judgement:
ivil Appeal Nos.
1186 to 201 of 1975.
Appeals by Special Leave from the Judgment and orders dated the 11th November, 1974, 6th December, 1974 and 27th November, 1974 of the Allahabad High Court in Civil Misc.
Writ Nos. 4139, 5354, 5352 5353, 5355 5357, 4065, 4912, 4326, 4212, 4218, 4545, 4328, 4543 and 4769 of 1972 respectively.
804 G. section Pathak (In CA 1186/75), section Swarup Shri Narain for the appellants (In CAs.
Nos.1186, 1194 1195 and 1196 1197/75).
V. Gupte, R. N. Bhalgotra and S.S. Khanduja for the appellants (In CA No. 1187/75).
section section Khanduja for the appellants (In CAs.
1188 1192 of 1975) .
V. J. Francis of M/s Ramamurthy & Co. for the appellants (In CA No. 1193/75).
Yogeshwar Prasad and Miss Rani Arora for the appellants (In CA No. 1198/75) and (1199/75).
N. N. Goswamy and Arvind Minocha for the appellant (In CA No. 1201/75).
The Judgment of the Court was delivered by KRISHNA IYER, J.
We should have made short shift of this batch of appeals on the brief but fatal ground that the appellants all sugar millers who had over priced this essential consumer article and had failed in their challenge of the controlled price had no moral nor legal claim to keep the huge sums which the High Court had right to directed them to disgorge.
When the price of 'levy sugar ' was pegged down by the State, these factory owners rushed to the Court impeaching the validity of the control and secured a stay of operation of the order.
Under cover of the Court 's stay order which was granted, on bank guarantee for the excess price being furnished to the court, the appellants sold sugar at free market rates, a euphemism for blackmarket racket unfortunately, with judicial sanction.
Crores of rupees were admittedly funnelled into the millers ' tills.
But, eventually, the High Court upheld the control of price and the unhappy obligation to restore the unjust enrichment arose.
The High Court, whose process kept the control price in cold storage, had to do justice by the community of consumers who were the unwitting victims of this judicially declared holiday from control which was quickly converted into a fleece as you please seller situation.
And so the Court made the following direction: "We, therefore, direct that the Registrar will take immediate steps to encash the security and recover the amount so over charged by the petitioners and pay the same to the State Government which will keep it in a separate account.
The petitioners will furnish to the State Government, within a period of six weeks of this order, a list of all such persons to whom they sold the levy sugar of 1971 72 season, together with their addresses, quantity of such sugar sold to and the amount of excess price charged from each of them.
The State Government will then refund to the persons concerned the excess amount realised from each of them, if necessary, after verifying the claim for refund of such amount made by such persons.
" 805 The reluctant millers have sought and got leave to appeal against this just direction and in the course of arguments have made some suggestions about the disposal of the moneys.
The inarticulate assumption was, presumably, that crores of rupees could remain with them until a suitable schemes for percolation of the excess prices to the ultimate small buyer could be fashioned.
Indeed, at some stage, a hesitant proposal was made that since the sugar industry has allegedly had lean years, these considerable sums 'picked ' from the pockets of a considerable number of consumers had better be allowed to be retained by the millers.
Another diffident hint was made that these several crores of rupees be used for stablising the sugar cane growers ' economic position.
The easy to see through design behind these 'developmental ' ideas was to have use of this large windfall till some distant project was evolved.
Indubitably, the appellants are in unrighteous enjoyment of colossal sums which belong to small consumers.
Not amount more can the millers keep what the Court has ordered the Registrar to collect by enforcing the bank guarantees.
Indeed, they have had dubious business use of these vast sums for a few years nearly a year, soon after the High Court 's final judgment.
Once we disenchanted them, as arguments proceeded, that the conscience of the Court would unconditionally compel the money to be called in forthwith, their interest in making fertile pro bono public.co suggestions as to how best to organise the disbursement of the small sums to the actual buyers flagged and, later in the day, Shri Dadachanji, Advocate on record in these cases, even moved that if leave had not been formally granted, the special leave petitions be allowed to be withdrawn and if leave had been already granted, Court fee exemption for these many appeals may be directed.
This shows up the public concern of these sugar manufacturers.
Anyway, the Registrar of the High Court shall take immediate steps to encash the security furnished by the appellants.
The money of the many little men gotten by the few millers by selling an essential commodity to the community at what is frankly black market price under the umbrella of Court order of stay shall get back to the scattered crowd of a small consumers as early and as inexpensively as possible.
A public injury perpetrated by calling in aid Court process must quicken judicial conscience to improvise an ad hoc procedure to restore through the Court 's authority what has been nibbled from the numerous buyers.
Innovative realism is obligated on the Court on the broad basis actus curiae neminem gravabit.
Why did the buyers pay higher prices for levy sugar ? Because, they respected the High Court 's order.
In this justice situation conventional procedures of each small claimant being left to litigate for his little sum from the miller or wholesaler is to write off the remedy and allow the ill gotten wealth to be in the coffers of the wrong doer (who got the charter to charge high, from a Court order).
Nor is the seemingly sweet suggestion, that a representative action under order 1.
r. 8 C.P.C., be instituted on be half of the class of consumers, feasible.
Who is to start? Against whom ? How is he to meet the huge litigative costs and how long (O, Lord, how long!) is he to wait with long drawn out trial procedures appeal, second appeal, special appeal" and Supreme Court appeal ? For, on the other side is the miller with the millions to be coughed up 806 The handling of small claims is probably the most deplorable feature of the administration of civil justice and yet small claims are in many respects more significant than large ones, involving large numbers and inter class disputes.
If the confidence of the community in the justice system, especially consumer protection, is to be created, radical reform of the processual law is needed now and here.
Rejecting, therefore, the recommendations for solution of the problem arising here.
as put forward by counsel for the appellants, we have to devise other measures.
We are aware of our limitations .
"The judge" even when he is free, is still not wholly free.
He is not to innovate at pleasure.
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic santiment, to value and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life. ' Wide enough in all conscience is the field of discretion that remains.
" (1) The difficulty we face here cannot force us to abandon the inherent powers of the Court to do.
"The inherent power has its roots in necessity and its breadth is co extensive with the necessity".(2) Certainly, we cannot go against any statutory prescription.
Had India had a developed system of class actions or popular organisation taking up public interest litigation, we could have hoped for relief otherwise than by this Court 's order.
We lag in this regard" although people are poor and claims are individually trivial.
Legal aid lo the poor has a processual dimension As things stand, if each victim were remitted to an individual suit the remedy could be illusory, for the individual loss may be too small, a suit too prohibitive in time and money and the wrong would go without redress.
If there is to be relief, we must construct it here by simple legal engineering.
The Solicitor General appearing for the State of U.P. and the Union of India, informed us that legislation was about to be enacted to take care of these situations.
If it did come, it were welcome.
After all, the Legislature must show better legal concern for the small marl, as this class of consumers who are wronged or deceived are on the increase In the present case, we think that the following complex of directions will pragmatically meet the needs both of the appellants and the range of buyers from whom higher prices were charged : A.
The security by way of bank guarantee furnished by every appellant will be encashed by the Registrar.
Of the High Court and kept in short term deposit in the State Bank of India r (1) Benjamin Cardozo 's 'The Nature of the Judicial Process ' Yale university Press (1921) (2) Theoretical Basis Inherent Powers Doctrine Text material prepared by Jim R. Carrigan Publication of National College of The state Judiciary, U.S.A. 807 B. The appellants will be given complete immunity from liability to any sugar buyer, wholesaler or other" to whom sugar has been sold by the appellants at higher prices during the period covered by the High Court 's stay order.
If any exceptional case of claim were to be made by any buyer, it . . should be done by motion before the High Court which will I be justly disposed of.
The Registrar, under orders of the High Court, will directly or by making over to the State Government, receive and dispose of claims from the ultimate consumer for excess price paid on proper proof.
If the State Government is to undertake this task, a proper, easy and cheap machinery for distribution to the real, last buyers will be produced before the High Court and orders obtained.
The process should not be too expensive or too formalised.
D. Wide publicity will be given about the project and method of returning small claims and the money sent by post or otherwise.
The claims also would be received by post or otherwise and verified without delay.
The interest accruing from the bank deposits will be used for the incidentals to work out the distribution.
F. It will be open to the wholesaler to prove by vouchers the retailers and the latter in turn may prove who the ultimate , buyers are.
The High Court may devise modifications of this scheme or direct the State Government to act on any scheme subject to the moneys reaching the real small buyers from the retailers.
If any further directions in the mechanics of the scheme are felt necessary, the High Court will report to this court.
If, within one year from today, any amounts remain unclaimed they will go into a separate deposit in the High Court to be operated on application by any claimant.
If any legislation dealing with this subject were to be made before the amounts are disbursed, the legislative scheme will pro tanto prevail over the directions given above.
The court fee on these civil appeals will be exempted in the special circumstances of the case.
K. Parties will bear their own costs in this Court.
May be the procedure we have suggested above is somewhat unconventional but where public interest is involved.
"Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only 808 private interests are involved.
Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest . "(1) We hope the vigilant legislature will activise itself on behalf of the little men and the law and make quick moving, easily accessible and free of cost consumer protection measures.
Slogans are not law and the rule of law in a welfare oriented constitutional order demands 'poverty law none too soon; with emphasis on the delivery of legal services with distances shortened and road hazards removed.
It is not for the Court to spell out more, but it is for the State to awaken to a overlooked, but not infrequent, legal phenomenon.
P.H.P. Appeals dismissed.

summary/full:
The appellants challenged the validity of fixation of price of levy the high Court.
During the pendency of the petitions, the appellants a stay order from the High Court for charging the price in eyes price fixed by the State on furnishing Bank guarantees for the excess price Ultimately, the High Court upheld the control of price and directed appellants to restore the excess money recovered from the consumer to the through the State Government.
The appellants filed the present Special Leave against the said order of the High Court and contended that since the Sugar Industry had lean year, the excess amount should be allowed to retained by the appellant or that the excess amount should be to be utilised for stabilising the sugarcane growers ' economic position alternative, it was prayed that the excess amount could remain with the appellant unite a suitable scheme for the return of the excess amount to the was made.
Dismissing the appeals, ^ HELD : 1.
The appellants had doubt business use of these crores of rupees for nearly a year even after the High Court 's final judgment.
The money of the many little men got by the few millers by selling an essential commodity to the community at what is frankly black market price under the umbrella of court order of stay shall get back to the scattered crowd of small consumers as early and as inexpensively as possible.
A public injury perpetrated by calling in aid court process must waken judicial conscience to improvise an ad hoc procedure to restore through the court 's authority what has been nibbled from the numerous buyers.
The handling of small claims is probably a must deplorable features of the administration of civil justice and yet small claims are in many respect more signification than large ones, involving large numbers and inter class disputes.
If the confidence of the community in the justice system especially consumer protection.
is to be created, radical reform of the processual law is needed now and here.
The inherent power of the court has its roots in the necessity and its breadth is co extensive with the necessity.
The Court directed that the Bank guarantees furnished by the appellants should be encashed by the Registrar and kept in short term deposit.
That he claims of the consumers should be settled by the Registrar of the High Court under the order of the High Court through an easy and cheap machinery.
That wide publicity should be given about the method of returning and that small claims might be accepted by cost and money also returned by post.
[804 C E. 806 A. D 807 BD]


judgement:
N: Criminal Appeal No. 120 of 1971.
Appeal by Special Leave from the Judgment and order dated the 24th July, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 581 of 1968.
A. N. Mulla and O. N. Mohindroo for the Appellant.
D. P. Uniyal and O. P. Rana for the Respondent.
The Judgment of P. N. Bhagwati and R. section Sarkaria was delivered by R. section Sarkaria, J. Beg, J. gave a separate opinion.
BEG, J. I have had the advantage of going through the judgement of my learned brother Sarkaria.
I confess that I do not feel confident enough about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities.
But, I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt for the reasons given below.
The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts.
It gave rise to two Full Bench decisions of the Allahahad High Court, the first in Parbhoo vs Emperor,(l) and the second in Rishi Kesh Singh & ors.
vs the State( ').
It does not seem to have been considered in the same form by this Court.
r I think this is an appropriate case in which this Court could consider and decide it, and, it is because this aspect of the case was ignored by the Trial Court as well as the High Court that I consider this to be a fit case for a reconsideration of evidence and interference by this Court under Article 136 or the Constitution.
The Trial Court, after assuming that there may be some truth in the defence version that Ram Nath had gone to the scene of occurrence with a bhala, said: "Even if Ram Nath had arrived there armed with bhala, there could be no apprehension of death or grievous hurt to any one of the accused persons as the accused persons were armed with gun and pistol and could defend themselves if Ram Nath tried t(3 strike them with 'bhala '.
Pratap and Suresh 'accused could not be justified in firing gun shots and pistol shots at Ram Nath in the expectation that Ram Nath may reach the place where Puttu Lal accused was standing and may strike him with 'bhala '.
(1) A.l.
R. 1941 All.
402 (FB).
(2) AIR 1970 All.
Sl (FB).
760 Pratap and Suresh accused had started from their house A with gun and pistol before they had known about the reaching of Ram Nath at that place with a 'bhala '.
It can reasonably be inferred from the own case of the defence that Pratap and Suresh accused, or at least Pratap accused, had arrived there with the intention of committing the murder of Raj Kumar or of any body who may interfere in the wordy duel between Raj Kumar P.W. and Puttu Lal accused".
This shows that the Trial Court was inclined to believe that the defence version was true to the extent that Ram Nath had rushed to the scene of occurrence with a bhala, when a quarrel between the two sides was taking place.
But, it overlooked here that Ram Nath, while going to the help of Raj Kumar, had actually expressed his intention to break the heads of members of Puttu Lal 's party.
At any rate, according to the prosecution evidence.
, Ram Nath was acting in such a way as to appear like a "lion" bent on interference to protect Raj Kumar in a quarrel between the two sides.
If this was Ram Nath 's conduct, could he not have done something which gave rise to the right of private defence of person ? If that right had arisen how could shooting him be murder ? Even if it was exceeded the offence could not be culpable homicide amounting to murder.
Why should Pratap, the appellant, have spared Raj Kumar who, according to the prosecution evidence itself, had given offence to Puttu Lal in the past and then on the date of incident by actually demolishing a nali and then advancing towards him with his phawra, threatening to strike Puttu Lal, but shoot at Ram Nath who appeared subsequently and was, according to the prosecution version, quite unarmed ? The prosecution evidence is that Puttu Lal had called his son Pratap and asked him to bring his gun only when Raj Kumar had threatened to attack him with his phawra and had advanced towards Puttu Lal.
Nevertheless, Pratap and Suresh are alleged to have shot down Ram Nath, even though Ram Nath was empty handed, but did nothing to Raj Kumar who was, according to the prosecution version, more offensive and threatening with a phawrah and was the cause of the whole trouble Such conduct, attributed to Pratap and Suresh, in the setting alleged, seems quite unnatural and eccentric.
Raj Kumar, P.W. 1, also stated that Atma Ram, Achhe Ram and Sia Ram, Pradhan, took their stand in parti land at about the same time as Ram Nath had arrived on the scene and had asked Ram Nath not to loose heart or to be discouraged as he was coming to deal with each one of Raj Kumar 's adversaries.
Then, at Puttu Lal 's instigation, Pratap and Suresh are alleged to have shot at Ram Nath.
Why is it that this version of the obviously interested Raj Kumar, PW 1, is, only supported by two chance witnesses of another village, but neither Atma Ram nor Achhe Ram, nor Sia Ram, Pradhan of village Sant Kuiyan, who had, according to the prosecution version, witnessed the occurrence not produced by the prosecution at all ? The prosecution could select its witnesses.
But, why was such an objectionable selection made ? Was it not a case in which the Court should have exercised its power under Section 540 Criminal Procedure Code to summon at least Sia Ram 761 Pradhan, in whose grove Ram Nath was shot, so as to ascertain the whole truth more satisfactorily ? Had not the Trial Court and the High Court too readily assumed that absolute truth fell from the lips of prosecution witnesses as regards the commencement of aggression even when their own statements contained admissions indicating that the whole or the real truth had not been revealed by them ? These are some of the doubts which the rather mechanical examination of evidence by the Trial Court and the High Court do not dispel.
The question which arises in this case is: Even if the defence version is not held to be fully established, by a balance of probabilities, were there not sufficient pointers in evidence of what was probably the truth which leaked out from some statements of the prosecution witnesses themselves ? They had indicated the bellicose and threatening attitude of Ramnath while he was advancing.
Did this not tend to corroborate the defence version that he was actually advancing menacingly armed with a bhala piosed for an attack with it when he was shot at ? It was held in the case of Rishi Kesh Singh (supra) by a majority of a Full Bench of nine Judges of the Allahabad High Court explaining and relying upon the decisions of this Court discussed there (at p. 51): "The accused person who pleads an exception 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 general exception) a reasonable doubt is created in the mind of the Court about the built of the accused".
In that case, the result of a consideration of the decisions of this Court in relation to the provisions of Section 105 of the Evidence Act was summed up by me as follows (at page 97 98): ".
an accused 's plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully.
These stages are: firstly, a lifting of the initial obligatory presumption given at the end of section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and, thirdly, a complete proof of the exception by 'a preponderance of probability ', which covers even a slight tilt of the balance of probability in favour of the accused 's plea.
The accused is not entitled to an acquittal if his plea does not get beyond the first stage.
At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt.
At the third stage, he is undoubtedly entitled to an acquittal.
This, in my opinion, is the effect of the majority view in Parbhoo '.
case which directly relates to first two stages only.
The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice." 18 L925SupCl/75 762 Provisions of Section 105 of the Evidence Act, which are applicable in such cases, contain what are really two kinds of burden of the accused who sets up an exception; firstly, there is the onus laid down of proving the existence of circumstances bringing the case within any of the General exceptions in the Indian Penal Code, or, within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, and, secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which says that "the Court shall presume the absence of such circumstances".
The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the 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 led evidence of their respective versions, the accused can show, from any evidence on the 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 of showing the existence of some evidence to justify the taking up of the plea.
The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough nor an acquittal.
D Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh 's case (supra) (at P. 95): "Even a literal interpretation of the first part of Section 105 could indicate that 'the burden of proving the existence of circumstances bringing the case ' within an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof of circumstances showing that the exception may exist which will entitle, the accused to the benefit of doubt on the ingredients of an offence.
If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a pre ponderance of probability, more direct and definite language would have been employed by providing that the accused must 'prove the existence ' of the exception pleaded.
But, the language used in the first part of Section 105 seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception in directly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused.
Again, the last part of Section 105, even if strictly and literally interpreted, does not justify reading into it the meaning that the obligatory presumption must last until the accused 's plea is fully established and not just till circumstances (i.e. not necessarily all) to support the plea are proved.
Moreover, a restrictive interpretation of Section 105, excluding an accused 11 from the benefit of bringing his case within an exception until he fully proves it, is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 763 105 and the prosecution 's duty to prove its case beyond reasonable doubt.
Hence, the obligatory presumption, at the end of Section 105, cannot be held to last until the accused proves his exception fully by a preponderance of probability.
It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo 's case, 1941 All LJ 619 AIR 1941 All 402 (FB)".
It was also said there (at p. 89): "The legal position of a state of reasonable doubt may Be viewed and stated from two opposite angles.
One may recognise, in a realistic fashion, that, although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused 's lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reason able doubt about the accused 's guilt, and that an accused 's can obtain an acquittal by satisfying this lower burden too in practice.
The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true.
Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution 's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.
This technically more correct way of stating the law was indicated by Woolmington 's case and adopted by the majority in Parbhoo 's case, and, after that, by the Supreme Court.
It seems to me that so long as the accused 's legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of mode in describing the position, from two different angles, is an immaterial matter of form only.
Even if the latter form appears somewhat artificial, it must be preferred after its adoption by the Supreme Court".
(See: K. M. Nanavati vs State of Maharashtra AIR Applying the principle of benefit of doubt, as I had ' explained above, to the plea of private defence of person in the instant case, I think that, even if the appellant did not fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against Pratap on an essential ingredient of the offence of murder: the required mens rea.
After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which for some unexplained reason, was not produced, I am not satis 764 fied that the plea of private defence of person can be reasonably ruled A out here.
This is enough, in my opinion, to entitle the appellant to get the benefit of doubt.
I may observe here that the High Court had not only failed to grapple with this difficulty arising from the evidence in the case and some of the findings of the Trial Court, which seemed to think that the intention to murder or the required mens rea for murder must be presumed from the mere fact of homicide (a wholly incorrect approach in a case where a plea of private defence had been raised and sought to be established by some evidence), but, the High Court itself started from a totally unsound premise when it observed: "It was Puttu Lal who was committing aggression by insisting that Raj Kumar should not dismantle the Nali It is again admitted by Puttu Lal that he cried out for help in response to which Pratap arrived armed with a double barrel gun.
" In other words, the High Court assumed that a mere insistence by Puttu Lal that Raj Kumar should not dismantle the nali amounted to an "aggression" begun.
The word "aggression" is generally used for an actual invasion of the property of another or an attack on the body of another.
It is true that it is not necessary that an actual attack should commence before a right of private defence can arise.
Nevertheless, a reasonable apprehension of injury could not be said to arise by a mere prohibition to dig up a "nali" or drain.
It could arise if a man is advancing aggressively towards others holding out threats to break their heads even if he is armed with a lathi with which he could carry out such a declared intention.
The extent of the right or its justification is another matter depending again upon facts which have a bearing on extent of the right or its reasonable exercise.
In the circumstances of the case before us, I think, we can hold, that, even if Ram Nath was not positively proved to be threateningly advancing with a bhala poised for attack towards Pratap, appellant, or Puttu Lal, yet, a consideration of all the probabilities and evidence on record leads us to infer that this was reasonably likely to be true.
If this was so, it is clear that the appellant must have discharged his gun when Ram Nath had advanced and come near enough in a manner which must have been so menacing as to raise an apprehension of an attack with the bhala.
Such an assumption fits in with medical evidence too showing that the shots were fired from a close enough range to cause charring.
Another feature of the case is that the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted Suresh, who was also alleged to have shot with his pistol" giving him the benefit of doubt because, unlike Puttu Lal and Pratap, he had denied his presence or participation in the occurrence and was said to be only distantly related to Puttu Lal.
765 I think, on an analysis of the whole evidence, that the appellant Pratap was also entitled to the benefit of a doubt which could be said to be reasonable.
I, therefore, concur in the order proposed by my learned Brother.
SARKARIA, J.
This appeal by special leave is directed against a judgment of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his conviction under section 302, Penal Code.
The facts of the prosecution case as narrated at the trial by Raj Kumar, the star witness of the prosecution, were as follows: Raj Kumar had installed a Tubewell in his field known as 'Chharelawala.field ' in the revenue estate of village Sant Kuiyan, in the year 1962.
The water pumped out from this tubewell was utilised by him not only for irrigating his own fields but also those of the neighbours against charges.
Subsequently, Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala field.
Puttu Lal, too, started letting out the use of his tubewell on hire.
An unhealthy competition ensued between Raj Kumar and Puttu Lal in this water business, and their relations became strained.
There was a water channel running from north to south in Raj Kumar 's field through which Puttu Lal used to supply water to others.
To the south of Chharelawala field, there is grove belonging to Sia Ram, Pardhan of the village.
The tubewell of Puttu Lal is located towards the south of that grove.
To the west of the Chharelawala field, is a plot belonging to Puttu Lal.
Two or three days before the occurrence in question, there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel.
Raj Kumar firmly refused Puttu Lal the use of that channel.
on S 1 1967, at about 7.45 a.m., Raj Kumar and his brothers Ramchander and Bhagwan Sahai, started demolishing their channel so that Puttu Lal should not be able to supply water through it.
About fifteen minutes thereafter, Puttu Lal and his son, Ram Parkash, appeared on the northern ridge of the grove of Siya Ram.
Puttu Lal was carrying a lathi and Ram Parkash a bhala.
Puttu Lal asked Raj Kumar and his companions not to demolish the channel.
Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it.
Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade, and thus settle the matter once for all.
On being so threatened, Puttu Lal shouted to his son, the appellant, to come immediately with his gun.
In response to Puttu Lal 's call, the appellant, armed with the double barrel licensed gun of Puttu Lal, and Puttu Lal 's other son, Suresh, armed with a pistol, came.
A couple of minutes after the arrival of the appellant and Suresh, the deceased Ram Nath who was the son of Raj Kumar 's wife 's brother, came out running from the grove.
He shouted to 766 Raj Kumar not to be afraid as he would settle the matter with every A one of the accused and break their heads.
On seeing the deceased, Puttu Lal said: "He thinks himself to be a lion, let us see him first of all".
On this instigation, Partap fired his gun at Ram Nath from a distance of four or five paces.
On receiving the gun shot, Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol.
Ram Nath, dropped dead.
The accused then ran away taking their weapons with them.
Raj Kumar PW 1 went home, scribed the report.
ka 3, and handed it over in the Kain Ganj Police Station, 8 miles away, at 9.30 a.m.
After registering a case on the basis of this report, Sub Inspector Kartar Singh reached the spot and started the investigation.
He prepared the inquest report and sent the body for post mortem examination.
The autopsy was conducted by Dr. section P. Chaturvedi, PW 3, on 6 1 1967, at 12.40 p.m.
The Doctor found five gunshot wounds of entry and three of exit on the deadbody.
There was blackening around all the wounds of entry.
The death, in the opinion of the Doctor, was due to shock and haemorrhage on account of the gunshot wounds of the head and the right lung.
The accused surrendered in the court of the Additional District Magistrate, Farrukhabad on 7 1 1969, and thereafter their custody was taken over by the Police.
After conducting the preliminary enquiry the Magistrate committed Puttu Lal, Suresh and Partap accused for trial to the court of Session on charges under sections 302/34, 109 Penal Code All the three accused were convicted and each of them was sentenced to imprisonment for life and a fine of Rs. 200/ .
The plea of the accused was one of denial of the prosecution case.
Suresh pleaded alibi and alleged false implication.
Partap pleaded that the deceased was about to strike him with a bhalla and consequently, he fired two shots, in self defence, from his double barrel gun at the deceased.
The accused examined Chhote Khan, DW 1.
in defence.
The trial judge rejected the defence version and convicted and sentenced the accused as aforesaid.
In appeal, the High Court acquitted Suresh accused but maintained the conviction of Puttu Lal and Partap.
Before the admission of the special leave petition under Article 136 of the Constitution by this Court, Puttu Lal died.
Thus only the appellant 's conviction survives for consideration in this appeal.
The decision of the courts below rests mainly on the testimony of the three eye witnesses, namely, Raj Kumar, PW 1, Atma Ram PW 2, and Achhey Ram, PW 4.
Mr. A. N. Mulla, the learned Counsel for the appellant contends that the evidence of P.Ws. 2 and 4 was not worthy of credence; that being residents of another village and having failed to give a credible reason for their presence at the scene of occurrence, they were chance witnesses of the worst type; that as admitted by their brother" Bisheshar Dayal, PW 15, they were not only related to the deceased but were 767 stock witnesses of the Police.
that since the witnesses did not frankly and fully admit their mutual blood relationship" they were of a type to whom truth, even in trifles, appeared to be unpalatable; that the prosecution had failed to examine Siya Ram and Mahabir who were also named as eye witnesses in the F.I.R. and the courts below had erred in not drawing an adverse inference against the prosecution on that score.
Although this criticism levelled against P.Ws. 2 and 4 is not totally devoid of force, we do not think it a sufficient ground to depart from the settled rule of practice according to which this Court does not, in the absence of material irregularity, illegality or manifest error, itself reappraise the evidence.
In spite of these infirmities, the courts below have believed their presence at the time and place of occurrence.
The reasons given by the witnesses for their presence at the spot, may be vulnerable, even wrong.
True, they are residents of the neighbouring village, 1 1/2 or 2 miles away, and belong to the caste of the deceased.
PW 15 may be bearing some relationship with the deceased.
But the fact remains that PWs 2 and 4 have been named as eye witnesses in the F.I.R. which was lodged in the Police Station, 8 miles away, with utmost promptitude.
Be that as it may, the fate of the case did not depend on the evidence of these two witnesses.
Raj Kumar 's evidence corroborated by the F.I.R. and the other evidence on the record, was by itself, sufficient to hold that the appellant had fired a fatal shot at the deceased from close range with the double barrel gun of his father.
Thus, the only question that falls to be considered in this appal is, whether Ram Nath was shot dead by the appellant in the exercise of his right of private defence ? We have carefully scrutinised the judgments of the courts below.
In our opinion, their finding in regard to the plea of self defence is clearly erroneous.
They appear to have overlooked he distinction between the nature of burden that rests on an accused under section 105 Evidence Act to establish a plea of self defence and the one cast on the prosecution by Section 101 to prove its case.
It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution.
While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.
Since the approach of the courts below is basically wrong, it has become necessary to examine the material on record bearing on the plea of self defence.
This plea was specifically taken by the appellant at the trial in his examination under section 342, Cr.
It was put to Raj Kumar PW 1, the chief witness of the prosecution, in cross examination.
Raj Kumar replied: "It is wrong to suggest that Ram Nath would have murdered Partap if Partap had not fired at him.
Ram Nath had nothing in his hand.
" The courts below have accepted without demur the ipse dixit of Raj Kumar that the deceased was unarmed.
We find it impossible to swallow this so improbable a version the credibility of which was extremely underminded by the telling 768 circumstances appearing in the prosecution evidence, itself.
It was the admitted case of the prosecution that following the threatening gesture made by Raj Kumar to break Puttu Lal 's head with the spade, and the call given by Puttu Lal, the appellant came there armed with a gun and immediately thereafter, the deceased came running, proclaiming that he would break the heads of and settle the scores with everyone of the accused party.
It is further admitted that the deceased had reached at a distance of 3 or 4 paces from the appellant when the latter fired.
The blackening found around the wounds of entry on the deadbody by the medical witness, confirm that the deceased was within six feet of the assailant when he received those injuries.
Again, it is the case of the prosecution that at the time of the first gun fire the deceased was facing the appellant.
The medical evidence also confirms it, inasmuch as two entrance wounds (1 and 5) were located on the front side of the deceased.
From this circumstance it is clearly discernible that the deceased was charging at the gunman and had reached within a striking distance when his charge was foiled by the gun fire.
It is difficult to believe that the deceased would have behaved in the bold and truculent manner he did, if he were not armed with a formidable weapon.
It was put to Raj Kumar by the defence that if the deceased was empty handed as was alleged by the witness how did he proclaim to break the heads of the accused.
The witness had no satisfactory answer to it.
Conscious that he was suppressing the fact in question, all that he could say in befuddled embarrassment, was: '`I do not know with what weapon he was going to break the heads.
" The appellant 's plea that the deceased was going to strike him with a Bhalla, when the gun was fired, was highly probable.
one of the reasons given by the learned Judges of the High Court for ignoring this plea was that it was belated and had not been set up by the appellant during his examination in the Committal Court.
A glance at the record of that examination would show that he was not properly examined in that court.
Only a composite question with regard to all the circumstances of the prosecution case, was put to him in the Committal Court, which he denied.
The omission of the appellant to set up the plea of private defence in the Committal Court, therefore, was no ground to brand it as an after thought, particularly when there was foundation for it in the prosecution evidence, itself.
The circumstances appearing in the prosecution evidence, and the statement of the appellant recorded under Sec 342, Cr.
P.C. did not exhaust the material in support of the plea of self defence.
There was the direct testimony of Chhote Khan, DW 1, who testified that he was attracted from his house to the spot by the outcry of Puttu Lal accused which was to the effect, that he was being killed.
Witness saw Ram Nath deceased, armed with a spear, running towards the move of Siya Ram.
Thereafter, he heard two reports of gun fire.
On reaching the grove, the witness saw Ram Nath lying dead with a spear by his side.
Partap appellant and Puttu Lal were also seen running away from the scene.
Partap was carrying a gun.
Witness did not see Suresh and Ram Parkash there.
Excepting the precise words of 769 Puttu Lal 's call and the fact of the deceased being armed with a spear, Chhote Khan 's evidence in so far as it goes, fits in with the prosecution story.
The High Court has rejected hi, evidence without much discussion for two reasons; firstly, that he was not speaking the truth inasmuch as he stated that Puttu Lal was raising an outcry that he was being killed, because it was no body 's case that any body assaulted or attempted to assault Puttu Lal.
Secondly, the witness did not appear and make any statement before the investigating officer.
Neither of these was a good ground to reject his testimony but of hand.
Chhote Khan was a resident of the same village.
The place of occurrence is not situated at a far off distance from the village, Indeed, it was the prosecution case that the appellant and deceased came to the spot after hearing the shouts of Puttu Lal and Raj Kumar.
Chhote Khan 's coming to the spot from the village on hearing the same shouts, was therefore, equally probable.
In any case, his reaching the scene on hearing the reports of gun fire and seeing Ram Nath lying dead with a spear, was a highly probable fact.
Nor could his version that Puttu Lal was raising an outcry that he was being killed, be rejected outright.
It was admitted by Raj Kumar in cross examination, that he and his companions had advanced 2 paces towards the accused Puttu Lal and others, threatening to break their heads with the Phawra (spade and that the witness was then carrying (rather brandishing) the spade.
It is further admitted that it was after this threat that Puttu Lal gave a call to the appellant to come armed with the gun.
In the face of such a threat, it was not improbable for Puttu Lal to cry out for help saying that he was being killed.
Chhote Khan was an independent witness.
Nothing was brought out in cross examination to show that he was hostile towards the complainant party or had any special interest in the defence.
In the light of the above discussion, the conclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability, that the deceased was within a striking distance, poised for imminent attack on the appellant with a spear, when the latter fired the fatal gunshot.
In such a situation, the appellant had reasonable and immediate apprehension that he would suffer death or grieous hurt if he did not fire at the deceased.
Thus the death was, in all probability, caused by the appellant in the exercise of his right of private defence.
For the foregoing reasons we allow the appeal, set aside the conviction of the appellant and acquit him.
V.P.S Appeal allowed .

dataset_name: IN-Abs

summary/full:
The appellant, his father and another were charged with murder and convicted by the trial court.
The first information referred to eye witnesses, of whom the prosecution examined only two.
These two were chance witnesses of another village, but the others who belonged to the village where the occurrence took place, were not examined.
The third accused was acquitted on appeal.
by the High Court and the father died after his conviction was con firmed by the High Court.
The appellants plea of private defence was rejected both 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 proving the existence of circumstances bringing the case within any of the general or special exceptions in 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 the 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 led evidence of their respective versions 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 showing the existence of some evidence to justify the taking up 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 right 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 and that right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.
[762A D; 763E] In the present case, even if the appellant did not fully establish his plea.
yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offense of murder namely the required mens rea.
An examination of all the facts and circumstances revealed by the entire evidence, including the effect of non production of the better evidence available which.
for some unexplained reason was not produced, shows that the plea of private defence cannot be reasonably ruled out.
Even if the deceased was not positively proved to be advancing threateningly with a spear poised for attack, towards the appellant or his father, yet, a consideration of the whole evidence leads to the inference that this was reasonably likely to be true.
[763C 764A E] (1) The trial court was inclined to believe that the defence version was true to the extent that the deceased had rushed to the scene with a spear.
It overlooked that the deceased while going to help P.W. 1, had actually expressed his intention to break the heads of the members of the accused party and that he was acting in such a was as to appear to be bent on physically 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 thing which gave rise to the right of private defence in favour of the appeallant Otherwise, the conduct of the appellant, in sparing, P W. 1, who according to the prosecution had given offence to his father in the past and on the day of the incident.
and was advancing towards the father threatening to strike him with a spade, but shooting the deceased who appeared on the scene subsequently and was, according to the prosecution version unarmed becomes inexplicable If the right of self defence had arisen the shooting could not be murder, even if the right was exceeded the offence could not he culpable homicide amounting to murder.[760B F] (2) Further, the prosecution version is supported only by two chance witnesses, hut the other persons, who had according to the prosecution version witnessed the occurrence and whose names were mentioned in the FIR.
were neither produced by the prosecution nor were they examined as court witnesses [760G 761B] (3) Moreover the High Court itself did not rely on the statements of the alleged eye witnesses when it acquitted the third accused who was also alleged to have shot with his pistol [764H] Parbhoo vs Emperor, AIR 1941 All 402(FB) and Rishi Kesh Singh ors.
vs The State AIR 1970 All] 51 (FB), referred to (Per P. N. Bhagwati and R.S. Sarkaria, JJ) The appellant had established by a preponderance of probability, that the deceased was within a striking distance poised for imminent attack on the appellant with a spear, when the appellant fired the fatal shot, and hence.
the death was caused by the appellant in the exercise of the right of private defence.[769F G] (1) Nothing turns on the evidence or the two witnesses who were examined but the approach of the trial court and the High Court to the plea of self defense raised by the appellant was wrong necessitating a review of the evidence by this Court [767D,G] (2) The burden on the accused under s.105, Evidence Act is not as onerous as that which lies on the prosecution under s 101, Evidence Act, to prove its case.
While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability [767 T] (3) The plea of private defence was specifically taken by the appellant at the trial in his examination under s 342 Cr.P.C., and was put to P.W. 1.
the chief eye witness for the prosecution.
The High Court was wrong in branching the plea as an after though on the ground that he did not raise it in the committal court, especially when there is foundation for it in the prosecution evidence itself.
The record also shows that only a composite question was put to the appellant and that he was not properly examined in the committal court.
[767;768E G] (4) The appellant plea that the deceased was about to strike with his spear when the gun was fired was highly probable.
The prosecution case was that, following the threatening gesture made by P.W. 1.
to break the father 's head with a spade and the call given by him, the appellant came to the scene of occurrence with a gun; that immediately thereafter the deceased came proclaiming that, he would break the heads of, and settle scores with everyone of, the accused party, and that the deceased had reached a distance of 3 or 4 paces from the appellant and was charging at him with the appellant fired.
The prosecution story that the deceased was unarmed is improbable.
He would not have behaved in that bold and truculent manner unless he was armed with a formidable weapon.
[767H 767D] (5) The defence witness also testified that he was attracted from his house to the scene of occurrence by the outcry of the father, that he saw the deceased 759 armed with a spear running towards the scene of occurrence and that he saw the deceased Lying dead with a spear beside him.
He was an independent witness and nothing was brought out in the cross examination to show that he was either hostile towards the complainant 's party or had any special interest in the accused.
His version was probable and the High Court Was wrong in rejecting his evidence.
[769D F]


judgement:
N: Criminal Appeal No. 131 of 1971.
Appeal by special leave from the judgment and order dated the 4th March.
1971 of the Bombay High Court in Criminal Appeal No. 1954 of 1969.
K. R. Chaudhury, section L. Setia, Rajendra Chaudhury and Veena Khanna, for the appellant.
H. R. Khanna and M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment of the High Court of Bombay upholding the conviction and sentence passed against the appellant under section 379, Penal Code.
The facts are these : The appellant was tried in the court of the Presidency Magistrate 5th Court, Dadar on the charge of committing theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/ from the premises of the Bombay Port Trust on 1 8 1968 at 8.40 a.m.
The First Information Report of the theft lodged with the police by Murari Bhikaji Bidya (PW 1 ) Shed Superintendent of Haji Bunder, at 9.15, was as follows: "Today in the morning at about 8.
a.m. I reported for duty at Haji Bunder.
At about 8.40 a.m. or so, the Canteen boy named Shri Babu Durga came to me and informed me that one M/Car had come inside Haji Bunder and removed 3 small drums which were lying between 'A ' Shed and Canteen in an open place along with several drums.
I immediately asked Shri Joshi the gate keeper who was present in my office at that particular time, to go out and see what was the matter after some time Shri Joshi came to my office and informed me that before he could reach the gate, the car had already left.
However, he has noted down the number of the Car as 6649.
He further told me that he shouted to stop the car but the driver of the said car drove away the Car at a fast speed.
I then went in the open place in between 'A ' Shed and Canteen where the drums were lying when the above said Canteen boy showed me a gap in between bigger size drums from where the small drums were removed . " Sub Inspector Thorat PW 7, conducted the investigation.
After making inquiries from the Regional Transport office, he traced the 717 owner of the car, BML 6649, and requested him to send his car driver to the Police station.
Accordingly, the driver, Babu Vithal (PW 5), accompanied by the accused (appellant) appeared before the Sub Inspector in the Police Station on September 26, 1968.
The Sub Inspector took the accused into custody.
He then called the Panchas (including PW 6) and, in their presence, interrogated the accused who made a statement which was recorded by the Sub Inspector.
Rendered into English, this statement (incorporated in the Panchanama exhibit C) reads: "I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August.
" The accused then led the Police officer and the Panchas to a Musafirkhana in Crowford Market and pointed out the three drums lying there, bearing the markings, 'ACC I Phosphorous Pentaoxide '.
Thereafter, the drums were identified by PW 1 as the same which had been stolen.
Among others, the prosecution examined Bhikaji (PW 1) the informant, Vishnu Sakharam (PW 2), the Gate keeper, Govindji (PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness of the discovery.
The driver of the car BML 6649 was also put in the witness box as PW 5.
He turned hostile and the prosecution cross examined him to impeach his credit.
The plea of the appellant was one of plain denial of the prosecution case.
The courts below have concurrently found these facts: 1.
That three drums had been stolen from the shed of the Bombay Port Trust on 1 8 1968 at 8.4 A.M. 2.
That the drums in question were the same that had been stolen.
That these drums were discovered in consequence of the information (vide exhibit C) given by the accused whilst in police custody.
That such information, as admissible under section 27 Evidence Act, showed that the accused was admittedly in possession of these stolen drums on 26 9 1968 and therefore, under illustration (a) of sec.
114, Evidence Act, he would be presumed to be the thief.
Mr. Chaudhry, the learned Counsel for the appellant does not seriously dispute the first two findings.
But he forcefully assails the third and the fourth.
His contentions are: (a) that the courts below have not only misconstrued the statement made by the accused but have used more of it than was permissible under Sec.
27, Evidence Act; (b) that properly read, the admissible portion of the statement, 718 in the circumstances of the case, did not warrant an inference under illustration (a) to Sec.
114, Evidence Act, that the appellant was the thief or a receiver of stolen property.
As against this, Mr. H. R. Khanna, learned Counsel for the State submits that the whole of the information supplied by the accused was admissible udder sec.
Although the interpretation and scope of sec.
27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty.
It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be remained of its requirements.
The Section says: "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be Proved." The expression "Provided that" together with phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Secs.
25 and 26.
It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24, also.
It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence.
The Second is that the discovery of such fact must be deposed to.
The third is that at the time of the receipt of the information the accused must be in police custody.
The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible.
The rest of the information has to be excluded.
The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably".
The word has been advisedly used to limit and define the scope of the proveable information.
The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision.
This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery.
The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery.
No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see 719 Sukhan vs Crown,(1) Rex vs Ganee) (2).
Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya and ors.
vs Emperor(3), Udai Bhan vs State of Uttar Pradesh.(4) Before proceeding further, it is necessary to be clear about the precise statement which had been made by the appellant to the Police officer.
This statement finds incorporation in the panchnama, exhibit and we have reproduced an English rendering of the same earlier in this judgment.
While considering this statement, the High Court observed that the accused had stated that "he had kept them (drums) there".
We have perused the original record of the statement which is in Hindi, and we are of opinion that by no stretching of the words this statement can be so read or construed as has been done by the High Court.
The copy exhibit of the Panchnama, in the Paper book contains a correct English rendering of the same.
What the accused had stated was: "I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on first August".
It will be seen that he never I said that it was he who had deposited the drums at the place from which they were produced.
It seems the latter part of the statement which was an outright confession of the theft, was not completely ruled out of evidence and something of it was imported into and superimposed on the first part of the statement so as to fix the responsibility for deposit and possession of the stolen drums there, on the accused.
Having cleared the ground, we will now consider, in the light of the principles clarified above, the application of section 27 to this statement of the accused.
The first step in the process was to pinpoint the fact discovered in consequence of this statement.
Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musafirkhana, Crawford Market, wherein they lay deposited and (c) the accused 's knowledge of such deposit.
The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions.
Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.
Thus processed.
in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate and direct cause of the fact discovered.
Therefore, this portion only was admissible under Sec. 27.
The rest of the statement, namely, "which I took out from the Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused: it was not the distinct and Proximate cause of the discovery and had to be ruled out of evidence altogether.
After culling out and rejecting the inadmissible portion, it was to be considered further whether the admissible portion of the infor (1) I.L.R. F.B. (2) I.L.R. (3) 74 I. A. 65; (4) [1962] Supp. 2 S.C.R. 830 720 mation taken in conjunction with the facts discovered was sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen.
The answer to this questions in the circumstances of the case, had to be in the negative.
The drums in question were found in the compound or yard of a Musafirkhana which was a place of rest and waiting for Musafirs (travellers).
It was not alleged by the prosecution much less proved that the drums were lying concealed, or that the compound was under the lock and key of the accused.
There is not even an oblique hint that the place of the deposit of the drums was in any way under the control or occupation of the accused.
The place being a Musafirkhana, was from its very nature accessible to all and sundry.
It must be remembered that an inference under section 114, Illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused.
Such is not the case here.
The facts proved by the prosecution, particularly.
The admissible portion of the statement made by the accused" could give rise to two alternative hypotheses, equally possible, namely: (1) that it was the accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place.
The second hypothesis was wholly compatible with his innocence.
In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt.
Accordingly, we allow his appeal, set aside his conviction and acquit him of the charge levelled against him.
P.B.R. Appeal allowed.

summary/full:
The appellant was charged with an offence of theft or three drums of chemicals.
He was taken into police custody.
On interrogation he said : I will tell the place of deposit of the three chemical drums which I took out. " The drums were thereafter recovered from the place mentioned by him.
The trial court held that the.
information given by the appellant as a result of which the stolen drums were discovered, was admissible under section 27 of the Evidence Act and that under illustration (a) to s 114 Evidence Act, the appellant would be presumed to be the thief.
Allowing the appeal to this Court, ^ HELD: 1(a) The conditions necessary for bringing this section into operation are (1) the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence (ii) the discovery of such fact must be deposed to, (iii) at the time of the receipt of ' the information the accused must be in police custody, and (iv) only "so much of the information" as relates distinctly to the fact thereby discovered is admissible.
The rest of the information has to be excluded.
[718 E] (b) The word 'distinctly means 'directly ', 'indubitably ' 'strictly ', 'unmistakably.
The word has been advisedly used to limit and define the scope of the proveable information.
The phrase "distinctly relates to the fact thereby discovered" refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery.
[718 F] (c) If a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery.
No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
[718 G] Palukuri Kotayya and ors.
vs Emperor 74 I.A. 65 and Udai Bhan vs State of Uttar Pradesh [1962] Supp. 2 S.C.R 830 referred to.
In the instant case only the first part of the statement, namely "I will tell the place of deposit of the three chemical drums" was the immediate and direct cause.
Of the fact discovered.
Therefore this portion only was admissible under section 27.
The rest of the statement was not a distinct and a proximate cause of the discovery and had to be ruled out evidence altogether.
[719 G] 2(a) It cannot be said that the admissible portion of the information taken in conjunction with the facts discovered was sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen.
The drums were in a Musafirkhana which was a place accessible to all and sundry.
The drums were not alleged to be lying concealed nor was the compound under the lock and key of the appellant.
[720 A B] (b) The inference under section 114(a) can never be reached unless it is a necessary inference from the circumstances of a given case which could not be explained on any other hypothesis save that of the guilt of the accused.
In the present case two alternative hypotheses are equally possible (1) that it was the accused who had himself deposited the stolen drums in The Musafirkhana 716 or (ii) the accused only knew that the drums were lying at that place.
The second hypothesis was compatible with the innocence of the accused and he is entitled to the benefit of doubt.
[720 C D]


judgement:
N: Criminal Appeal No. 128 of 1975.
780 Appeal by Special Leave from the Judgment and order dated the 22nd November, 1974 of the Allahabad High Court in Criminal Revision No. 2475 of 1971.
K. C. Agarwala and M. M. L. Srivastava, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by B FAZAL ALI J.
This appeal by special leave involves a short point of law relating to the legal enforceability of a personal bond executed by the appellant before the police for the production of the car belonging to him, which was alleged to have been stolen.
The facts leading to the appeal fall within a very narrow compass.
The appellant appears to have bought a car No. USD 5317 from the dealers ON] the basis of a hire purchase agreement.
He filed a report before the police alleging that Ran Singh and others had practised a fraud on him and had taken away his car and had not returned the same.
On 3 12 1969, the police during the course of investigation recovered the car and handed it over to the appellant on supardnama on his executing a personal bond whereby the appellant undertook to produce the car in the court whenever necessary, and in the case of failure to do so, he bound himself to pay a penalty of Rs. 5,000/ .
By the time the matter came to the Court, two years had elapsed and on 14 9 1971, the munsiff magistrate, Meerut, called upon the appellant to produce the car, and as he was unable to do so, a notice was issued under section 514 of the Code of Criminal Procedure for forfeiture of the bond.
After hearing the appellant, the magistrate ordered the forfeiture of the bond and directed the appellant to pay penalty of Rs. 5,000/ .
The appellant went up in appeal to the learned Session Judge against the magistrate 's order.
But the appeal was dismissed.
The appellant met the same fate in revision which was preferred to the High Court.
Hence, this appeal before us.
The short point taken by learned counsel for the appellant is that even accepting the prosecution case as it stands, the bond is not legally enforceable under the Criminal Procedure code, because it was not executed before a court, but it was executed before a police officer.
It is not disputed by counsel for the parties that as the occurrence took place long before the Criminal Procedure Code, 1973, the present case will be covered by the old Criminal Procedure Code, 1898.
The Criminal Procedure Code contains separate provisions for the custody of property (1) during the course of investigation, (2) during the course of enquiry and trial, and (3) after the accused is convicted or acquitted.
In the instant case, we are concerned, however, with the case while it was under investigation.
Section 523 of the Code runs thus: "The seizure by.
any police officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit res 781 pecting the disposal of such property or the delivery of such property to the person entitled to the possession there of, or, if such person cannot be ascertained, respecting the custody and production of such property." , It would thus appear from a perusal of this provision that the moment a police officer seizes a property suspected to have been stolen or which is the subject matter of an offence" he has to report the matter to the magistrate concerned and it is for the magistrate to pass such orders as he thinks fit regarding the disposal of the property.
The learned counsel or the respondent, Mr. O. P. Rana, has, however, drawn our attention to Regulation 165 of the Government of Uttar Pradesh Police Regulations in order to contend that this provision concerned clear authority on the police officer to take possession of the property seized and to give it on superdnama to any respectable person.
165(ii) runs thus: "(ii) Bulky property, other than livestock taken possession of under section 25 of the Police Act V of 1861, attached, distrained or seized under section 88, 387 or 523 of the Code of Criminal Procedure shall ordinarily, pending the orders of the Magistrate, be left at the place where it was found in the charge of some land holder or other respect able person willing to undertake responsibility for its custody and to produce it when required by the court.
" It is true that this provision read with section 423 undoubtedly authorizes the police to seize the property and to make a summary order of the custody of the property, but neither section 523 nor rule 165(ii) authorize the police officer to take a bond from the person to whom the property is entrusted.
The policy of the law appears to be that the execution of the bond involves a civil liability and, therefore, it is ill the fitness of things that it should be executed before a court.
Section 514 of the Code runs thus: "514(1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class,".
A perusal of this section clearly shows that a bond for the production of the property seized by the police must be executed before the Court, although a bond for the appearance of any person before the Court can be taken by the police under section 170(2) of the Code of Criminal ` Procedure.
This section also clearly enjoins that a bond can be forfeited only if it is executed before a Court or before a Presidency Magistrate or a Magistrate of the first class.
Section 6 of the Code of Criminal Procedure classifies the classes of courts which includes magistrate of the first class also.
In the present case, therefore, once the car was seized by the police, it was the duty of the police under section 523 to report the matter to the magistrate and get an order from him regarding the custody of the car.
This does not appear to have been done.
Even the bond which was executed by the appellant, was not before the 782 court or the magistrate but before the police officer, and in these circumstances, therefore, the aforesaid bond was not one as contemplated by section 514 and, therefore, could not be forfeited.
This Court in .
Rameshwar Bhartia vs The State of Assam(1) went into this very question and observed: "The other point taken on behalf of the appellant is` a more substantial one.
The security bond was taken from him not by the court but by the Procurement Inspector.
It is true that it contained the undertaking that the seized paddy would be produced before the court, but still it was a promise made to the particular official and not to the court.
The High Court was in error in thinking that section 514 Criminal Procedure Code applied.
Action could be taken only when the bond is taken by the court under the provisions of the Code . " The facts of the present case squarely fall within the ratio laid down in that case.
It follows, therefore, that unless a personal bond is executed by a person for the production of the property, before a court it shall not be valid in law.
In view of these circumstances, therefore, we are satisfied that the bond executed by the appellant was not legally enforceable and the older of the courts belong forfeiting the bond must, therefore, be quashed.
Before closing this judgment, we would like to observe that even r. in the new Criminal Procedure Code, there is no express provision which empowers the police to get a bond from the person to whom the property seized is entrusted.
This may lead to practical difficulties for instance in cases where a bulky.
property, like an elephant or a car is seized and the magistrate is living at a great distance, it would , be difficult for a police officer to report to the magistrate with the property.
In these circumstances, we feel that the Government will be well advised to make suitable amendments in the Code of Criminal Procedure to fill up this serious lacuna by giving pow.
r to the police for taking the bond in such circumstances.
We would also like to make it clear that since the bond is legally invalid.
it is not enforceable under section 514, Criminal Procedure Code, but we refrain from making any observation regarding any other liability of the appellant under the law.
For the reasons given above, we allow this appeal, set aside the orders of the courts below and discharge the appellant from the bond V.M.K. Appeal allowed.

summary/full:
The appellant bought a car from the dealers on the basis of a hire purchase agreement.
He filed a report before the police alleging that Ran Singh and others had practised a fraud on him and had taken away his car and had not returned the same.
On 3 12 1969, the police during the course of investigation recovered the car and landed it over to the appellant on supurdnama on his executing a personal bond whereby the appellant undertook to produce the car in the court whenever necessary, and in the case of failure to do so, he bound himself to pay a penalty of Rs. 5000/ .
By the time the matter came to the Court, two years had elapsed and on 14 9 1971, the munsiff magistrate, Meerut, called upon the appellant to produced the car, and as he was unable to do so.
a notice was issued under section 514 of the Code of Criminal Procedure for forfeiture of the bond.
After hearing the appellant, the magistrate ordered the forfeiture of the bond and directed the appellant to pay a penalty of Rs. 5000/ .
He failed in his appeal and his revision petition to the High Court was also dismissed.
Allowing the appeal by special leave, ^ HELD :(1) A perusal of section 514 (1) of the Code of Criminal Procedure.
1898 clearly shows that a bond for production of the property seized by the police must be executed before the Court, although a bond for the appearance of any person before the Court can be taken by the police under section 170(2) of the Code of Criminal Procedure.
This section also clearly enjoins that a bond can be forfeited only if` it is executed before a Court or before a Presidency Magistrate or a Magistrate of the first class.
In the present case, therefore.
Once the car was seized by the police, it was the duty of the police under section 523 to report the matter to the magistrate and get an order from him regarding the custody of the car.
This was not done.
Even the bond which was executed by the appellant, was not before the Court or the magistrate but before the police officer, and in these circumstances, therefore, the aforesaid bond was not one as contemplated by section 514 and, therefore.
could not be forfeited.
Rameshwar Bhartia v The State of Assam, A.I.R. 1952 'S.C. 405, relied on.
[781 FH. 782 Al (ii) Though the provisions of Regulation 165(ii) of the Government of Uttar Pradesh Police Regulations read with section 423 of the Code undoubtedly authorizes the police to seize the property and to make a summary order.
Of the custody of ' the property, neither section 523 nor rule 165 (ii) authorize the police officer to take a bond from the person to whom the property is entrusted.
[781 D E] Observation: Even in the new Criminal Procedure Code, there is no express provision which empowers the police to get a bond from the person to whom the property seized is entrusted.
This may lead to practical difficulties, for instance in cases where a bulky property is seized and the magistrate is living at a great distance, it would be difficult for a police officer to report to the magistrate with the property.
The Government will be well advised to make suitable amendments in the code to fill up this serious lacuna by giving power to the police for taking the bond in such circumstances.
1782 E Fl