, mere non-explanation of these injuries by the prosecution cannot render the whole case unacceptable. We have also held that those injuries on one of the accused No. 13, Mahendra Kahar were inflicted by a fire-arm during the same occurrence. Under these circumstances, the important question that we have to consider is whether the accused should be denied the benefit of an exception on the ground that the accused have not discharged the necessary burden of establishing their right to the benefit of the exception beyond all reasonable doubt just like the prosecution is bound under Section 102 of the Evidence Act, or if upon a consideration of the evidence as a whole and the surrounding facts and circum- stances of the case, a reasonable doubt is created in the mind of the court about the existence of such a right wheth- er the accused, in such a situation, is entitled to the benefit of the said exception, i.e. the right of private defence. If so, whether they have exceeded the same?

The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for consid- erable time the opinions of the Courts were not uniform. As a matter of fact, in Partap v. State of U.P., AIR 1976 SC 966, this Court noted "that the question of law that arises here seems to have troubled several High Courts."

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 of 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" occuring in the Section are very signifi- cant. It is wellsettled that "this burden" which rests on the accused does not absolve the prosecution from discharg- ing 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 under Section 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] Appeal Cases 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 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 enti- tled 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 ... Through- out 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 wheth- er the prisoner killed the deceased with a malicious inten- tion, 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 prosecu- tion 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 princi- ples 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 plead- ed, the accused is entitled to be acquitted if upon a con- sideration 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 pan of the Penal Code is on him and the Court shall presume the absence of such circumstances. This presumption is rebuttable. In Parbhoo and Ors. v. Emperor, AIR 1941 Allahabad 402, 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 prose- cution 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 therefrom 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 majori- ty 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 evi- dence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circum- stances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evi- dence 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] Suppl. 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. But when an accused relies upon the General Excep- tions 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 presump- tion. Under that Section the Courts shall presume the ab- sence 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 prosecu- tion 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 prose- cution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real. Indeed, there is no conflict at all."

In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 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, under Section 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. Under Section 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 circum- stances 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 suffi- cient to make it consider the existence of the said Circum- stances 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, satisfied 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 reasona- ble 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 or impliedly overrules or is in conflict with the majority view in Parb- hoo's case. However, in Rishi Kesh Singh & Ors. v. The State, AIR 1970 Allahabad 51, 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 also including the Nanavati's case; Bhikari v. State of Uttar Pradesh, AIR 1966 SC 1 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's case [1941] All LJ 619=AIR 1941 All 402 (FB). 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 Sec. 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's case [1941] All LJ 619=AIR 1941 All 402 (FB). I find it based on these three propositions which provide the ratio decidendi and this is all that needs t6 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; first- ly, a lifting of the initial obligatory presumption given at the end of Sec. 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 ac- cused'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 re- lates 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 persons 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 excep- tion; 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 the ingre- dients 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 under Section 105 can rely also on the probabilities. As observed in Dahyabhai's case "the accused will have to rebut the presumption that such circum- stances did not exist" by placing material before the court which satisfies the standard of a prudent man and the mate- rial may consist of oral and documentary evidence, presump- tions, admissions or even the prosecution evidence and the material 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. 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. However, in Behram Khurshed Pesikaka v. The State of Bombay, [1955] 1 SCR 6 13 there is a specific reference to Parbhoo's case and Woolmington's case while considering the scope and the manner of the expression 'burden of proof', in the judgment of Hon' Venkatarama Ayyar, J. But the learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High Court in Government of Bombay v. Sakur, AIR 1947 Bombay 38 has taken a different view.

In State of U.P.v. Ram Swarup, AIR 1974 SC 1570 a Bench consisting of M.H. Beg, J., as he then was, Y.V. Chandrachud and V.R. Krishna lyer, JJ., while considering the right of private defence put forward by the accused to some extent went into the question of burden of proof under Section 105 and a reference is made to a decision of the larger Bench in Rishi Kesh Singh's case. Chandrachud, J. who spoke for the Bench, observed thus:

"The judgment in Rishikesh Singh v. State, AIR 1970 All 51 explains the true nature and effect of the different types of presumptions arising under Section 105 of the Evidence Act. As stated is that judgment, while the initial presump- tion regarding the absence of circumstances bringing the case within an exception may be met by showing the existence of appropriate facts, the burden to establish a plea of private defence by a balance of probabilities is a more difficult burden to discharge. The judgment points out that despite this position there may be cases where, though the plea of private defence is not established by an accused on a balance of probabilities, yet the totality of facts and circumstances may still throw a reasonable doubt on the existence of "mensrea" which normally is an essential ingre- dient of an offence. The present is not a case of this latter kind."

We may also refer to a judgment of a Bench of three Judges consisting of M.H. Beg, P.N. Bhagwati and R.S. Sarkaria, JJ. in Partap's case. Sarkaria, J. speaking for himself and Bhagwati, J. observed:

"We have carefully scrutinised the judgments of the courts below. In our opinion, their finding in regard to the plea of self-defence is clearly erroneous. They appear to have overlooked the distinction between the nature of burden that rests on an accused under Sec. 105, Evidence Act to estab- lish a plea of self-defence and the one cast on the prosecu- tion by Section 101 to prove its case. It is wellsettled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere pre- ponderance of probability."

Beg, J., however in a separate judgment felt a doubt about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities. But in his view what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt. Beg, J. referred to the judgments of the Full Bench in Parbhoo's case; Nana- vati's case and the larger Bench decision in Rishi Kesh Singh's case and applying the principles of benefit of doubt laid in the above three cases to the facts of the case before them observed:

"Applying the principle of benefit of doubt as I had exp-

lained above, to the plea of private defence of person in the instant case. I think that, even if the appellant did not fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against Partap on an essential ingredient of the offence of murder; the required mensrea. After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non-production of the better evidence available which, for some unexplained reason, was not produced. I am not satisfied that the plea of private defence of person can be reasonably ruled out here. This is enough, in my opinion, to entitle the appellant to get the benefit of doubt. ' ' In Mohd. Ramzani v. State of Delhi, AIR 1980 SC 134 1 Sar- karia, J., who spoke for the Bench, observed that the onus which rests on the accused person under Section 105, Evi- dence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prose- cution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. There- fore, the contrary view taken by the Bombay High Court in Sakur's case and in State v. Bhima Devraj, AIR 1956 Sau. 77 that the burden is entirely on the accused to establish that he is entitled to the benefit of the exception, does not lay down the correct law.

At this stage it becomes necessary to consider the meaning of the words "the Court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. 'From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, 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 upon the supposition that it exists. A fact is said to be "disproved" when, after consid- ering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved."

The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prose- cution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.

It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows:

"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."

Another passage at page 48 reads as follows:' "In criminal cases the prosecution discharge their eviden- tial burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prose- cution has so succeeded fare greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the eviden- tial burden by defence is not a pre-requisite to an acquit- tal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner .....No matter what the charge ..... 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 enter- tained.

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In many cases, however, the accused's defence will involve introducing new issues, for example, automatism, provoca- tion, self-defence, duress, etc. Once there is any evidence to support such "explanations" the onus of disproving them rests upon the prosecution. The accused, either by cross- examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence." Dealing with the presumptions of law, the author has noted on page 60, thus:

"Generally in criminal cases (unless otherwise directed by statute and subject to 4-15 ante) the presumption of inno- cence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments b

reportable judgement of anwar p.v of supreme court ,latest judgement

Anvar v. Basheer and the New (Old) Law of Electronic Evidence.

The Supreme Court of India revised the law on electronic evidence. The judgment will have an impact on the manner in which wiretap tapes are brought before a court.

The case

On 18 September 2014, the Supreme Court of India delivered its judgment in the case of Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) to declare new law in respect of the evidentiary admissibility of the contents of electronic records. In doing so, Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600, popularly known as the Parliament Attacks case, and re-interpreted the application of sections 63, 65, and 65B of the Indian Evidence Act, 1872 (“Evidence Act”). To appreciate the implications of this judgment, a little background may be required.

The hearsay rule

The Evidence Act was drafted to codify principles of evidence in the common law. Traditionally, a fundamental rule of evidence is that oral evidence may be adduced to prove all facts, except documents, provided always that the oral evidence is direct. Oral evidence that is not direct is challenged by the hearsay rule and, unless it is saved by one of the exceptions to the hearsay rule, is inadmissible. In India, this principle is stated in sections 59 and 60 of the Evidence Act.

The hearsay rule is both fundamental and complex; a proper examination would require a lengthy excursus, but a simple explanation should suffice. In the landmark House of Lords decision in R v. Sharp [1988] 1 All ER 65, Lord Havers – the controversial prosecutor who went on to become the Lord Chancellor – described hearsay as “Any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted.” This definition was applied by courts across the common law world. Section 114 of the United Kingdom’s (UK) Criminal Justice Act, 2003, which modernised British criminal procedure, uses simpler language: “a statement not made in oral evidence in the proceedings.”

Hearsay evidence is anything said outside a court by a person absent from a trial, but which is offered by a third person during the trial as evidence. The law excludes hearsay evidence because it is difficult or impossible to determine its truth and accuracy, which is usually achieved through cross examination. Since the person who made the statement and the person to whom it was said cannot be cross examined, a third person’s account of it is excluded. There are a few exceptions to this rule which need no explanation here; they may be left to another post.

Hearsay in documents

The hearsay rule is straightforward in relation to oral evidence but a little less so in relation to documents. As mentioned earlier, oral evidence cannot prove the contents of documents. This is because it would disturb the hearsay rule (since the document is absent, the truth or accuracy of the oral evidence cannot be compared to the document). In order to prove the contents of a document, either primary or secondary evidence must be offered.

Primary evidence of the contents of a document is the document itself [section 62 of the Evidence Act]. The process of compelling the production of a document in court is called ‘discovery’. Upon discovery, a document speaks for itself. Secondary evidence of the contents of a document is, amongst other things, certified copies of that document, copies made by mechanical processes that insure accuracy, and oral accounts of the contents by someone who has seen that document. Section 63 of the Evidence Act lists the secondary evidence that may prove the contents of a document.

Secondary evidence of documentary content is an attempt at reconciling the hearsay rule with the difficulties of securing the discovery of documents. There are many situations where the original document simply cannot be produced for a variety of reasons. Section 65 of the Evidence Act lists the situations in which the original document need not be produced; instead, the secondary evidence listed in section 63 can be used to prove its content. These situations arise when the original document (i) is in hostile possession; (ii) has been stipulated to by the prejudiced party; (iii) is lost or destroyed; (iv) cannot be easily moved, i.e. physically brought to the court; (v) is a public document of the state; (vi) can be proved by certified copies when the law narrowly permits; and (vii) is a collection of several documents.

Electronic documents

As documents came to be digitised, the hearsay rule faced several new challenges. While the law had mostly anticipated primary evidence (i.e. the original document itself) and had created special conditions for secondary evidence, increasing digitisation meant that more and more documents were electronically stored. As a result, the adduction of secondary evidence of documents increased. In the Anvar case, the Supreme Court noted that “there is a revolution in the way that evidence is produced before the court”.

In India before 2000, electronically stored information was treated as a document and secondary evidence of these electronic ‘documents’ was adduced through printed reproductions or transcripts, the authenticity of which was certified by a competent signatory. The signatory would identify her signature in court and be open to cross examination. This simple procedure met the conditions of both sections 63 and 65 of the Evidence Act. In this manner, Indian courts simply adapted a law drafted over one century earlier in Victorian England. However, as the pace and proliferation of technology expanded, and as the creation and storage of electronic information grew more complex, the law had to change more substantially.

New provisions for electronic records

To bridge the widening gap between law and technology, Parliament enacted the Information Technology Act, 2000 (“IT Act”) [official pdf here] that, amongst other things, created new definitions of “data”, “electronic record”, and “computer”. According to section 2(1)(t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche” (sic).

The IT Act amended section 59 of the Evidence Act to exclude electronic records from the probative force of oral evidence in the same manner as it excluded documents. This is the re-application of the documentary hearsay rule to electronic records. But, instead of submitting electronic records to the test of secondary evidence – which, for documents, is contained in sections 63 and 65, it inserted two new evidentiary rules for electronic records in the Evidence Act: section 65A and section 65B.

Section 65A of the Evidence Act creates special law for electronic evidence:

65A. Special provisions as to evidence relating to electronic record. – The contents of electronic records may be proved in accordance with the provisions of section 65B.

Section 65A of the Evidence Act performs the same function for electronic records that section 61 does for documentary evidence: it creates a separate procedure, distinct from the simple procedure for oral evidence, to ensure that the adduction of electronic records obeys the hearsay rule. It also secures other interests, such as the authenticity of the technology and the sanctity of the information retrieval procedure. But section 65A is further distinguished because it is a special law that stands apart from the documentary evidence procedure in sections 63 and 65.

Section 65B of the Evidence Act details this special procedure for adducing electronic records in evidence. Sub-section (2) lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used: (i) at the time of the creation of the electronic record, the computer that produced it must have been in regular use; (ii) the kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer; (iii) the computer was operating properly; and, (iv) the duplicate copy must be a reproduction of the original electronic record.

Sub-section (4) of section 65B of the Evidence Act lists additional non-technical qualifying conditions to establish the authenticity of electronic evidence. This provision requires the production of a certificate by a senior person who was responsible for the computer on which the electronic record was created, or is stored. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the device that created it, and certify compliance with the technological conditions of sub-section (2) of section 65B.

Non-use of the special provisions

However, the special law and procedure created by sections 65A and 65B of the Evidence Act for electronic evidence were not used. Disappointingly, the cause of this non-use does not involve the law at all. India’s lower judiciary – the third tier of courts, where trials are undertaken – is vastly inept and technologically unsound. With exceptions, trial judges simply do not know the technology the IT Act comprehends. It is easier to carry on treating electronically stored information as documentary evidence. The reasons for this are systemic in India and, I suspect, endemic to poor developing countries. India’s justice system is decrepit and poorly funded. As long as the judicial system is not modernised, India’s trial judges will remain clueless about electronic evidence and the means of ensuring its authenticity.

By bypassing the special law on electronic records, Indian courts have continued to apply the provisions of sections 63 and 65 of the Evidence Act, which pertain to documents, to electronically stored information. Simply put, the courts have basically ignored sections 65A and 65B of the Evidence Act. Curiously, this state of affairs was blessed by the Supreme Court in Navjot Sandhu (the Parliament Attacks case), which was a particularly high-profile appeal from an emotive terrorism trial. On the question of the defence’s challenge to the authenticity and accuracy of certain call data records (CDRs) that the prosecution relied on, which were purported to be reproductions of the original electronically stored records, a Division Bench of Justice P. Venkatarama Reddi and Justice P. P. Naolekar held:

According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge.

Flawed justice and political expediency in wiretap cases

The Supreme Court’s finding in Navjot Sandhu (quoted above) raised uncomfortable questions about the integrity of prosecution evidence, especially in trials related to national security or in high-profile cases of political importance. The state’s investigation of the Parliament Attacks was shoddy with respect to the interception of telephone calls. The Supreme Court’s judgment notes in prs. 148, 153, and 154 that the law and procedure of wiretaps was violated in several ways.

The Evidence Act mandates a special procedure for electronic records precisely because printed copies of such information are vulnerable to manipulation and abuse. This is what the veteran defence counsel, Mr. Shanti Bhushan, pointed out in Navjot Sandhu [see pr. 148] where there were discrepancies in the CDRs led in evidence by the prosecution. Despite these infirmities, which should have disqualified the evidence until the state demonstrated the absence of mala fide conduct, the Supreme Court stepped in to certify the secondary evidence itself, even though it is not competent to do so. The court did not compare the printed CDRs to the original electronic record. Essentially, the court allowed hearsay evidence. This is exactly the sort of situation that section 65B of the Evidence Act intended to avoid by requiring an impartial certificate under sub-section (4) that also speaks to compliance with the technical requirements of sub-section (2).

When the lack of a proper certificate regarding the authenticity and integrity of the evidence was pointed out, this is what the Supreme Court said in pr. 150:

Irrespective of the compliance of the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.

In the years that followed, printed versions of CDRs were admitted in evidence if they were certified by an officer of the telephone company under sections 63 and 65 of the Evidence Act. The special procedure of section 65B was ignored. This has led to confusion and counter-claims. For instance, the 2011 case of Amar Singh v. Union of India (2011) 7 SCC 69 saw all the parties, including the state and the telephone company, dispute the authenticity of the printed transcripts of the CDRs, as well as the authorisation itself. Currently, in the case of Ratan Tata v. Union of India Writ Petition (Civil) 398 of 2010, a compact disc (CD) containing intercepted telephone calls was introduced in the Supreme Court without following any of the procedure contained in the Evidence Act.

Returning sanity to electronic record evidence, but at a price

In 2007, the United States District Court for Maryland handed down a landmark decision in Lorraine v. Markel American Insurance Company241 FRD 534 (D. Md. 2007) that clarified the rules regarding the discovery of electronically stored information. In American federal courts, the law of evidence is set out in the Federal Rules of Evidence. Lorraine held when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible: (i) is the information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and (v) does its probative value survive the test of unfair prejudice?

In a small way, Anvar does for India what Lorraine did for US federal courts. In Anvar, the Supreme Court unequivocally returned Indian electronic evidence law to the special procedure created under section 65B of the Evidence Act. It did this by applying the maxim generalia specialibus non derogant (“the general does not detract from the specific”), which is a restatement of the principle lex specialis derogat legi generali (“special law repeals general law”). The Supreme Court held that the provisions of sections 65A and 65B of the Evidence Act created special law that overrides the general law of documentary evidence [see pr. 19]:

Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B ofthe Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

By doing so, it disqualified oral evidence offered to attest secondary documentary evidence [see pr. 17]:

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.

The scope for oral evidence is offered later. Once electronic evidence is properly adduced according to section 65B of the Evidence Act, along with the certificate of sub-section (4), the other party may challenge the genuineness of the original electronic record. If the original electronic record is challenged, section 22A of the Evidence Act permits oral evidence as to its genuineness only. Note that section 22A disqualifies oral evidence as to the contents of the electronic record, only the genuineness of the record may be discussed. In this regard, relevant oral evidence as to the genuineness of the record can be offered by the Examiner of Electronic Evidence, an expert witness under section 45A of the Evidence Act who is appointed under section 79A of the IT Act.

While Anvar is welcome for straightening out the messy evidentiary practice regarding electronically stored information that Navjot Sandhuhad endorsed, it will extract a price from transparency and open government. The portion of Navjot Sandhu that was overruled dealt with wiretaps. In India, the wiretap empowerment is contained in section 5(2)of the Indian Telegraph Act, 1885 (“Telegraph Act”). The Telegraph Act is an inherited colonial law. Section 5(2) of the Telegraph Act was almost exactly duplicated thirteen years later by section 26 of the Indian Post Office Act, 1898. When the latter was referred to a Select Committee, P. Ananda Charlu – a prominent lawyer, Indian nationalist leader, and one of the original founders of the Indian National Congress in 1885 – criticised its lack of transparency, saying: “a strong and just government must not shrink from daylight”.

Wiretap leaks have become an important means of discovering governmental abuse of power, corruption, and illegality. For instance, the massive fraud enacted by under-selling 2G spectrum by A. Raja, the former telecom minister, supposedly India’s most expensive corruption scandal, caught the public’s imagination only after taped wiretapped conversations were leaked. Some of these conversations were recorded on to a CD and brought to the Supreme Court’s attention. There is no way that a whistle blower, or a person in possession of electronic evidence, can obtain the certification required by section 65B(4) of the Evidence Act without the state coming to know about it and, presumably, attempting to stop its publication.

Anvar neatly ties up electronic evidence, but it will probably discourage public interest disclosure of iniquity.