JUDGMENT P. Govinda Menon, J. 1. The accused a boy aged 17 was charged for the offence of murder under S.302 I. P. C., in that he caused the death of one Adruman by stabbing him on the night of 16-8-61 from the verandah of his house. The learned Sessions Judge found, on the evidence, that the accused had done the act under grave and sudden provocation coming within exception (1) to S.300 I. P. C., and convicted him under Part II of S.304 I. P. C., and sentenced him to rigorous imprisonment for five years. 2. The accused was living with his mother and a younger sister of his, in their house in Madavoor Village. The deceased was living with his wife and children about 200 yards away to the west of the accused's house. The father of the accused died about 14 years ago, his mother married again, but that marriage was dissolved 4 or 5 years prior to the occurrence. Since one year she was on terms of illegal intimacy with the deceased. 3. On the night of the incident the accused came home with a Musaliar friend of his, had food and left the house through the lane in front of the house of the deceased. The accused has a small grocery shop and on some days he used to sleep in that shop. Shortly after the accused had left, probably thinking that the accused would not come back, the deceased came to the accused's house and got inside through the kitchen door and was inside the house talking with P. W. 1. Just then the accused returned home flashing his torch light. P. W. 1 understood that it was her son who was corning and was anxious to send away the deceased without being noticed by the accused. She thought that the accused had gone to the kitchen side and so opened the front door to allow the deceased to escape. Just at the psychological moment the accused also reached the front verandah. As soon as the accused saw the deceased, it is stated, he stabbed the deceased who managed to get out and run along the lane to his house. P. W. 1 got afraid and closed the door. The accused is then said to have chased him up to the bent on the lane where the deceased fell down. As soon as the accused saw the deceased, it is stated, he stabbed the deceased who managed to get out and run along the lane to his house. P. W. 1 got afraid and closed the door. The accused is then said to have chased him up to the bent on the lane where the deceased fell down. The accused then returned home. 4. Next morning the deceased was found lying dead with injuries in the lane. Many persons gathered there and one of them, P. W. 5 a neighbour went to the Amsom Adhikari, P. W. 8 and laid a complaint Ext. P. 2 to the effect that the deceased is seen lying dead with injuries. P. W. 8 prepared his yadast and despatched it to the Kunnamangalam police station. A case was registered. P. W. 12 the Sub-Inspector took up the investigation and immediately proceeded to the scene. He noticed marks of blood which had spurted out on the wall of the verandah and the bench. The dead body of the deceased was then removed to the courtyard of the accused's house and inquest was held. 5. After the inquest P. W. 6, the Assistant Professor of Surgery in the Medical College conducted the autopsy on the body of the deceased. There were three injuries of which the fatal injury was on the neck. It was a vertical incised wound, 1" X I" X 5" on the lower part of the neck and 3/4" above the medial end of the right clavicle, penetrating the right subclavian artery and the upper part of the right lung. On dissection it was found that the right apical pleura was injured and the wound had penetrated the pleural cavity. There was an incised wound 3/4" x 1/2-"X 11/2" on the upper lobe of the right lung and the right lung had completely collapsed, The injury had also cut a big artery resulting in profuse bleeding. According to the Doctor it was a necessarily fatal injury and death would have been instantaneous. 6. The accused was brought arrested by a police constable and the Sub Inspector formally arrested and took into custody M. Os. 11 and 12, the dagger and the sheath found on his person. On information furnished by the accused M. O. 13 a dothi was recovered from the loft of his shop. The accused had also certain injuries. 6. The accused was brought arrested by a police constable and the Sub Inspector formally arrested and took into custody M. Os. 11 and 12, the dagger and the sheath found on his person. On information furnished by the accused M. O. 13 a dothi was recovered from the loft of his shop. The accused had also certain injuries. He was sent for medical examination and Ext. P. 4 is the wound certificate. 7. The plea of the accused both in the committing Magistrate's court as well as in the Sessions Court was one of private defence. He stated that on that night he and his friend had taken food from his house, he accompanied his friend who went to the mosque, that he then went for easing himself and when he returned to the house he was surprised to find the deceased getting out of the house, when they met, the deceased beat him with a torch light which felled him to the ground, when he got up he was again beaten, that thereafter a scuffle ensued, the deceased attempted to throttle him and to save himself from the situation in which he was placed he used his knife. He denied having chased the deceased along the lane. He stated that he was not aware of the illicit intimacy between his mother and the deceased. 8. That the deceased Adruman sustained a very serious injury on that night and that he died as a result of the injury is amply proved and is not disputed. The accused has in fact admitted that it was he who caused the fatal injury. The crucial question for decision is under what circumstances the accused happened to inflict the injury. It is true that under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any one of the general exceptions is on the accused and the court shall presume the absence of such circumstances. What S.105 of the Evidence Act provides is that the court shall not presume the existence of facts which may bring a case within the exceptions and the evidential burden of introducing evidence to establish any such circumstance is on the accused, who pleads one of the exceptions. What S.105 of the Evidence Act provides is that the court shall not presume the existence of facts which may bring a case within the exceptions and the evidential burden of introducing evidence to establish any such circumstance is on the accused, who pleads one of the exceptions. If no such evidence is on record, the accused could be found guilty if the evidence against him led by the prosecution were to be believed. Such evidence may be introduced by the prosecution itself, or it may be introduced by the defence by the cross examination of the prosecution witnesses, or by the statement of the accused under S.342 of the Code of Criminal Procedure or by defence evidence. In all such cases, as soon as such evidence is introduced, which, if believed, would establish the circumstances on which the defence may rely to bring his case under any of the exceptions, the burden on the accused is discharged. It is equally discharged when on a consideration of the whole of the evidence the court is left in doubt as to whether the killing may have been under the circumstances disclosed in the evidence on record. In interpreting S.105 of the Evidence Act we have always to bear in mind the basic principle of our criminal jurisprudence that the accused is presumed to be innocent till his guilt is established by the prosecution beyond reasonable doubt. So strong is the presumption of innocence and so highly is the right of personal liberty priced that the burden of proof cast on the accused is less onerous than what lies on the prosecution. The burden of proving the guilt beyond reasonable doubt is on the prosecution, and it must before it can succeed expressly negative every circumstance brought on the record which may tend to establish the defence. It is on the totality of the evidence that the guilt of the accused has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge. 9. It is on the totality of the evidence that the guilt of the accused has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge. 9. In England in Rex v. Carr Briant (1943 K. B. 607) where under S.2 of the Prevention of Corruption Act, 1916, on a charge under the Act, it is provided that consideration shall be deemed to be given corruptly unless the contrary is proved, the Court of Appeal ruled as follows : "In any case where, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved', the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required of the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish." 10. Explaining the position under the English law, Lord Goddard C. J., speaking for the Court of Criminal Appeal in Regina v. Lobell (1957 1 Q. B. 547 at p. 551) said: "It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the crown must give evidence-in-chief to rebut a suggestion of self defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self defence the proper verdict would be not guilty." These principles have been followed in the decisions in India also. 11. In this instant case the only witness examined as an eye witness is P. W. 1, the mother of the accused. Her evidence in court supports the plea of self defence put forward by the accused. She has been treated as hostile and permitted to be cross examined and her case diary statement and the statement made by her under S.164 Cr. P. C., have been marked. Both these statements are not substantive evidence and can only be used to discredit her I testimony. P. W. 4 was examined to prove the extra judicial confession alleged to 1 have been made by the accused and his evidence also supports the plea of private I defence put forward by the accused. Permission was sought for to treat this I witness also as hostile and he was also cross examined and confronted with the statement alleged to have been made by him before the police. The learned Judge has characterised him as an unreliable witness. 12. P. Ws. 2 and 3 are two other witnesses who were intended to prove that they had seen the deceased being chased by the accused. Both these witnesses were also treated as hostile and cross examined. The learned Judge has relied to a great extent on the evidence of P. W. 2. The answers made by the witness in cross examination throws considerable doubt on the truth of his testimony. His deposition before the committing Magistrate's court has not been marked under S.288 Cr. P. C., and therefore his statement there cannot be used as substantive evidence. The answers made by the witness in cross examination throws considerable doubt on the truth of his testimony. His deposition before the committing Magistrate's court has not been marked under S.288 Cr. P. C., and therefore his statement there cannot be used as substantive evidence. It has come out in evidence that the next day he had gone to the place where the deceased was lying dead, that people who had gathered there were enquiring as to who it was that had killed Adruman and P. W. 2 did ] not tell any one of them that he had seen the deceased being chased by the accused the previous night. If really he had seen the accused chasing the deceased it would certainly have struck him that the accused had something to do with the murder. The learned counsel has also pointed out that he is a person related to the deceased. 13. The accused had certain injuries and he had been examined by P. W. 7 the Assistant Surgeon attached to the Government dispensary at Kunnamangalam. The doctor has deposed that the accused had told him that the injuries had been caused by beating and the blade of the knife coming into contact with his fingers. He has further stated that injury No. 2 could have been caused when the accused is beaten with a torch light like the one before the court and if he wards off the blow with the hand. He has wound up by saying that the injuries noticed by him were consistent with the version given by the accused. Thus on the evidence adduced by the prosecution itself circumstances have been brought on record which would probabilise the case of private defence set up by the accused. 14. The learned Sessions Judge has proceeded on the footing that the accused knowing that there was illicit intimacy between the deceased and his mother and knowing that the deceased was closeted with his mother in the house on that night had purposely come back to the house with intent to chastise him and must, therefore, have been the aggressor. This is a pure conjecture not warranted by the evidence or the circumstance of the case. According to the accused it was only after this case that he came to know about the illicit intimacy between his mother and the deceased. This is a pure conjecture not warranted by the evidence or the circumstance of the case. According to the accused it was only after this case that he came to know about the illicit intimacy between his mother and the deceased. There is nothing in the evidence to suggest that the meeting of the deceased and the accused was not a chance encounter when the deceased wanted to forestall the accused by beating him. That was what the mother deposed. At any rate this possibility cannot be ruled out. 15. In view of the thoroughly unsatisfactory nature of the prosecution evidence it was absolutely necessary for the learned Judge to have safeguarded himself against the danger of basing his conclusions on mere suspicion. The learned Judge has to a certain extent fallen into the same error against which, warning was given by Baron Alderson in Reg v. Hodge ((1838) 2 Lewin 227) where he said as follows : "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." 16. Again, if the finding of the learned Sessions Judge that the accused knew before about the illicit intimacy and that on that night the deceased was inside and came for the specific purpose of taking the deceased to task, I fail to see how the learned Judge could have thought that the act would come under exception (1) to S.300 I. P. C. If really the accused had known that the deceased was misbehaving with his mother that would certainly have afforded provocation to him to retaliate. But when such feeling of provocation is a longstanding one gaining intensity from day to day until finally the person harbouring such feeling yields to the provocation by attacking his enemy, it cannot be said that he is acting under grave and sudden provocation. But when such feeling of provocation is a longstanding one gaining intensity from day to day until finally the person harbouring such feeling yields to the provocation by attacking his enemy, it cannot be said that he is acting under grave and sudden provocation. Feeling of provocation which he was entertaining can only be termed the motive for the act committed by him and when the accused comes to the house knowing that the deceased is there to punish the deceased he cannot be said to have acted under exception (1) to S.300 I. P. C. On a careful and anxious consideration of the evidence the circumstances and probabilities of the case, I am of opinion that the plea of private defence put forward by the accused can be said to have been made out and the accused is entitled to an acquittal. In the result the appeal is allowed, the conviction and sentence entered against the appellant are set aside and he is ordered to be set at liberty. His bail bond will stand cancelled.