Parbhoo And Ors.

vs Emperor on 16 September, 1941

Allahabad High Court

Parbhoo And Ors. vs Emperor on 16 September, 1941
Equivalent citations: AIR 1941 All 402
Author: Braund
ORDER Braund, J.

1. This is a criminal appeal which though not in itself a matter of major importance, raises a
question which, to my mind, is of such far-reaching consequence that it appears to me to be my duty
to refer it to the Chief Justice with a recommendation that it be put up before a Full Bench of the
Court. In order to explain the point which is causing me so much trouble I cannot avoid setting out
some of the facts. It appears that, owing to the shifting of the course of a certain river, a piece of land
had during the last few years appeared. It is this land which is the subject of the dispute which gave
rise to the quarrel, and ultimately ended in the fight, which is the subject-matter of the present
charge. In order to put the matter in the smallest possible compass, it is enough to say that there
were two rival sets of claimants to the land which had been thus exposed by the changing of the
river's course. For the sake of convenience these two rival sets of claimants can be called "Genda's
party," on the one hand, and "Ganeshi's party" on the other hand. The one fact that we know for
certain is that, at about 2 P.M., on 26th November 1940, Genda's party and Ganeshi's party met on
the land in question and set about each other with lathis with the result that the four appellants at
least out of Genda's party were injured, while several casualties occurred among Ganeshi's party,
including Ganeshi himself, who ultimately died. Those are the facts we know for certain. As a result
of this and of the subsequent cross information reports which were laid at the police station on the
same evening, cross cases were brought against some eleven men out of Genda's party, on the one
hand and some sixteen men out of Ganeshi's party, on the other hand. Out of Genda's party, the
present appellants were convicted and now appeal and out of Ganeshi's followers five men at least
were convicted and are the appellants in the cross appeal which will have to be dealt with in a
moment.

2. So far as the present appellants are concerned, it must be taken as admitted that they or some one
or more, of them actually dealt the blows which resulted in the injuries to Ganeshi's men. There is
no doubt about that. No question of identity arises. There may ultimately be some question about
"common intention," but that is not material at this stage. The real controversy in the case arises out
of the appellant's plea of self-defence. The prosecution story was that Ganeshi's party went to the
field in question and were wantonly attacked by Genda's party without any provocation being
offered to them. If that were true, it would be an end of the matter, and no question of self-defence
would arise. The appellant's version, however, was that they had already sown a crop in the land and
were deliberately attacked by Ganeshi's men, in consequence of which they had in self-defence to
employ their lathis to protect themselves. The controversy of fact, therefore, at the trial can be said
to have revolved itself entirely round the question whether it was Genda's men who started it or
whether, as the appellants said, it was Ganeshi's party who did the attacking in the first place with
the result that the appellant had to defend themselves.

3. At the trial, apart from certain evidence as to whether the appellants had sown a crop in the land
or not, a good deal of evidence was adduced for the purpose of trying to show who it was that began

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

the fight. But when carefully examined, it appears that there were really only two actual
eye-witnesses who have been able to say that they were present there and saw the beginning of the
fight. They are the prosecution witnesses, Harpal, who is himself accused in the cross case, and
Chamela, who also is involved in the other case. If the matter ended there and that were the only
evidence before the Court, no doubt the Court would have been obliged to convict. But the
appellants then adduced evidence on their own behalf in support of their plea of self-defence. Again,
this plea of self-defence involved as its principal point, the question of who it was thafe started the
fight. The defendants therefore, produced two witnesses, Bhagwat and Chhajju, who said that they
saw the beginning of the affair and that it was Ganeshi's party who started assaulting Genda's men.

4. At that point therefore the position really was that, apart from certain evidence, as to possession,
the importance of which I myself think is apt to be exaggerated, there were in reality two direct
witnesses on either side. The learned Judge however at the trial came to a conclusion of fact lying
half way between both stories. He relied on the evidence of Yakub Ali, Amin Singh and Balwant, the
prosecution witnesses 7, 5 and 4. What he had found had probably happened was that both parties
had set out to enforce their rights over the field in question; and in short, that both were equally to
blame. Now, in my opinion, the manner in which cases of self-defence and, indeed, all cases in
which one of the exceptions in the Penal Code is pleaded-have to be approached is this. It is
necessary for the prosecution first to establish a prima facie case that, apart from any question of an
exception, the offence charged has been committed. In this case, I think that at the close of the
prosecution case they had succeeded in doing this and, if the matter had stopped there, it would
have been necessary to convict. The next stage is that the defence relies upon an exception-in this
case the exception of self-defence. Section 96, Penal Code, says that : "Nothing is an offence which is
done in the exercise of the right of private defence." The defence therefore pleaded was that what
was done was not an offence because it was done in the exercise of the right of private defence. By
Section 105, Evidence Act, it is provided : "When a person is accused of any offence, the bur. den of
proving the existence of circumstances bringing the case within any of the general exceptions in the
Penal Code" - the right of self-defence is one of the general exceptions - "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."

5. The appellants therefore having raised an exception in the form of the plea of self-defence, found
themselves faced with the "burden of proof" (whatever that may mean) and they found themselves,
moreover, faced with the concluding words of Section 105, Evidence Act, that "the Court shall
presume the absence of such circumstances." In this case they have adduced evidence, and I may say
at once that that evidence is not conclusive to my mind as substantive proof beyond reasonable
doubt of such circum-stances as amount to a case of self-defence. I am unable to go so far as to
accept the evidence of the appellants as discharging the burden of proof which lay upon them, if the
words "burden of proof" are to be read as meaning the duty of satisfying the Court affirmatively that
such circumstances did actually exist as could maintain a plea of self-defence. The position therefore
at that point was that the prosecution had to my mind prima facie proved a case of the inflicting of
voluntary hurt by the appellants which, had no evidence been offered by the defence at all, would
have been sufficient to sustain a conviction. The appellants, on the other hand, had offered evidence,
in support of their plea of self-defence which leaves me with a doubt as to whether what they say is

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

true or not. Now it is at that point that the difficulty begins.

6. There appear to me to be two ways of looking at the matter. The first is that, when once the
accused have offered evidence in support of an exception, which evidence fails affirmatively to
establish that exception, then the Court is thrown back simply upon the question whether the
offence has been committed, without regard to any question of the exception at all. In other words,
the only issue remaining in the case is whether the original offence-that is the offence of inflicting
voluntary hurt-was, as a matter of fact, committed by the appellants and in considering that all
question of self-defence is precluded by virtue of the initial failure of the accused affirmatively to
establish that plea and by virtue of the concluding words of Section 105, Evidence Act. If that is the
right way of looking at it, the Court would have to reason that, the plea of self-defence having failed
in the sense that it had not been established beyond a reasonable doubt, therefore the only
remaining question was whether, in fact, the appellants or any of them did hit the members of
Ganeshi's party. The only issue that remains is the bare issue of inflicting voluntary hurt. That is one
way of looking at it, and if that is the right view, then it would appear to me that in this case it may
possibly (though I am not now deciding it) be necessary to come to the conclusion that the
prosecution has established by its evidence that the appellants did inflict voluntary hurt.

7. There is, however, another point of view which has been brought into recent prominence as a
result of the English case in the House of Lords in Woolmington v. Director of Public Prosecutions
Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83 and a decision of a Full Bench of the Rangoon
High Court in Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83. The latter case was one in
which, in its earlier stages, I was myself involved and I am not free from some slight embarrassment
in throwing open to debate a decision of the Rangoon Full Bench which, in the first place, supported
a decision of my own. That case also contained a question of self-defence and what I understand the
learned Chief Justice and two other Judges of the Rangoon High Court to have decided is that, in a
case in which a plea of self-defence has been taken and has failed to satisfy the Court beyond a
reasonable doubt, it still remains open to the accused person to use that evidence as part of the
entire evidence in the case for the purpose of showing that a reasonable doubt exists, not merely of
whether the accused committed the" offence itself, but even of whether, in committing the offence,
he may not have been acting in self-defence. In other words, it seems to me to give to the accused
person the right of saying that he had produced evidence of circumstances tending to show the
exercise of a right of self-defence and that, notwithstanding that that evidence was not conclusive
beyond a reasonable doubt, he is still entitled to the benefit of his plea of self-defence if the Court is
left in doubt whether, after all, it might not possibly have been a case of self-defence. The point, as I
understand it, is put by Dunkley J. at p. 682 in the passage in which he says:

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

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

8. The learned Judge by his use of the words "whether such circumstances do exist or not" makes it
clear that the accused is in his opinion entitled to the benefit of the doubt, not only as to whether
there was culpable homicide or voluntary hurt as the case may be, but also as to whether that
culpable homicide or voluntary hurt was the result of self-defence. In short, upon this view, he is
entitled to the benefit of the reasonable doubt both as to the substantive offence and as to the
exception. The question is whether that can be reconciled with the concluding words of Section 105,
Evidence Act. The learned Chief Justice of the Rangoon High Court put it slightly differently but,
with great respect, I think he meant the same thing. He said:

...Put shortly, the test is not whether the accused has proved beyond all reasonable doubt that he
comes within any exception to the Penal Code, but whether in setting up his defence he has
established a reasonable doubt in the case for the prosecution and has thereby earned his right to an
acquittal.

9. To my mind, the whole question is really involved in what the learned Chief Justice meant by the
words "in the case for the prosecution." There can be no doubt that the whole of the evidence in the
case could be used for the purpose of establishing "the case for the prosecution," in the sense o£ the
case which the prosecution originally set out to establish, that is to say culpable homicide or
voluntary hurt, as the case may be. The doubt that creeps in is whether the abortive evidence upon
the plea of self-defence can be used-so to speak, for a second time - to establish a reasonable doubt
as to whether there was self-defence or not. To put it in another way, the question is whether "the
case for the prosecution" is merely whether culpable homicide or voluntary hurt was committed by
the accused or whether such culpable homicide or voluntary hurt was committed by the accused in
circumstances which did not give rise to a case of self-defence. Was there a burden on the
prosecution to establish the negative fact that no case of self-defence arose? The third of the learned
Judges implicated in that decision, who is now the Chief Justice of Madras, contented himself
merely with concurring. I think that the full implication of this case is made still more clear by a
later criminal appeal in the Rangoon High Court, Nga Thein v. The King ('41) 28 A.I.R. 1941 Rang.
175, in which the learned Chief Justice and Dunkley J. interpreted ii in the wider sense and allowed
the evidence in question to be used to establish a reasonable doubt, not only as to the factum of the
offence itself, but also as to whether there was a case of self-defence.

10. As I said at the beginning of this judgment, this is a question which, in my view, is of the greatest
importance. It has, as far as I am aware, never been discussed in this High Court. It is a view which,
if it be the right one, is relevant in a great number of criminal appeals indeed, in most criminal
appeals in which any plea involving an exception is taken. In my brief experience in this Court, I
have been under the impression that the accepted view of the law is that the burden lies upon an
accused person to prove his exception if he can and, if he fails, then all that the prosecution has to do
is to prove the offence without reference to the exception. I may be wrong, but that is my impression
of the law as it stands in this High Court. If however the view of the Rangoon Full Bench Emperor v.
U Damapala ('37) 24 A.I.R. 1937 Rang. 83, based on Woolmington v. Director of Public Prosecutions
Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83 is right, then it would seem that this
statement of the law is now inadequate, because it would still remain for the prosecution to
establish, not only that the actual offence was committed, but that it was committed free (so to

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

speak) from any exception. In other words, in any case in which the accused person offers any
evidence of self-defence, it throws upon the prosecution the burden of proving, not only the crime,
but the absence of the exception as well. It is from that point of view that I regard this case as of such
importance as to warrant a reference to a Full Bench. I desire to make it particularly clear that I am
venturing myself to express no opinion at all and still less am I venturing to raise any doubt as to the
correctness of a decision of a Chief Justice and two former colleagues of my own for whose judgment
I have nothing but the greatest respect. But I regard the question of such importance, and as far as I
know, it has not yet been before this Court, that I am venturing to ask his Lordship the Chief Justice
to constitute a Full Bench to deal with it. In the present case, it will have a considerable influence on
the result of this appeal, because if, conformably with the Rangoon decision, the burden lies upon
the Crown to prove, not merely that the appellants inflicted voluntary hurt on Ganeshi's party, but
also that they did so in circumstances which beyond a reasonable doubt did not involve self-defence,
the result may be quite different from the conclusion which would have to be reached if the law is as
I believe it to stand at present in this province.

11. The question therefore I would have referred to the Full Bench is this : "Whether, having regard
to Section 96, Penal Code, and Section 105, Evidence Act, in a case in which any general exception in
the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but
such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the
case within the general exception pleaded, the accused person is entitled to be acquitted, if, upon a
consideration of the evidence as a whole (including the evidence given in support of the plea of the
said general exception), a reasonable doubt is created in the mind of the Court whether the accused
person is or is not entitled to the benefit of the said exception?"

12. I understand that the appellants are not on bail. While appreciating that the granting of bail in
the middle of the sentence, as a rule, is undesirable, I cannot possibly allow them to remain in jail
pending the hearing of this Full Bench reference. I shall, therefore, order that, upon furnishing
security to the satisfaction of the District Magistrate of Meerut, the appellants are to be released on
bail pending the ultimate disposal of this appeal. In the meanwhile, I shall stand over this appeal
until the reference to the Full Bench has been disposed of.

JUDGMENT Iqbal Ahmad, C.J.

13. The question referred for decision to this Full Bench is as follows:

Whether, having regard to Section 96, Penal Code, and Section 105, Evidence Act, in a case in which
any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to
support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of
circumstances bringing the case within the general exception pleaded, the accused person is entitled
to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in
support of the plea of the said general exception), a reasonable doubt is created in the mind of the
Court whether the accused person is or is not entitled to the benefit of the said exception?

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

14. Section 96, Penal Code, provides : "Nothing is an offence which is done in the exercise of the
right of private defence," and Section 105, Evidence Act, enacts 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 in the 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.

15. The question referred formed the subject of consideration by a Full Bench of the Rangoon High
Court in Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83, and it was held that even if the
evidence adduced by the accused fails to prove the existence of circumstances bringing the case
within the exception pleaded, the accused is entitled to be acquitted if, upon a consideration of the
evidence both for the prosecution and the defence, the Court is left in a state of reasonable doubt as
to whether the accused person is or is not entitled to the benefit of the exception pleaded. The Full
Bench followed the recent English case in the House of Lords in Woolmington v. Director of Public
Prosecutions (1935) 1935 A.C. 462, and held that that decision was in no way in-consistent with the
law in British India and the principles laid down in that decision formed a valuable guide to the
correct interpretation of Section 105, Indian Evidence Act. It was held in Woolmington v. Director of
Public Prosecutions (1935) 1935 A.C. 462 that:

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.

16. Viscount Sankey L.C. in the course of his judgment in Woolmington v. Director of Public
Prosecutions (1935) 1935 A.C. 462 is reported to have observed as follows:

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

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

17. It would thus appear that there is formidable weight of authority in support of the view that in
cases falling within the purview of Section 105, Evidence Act, the evidence produced by the accused
person, even though falling short of proving affirmatively the existence of circumstances bringing
the case within the exception pleaded by him, can be utilized as part of the entire evidence in the
case for the purpose of showing that a reasonable doubt exists as to his guilt. In view of the judicial
pronouncements noted above I should, I feel, in the absence of cogent and convincing reasons,
hesitate to take the contrary view. It is however argued that, as the law of evidence regulating
judicial proceedings in this country is governed by the Evidence Act, it is not permissible to travel
beyond the provisions of that Act, and to allow the decision of the question under consideration to
be coloured or influenced by the decision of the House of Lords in Woolmington v. Director of
Public Prosecutions (1935) 1935 A.C. 462. There are, to my mind two obvious answers to this
contention. In the first place the Indian Evidence Act is little more than an attempt to reduce the
English law to the form of express propositions arranged in their natural order, with some
modifications rendered necessary by the peculiar circumstances of India. So far back as in the year
1880, it was pointed out by the Calcutta High Court in the Full Bench case in Gujju Lall v. Fatteh
Lall ('81) 6 Cal. 171, that with some few exceptions the Indian Evidence Act was intended to, and did,
in fact, consolidate the English law of England, and in the same year West J. rightly pointed out in
Munchershaw Bezonji v. New Dhurumsey Spinning & Weaving Co. ('80) 4 Bom. 576 (at p. 581), that
the Evidence Act was drawn up chiefly from Taylor on Evidence. It follows that, even though a
matter has been expressly provided for by the Evidence Act, recourse may be had to English
decisions in order to interpret particular provisions of the Act when they are of doubtful import
owing to the obscurity of the language in which they have been enacted. As was observed by Edge
C.J. in Collector of Gorakhpur v. Palakdhari Singh ('90) 12 All. 1 (FB):

No doubt cases frequently occur in India in which considerable assistance is derived from the
consideration of the law of England or of other countries. In such oases we have to see how far such
law was founded on common sense and on the principles of justice between man and man, and may
safely afford guidance to us here....

18. In the second place, even though, the Evidence Act does in certain respects differ from English
law and supplies a distinct body of law as to the rules of evidence, I decline to believe that the
framers of the Indian law could or did intend to depart from the English law on the subject under
discussion. There are certain fundamental principles which govern the trial and decision of criminal
cases in England. According to the English law the onus of proving everything essential to the
establishment of the charge against the accused lies upon the prosecutor. In other words, criminality
is never to be presumed and the accused must be regarded as innocent until the contrary is proved.
It is on the basis of these principles that it is well settled in England that the evidence against the
accused must be such as to exclude, to a moral certainty, every reasonable doubt about his guilt and
if there be any reasonable doubt about his guilt he is entitled to be acquitted. The decision in
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 does no more than push to its
logical consequence the doctrines and principles just noticed. Now I find it impossible to hold that
Sir James Pitz james Stephen, in framing the Indian Evidence Act, could have the remotest
intention of tampering with or modifying these fundamental doctrines which, I consider, are based
on principles of natural justice. After all there cannot be varying standards of proof about the guilt of

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

an accused person in England and in this country. What holds good in England must hold good in
India. I therefore regard the decision of the House of Lords in Woolmington v. Director of Public
Prosecutions (1935) 1935 A.C. 462 as the last word on the subject and unless I am forced by express
provisions contained in the Indian Evidence Act to ignore that decision, I should, I consider,
respectfully follow it. I have considered the relevant provisions in the Indian Evidence Act, and the
conclusion at which I have arrived is that those provisions, far from being inconsistent, are in
harmony with the decisions in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C.
462. Section 102, Evidence Act, enacts that:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.

19. It is not and cannot be disputed that a criminal case is a "proceeding" within the meaning of
Section 102, and that the burden of proof in such a proceeding lies on the prosecution, for the
simple reason that if neither the prosecution nor the defence leads evidence the accused is entitled
to be acquitted. If in a criminal proceeding an accused person pleads in defence any "exception" or
"proviso" referred to in Section 105, the existence or absence of the "exception" or "proviso"
becomes a "fact in issue" as defined by Section 3 of the Act. Section 3 inter alia enacts that 'facts in
issue' means and includes any fact from which, either by itself or in connexion with other facts, the
existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in
any suit or proceeding. Necessarily follows.

20. The burden of proving the existence of circumstances Bringing the case within the "exception"
or "proviso" is no doubt cast on the accused by Section 105, but this does not in any way absolve the
prosecution of the burden laid on it by Section 102. The burden of proof, so far as the entire
"proceeding" is concerned, remains on the prosecution, even-though the burden of the "fact in
issue" pleaded by the accused is cast upon him by Section 105. In a proceeding there may be various
"facts in issue" and, in cases falling; within the purview of Section 105, the law placed on the accused
the minor burden of bringing his case within the "exception" or "proviso" relied upon by him. There
is, however, nothing in the Evidence Act to indicate that the failure of the accused to discharge the
burden lightens the burden placed on the prosecution by Section 102. To this effect is the decision of
the Calcutta High Court in Robert Stuart Wauchope v. Emperor ('33) 20 A.I.R. 1933 Cal. 800. It was
held in that case that in criminal cases the onus of proving the general issue never shifts, and it lies
upon the prosecution to prove by relevant evidence and beyond reasonable doubt the guilt of the
accused. To the same effect is the decision of my brother Bajpai J. in Hori Lal v. Emperor ('33) 20
A.I.R. 1933 All. 893. He held that:

It is an essential principle of criminal law in English jurisprudence that a criminal charge has got to
be established by the prosecution beyond reasonable doubt, and "the onus never changes." It is,
therefore manifest that even in cases to which Section 105 applies the prosecution has to prove the
guilt of the accused. Section 3, Evidence Act, lays down that:

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

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

the particular case, to act upon the supposition that it exists.

21. By this provision the Court, in determining the question whether the case for the prosecution is
or is not proved, is enjoined to consider "the matters before it." The Court must, therefore, consider
not only the evidence for the prosecution but also the evidence adduced by the accused with a view
to discharge the burden laid on him by Section 105. There may be cases - indeed such cases are
numerous - in which the-evidence produced by the accused is not sufficient to discharge the burden
cast on him by Section 105. All the same that evidence' is a "matter" in the case and the Court, while
considering all the matters before it had, therefore, to take that evidence into consideration. But,
great stress is laid on the words "the Court shall presume the absence of such circumstances" which
find a place in the concluding portion of Section 105 and, it is urged that, in the event of the failure
of the accused to discharge the burden placed on him by that section, the Court must proceed on the
assumption that the circumstances bringing the case within any "exception" or "proviso" did not
exist. The argument is that, unless the accused succeeds in proving that his case comes within the
exception or proviso pleaded by him, the evidence led by him must be totally discarded and the
Court must proceed on the definite supposition that there was an entire absence of the "exception"
or "proviso" relied upon by the accused. In connection with this argument reliance is placed on para.
2 of Section 4 of the Act which provides that:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as
proved unless and until it is disproved.

22. It is contended that as by Section 105 the Court is enjoined to "presume the absence of such
circumstances," it must do so, until "the absence of such circumstances" is disproved. I find it
impossible to assent to these propositions. To accede to the contention would be to introduce in
Section 4 a paragraph to the following effect : "Whenever it is directed by this Act that the Court
shall presume the absence of a fact, it shall regard such fact as disproved unless and until it is
proved." There is, however, no such provision in that section and it is, therefore, not permissible to
introduce such a paragraph. Section 4 no doubt enjoins that when the Act directs that a fact shall be
presumed, the Court must regard such fact as proved unless and until it is disproved. It does not,
however, follow from this that the converse of that proposition is also necessarily true. At any rate
when we are dealing with a codified law we cannot import in that law provisions which are not there.

23. To my mind the concluding portion of Section 105 means no more than this : that, in
considering the evidence for the defence relating to an "exception" or "proviso" pleaded by the
accused the Court must start with the assumption that circumstances bringing the case within the
"exception" or proviso do not exist. It must then decide whether the burden of proof has or has not
been discharged by the accused. If it answers the question in the affirmative it must give effect to its
conclusion by acquitting the accused or punishing him for the lesser offence. If on the other hand, it
holds that the burden has not been discharged, it cannot from that conclusion jump to the further
conclusion that the existence of circumstances bringing the case within the exception or proviso has
been disproved. All that it can do in such a case is to hold that those circumstances are "not proved."
lb would be noted that Section 3 draws distinction between the words "proved," "disproved" and
"not proved," It enacts that "a fact is said not to be proved when it is neither proved nor disproved."

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

The burden of bringing his case within an "exception" or "proviso" is put on the accused by Section
105, but there is no provision in the Act to justify the conclusion that the failure to discharge that
burden is tantamount to disproof of the existence of circumstances bringing the case within the
"exception" or "proviso" pleaded.

24. That this is so will be apparent by taking the following hypothetical case into consideration : In a
trial for the murder of B the accused A pleads that he had received grave and sudden provocation
from B and produces evidence in support of that plea. The evidence is not of such a quality as to
justify a finding in the affirmative in A's favour. All the same it is such as leaves the Court in a state
of reasonable doubt as to whether the plea of the accused is or is not well founded. In this state of
the evidence the Court while holding that the burden that was on A has not been discharged, cannot
proceed further and record a finding that the plea of A was wholly unfounded. It will have to content
itself with the finding that the plea is "not proved." "What then is the Court to do in such a case?
Should it in the consideration of the question whether A is guilty of murder, put aside the evidence
produced by A, so to say, in a watertight compartment and exclude that evidence entirely from
consideration? OJT should it take that evidence, for what it is worth into consideration along with
the other evidence in the case and then make up its mind as to the guilt or innocence of A? I cannot
but hold that it is only the latter alternative which is open to the Court and this is what follows from
the definition of "proved" in the Act. It is one thing to hold that the "exception" or "proviso" pleaded
has not been proved and it is quite another thing to say that it has been disproved. If a reasonable
doubt as to the existence of the exception or proviso exists the Court cannot, while considering the
evidence as a whole, deny to the accused the benefit of that doubt.

25. My answer to the question referred therefore is that the accused person is entitled to be
acquitted, if upon a consideration of the evidence as a whole (including the evidence given in
support of the plea of the said general exception) a reasonable doubt is created in the mind of the
Court whether the accused person is or is not entitled to the benefit of the said exception. Before
concluding this judgment, I must notice an argument that was strongly pressed upon us by Sir
Wazir Hasan on behalf of the accused. He contended that the "General Exceptions" in chap. 4, Penal
Code formed part of the definition of evey offence dealt with by that Code, and, as such, the burden
of proving the absence of circumstances bringing the case within an exception lies on the
prosecution. In support of this contention he relied on Section 6, Penal Code and on Section 221(5),
Criminal P.C., and illustration (a) to that section. Section 6, Penal Code, provides that:

Throughout this Code every definition of an offence, every penal provision and every illustration of
every such definition or penal provision, shall be understood subject to the exceptions contained in
the chapter entitled "general exceptions" though these exceptions are not repeated in such
definition, penal provision or illustration.

26. Section 221, Criminal P.C., deals with the "form of charges" and Sub-section (5) of that section
enacts 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.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

27. Illustration (a) to Section 221 is as follows:

A is charged with the murder of B. This is equivalent to a statement that A's act fell within 4ths
definition of murder given in Sections 299 and 300, 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 1, one or other of the three provisos to that
exception apply to it.

28. It is on the basis of these statutory provisions that the argument noticed above has been
founded. I have, however, no hesitation in overruling the argument. All that Section 6, Penal Code,
means is that the definition of an offence must be taken to be subject to the "general exceptions."
This is put beyond doubt by illustration (a) to Section 6 which runs as follows:

The sections in this Code, which contain definitions of offences, do not express that a child under
seven years of age cannot commit such offences, but the definitions are to be understood subject to
the general exception which provides that nothing shall be an offence which is done by a child under
seven years of age.

29. The "general exceptions" enacted by the Code are of universal application and for the sake of
brevity of expression, instead of repeating in every section that the definition is to be taken subject
to the exceptions the Legislature by Section 6 enacted that all definitions must be regarded as
subject to general exceptions. It is with similar object that Clause (5) of Section 221 and illus. (a) to
that section were introduced in the Criminal Procedure Code, but neither Section 6, Penal Code, nor
Section 221 (5), Criminal P.C., over-rides Section 105, Evidence Act, which deals with the question
of burden of proof. It must no doubt, in view of the sections relied upon by Sir Wazir Hasan, be held
that the "general exceptions" are part of the definition of every offence contained in the Penal Code,
but due effect to Section 105 can only be given by holding that so far as "general exceptions" are
concerned the burden of proving their existence lies on the accused.

Collister, J.

30. The question referred to this Full Bench has already been set out and it is unnecessary for me to
repeat it. The view taken by the Full Bench of the Rangoon High Court in Emperor v. U Damapala
('37) 24 A.I.R. 1937 Rang. 83, is that when an accused person has pleaded the right of private
defence under Section 96, Penal Code or pleads any other general or special exception-he will be
entitled to the protection afforded by such exception if, notwithstanding the fact that he may have
failed to establish the existence, at the time of the act with which he is charged, of the special
circumstances which he pleads, he has been able to implant a reasonsable doubt in the mind of the
Court; and the onus which initially lay upon the prosecution to prove the guilt of the prisoner never
shifts, notwithstanding the general and special exceptions. In arriving at their decision, the learned
Judges invoked in aid and appear to have been largely influenced by the English law on the subject
as expounded by Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions (1935)
1935 A.C. 462. In their opinion, the principles therein enunciated afford a proper guide to the
interpretation of the statutory law of India; by which I mean the relevant sections of the Indian

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

Evidence Act. The head note of the report in Woolmington v. Director of Public Prosecutions
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 accurately summarises the
conclusion at which the House of Lords arrived and it reads as follow:

In a trial for murder the, Crown must prove death as the result of a voluntary act of the prisoner and
malice of the prisoner. When evidence of death and malice has been given, 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 untitled to be
acquitted.

31. In that case the plea taken by the prisoner was that the gun which caused the fatal wound had
gone off accidentally. In the Rangoon case Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83
there was a plea of self-defence, as in the case with which we have to deal. At p. 671 Goodman
Roberts C.J. Hays:

There has been in some quarters much confusion is to the meaning of the words "the burden of
proof." In criminal oases the burden of proof, using the phrase in its strictest sense, is always upon
the prosecution and never shifts, whatever the evidence may be during the progress of the case; if on
a review of all the evidence the prosecution has failed to establish the guilt of the accused beyond
reasonable doubt, he is entitled to be acquitted.

32. At p. 675 he observes:

In many instances little or no evidence in favour of the accused will have transpired at the end of the
case for the prosecution. When this is so, then in another and quite different sense the burden of
proof is cast temporarily on the accused; when sufficient proof of the commission of a crime has
been adduced and the accused has been connected therewith as the guilty party, the burden of proof
in the sense of introducing evidence in rebuttal of the case for the prosecution is laid upon him. If
evidence is then adduced for the defence which loaves the Court in doubt as to whether the accused
ought to be excused from criminal responsibility or found guilty of a lesser offence than that with
which he stands charged, then at the conclusion of all the evidence it must still be remembered that
it is incumbent upon the prosecution to have proved their case. Put shortly, the test is, not whether
the accused has proved beyond all reasonable doubt that he comes within any exception to the Venal
Code, but whether in setting up his defence he has established a reasonable doubt in the case lot the
prosecution and has thereby earned his right to an acquittal.

33. Farther on the learned Chief Justice says:

...I hold that the decision in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 in
not in any way inconsistent with the law in British India. Indeed the principles there laid down form
a valuable guide to the correct interpretation of Section 105, Evidence Act.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

34. Leach J. agreed with the views expressed by the Chief Justice and added nothing on his own
behalf. Dunkley J. at p. 680 says:

The judgment of Viscount Sankey L.C. in this case ought to be accepted as a binding authority by
every criminal Court in British India so far as the law of British India on this subject, which is
comprised within the terms of Section 105, Evidence Act, coincides with the law of England.

35. On the same page the learned Judge, after quoting the last paragraph of Section 101, Evidence
Act, says:

...the phrase 'burden of proof is used in two distinct meanings in the law of evidence, namely the
burden of establishing a case and the burden of introducing evidence.... The burden of establishing a
case remains throughout a trial where it was originally placed; it never shifts. The burden of
introducing evidence may shift constantly as evidence is introduced by one side or the other. The
phrase is used in both these meanings in the Evidence Act.

36. At p. 682 we have the following dictum:

The duty of the accused under Section 105 is to introduce such evidence as will displace the
presumption of the absence of circumstances bringing the case within an exception and will suffice
to satisfy the Court that such circumstances may have existed. The burden of the issue as to the
non-existence of such circumstances is then shifted to the prosecution, which has still to discharge
the major burden of proving on the whole case the guilt of the accused beyond reasonable doubt.

37. Then, after observing that the examination of the accused "may be taken into consideration," he
says:

The conclusion therefore is that if the Court either is satisfied from the examination of the accused
and the evidence adduced by him, or from circumstances appearing from the prosecution evidence,
that the existence of circumstances bringing the case within the exception or exceptions pleaded has
been proved, or upon a review of all the evidence is left in reasonable doubt whether such
circumstances do exist 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 only of the minor offence.

38. At p. 684 the learned Judge says:

Where it appears from the evidence for the prosecution that there are reasonable grounds for
holding that the case falls within an exception, the presumption enacted in the last line of 8. 105
does not arise at all.

39. Finally he says:

It is therefore clear that the law of British India and the law of England are identical on this branch
of the criminal law, and the case in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

462 must be regarded as an authoritative exposition of the law of British India.

40. I have quoted the above observations in extenso in order to make clear how the learned Judges
viewed the matter and because, for reasons which will appear, I find myself in respectful
disagreement with that view. It has been pointed out to us that the decision in Woolmington v.
Director of Public Prosecutions (1935) 1935 A.C. 462 was relied upon in Shewaram v. Emperor ('39)
26 A.I.R. 1939 Sind 209, but in that case there was no question o£ a defence based upon any
exception or of the presumption referred to in Section 105, Evidence Act. I have read the judgment
of the House of Lords in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 with
the utmost care and I find no indication in it that there is any rule of English law which exactly
corresponds with the provisions of Section 105 and certain other sections - which I shall presently
mention-of the Indian Evidence Act, by which the Courts in India have to be guided. In
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 Viscount Sankey said:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the
duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

41. In my judgment, before having recourse to any English authority, it is necessary to examine the
statute law of India. If that law imposes upon an accused person the onus of establishing the
existence of circumstances which will entitle him to the benefit of Section 96 or any other exception
of the Penal Code, then the decision of the House of Lords in Woolmington v. Director of Public
Prosecutions (1935) 1935 A.C. 462 will in my opinion be irrelevant. If, on the other hand, there is
nothing in the statute law of India which is in conflict with the law as expounded by the House of
Lords in the abovementioned case, then it will be the duty of the Courts in India to accept that
decision as a binding authority.

42. The first question to consider is whether or not the expression "burden of proving" in Section
105, Evidence Act, bears the meaning which would ordinarily attach to these words, namely the
burden of satisfying the Court that such circumstances existed at the time when the act was
committed as would entitle the accused person to the protection which is afforded by Section 96,
Penal Code or any other exception-or whether, as held by the Full Bench of the Rangoon High Court
Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83, the burden will be discharged if the accused
person, either by his own statement or by facts elicited in the evidence for the prosecution or by
evidence adduced by himself or by all or some of these means, has been able to engender a
reasonable doubt in the mind of the Court. "Burden of proof" may in some circum-stances mean the
burden of introducing evidence, but for reasons which I shall proceed to state I am of opinion that it
cannot have this meaning in Section 105, Evidence Act. Section 96, Penal Code, which contains the
exception pleaded by the accused persons in the case with which this reference is concerned, says :
"Nothing is an offence which is done in the exercise of the right of private defence." The relevant
sections of the Evidence Act which fall to be considered are Sections 101, 102, 103, 105 and 106.
Paragraph 2 of Section 101 provides:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person.

43. Section 102 enacts:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.

44. Section 103 says:

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in
its existence unless it is provided by any law that the proof of that fact shall lie on any particular
person.

45. I shall omit Section 105 for the moment and come to Section 106 which provides:

When any fact is especially within the knowledge of any person, the burden of proving that fact is
upon him.

46. Illustration (b) to this section is as follows:

A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket
is on him.

47. The important section - so far as this reference is concerned-is Section 105, which reads thus:

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 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.

48. Thus, if an accused person pleads that circumstances existed at the time of the commission of
the act which would afford him protection under one of the exceptions, the Court shall presume that
such circumstances 'did not exist unless and until the accused person discharges the burden of
proving that they did exist. The words "shall presume" are defined in Section 4 of the Act, which
says:

Whenever it is directed by this Act that the Court shall presume a fact it shall regard such fact as
proved unless and until it is disproved.

49. "Fact" is defined in Section 3 and includes "a state of things, or relation of things capable of
being perceived by the senses." The existence of circumstances is thus a "fact" and its opposite, that
is to say the nonexistence or absence of circumstances, as contemplated by Section 105 is equally a
"fact". We have now arrived at this position that under Section 105, Evidence Act, the Court is bound

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

to regard as proved the absence or non-existence of the circumstances pleaded by the person
claiming the benefit of Section 96 or any other general or special exception-unless and until such
fact is disproved; or, in other words, unless and until the existence of the circumstances pleaded is
proved. The words "proved" and "disproved" are defined in Section 3 as follows:

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 Unit 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 considering the matter 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 ant upon the supposition that it does not exist.

50. The position therefore is as I see it, that the Court shall regard as proved the absence of the
circumstances pleaded by the accused person unless, upon a review of all the evidence, the Court
either believes that such circumstances did exist or considers the fact of their existence so probable
that a prudent man should act upon the supposition that they did exist. I can find nothing in. any of
these provisions of the Evidence Act to support the proposition that the introduction of evidence or
the eliciting of facts which create a reasonable doubt but which fall short of satisfying the
abovementioned conditions, will entitle the accused person to an acquittal on a plea of a right. of
private defence under Section 96 - or any other exception - of the Penal Code.

51. It is contended that notwithstanding the abovementioned specific provisions of the Evidence Act
relating to exceptions, the Court must acquit an accused person if it entertains a reasonable doubt as
regards his guilt; and this contention is based on he principle that the onus never shifts from She
Crown to prove the prisoner's guilt. The onus is certainly on the Crown to prove all the facts which
constitute the elements of. the offence, and if there is any reasonable doubt left in the mind of the
Court as to whether these facts have been established, the accused person is entitled to the benefit
thereof; but in my opinion this general onus is subject by statute to the special onus which Section
105 imposes on the accused person, and when the Legislature has enacted specific provisions in the
Evidence Act as to what amounts to proof or disproof, I do not think that the Court will be justified
in falling back on the general principle that the Crown must prove the prisoner's guilt. So far as the
Courts in this country are concerned, the law of evidence is embodied in the Evidence Act, and in my
judgment the Courts in India five strictly bound by its provisions when considering the question of
the onus of proof and its discharge. It is perfectly true that the Indian Evidence Act was based on
the' English law modified to suit conditions in India; but it was enacted as long as 1872 when the law
in England on this particular subject was by no means as clear as it is now. Woolmington v. Director
of Public Prosecutions Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83 the learned Judge in
his summing up to the jury said:

The killing of a human being is homicide however he may be killed, and all homicide is presumed to
be malicious and murder unless the contrary appears from the circumstances of alleviation, excuse
or justification.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

52. On this point the learned Judge then cited the following passage from Poster's Crown Law:

In every charge of murder, the fact of killing being first proved, all the circumstances of accident,
necessity or. infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the
evidence produced against him, for the law presumeth the fact to have been founded in malice
unless the contrary appeareth.

53. He then continued:

That has been the law of this country for all time since we had law. Once it is shown to a jury that
somebody has died through the act of another, that is presumed to be murder, unless the person
who has been guilty of the act which causes the death can satisfy a jury that what happened was
something less.

54. This statement of the law was disapproved and overruled by the House of Lords. It was conceded
that there was "apparent authority for the law as laid down by the learned Judge" and that the
foundation for that proposition was contained in Poster's Crown Law, written in 1762. As regards
the passage from the last named authority which was cited by the learned Judge at the trial,
Viscount Sankey remarks that the first part of this passage occurs in nearly every text book which
has since been written, including Stephen's Digest of the Criminal Law. It would thus appear that at
the time when the Indian Evidence Act was drafted Foster's Crown Law was generally accepted as
authority upon this subject; and this fact may go far to explain what I regard as the conflict which is
now shown to exist between the law in England and the law in India.

55. It is our duty to interpret the Indian Statute as it stands. If its meaning is plain, as I deem it to
be, we must follow its plain meaning. If the intention of the Legislature was in fact different from
what appears, it is open to the Legislature to amend the Act. I certainly prefer the law as enunciated
in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 and I can see no reason why
the law in India as regards this branch of burden of proof should differ from the law in England; but
it is our duty to say what the law is, not what it ought to be. In my judgment we should answer the
question referred to us with reference to what I conceive to be the unambiguous language and the
clear meaning of the provisions of the Indian statute and without any reference to English law. Upon
a careful examination of the relevant sections of the Evidence Act I find myself forced to the
conclusion that at the termination of the trial the accused person will not be entitled to the benefit of
Section 96, Penal Code, unless upon a review of all the evidence the Court is either satisfied as to the
existence of the circumstances pleaded or considers the fact of their existence to be so probable that
a prudent man ought under the circumstances of the particular case to act upon the supposition that
they existed. Before concluding I may mention that learned Counsel for the appellant has attempted
to draw assistance from the provisions of Section 6, Penal Code. In my opinion that section does not
assist him in any way. For the reasons given I would answer this reference in the negative.

Allsop, J.

56. The question which we have to decide is as follows:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

Whether having regard to Section 96, Penal Code, and Section 105, Evidence Act, in a case in which
any general exception in the Indian Penal Code is pleaded by an accused person and evidence is
adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the
existence of circumstances bringing the case within the general exception pleaded, the accused
person is entitled to be acquitted, if, upon a consideration of the evidence as a whole (including the
evidence given in support of the plea of the said general exception), a reasonable doubt is created in
the mind of the Court whether the accused person is or is not entitled to the benefit of the said
exception?

57. I begin my discussion of this question by quoting such parts of Sections 1 and 2, Evidence Act,
which are relevant, namely:

Section 1. This Act may be called the Indian Evidence Act 1872. It extends to the whole of British
India and applies to all judicial proceedings in or before any Court and it shall come into force on
the first day of September 1872.

Section 2. On and from that day the following laws shall be repealed : (1) All rules of evidence not
contained in any Statute, Act or Regulation in force in any part of British India....

58. I quote these sections because in my judgment Courts in India are, by the provisions of the
Statute forbidden to apply any rules which are to be derived from the common law of England. We
are entitled, I think, only to apply the rules laid down in the Indian Evidence Act or any other
Statute, Act or Regulation in force in this part of British India. I would add further that the first
canon for the interpretation of statutes is that the words in statutes if they are clear should be
applied in their ordinary meaning. I propose therefore in the first place to discuss the provisions of
the Indian Evidence Act because no rule of evidence in any other Statute, Act or Regulation has been
brought to our notice. We are concerned primarily with the rules in Chap. 7 of the Act which is
headed 'of the burden of proof.' Section 101 is in the following terms:

Whoever desires any Court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist. When a person is bound to
prove the existence of any fact, it is said that the burden of proof lies on that person.

59. It was suggested in the course of the discussion that the prosecution in a criminal case has to
prove not only the existence of the facts which constitute an offence but also the non-existence of
such facts as would entitle the person accused to an acquittal upon the ground that he was protected
by one of the general exceptions in the Penal Code and reference was made to illus. (a) which says:

A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.

60. If this section stood alone, there might be some force in this argument, but it does, not stand
alone. Section 102 says:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side

61. In this sense it may rightly be said in India that the burden of proof in a criminal proceeding lies
on the prosecution, but there are other following sections which are very important. Section 103
says:

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in
its existence, unless it is provided by any law that the proof of that fact shall lie on any particular
person.

62. If there was nothing further, I should think that this section would throw upon the accused the
burden of proving that he had acted in exercise of the right of private defence because it is he and
not the prosecution who wishes the Court to believe that he did so. I may quote again from the
illustration to this section as follows:

A prosecutes B for theft and wishes the Court to believe that B admitted that theft to C. A must prove
the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

63. The Legislature did not leave it to the Courts to decide on the provisions of Section 103 that the
burden of proving that the accused acted in self-defence or that his conduct was covered by any
general exception was upon him. It went on to enact Section 105 which 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 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.

64. It was suggested that it was possible that the term 'burden of proving' had not the same exact
meaning as the term 'burden of proof.' It seems to me that the two terms in plain English mean the
same thing and if there could be any doubt about the matter, it would be removed by the
illustrations. I need quote only the first one which is as follows:

A, accused of murder, alleges that by reason of unsoundness of mind he did not know the nature of
the act. The burden of proof is on A.

65. I would draw the attention to the fact' that the term 'burden of proof is used in the illustration
which shows that the Legislature did not intend to apply different meanings to the terms 'burden of
proof and 'burden of proving'. In my judgment, it is impossible to deny the proposition that the
same rule under the Indian Evidence Act applies to all the general exceptions and all the special
exceptions and provisos to be found in the Indian Penal Code. No distinction is made, for instance,
between the question of self-defence and the question of unsoundness of mind. If the burden of

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

proving unsoundness of mind is upon the accused, the burden of proving the right of private defence
is upon him too. I mention this point because it so happens that in the illustrations in the Indian
Evidence Act the Legislature has chosen to refer to the defence of unsoundness of mind rather than
to the right of private defence. This reference has arisen out of the decision of the Rangoon High
Court in Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83 which was based in part upon the
decision of the House of Lords in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C.
462. The Rangoon High Court seems to have held that the provisions of Section 105, Evidence Act,
meant only that the accused was bound to produce some evidence and that, after the production of
the evidence, if the Court remained in doubt, it would hold that the accused had not proved that he
acted in self-defence, but would still go back to the original burden upon the prosecution and hold
that the prosecution had failed to prove that the accused had not acted in exercise of the right of
private defence and would therefore give the accused the benefit of the doubt. With the greatest
deference to the learned Judges who decided that case it seems to me that they have laid down a
proposition which would imply that a Court in the same proceeding could record two contradictory
findings upon a fact in issue in that proceeding.

66. I think further, again with the greatest deference, that there was some confusion of thought due
to the use of the vague phrase "the case for the prosecution". "The case for the prosecution" in my
judgment is only the series or bundle of separate facts which have to be proved in order to entitle the
Court to pass an order convicting the accused of the offence with which he is charged. In a civil
proceeding the plaintiff asserts certain facts which would justify the Court in passing a decree in his
favour. The defendant is required in his pleadings to admit or deny all these separate facts and to
assert such other facts which he may consider would justify the Court in dismissing the suit. The
result of the pleadings according to the law of procedure is that an issue is definitely set forth upon
each of the facts asserted or denied by the parties to the suit. In a criminal case according to the law
of procedure prevailing in India the accused person is informed, by the charge, of the facts the
prosecution asserts or may be deemed to assert, but he is not required to plead separately to each of
these facts. He is required only to plead generally whether he is guilty or not guilty. If he pleads that
he is not guilty, it follows that it must be assumed that he has not admitted any of the facts asserted
by the prosecution and those facts must therefore strictly be proved before the Court can convict the
accused. It does not follow, however, because no separate issues are formally -framed that separate
and distinct issues of fact do not arise in a criminal case. I will quote again the provisions of Section
3, Evidence Act, in so far as they define the term "facts in issue." These provisions are as follows:

The expression 'fact in issue' means and includes any fact from which either by itself or in connexion
with other facts, the existence, non-existence, nature or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows....

Illustration. - A is accused of the murder of B. At his trial the following facts may be in issue:

That A caused B's death; that A intended to cause B's death; that A had received grave and sudden
provocation from B; that A, at the time of doing the act which caused B's death, was, by reason of
unsoundness of mind, incapable of knowing its nature.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

67. I will deal only with the last fact in issue mentioned in the illustration. In view of the provisions
of Section 105, Evidence Act, it seems to me that it is perfectly clear that the burden of proving the
existence of that fact in issue is upon the accused and that the Court shall presume until he has
proved its existence that it does not exist. It is no part of our procedure that a Court shall record its
decision on various issues at various stages of a trial in a Sessions Court. It records the evidence for
the prosecution. It calls such evidence as it may think necessary under the provisions of Section 540,
Criminal P. C. It brings upon its record the statement of the accused in the committing Court which
shall be read as part of the evidence. It examines the accused and is allowed by statute to take that
statement into consideration in deciding the issues before it and it records such evidence as may be
produced on behalf of the accused. When all this evidence has been brought upon the record and the
Court has heard such arguments as may be addressed to it, it then finally decides each of the issues
which arise in the case. It decides them once for all.

68. Let us now consider the issues of facts mentioned in the illustration to the definition of the term
'facts in issue.' The Court will decide upon all the evidence before it whether A caused B's death. In
accordance with the definition of the term 'proved,' it will say to itself that the fact whether A caused
B's death is proved, if it believes that he did cause it or considers that his causing it is so probable
that a prudent man ought, under the circumstances of the particular case to act upon the
supposition that he did cause it. If the Court considers that the fact that A caused B's death is not
proved in accordance with the terms of the definition, then it will decide that A did not cause B's
death because the burden of proof is on the prosecution and the prosecution has to prove the fact
that he did so. The same principles would apply to the question whether A intended to cause B's
death. On the other hand, when the Court has to decide whether A, at the time of doing the act
which caused B's death was, by reason of unsoundness of mind incapable of knowing its nature, it
will, under the provisions of Section 105, Evidence Act, throw the burden of proof upon the accused.
If it is not satisfied that A was of unsound mind or that it was not probable that A was of unsound
mind that a prudent man would suppose that he was, then it will hold once and for all upon this
issue that the fact that A was of un-sound mind is not proved and it will consequently act upon the
supposition that he was of sound mind. It cannot record different findings or come to different
conclusions upon the issue. If the burden of proving the proposition that A was of unsound mind is
upon the accused, then the accused must prove it. If, on the other hand, it is upon the prosecution
then the prosecution must prove it. There is no middle course that I can see.

69. Any fact in issue may be proved or disproved or not proved. It is proved if 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. 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 not to be proved when it is neither
proved nor disproved. To refer again to the issue of fact with which I have been dealing, the
prosecution may not be able to disprove that A was of unsound mind and the accused may not be
able to prove that he was of unsound mind. The result then is that it is not proved that he was of
unsound mind. As I have already said in quoting the provisions of Section 101 when a person is
bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

burden of proof lies on A to show that he was of unsound mind. If he does not prove that he was, it is
then not proved that he was. The Legislature has made the matter, to my mind, perfectly clear when
it has said in Section 105 that the burden of proving the existence of circumstances bringing the case
within any general exception is upon him and the Court shall presume the absence of such
circumstances. The term 'shall presume' is defined in the Evidence Act as follows:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as
proved unless and until it is disproved.

70. It seems to me perfectly clear that the Court shall regard the fact as proved that A was of sound
mind until that fact is disproved or, in other words, till the Court is satisfied that he was of unsound
mind or that it is so probable that he was of unsound mind that a prudent man should act upon that
supposition. It is not sufficient to rebut the presumption to say that it is not proved that A was of
sound mind. The result of the provisions about the burden of proof in the Evidence Act is that the
Court in cases of doubt will make an assumption against the person on whom the burden of proof
lies. There are no special provisions in the Act which apply to plaintiffs rather than to defendants or
to defendants rather than to plaintiffs or to the prosecution rather than to the defence or to the
defence rather than to the prosecution in a criminal trial. In such a trial, the burden of proving
certain facts in issue is upon the prosecution. If the matter remains doubtful, the accused gets the
benefit of the doubt because the prosecution has not discharged the burden laid upon it by the law.
Similarly, if the burden of proof is on the defence as laid down clearly in the statute, then the
defence cannot get the benefit of any doubt which may arise. If the fact is not proved, the defence
has not discharged the burden laid upon it, and the Court will therefore assume the fact against the
defence.

71. As I have said at the beginning in this judgment, I do not think we are entitled to make use of any
principles which may be derived from the Common law of England and are not contained in the
sections of the Evidence Act or any other statute, Act or Regulation which is applicable in this part of
British India. There is no justification for saying that in India the burden of proving the guilt of an
accused person is upon the prosecution. The true proposition is that the burden of proving the facts
which would justify the conviction of the accused in the absence of any other facts entitling the
accused to the benefit of any exception or proviso is upon the prosecution and the burden of proving
the existence of any facts or circumstances which would entitle the accused [to claim the benefit of
any such exception or proviso is upon the accused. I may say further that it would not, even in
England, be true to say that the burden of proving the guilt of a prisoner is upon the prosecution. He
is not guilty if by reason of unsoundness of mind he did not know the nature of his act or that it was
wrong or contrary to law. It appears from the speech of his Lordship the Lord Chancellor in
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 that the rule laid down in Reg.
v. Macnaughten (1843) 4 St. Tr. (NS) 847 is still in force, namely that the burden of proving insanity
is upon the prisoner.

72. I may conclude by dealing with some other points which arose in the course of the discussion
before the Bench. It was suggested that the question before us was affected, in some measure, by the
provisions of Section 6, Penal Code, which are that every definition of an offence shall be understood

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

subject to the exceptions contained in the chapter entitled "General Exceptions" though those
exceptions are not repeated in such definition. In my judgment, this provision does not affect the
question in any way. It is clearly the meaning of the section that the general exceptions shall be read
into the definition of each offence, but that they shall be read as special exceptions or provisos. The
law about the burden of proof is the same about general exceptions or special exceptions or
provisos. The question before us is really a question whether a Court can decide an issue of fact in
favour of the person on whom the burden lies even if that burden is not discharged or, in other
words, if the person On whom the burden lies has failed to prove that the fact exists and has merely
raised a doubt about its existence in the mind of the Court in which event according to the definition
the fact would be not proved.

73. Then it was suggested that the term "shall presume" as defined in the Evidence Act should refer
only to positive facts. A fact is defined as including a state of affairs and there may be a state of
affairs where a particular fact exists or does not exist, It seems to me that the definition of the term
'shall presume' applies equally to both states of affairs, namely the state of affairs where a particular
fact exists and the state of affairs where a particular fact does not exist. In my judgment, Section
105, Evidence Act, when it uses the words "the Court shall presume the absence of such
circumstances" means exactly what the words imply, namely that the Court shall act upon the
assumption that there are no circumstances giving an accused person a right to act in private
defence of his person or property until it is proved by the accused that such circumstances do exist.

74. My meaning will probably be more clear if I put it in a concrete form. Let us suppose that it is
proved that A shot B through the heart. A asserts that he was justified in doing so because B rushed
to kill him with a dagger in his hand. One of the facts in issue before the Court is whether A rushed
at B with a dagger in his hand. The Court would presume that he did not until A produced evidence
which satisfied the Court that he did or satisfied the Court that it was so probable that he did, that
the Court should act on that assumption. I cannot help feeling that many may think that it is
contrary to equity, justice and good conscience that a person should be convicted of an offence, say
of murder, if there is a reasonable doubt whether he was not justified in causing the death of the
person whom he killed. It seems to me however that the Courts are not entitled to act in a way which
is contrary to the clear provisions of the statute on principles of this kind and I also think that a good
deal of disquiet aroused in such minds would be removed by a concentration upon the definition of
the term "proof" in the Evidence Act. Proof in the legal sense is not proof in the ordinary sense of the
term. It is not a matter of mathematical proof or human certainty. It is a matter of probability which
varies in the circumstances of each case. It may well be that a prudent man if he had to decide
whether a person should be sentenced to death for murder if he did not act in exercise of the right of
private defence would consider that the balance of probability in favour of the accused would not
need to be very great to justify him in refusing to pass such a sentence.

75. There are two other matters which I should like shortly to mention. The decision in U Bang 6662
seems to have turned in some measure upon the opinion of the learned Judges that the term
"burden of proof" was sometimes used in the Evidence Act merely as requiring a particular person
to produce evidence and not as meaning that that particular person was to prove the fact in issue the
burden of proving which was upon him. It is possible that some such discrimination in the use of

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

this term may be justified by the principles of English law and that the question of the burden of
proof may, in England, be connected with the question of the right or duty to begin the production
of evidence on a particular point, but the provisions about the right or duty to begin in India are
contained not in the Evidence Act but in the Codes of Criminal and Civil Procedure and it seems to
me that the statement in Section 101, Indian Evidence Act, that the "burden of proof" lies on a
person when he is bound to prove the existence of any fact can have only one meaning. It surely
cannot mean that he is merely to produce evidence. In my judgment, it means that he must produce
such evidence as will establish the fact in accordance with the meaning of the word "proof" in the
definition and if he fails to do so, he has not discharged his burden and the decision upon that fact
must be against him.

76. It was also suggested in the course of the discussion that the rule in Woolmington v. Director of
Public Prosecutions (1935) 1935 A.C. 462 might be used to explain the meaning of the Indian
Evidence Act. There may be cases where the rules of evidence in Eng-land may be of assistance in
understanding the rules in the Indian Evidence Act, but I do not think that there is any justification
for saying that the clear meaning of the words of the Act should be affected by any English rule. One
suggestion is that the Indian Evidence Act was based upon the English law and consequently that it
should be assumed that it intended to reproduce the English law on every point. I do not think that
assumption is justified. It may be that the draftsman of the Indian Evidence Act intended to
reproduce the general English law as it was understood at the time when the Indian Evidence Act
was passed, but it is not safe to assume that either he or the Legislature which ultimately passed the
Act did not intend to make any alterations in the English rules to suit the circumstances of India and
further, even if it is assumed that the Indian Legislature intended to reproduce the English law as
understood in 1871 about the burden of proof in the matter of exceptions in criminal trials, it is
clear, I think, from the observations made in the House of Lords in Woolmington v. Director of
Public Prosecutions (1935) 1935 A.C. 462 that it was generally understood at that time that the
burden of proving accident or self-defence was upon the accused so that any argument on the lines
suggested would be in favour of the conclusion that the Legislature intended to throw the burden
upon the accused in a criminal trial to prove that he was protected by circumstances which would
bring his action within any of the exceptions. It is impossible in India for any Court to reconcile the
Indian Evidence Act absolutely with the decision in Woolmington v. Director of Public Prosecutions
(1935) 1935 A.C. 462 because, as I have already said, it is quite clear that there is no distinction
between the rules applying to different exceptions in this country and the result in Woolmington v.
Director of Public Prosecutions (1935) 1935 A.C. 462 is that there is a distinction in England
between the rule dealing with accident and the rule dealing with insanity or unsoundness of mind.

77. For the reasons which I have given, my answer to the question would be that an accused person
is not entitled to the benefit of any exception merely because there is a reasonable doubt in the mind
of the Court about the existence of circumstances bringing the case within the exception. As I have
already explained, I think that the meaning of the sections of the Indian Evidence Act is that every
issue of fact has to be proved by one or other party, the burden of proof being laid on that party, and
that the non-production of evidence or production of insufficient evidence by that party would lead
the Court to decide the issue of fact against him. In my judgment there is a distinction between
proof and the mere adduction of evidence. I do not think that it is justifiable to hold that the burden

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

of proof is on one party until he adduces evidence and then shifts to the other party. I think each
issue must be decided at the conclusion of the proceeding once and for all. If the Court says that the
burden of proving the absence of circumstances which would justify the accused in pleading the
protection of a general exception is upon the prosecution, then, in the absence of any evidence, one
way or the other or any pleading on the part of the accused, the prosecution would fail and the
accused would be entitled to an acquittal - a result which I consider would in many cases lead to a
grave failure of justice. I do not think it is possible, under the provisions of the Evidence Act, to hold
that the prosecution, in the absence of evidence of circumstances which would entitle the accused to
an acquittal on the ground that he was protected by a general exception, would be entitled to get him
convicted and that, on the other hand, the production of inconclusive evidence by the defence would
mean that he was entitled to an acquittal because the production of that evidence would throw the
burden on the other side.

Bajpai, J.

78. The question of law that has been referred to the Full Bench is this:

Whether having regard to Section 96, Penal Code, and Section 105. Evidence Act, in a case in which
any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to
support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of
circumstances bringing the case within the general exception pleaded, the accused person is entitled
to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in
support of the plea of the said general exception), a reasonable doubt is created in the mind of the
Court whether the accused person is or is not entitled to the benefic of the said exception?

79. In Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462, the House of Lords
held as follows:

In a trial for murder the Grown must prove death as the result of a voluntary act of the prisoner and
malice of the prisoner. When evidence of death and malice has been given, 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.

80. So far, therefore, as the law in England is concerned, it has been laid down by the highest
authority that in circumstances like those mentioned in the question referred the accused would be
entitled to be acquitted. The question is whether the above mentioned decision is inconsistent with
the law of British India, or whether it merely explains Section 105, Evidence Act, 1872. A Full Bench
of the Rangoon High Court in Emperor v. U Damapala ('37) 24 A.I.R. 1937 Rang. 83, held that the
decision in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 is in no way
inconsistent with the law in British India but on the contrary the principles there laid down form a
valuable guide to the correct interpretation of Section 105, Evidence Act, and I have got to see if this

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

is so. The Rangoon High Court again five years after in Nga Thein v. The King ('41) 28 A.I.R. 1941
Rang. 175, held that the transaction in every case must show that a murder has been committed and
when the accused sets up at the earliest possible moment the defence that he was acting in
accordance with the right of private defence such defence must be examined and it must be shown
by the prosecution before he can be convicted that there are no reasonable grounds on which such a
defence could be believed to be true. I observed that the subsequent decision is by Roberts C.J. and
Dunkley J., the two Judges who were members of the earlier Full Bench. I have not the slightest
doubt that the law should be as enunciated in the three decisions mentioned above, but there is the
other view that the statutory provisions of the Evidence Act lay down the contrary principle and if
they are strictly followed the answer to the question referred to us must be in the negative and the
accused ought to be convicted. Nothing is more firmly established in cru minal jurisprudence than
the view that it lies upon the prosecution to prove beyond reasonable doubt the guilt of the accused,
and Section 101, Evidence Act, provides that:

whoever desires any Court to give judgments as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist, and the Grown, when it wants
an accused to be convicted, must prove every fact necessary to substantiate the charge against the
accused and the law will presume innocence in the absence of cogent and convincing evidence to the
contrary. It may even be necessary for the Crown to have recourse to negative evidence, for instance
in a rape case the prosecution has to prove non-consent by the woman. The first illustration to
Section 101 says:

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.

81. Section 102, Evidence Act, then provides that:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.

82. This would mean that in a criminal proceeding the prosecution which desires the Court to give
judgment as to the commission of a crime will fail if no evidence at all is given on either side. Section
105, Evidence Act, says:

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 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.

83. The section, therefore, is stated in two forms, that of a rule as to the burden of proof and that of
a presumption. I agree with what Dunkley J., says in the Rangoon Full Bench case Emperor v. U
Damapala ('37) 24 A.I.R. 1937 Rang. 83 that the phrase "burden of proof" is used in two distinct,
though perhaps confused, meanings in the law of evidence namely, the burden of establishing a
lease and the burden of introducing or adducing evidence. In criminal cases the burden of

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

establishing a case remains throughout the trial on the prosecution and never shifts. It is fixed at the
beginning of the trial under the rule embodied in Section 101, Evidence Act, and it is settled as a
question of law, remaining unchanged under any circumstance whatsoever, but the burden of proof
as a matter of introducing or adducing evidence is unstable and may shift constantly throughout the
trial according as one scale of evidence preponderates over the other, and it is in this latter sense
that the expression is used in Sections 108 and 105, Evidence Act. As the proceedings go on, the
burden of introducing or adducing evidence may be shifted from the party on whom it rested at first
by his proving facts which raise a presumption in his favour and it may rest at one time upon one
party and at another time upon the other, but the major burden as it has been called in some cases,
or the primal burden, as I choose to call it, rests on the prosecution and never changes.

84. Coming to Section 105, Evidence Act, it is dear to my mind that if it is apparent from the
evidence on the record, whether produced by the prosecution or the defence, that any of the general
exceptions in the Penal Code or any of the special exceptions in the Penal Code or any of the special
exceptions or provisos contained in any other part of the same Code or in any law defining the
offence would apply, then the presumption contained in Section 105 is removed and it is open to the
Court to consider whether the entire evidence proves to the satisfaction of the Court that the accused
is entitled to the benefit of the exception and the charge levelled against him has not been
established or that there is a reasonable doubt as to the guilt of the accused, and in both cases the
accused would be entitled to an acquittal. There can be no doubt whatsoever that there is nothing in
law to warrant the proposition that the accused himself must introduce evidence to show that the
case comes within the exceptions for this conclusion may be drawn irrespective of the fact as to the
quarter from which the evidence comes, and it may be that the accused from the cross-examination
of the prosecution witnesses or from such evidence as the prosecution itself might have tendered be
able to put forward the plea of the right of private defence, but the question still remains, if I am
right, when I have earlier used the words "or that there is a reasonable doubt as to the guilt of the
accused." I venture to suggest that no exception can be taken to those words, but it might be said
that I would not be justified in substituting there the words "or that there is a reasonable doubt in
the mind of the Court as to the plea of the right of private defence." If there is such doubt, has not a
doubt been cast in connexion with the entire case and if that is so, is not the accused entitled to an
acquittal? I think he is, and that is so because of the constant immutable primal burden resting on
the prosecution.

85. The Evidence Act of 1872 is based entirely on the English law of evidence, and because prior to
1872 the law of evidence in this country was in a very unsatisfactory condition it was thought
necessary to introduce in this country the English law of evidence which was the outcome of the
experience and wisdom of ages. The law in England has been laid down authoritatively
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462, and if the Indian Evidence
Act is based on the principles and rules of English law there can be no doubt whatsoever that the
answer to the question referred to us must be in the affirmative. But it may be said that by 1872 the
law in England was not so clear and that is why we would not be justified in following the rule laid
down in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 if Section 105,
Evidence Act, contains a different rule. In Woolmington v. Director of Public Prosecutions (1935)
1935 A.C. 462 Viscount Sankey L.C. refers to various text writers and to various cases and with the

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

exception in Reg. v. Macnaughten (1843) 4 St. Tr. (NS) 847, which stands by itself and which was
quite exceptional, the law was always understood in the manner in which it has been now explained:

The verdict must be given not on any special pleading given by the prisoner but upon and as the
result of the whole of the case, and it cannot be said that the burden of proof either at the beginning
or at the end of a case is not on the prosecution.

86. I need not discuss the meaning of the words "fact," "proved," "disproved," "not proved" and
"shall assume" as given in the Evidence Act. They are well known and do not help us really in
arriving at a decision of the question referred to us. Erom the question referred to us, it is clear that
the entire evidence in the case has failed to satisfy the Court affirmatively of the existence of
circumstances bringing the case within the general exception provided for in Section 96, Penal Code,
but a reasonable doubt has been created in the mind of the Court on the question of the plea of the
right of private defence taken by the accused. This issue is only one of the issues in the case, and
though by reason of 8.105, Evidence Act, the Court "should presume absence of circumstances
bringing the case within the exception," but it is not laid down therein that the Court should convict
the accused; but then it is said what else should the Court do if the ingredients of the offence with
which the accused has been charged are proved? But is it correct to say that the guilt of the accused
has been proved beyond reasonable doubt, and this is after all what the prosecution has got to
establish. This would be overriding the primal issue in the case. The doubt cast in connexion with
the right of private defence must be a reasonable doubt, and if there is such a reasonable doubt it
reacts on the entire case for the prosecution and the result is that the accused gets the benefit of the
doubt. The presumption laid down in Section 105, 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.

87. In Stephen Senevirate v. The King ('36) 23 A.I.R. 1936 P.C. 289 their Lordships of the Privy
Council had before them a case which came from the Supreme Court of the Island of Ceylon and a
charge to the jury made by the learned Judge in Ceylon was being considered by their Lordships and
they had occasion to deal with Section 106 of the Evidence Ordinance prevalent in Ceylon which was
as follows : "When any fact is specially within the knowledge of any person, the burden of proving
the fact is upon him." This is word for word the same as Section 106, Indian Evidence Act, and
although Section 106 does not contain the rule of presumption stated in Section 105, the rule of
burden of proof is the same. In connexion with Section 100 of the Evidence Ordinance of Ceylon
their Lordships with reference to the facts of the case and to the charge made to the jury observed at
page 79 as follows:

...it was particularly unfortunate that the relevant passage in the charge should have been expressed
thus : 'He has got to explain . In the absence of explanation the only inference is that he is guilty.' Its
tendency would be to lead the jury to suppose that if anything was unexplained which they thought
the appellant could explain, they not only might but must find him guilty.

88. They ended by saying:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

...their Lordships would feel impelled to say that particularly in respect of the mistaken use made of
the hearsay evidence, and in respect of the error arising upon Section 106, Evidence Ordinance, such
mischiefs attended this hearing as to bring the case into the category where the interference of His
Majesty on the advice of this Board is necessary. For these reasons their Lordships have humbly
advised His Majesty that the appeal should be allowed and the conviction and sentence quashed.

89. To my mind, this is an important pronouncement of their Lordships of the Privy Council and has
some bearing on the matter under consideration in the present case. For the reasons given above I
would answer the question referred to us in the affirmative.

Mohammad Ismail, J.

90. The facts that have given rise to this reference have been fully set out in the referring order of
Braund J. The question that we are called upon to answer is not free from difficulty, particularly as
no authorities of this Court have been cited before us to assist us in our decision. The question has
been formulated in the following terms:

Whether, having regard to Section 96, Penal Code, and Section 105, Evidence Act, in a case in which
any genera] exception in the Penal Code is pleaded by an accused person and evidence is adduced to
support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of
circumstances bringing the case within the general exception pleaded, the accused person is entitled
to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in
support of the plea of the said general exception), a reasonable doubt is created in the mind of the
Court whether the accused person is or is not entitled to the benefit of the said exception.

91. It is an accepted principle of criminal law that the onus of proving the charge affirmatively and
beyond reasonable doubt lies upon the prosecution. When the prosecution evidence is concluded
and a prima facie case against the accused is made out, the Court shall call upon him to enter on his
defence if he is so advised. If the benefit of any general exception, for example right of private
defence, is claimed, the burden proving the existence of circumstances bringing the case within that
exception is upon the accused person. If he fails to lead evidence to substantiate his plea, or the
evidence produced by him is untrustworthy, the Court will be justified in holding that the accused is
not entitled to the benefit of the exception and will then give judgment for the Crown. On the other
hand, if the defence evidence is satisfactory, the accused will be entitled to an acquittal. The
difficulty arises only when the evidence falls short of proof, but creates a reasonable doubt in the
mind of the Court whether the accused person is or is not entitled to the benefit of the exception.
The question is whether in such a case the Court will have no option but to convict him. In my
opinion, the answer should be in the negative In the course of argument reference was made to
certain sections of the Evidence Act finding place under Chap. 7 of the Act Section 101 lays down:

Whoever desires any Court to give judgment as to any legal right or liability dependent oil the
existence of facts which he asserts must prove that those facts exist. When a person is bound to
prove the existence of any fact it is said that the burden of proof lies on that person.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

92. Illustration (a) to the above section runs thus:

A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed, A must prove that B has committed the crime.

93. From the above illustration it is manifest that the prosecution must prove that the accused
person has committed the crime regardless of the plea raised on his behalf. Even if he declines to
plead or fails to adduce any evidence the prosecution will not be entitled to a judgment unless the
charge is fully established. Section 105 of the Act is as follows:

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 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.

94. Illustration (a) to that section says:

A accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of
the act, the burden of proof is on A.

95. It has been argued that when the accused person has failed to discharge the burden that Section
105 places upon him, he must necessarily be convicted. It may however be pointed out that the law
of evidence regulates procedure only and has nothing to do with conviction or acquittal of an
accused person. Even if the plea of self-defence is not affirmatively established the evidence may
create a reasonable doubt in the mind of the Court that it may be true. The Court will then upon a
review of the whole evidence, be entitled to give the benefit of the doubt to the accused. The decision
on the question of self-defence will be only a decision upon one of the issues in the case. The Court
at the end of the trial has still to see whether having regard to the entire evidence and the
circumstances of the case, the charge is proved beyond reasonable doubt. I would like to take a
hypothetical case to illustrate my meaning. To a charge of murder A (the accused) pleads insanity. It
is proved by the prosecution evidence that A did cause the death of the deceased. On behalf of A it is
proved by expert evidence that he suffers periodically from derangement of brain and that when A is
affected by such attacks he is incapable of knowing the nature and consequences of his act. There
was, however, no evidence to prove that A was of unsound mind at the time of the commission of the
alleged offence. The evidence on the record did not disclose any motive on the part of A to take the
life of She deceased. In this state of evidence the Court will be fully justified in giving benefit of
doubt to A although A failed to prove that by reason of unsoundness of mind he was incapable of
knowing the nature of the act at the time of doing it. I do not see any inconsistency in the above
conclusion. Several cases have been cited by the parties in support of their respective arguments. I
shall refer to only those cases which have been referred to in the order of my brother Braund J. In
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 the proposition under
consideration was fully discussed. At p. 481 Viscount Sankey, L.C. observed:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the
duty of the prosecution to prove the prisoner's guilt subject to what I have already said is to the
defence of insanity and subject also to any statutory exception. If, at the end of and on she whole of
the case, there is a reasonable doubt created by the evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution
has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or
where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the
common law of England and no attempt to whittle it down can be entertained. When dealing with a
murder case the Crown must prove.... When evidence of death and malice has been given (this is
question for the jury) the accused 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 further
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 not the law of England
to say, as was said by the summing-up in the present case : 'If the Crown satisfy you that this woman
died at the prisoner's hands then he has to show that there are circumstances to be found in the
evidence which has been given from the witness-box in this case which alleviate the crime, so that it
is only manslaughter or which excuse homicide altogether by saying it was a pure accident.' If the
proposition laid down by Sir Michael Poster (In Foster's Criminal Law writ on in 1762. Edn. 7,1926,
p. 235) or in the summing up in Rex v. Greenacre (1837) 8 C & P 35 at p. 42 means this, those
authorities are wrong.

96. The above observations are of utmost importance. The Courts in India are bound to follow them
unless they are in conflict with any of the provisions of an Indian enactment, Our attention has not
been drawn to any such provision except what is contained in Section 105, Evidence Act, the scope
of which has already been discussed. In a Full Bench case in the Rangoon High Court in Emperor v.
U Damapala ('37) 24 A.I.R. 1937 Rang. 83 a similar question came up for consideration. The learned
Chief Justice in that case remarked:

Put shortly the test is not whether the accused has proved beyond all reasonable doubt that he
comes within any exception to the Penal Code, but whether in setting up his defence he has
established a reasonable doubt in the case for the prosecution and has thereby earned his right to an
acquittal.

97. Explaining the meaning of the expression "the benefit of doubt" the same learned Judge
observed:

Some references were made in the argument to a popular theory that Courts give to the accused
what is known as "the benefit of doubt." The phrase is misleading and should be avoided in any
attempt at accurate expression. The accused does not receive a benefit nor does humanity grant him
some boon dictated by the instinct of mercy in opposition to the ends of justice. Where there is an
element of genuine doubt then there must be an acquittal as a matter of right not as a matter of
grace or favour.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

98. Leach J. concurred with the learned Chief Justice. Dunkley J. delivered a separate but
concurring judgment. (The learned Judge after discussing the law on the subject said):

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

99. The same question came for consideration in a more recent case of the same High Court before
the learned Chief Justice and Dunkley J. Following the Full Bench case of their own Court the
learned Judges held:

The prosecution in every case must show that a murder has been committed, and when the accused
set up, at the earliest possible moment the defence that he was acting in accordance with the right of
private defence, such defence must be examined and it must be shown by prosecution before be can
be convicted that there are no reasonable grounds on which such a defence could be believed to be
true.

100. The above cases go the whole length in support of the conclusion to which I have arrived. I do
not consider it profitable to discuss other cases that were placed before us at the hearing of the
reference, particularly because my learned colleagues, what are of the same opinion as I hold, will
deal with the question more fully and with greater lucidity. For the reasons given, above my answer
to the reference is in the affirmative.

Braund, J.

101. It is not necessary again to refer to the facts which are sufficiently set out in the referring
judgment of my own. The question can, I think, be simply stated. An accused person is charged with
a criminal offence. He pleads the right of private defence. The accused then adduced evidence of
self-defence which, while not (either alone or in conjunction with the prosecution evidence)
sufficiently convincing to establish it affirmatively, yet leaves the matter in the position that it is a
question of doubt whether the prosecution story of an unprovoked assault is true, or whether the
defence story of self defence may not be the right one. The question before this Full Bench is
whether, in such a situation, the Court is bound to reject the plea of the exception, or whether it still
remains open to it, on looking at the evidence as a whole (including the evidence of self defence), to
give to the accused the benefit of any reasonable doubt that remains whether the act may not have
been committed in self defence.

102. A similar question came into prominence in Burma in 1936 in consequence of the decision in
the House of Lords in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462. In
consequence of that case and in relation to a criminal appeal with which at one stage I was myself
associated, a Full Bench of the Burma High Court in Emperor v. U Damapala ('37) 24 A.I.R. 1937

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

Rang. 83 came to the conclusion that the fundamental principle that, because the burden of proving
the guilt of the accused beyond a reasonable doubt rests on the prosecution and never shifts, cast a
duty on the Court, in looking at the admissible evidence as a whole, to give to the accused the benefit
of any doubt not merely as to the positive offence, but also as to the question whether it was a case of
self-defence. That is the question with which we have had to deal and I find it necessary at the outset
to remind myself that it is the law of India that has to be applied and not the law of England. I shall
therefore begin by setting out what to my mind are the relevant sections of the Penal Code and of the
Evidence Act, 1872. By Section 96, Penal Code, it is provided that : "Nothing is an offence which is
done in the exercise of the right of private defence." By Section 105, Evidence Act, 1872, it is enacted
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 in the 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.

103. In Section 4 of the same Act, a definition is given of what is meant by the words 'shall presume.'
It is:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such' fact as
proved unless and until it is disproved.

104. I think that the law of India is to be found in these Acts and nowhere else and that it will be
wrong if we approach this question by inquiring first into the state of the English law, either before
or after the decision in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 and
then attempting to construe the Indian Statutes in the-light-of the English law so ascertained. Nor
do I think that it will be right to form a view of the proper construction of the relevant Indian
Statutes based only on the general presumption of innocence. For, it has always to be remembered
that the law of India is to be found in the actual language of the Indian Statutes them selves. And, to
use the words of Sir Peter Maxwell:

If the words of the statute are in themselves precise and unambiguous no more is necessary than to
expound those words in their natural and ordinary sense, the words themselves in such cases best
declaring the intention of the Legislature. (Maxwell on Interpretation of Statutes, Edn. 7, p. 1.)

105. As I understand it, the first point made is that the prosecution has to prove an "offence" beyond
a reasonable doubt and that in Section 96, Penal Code, it is implicit that the prosecution has to
establish, when self defence is pleaded, the negative fact that the act was not committed "in the
exercise of the right of private defence." It is argued, that, if it was so committed then it constituted
no 'offence' and that, therefore the-negative quality of the absence of a right of private defence is
part of the offence itself. Section 6, Penal Code, is relied on to support this view. It is ingenious and
but for Section 105, Evidence Act, I might have perhaps thought that the argument was sound. But I
have, come to the conclusion that it is not.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

106. The opening words of Section 105 are: "When a person is accused of any offence...." It is
impossible to my mind to construe the word 'offence' in that context as meaning anything but an act
which, but for a successful plea of private defence, would be an 'offence.' If that is not its proper
construction then, as it seems to me, the whole of Section 105 becomes meaningless in relation to a
case of self defence. The burden cannot at the same time rest on the prosecution under Section 96,
Penal Code, and on the accused under Section 105, Evidence Act. What I think Section 105 must
plainly mean is that, when an act is charged which, but for the possibility of self-defence being
pleaded, would be an 'offence," then, when a general exception (e.g. private defence) is pleaded,
certain consequences shall follow. In short, in my view, Section 105, Evidence Act, in a case of
private defence, governs Section 96, Penal Code. We have listened to an entertaining argument by
Sir Wazir Hasan based on Section 6, Penal Code. If I have understood it rightly it is this. We all
agree that the prosecution must beyond a reasonable doubt, prove the "offence." But, Sir Syed says
that we must look at Section 6, Penal Code, to understand what exactly the "offence" is. In the
present case, it happens to be the offence of committing grievous voluntary hurt under Section 325,
Penal Code. But Section 6 of the Code provides that:

Every definition of an offence....shall be under-stood subject to the exceptions contained in the

ohapter entitled "general exceptions".

107. Therefore the argument runs, what the prosecution would have to prove would be an act in the
sense of an act which is not within any general exception, that is to say, not only the act itself, but
the negative circumstance of the absence of any general exception. Section 6, Penal Code, is relied
on by Sir Syed Wazir Hasan to show that the "offence" is not complete unless the absence of the
general exception is also proved be-yond a reasonable doubt. But I venture to think that this
argument is founded on a complete misconstruction of Section 6, Penal Code. Chapters 5A onwards
of the Penal Code contain a series of definitions of "offences" each chapter being headed by the
words "of offences," of a particular kind. The "general exceptions" are contained in a chapter (chap.
4) of their own. It seems to me to be quite clear therefore that the Penal Code regards an offence as
one thing and an exception as another. When Section 6 speaks therefore of the "definition of an
offence," it means, I am satisfied, simply those definitions of offences which are catalogued in Chap.
5A onwards. All that it means then is that, notwithstanding that certain acts or classes of acts are
defined as "offences" by the Code, the accused is, notwithstanding that what he has done amounts
by definition to an "offence," still to be entitled to plead an exception in any case in which he can. It
is I think a mistake to read Section 6 as in any way altering the definitions of offences contained in
chaps. 5A onwards of the Code. It is a mere reminder that, although "offences," they are always
subject to the general exceptions which are or may be, available to the accused. If that is its true
construction, then I think that in reality Section 6, Penal Code, is fatal to the attempt which has been
made in this case to enlarge the definition of the "offence" so as to include the wholly negative
ingredient of the absence of a general exception. That, in my opinion, has been the point of
departure of much ingenious, but misleading, argument before us. As I think, it all comes back to
the one single question : What was the case for the prosecution, or, to put it in other words, "the
offence?" Was it the substantive act the doing of which is defined as an offence by chaps. 5A
onwards? If so, then the prosecution has only to prove that, and, subject to the right of the accused
to plead and prove an exception it must, on proof, succeed. Or does it go further and include, not

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

only the act constituting the offence itself, but also the negative fact of the absence of any general
exception? In my view, there is nothing in Section 6 Penal Code, which in any way enlarges the
offence beyond the act or acts defined as constituting it. On the contrary, that conclusion is greatly
strengthened by Section 6. Nor do I think that the purely formal requirements of the charge laid
down in Section 221(5), Criminal P.C., and the illustrations to that section, carry the question any
further.

108. Assuming, therefore, that Section 105, Evidence Act, does apply, the only remaining question is
what it means. The view taken by the Rangoon High Court in Emperor v. U Damapala ('37) 24 A.I.R.
1937 Rang. 83 is that the expression "burden of proof" is used in two senses in the Evidence Act,
first in the sense of the obligation of the 'assertor' (if I may use such an expression) of proving the
fact or facts asserted. That would appear to be the ordinary meaning of the expression, because it is
actually so defined by Section 101, Evidence Act. But then it is said that there is another sense in
which the words "burden of proof" are used in the Evidence Act to mean merely "the burden of
introducing evidence." It is said for instance, that this is the sense in which they are used in Section
106 of the Act. I am aware that the expression "burden of proof" can, in varying contexts, be used in
different senses, and it may even be true that in the Evidence Act it does not always bear the same
meaning. But the question is every case must necessarily be what it does actually mean in the
context of that case. The question in this case is what it means in Section 105, Evidence Act. The
Rangoon High. Court has said that in this section the phrase "burden of proof" is clearly used in its
second sense, namely, the duty of introducing evidence." With the greatest respect, that is what I
find difficult in understanding.

109. First to take the actual words themselves I can, on their face, see no more reason for construing
them in that way, than for construing them as meaning "the burden of proving that certain facts
exist," which is, indeed, the very definition provided by the Act itself. But Section 105 does not
content itself with Saying that the burden of proving the existence of the circumstances bringing the
case within a general exception lies on the person accused of the offence. It goes much further and
says that the Court "shall presume the absence of such circumstances." Surely that can only mean
that the Court has to presume their absence, unless the accused proves their presence. I confess that
I can see no other possible meaning. And, to my mind, this becomes a virtual certainty when the
definition of "shall presume" in Section 4 of the Act is applied. The concluding words of Section 105
must then be read as : ...and the Court shall regard such fact" - i.e., the absence of such
circumstances etc.," as proved unless and until it is disproved." For myself I have no doubt that
Section 4, Evidence Act, applies to the words "shall presume" contained in Section 105. The
"absence" of particular circumstances is just as much a "fact" as is their presence; and, indeed, the
definition of a fact contained in Section S expressly includes a "state of things." It is the word
"disproved" in Section 4, Evidence Act, that is the important one for the present purpose. If, as
exhypothesi must be the case, the Court is ultimately left in doubt whether it is case a of self-defence
or not, then the presumption required m be drawn by Section 105, Evidence Act, can never have
been "displaced." It becomes a contradiction in terms. And that appears to me to supply, with
almost positive certainty, an exact definition to the words "burden of proof" used earlier in the same
section, as being the burden of proving affirmatively that the facts alleged do exist. That, I again
point out, accords exactly with the definition of "burden of proof" in Section 101 of the Act.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

110. But the matter does not quite end there. I am aware that it is not always safe to construe a
statute by the result a particular meaning will bring about. But, having first construed it, it is always
legitimate to test that, or the opposite construction by that result. I shall assume that I am wrong
and that the words "burden of proof" in Section 105, Evidence Act, mean merely the duty of
introducing evidence. Are we then to understand that, once the accused has introduced evidence of
any kind, his own statement for instance, Section 105 ceases to operate and the burden is thrown on
to the prosecution of proving beyond reasonable doubt not only the act constituting the basis of the
offence, but also the absence of all general exceptions? If that were so, then it would appear to me
that Section 105 completely defeats itself in a case of self-defence, because once an accused had
pleaded it, it would cease to operate. If that is so, it would then seem to apply only to a case in which
the appellant either pleaded guilty or did not plead at all, which in either case would reduce the
whole section to an absurdity in relation to self-defence.

111. I somewhat regret to take this view, but anxious as I might be to take another, I can see no
alternative. That brings me back to Woolmington v. Director of Public Prosecutions (1935) 1935 A.C.
462. As I have already said, I think it would have been an inversion of the proper order of things in
India to have taken that English case of the highest authority first and then to have construed the
Indian Statute in the light of the law (which I confess to thinking is preferable to the Indian law) that
it lays down in England. What with the greatest respect I venture to think is overlooked is that
Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 while being unquestionably
the highest authority in England on the burden of proof in criminal law, has no reference to India,
where the law upon this matter has to be looked for in Indian Statutes and nowhere else and when
found, applied Indeed I think the very form of one of the questions propounded in the Emperor v. U
Damapala ('37) 24 A.I.R. 1937 Rang. 83 exposes the mistake. It was : "Is the decision of the House of
Lords in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 inconsistent with the
law of British India?" It was decided that it was not. But what, may I ask, would it have mattered if it
was? The law of England is one thing and the law of India another. And, in the result, I am
compelled to think that, if we are to apply the principles in Woolmington v. Director of Public
Prosecutions (1935) 1935 A.C. 462 to the one before us, the construction of an Indian Statute will
have to be strained to conform to the law of England, rather than that the Indian Statute will be
itself construed. As to the actual decision in Woolmington v. Director of Public Prosecutions (1935)
1935 A.C. 462, it laid down the law of England. Viscount Sankey dealt fully with earlier expositions
of the law of England relating to the onus of proof in criminal Law and in particular with that of Sir
Michael Foster in 'Poster's Grown Law' written in 1762 and that of Tindal C.J., in Rex v. Greenacre
(1837) 8 C & P 35 at p. 42. And, as a result, those expositions of the law were either corrected or if
they were merely ambiguous and not wrong, explained. The result is that the law in Woolmington v.
Director of Public Prosecutions (1935) 1935 A.C. 462 is the law of England. But that must never be
allowed to obscure the fact that the law of India is not to be found in the speeches of the noble Lords
in Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462 but in the Indian Penal
Code and the Indian Evidence Act.

112. It is, I understand, suggested that we ought to construe Section 105, Indian Evidence Act, by
reference to the law of England in relation to the onus of proof in criminal cases, for the reason that
the Indian Evidence Act was drafted by Sir James Fitz James Stephen and it must, therefore, be

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

assumed that he intended to reproduce the English law in India. I desire only to say of that
suggestion that, even if it were ever a legitimate method of construction to assume the intention of
the draftsman to be to adapt one system of law to another (which I venture to doubt), it still could
not be assumed and much less proved that the conception of the English law in the mind of Sir
James Fitz James Stephen when he drafted the Indian Evidence Act was the same as the law which
has now been declared by the House of Lords in Woolmington v. Director of Public Prosecutions
(1935) 1935 A.C. 462 (ubi supra). Indeed, it is not possible to read the speech of Viscount Sanjet in
that case without realizing that the under, standing of the law of the onus of proof in criminal cases
has undergone a considerable change in England since Sir Fitz James Stephens's day.

113. I have come to the conclusion that the answer to the question which we have before us is, as I
said in the referring order, to be found in what is meant by the words "in the case for the
prosecution" used by the learned Chief Justice of Burma in Emperor v. U Damapala ('37) 24 A.I.R.
1937 Rang. 83. If those words mean that after evidence of self-defence has been given by the accused
and has failed affirmatively to establish that plea, the prosecution has to prove beyond a reasonable
doubt the act or acts which constitute the "offence," then respectfully I should agree, assuming, of
course, that I am right in thinking that the word "offence" does not include again the negative
ingredient of freedom from a General Exception. But, if it be contended-on the ground of a
presumption of innocence, on the ground in Woolmington v. Director of Public Prosecutions (1935)
1935 A.C. 462, on the ground of general equity or on any other ground that the "case for the
prosecution" remaining to be considered after the plea of self-defence has once failed includes that
very plea again, then I regret that I think that this construction altogether ignores the plain language
of Section 105, Indian Evidence Act.

114. In my judgment, when a General Exception is pleaded by an accused person, the law of India
permits three alternative courses : (a) if the evidence, i.e., the whole evidence in the case, establishes
affirmatively that circumstances existed which satisfy the exception, the accused must be acquitted;
(b) if such evidence establishes affirmatively that such circumstances did not exist, then, if the act is
proved, the accused must be convicted, (c) if such evidence leaves the Court in reasonable doubt
whether such circumstance existed or not, then, if the act itself is proved, the accused must be
convicted. It is possible to imagine cases in which a strict application of the law supposing it to be as
I conceive it is, might result in a harsh conviction. If such a case should occur then that would be a
good argument that the Legislature should amend the law. But it has, I think, no bearing on the
construction of the Statute as it at present stands. I should myself have preferred, on grounds of
general equity, to have been able to decide that the law is the same in India, as it has now been
declared to be in England by Woolmington v. Director of Public Prosecutions (1935) 1935 A.C. 462.
But I cannot on that account concur in an interpretation of the existing law which is not as I see it,
the true one on the plain words of the Indian Penal Code and the Indian Evidence Act. For these
reasons, which in deference to the volume of opinion to the contrary I have thought it right to set out
at length, the answer I would have given to this reference is that in the circumstances postulated by
it, the accused would not be entitled to the benefit of the exception.

Mulla, J.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

115. The question propounded for decision by a Full Bench of this Court is:

Whether having regard to Section 96, Penal Code and Section 105, Evidence Act, in a case in which
any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to
support such plea, hut such evidence fails to satisfy the Court affirmatively of the existence of
circumstances bringing the case within the general exception pleaded, the accused person is entitled
to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in
support of the plea of the said general exception), a retainable doubt is created in the mind of the
Court whether the accused person is or is not entitled to the benefit of the said exception?

116. The question is no doubt of considerable importance, for it frequently arises for consideration
in cases of hurt or culpable homicide and more particularly in cases of rioting involving hurt or
culpable homicide. It is in such cases that a plea under Section 96, Penal Code, is often raised on
behalf of the accused person. Section 96, Penal Code, lays down... "Nothing is an offence which is
done in the exercise of the right of private defence." In dealing with the question under reference I
shall, therefore, concentrate my attention primarily upon the type of cases in which the plea of
private defence is raised and the accused person adduces evidence to support that plea. Prom my
own limited experience as a Judge I can say that upon a consideration of the evidence in such cases
which more often than not proceeds from partisan witnesses it is by no means easy for the Judge to
arrive at a definite finding as to which of the two parties resorted to aggression in the first instance
and thereby gave the right of private defence to the other party. It often happens that upon weighing
the Whole evidence at the end of the trial the Judge is left in a state of reasonable doubt. On the one
hand he is not able to hold definitely that the accused has by his evidence succeeded in establishing
all the circumstances which would entitle him in law to the benefit of his plea and on the other hand
he finds that some of those circumstances have been proved and those circumstances tend to show
that the accused's plea may be well founded. The question then arises whether the accused is
entitled to claim an acquittal on the basis of such a reasonable doubt being present in the mind of
the Judge. The question has to be decided in the light of Section 105, Evidence Act, which runs as
follows:

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 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.

117. The question is not covered by any direct authority of this Court but it has been answered in the
affirmative by a Full Bench of the Rangoon High Court in Emperor v. U Damapala ('37) 24 A.I.R.
1937 Rang. 83 which has been followed in a later decision of the same Court in Nga Thein v. The
King ('41) 28 A.I.R. 1941 Rang. 175. All the three learned Judges constituting the Full Bench
unanimously agreed upon a full consideration of the provisions of Section 105, Evidence Act, that
the answer must be in the affirmative. The relevant portion of the judgment of Goodman Roberts
C.J., who was a member of the Bench, runs as follows:

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

Now, it is not for the prosecution to examine all the possible defences which might be put forward
on behalf of an accused person and to prove that none of them applies. In order to make this clear
Section 105, Evidence Act, says that the Court shall presume the absence of such circumstances as
may bring the case within the ambit of a possible defence. But if the evidence adduced by the
prosecution is itself consistent not only with the guilt of the accused but with his possible innocence,
it is clear that there can be no conviction. In the same way if such evidence is consistent not with
innocence but with the commission of a lesser offence than that with which the accused person is
charged, it is clear that the conviction (if any) must be restricted to a conviction for such lesser
offence.

In many instances little or no evidence in favour of the accused will have transpired at the end of the
case for the prosecution. When this is so, then in another and quite different sense the burden of
proof is cast temporarily on the accused, when sufficient proof of the commission of a crime has
been adduced and the accused has been connected therewith as the guilty party, the burden of proof
in the sense of introducing evidence in rebuttal of the case for the prosecution is laid upon him. If
evidence is then adduced for the defence which leaves the Court in doubt as to whether the accused
ought to be excused from criminal responsibility, or found guilty of the lesser offence than that with
which he stands charged, then at the conclusion of all the evidence it must still be remembered that
it is incumbent upon the prosecution to have proved their case. Put shortly, the test is not whether
the accused has proved beyond all reasonable doubt that he comes within any exception to the Penal
Code, but whether in setting up his defence he has established a reasonable doubt in the case for the
prosecution and has thereby earned his right to an acquittal.

118. Leach J. wholly concurred with the views thus expressed but Dunkley J. in a separate judgment,
after fully discussing the scope and effect of the provisions of the Evidence Act relating to burden of
proof and particularly Section 105 of that Act, observed as follows:

The conclusion therefore is that if the Court either is satisfied from the examination of the accused
and the evidence adduced by him, or from circumstances appearing from the prosecution evidence,
that the existence of circumstances bringing the case within the exception or exceptions pleaded has
been proved, or upon a review of all the evidence is left in reasonable doubt whether such
circumstances do exist 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 only of the minor offence.

119. I may state at once and with great respect to the learned Judges that I find myself in entire
accord with the conclusion at which they arrived. I shall now proceed to set out the reasons which
have led me to the same conclusion. In order to arrive at she correct answer to the question under
reference I think it is necessary to keep in mind the full force and scope of a principle which more
than any other is universally is acknowledged to lie at the very root of the administration of criminal
justice in this country. The principle has no doubt been imported from English jurisprudence but it
cannot be denied that it prevails with full force in the criminal Courts in India so that it is
established beyond all dispute or con cost and must be deemed to form an essential part of the
statutory criminal law of this country. It confers a fundamental right on the subject as against the
Crown which cannot be taken away except by express legislative enactment. No attempt to modify or

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

curtail its operation should be innocent unless and until it is supported by some clearly expressed
provision of the law. The principle is that in a criminal trial the accused person must be presumed to
be innocent unless and until the prosecution establishes beyond reasonable doubt that it a
committed the act with which he is charged and such act amounts to an offence under the penal law.
Later on for the sake of convenience I shall refer to this principle as the principle of reasonable
doubt. I venture to think that this principle, though incorporated to a certain extent in the evidence
Act, does not find full expression therein. The relevant provisions of the Evidence Act, are to be
found in Section 3 and Section 101. In Section 3 "proved" is defined as follows:

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

120. It is clear to my mind that the degree of proof required by this section to enable a Court to hold
that a fact exists is much lower than that demanded by the above mentioned principle of reasonable
doubt. Proof as contemplated by Section 3 amounts only to a great preponderance of probabilities in
favour of the existence of a fact. It is open to the Court to believe that a fact exists if it is shown that
there is a great preponderance of probability in favour of its existence. In my judgment this clearly
leaves room for a reasonable doubt. A prudent man may entertain a doubt as to the existence of a
fact, but if the evidence before him renders its existence highly probable he will be justified in acting
upon the supposition that the fact exists. In a criminal case however the Judge as a prudent man
may find it highly probable upon the evidence produced before him that the accused person has
committed the act attributed to him, yet if he entertains any reasonable doubt he is bound to acquit.
There is to my mind a clear difference between the degree of proof required by Section 3, Evidence
Act, and that demanded by the fundamental principle of reasonable doubt, but it has never been
contended that the degree of proof required by Section 8 is sufficient for holding an accused person
guilty of the offence with which he is charged. The scope of the fundamental principle is, in my
judgment, much wider than that of Section 3, Evidence Act, and it is well settled that the
fundamental principle must prevail in a criminal trial. Section 101 provides:

Whoever desires any Court to give judgments as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed.

A must prove that B has committed the crime.

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by
reason of facts which he asserts, and which B denies, to be true.

A must prove the existence of those facts.

121. Now, this section obviously places a criminal case on the same footing as a civil case, but no one
will ever contend with any show of reason that the degree of proof which would satisfy a Court in
holding that a certain person is entitled to certain land in the possession of another is the same as
that required for establishing the guilt of an accused person on a criminal charge. This difference
between the nature of proof in a criminal case as distinguished from a civil case is I think universally
recognized. Sir John Woodroffe in his Commentary on the Law of Evidence (Edition 9, page 118) has
made the following observations based upon case law:

Certain provisions of the Law of Evidence are peculiar to criminal trials, e.g., the provisions relating
to confessions, character, and the incompetency of parties as witnesses, but apart from these, the
rules of evidence are the same in civil and criminal cases. But there is a strong and marked
difference as to the effect of evidence in civil and criminal proceedings. The circumstances of the
particular case must determine whether a prudent man ought to act upon the supposition that the
facts exist from which liability is to be inferred. What circumstances will amount to proof can never
be matter of general definition. But with regard to the proof required in civil and criminal
proceedings there is this difference, that in the former a mere preponderance of probability is
sufficient, but in the latter (owing to the serious consequences of an erroneous condemnation both
to the accused and society) the persuasion of guilt must amount to such a moral certainty as
convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt.

122. It is therefore clear to my mind that Sections 3 and 101, Evidence Act, do not incorporate the
principle of reasonable doubt in its entirety. That principle is however acknowledged on all hands to
be the basic principle on which the Court should act in determining the guilt or innocence of an
accused person. I am therefore strongly of the opinion that when the provisions of the Evidence Act
relating to the degree of proof or burden of proof are sought to be applied to a criminal case they
must be so construed as to allow full operation to the principle of reasonable doubt. If this
consideration is kept in mind in interpreting Section 105, Evidence Act, I think one must arrive at
the conclusion that the answer to the question under reference is in the affirmative and that is the
answer which I propose to give. The sole point for consideration is whether there is anything in the
language or the spirit of Section 105 to suggest that the law definitely intended to modify or curtail
the operation of the principle of reasonable doubt. I have, therefore, subjected the provisions of
Section 105 to a close examination and the result at which I have arrived is that it was never
intended by the Legislature by this section to curtail in the slightest degree the fundamental right of
the accused in a criminal case to claim an acquittal even in a case in which he raises a special plea in
his defence, if the evidence adduced by him in discharge of the burden laid upon him by the section
is sufficient to create a reasonable doubt that his plea may be well founded, even though it fails to
establish affirmatively all the circumstances which would entitle him to the benefit of that plea.
Section 105 only acknowledges the force of the principle that it is incumbent upon the prosecution
to establish all the circumstances necessary to prove the guilt of the accused person beyond

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

reasonable doubt. The law wanted to relieve the prosecution of a part of the burden laid upon it and
it has, therefore, enacted Section 105 which provides 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 in the 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.

123. The prosecution is thus relieved of the burden of establishing that the act with which the
accused is charged does not fall within any one of the general exceptions in the Penal Code. As a
necessary corollary the section proceeds to lay down that "the Court shall presume the absence of
such circumstances." It is contended that having regard to the definition of "shall presume" in
Section 4, Evidence Act, it must be held that if the accused person fails by his evidence to establish
affirmatively all the circumstances bringing the case within the general exception pleaded by him
and succeeds only in raising a reasonable doubt in the mind of the Court that his plea may be well
founded, the presumption of the absence of those circumstances remains undisplaced and he must,
therefore, be found guilty. In Section 4 of the Act "shall presume" is defined as follows:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as
proved unless and until it is disproved.

124. The argument is that "disproved" as de-fined by Section 8 of the Act, connotes much more than
the mere raising of a reasonable doubt. I have already stated that the provisions of the Evidence Act
relating to degree of proof or burden of proof must be so interpreted as to give full operation to the
principle of reasonable doubt and I have given my reasons for that view. Apart from that, however, I
find that the conclusion which is sought to be drawn from the argument does not necessarily follow
from it. A moment's consideration will show that the utmost that the prosecution can urge on the
basis of the presumption which arises in its favour under Section 105 is that the Court shall presume
that the absence of all circumstances bringing the case within the general exception pleaded by the
accused has been established beyond all reasonable doubt. I do not think that the presumption can
be placed upon any footing stronger than this. It cannot however be denied that the presumption is
reputable and when the accused produces evidence which creates a reasonable doubt that the said
circumstances may have existed he has clearly displaced the presumption and is entitled to claim an
acquittal on the fundamental principle of reasonable doubt. On the one hand, there is the
presumption that the absence of certain circumstances has been established beyond reasonable
doubt and, on the other hand, there is the evidence produced by the accused which raises a
reasonable doubt that the circumstances may hare existed. I venture to think that it is but the
natural and logical result of such evidence that it must be deemed to have displaced the
presumption. The argument to the contrary proceeds on the assumption that the burden of proof
laid upon the accused by Section 105 is just as heavy as that imposed upon the prosecution to
establish his guilt beyond reasonable doubt. This assumption is fundamentally wrong, and it is not
surprising that it leads to a wrong conclusion. I think it is well settled that there is an essential
difference between the burden of proof which lies upon the prosecution in every criminal case and
the burden of proof which lies upon the accused in respect of a particular issue. This difference is

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 Parbhoo And Ors. vs Emperor on 16 September, 1941

stated in Phipson's Law of Evidence, 6th Edn. at p. 34, as follows:

When the burden of the issue is on the prosecution, the case must be proved beyond a reasonable
doubt.... When however the burden of an issue is upon the accused, he is not, in general, called on to
prove it beyond a reasonable doubt or in default to incur a verdict of guilty, it is sufficient if he
succeed in proving a prima facie case, for then the burden of such issue is shifted to the prosecution,
which has still to discharge its original and major onus that never shifts, i.e. that of establishing, on
the whole case, guilt beyond a reasonable doubt.

125. I do not find any justification for holding that Section 105, Evidence Act, enacts anything
contrary to this principle and compels the Court where the accused pleads some general exception to
convict him if the accused fails to establish affirmatively all the circumstances bringing the case
within the exception, even though he succeeds in proving some of those circumstances and thereby
creates a reasonable doubt in the mind of the Court that his plea may be well founded. Such a result
is obviously repugnant to common sense and quite contrary to the fundamental principle of
reasonable doubt. There is nothing in the language of Section 105 to warrant the conclusion that the
law intended such a result and for that purpose enacted Section 105, Evidence Act, in order to
curtail the fundamental right of the accused to claim an acquittal if there is any reasonable doubt
about his guilt. On the other hand I think, upon a plain and natural interpretation of Section 105,
that it leaves that fundamental right of the accused untouched. For these reasons I would answer the
question under reference in the affirmative.

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