Victor alias Kaloo v. State — 1962 DIGILAW 11 (MP)

OPINIONS Naik, J.- 1. The judgment in this appeal shall also govern the disposal of criminal appeal No. 209 of 1961. 2. The appellant-accused, Victor alias Kaloo, has been convicted by the Additional Sessions Judge, Mandla, camp Jabalpur, under section 304, part one, of the Indian Penal Code for having committed the murder of Shyamlal on the evening of 6th July 1960 in Ghamapur Mohalla of the town of Jabalpur, in excess of his right of private defence and sentenced to rigorous imprisonment for a period of seven years and to pay a fine of Rs.100 or, in default, to undergo rigorous imprisonment for a period of six months. Criminal appeal No.95 of 1961 is the appeal by the appellant - accused against his conviction and sentence; while criminal appeal No. 209 of 1961 has been filed by the State Government against his acquittal of an offence under section 302 read with section 34 of the Indian Penal Code. 3. It is not disputed that Vikram Bahadur and Prem Kumar alias Mintu (P.W. 6) are two brothers, who along with their sisters inherited a house situate in Ghamapur Mohalla of the City of Jabalpur; that Vikram Badadur has a daughter named Maya and there was a proposal of her marriage with Clement Daniel, a brother of the accused Cyril Daniel, that the proposal war not approved of by Prem Kumar (P.W.6) and that on 3-7-1960 there was an altercation between Prem Kumar (P.W. 6) and Clement Daniel when the latter enquired from the former as to why he was objecting to his marriage with Maya, which resulted in Prem Kumar losing his temper and beating Clement Daniel with his shoes. It is also not disputed that on 6-7-1960, at about 7-30 p.m.. Cyril Daniel was abusing Prem Kumar (P.W. 6) while standing in front of a tea shop belonging to Govind (P.W. 25). Prem Kumar (P.W. 6) at the time was in his house; and Cyril Daniel was challenging him to come out. After a while the deceased Shyamlal and Umashankar (P.W.1) intervened in the quarrel but without any effect. On the other hand, they got improiled in it. Ultimately, Pungad Maharaj alias Pyarelal (P.W. 2), Mahadeo (P.W. 18) and this intervened in the Quarrel with the result that the deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W.1) went towards their houses; while the accused went towards their houses. On the other hand, they got improiled in it. Ultimately, Pungad Maharaj alias Pyarelal (P.W. 2), Mahadeo (P.W. 18) and this intervened in the Quarrel with the result that the deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W.1) went towards their houses; while the accused went towards their houses. The defence does not agree with the details of this quarrel, but, as we are not concerned with those details, I have not thought it necessary to examine the evidence in detail to ascertain whose version of that incident was the correct one. 4. The prosecution case is that after the parties had been persuaded to go to their respective houses, the appellant-accused Kaloo along with his two companions, Sunny and Cyril Daniel, came back to the house of Prem Kumar (P.W. 6). The appellant-accused Kaloo then had a dagger, the accused Sunny an axe and the accused Cyril Daniel a Lathi. While going towards the house of Prem Kumar (P.W.6) they were saying that they would beat him after entering into his house. On seeing the accused coming towards the house of Prem Kumar (P.W. 6), the deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W. 1) followed them. When the appellant - accused and his companions saw that they were being followed by the Deceased Shyamlal, Tilloo (P.W. 4) and Umashankar (P.W. 1) they retreated and went into a lane leading towards their houses. The deceased Shyamlal, Tilloo and Umashankar followed them into the lane and when they were near the electric pole adjacent to the house of Baijnath (P.W. 8), the appellant-accused Kalloo attacked Umashankar with a dagger; and when the deceased Shyamlal ran towards him (Kalloo), the accused Sunny struck him a blow on his head with an axe with the result that he (Shyamlal) fall down. The appellant-accused Kalloo then sat on the thighs of the deceased Shyamlal and inflicted three or four blows on his chest with his dagger. In the meantime, the accused Sunny attacked Umashankar (P.W. 1) with his axe, who in retaliation threw a soda-water bottle at him. Both the soda-water bottle and the axe missed their aims; and these two persons (the accused Sunny and Umashankar (P.W. 1) ran away from the spot. After a while, Mahadeo (P.W. 18) and Phulchand took the deceased Shyamlal in a rickshaw to the Victoria Hospital where he succumbed to his injuries. 5. Both the soda-water bottle and the axe missed their aims; and these two persons (the accused Sunny and Umashankar (P.W. 1) ran away from the spot. After a while, Mahadeo (P.W. 18) and Phulchand took the deceased Shyamlal in a rickshaw to the Victoria Hospital where he succumbed to his injuries. 5. The post-mortem examination of the body of the deceased Shyamlal was performed by Dr. Sinhal (P.W. 29) on 7-7-1960 at about 12 noon. Ex. P-28 is the post-mortem report. He found the following injuries on the person of the deceased : "(1) An incised wound 1½" X 1/3" X lung deep on the left side of the chest, 1½ below and on inner side of the left nipple, obliquely above downwards and outwards tapering towards right side. (2) An incised wound, 1¼" X 1/3" X heart deep an left side of the chest at the level of 4th rib, transversely near the midline, tapering towards right side. (3) An incised would 1" X 1/3” x lung deep on left side of the chest, transversely over the inner part of left side collar bone, tapering towards right. (4) An incised wound, ¾ x ¼" x bone deep on the left lower jaw in the middle, obliquely above, downwards and inwards, tapering below. (5) ‘+' shaped incised wound, 1½” x l/4" broad x sealpdeep on the middle of the head, 4" above the root of the nose. (6) A contusion, 3" x ¾" on the left cheek, vertically below the eye." On internal examination it was found that the left collar bone had been obliquely cut as also the fourth costal cartilage. The pleura was also ruptured under injuries Nos. (1), (2) and (3) and the left lung was ruptured at its apex. Pericardium was cut in the middle and there was a stab wound on the front of left vertricle of the heart penetrating through the cavity and coming out at its base. In the opinion of Dr. Sinhal (P.W. 29), all the injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. He was further of opinion that death was due to shock and haemorrhage as a result of the injuries on the chest. 6. The first information report (Ex. In the opinion of Dr. Sinhal (P.W. 29), all the injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. He was further of opinion that death was due to shock and haemorrhage as a result of the injuries on the chest. 6. The first information report (Ex. P-2) was made by Dashrath Prasad (P.W. 7) at police station, Ghamapur, at about 10 p. m. During the course of investigation, the police arrested the accused and recovered from him the dagger (Art. B) and his pair of trousers (Art. E) and shirt (Art. D). The axe (Art. A) and the bottle (Art. C) were also seized from the spot of the occurrence. The dagger (Art. B) was first examined by Dr. Sinhal (P.W. 29) who, vide his report (Ex. P - 20), stated that it had stains like blood on both sides of its blade and that injuries Nos. (1), (2), (3), (4) and (5) on the person of the deceased Shyamlal, who was examined by him, could be caused by it. The Chemical Examiner, vide his report (Ex. P-32), was of opinion that though the scrapings of the dagger gave positive reaction to the benzidine test, the presence of blood on them could not be confirmed spectroscopically. He, however, found that the trousers (Art. E) and the shirt (Art. D) seized from the appellant-accused Kalloo were stained with blood. The Serologist, vide his report (Ex. P-33), opined that the scrapings from the dagger were not blood-stained, that the stains on the trousers were of human origin, while the origin of the blood on the shirt could not be determined due to disintegration. 7. The appellant-accused Kalloo along with the accused Cyril and Sunny was committed to the Court of Sessions to stand his trial under section 302 of the Indian Penal Code. The accused Cyril and Sunny were charged under section 302 read with section 34 ibid. 8. The defence of the appellant-accused Kalloo as also of the two other accused Cyril and Sunny (who have been acquitted by the learned Additional Sessions Judge) was that after the quarrel, which had been settled due to the intervention of Pungad Maharaj (P.W. 2), they were returning towards their houses through the lane when they heard a cry 'Maro, Maro' coming from behind. On turning round, they saw the deceased Shyamlal, Tilloo (P.W.4), Umashankar (P.W.1) and others armed with weapons pursuing them. The deceased Shyamlal was then carrying an axe. This party of their pursuers was followed by about 20-25 persons. On seeing them, they ran and hid themselves in the verandah of Kamlabai in the lane. The crowd was throwing stones and was also hurling soda-water bottles, some of which fell near the place where they were hiding. In order to save themselves, they then ran away towards the Church compound from where they went to their respective houses. While they were thus running away, the deceased Shyamlal had attempted to assault the accused appellant Kalloo with an axe but the blow had missed him. When called upon to enter his defence, the accused-appellant Kalloo his learned counsel stated :- "I did not cause any injury to Shyamlal. In the alternative, I plead right of private defence of myself as well as of my companions." The defence was thus a complete denial of their complicity in the offence with which they were charged, and, in the alternative, a right of private defence. The appellant-accused Kalloo admitted possession of the dagger (Art. B) as also the fact that the trousers (Art. E) were seized from his person. He also admitted that the trousers (Art. E) were stained with blood; but his explanation was that they belonged to his father who had cut his finger while mending a lead pencil which had caused the blood stains on them. As regards the dagger (Art. B), he stated that it was not stained with blood and was not incriminating. 9. The trial Court acquitted the accused Cyril and Sunny of the offence under section 302 read with section 34 of the Indian Penal Code. As regards the appellant-accused Kalloo, it held that he was the person responsible for inflicting the dagger blows on the chest of the deceased Shyamlal which had resulted in his death. It was, however, of opinion that placed in the circumstances in which the appellant-accused was when he had hidden himself in the Verandah of the house of Kamlabai, the attitude of the crowd in hurling stones and soda-water bottles at the house and their challenging attitude may reasonably have given an apprehension that death or grievous hurt might be caused to him. But, in so far as there was no evidence that the crowd had at any time come to know of his presence in the house of Kamlabai, he was not justified in coming out and attacking the deceased Shyamlal with a dagger four or five times, Killing him practically on the spot. It, therefore, convicted him under section 304, part one, of the Indian Penal Code and sentenced him as stated above. 10. It may here be mentioned that no appeal has been preferred by the State Government against the acquittal of the accused Cryril and Sunny of offences under section 302 read with section 34 of the Indian Penal Code. Its appeal is against the appellant-accused Kallo for the reason that, under the circumstances established in the case, it was wrongly held that he had acted in excess of his right of private defence when, in fact, he had failed to establish that he had any right of private defence at all. 11. It was not disputed before us-and indeed it could not be disputed in view of the medical evidence on record that Shyamlal is dead and that he died of homicidal violence. The only question is whether, and if so, how far the complicity of the appellant-accused in the alleged offence was established by the evidence on record. 12. The learned counsel for the appellant-accused raised two contentions before us :- (1) That the fact that the appellant-accused was the assailant of the deceased was sought to be established on the evidence of Umashankar (P.W. 1), who ought not to be relied upon under the circumstances of the case. (2) That in any case it ought to be held that the appellant accused had acted in the exercise of his right of private defence and that consequently his act was fully protected under section 96 of the Indian Penal Code. 13. Analysing the evidence we find that the case depends on proof of the following circumstances :- (a) Whether, when the appellant along with the accused Cyril and Sunny after being dispersed by Pungad Maharaj (P.W. 2) was going towards the house of Prem Kumar (P.W. 6), he was armed with a danger or any other sharp-edged weapon. 13. Analysing the evidence we find that the case depends on proof of the following circumstances :- (a) Whether, when the appellant along with the accused Cyril and Sunny after being dispersed by Pungad Maharaj (P.W. 2) was going towards the house of Prem Kumar (P.W. 6), he was armed with a danger or any other sharp-edged weapon. (b) Whether, when the appellant-accused along with his companions had retreated into the lane leading to his house, he was pursued by the deceased Shyamlal, Tilloo (P.W. 4), Umashankar (P.W. 1) and others. (c) Whether, the appellant-accused inflicted the injuries in question on the chest of the deceased with a dagger or any other sharp-edged weapon. (d) Whether the behaviour of the deceased, the other pursuers and the other surrounding circumstances were such as could give him a reasonable apprehension that death or grievous hurt would be caused to him so as to bring his act within the provisions of section 96 of the Indian Penal Code. 14. (After discussing the evidence his Lordship come to the conclusion that.); I therefore, do not consider that the learned Judge was justified in holding that it had not been established beyond all doubt that the appellant-accused was armed with a dagger, or any other sharp-edged weapon, when he went towards the house of Prem Kumar (P.W. 6) for the second time. 15. As regards the second circumstance, it is not disputed that the accused were pursued by the deceased Shyamlal, Tilloo (P.W. 4), Umashankar (P.W. 1) and others. There is also overwhelming evidence on the point, and the fact that the fatal assault took place inside the lane further shows that the accused must have been pursued when they were retreating towards their houses. The learned trial Judge has also found that the accused were not visible in the lane till they had emerged out to attack Shyamlal and Umashankar (P.W. 1) further suggested that they (the accused) must have hid themselves in the lane. It is the case of the prosecution that when the deceased Shyamlal and Umashankar (P.W. 1) had reached the lamp-post near the house of Baijnath (P.W. 8), they were attacked by the accused from behind. It is the case of the prosecution that when the deceased Shyamlal and Umashankar (P.W. 1) had reached the lamp-post near the house of Baijnath (P.W. 8), they were attacked by the accused from behind. This story could not be possible unless the defence story that the accused were chased by the deceased Shyamlal and others and that they had did themselves in a house in the lane were true. Evidence discussed. 16. The contention that the evidence on record does not establish the complicity of the appellant in the offence cannot be accepted because the circumstances established in the case leave no room for doubt that he was the assailant of the deceased. No doubt, the evidence on the point is not only not plentiful but discrepant; but, in my opinion, discrepant as the evidence is, it can safely be accepted to this extent. (Evidence discussed and held.) I, therefore, hold that the appellant-accused Kalloo was the assailant of the deceased Shyamlal. 17. The question then is whether the appellant struck the deceased under circumstances which gave him a right of private defence, to bring his case either within the provisions of section 96 or exception 2 to section 300, Indian Penal Code. In my opinion, the learned trial Judge was not right in holding that it could. If the appellant had struck the deceased while he was pursued by a large crowd which was behaving riotously, it could with some reason have been argued that under certain circumstances he could reasonably have the apprehension that he would be grievously hurt or killed to excuse or justify his killing of the deceased. According to Foster 266-7,- "'Self-defence upon chance-medley' implies 'that the person, when engaged in a sudden affray, quitted the combat before a mortal wound given, and retreated or fled as far as he could with safety, and then urged by mere necessity, killed his adversary for the preservation of his own life." 'The true criterion between manslaughter and excusable homicide, or chance-medley in self-defence, says Blackstone in his Commentaries (B1. Com. Com. 184), 'seems to be this' where; both parties are actually combating at the time the mortal stroke is given the slayer is then guilty of manslaughter; but if the slayer hath not begun to fight, or (having begun) endeavours to decline any further struggle, and, afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defence.' 18. I shall hereafter discuss if the case of the appellant can be brought under this head, but before I do that the question arises if he could have any apprehension of death or grievous hurt while he was in a place of concealment. The appellant was retreating through the lane and had hidden himself in the house of Kamlabai. He was being pursued by a crowd at the head of which was the deceased Shyamlal who had liquor in him and who was behaving rather menacingly. The latter (the deceased Shyamlal) was accompanied by some of his associates, some of whom were armed with soda-water bottles, sticks, stones, etc. which they were hurling at random. But, with all this, the pursuers were unaware of the presence of the appellant till he himself chose to make his presence known. There is no evidence that they had come to know of his presence at the house of Kamlabai. There is also no evidence that their attempts were directed at forceing him out of his place of concealment, which was known to them or which they had guessed. Consequently, all that can be said is that their riotous behaviour was menacing in general and was not necessarily directed at the appellant whose whereabouts were unknown to them. He, therefore had no reason to be apprehensive of his safety and to have come out of his place of hiding all of a sudden, taken the law into his own hands attacked Shyamlal with a danger inflicting on him as many as five injuries on vital parts of his body. He, therefore had no reason to be apprehensive of his safety and to have come out of his place of hiding all of a sudden, taken the law into his own hands attacked Shyamlal with a danger inflicting on him as many as five injuries on vital parts of his body. The appellant could have continued to remain in concealment and the whole incident, for which he was also to a large extent to blame, may have passed off without any untoward incident, however, he unnecessarily got panicky and came out of his place hiding and then under the erroneous belief that his life was in danger inflicted several injuries to the deceased with the ostensible purpose saving himself from grievous hurt or death at his hands, he cannot claim the protection under section 96 of the Indian Penal Code. 19. The state of the law appears to be that section 96 of the Indian Penal Code creates an exception to the general law and the burden proving the circumstances justifying an inference that the case is brought within the exception is on the accused. No doubt, the burden is not onerous as on the prosecution to prove the guilt of the accused beyond reasonable doubt and may be discharged by evidence satisfying the court of the probability of that which he is called upon to establish. He may also take advantage of the material on record to establish his plea, for is on the totality of the evidence that his guilt is to be judged. Yet, there must be material on record upon which the plea can be substantiated. He can succeed only on the basis of evidence. He cannot succeed on the basis of surmises or presumptions, because under section 105 of the Evidence Act the court shall not presume the existence of circumstances establishing the plea: [see Bala Prasad Vs. State of Madhya Pradesh 1961 ILJ 353 = 1961 MPLJ 71 = AIR 1961 MP 211 20. In the instant case none of the factual constituents by which the plea of self-defence could be made out has been established, and consequently in my opinion the plea is not available to the accused under the circumstances of this case. In the first place, neither the prosecution nor the defence establishes that the deceased was armed. In the instant case none of the factual constituents by which the plea of self-defence could be made out has been established, and consequently in my opinion the plea is not available to the accused under the circumstances of this case. In the first place, neither the prosecution nor the defence establishes that the deceased was armed. It is not enough to show that the prosecution has failed to prove the ownership of the axe (Art. A) seize from the spot. This omission on their part secured for the accused Sunny the benefit of doubt (though I am not called upon in this appeal to decide on the merits of his acquittal on this ground); but it cannot lead us to the positive conclusion that it belonged to the deceased or that he was armed with it at the time he was struck by the appellant-accused. This is specially so because I am of opinion that the accused Sunny had an axe when on the main road and that axe has not been accounted for. Secondly, the number and position of the injuries do not show that they could have been inflicted to the deceased by the appellant-accused in self-defence. The appellant-accused does not explain how they were caused and they appear more consistent with the fact that they were inflicted on the deceased after he had been felled to the ground or had fallen down. Thirdly, there is no material to show that at the time he was struck, the deceased was the aggressor or that he had by his act or conduct plainly manifested an intention to cause death or bodily harm to the appellant accused. Not only there were no injuries on the person of the accused - appellant, but that there was no other circumstance which could show that he could have a reasonable apprehension that death or grievous hurt could be caused to him so as to entitle him to take the offensive and cause the death of the deceased. Not only there were no injuries on the person of the accused - appellant, but that there was no other circumstance which could show that he could have a reasonable apprehension that death or grievous hurt could be caused to him so as to entitle him to take the offensive and cause the death of the deceased. The statement of the appellant-accused that the deceased had attempted to strike him with an axe while he was trying to run away from the hiding place but that he managed to escape, though he fell into the Nala does not commend itself to me as apart from the fact that it does not seek to involve him at all in the fatal assault on the deceased, it also does not explain how and under what circumstances the injuries to the deceased were caused. Further, if the appellant-accused had managed to escape, the assault on himself, where was the necessity for him to come back from the nala where he had fallen down and then attack the deceased so savagely as to inflict about five injuries on the vital parts of his body with a dagger? The circumstances established fail to show that there was any urgent necessity to avoid an immediate injury which alone could excuse or justify the killing of the deceased. A bare statement that alternatively he (the appellant-accused) had killed the deceased in self-defence is not enough. He must place before us all the circumstances from which a Court can reasonably infer that there was immediate and imminent danger to the life or limb of the appellant which justified his act. I am also of opinion that the mere fact that the deceased, who was one of his pursuers, was present in the lane along with his. companions who were behaving riotously was not sufficient to give to the appellant-accused a right to kill him at sight; and in the absence of material on record, I cannot, because of section 105 of the Evidence Act, presume that circumstances must have existed which gave him that right. Fourthly, as shown by me earlier, if the appellant accused "as in the hiding, he had still less reason to be apprehensive of his life till it was shown that his whereabouts had become known to the deceased and his associates. Fourthly, as shown by me earlier, if the appellant accused "as in the hiding, he had still less reason to be apprehensive of his life till it was shown that his whereabouts had become known to the deceased and his associates. In my opinion, he could not, while in retreat, use the hiding place as an ambush for choosing his time and opportunity to inflict injuries on his pursuers. Fifthly, admittedly the deceased and his companions were quite a few in number and the deceased was a known rough of the locality. Under the circumstances it does not appear probable that the appellant-accused could go on inflicting five fatal injuries on the vital parts of the person of the deceased in self-defence without receiving any injury himself. Sixthly, the appellant-accused docs not explain where he got the dagger from with which the injuries were inflicted on the deceased. If he did have the dagger when he went to the [house of Prem Kumar (P.W. 6) as I have held earlier, he was clearly an aggressor and would have little justification to inflict injuries on a person who was thwarting his unlawful designs. If, however, I am wrong in my finding that he did have the dagger, then he must have obtained it subsequently while he was supposed to be in the hiding, in which case his act in attacking the deceased could not be in the bona fide exercise of his right of private defence. It he could obtain a dagger, he could equally well have made good his escape or avoided the danger which he believed threatened him in the lane. Seventhly, the conduct of the appellant-accused in going to the house of Prem Kumar (P.W. 6) with his companions, all armed-some with deadly weapons-when they knew that his (Prem Kumar's) supporters were there and had once before thwarted them in their attempt to beat him, showed that they were willing to enter into a fight with the deceased and others with deadly weapons. Consequently if the appellant-accused pleaded that he killed the deceased in self-defence, the greater burden lay on him to establish that he acted bona fide and had done all in his power to avert the necessity of killing. Consequently if the appellant-accused pleaded that he killed the deceased in self-defence, the greater burden lay on him to establish that he acted bona fide and had done all in his power to avert the necessity of killing. The law does not give to an aggressor the same protection which it gives to a person who defends a wanton aggression which he had not invited and for which he was in no way responsible. It is settled law that an accused cannot avail himself of a necessity which he has wilfully created. 'Neither shall a man in any case justify the killing of another by a pretence of necessity unless he were himself wholly without a fault in bringing that necessity upon himself': (Hawk. P.C. 1, 28, 22). On the other hand, I am by no means certain that the hiding by the appellant-accused was not a ruse to lure the deceased and his companions into the narrow lane in order to give him an opportunity of accomplishing his felonious intent of fatally assaulting the person responsible for thwarting his design to beat Prem Kumar (P.W.6). In all the cases, says East 282, of excusable self defence, 'it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice. For if one attacked another with a dangerous weapon, un-prepared, with intent to murder him, that would stand upon a different foot, and in that case, if the person whose life was sought killed the other, that would be in self-defence, properly so-called, which does not induce any forfeiture. But, if the first assault be upon malice, and the flight be feigned as a pretence for carrying that malice into execution, it would undoubtedly be murder; for then the flight rather aggravates the crime, as it shows more deliberation'. 21. I shall now consider if the appellant-accused can be said to have exceeded his right of private defence as held by the learned Additional Sessions Judge. 22. 21. I shall now consider if the appellant-accused can be said to have exceeded his right of private defence as held by the learned Additional Sessions Judge. 22. Under Exception 2 to section 300 of the Indian Penal Code, culpable homicide is not murder if the offender, in the exercise in good faith of the right of the private defence of his person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such a right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. In the instant case, none of the circumstances necessary for the application of the provision are established. On the other hand, the best that can be said in favour of the appellant-accused is that he became unnecessarily panicky and came out of his hiding place either because he felt that it had become insecure or because he believed that his presence would sooner or later be discovered by his pursuers. For both of these inferences there is no material on record. Consequently, it cannot be said that his act was done in the exercise in good faith of his right of private defence. 'Good faith' under the Indian Penal Code requires due care and attention. In my opinion, in coming out of his place of concealment, he cannot be said to have acted with due care and attention. There is no material on record to establish that his place of concealment had become insecure or that when he came out on the honest belief that it had become insecure, there was some overt act on the part of the deceased which gave him (the appellant) a reasonable basis for the apprehension that his life or limb was in danger. It is pointed out in Wharton's Criminal Law, Vol.1 para 217, that a, belief that there is apparent danger is not justified unless the victim has done some act indicating an intention to expose the defendant to immediate danger; and that because of the requirement of an overt act as the basis for the defendant's belief for the necessity of acting in self-defence, the fact that the defendant anticipates that the victim will kill him if the victim has the opportunity to do so does not justify the defendant in killing the victim. Similarly, in Roscoe's Criminal Evidence, Sixteenth Edition, at p. 743, it is stated, relying on East P.C. 271-2, after 1 Hale 478, that 'a bare fear of any of these offences (viz., murder, rape, robbery, arosan, burglary and the like), however well grounded; as that another lies in wait to take away the party's life; unaccompanied with any overt act, indicative of such an intention; will not warrant him in killing that other by way of prevention; there, must be an actual danger at the time'. In the words of Foster 277, the killing must appear to be done from 'urgent necessity' and 'to avoid immediate injury'. 23. Then again, the application of the Exception aforesaid presupposes that there must exist a right of private defence, for, unless such a right is there, it cannot be exceeded. Consequently, placed as the appellant-accused was either in his place of concealment or outside in the lane, he should have been in some immediate and imminent danger, howsoever slight, of receiving bodily injury, so that he could have a reasonable apprehension of some hurt to himself to give him a right of inflicting injury on others in defence of his person. No doubt, it is not the actual danger but the danger as it appeared to the appellant-accused which must be the criterion. But the apprehension of danger must be the apprehension of a reasonable man. Consequently, a belief by the appellant howsoever sincere and honest, that this life was in danger or that he may be grievously hurt will give him no protection, if, in fact, the belief was not reasonable. What is more, there must be material on record from which a Court can reasonably infer that there was basis for such a reasonable belief. What is more, there must be material on record from which a Court can reasonably infer that there was basis for such a reasonable belief. It is for this reason that any contention on behalf of the accused that he misapprehended the hostile intentions of others or took an unduly exaggerated or panicky view of the situation or acted under fright or undue excitement, when there was no reasonable ground for the belief that a reasonable person possessed of ordinary firmness or reason would have so believed cannot be accepted. This is neither the case of a person at bay whose retreat is barred and who has therefore no other recourse open to him except to defend himself by inflicting injuries on his adversary, nor a case of a person whose house, which is proverbially his castle, is being stormed and who therefore stands his ground and defends it and his person with all the resources at his command. In such cases, the law does not expect him to run away from the danger but to stand his ground and defend his person and property. But, in the instant case, as long as the appellant accused remained in his place of concealment, he could not have any reasonable apprehension of even simple hurt, let alone the apprehension of death or grievous hurt. It was his duty to avoid the danger to the limits of his personal safety and not to have sought the danger by practically inviting it by coming out in the open. Again, even if he did come out in the erroneous belief that the danger was over, he had no right to inflict fatal injuries to the deceased in the bona fide exercise of a right of private defence, unless he established that on coming out he was again faced with an immediate and imminent danger to his life or limb. The appellant accused does not say so, and the learned counsel has not placed before us any material from which such danger could be reasonably inferred; and in the absence of any such material, section 105 of the Evidence Act prohibits us from presuming the existence of such material. 24. I am, therefore, of opinion that the appellant was not entitled to the benefit of section 96 of the Indian Penal Code nor to the benefit of Exception 2 to section 300 ibid. 24. I am, therefore, of opinion that the appellant was not entitled to the benefit of section 96 of the Indian Penal Code nor to the benefit of Exception 2 to section 300 ibid. He would, in the result, be guilty of an offence under section 302 of the Indian Penal Code. 25. I accordingly set aside the conviction and sentence of the appellant Kalloo under section 304, part one, of the Indian Penal Code, and instead convict him under section 302 of the Indian Penal Code. Looking to the circumstances of the case and the fact that the killing was in a panic, a sentence of imprisonment for life would amply meet the ends of justice. I accordingly sentence the appellant-accused Kalloo to imprisonment for life. 26. The appeal of the appellant-accused Kalloo (Criminal appeal No.95 of 1961) accordingly fails and is dismissed; and the appeal of the State Government (Criminal appeal No. 209 of 1961) is allowed. Golvalker, J.- 27. I have had the privilege of reading the opinion of my learned brother Naik, J. I am in respectful agreement with him that it is the appellant-accused who assaulted Shyamlal and caused his death. But, in my opinion, his appeal has to be allowed as the evidence on record adequately discloses that he had acted in the exercise of his right of private defence. At any rate, there is a reasonable doubt created by the evidence on record that the stabbing may well have been in self-defence. 28. The only witness who has been relied upon by the trial Judge is Umashanker (P.W.1). Nevertheless he too has been found, and very correctly, to have not told the whole truth, even though he was in a position to witness the entire incident. In the view I take of his evidence he has been guilty both of suppression of truth as also of distortion and of telling lies. The most material fact which he has suppressed is with respect to the individual who had the axe in his hand and which was found on the spot near the body of the deceased. In fact the prosecution is primarily guilty in this matter. The most material fact which he has suppressed is with respect to the individual who had the axe in his hand and which was found on the spot near the body of the deceased. In fact the prosecution is primarily guilty in this matter. Investigation either was deliberately not made to find out who the owner was of that axe and how it came to be at the spot of incident or having been made it was not found convenient to place before the Court the evidence that was collected lest it may indicate the attitude of the deceased at the relevant time of incident. In either case the conduct being unfair and dishonest has to be condemned. The witness Umashanker too conducted himself in the witness box towards the same and by inventing a version that it was accused Shani (acquitted) who had that axe and that he had given a blow of the same over the head of the deceased, a version apparently untrue there being no such injury suffered by the deceased. 29. If admittedly the accused-appellant had not the axe, the question who could possibly have had it necessarily arises. The deliberate omission on the part of the prosecution to furnish a reply to the same inevitably leads one to the conclusion that it must have been in the hands of the deceased. No one else, in the circumstances on record, can be reasonably pointed out to have had it. If, therefore, that was the position it is inconceivable that the deceased so armed made no attempts to use it and allowed the accused-appellant to stab him. It is similarly inconceivable that witness Umashanker too remained a mere spectator. It is this part that must have been played both by the deceased and this witness, which has been suppressed for obvious reasons. 30. The trial Court has denied the benefit of the right of self defence to the accused appellant on the ground that as he was safely concealed in the house of Mst. Kamla bai, and as his place of concealment had not been detected by the deceased and his companions there could reasonably be no apprehensions of any kind much less of any likelihood of receiving grievous injuries. Kamla bai, and as his place of concealment had not been detected by the deceased and his companions there could reasonably be no apprehensions of any kind much less of any likelihood of receiving grievous injuries. Further, in the opinion of the trial Court, the accused-appellant could have continued to remain safely concealed there till the departure of his pursuers from the scene. The trial Court is of the opinion that "all the noise and treats were idle threats not intended to be put into execution immediately" by the deceased and his associates. There is apparently no basis for taking such a view. On the contrary from all that had transpired till then it would simply be ridiculous and puerile to entertain such feelings. The conclusion of the trial Court that the accused-appellant ought to have paused and reflected over the situation before emerging out in open is in my opinion absolutely untenable. 31. The trial Court appears to have lost sight of the fact that the owner of the house, Mst. Kamlabai (P.W. 5), was away at that time at the Pan shop of Dwarka Prasad and the place where the accused had taken shelter was merely a verandah (Parchi) of that house. I am, therefore, unable to understand how it could be held to be a secure place and how it could have remained undiscovered for long. The very fact that the deceased and his comp anions had pursued the accused-appellant and his companions with an avowed motive and had also stopped in the lane, the so called shelter would never have remain undisclosed for long. Once it was discovered, the fate of the accused-appellant and his companions would have been sealed finally. The anticedents of the deceased and his followers being so well known, the accused-appellant and his companions in that event were bound to have visualised what their fate would inevitably be. In such a predicament it would be too tall an expectation from the accused-appellant and his companions to have paused and reflected in 'a cool and collected manner. Their decision, taken at the spur of the moment, to emerge out in open, where certainly they would have definitely been in a more safe and advantageous position, could never be called even a foolhardy one. Their decision, taken at the spur of the moment, to emerge out in open, where certainly they would have definitely been in a more safe and advantageous position, could never be called even a foolhardy one. Even the possibility of this decision being an outcome of an honest belief that their way home was clear, cannot also be ruled out. There was for a time little lull as has been deposed to by Baijnath (P.W. 8). He has his house where the incident occurred. In any case that decision has to be judged by placing oneself in the position of the accused in the midst of these circumstances, and then an opinion has to be formed whether or not one could possibly and reasonably come to that decision. A timid individual perhaps might not have behaved in that manner. Nevertheless when held at bay even a weakling is found to become desperate and attempts, as much as his might may permit, to secure an escape. So it is never safe to lay down rigidly and one particular course of conduct for all and every person in all and every situation. 32. So then when the accused-appellant accompanied by his two companions emerged out of their hiding in the side lane and arrived on the main lane, what the deceased and his companions must have done and how the appellant and his companions must have reacted could be very vividly visualised, and has already been indicated. Whatever evidence that could be made available on this matter, as already observed, has been suppressed. However, in the situation that can be imagined it would have to be accepted that the accused very squarely had a right of private defence. The situation in which the accused-appellant and his companions found themselves was bound to give rise to an apprehension in their minds that their life was positively in danger unless they acted quickly. However, in the situation that can be imagined it would have to be accepted that the accused very squarely had a right of private defence. The situation in which the accused-appellant and his companions found themselves was bound to give rise to an apprehension in their minds that their life was positively in danger unless they acted quickly. It is also possible, as already pointed out before, that having come out in the open in the belief that all was clear, the appellant and his companions must have been taken unawares, and when found faced with the imminent danger to their life, the appellant appears to have rushed with his knife in hand in a desperate attempt to carve out a passage, and in that attempt appears to have stabbed the deceased who could not possibly use his axe from such close quarters. 33. It is now well settled that without specifically pleading to have acted in the exercise of right of self defence, and even without himself examining any witness, an accused can avail of that plea by reference to the circumstances appearing in the prosecution evidence itself that in order that the prosecution should succeed, the prosecution evidence must be such as conclusively negative the plea of self-defence. For, even if such a plea is not positively established but one is left in doubt the accused is entitled to be acquitted on the ground that the prosecution has not proved its case beyond reasonable doubt; that it is the duty of the prosecution not to suppress any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his right of private defence and the paramount duty of the Court is' to shift and scan the evidence carefully with a view to finding out the circumstances under which the accused had to use the weapon. In such a case, the evidence of witnesses who seem to have made decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot be safely acted upon by the Court; that it is also not necessary nor does the law require that the accused should wait till he receives a grievous injury for the purpose of exercising his right of private defence, that it is also not necessary for the accused to retreat, as is required in the English law. He is entitled to stay his ground and face his assailant; that the Courts have to take a practical view of the circumstances from the stand point of the accused and not from that of a cool bystander; that the Courts have to make all reasonable allowances in favour of a person, who in fear of his life or limb gives harder blows than appear necessary to a calm spectator watching or called upon to consider it while being not only at a safe distance but also in an atmosphere quite different from the one in which the accused was found; that once the situation has assumed a dangerous form the accused called upon to face it is not expected to maintain sangfroid and remain composed and unperturbed; that a "detached reflection cannot be demanded in the presence of an uplifted knife" to use the words of Holmes, J. (Brown Vs. United States), that, to use further his words, "if the last shot was intentional, and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others, while the heat of the conflict was on, and if the defendant believed that he was fighting for his life". Brown Vs. United States. 34. All these aforesaid principles have been duly recognised, accepted and given effect to since long. It is not necessary to quote all of them here. It is sufficient to quote hereunder a few of the late ones: Sumran Vs. State 1962 JLJ SN 42 = 1959 MPLJ SN 101, State Vs. Gulab 1962 JLJ SN 78 = 1959 MPLJ SN 145, Bala Prasad Vs. State 1961 JLJ 353 = 1961 MPLJ 71 = AIR 1961 MP 241 , Barisa Mudi and others Vs. The State AIR 1959 Pat. State 1962 JLJ SN 42 = 1959 MPLJ SN 101, State Vs. Gulab 1962 JLJ SN 78 = 1959 MPLJ SN 145, Bala Prasad Vs. State 1961 JLJ 353 = 1961 MPLJ 71 = AIR 1961 MP 241 , Barisa Mudi and others Vs. The State AIR 1959 Pat. 22 at. Pp. 28 & onwords, Souri Attorney Vs. State of Kerala 1960 MLJ (Cr.) 272, and Govindan Neelambaran Vs. State of Kerala AIR 1960 Kerala 258. 35. Therefore, viewing the evidence on record in the right of the legal position indicated in the foregoing paragraphs. I cannot but come to the conclusion that the appellant could not be held guilt at all any offence punishable under the Penal Law of India. His conviction therefore, under section 304 (Part I) Indian Penal Code, could not be sustained. His giving of the blows after blows with the knife in quick succession, one following closely the other could never in the circumstances so well established be said to be in excess of his right of private defence. I have therefore no hesitation in allowing this appeal and accordingly I order. 36. The result therefore, is that I set aside the conviction and sentence of the accused and acquit him. In this view the appeal filed by the State claiming alteration of his conviction to one under section 302, Indian Penal Code has to be dismissed and accordingly I do. ORDER OF REFERENCE (1-12-1961) T.P. Naik and N.M. Golvalker, JJ. – 37. Our separate opinion delivered, dated and signed. As we are divided in our opinion as to the guilt of the appellant accused, the papers shall be laid before Hon. The Chief Justice for nomination another Judge of this Court before whom the case can be laid for his opinion as provided for in section 429 of the Code of Criminal Procedure OPINION Shrivastava, J. – 38. Victor alias Kalloo, appellant in Criminal Appeal No.95 of 1961, was tried along with two others Sunny and Cyril Daniel under section 302 read with section 34 of the Indian Penal Code for having Intentionally caused the death of one Shyamlal on 6-7-1960. The appellant Kalloo was convicted under section 304, Part I and the other two accused were given the benefit of doubt and acquitted by the Additional Sessions Judge, Jabalpur, who tried the case. The appellant filed an appeal against his conviction and sentence. The appellant Kalloo was convicted under section 304, Part I and the other two accused were given the benefit of doubt and acquitted by the Additional Sessions Judge, Jabalpur, who tried the case. The appellant filed an appeal against his conviction and sentence. The State also filed an appeal (Criminal Appeal No. 209 of 1961) against the acquittal of the appellant under section 302, Indian Penal Code. Both these appeals were heard by a Division Bench of this Court consisting of Naik and Golvalker, JJ. The learned Judge have differed – Naik, J. holding that there was no right of private defenon and the appellant should have been convicted under section 302 of the Indian Penal Code and Golvalker, J. holding that the appellant had a right of Private defence and should have been acquitted. The appeals have, Therefore been referred to me under section 429 of the Criminal Procedure Code. 39. There was a proposal of the marriage of Maya, sister of Prem Kumar alias Mintu (P.W.6) with Clement Daniel, brother of Cyril Daniel, Mintu was opposed to this. On 3-7-1960 there was a quarrel between Mintu and Clement Daniel on this question and he beat Clement Daniel with shoes. Later on 6-7-1960 at 6.30 p.m. Clement Daniel’s brother Cyril Daniel, who was an accused in this case, abused Mintu and challenged him to come out Mintu did not come out and ultimately at the intervention of Pyarelal (P.W.2) and Mahadeo (P.W. 18) the incident ended in Cyril’s party retiring. 40. Soon after, appellant Kalloo (Victor), accompanied by Sunny and Cyril came back to the house of Mintu. The prosecution alleged that they were then respectively armed with a dagger, axe and a stick. The deceased Shyamlal, Tillu (P.W.4) and Umashanker (P.W.1) who are men of the party of Mintu followed them. Seeing this, Kalloo’s party retreated to a side land which led to their houses. Shyamlal’s party pursued them and when they reached the end of the lane near the house of Baijnath (P.W.8) the appellant Kalloo struck Shyamlal with a dagger as a result of which he died the same night. 41. The defence version of the incident is that while the party of the accused was retiring to their house through he lane, they heard cries of “Maro, Maro” from behind and saw Shyamlal. Tillu and Umashanker armed with weapons pursuing the,. 41. The defence version of the incident is that while the party of the accused was retiring to their house through he lane, they heard cries of “Maro, Maro” from behind and saw Shyamlal. Tillu and Umashanker armed with weapons pursuing the,. The ran and hid themselves in the verandah of Kamlabai. Soda-water bottles were hurled all around and to save themselves they ran away towards the Nala but met Shyamlal, who raised his axe to stricek Kalloo. The blow missed him. Kalloo denied that he struck back Shyamlal and stated that he just ran away. However, his counsel stated on his behalf that the facts disclosed by the evidence on record show that the appellant acted in self-defence to save his life when he struck Shyamlal with a dagger causing fatal wounds. 42. After discussing the evidence in great detail both the learned Judges have come to the conclusion that Shyamlal was struck by the appellant Kalloo with a dagger inflicting the three incised wounds on his chest causing injures to his heart and lungs. These injuries were sufficient in the ordinary course of nature to cause death. It is no longer open to the appellant to contend that these injuries were not caused by him, as it is only on points of difference that I have to record my opinion. [See Ramlal Singh Vs. State 1959 JLJ 306 = AIR 1958 MP 380 . 43. It was not disputed before me that when the party of the accused consisting of Kalloo, Cyril and Sunny turned towards the lane to go to their respective house, which lie to the west of the lane at a short distance from it. They were followed by Shyamlal deceased, Umashanker (P.W.1), Pyare Lal (P.W.2), Dashrath Prasad (P.W.7), Tillu (P.W.4), and Gorelal (P.W. 13) Shri Rajendra Singh, learned counsel for the appellant, pointed out that the Party consisted of 20-25 persons; but from the evidence of the prosecution witnesses it is clear that there were only five persons in the party, though they were followed by some others who were no more than mere spectators. At this stage, it is necessary to find out whether the party of the accused was armed with dagger, axe and Dathis; more particularly whether the deceased Shyamlal had an axe with him. At this stage, it is necessary to find out whether the party of the accused was armed with dagger, axe and Dathis; more particularly whether the deceased Shyamlal had an axe with him. On this point, the trial Court, after analysing the prosecution evidence, came to the conclusion that the prosecution witness failed to prove beyond doubt that the party of the deceased had any arms. The question has been examined by Naik, J. in paragraph 15 of his opinion. Discarding the evidence of Pyarelal (P.W. 2) and Gorelal (P.W.13) as well as of Umashanker (P.W. 1), the learned Judge considered Kandhilal (P.W. 12) as reliable, as he was disinterested. The house of Kandhilal is at the end of the lane where it meets the main road at the place where both the parties had entered it. Kandhilal was sitting at the time in the balcony of his house. He stated that he saw a dagger in the hands of Kalloo, an axe in the hands of Sunny and a Lathi in the hands of Cyril Daniel. The learned counsel for the appellant pointed out that there is enough material on record to show that Kandhilal is a man of the party of the deceased. Pyarelal (P.W. 2) has admitted in paragraph 5 of his statement that in the case which was started against his party under section 107 of the Criminal Procedure Code, the deceased Shyamlal, Umashanker's brother Mahadeo, Kandhilal and Dashrath Prasad were co-accused with him. Kandhilal himself has admitted in paragraph 7 of his statement that inspite of his being innocent, the police had arrested him in the case under section 107 which was ultimately compromised. It would thus appear that this witness is interested in the party of the accused and like the other prosecution witnesses, implicit reliance cannot be placed on his word. The learned counsel for the appellant conceded that in view of the concurrent finding in the two opinions that Kalloo had. assaulted the deceased with a dagger, he was unable to dispute the fact that Kalloo had a dagger with him at the time and as there was no place from where he could get it immediately before the assault, he must have been armed with it when he entered the lane. However, the real point is as to whether the deceased Shyamlal had an axe. However, the real point is as to whether the deceased Shyamlal had an axe. Although there is no evidence on this point, the fact that an axe was found lying quite close to the deceased Shyamlal lands support to the view that it was with him. The alternative explanation which is given by Umashanker and other prosecution witnesses that the axe was with Sunny cannot be accepted, as these witnesses are highly partisan and interested and their statements have been considered unreliable. The prosecution has not been able to prove the identity of the owner of the axe which was found lying near the body of Shyamlal and it cannot therefore be said that it belonged to Sunny. I am, therefore, of the view that the party of the accused was not armed with an axe, although Kalloo carried a dagger. 44. Turning now to the incident as it happened, the evidence of the prosecution witnesses, Pyarelal (P.W. 2), Gorelal (P.W. 13) and Tillu (P.W. 4), who deposed on the point, has been rejected, The trial Court relied only on the statement of Umashanker (P.W. 1), and Naik J. in discussing his evidence pointed out that the witness was highly partisan and unreliable, though he could be classed as "a witness who is partly reliable and partly unreliable". The test applied in appreciating his testimony was that only that part of his statement which was corroborated by other witnesses could be accepted. The only point on which corroboration was available from Dashrathprasad (P.W. 7) was that the appellant Kalloo had struck the deceased Shyamlal with a dagger. 45. Umashanker (P.W. 1) gave his version of the incident in paragraph 5 of his statement as follows: "We entered the lane and when we had reached the house: of Sabunwalal (Baijnath) we heard some noise from behind. Some people were following us. I turned round and saw Cyril, Kalloo and Sunny coming behind. I warned Shyamlal to take care. Accused Kalloo rushed at me with his dagger and Shyamlal rushed at Kalloo. Sunny gave a blow with his axe on the head of Shyamlal from behind. Shyamlal fell down. Shyamlal was unarmed. When Shyamlal fell down, Kalloo sat on his thighs and gave three or four blows with his dagger on his chest. I shouted for help saying that Sunny and Kalloo were killing Shyamlal. Sunny gave a blow with his axe on the head of Shyamlal from behind. Shyamlal fell down. Shyamlal was unarmed. When Shyamlal fell down, Kalloo sat on his thighs and gave three or four blows with his dagger on his chest. I shouted for help saying that Sunny and Kalloo were killing Shyamlal. As I shouted, Sunny rushed at me with his axe and I threw a soda-water bottle at him. It did not strike him and the blow with axe which he made at me did not strike me. I fell down and Sunny also fell down. I ran away towards the road. Cyril, Kalloo and Sunny ran away by the lane of Paul Jackson." Examining this statement, the trial Judge found that the story about the attack by Sunny with his axe on Shyamlal was not true, and this conclusion has been accepted by both the learned Judges. The medical evidence (Dr. P. N. Singhal, Assistant Civil Surgeon, P. W. 29) disclosed that the deceased Shyamlal had no injury on his head which could be attributed to an axe. This part of the story given by Umashanker (P.W. 1) is thus wholly unreliable and therefore the explanation that the axe was with Sunny and was left by him cannot be accepted. The statement of the accused that the axe was with Shyamlal deceased appears to be more probable. 46. I would here refer to the map filed by the prosecution and that filed by the appellant before me. The accuracy of these two maps was admitted by both the parties. The lane runs north-south and the road lies east-west meeting it at the northern end. As one enters the lane from the road, that is, from the northern end, there is a lane turning right which takes one to the house of Sunny. Proceeding further along the lane towards the south, there is a lane going to the left and further down there is another lane in the same direction. It is here that we have the house of Kamlabai where the accused hid themselves. Going further a few feet is the spot at the southern and of the lane where the body of Shyamlal was found with the axe lying near him and then there is the electric pole to which reference has been made by the prosecution witnesses. It is here that we have the house of Kamlabai where the accused hid themselves. Going further a few feet is the spot at the southern and of the lane where the body of Shyamlal was found with the axe lying near him and then there is the electric pole to which reference has been made by the prosecution witnesses. As the deceased was found to the south of the house of Kamlabai and as the party of the accused was ahead of the party of the deceased when they entered the lane, the statement of the accused that they had hid themselves in the house of Kamlabai appears to be true. Referring to the map of Kamlabai's house, which has been filed by the appellant and which has been admitted by the prosecution, we find that the open verandah lies to the extreme south of her house facing the lamp-post and between this verandah and the lamp-post is the spot where the dead body of Shyamlal was found. The statement of the accused that they hid in the verandah of Kamlabai refers to this open verandah. 47. The situation of the open verandah is important, as on it depends the appreciation of the fact whether the accused were in any danger of being discovered. Naik, J. has held that while the accused were hiding safely in the verandah and had no fear of being discovered, they should not have come out in the open to attack the deceased. On the other hand, Golvalker, J. holds that they were insecure in the verandah and their presence would have been sooner or later discovered. On examining the situation of the verandah, the lamp-post and the place where the dead body of Shyamlal was found, I am inclined to agree with the latter view. The light from the lamp-post was falling in the verandah. It is true that the party of the deceased had not discovered the presence of the accused in their hiding place before going beyond Kamlabai's verandah. All the same, as stated by Baijnath (P.W. 8), the party of the deceased was behaving in a rowdy and threating manner. They were throwing soda-water bottles and stones on the houses nearby and some fell on Baijnath's house also. All the prosecution witnesses say that they were all using abusive and threatening language. All the same, as stated by Baijnath (P.W. 8), the party of the deceased was behaving in a rowdy and threating manner. They were throwing soda-water bottles and stones on the houses nearby and some fell on Baijnath's house also. All the prosecution witnesses say that they were all using abusive and threatening language. It seems to me that when the accused were pursued closely, they found their escape from the lane towards the Nala at the south impossible and took the chance of hiding themselves in the open verandah. However, when some of the members of the party, including Shyamlal, passed beyond that point, they immediately realished that they would be found out. In his statement before the committal Court, Kalloo had stated: "No, we were hiding. These persons saw us and we ran towards our house." He stated before the Sessions Court as follows : "When we entered the lane to go towards our houses and had gone about 10 or 15 steps, we heard the noise from behind 'MARO SALON KO JANE NAHI PAYE'. We turned round and saw Shyamlal with an axe in his hand, Umashanker, Tillu, Gorey, Dashrath and Mahadeo who had daggers and sticks. They were chasing us. We ran and hid ourselves in Kamla's Parchhi. About 30 to 35 men ran towards our houses. It was dark. Several stones and three or four soda-water bottles fell at the place where we were hiding and burst like bombs. The people were dashing their sticks on the ground. We were afraid and ran towards the Church compound to save our lives...... " It is likely that the statement of the accused before the committal Court that their presence was discovered by the party of the deceased is true. 48. Shri Rajendra Singh for the appellant suggested that the appellant while trying to escape met Shyamlal, who must have raised his axe to strike the appellant, and the appellant must have struck Shyamlal in self-defence. I have already extracted the material part of the statement of the appellant before both the Courts below. He did not state at any time that Shyamlal had raised his axe to strike him. There is thus no foundation for the statement either in the cross-examination of the prosecution witnesses or in the statement of the appellant. 49. I have already extracted the material part of the statement of the appellant before both the Courts below. He did not state at any time that Shyamlal had raised his axe to strike him. There is thus no foundation for the statement either in the cross-examination of the prosecution witnesses or in the statement of the appellant. 49. In view of section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the India Penal Code is on the accused. There is a divergence of opinion about the exact nature of the burden of proof cast on the accused by this section. Typical of the two opposite views are the decisions in Parbhoo Vs. Emperor AIR 1941 All 402, and Government of Bombay Vs. Sakur AIR 1947 Bom 38. The view in the first case is that the accused is not required to prove the facts beyond reasonable doubt; but if on a review of the evidence the Court is left in doubt whether the circumstances bring the case within the general exception, the accused is entitled to an acquittal. In the second case, the burden has been held to be heavier in the sense of the word "proved" as given in section 3 of the Evidence Act. 50. So far as our High Court is concerned, it has always taken the first view. Thus, in Holia Vs. King Emperor ILR 1948 Nag. 903, Division Bench of this Court referred to several decided cases on the point, viz., Woolmington Vs. The Director of Public Prosecutions (1935) AC 462, Robert Stuart Wauchope Vs. Emperor ILR 61 Cal. 168; Bapurao Vs. King Emperor 21 MPLC 307 = ILR 1937 Nag. 38; King Emperor Vs. U. Damapala ILR 1936 Rang, 666 (FB), and Emperor Vs. Basangouda Yamanappa ILR 1941 Tom. 315, and concluded as follows: According to all these cases all that may be necessary for the accused is to offer some explanation of the prosecution evidence, and if this appears to the Court to be reasonable, even though not beyond doubt and to be consistent with the innocence of the accused, he should be given the benefit of it." The test was applied to the facts of the case and the learned Judges were not satisfied that the statement of the accused created a reasonable doubt. The explanation of the accused in that case was that he was provoked by his wife into fatally assaulting her on account of her insistence to go to her parents. This was not considered to be sufficient explanation "even to raise a reasonable doubt that the special circumstances of grave and sudden provocation as he has alleged may have been present." The statement by itself was not therefore considered enough without any more evidence on behalf of the accused and conviction under section 304, Part I, was altered to that under section 304 Part I, was altered to that under section 302 of the Indian Penal Code. 51. In Bala Prasad Vs. State of Madhya Pradesh 1961 JLJ 353 = 1961 MPLJ 71 = AIR 1961 MP 241 , Naik, J. speaking for the Court stated the law in paragraph 21 as follows: "What section 105 of the Evidence Act provides is that the Court shall not presume the existence of facts which may bring a case within the exceptions etc., i.e., the evidential burden of introducing evidence to establish any such circumstances is on him. So that if no such evidence is on record, the accused shall run the risk of being convicted if the evidence against him led by the prosecution were to be believed. Such evidence may be introduced by the prosecution itself, or it may be introduced by the defence by the cross-examination of the prosecution witnesses, or by the statement of the accused under section 342 of the Code of Criminal Procedure, Further or by defence evidence." "For the burden of proving the guilt beyond reasonable doubt is on the prosecution, and it must, before it can succeed, expressly negative every circumstance brought on the record which may tend to establish the defence. It is on the totality of the evidence that the guilt of the accused has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge." 52. It is on the totality of the evidence that the guilt of the accused has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge." 52. These decisions show that no such circumstances to bring the case of an accused within an exception shall be presumed unless he has introduced evidence on the point by cross-examination of the prosecution witnesses or by adducing defence evidence or by stating the circumstances in the examination under section 342, Criminal Procedure Code, if such statement read with the circumstances brought out creates a reasonable doubt that the plea may be true. The burden does not, in other words, extend to proving the defence affirmatively but the probability of the truth of the defence must be reasonably probable. This does not mean that mere statement of the accused is enough, but what is necessary is that it must be reasonably probable. 53. We have now to Judge the defence of the appellant in this light. The facts as found by me are that the party of the appellant retreated towards the lane but were chased by the party of the deceased which consisted of five persons. On the side of the appellant, only he was armed with a dagger. On the side of the deceased, it is probable that the deceased, had an axe which was found near his body and the ownership of which has not been explained by the prosecution. The party of the appellant hid themselves in Kamlabai's verandah, but some persons of the party of the deceased, including the deceased Shyamlal, passed beyond that point. The presence of the appellant and his two companions was found out by the persons who had gone ahead. 54. What happened after this is shown partly by the statement of Umashanker (P.W. 1). The version of this witness about the way in which the fight developed has not been accepted. Nor is there anything to show that Shyamlal had threatened to attack the appellant with his axe. However, his statement makes it clear that there was a fight in which he threw a soda-water bottle at Sunny, the companion of the appellant. Finally, the appellant stabbed Shyamlal. 55. Nor is there anything to show that Shyamlal had threatened to attack the appellant with his axe. However, his statement makes it clear that there was a fight in which he threw a soda-water bottle at Sunny, the companion of the appellant. Finally, the appellant stabbed Shyamlal. 55. As I have held that the appellant and his companions were seen in their place of hiding, it was no longer safe for them to remain there. It does not appear to me that the hiding was a mere ruse on the part of the appellant to draw Shyamlal's party to an unsafe position. In my opinion, the appellant's party was making a genuine attempt to escape by hiding. While trying to escape, the appellant struck Shyamlal with his dagger. As there is reasonable probability that Shyamlal had an axe, the appellant was justified in apprehending that grievous hurt might be caused to him in the light of the riotous character of Shyamlal's party and their antecedents. They could have no reason to enter the lane except for assaulting the party of the appellant. Under these circumstances, imminent danger of grievous hurt being caused to the appellant was not a mere possibility but a reasonable probability. He had therefore a right of private defence which could extend to causing death under section 100 of the Indian Penal Code. 56. Shri K.K. Dube argued that unless there was an assault on the appellant just before he gave the mortal blow, there could be no right of private defence. This argument is based on the use of the word "assault" in section 100 of the Indian Penal Code. However, section 100 along with section 102 of the Indian Penal Code has been differently interpreted by the Supreme Court in Amjad Khan Vs. The State AIR 1952 SC 165 . In that case, the accused had fired on the riotous mob through a hole in his door when the mob was attacking his neighbour's shop. No assault was made directly on the accused, but it was held that the violence which the mob was committing generally gave a reasonable apprehension to him that he would be killed. It was held that section 100, read with section 102, Indian Penal Code, implied that the right of private defence had commenced and the case of the accused was covered by the exception. It was held that section 100, read with section 102, Indian Penal Code, implied that the right of private defence had commenced and the case of the accused was covered by the exception. Similarly, in the instant case, the violent and threatening attitude of the party of the deceased gave a reasonable ground to the appellant to believe that the was in danger of receiving grievous hurt at least. This is especially so when their presence in the hiding place was discovered and their exit was barred at both ends of the lane by men of the party of the deceased. Section 100, read with section 102, Indian Penal Code thus applied to his case. 57. It was next submitted by the learned Government Advocate that the appellant could have no right of private defence, as he and his friends had themselves invited the attack. It is true that the party of the appellant had gone to Mintu's house and had challenged him to come out. However, on Mintu's refusal to come out, the dispute was finally pacified at the intervention of Pyarelal (P.W. 2). It was some time after this that the appellant's party retreated to the lane when Shyamlal's party threatened assault. Thereafter, the latter became aggressors. Their entry in the lane and their threats accompanied by riotous conduct could not be justified in any way. The appellant's party hid themselves to save the attack but could not succeed. On these facts, the argument that the appellant's party were the aggressors and could not claim the right of private defence cannot be sustained. There is some similarity between the facts of the present case and the facts in Ram Sewak Vs. Emperor AIR 1925 All 313(2). In that case, the accused had started the quarrel with his opponent Baijnath and had tried to hit him. Baijnath and his companions returned the attack and the accused then ran for safety but was chased. When the accused found that he could not escape, he turned round and hit one of the companions of Baijnath with a club causing his death. The plea that the accused acted in self defence was upheld. 58. It is true that the appellant gave three or four blows on the chest when probably one would have been enough to disable Shyamlal. The plea that the accused acted in self defence was upheld. 58. It is true that the appellant gave three or four blows on the chest when probably one would have been enough to disable Shyamlal. However, for this reason alone it cannot be said that the appellant exceeded his right of private defence. He acted in the heat of moment. He could not have any time to deliberate when he should have stopped. Accordingly, I hold that his case falls fully under section 100 of the Indian Penal Code. 59. In view of what I have said, my opinion is as follows : (i) The appeal filed by the State for altering the conviction to section 302 of the Indian Penal Code should be rejected. (ii) The appeal of the accused-appellant Victor alias Kalloo should be allowed and he should be acquitted of the charge against him. JUDGMENT (23-1-1962) T.P. Naik & N.M. Golwalkar, JJ.- 60. In consonance with the opinion of Shrivastava, J. this appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted.