Elucidate the credibility of Defence evidence is a murder trial ?

Our Evidence Act has clearly provided for three kinds of conclusion a Court may arrive at. The negative conclusion, falling under “not proved” reminds one of the verdict “not proven” which a jury may return in Scotland as an alternative to either of the two other verdicts, “guilty” or “not guilty”, which are the only ones open to a jury in England. In England, however, the verdict of “not guilty” covers a case in which the prosecution has failed to prove its case “beyond reasonable doubt” as well as a case where an accused pleading an exception establishes it fully so that the prosecution case is disproved.

Section 105 of the Act Is really a part of a general statement of principles derived from English Common Law rules 

Section 105, Indian Evidence Act, states:

“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

When an accused pleads an exception in the Indian Penal Code, the burden of proof lies upon him. Parties are not agreed as to the manner in which the burden may be discharged. One can conceive three different modes: (1) by proving the exception beyond all reasonable doubt; (2) by proof through preponderance of probabilities; and (3) by creating a reasonable doubt in the mind of the Court.

According to Section 3 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court 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. It will be seen that a fact may be said to be proved under one of the two possible situations. Either the Court believes that the fact exists, or the Court considers existence of the fact probable. There is no indication in Section 3 of the Evidence Act that a fact can be said to be proved, even when the Court entertains a reasonable doubt as to whether the fact exists or not.

Unless an accused person is given the benefit of reasonable doubt on an exception, there will be miscarriage of justice in many cases. Suppose two persons, A and B quarrel at a lonely place, and cause injuries to each other. They are both prosecuted in two cross-cases. In neither case will the accused be able to produce an independent witness to prove that he was the victim of an assault by his opponent. The plea of private defence will fail in each case. The result will be that each case will end in conviction. In most of such cases the accused in one case ought to be acquitted. The same difficulty will arise, when an accused pleads the right of private defence of property, but is unable to collect reliable evidence in support of his plea.

In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, it was observed on page 101:

“Where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds ‘in proving a preponderance of probability’.”

Similarly, in V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 it was observed on page 1764:

“It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability.”

Likewise, in Munshi Ram v. Delhi Administration, AIR 1968 SC 702, it was observed on page 703:

“It is well settled that even if an accused does not plead self-defence it is open to the Court to consider such a plea if the same arises from the material on record ……… The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.”

It will be seen that it is settled law that when the burden of proof lies upon an accused person under Section 105, Indian Evidence Act, that burden can be discharged by showing preponderance of probabilities. This position is inconsistent with the stand taken by the majority of the Full Bench in Parbhoo’s case, 1941 All LJ 619 = (AIR 1941 All 402) (FB) that it is sufficient for purposes of defence that the accused should create a reasonable doubt in the mind of the Court whether the accused person is entitled to the benefit of the exception or not, preponderance of probabilities implies balance of evidence. In order to succeed, the accused must make out balance of evidence in his favour. The Court may entertain a reasonable doubt even if the balance of evidence is in favour of the prosecution So, creating reasonable doubt cannot be equated with proof by preponderance of probabilities.

Although a reasonable doubt arising under an exception may not secure an acquittal as a matter of course, in some cases the accused can secure an acauittal indirectly. There may be cases where, although the exception has not been proved, the evidence on record creates a doubt as regards some element which is an ingredient of the offence. Suppose, the accused is charged with an offence involving a certain intention or a certain object as an ingredient. It may happen that, as a result of the attempt of the accused to establish a particular exception, he succeeds in shaking the prosecution case as regards the necessary intention or object which is an ingredient of the offence. In such a case the accused will have to be acquitted. The reason of acquittal will be, not proof of the exception but failure of the prosecution to prove a necessary ingredient of the offence.

Whenever an accused person raises a plea based on some general exception, the burden of proof lies upon him under Section 105, Indian Evidence Act. That burden has to be discharged by preponderance of probabilities. So far as the accused is concerned, the standard of proof is the same as the standard of proof for a plaintiff or a defendant in civil proceedings. The accused cannot always secure an acquittal by merely creating a reasonable doubt in the mind of the Court as to whether the accused person is entitled to the benefit of the exception or not. If the nature of the case is such that a reasonable doubt arises as regards some ingredient of the offence, the accused is entitled to an acquittal. In other cases, a reasonable doubt as regards a certain exception will not entitle the accused to an acquittal.

An accused who puts forward a plea based on a general exception in the Indian Penal Code is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea based on such a general exception) a reasonable doubt is created in the mind of the Court whether the accused person is entitled to the benefit of the said exception is still good law.

Section 105 of the Evidence Act

The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence. Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in Section 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of Section 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (See Sections 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Sections 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see Section 80 of the Indian Penal Code). In the first case the burden of (the) proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution: the accused against whom a presumption is drawn under Section 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in Section 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of Section 300, Indian Penal Code on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of Section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. 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; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.

Principle of criminal jurisprudence

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 Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being ah exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall 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 circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a “prudent man.” If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of “prudent man” the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.

Rebuttable evidence by Accused

Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to acquittal This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act.

The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. In  a case where the accused had pleaded alibi; but a suggestion of self-defence was made in the cross-examination of the prosecution witnesses. Defence evidence on this plea was also adduced. It was observed that it was open to the Court to consider such a plea if the same arose from the material on record.

In Phipson’s Evidence (10th ed p. 838), it is pointed out: “The chief function of a rebuttable presumption of law is to determine upon whom the burden of proof rests, using that term in the sense of adducing evidence.” Wigmore, the celebrated American authority of the law of Evidence, dealing with the “Legal Effect of a Presumption” (See, 3rd ed.

Vol. IX. p. 289) explains:–

“……….It must be kept in mind that the peculiar effect of a presumption ‘of law (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion ‘in the absence of evidence to the contrary’ from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule.” Again, he observed (3rd ed., Vol. IX, p. 230): “It is, therefore, a fallacy to attribute (as do some judges) an artificial probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary. For example, if death be the issue, and the fact of absence for seven years unheard from be conceded, but the opponent offers evidence that the absentee, before leaving, proclaimed his intention of staying away for ten years, until a prosecution for crime was barred, this satisfies the opponent’s duty of producing evidence, removing the rule of law; and when the case goes to the jury, they are at liberty to give any probative force they think fit to the fact of absence for seven years unheard from, It is not weighed down with any artificial additional probative effect; they may estimate it for just such intrinsic effect as it seems to have under all the circumstances. This much is a plain consequence in our mode of jury trial; and the fallacy has arisen through attempting to follow the ancient continental phraseology, which grew up under the quantitative system of evidence, fixing artificial rules for the judge’s measurement of proof.”

Administration of justice in India

In the administration of justice in India, Law prevails over equity and good conscience, and consequently the provisions of the statute must be given their full effect unless the enactment is held to be unconstitutional or invalid and it is only in the absence of an enactment that the matter can be decided on the principles of equity. In other words, it would be possible for the Courts of law to depart from the provisions contained in Section 105 of the Evidence Act only if it can be held that the Evidence Act is not a complete Code by itself. If it is a complete Code it shall not be possible to depart from its provisions on the ground of injustice or inequity. Its provisions must be given their full effect. It is now a settled law that the Evidence Act is a complete Code, not for assessment of evidence but for evidence which can be adduced in any suit or proceeding, the circumstances in which such evidence can be adduced and also on whom the burden of proof lies. This shall be evident from the preamble and also Section 5 thereof. Repeal of Section 2 of the Evidence Act shall make no difference as the repeal of a provision does not revive the provisions which had been repealed by the repealed provision. In other words, by the repeal of a provision there is no reenactment of the provisions which had earlier stood repealed. (See Maharaja Sris Chandra Nandy v. Rakhalananda, AIR 1941 PC 16: Collector of Gorakhpur v. Palakdhari Singh, (1890) ILR 12 All 1 (FB) and T.W. King v. Mrs. F.E. King, AIR 1945 All 190.

Human mind does not like a machine move in only the prescribed manner. Ordinarily the judge hearing the case shall take an over-all view of the evidence irrespective of the mode that may be laid down for assessment of the evidence and independently of the question of the burden of proof, whether placed on the prosecution or on the accused; and he shall decide beforehand whether the evidence on record is sufficient for conviction or the accused is entitled to honourable acquittal or to the benefit of doubt. But to remove any misapprehension about the two categories, it would be desirable to lay down which matters must be decided before a formal opinion is expressed on the defence plea.

Offence of murder

The offence of murder is defined in Section 300, I.P.C. This section by itself says that:–

“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or ………..”

Every homicide is not murder. It is only culpable homicide which can amount to murder. The word ‘culpable’ means criminal or blame-worthy. Consequently, the intention or knowledge contemplated by Section 300, I.P.C. must be a criminal
or guilty one. Where it appears that the intention or knowledge is not criminal or illegal, the causing of death cannot be said to be culpable and it shall not be ‘culpable homicide’, that is, murder. In the circumstances, it must be held that the intention or knowledge contemplated by Section 300, I.P.C. is a criminal or guilty intention knowledge, and not mere intention or knowledge. To make this point more clear it must be mentioned that it is a well established rule that “unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.” Such observations made an Brend v. Wood, (1946) 110 JP 317 (318) were quoted with approval by their Lordships of the Privy Council in Srinivas Mall v. Emperor, 49 Bom LR 688 = (AIR 1947 PC 135). Consequently, the ingredients of the offence under Section 300, I.P.C. are the doing of an act by which the death is caused, and the doing of the act with the intention, that is, criminal intention to cause death. Where the accused seeks the benefit of the General Exceptions contained in Sections 80 and 84, I.P.C., what he implies to mean is that he did not have the guilty intention at the time he caused the death. Consequently, at the initial stage the Court shall have to consider whether the prosecution has established beyond doubt that the death of the person was caused by or is the result of the act done by the accused. If so satisfied, the defence plea shall be looked into whether the accused has succeeded to rebut the presumption, that, is to disprove the absence of the circumstances contemplated by the above sections. Once the accused succeeds in establishing his plea, he would deserve acquittal on account of there being no guilty intention; it is a different thing that he may be liable to conviction of the lesser offence; but if the accused is not successful in disproving the absence of circumstances, the Court of law shall still have to see whether the ingredient of criminal intention, that is, mens rea has been established by the prosecution beyond reasonable doubt. It is then that a reasonable doubt created in the mind of the Court as to the defence plea shall lead to the inference that the guilty intention has not been established beyond reasonable doubt and on this ground the guilt of the accused as to the main offence shall be deemed not to have been established beyond doubt and he shall be acquitted. From the practical point of view the accused is being given the benefit of the Exception pleaded by him; but, in the eye of law, the benefit of reasonable doubt is of the ingredients of the offence, and not of the Exception pleaded by him. The above case admittedly falls in the second category mentioned above.

in view of Section 6 of the Indian Penal Code and Section 221 (5) of the Criminal Procedure Code all the Exceptions, whether “General” or special are parts of the offence, and hence ingredients thereof and they must be established beyond doubt by the prosecution, has, in my opinion, no force. Section 6 merely lays down that every definition of an offence shall be understood subject to General Exceptions even though not repeated in such definition. The effect of Section 6 is to incorporate the General Exceptions in every definition of an offence. For example, while reading. Section 300, I.P.C. we shall have to include therein not only the Exceptions 1 to 5 detailed therein, but also the General Exceptions contained in Sections 76 to 106, I.P.C. The offence would still be as defined in the main part of Section 300, I.P.C. and the rest shall be Exceptions. If the burden of proving the Exception is placed on the accused, it shall be necessary for him to discharge this burden. Section 6 cannot thus affect application of Section 105 of the Evidence Act. In other words, Section 6 can be of no help in considering the scope of Section 105 of the Evidence Act.

Similarly, Section 221 (5) of the Criminal Procedure Code provides that-

“The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.” Illustration thereof is as below:–

“(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in Sections 299 and 300 of the Indian Penal Code; that it did not fall within any of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to Section 300, or that, if it did fall within Exception I, one or other of the three provisos to that exception apply to it.”

Section 221 (5). Cr. P.C. is a procedural clause and cannot affect the rights and liabilities of the parties, nor can it affect the burden of proof, that is, which party must establish a particular fact or matter in issue. Apparently, this provision was incorporated to make it clear that it is for the accused to plead the benefit of the Exception, and if no such plea is raised, the Court shall assume that the Exception did not exist, and on the main ingredients being established the accused can be convicted of such offence.

Preponderance of probability

the definition of “preponderance of evidence” as in vogue in America. In American Jurisprudence. 2nd Edition, Volume 30, the expression has been defined in Article 1164. In America the term means “the weight, credit and value of the aggregate evidence on either side, and is usually considered to be synonymous with the term greater weight of the evidence”, or “greater weight of the credible evidence”. It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of “preponderance of evidence”.

 The phrase “preponderance of probability” appears to have been taken from Charles R. Cooper v. F.W. Slade, (1857-59) 6 HLC 746. The observations made therein make it clear that what “preponderance of probability” means is “more probable and rational view of the case”, not necessarily as certain as the pleading should be.

 On the basis of the definition of the words “proved”, “disproved” and “not proved”, as contained in Section 3 of the Evidence Act, a similar inference can be drawn. The term “proved” is defined as below:–

“A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

When the evidence is of a overwhelming nature and is conclusive, there shall exist no dispute, nor shall there be any doubt and the Court can say that the fact does exist, but in criminal trials, where the accused claims the benefit of the Exception, there cannot be any evidence of such a nature. Very often there is oral evidence which may be equally balanced. In the circumstances, the case of the prosecution or of the defence has to be accepted or rejected on the basis of probabilities. Section 3 of the Evidence Act by itself lays down that a fact is said to be proved when, after considering the matters before it, the Court 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. This is what is meant by the “test of probabilities” or the “preponderance of probabilities.”

Discharging Burden by Accused

The term “shall presume” has been defined in Section 4 of the Evidence Act and means that the Court “shall regard the fact as proved unless and until it is disproved.” Reading Section 105 of the Evidence Act with the definition of the terms “shall presume” as contained in Section 4, it must be held 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 unless and until it is disproved. “Disproved” is different to “not proved.” In Section 3 the meaning of the terms “proved” and “disproved” has been given and the term “not proved” is defined “neither proved nor disproved”. Consequently, if the accused is unable to disprove the absence of circumstances, that is, prove the existence of the circumstances, the case would fall in the category of “not proved” and, in the eye of law, the burden imposed by Section 105 shall not stand discharged. In other words, the accused has to prove the existence of the circumstances bringing the case within the Exception and he shall be deemed to have discharged the burden of proof only when the Court considers the existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In other words, no question of the benefit of doubt arises while the Court is considering the question of the existence of circumstances bringing the case within the Exception. On the basis of doubt the contention can be rejected or the case of the party not accepted; but to accept a case not free from doubts, that is, to accept a doubtful case, is not warranted by the Evidence Act. In this view of the matter the accused can be deemed to have discharged the burden of proof only when he is in a position to disprove the absence of circumstances, that is, is able to discharge the onus in the manner the plaintiff or the defendant must in a civil proceeding. It would be a wrong proposition of law to say that in criminal trials where there exists a reasonable doubt in the mind of the Court, the Exception pleaded be deemed to have been proved. Section 105 of the Evidence Act makes no difference between the Exceptions or provisos contained in one enactment or the other. In the circumstances, the rule applicable to the General Exceptions under Sections 80 and 84, I.P.C. shall apply with equal force to the other General Exceptions contained in the Indian Penal Code or the special exceptions or proviso contained in this Code or in other enactments.

The burden placed on the accused is not so onerous as on the prosecution. The prosecution has to prove its case beyond reasonable doubt, but in determining whether the accused has been successful in discharging the onus, the Court shall look into the preponderance of probabilities in the same manner as in a civil proceeding. In other words, the Court shall have to see whether a prudent man would, in the circumstances of the case, act on the supposition that the case falls within the exception or proviso as pleaded by the accused. 

Plea of private defence

Every offence against which a plea of private defence can be taken requires a state of mind or mens rea on the part of the accused to be proved by the prosecution. This is usually gathered by circumstances raising a presumption about the intention. The defence may give some evidence pointing in another direction. This may actually negative mens rea as was the case in Amjad Khan v. The State, AIR 1952 SC 165, where the Supreme Court pointed out that a reasonable apprehension of death or grievous hurt may justify killing in exercise of a right of private defence even before an actual attack on a person had commenced. In some cases, the defence may while falling short of negativing mens rea, be only able to show that its existence has become doubtful. In such cases, according to the view of the majority in Parbhoo’s case, the accused would be entitled to an acquittal because the prosecution has failed to discharge its special burden of eliminating doubts. The accused may have failed to prove his plea but he gets a benefit which, whether it is called the benefit of the exception pleaded or of doubt on the whole case, is available to him only because he has succeeded in throwing the existence of an ingredient of the offence into the region of reasonable doubt.

Crime of homicide

Crime may be described as an act or omission prohibited by law and made punishable by it. In this sense not every act of killing is a crime. To cite some examples of killing which are not forbidden by law but are in fact permitted by it, we may take a case where the killing is by way of execution of a prisoner sentenced to death by a Court competent to do so by the executioner appointed by lawful authority for that purpose. In cases of such homicides, which have sometime been described as “justifiable homicide”, no crime can be said to have been committed and consequently no one can be found guilty for its commission. Likewise a case in which the accused pleads having committed homicide in the exercise of right of his private defence of person or property and also successfully establishes his claim, would, in our opinion, fall in the, same class. A person who kills another in order to save his own life cannot be said to have committed an act prohibited by law or a crime. If an accused claims protection of the Exception mentioned in Section 96 of the Indian Penal Code and fails to establish affirmatively by preponderance of probabilities that he had acted in exercise of the right claimed, but the evidence on record, taken as a whole, creates a doubt that the claim made by the accused might reasonably be true, then the matter becomes doubtful whether an unlawful homicide has taken place at all. In such a case a corresponding doubt is created as to whether an act prohibited by law has been committed and consequently the accused cannot be found guilty of a crime which remains in the region of doubt. He will, in spite of his having failed to discharge the burden placed on him by Section 105 of the Evidence Act, be entitled to the benefit of doubt and acquittal.

In a case where the accused claims to have committed homicide in the exercise of his right of private defence either of person or of property and fails to satisfy the Court affirmatively that he had such a right but only succeeds in creating a reasonable doubt regarding the correctness of his claim, it is not, in our opinion, quite accurate to say that one of the ingredients of the offence of culpable homicide, as defined in Section 299 of the Indian Penal Code, or the mens res is wanting. The offence of culpable homicide is fully defined in Section 299 and the mens rea necessary for the offence are also expressly enumerated in the section itself. There are three species of mens rea in Section 299 of the Indian Penal Code: (1) An intention to cause death; (2) an intention to cause bodily injury likely to cause death; (3) knowledge that death is likely to be caused. When an accused has killed another to protect his own life, he did have the intention to kill. In fact in most cases it is not denied by him that he had the requisite intention or knowledge. He merely claims that he was motivated by the desire to save his own life. To equate motive with mens rea would result in a confusion of legal conepts. “Mens rea” has been defined by Glanville Williams in his “Criminal Law, The General Part Second Edition” as follows:

“What, then, does the legal mens rea means. It refers to the mental element necessary for particular crime and this mental element may be either intention to do the immediate act or bring about the consequence or (in some crime) recklessness as to such act or consequence”.

In this sense of the expression, when a person commits homicide in exercise of the right of private defence either of property or of person, the element of mens rea contemplated by Section 299 of the Indian Penal Code is undoubtedly present. Thus where a reasonable doubt is created with regard to the claim of an accused to the protection of the Exception provided for by Section 96 of the Indian Penal Code, the accused becomes entitled, in our opinion, to the benefit of doubt and acquittal not because an ingredient of the offence under Section 299 of the Indian Penal Code or its mens rea becomes doubtful, but because a doubt is created as to whether the act attributed to him amounts to a crime at all. We find support for the view we are taking from the following passages from Russell on Crime, XI Edition:

“The new conception that merely to bring about a prohibited harm should not involve a man in liability to punishment unless in addition he could be regarded as morally blameworthy came to be enshrined in the well known maxim actus non facitreum, nisi mens sit rea. This ancient maxim has remained unchallenged as a declaration of principle at common law throughout the centuries up to the present day. So long therefore, as it remains unchallenged no man should be convicted of crime at common law unless the two requirements which it envisages are satisfied, namely, that there must be both a physical element and a mental element in every crime … … ..

A clear analysis of the requirements of law for the establishment of criminal liability demands a term which indicates the physical element alone, entirely distinct from that mental element which the old maxim so sharply set in opposition to it. For this purpose lawyers have for some time been in the habit of employing the expression actus reus thus using the adjective reus to qualify the noun actus in the same way as the maxim used it fin the feminine form), to qualify the noun mens in both cases then it means “legally prohibited” or “legally reprobated”. Thus it is logically possible and correct to advance the legal proposition that for criminal liability at common law there must be not only an actus reus but also a mens rea, each distinct from the other………….

On this footing the word actus carries only a factual significance, i.e. that a human deed has been effected. The addition of the word reus carries the further significance that in the factual circumstances of the deed there is a situation which the law has forbidden to be brought about. To have killed a man is, without more, an actus of no precise legal kind; it is a “homicide” and we do not vet know for certain if the law has forbidden that particular killing. If however there is for example evidence that the killing was the execution of ^a condemned prisoner by the legally appointed executioner, then it is an actus which the law, far from forbidding has indeed commanded, and therefore, it is not an actus reus; and it is described as a “justifiable homicide”, a homicide in accordance with, and not against, the law. Again if the death had been caused by a surgeon in the course of an operation which was recognised by him and by the medical profession in general to be dangerous (in the sense that it was medically advisable to risk the known chance that even when conducted with the best of skill and care it might cause the patient’s death), this will be a risk which the law does not forbid to be taken but permits to be taken, and the killing will not be an actus reus……………

However harmful or painful an event may be it is not an actus reus unless the law in the particular circumstances of the case has forbidden it to be brought about. The duly appointed executioner who has put to death a convicted criminal in accordance with his sentence has killed a man with deliberate intent so to do, but he has committed no crime because the deed was not prohibited, but was actual commanded, by the law; again, the use in certain circumstances of even deadly force by any citizen in the prevention of the commission of a crime by another person, or in the arrest of one who has committed a felony, does not give rise to criminal liability. Similarly the law does not prohibit a limited chastisement of a child by a parent or schoolmaster, nor the causing of hurt in the course of many sports and games or in the performance of a surgical operation by one duly qualified. That the deed was not prohibited by law is a complete defence for the man who had done that deed, for although the actus was his, yet in the special circumstances of his case it was not reus”.

Governing laws for defence Evidence 

Section 313 of Cr.P.C. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court–

a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

Sec 233. Entering upon defence

(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

 


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