JUDGMENT T.K. Joseph, J. 1. These appeals are from the judgment of the Sessions Judge, Kozhikode, in Sessions Case No. 41 of 1959. Criminal Appeal No. 342 of 1959 is by the 1st accused who was convicted under section 302, Indian Penal Code, and sentenced to rigorous imprisonment for life. Criminal Appeal No. 42 of 1960 is by the State against the acquittal of accused 2 and 3 who were charged with the offence under section 302 read with section 34 and section 409 of the Criminal Procedure Code. 2. The case for the prosecution may be briefly stated : Accused 1 and 2 are brothers and the 3rd accused is stated to be a dependent of theirs. Deceased Mammunny and accused 1 and 2 are the sons of one Mammadukutty Haji, the deceased being the latter's son by his first wife, and accused 1 and 2 by his second wife. There was enmity between accused 1 and 2 and the deceased. About three years before the incident, Mammadukutty Haji went on a pilgrimage to Mecca and before he left, he gifted all his properties to his second wife and children. He was not on good terms with the deceased at that time. After his return the deceased and his sisters sued for and obtained recovery of possession of their share of their deceased mother's properties from Mammadukutty Haji. The latter gifted his share of his first wife's properties also to his children by the second wife. Notwithstanding the gift of the properties to them Mammadukutty Haji took possession of his properties at Thenhipalam and he sought to recover the other properties also from accused 1 and 2. They drove him from the house and thereafter he was being supported by the deceased who arranged a third marriage for him. Mammadukutty Haji was contemplating the institution of a suit for cancellation of the gift deed to accused 1 and 2 and others. The deceased was actively assisting him in this endeavour and as a result of his intervention, accused 1 and 2 were entertaining animosity to him. At about 7 P. M, on 26-7-1959 when the deceased was returning home from his shop about a furlong to the west of his house, accused, 1 to 3 were lying in wait for him in the narrow lane on the southern side of the deceased's compound. At about 7 P. M, on 26-7-1959 when the deceased was returning home from his shop about a furlong to the west of his house, accused, 1 to 3 were lying in wait for him in the narrow lane on the southern side of the deceased's compound. When the deceased reached there the 1st accused is alleged to have inflicted several injuries on him with a bill hook. Accused 2 and 3 are said to have assisted him, the former by flashing a torch and the latter by standing with a stick close by. P.W. 1 who was waiting in the deceased's house to take food before going to the shop to keep watch at night heard the deceased's cry and ran to the lane when he saw the 1st accused cutting the deceased with the bill hook and the latter trying to ward off the blows while retreating. The 1st accused threatened P.W. 1 warning him against approaching, and when he raised a hue and cry, the accused ran away. P. W. 1 and others came there attracted by the noise and they removed the deceased to his house where he died soon after. P. W. 1 left the place to inform P. W. 8, the maternal uncle and father-in-law of the deceased. Early morning the next day P. Ws.12 and 13 who were the sons of Mammadukutty Haji's elder brother went to give information to the authorities. P. W. 12 proceeded to the Police station at Kondotti where he gave a statement, Ext. P. 7, to the Sub-Inspector of Police (P. W. 18) at 7-30 A. M. P. W. 13 gave a statement (Ext. P. 8) at 8 A. M. to the Village Munsiff (P. W. 14). The latter prepared Exts. P. 9 and P. 10 Yadast and sent Ext. P. 9 together with Ext. P. 8 to the Police and Ext. P. 10 with a copy of Ext. P. 8 to the Magistrate. P. W. 14 then proceeded to the scene of occurrence. P. W. 18 registered a case and after preparing the first information report and sending reports to his superior officers, he went to the house of the deceased which was about six miles away and reached the sene of occurrence, recovered M. O. 2 stick and M. O. 5 bloodstained earth from the lane and prepared a list (Ext. P. 12) regarding the same. P. 12) regarding the same. He held the Inquest and Ext. P. 13 is the Inquest report. The dead body was sent for post mortem examination to P. W. 4 who conducted the same and issued a certificate Ext. P. 2. On information received by P. W. 18 he went to the house of the Ist accused's sister where he found him. As he had some injuries he was sent to the hospital along with a constable (P. W. 16) and he was kept there under surveillance. He was arrested when he was discharged on 8-8-1959. Accused 2 and 3 were absconding and were apprehended only on 8-8-1959. The investigation was conducted at first by P. W. 18 and then by the Circle Inspector of Police P. W. 19. The case was duly filed before the Sub-magistrate, Manjeri who committed the same to the Court of Sessions for trial. 3. The learned Sessions Judge acquitted accused 2 and 3 and convicted and sentenced the 1st accused as stated above. 4. The fact that Mammunny died on 28-7-1959 as a result of the injuries sustained by him was not disputed either in the court below or here. Ext. P. 2 shows that he had ten injuries on his body: "(1) Incised gaping wound 41/2" in length cutting the scalp and bone situated 2" above the forehead and placed transversely and centrally. On opening the skin it is seen that the break in the bone is 6" and this extension is to the left side. Internally button holding of the membranes of brain present. (2) An incised wound 2" in length gaping and exposing the bone placed 1" to the left of injury No. 1 transverse. (3) An incised wound 91/2" in length starting just above the middle of the left eye brow and transferring through the right side of nose and chipping off at the lower two-third of nose with breaking of bones of the nose. The wound transverse through the middle of upper lip and it takes out a flap of skin with the cut of nose. (4) Left upper lateral incisor tooth is shed and the bent tooth fits in there. (5) Incised wound of 2" x skin deep and gaping on the top of skull oblique. The wound transverse through the middle of upper lip and it takes out a flap of skin with the cut of nose. (4) Left upper lateral incisor tooth is shed and the bent tooth fits in there. (5) Incised wound of 2" x skin deep and gaping on the top of skull oblique. (6) A choppsed up area of scalp skin deep at the Occipital region of skull rounded in shape with a diameter of 3". (7) The index finger of left hand is chipped of from the first interphalangeal joint. It is an incised cut. (8) An incised wound of 5" in length on the left hand at its middle cutting all the structure including the metacarpal bones and making a button hole of 11/2" in length in the skin of the anterior part wounding placed transversely. (9) An incised wound 6" in length and 1" in breadth 21/2" in depth placed on the medial aspect of right thigh 2" below the mid inguinal region and directed downwards and medially. It cuts all the structure and reaches the bone; and (10) Multiple abrasions on the lateral aspect of the right elbow." P. W. 4 who conducted the autopsy has deposed that Mammunny died as a result of shock and haemorrhage due to the multiple injuries sustained by him. 5. It was not disputed in the court below or here that the 1st accused inflicted the injuries as a result of which Mamunny died. We may in this connection refer to the statement of the 1st accused under Section 342, Code of Criminal Procedure. He stated that on the evening of the day on which the incident took place he proceeded to the tank in his compound to take his bath when he found that cattle which had strayed from the deceased's compound on the north were destroying his coconut plants. He drove the cattle away and repaired the fence, cutting sticks for the purpose with his bill hook. After ' repairing the fence he went out to take tea and while he was returning along the lane in which the occurrence happened he met the deceased. The latter questioned him about beating his cattle and saying "You have appropriated all the assets of my father and you are eating the same" and stabbed him on his shoulder. After ' repairing the fence he went out to take tea and while he was returning along the lane in which the occurrence happened he met the deceased. The latter questioned him about beating his cattle and saying "You have appropriated all the assets of my father and you are eating the same" and stabbed him on his shoulder. The 1st accused said that he should not be stabbed when the deceased answered "I will kill you, son of a dog." The deceased then stabbed him on his right hand and apprehending death, he did something to the deceased in self defence. The plea is thus one of private defence. 6. A few facts useful for appreciating the evidence may be stated: The shop of the deceased is situated near the building marked 1 in the plan Ext. P. 19 prepared by the Amsom Menon (P. W. 17). Ext. P. 18 is a true sketch based on the survey plan. The deceased's house is marked 7 in survey No. 403 and the lane from the deceased's shop to his house is shown by a dotted line in red ink. The 1st accused's house is marked 10 and it is situated in survey No. 405/2 just south of the deceased's compound. The building marked 4 is the house of P. W. 10. The fact that Mammadukutty Haji had gifted all his properties to accused 1 and 2 and their sisters before he went to Mecca is admitted. It is also admitted that on his return Mammadukutty Haji had asked accused 1 and 2 to surrender the properties to him and that they refused to do so. This was followed by publication of notices in the Mathrubhoomi in November 1958 by Mammadukutty Haji and the accused regarding ownership of the properties. That there was enmity between Mammadukutty Haji and accused 1 and 2 is also not disputed. There is the evidence of P. W. 2, a vakil practising at Parapanangadi that Mammadukutty Haji and the deceased consulted him in March 1959 regarding taking steps for cancelling the deeds executed by Mammadukutty Haji to accused 1 and 2 and others. The deceased was supporting his father who was aged about 90 in this dispute and the former also arranged a third marriage for his father after he was driven out of his house by accused 1 and 2. The deceased was supporting his father who was aged about 90 in this dispute and the former also arranged a third marriage for his father after he was driven out of his house by accused 1 and 2. P. W. 8 who is the maternal uncle as well as father-in-law of the deceased warned him against meddling in the matter as he apprehended danger from accused 1 and 2 but the latter persisted in supporting his father. According to the prosecution the parties were thus on inimical terms. The defence also relies on such enmity in support of the argument that the case is falsely foisted on him. 7. Reference has already been made to the fact that the plea of the accused is one of private defence. Learned counsel for the 1st accused appellant addressed arguments on the question of burden of proof in a case in which such a plea is raised and relied on certain decisions in support of the argument that the question would be one of assessing the true effect of the prosecution evidence and not one of the accused discharging any burden. We are unable to accept this proposition which, in our opinion, states the law too broadly. Section 96 of the Indian Penal Code provides: "Nothing is an offence which is done in the exercise of private defence." This is one of the general Exceptions in Chap.4 of the Penal Code. S.105 of the Evidence Act says : "When a person is accused of any offence, 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 him, and the Court shall presume the absence of such circumstances". 8. The onus of establishing the charge is on the prosecution and the accused is presumed to be innocent until his guilt is proved by the prosecution. Section 105 qualifies this rule and relieves the prosecution of the necessity of proving the absence of facts which might bring the case within any of the i general Exceptions in the Penal Code or within any special Exception or proviso contained in any other part of the Code. Section 105 qualifies this rule and relieves the prosecution of the necessity of proving the absence of facts which might bring the case within any of the i general Exceptions in the Penal Code or within any special Exception or proviso contained in any other part of the Code. This section enables the court to presume the non-existence of any Exception and the accused who relies on any Exception has to prove it. This does not mean that the accused has to plead one or other of the Exceptions or that he should lead evidence to prove the same. If it appears from the evidence adduced by the prosecution that the act of the accused would fall under any of the Exceptions, the presumption under section 105 is removed and the court has to consider whether the accused's act falls within the Exception. If it does, the act is not an offence. The preponderance of authority is in favour of the view held in In Re Kali Churn (11 CLR 232): "It is true that s.105 of the Evidence Act placed on the accused the burden of proving that in any criminal trial, they acted within their legal rights in the exercise of the right of private defence of property, still this burden can be discharged by the evidence of the witnesses for the prosecution as well as by the evidence for the defence on such a plea being set up; and 'the accused are clearly entitled to claim an acquittal if, on the evidence for the prosecution, it is shown that they have committed no offence". It may also be observed that though the burden of proving the existence of circumstances bringing the case within an Exception is on the accused it does not mean that he is bound to prove the same beyond doubt. As held in Ashiruddin v R. (AIR 1949 Cal. 182) the standard of proof required from the accused is not the same as is required from the prosecution. Even if the accused fails to prove the plea, he can still claim the benefit of the general principles that the accused should be presumed to be innocent until proved guilty and that the benefit of doubt should be given to him. Even if the accused fails to prove the plea, he can still claim the benefit of the general principles that the accused should be presumed to be innocent until proved guilty and that the benefit of doubt should be given to him. Evidence in support of the plea whether appearing from the prosecution evidence or other records which is insufficient to prove the plea may suffice to create a reasonable doubt regarding the guilt of the accused. To say that the accused has no burden of proof is to ignore altogether the presumption in section 105 of the Evidence Act about the non-existence of facts which would bring the case within one of the Exceptions. 9. Coming to the evidence in the case, the only witness who has seen the occurrence is P. W. 1. He stated that while waiting at the house of the deceased for taking food before going back to the shop he heard the deceased's cry from the lane that he was being killed and that when he rushed out with a torch he saw the 1st accused attacking the deceased with a bill hook and the latter trying to ward off the same while retreating. He further stated that even after the deceased fell down on receiving some injuries the 1st accused went on attacking him with the bill hook and that on his attempting to approach nearer he was threatened by the 1st accused. P. W. 1 raised a hue and cry which attracted others also to the scene and they removed the deceased to his house where he died soon after. After telling the people gathered there that the 1st accused had inflicted the injuries P. W. 1 left immediately to inform P. W. 8. It was urged on behalf of the appellant that P. W. 1 ought not to be believed in the circumstances of the case. P. W. 1 admittedly is a dependent of the deceased but this alone is not sufficient to discard his testimony especially in the nature of the plea of the 1st accused. Reliance is placed on the fact that P. Ws. 12 and 13 did not mention in Exts. P. 7 and P. 8 respectively as to who the assailant was. P. W. 1 admittedly is a dependent of the deceased but this alone is not sufficient to discard his testimony especially in the nature of the plea of the 1st accused. Reliance is placed on the fact that P. Ws. 12 and 13 did not mention in Exts. P. 7 and P. 8 respectively as to who the assailant was. On the basis of this it is argued that P. W. 1 could not have witnessed the occurrence or told others that he had seen the 1st accused committing the offence or they would have been sure to mention the name of the accused in their statements. P. Ws. 12 and 13 are the first cousins of accused 1 and 2. P. W. 1 had already left by the time P. Ws. 12 and 13 reached the house of the deceased and the explanation given by them for not mentioning the name of the 1st accused is that although they heard that the 1st accused was responsible for the act they did not consider it proper to implicate him on the strength of what they heard. In view of the close relationship of these witnesses to accused 1 and 2 it is not difficult to understand their reluctance to implicate the accused especially as they did not directly hear from P. W. 1 as to what had happened. The omission to mention the name of the accused in the first information report is not a defect fatal to the prosecution as pointed out by the Supreme Court in Pandu Rang v State of Hyderabad ( AIR 1955 SC 216 ). In this connection learned counsel for the 1st accused submitted that there are suspicious factors relating to the investigation of the case such as the delay in sending the inquest report and other records to the Magistrate. Though the inquest was conducted on the 27th the report is seen initialled by the Magistrate only on the 31st. The argument was that the names of the accused were not disclosed even at the inquest and that the earlier sheets on which the witnesses have not signed were replaced. P. W. 18 was questioned about this. Hesaid that he went back to the Police station only on the next day, that is the 28th, and that he could not say why it was initialled by the Magistrate only three days later. P. W. 18 was questioned about this. Hesaid that he went back to the Police station only on the next day, that is the 28th, and that he could not say why it was initialled by the Magistrate only three days later. He added that the political agitation in the State was going on at that time and that most of the Police constables were on special duty while two were searching for the absconding accused 2 and 3. He further stated that by 1-30 P. M. on the 27th he knew who the accused were. In these circumstances we are not prepared to accept the argument that P. W. 1 could not have seen the incident or mentioned about it soon after. 10. There is circumstantial evidence also which shows that P. W. 1 must have reached the place while the attack on the deceased was going on. P. Ws. 3 and 5 who also reached the scene of occurrence on hearing the accused, say that they saw P. W. 1 there. P. W. 8 stated that P. W. 1 told him at 10 P. M. that night that the deceased had been injured by the 1st accused. The learned Sessions Judge has made a note in the deposition that the witness impressed him I as a straight forward witness. The reasons urged for discarding the evidence of P. W. 1 are not substantial, and we believe his evidence. 11. Learned counsel for the 1st accused argued that even if P. W. 1 is believed it does not lead to the conclusion that the 1st accused was the aggressor as P. W. 1 could have witnessed only the latter part of the incident. The submission is that the 1st accused also had some injuries and that the explanation I given by P. W. 1 that these were caused by the bill hook itself when it was used by the 1st accused in a narrow lane flanked by stone walls was not acceptable at least in respect of injuries Nos. 1 and 2 noted in the wound certificate Ext. P. 3, The medical officer (P. W. 7) who issued Ext. P. 3 has, no doubt, stated that the first two injuries could not have been caused in the manner stated by P. W. 1. This does not mean that the deceased caused the same. Injuries Nos. 1 and 2 noted in the wound certificate Ext. P. 3, The medical officer (P. W. 7) who issued Ext. P. 3 has, no doubt, stated that the first two injuries could not have been caused in the manner stated by P. W. 1. This does not mean that the deceased caused the same. Injuries Nos. 1 and 2 are; "(1) Incised wound 3" x 1/2" x 1/2" across middle left thigh (2) an incised wound 3 1/4" x 1/4" x 1/2 one inch outside No. 1." These are on the thigh and are only half inch deep. There is satisfactory evidence in the case that the 1st accused escaped from the lane by climbing up the eastern wall and breaking open the fence on the top of the wall. P. W. 38 found signs of the wall having been climbed over and the fence broken. Similarly, the fence separating the compounds of the 1st accused and the deceased was also found broken These facts are noted in Ext. P. 11 and are also referred to in deposition of P. W. 18. P. W. 10 is a girl of 17 who lives close by and she two persons climbing up the wall and escaping after, through the fence on the eastern wall. This shows that the 1st accused was accompanied at least by another and leads to the inference that they must have been lying in wait there. The injuries sustained by the 1st accused are comparatively slight and even if the prosecution fails to account for some of the injuries sustained by the accused that by itself will not raise a presumption that the accused acted in exercise of the right of private defence (see AIR 1933 Lahore 313 and AIR 1941 Madras 280). It has not been brought out that the deceased was armed with a dagger or that he was accustomed to carrying one with him. No dagger was recovered from the scene of occurrence. On the other hand, an electric torch with a heavy indentation was recovered and identified as that of the deceased and that the mark on the torch according to medical evidence could be caused by the bill hook supports P. W. 1's version that the deceased was trying to ward off the attack with the torch. There is another circumstance which disproves the allegation that the deceased was the aggressor. There is another circumstance which disproves the allegation that the deceased was the aggressor. The case of the accused is that he went out to take tea after repairing the fence and that it was while he was returning along the lane that he met the deceased. This cannot be true. It is in evidence that there were tea shops on either side of the accused's compound and even assuming that he went along the lane further to the west to take tea, he need not have proceeded upto the scene of occurrence to reach his house. The scene of occurrence is forty-feet north of the place where the 1st accused would have to turn to the east to reach his house. The fact that he was armed with the bill hook is also significant. The tea shop on the west was about a furlong away and even if he was repairing the fence earlier there was no purpose in going out at night with the bill hook. The fact that the deceased would have to return along the lane in the evening must have been known to the 1st accused who was living close by. Although accused 2 and 3 have been acquitted there is reliable evidence especially that of P. W. 10 that another person also accompanied the 1st accused when he ran away from the lane. This shows that the incident did not take place when the parties met accidentally but that the 1st accused must have been lying in wait in the lane armed with a bill hook. The 1st accused who was familiar with the normal movements of the deceased must have been waiting in the narrow lane to wreak vengeance on the deceased who was actively helping the old father to recover possession of the properties once gifted by him. The nature of the injuries inflicted on the deceased some of which were after the latter fell down also indicate that the 1st accused could not have been acting in the exercise of the right of private defence. We are therefore satisfied that the learned Sessions Judge came to the correct conclusion that the deceased was not the aggressor and that the 1st accused was not protected by the right of private defence. In this view the conviction and sentence must be confirmed. 12. We are therefore satisfied that the learned Sessions Judge came to the correct conclusion that the deceased was not the aggressor and that the 1st accused was not protected by the right of private defence. In this view the conviction and sentence must be confirmed. 12. Coming to criminal appeal No. 42 of 1960, preferred by the State, accused 2 and 3 were acquitted as the evidence regarding conspiracy earlier in the day was not satisfactory and as there were discrepancies in the prosecution evidence regarding their presence and the part played by them. There is, no doubt, room for suspicion that they also might have been present, abetting the 1st accused, but suspicion however strong is not sufficient to enter a conviction. The defects pointed out by the learned Judge in the prosecution evidence regarding accused 2 and 3 are real, and we do not consider it proper to reverse the acquittal so far as they are concerned. 13. In the result, we confirm the conviction and sentence passed on the first accused and dismiss criminal appeal No. 342 of 1959. The acquittal of the accused 2 and 3 is also confirmed and criminal appeal No. 42 of 1960 is dismissed.