Macklin, J. -
(1.)THIS is an appeal by the Government of Bombay against the acquittal of accused No.1 in a ease of murder tried before Mr. Justice Baja-dhyalraha and a special jury. The jury unanimously acquitted the rest of the accused; but they brought in a verdict of 7 to 2 for the acquittal of accused No, 1, and the learned Judge accepted that verdict and directed an acquittal The appeal is presented on grounds of misdirection, in particular misdirection as to the burden of proof lying upon an accused person who alleges circumstances bringing his case within one of the exceptions to the ordinary law, in this case the exception relating to the right of private defence.
(2.)THE case arose out of the death of one Benjamin Samuel, who was stabbed through the heart on the evening of September 18, 1944, in full view of the general public in Hornby Vellard, Bombay. It was a special Jewish day; and the deceased was himself a Jew, as are all the accused. Accused Nos. 1 and 4 are brothers and were related to Benjamin Samuel by marriage, in that their sister was married to Benjamin's brother Isaac. THEre were serious quarrels between the two families; and in due course Isaac's wife obtained a divorce in March, 1944. On the day in question two parties from two rival synagogues went to Hornby Vellard to -worship, as that is the regular practice on this particular day of the Jewish year. THE family of Benjamin Samuel was in the party belonging to one synagogue, and the accused and their friends were in the party belonging to the other synagogue. It seems beyond dispute that the deceased and his family on the conclusion of their part of the worship walked past the other group; and it was when the deceased was about to walk past the other group that the trouble occurred. THEre may or may not have been some general trouble. But however that may be, according to the evidence of three Jewish eye-witnesses, who cannot be said to be altogether independent, an -unprovoked attack with a knife was made by accused No.1 upon Benjamin. He was stabbed through the heart and immediately collapsed j and so far as it goes this evidence is corroborated by the independent evidence of a Parsi who was passing on a bicycle at that moment and arrived in time to see the actual stab wound but not in time to see anything that had happened before. THEre is evidence to suggest that after the stabbing a violent and prolonged attempt was made to get the knife out of the hand of aectised No.1, and to some extent that is borne out by the injuries to the fingers and other parts of the persons said to have participated in that particular struggle. But in the course of the trial and arguments an attempt was made to show that the injuries to the accused arose out of a previous attack by Benjamin, who on the suggestion of the defence is said to have had this particular knife in his hand in the first instance but had it snatched out of his hand by accused No.1.
The defence as disclosed by the statement of accused No.1 was that he found MS brother lying on the ground and the eye-witnesses Isaac and Moses kicking Mm and two or three more persons having a fight with accused No.5 at some distance away. He says that Benjamin was standing near the railing; and that as soon as he saw the accused Benjamin rushed on him with an open knife and the accused caught hold of the knife with both his hands. He repudiates in his statement a suggestion which had been put to various witnesses but denied by them to the effect that Benjamin was accidentally stabbed in the course of a struggle; that is evidently his meaning, though lie does not express it very clearly. But he also says that he does not know whether that really is the case or whether the fact is that he took the knife from Benjamin's hand and stabbed him. It is to be noted that he does not in terms raise any plea, of self-defence. But self-defence played a prominent part in the arguments; and the principal ground of this appeal is that the learned Judge has misdirected the jury as to the obligations of an accused person who wishes to take advantage of a plea of self-defence. Other misdirections have been alleged in the memorandum of appeal, but they have not been seriously argued; and we do not think that there is any reason for going into them. The whole centre of the alleged misdirection is the plea of self-defence; and that is the only misdirection that we need consider.
The learned Judge in dealing with the evidence made it perfectly clear to the jury that there was no case whatever for supposing that Benjamin's death was due to anything other than a stab wound inflicted by the accused; and we think it impossible to suppose that the jury ever came to the conclusion that it was not proved by the prosecution that it was the accused who had stabbed Benjamin. That means that the prosecution had established the first thing which they had to establish, namely the fact of Benjamin having been stabbed by the accused.
(3.)THE next question arising in the case in view of the arguments was whether the case came within the exception relating to the right of private defence. THE learned Judge dealt exhaustively with the law of private defence and pointed out to the jury the points on which it would be necessary for them to be satisfied; and in that respect we cannot find anything to criticise in his sumining-up. But having stated his personal opinion of the law to be that the Court must either believe circumstances giving rise to the right of private defence to exist, or consider their existence so probable that a prudent man ought under the circumstances of that particular case to act upon the supposition that those circumstances did exist, he went on to direct the attention of the jury to certain judicial decisions, in particular the decision in Woolmington v. THE Director of Public Prosecutions  A. C. 462, as showing, despite Section 105 of the Indian Evidence Act, that the jury could be left in reasonable doubt as to the existence of circumstances giving rise to the right of private defence but could yet acquit the accused, even though they found that it was he who stabbed the deceased. As a matter of principle we think it undesirable that judicial decisions should be cited to a jury, especially when they are in conflict with what the Judge has stated to be his personal opinion; and that the effect of citing decisions to this extent, particularly conflicting decisions, may well be to create a state of uncertainty in the minds of the jury as to what the law really is, whereas it is the duty of the Judge to lay down to the jury, in words that they can clearly understand, what the law really is. At the end of his citations the learned Judge did give directions to the jury; but, since those directions were not altogether in accordance with the personal opinion which he had expressed earlier, it would not have been surprising if the jury were left in a somewhat confused state as to what the law really was on the point. In the present case we do not however think that that is really material, since we have come to the conclusion that there was material upon which it was possible for the jury to arrive at the conclusion that circumstances existed giving rise to the right of private defence. What the learned Judge eventually said was this.- As a direction in law, therefore, I would ask you to proceed upon the basis that if accused No.1 in this case seeks the benefit of the exception of the right of private defence, then it would be sufficient for him if he makes out a prima facie cage which, on the conclusion of the evidence, leads the jury to entertain a reasonable doubt about the guilt of the accused "; and he went on to say : But you must remember that the burden of bringing himself within the exception is on the accused, and to that extent he is bound by Section 105 to establish the existence of circumstances, whether they have been proved beyond reasonable doubt or not, which would after the whole evidence is recorded leave a doubt in the minds of the jury about the guilt of the accused. THEre is the authority of Woolmington's case for that direction. THEre is also the authority of the Calcutta High Court in Robert Stuart Wauchope v. Emperor (1933) I. L. R. 61 Cal. 168, cited by the learned Judge, and in the ease decided by the full bench of the Rangoon High Court in King-Emperor v. V. Damwpala (1986) I. L. R. 14 Ran. 666. THEre is also the majority opinion of a full bench of seven Judges of the Allahabad High Court in Emperor v. Parbhoo  All. 843. But in our view cases decided in England on the basis of the English law ought not to be applied rigidly to the construction of an Indian statute unless there is a corresponding statute in England; and here what we are dealing with is not the Common Law of England but the combined effect of Sections 3 and 105 of the Indian Evidence Act, where proof receives a statutory definition and it is stated that a Court shall presume the absence of circumstances bringing a case within the exceptions unless the accused discharges the burden of proving the existence of such circumstances.
We entirely agree with the view of those learned Judges of the Allahabad High Court who pointed out the objections to applying English decisions in a case like this; and indeed they are sufficiently obvious. When you have, as we have here, a statute which is perfectly plain in its terms, it is not, we think, legitimate to construe it by reading into it a basis derived from the English law which may not necessarily have been its basis at all (at any rate not the English law as' at present understood) and which is not in accordance with the plain meaning of the statute, The words of the statute are that an accused person 'has to prove that his case falls within one of the exceptions, and in the absence of such proof the Court is bound to presume the absence of such circumstances. Now we venture to think that a simple translation of the section itself into the terms of any particular case, vising the words of the section itself to do so, will make all possible doubt on the point disappear. The; definition of "proved" is this: A fact is said to be proved when, after considering the matters before it, the Court believes it to exist, 01 considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Leaving aside the case of the Court believing it to exist (which of course presents no difficulty at all), we turn to Section 105; and taking it to be established (which undoubtedly is the fact) that accused No.1 stabbed Benjamin through the heart, so that in that respect there is nothing more for the prosecution to do, what the accused has to do is to prove the existence of circumstances bringing the case within the exception relating to the right of private defence; and if he does not prove the existence of such circumstances, then the Court will presume the absence of such circumstances. In other words what he has to do is to induce the jury to consider the existence of circumstances giving him a right of private defence to be so probable that as prudent men they ought in the circumstances of this particular case to act upon the supposition that he had a right of private defence. What he has to do in fact is; to show that there is enough probability of the existence of a right of private defence-enough probability in short of his being attacked himself or of somebody being attacked whom he desired to protect-to make the jury as prudent men regard it as their duty to act accordingly. Once the prosecution has convinced the jury that they must act upon the assumption that the accused has committed the act with which he is charged, the accused must prove to the jury that he has a right of private defence; if he does not prove that, then the act established by the prosecution stands as a criminal act and must be dealt with accordingly, There is no question of the jury being left with reasonable doubt of the guilt of the accused. If they arc left with reasonable doubt as to the accused having committed the act which is the basis of the charge, then of course the case for the prosecution has failed and no question of self-defence arises at all. But if the act which is the basis of the charge is established, then in the same way it is for the accused to prove the existence of circumstances bringing his case within the limits of the right of private defence; and 'proof must mean the same thing in either case.