In Re: Veerabahu Konar

Ramamurti, J.—The crucial point which arises for consideration in this appeal is whether the Appellant has made out an absolute right of private defence; on the admitted and established facts of the case, we have not the slightest hesitation in holding that the Appellant has clearly established such a right and he has to be acquitted. In view of the statement of the Appellant u/s 342 Crl. P.C., there is no serious controversy that the deceased died as a result of the cut injuries inflicted by the Appellant. The learned Sessions Judge has unnecessarily devoted a considerable portion of his judgment in discussing that portion of the occurrence about which there is no controversy, with the result that his discussion about the crucial point is diffused and he has not come into grips with the real problem.

As regards the crucial point about the occurrence, that is the precise circumstances under which the Appellant inflicted injuries upon the deceased, there has been very clever manipulation and artificial spacing of events to make it appear that at the moment when the injuries were inflicted upon the deceased, he was unarmed and was chased by the Appellant and thereafter the cut injuries were inflicted. As we shall presently show, P.W., 1, the son of the deceased who was present throughout the occurrence along with his mother, P. W. 2, has given a false and truncated version in the first information report deliberately suppressing an inseparable and integral part of the occurrence in an attempt to make out that the occurrence is capable of being conveniently dissected into two distinct parts. This artificiality, so much relied upon by the prosecution is apparent on the face of the record and is exposed by the very witnesses relied upon by the prosecution.

[The discussion of the facts is omitted-Ed.]

The very fact that the prosecution itself at one stage tried to treat P. W. 3 as hostile shows that he is unreliable.

When there is direct conflict between the evidence of P. W. 1 who gave the FIR and P. W. 2 on the one hand and P. W. 3 on the ether, with regard to the main occurrence, the prosecution cannot claim to have established the guilt of the accused beyond reasonable doubt. The statement of the accused is not on the face of it false or incredible. He did sustain injuries inflicted by the aruval and stick and the case presented by him for exercising his right of self-defence is a plausible theory. It well fits in with the background of the occurrence, especially when the party of the prosecution are the aggressors. In such a context, it is settled law that even though the accused has not conclusively established the right of self defence as raised by him he would still be entitled to the benefit of doubt. The real question is not whether the accused has conclusively and completely established his right of self defence fully proving his version of the episode but whether in view of the truncated, false and suppressed version given by the prosecution, the accused is not raising a plausible theory that in all probability his version may be the true one. The instant case is clearly governed by the well-established principles which have been reiterated in the recent decision of this Court to which I was a party in Lakshmanan and Others Vs. Lakshmanan and Another, . It is sufficient to extract the following statement of the law at page 46:

Learned Public Prosecutor also relied upon S. 105 of the Evidence Act and contended that the burden was upon the accused to clearly bring his case u/s 100 I.P.C. It is undoubtedly true that when a person is accused of an offence the burden of proving the existence of circumstances bringing the case within S. 100, is upon the accused and the question really is when can the accused be said to have discharged this burden. One view to take may be that the burden is upon the accused to establish that the prosecution party were clearly the aggressors and that the accused merely retaliated in defence. The other view is that in a criminal trial the important factor is that the accused is entitled to the benefit of every reasonable doubt and that as an offshoot thereof when the accused offers a reasonable excuse of his conduct, then even though he cannot prove his assertions they should ordinarily be accepted as true unless circumstances conclusively prove that they are false. The courts have taken the latter view as the sounder one entitling the accused to the benefit of doubt especially when the prosecution has not come forward with the true version but has suppressed a material and integral portion of the incident giving rise to a plausible plea of private defence.

It is again established law that there is a duty cast upon the prosecution not to suppress any fact favourable to the accused and not to indulge in embellishments and refinements with a view to deprive the accused his right of private defence and that if the evidence of the prosecution is discrepant and false with embellishments made to the detriment of the accused, the accused is entitled to the benefit of the reasonable doubt�vide observations of the Patna High Court in Narayan Raut Vs. Emperor, .The same principle has been laid down by the Supreme Court in Aher Raja Khima Vs. The State of Saurashtra, that the accused is entitled to the benefit of the reasonable doubt and that even though he is not in a position to completely prove his assertions, they should ordinarily be accepted unless the circumstances of the case demonstrate them to be false. The same principle was reiterated in K.M. Nanavati Vs. State of Maharashtra, in which Subba Rao, J. as he then was, observed that the failure of the accused to conclusively establish all the circumstances bringing the case under the exceptions does not absolve the prosecution of its responsibility to establish the ingredients of the offence and take away the accused''s right to an acquittal on the basis of a reasonable doubt. It is too late in the day to question the well-established principle in criminal trials that even though the materials placed by the accused are insufficient to make out the exception, they would be adequate and sufficient to raise a reasonable doubt in the minds of the court to warrant an acquittal. We may also refer to the recent Full Bench decision of the Allahabad High Court in Rishi Kesh Singh and Others Vs. The State, in which the Full Bench consisting of nine Judges had to consider the scope of S. 105 of the Evidence Act when a plea of right of private defence is raised by the accused and whether the earlier Full Bench decision in Parbhoo and Others Vs. Emperor, which was followed by the Full Bench of this Court in Lakshmanan and Others Vs. Lakshmanan and Another, already referred to is good law. The Full Bench in a majority of 7 Judges held that when a plea of self-defence is raised as an exception, the plea can be shortly demarcated consisting of three stages depending upon the evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. The three stages are: (1) a lifting of the initial obligatory presumption u/s 105; (2) the creation of a reasonable doubt about the existence of an ingredient of the offence and (3) a complete proof of the exception by a preponderance of probability. The majority of the Full Bench also observed that the accused is not entitled to an acquittal if his plea does not come beyond the first stage. At the second state he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage he is acquitted on his completely establishing his right of self-defence to the satisfaction of the court. What is relevant for our purpose is that the majority view upheld the view of the earlier Full Bench decision in Parbhoo and Others Vs. Emperor, followed by this Court in Lakshmanan and Others Vs. Lakshmanan and Another, that even if the materials placed by the accused fail to satisfy the court affirmatively that the accused has fully established his plea he would still be entitled to an acquittal provided the accused has placed materials raising a reasonable doubt as to the circumstances giving rise to the exception, in the sense that the prosecution has not established the guilt of the accused beyond reasonable doubt. As observed by the Supreme Court in the latest decision i Vidhya Singh Vs. State of Madhya Pradesh, the right of private defence is an important and valuable right and it has a social purpose and that right should not be construed narrowly.

For all these reasons, we give the benefit of doubt to the accused and acquit him. His appeal is allowed and the conviction and sentence imposed by the learned Sessions Judge is set aside and the accused shall be set at liberty forthwith.