Published on: 30 September, 2022 at 08:59 IST
Court – Supreme Court of India
Citation – James Martin v. State of Kerala (2004) 2 SCC 203
Hon’ble Supreme Court of India has held that Section 105 of the Indian Evidence Act, 1872 provides that the burden of proof rests with the accused who takes up the plea of self-defence. In the absence of proof, the Court will not be in a position to assume that there is any truth in the plea of self-defence.
Thus, it would be for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other material on record to establish his plea of private defence.
Para – 13
“………Under Section 105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances.”
It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.
The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden.
Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.
“The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record………………”
Drafted by – Abhijit Mishra
Key Words – Burden of Proof, Private Defence, Reasonable Apprehension, Positive Evidence.