thing which gave. rise to the right of private defence in favour of th~ appelA lant. 01h.;:nv1!le, the conduct of •he appellant, in paring P.\V. 1, wh.J according to the prosecution had given offence to his father in the past! and on the day .Qf the incident, and was advancing towards the father threatening to strike him wvith a S:pade, but shooting th'C' dccea<;cd who appeared on the scene subsc'QUcntly and was, according· to the .pros~cution version unarmed becon1es inexplicable. If the right of ~If-defence had arisen the shooting cquld not tie n1urder, even if the right" \Vas exceeded the offence could not be culpable homicide amounting to murder. f_760B-F] B (2) Further, the prosecution version is supportied only by two chance witnesses, but the other persons, who had according to the prosecution version witnessed the occurrence and whose names were m-entioned in the FIR, were neither produced by the prosecution nor_ were they examined as court witnesses. [760G-76lB] (3) Moreowr, the High Court itself did not rely on the stale111ents of the .alleged eye witnesses when it ac'quitted the third accused who was. also alleged c to have hot with his pistol. [764H] Parbhoo v. E111peror, AIR 1941 AIL 402(FB) and Rishi Kl'sh Singh & On. v. Tire 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 appelD lant v.·ith '" spear. wheh the appellant fired the fatal shot, and hence, the death was caused by the appellant in lhe exercise of th.3 riht of private defence. ,!769F-GI (I) Nothing turns on the evidence of the two witne&ses who wen: examined: but the approach of the trial court and the High Coun to the plea of self· .defence raised by the appel1ant was wrong. necessitating a rcvie'v of the evidence by this Court. [7670, G) E (2) The btirdcn on the accused under s. 105, Evidence Act, is n0t :1'i or..:n_,u~ u:; that which lies on the prosecution under s. 101, Evidence Act, to "prove it" case. While the prosecution is required to prove its case be~ond reasonabk doubt, the accused can discharge hi's onus by establishing a n1ere preponderance of probability. [767F-G] ( 3) The plea of private defence wa" specifically taken by the appellant J.l F the trial in his examination under s. 342, c·r.P.C., and was put to P.\V. 1, the chief eye.witness for the· prosecution. ·The High Court was wrong: in brandin_c: the plea as an after-thought on the ground that he did not raise it in lhc con1mittal court, especially \Vhoen there is foundation for it in the prose.:ution evidence itself. The, record also shows that only a composite question was put o the appellant and that he was not properly examined in the comn1it1al court. [7670; 768E-G] · ( 4) The appellant's plea that the deceased was about to strike with hi G _.>- spear when the gun was fired was highly probable. The prosccuiion ca w::i.' that, following the threatening gesture made by P.W. 1 to break the f:ithr·s head with a spade and the call given by him, the appellant came to the scene _of occurrence with a gun; that immediat'.:!ly thereafter. the dece3scJ cru11c proclaiming that, he would break the heads of, and settJC scores with everyon of, the accused !_}arty, and that the dee.eased had reached a distance of 3 or 4 paces from the appellant and was charl:,ing at him when the appellant fired. The :prosecution story that the deceased was unarmed is improbable. He woulJ not have behaved in that bold and truculent inanner unless. he wus .irn1ed with H a formidable weapon. . [767H-768D]
