LexPERIASAMI AND ANR. versus STATE OF TAMIL NADU
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.. PERIASAMI AND ANR. A v. STATE OF TAMIL NADU SEPTEMBER 25, 1996 [DR. A.S. ANAND AND K. T. THOMAS, JJ.] B Oiminal Law : Evidence Act, 1872: Sections 101 and 105. c Burden of Proof-Benefit of general exception-Right to private defence-Availing of-Held : Initial burden on prosecution to prove that accused committed the offence charged against-Presumption regarding ab- sence of circumstances bringing the case within the exception does not dis- place the traditional burden of the prosecution--Accused can discharge the burden by ''preponderance of probabilities" unlike the prosecution--But there D is no presumption that an accused is the aggressor in every case of homicide. Penal Code, 1860: Sections 96 to 106, 302 and 304. Homicide-Accused being aggressor-Presumption-Held : No presumption that the accused is the aggressor in every case of E homicide-Benefit of reasonable doubt that the deceased party was the aggressor would be extended to the accused no matter that he did not adduce any evidence in that direction. Section 96-Private defence-Specific plea-Absence of-When ex- amined under S.313 Cr. P.C. Held: Not enough to denude the accused of the right if the same can be made out othenvise-Criminal Procedure Code, 1973, S.313 and Section 154. F FIR Delay in lodging of-Witness gave inf omiation of incident to local village administrative officer who went to the spot to ascertain the truth and, G after verification of the correctness of the inf onnation, recorded his state- ment-Held: Possibility of deliberations and confabulations cannot be ruled out-But this is not enough to vitiate the entire testimony of the witness-As- surance can be obtained from other evidence regarding the truth of his version. Section 162:-Inquest report-Statement of witness-Recorded H 757 758 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R. A in-Held: Prohibited by S.162-Such a statement could not be used for any purpose except to contradict its author. The appellants-accused were acquitted by the Sessions Court of the offence under Section 302/34 of the Indian Penal Code, 1860. However, the High Court set aside the acquittal and convicted the accused under Section B 302/34 IPC. Hence this appeal. According to the prosecution, on the morning of the occurrence day deceased in association with four other persons (including PW-1 and PW-2) was working in a field. By about 9.30 a.m. deceased alone went to a C nearby plantain grove to ease himself. After a little while PW-1 and PW-2 heard the squeal of a pig followed by the yells of the deceased PW-1 and PW-2 rushed to the place and then they saw the first appellant inflicting a bluw on the neck of the deceased with a billhook and the second appellant stabbing him with a spear on the chest. Deceased fell down but first appellant cut him on the neck with the billhook two or three times more. D Assailants thereafter took to their heels. Deceased succumbed to his injuries within an hour. In the quest report the time of death of the deceased was recorded as 10.30 p.m. where as the death actually took place at 9.30 a.m. E F G PW-1 went to the local village administrative officer (PW-8) and informed him of the incident. PW-8 went to the spot of occurrence and verified the correctness of the information furnished by PW-1 After return- ing to his office PW-8 recorded the statement of PW-1 which was forwarded to the Police Station. FIR was prepared on its basis and during investiga- tion appellants were arrested. On behalf of the accused persons it was contended that there was delay in lodging of the FIR, and that the deceased was the aggressor and the accused had the right of private defence although no such specific plea was taken by them. Disposing of the appeal, this Court HELD : 1. Section 105 of the Evidence Act, 1872 prescribes a rule of burden of proof. The burden is on the accused to prove the existence of circumstances bringing his case within any ofthe exceptions and the Court H shall presume the absence of such circumstances." The said rule does not .. .r PERIASAMI v. STAIB 759 whittle down the axiomatic rule of burden (indicated in Section 101) that A the prosecution must prove that the accused has committed the offence charged against. The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal cases except wh~re any particular statute prescribes otherwise. The legal pre
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