N.G. Shelat, J.
[After considering the evidence, the Judge proceeds--Ed,].
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6. The fact about Francis having died on 1-3-67 as a result of injuries said to have been caused by the accused with a stick on his head on the previous evening is no longer in dispute. What is, however, urged by Mr. Vin, the learned advocate for the appellant-accused, is that the act was committed in the exercise of his right of private defence and that way he is not guilty for the offence in question by reason of Section 96 of the Indian Penal Code. HIS contention was that the learned Sessions Judge has not properly considered the extent of proof that any such plea raised by the accused requires and about his having not properly appreciated the evidence of the main eye-witnesses in the case. According to him, the evidence of witness Ghanshyamalal Ex. 6 clearly establishes the deceased Francis being the aggressor at the incident and it was he who came out duly armed with a stick and gave the first blow to the accused. According to him, when he attempted to give another blow to him, he apprehended that he would be either done to death or caused any grievous hurt that he also gave the stick blow which hurt him on his head as a result of which he died on the next day. In those circumstances he is protected by reason of the provisions contained in Section 96 read with Section 97 part I and Section 100 cls. (1) and (2) of the Indian Penal Code. It may be also-mentioned at this stage that the prosecution has attempted to prove from the evidence on record that it was a free fight between the-parties and if after both of them got them selves armed with a stick and if in that mutual fight one causes injury to the other, no right of private defence is available to either side and in those circumstances, the learned Sessions Judge was perfectly right in convicting him for an offence under Section 304, Part It of the Indian Penal Code.
7. Before we actually go to the appreciation of evidence of the eye-witnesses in the case, it may be essential to keep in mind the extent of proof which can be said to be essential for establishing any such plea of self-defence falling under the general exceptions in Chapter IV of the Indian Penal Code, for it is the contention of Mr. Vin that much though Section 105 of the Indian Evidence act contemplates that the burden 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 is upon the accused and the Court shall presume the absence of such circumstances, the decisions have laid down that the same extent of proof as is essential for establishing an offence viz. about the proof beyond any reasonable doubt in a criminal trial is not necessary and it would be enough if the accused is able to show the preponderance of probabilities that the act committed is in exercise of right of private defence. It would be enough, and will entitle him to claim the right so as to exonerate him from the act in question. It may not be necessary to refer to the various authorities and it would be enough to refer to the latest decision in the case of Harbhajan Singh v. State of Punjab : 1966CriLJ82 . In that case it has been observed as follows:
There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the teat prescribed while deciding whether the prosecution has discharged its onus or proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where he is called upon to prove that his case falls under an Exception,. law treats the onus as discharged it he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.
Then their Lordships have said thus:
Where an accused person pleads an Exception he must justify his plea, but the degree and character of proof which be is expected to furnish in support of the plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings just as in civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.
While considering, therefore, the plea raised by the accused in the present case we have to keep in mind the extent of proof which is required to establish any such plea raised out of the general exceptions contemplated in Chapter IV of the Indian Penal Code. The same view has been taken by this Court in the case of Pravinchandra Ramnarayan Bhatt v. The State of Gujarat : AIR1968Guj17 .
8. Section 96 of the Indian Penal Code says that nothing is an offence which is done in the exercise of the right of private defence and as provided in clause (1) of Section 97 of the Indian Penal Code, every person has a right. ...to defend his own body, and the body of any other person, against any offence affecting the human body. Then Section 100 relates to as to when the right of private defence of the body extends to causing death. It provides as under:
'100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
First.--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Secondly.--such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
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Thus, any such right would extend even to the voluntary causing of death of any other person provided there is a reasonable apprehension of an assault and the death or grievous hurt is likely to be the consequence of such assault. Then Section 102 of the Indian Penal Code says as to when that right commences. It provides that the right of private defence of the body commences as soon as a reasonable apprehehsion of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. It is essential to note that it is not that any actual assault should have been committed so as to entitle the person assaulted to claim any right of private defence and it is enough if there arises a reasonable apprehension of danger from either an attempt or threat to commit any such offence. As already pointed out hereabove, the accused has got to show that such a right of private defence exists and that it was in exercise of that right he had given a blow with a stick which brought about the death of Francis on the evening of 1-3-67.
9. The contention made out by Mr. Bakshi, the learned Assistant Government Pleader for the State, is that the evidence discloses a free fight between the parties in which both of them voluntarily and with a determination to fight had indulged in fighting after getting themselves armed with sticks and if in that fight any person gets injured, he must face the consequences arising out of that act and he is not entitled to invoke the aid of any such right of private defence. That would require me to consider as to what can be called a 'free fight' and in what circumstances such a defence is not available before we go to the appreciation of the evidence in the case. Mr. Bakshi relied upon various decisions and I would refer to them in brief. In Emperor v. Bechar Anop ILR 40 Bom 105 : AIR 1915 Bom 218 it was held that the right of private defence cannot be sucessully invoked by men who voluntarily, and deliberately engage in fighting with their enemies for the sake of fighting, as opposed to the case where men are reluctantly forced to use violence in order to protect themselves from violence offered to them. Then in the case of Dorik Gope v. Emperor AIR 1946 Pat 251, it was held that where two parties come armed ready to fight with each other, the mere fact that one party strikes the other party first does not, by that reason and that reason alone, give a right of private defence of person to the members of the other party. Then I was referred to a case of Abdul Latif v. Crown (1947) 48 Cri L J 867 (Lab), where it was held that where both sides take arms and go into the open to indulge in a fight, no question of the exercise of right of self defence arises and it is immaterial whether the right is begun by one side or the other. In the case of In re Erasi Subba Reddi AIR 1943 Mad 492, it was held as under:
Where two parties were spoiling for a fight and each person began to pick up stones and throw at the other party, then the accused's party cannot plead that because the other party was also intent on beating them, every blow they gave was given in self-defence. Where there is a spontaneous fight between two parties, each individual is responsible for the injuries he causes himself and for the probable consequences of the pursuit by his party of their common object. He cannot plead that because be might at any moment be struck by come member of the other party his own blows were given in self defence.
In the case of State v. Hira Bhaga : AIR1961Guj8 , it was held by the Division Bench of this Court that in a mutual determined fight between two rival factions right of private defence is not available to either side. As to what is called a 'free fight' came up for consideration by the Supreme Court in the case of Gajanand v. State of Uttar Pradesh : AIR1954SC695 . Their Lordships of the Supreme Court agreed with the observations made by Harrison J. as to what can be called a 'free fight' in the case of Ahmad Sher v. Emperor AIR 1981 Lah 518. A 'free fight' as held in that case was
when both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and de. pends on the tactics adopted by the rival commanders.
Then we have another decision of the Supreme Court in the case of Jumman v. State of Punjab : 1957CriLJ586 , where it has been laid down that where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and conflict and has to be dealt with under Section 300, I. P. C., Exception 4.
10. It would appear from the aforesaid decisions that in order that a party is not entitled to claim any right of private defence, there must be a free fight suggesting clearly that both the sides had a determined intention to fight from the start voluntarily and secondly when there is no reliable and acceptable evidence Co show as to how it started and as to who was the aggressor. In other words, if two persons Or two factions voluntarily and with determined inteneion come out to fight and in fact fight and that it is not possible to ascertain with reasonable certainty as to who was the aggreeson or as to how that fight started, the rule of law laid down in the various decisions, that neither side is entitled to claim any such benefit arising out of the general exceptions contemplated under Section 96 read with Section 100 of the Penal Code would prevail. It is then that as to who attacked first would become immaterial.
We have therefore, to appreciate the evidence keeping these broad principles in mind and finding out in the first instance as to whether it is possible to ascertain as to how the scuffle started and as to who was the aggressor. If that is possible to ascertain having regard to the evidence in the case, and if the act of the accused is found to have been committed in the exercise of his right of private defence he cannot be held guilty for any offence whatever.
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