PARTAP versus THE STATE OF U.P.

Citation: [1976] 1 S.C.R. 757 · Decided: 10-09-1975 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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757 
PARTAP 
v. 
THE STATE OF U.P. 
September 10, 1975 
[M. H. BEG, P. N. BHAGWAT! AND R. S. SARKARIA, JJ.J 
Indian Evidence Act ( 1 of 1872) -Sec. 105 -Prosecution for murder-
P/eai of self-defence -Scope of proof. 
The appellant, his father and another were charged with murder and con-
vicred by the trial cowt. The first information referred to eye witnesses. ofi· 
whom the prosecution examined only two. 
These two were chance witnesses. 
of another village, but the others who belonged to the village where the occur-
rence took place. were not examined. 
The third accused was acquitted on 
appeaL by the High Oiurt aud the father died after his conviction was con-
finned by the High Court. The appellant's plea of private dofence was rejected 
botfl by the trial court/and the< High Court. 
Allowing the appeal to this Court, 
HELD (Per M. H. Beg J.) : Section 105 of the Evidence Act contains two 
kinds of burden on the accused who sets up. an exception, (i) the onus of prov~ 
ing the. existence of circumstance~ bringing the case within any of the general 
or special exceptions i!l the I.P.C. or in any other law; and (ii) the burden of 
introducing or showing evidence. resulting from the last part of the provision 
which says that the court shall presume the absence of such 
circumstances. 
The effect of the obligatory presumption at the end of Section 105 is that th1> 
court must start by assuming that no facts exist which could be taken into 
consideration for considering the plea of self~defence as an exception to the 
criminal liability which would otherwise be there. But when both sides have 
Jed evidence of their, respeatiV'e V1ersions the accused can show. from the 
evidence· on record, whether tendered by the· prosecution or the defence. that 
the mandatory presumption is removed. 
The last mentioned burden is not 
really a burden of establishing the plea fully but of either introducing or show-
ing the existence! of some evidence to justify the taldng uo of the plea. The 
burden resulting from the obligatory presumption is not difficult to discharge 
and its removal may not 'be enough for acquittal. But the rigbt of the accused 
to obtain the benefit of reasonable doubt is the necessary outcome and counter-
part of the prosecution's undeniable duty to establish its case beyond reasonable 
doubt ~d that right is available to the accused even if he fails to discharge 
his own duty to prove fully the exception pleaded. 
[762A-D; 76JE] 
In the present case, even if the appellant did not fully establish his plea, 
yet, there fs sufficient evidence, both direct and circumstantial, to justify the 
finding that the prosecution has not established its case beyond reasonable doubt 
agwinst the appellant on an essential ingredient of the offence of innrder, nafilely, 
the· required nrens rea. An examination of all the facts and circumstance,.; 
revealed by the entire evidence, including the effect of non-production of the 
better evidence available which. for some unexplained reason was not produc-
ed, shows that the plea Of private defence cannot be reasonably ruled out. 
Even 1f the deceased was not Positively proved to be' advancing threateningly 
with a spear Poised for attack, towards the appellant or his father, yet, a con-
sideration of the whole evidence leads to the inference that this was reasonably 
likely to be true. 
[763G-764A, El 
( 1) The trial court was inclined to believe that the defence version was 
true to the extent that t!ie deceased bad rushed to the scene with a spear. 
It overlooked that the deceased while going to help P.W. I, bad actually ex-
pressed bis intention to break the heads of the members of the accused party 
and that he was acting in such a way as to appear to be bent on phys1cal1 y 
aggressive interference in a quarrel between the two sides. If that was the 
conduct of the deceased, it is reasonable to infer that he must have done some-
758 
SUPREME COURT REPORTS· 
[ l 976] 1 S.C.R. 
thing which gave. rise to the right of private defence in favour of th~ appel-
lant. 
01h.;:nv1!le, the conduct of •he appellant, in ~paring P.\V. 1, wh.J according 
to the prosecution had given offence to his father in the past! and on the day 
.Qf the incident, and was advancing towards the father threatening to strike him 
wvith a S:pade, but shooting th'C' dccea<;cd who appeared on the scene subsc-
'QUcntly and was, according· to the .pros~cutio

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