JUDGMENT P. Govinda Menon, J. 1. I have carefully read the judgment prepared by my learned brother, but I regret my inability to agree with the conclusions. 2. * * * * 3. The case of the accused was one of private defence. According to his statement in the committing Magistrate Court the deceased and his son P.W. 2 attacked him while he was in the garage and it was in self defence that he shot them. In the Sessions Court he came forward with a detailed statement. He said that the garage was throughout in his possession ever since the delivery by the Amin on 3rd December 1964, that on the morning of 16th November 1965 when he went to his dispensary the gates of the garage remained closed, but when he was going home at about 12 noon he found a portion of the gate of the garage open and P.W. 2 car inside. He went up and protested against P.W. 2 breaking open the door and putting the car inside and asked him to remove the car forthwith. As P.W. 2 refused to do so he entered the garage and went near the car with a view to push it out. Thereupon P.W. 2 told him that if he touched the car he would finish him and threw a pair of pliers at him which narrowly missed him. The accused warned P.W. 2 not to do so and when he stooped down and took up a tyre lever in order to attack him, apprehending danger to his life he aimed his revolver low, but unfortunately it hit P.W. 2 on his chest. He further stated that almost at the same time the deceased came running from the south with a spade in his hand. On seeing him coming he warned the deceased not to go near him and as he did not pay any heed to his warning he fired a shot aiming away from the deceased which naturally did not hit him. In spite of the warning Subbarayalu Reddiar rushed at him in a frenzy and he had no other go except to shoot him. He stated that he only aimed low but the bullet hit the deceased on his head as he was ducking. In spite of the warning Subbarayalu Reddiar rushed at him in a frenzy and he had no other go except to shoot him. He stated that he only aimed low but the bullet hit the deceased on his head as he was ducking. He then came home and telephoned to the Control Room that he was attacked by the Reddiars with iron implements and to defend himself he had to shoot. Three witnesses were examined on his side. 4. * * * * 5. Learned Sessions Judge on a consideration of the evidence found that the prosecution has not succeeded in showing that the garage T.C. 32/607 has been in the possession of Subbarayalu Reddiar and his people from 6th December 1964 as contended to by the prosecution and that the garage was really in the possession of the accused. Learned State Prosecutor did not seriously attempt to challenge this finding. I will therefore proceed on the footing that P.W. 2 entered the garage for the first time after delivery only on the night of 15th November 1965 as was found by the learned Judge. But even so, I am not sure whether it would amount to criminal trespass in view of the latest exposition of the legal principles as laid down in Smt. Mathri v. The State of Punjab, A.I.R. 1964 S.C. 986. There Their Lordships observed: "In order to establish that the entry on the property was with the intent to annoy, intimidate or insult it is necessary for the court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult and that this likely consequence was known to the person entering."� Here P.W. 2 case throughout was that they were in possession even after the court delivery and that after the criminal case ended in their favour he again put his car into the shed. Whether that claim would stand the test in a court of law is not what is relevant; he put the car under a claim of right without any intention to annoy the accused. Whether that claim would stand the test in a court of law is not what is relevant; he put the car under a claim of right without any intention to annoy the accused. It may be that he would have known that annoyance would result, but it will not be reasonable to hold that the intention which prompted and dominated his action was to cause annoyance. If that be so, it might be only a case of civil trespass to which the party would be liable in damages, but it would not amount to an offence of criminal trespass. However this is a matter upon which there is no need to express any view within the scope of this proceeding. 6. I will proceed to examine the case on the basis of the finding of the learned Judge that P.W. 2 did commit criminal trespass and that the accused is entitled to the exercise of the right of private defence of property by pushing out the car from out of the garage. The question even then would be whether in the exercise of the right of private defence of property the accused would be entitled to shoot to death Subbarayalu Reddiar and causing such a serious injury to P.W. 2. Section 97 of the Penal Code says: "Every person has a right, subject to the restrictions contained in section 99 to defend" First-His own body, and the body of any other person, against any offence affecting the human body; Secondly-The property, whether movable or immovable of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 103 says: "The right of private defence of property extends, under the restrictions mentioned in S. 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated namely:" * * * * Fourthly-Theft, mischief, or house-trespass under such circumstances as may reasonably cause, apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.� So the extended right to cause even death is conferred in the case of houses-trespass, only when it is committed in the circumstances which may reasonably cause an apprehension that death or grievous hurt will result if such right of private defence is not exercised. Under section 104 when the offence furnishing an occasion for the exercise of the right of self defence is theft, mischief or criminal trespass but not of the type enumerated in the previous section the right extends only to the causing of any harm other than death. Realising this difficulty the accused has set up a case of the right of private defence of person also. Section 100 I.P.C. deals with the right of private defence of the body and it says: "The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated namely :" First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. * * * *� Under section 101 of the Code, if the offence be not of the descriptions enumerated in the last preceding section the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend under the restrictions mentioned in section 99 to the voluntary causing to the assailant of any harm other than death. All these sections are subject to the restrictions contained in section 99 and that section says that there is no right of private defence in cases in which there is time to have recourse to protection of the public authorities and that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. It must be remembered that law permits taking the life of another for prevention and not for punishment. It is a right essentially of defence and not of retribution. That right is exercisable in the face of actual or imminent danger. It is available only to those who act honestly and in good faith. In no case can it be employed as a shield to justify aggression. The necessity justifying exercise of the right must be urgent and the danger of loss of life or great bodily harm imminent. So in order to justify the taking of life on the ground of appearance of peril, the appearance must be real, though not the peril. In other words the act of killing would be justified only if the act was committed because of an honest and well-founded belief in the imminence of the danger and not in a spirit of revenge. Right of self defence is not available to a person who resorts to retaliation for any past injury, but to him who is suddenly confronted with the immediate necessity of averting impending danger not of his creation. As to the quantum of force that might be employed, that would depend upon the nature and fierceness of the attack and the ordinary rule is that the force used should be proportionate to the force of the attack or the threatened danger. Of course, courts do not expect a person assaulted to modulate his defence step by step according to the waxing or waning tempo of the attack. Once the assault has assumed a dangerous form, courts make all reasonable allowance in favour of a person who in fear of his life or limb gives harder blows than appear necessary to a cool bystander. To use the words of a learned Judge detached reflection cannot be demanded in the presence of an uplifted knife. ***** 7. Once the assault has assumed a dangerous form, courts make all reasonable allowance in favour of a person who in fear of his life or limb gives harder blows than appear necessary to a cool bystander. To use the words of a learned Judge detached reflection cannot be demanded in the presence of an uplifted knife. ***** 7. It is unnecessary to emphasise that it is for the accused who pleads self defence to prove the circumstances giving rise to the exercise of the right of private defence. It is true that the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Section 96 of the Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. This being an exception, under section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception pleaded, lies on the accused and the court shall presume he absence of such circumstances. So under section 105 of the Evidence Act read with the definition in section 4 thereof, the court shall regard the absence of such circumstances as proved unless after considering the matters before it, it believes that the said circumstances existed or heir existence was so probable that a prudent man ought under the circumstances of the particular case to act upon he supposition that they did exist. To put it in other words, the accused will have to rebut the presumption hat such circumstances did not exist by placing materials before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. If the materials placed before the court such as oral or documentary evidence, presumptions or admissions or the prosecution evidence satisfies the test of prudent man the accused should be considered to have discharged the burden. When an accused person called upon to prove that his case falls under the exception, law can treat the onus as discharged if the accused person succeeds in proving a preponderance of probability. This is not to say that if an exception is pleaded by an accused person he is not required to justify his plea. * * * * 8. Reference was then made to the evidence of P.W. 4. This is not to say that if an exception is pleaded by an accused person he is not required to justify his plea. * * * * 8. Reference was then made to the evidence of P.W. 4. As stated already P.W. 4 had categorically stated in examination in-chief that when the deceased was coming running he was saying please do not fire at us, what harm have we done and at once the accused fired a shot at him. In cross-examination he was asked the question whether when Subbarayalu Reddiar was coming running up he had not a spade with him and the witness answered 'Yes'. When again questioned whether when Subbarayalu Reddiar was coming running the accused did not warn him not to come near and told him that if he goes near he would be shot, the witness stated that he did not hear any such thing being said. Then he was questioned whether he did not see the wheel cup of the car removed and placed there the witness stated that he did not see. He further said that he saw a screw spanner there. Then in answer to another leading question the witness said that he had seen a tyre lever there. What he was asked is better extracted, Tyre lever Malayalam ?, and the witness echoed back the answer 'Yes'. In re-examination the witness admitted that he had been questioned by the police in connection with this case and later he was examined in the committing Magistrate court and on both those occasions he never mentioned that the deceased had in his hand a spade when he came to the garage. In re-examination learned State Prosecutor wanted to question the witness whether when he was questioned by the police he did not mention that when the deceased was coming running he was bowing and entreating the accused not to do anything. On objection being raised that at the stage of re-examination permission cannot be granted to confront the witness with the case diary statement learned Judge upheld the objection and the question could not be asked. Learned Judge was then probably under the impression that at the stage of re-examination permission cannot be granted. The view taken by the learned Judge is clearly erroneous. A similar question arose in Thakkar v. State of Gujarat, A.I.R. 1964 S.C. 1563. Learned Judge was then probably under the impression that at the stage of re-examination permission cannot be granted. The view taken by the learned Judge is clearly erroneous. A similar question arose in Thakkar v. State of Gujarat, A.I.R. 1964 S.C. 1563. Subba Rao, J., (as he then was) observed: "Section 137 of the Evidence Act gives only the three stages in the examination of a witness, namely examination in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under section 154 of the Evidence Act: that is governed by the provisions of section 154 of the said act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in- chief faithfully conforms to what he stated earlier to the Police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-re-examination) permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-re-examination) permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there." The question whether the earlier statement would be a contradiction or a mere omission which could be used to contradict the positive evidence in court, has also been considered and relying on an earlier decision of the Supreme Court in Tahsildar Singh v. State of U.P. A.I.R. 1959 S.C. 1012, His Lordship stated: "Broadly stated, the position in the present case is that the witnesses in their statements before the police attribute a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and therefore, he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court." In the present case what is alleged to have been stated by P.W. 4 in the case diary is this: Malayalam It is necessarily implied in the previous statement before the police that the deceased was not rushing at the accused with spade to attack him, as is now sought to be made out by the answer in cross-examination. So the previous statement made to the police by P.W. 4 could properly have been used to contradict his present version. Unfortunately, this decision of the Supreme Court was probably not brought to the notice of the learned Judge at the time of the examination of P.W. 4 and when the question was overruled. So the previous statement made to the police by P.W. 4 could properly have been used to contradict his present version. Unfortunately, this decision of the Supreme Court was probably not brought to the notice of the learned Judge at the time of the examination of P.W. 4 and when the question was overruled. The decision was pointed out when the Inspector was examined, but it was then too late and the statement could not be proved through the Inspector as the witness could be contradicted only in the manner provided in section 145 of the Evidence Act which requires that the attention of the witness should be drawn to those parts of the writing which are to be used for the purpose of contradicting him. It was even then open to the court at that stage to have recalled P.W. 4 and the prosecution permitted to put the question and the defence allowed an opportunity to cross-examine the witness, if they so required. The proviso to section 162 (1) Cr.P.C. says that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Evidence Act and when any part of such statement is so used any part thereof may also be used in the re-examination of such witness. There is no question of declaring a witness as hostile, but permission must certainly be sought for and obtained from the court and the court must be satisfied that in the circumstances permission to cross-examine should be granted. It is surprising that in this case the public prosecutor did not seek permission of the court. Any way the question having been over-ruled and not asked it was wrong on the part of the learned Judge to have relied on that very same statement to discredit the witness. However, there is no difficulty in this case, because even in examination-in-chief the witness has stated that when the deceased was coming running he was imploring the accused not to shoot. In cross-examination he would say that the deceased when he was rushing up had a spade with him. However, there is no difficulty in this case, because even in examination-in-chief the witness has stated that when the deceased was coming running he was imploring the accused not to shoot. In cross-examination he would say that the deceased when he was rushing up had a spade with him. This answer in cross-examination is really inconsistent with his earlier statement. He has admitted that when questioned by the police and when examined in the committing Magistrate court he did not say that the deceased when he was coming running had a spade with him. There cannot be the slightest doubt that the statement made by him in cross-examination that the deceased had a spade with him is an obvious development to help the accused. Witnesses cannot by such devices attempt to thwart justice. 9. On a careful and anxious consideration of the entire evidence and the facts and circumstances of the case I am clear in my mind that there existed no circumstances which could give rise to a reasonable apprehension in the mind of the accused that death or at least grievous hurt would be caused to him by either P.W. 2 or the deceased, if he did not shoot them. The attack made by the accused was cruel, murderous and unrelenting without there being a semblance of belief far less well grounded foundation that he would be attacked by either P.W. 2 or the deceased. The killing under such circumstances can neither be excused nor extenuated on the plea of self defence. I cannot agree with the submission made by the learned counsel that in any view of the case the offence committed would be only one of culpable homicide not amounting to murder, punishable under section 304 I.P.C. On the facts proved it cannot be said that the accused had shot the deceased without pre-mediation and without any intention of doing more harm than was necessary for the purpose of private defence. The circumstances of the case do not attract the provisions of exception 2 to section 300 I.P.C. The conviction of the accused under sections 302 and 307 I.P.C., are therefore, well justified and have only to be confirmed. In the result the conviction and sentence passed on the appellant are confirmed. The order of compensation is also confirmed. The appeal, therefore, fails and is dismissed. In the result the conviction and sentence passed on the appellant are confirmed. The order of compensation is also confirmed. The appeal, therefore, fails and is dismissed. Since we have differed in our conclusions in this appeal, it will be placed before the Honourable the Chief Justice for making necessary arrangements for its final disposal. Madhavan Nair, J. The appellant, Dr. V. S. Iyer, has been convicted under section 302 I.P.C. for murdering Subbarayalu Reddiar (Hereafter the deceased) by shooting him with a revolver, and sentenced to imprisonment for life, and also under section 307 I.P.C. for shooting P.W. 2 and causing injury to him and sentenced to rigorous imprisonment for 5 years and fine of Rs. 1000, the terms being concurrent. * * * * 10. Admittedly, the accused was at his residence when the Police went to the spot on receipt of the information given by him. He was arrested by P.W. 23, the Sub-Inspector, Vanchiyoor. No statement was then taken from him, nor was he questioned then as to what he meant by shooting in self-defence, which at least was then on record with the Police. Fairness would require that the Police, before they embarked on investigation, should have ascertained the accused version of the incident particularly as he had already informed them that he was attacked and he shot the attackers in self-defence as they did ascertain the version of the wife of the deceased. The learned State Prosecutor asserts that a recording of the accused statement is not permitted by law. The assertion of the accused was that he was attacked first and that was in the nature of a complaint on his part and the Police ought to have recorded as they would a First Information in any other cause. In Brij Bhukhan v. The State of U.P., A.I.R. 1957 S.C. 474 where Brij Bhukhan and others were charged of assault on Ram Prasad who died very soon thereafter and the defence plea was that Brij Bhukhan was attacked first by Ram Prasad and others and that the former used his weapon in self defence, the Supreme Court has observed: "The occurrence took place at about 5-30 p.m. and a First Information Report was lodged at the Police Station 3 miles away at 7 p.m. by Buddu (a servant of the deceased). It is significant that no first information was lodged by Brij Bhukhan or on his behalf by any one with respect to the defence version of the occurrence"� (Para. 5). To me it appears certain that, if the law is as the learned State Prosecutor tells me, the Supreme Court would not have made the observation underlined by me above. The indication therein is clear that an accused, who admits the incident and pleads to have done it in self defence to avoid injury on him, is entitled to lodge a first information before the Police, which would obviously help investigation of the case in proper directions. Here, in spite of the intimation by the accused that he was attacked and had to shoot in self defence, when the Police went to the place what they did was not to take down a full statement of the incident from the accused but to solicit from P.W. 1, the wife of the deceased, a statement to be recorded as First Information in the case and to arrest the accused and send him forthwith to the Police Station. There is no evidence that anybody else has given any information to the Police on behalf of the accused. The result was that the Police failed to investigate the case of the accused. Even though the Police found the accused at his residence quite close to the scene of occurrence there is no case that he made any attempt to evade arrest they did not take him to the scene of occurrence when they inspected it. It was after removal of the accused to the Police Station that the Police thought of preparing a mahazar of the scene of occurrence. Fairness, in the circumstances, would demand that they should have taken the accused along with them when they inspected the place so that any mark or material present at the place which would be material for the accused in his defence would have been pointed out to them by him. I am constrained to observe that the conduct of the Police in this regard was not fair to both sides, but one-sided. I am constrained to observe that the conduct of the Police in this regard was not fair to both sides, but one-sided. The aim of the Police should not be to see that the prosecution that they institute ends in conviction of the accused, but to place before Court the entire facts so that the Court may have a full and correct view of the case for its decision. ******* 11. Now, as regards the shooting of the deceased: The prosecution case is that he was in the backyard (which the scene mahazar shows to be a small plot), that on hearing the report of the shot and the cries of P.W. 2, P-W. 1 who was inside the house rushed through he backyard into the garage, crossed almost the entire length of the garage, came near the car which was only 4 metres from the entrance of the garage and entreated the accused not to shoot further, that the accused then shot once again when she got frightened and cried aloud, and that it was on hearing her cries that the deceased came into the garage. This narration appears to me most unbelievable. As the deceased was then in the backyard he would be the first to come into the garage on hearing the report. It is unbelievable that P.W. 1 who was inside the neighbouring house heard the report of the shot and the cries of P.W. 2 and went through the backyard into the garage while the deceased remained indifferent in the backyard itself. * * * * * 12. Now I would take up the accused version. He stated: On 16th November 1965 from 8 a.m. till 12 noon I was continuously in the clinic attending to my patients. I did not go out at all. By 12 noon, I walked back home. In the morning when I went to the clinic the gate of my shed was closed. It was only when I was walking back from the clinic to my house that I found that a part of the gate of the shed open and Muthukrishnan car K.L.E. 45 inside. Muthukrishnan (P.W. 2) was also there. I went up to the shed and objected to his having brought the car inside secretly by breaking open the lock and committing trespass. Muthukrishnan (P.W. 2) was also there. I went up to the shed and objected to his having brought the car inside secretly by breaking open the lock and committing trespass. I told him to remove the car forthwith or else I will push it out. When he did not do so I stepped into the car shed. When I went near the car he told me that he would finish me if I touch that car and immediately threw a pair of pliers at me which somehow missed me narrowly. If it had hit me on the head I would have been knocked unconscious. I warned him not to play with weapons of this kind. Muthukrishnan suddenly went down and picked up a tyre lever to attack me. Apprehending immediate danger to my life I pulled my revolver and pulled the trigger aiming low in self defence. But it hit him unfortunately on his chest. I did not mean to shoot him on his chest. I am sure he would have killed me with tyre lever in another second. Almost at the same time I found Subbarayalu Reddiar rushing from the south-west corner of the shed with a Malayalam. I feared he would kill me and shouted to him. Don't come here. My warning had no effect. Then I pulled the trigger aiming a short way from him. That cartridge did not explode properly but there was a muffled sound and the bullet just dropped out of the barrel. In spite of this warning shot Subbarayalu Reddiar rushed towards me in a fury and I pulled the trigger again aiming low. The cartridge exploded and the bullet hit him as he was ducking. I have not taken aim on his head at all and it would not have hit him at the head but for his ducking. He was within 5 feet from me when hit. Both these Reddiars, the father and the son, were younger and stronger than I and in the past they have been violent bullies. Guru Ammal (P.W. 1) was not there at all when the occurrence took place. They might have come there afterwards but I did not see them. I did not fire at Guru Ammal nor did Saraswathi Ammal (P.W. 3) come there till I left the shed. Guru Ammal (P.W. 1) was not there at all when the occurrence took place. They might have come there afterwards but I did not see them. I did not fire at Guru Ammal nor did Saraswathi Ammal (P.W. 3) come there till I left the shed. It is false to say that Subbarayalu Reddiar or Guru Ammal entreated me not to shoot. This is a false story invented by these people now. I did not see anybody inside the shed or on the road. The whole incident from my entry into the shed to the time I left the shed for my house was a matter of about 20 seconds. Apart from the natural probability of this version there is evidence, that the defence was able to extract from the prosecution witnesses, to bear support to material parts of it. 13. P.W. 4 is an employee in the Alwar Metal Industries in the building just opposite the garage in question. The proprietor of the Industries is P.W. 16 who is a member of the same communal organisation of Reddiars as the deceased. P.W. 4 came to the spot immediately after P.W. 2 was shot and had witnessed the shooting of the deceased. He has admitted: P.W. 2 Malayalam P.W.2 Malayalam screw spanner Malayalam Tyre lever Malayalam Tyre lever- Malayalam height Malayalam. (page 14) This was at the close of the cross-examination. No question in re-examination has been put in challenge of his having seen a tyre lever near P.W. 2 as he lay after the shot. The statement of P.W. 4 must therefore be taken as been unchallenged by the prosecution. P.W. 4 is one who supports the prosecution very much. He has gone further than truth to support the case of P.Ws. 1-3 when he deposed: "P.W. 2- Malayalam (P.W. 1) Malayalam P.W. 2 Malayalam (paras 8 and 10)" The admission of such a person of having seen the tyre lever by the side of P.W, 2 immediately after the shot is very significant. It probabilises the accused version. That P.W. 2 must have had moved some distance a metre or so towards the entrance of the garage as he saw the accused walking into the garage is clear from the location on the ground of blood that flowed from his wound. It probabilises the accused version. That P.W. 2 must have had moved some distance a metre or so towards the entrance of the garage as he saw the accused walking into the garage is clear from the location on the ground of blood that flowed from his wound. P. W. 11 is a fitter in a workshop where P.W. 2 used to have his car repaired. He has sworn in chief-examination itself that he had left a pair of pliers, a screw driver and two spanners on the mudguard of the car when he went out of the garage at about 11-30 a.m. that day and that he did not take them back thereafter. The scene mahazar prepared by P.W. 27 mentions the presence of spanner, screw driver etc, (Malayalam) on the mudguard of the car, but P.W. 27 has sworn that he did not see pliers there. This lends considerable probability to the accused version that a pair of pliers was thrown at him by P.W. 2. If P.W. 2, standing near the car, threw the pliers at the head of the accused who was walking into the garage from the road, in all probability, when the pliers missed the mark, they must have fallen on the road or in the gutter by its side. P.W. 2 admits that, at the time of the shot at him, the accused was only 5 to 6 ft. inside the garage. The scene mahazar (Ext. P-28) shows that the car was 4 metres (12 odd ft.) from the door of the garage. The presence of the tyre lever near P.W. 2 where he fell on receipt of the shot also probabilises the accused version that P.W. 2 picked up the lever to attack him. If P.W. 2 dived and picked up a tyre lever after he had thrown the pliers at the accused and the accused shot him before he stood erect, the track of the bullet, as found in his body by P.W. 6, would be explained in location. Considering the antecedence of P.W. 2, particularly of his defiance of law and order and of the accused rights under Court proceedings, it can hardly be expected that he would have remained quiet when accused went into the garage on finding his trespass committed in darkness a few hours ago and professing to push the car out of the garage. Considering the antecedence of P.W. 2, particularly of his defiance of law and order and of the accused rights under Court proceedings, it can hardly be expected that he would have remained quiet when accused went into the garage on finding his trespass committed in darkness a few hours ago and professing to push the car out of the garage. I find the accused version of the circumstances of his shot at P.W. 2 to be the probable one and that P.W. 2 version of it impossible. It then follows that the accused plea of apprehension of either death or grievous hurt at the hands of P.W. 2, if he remained quiescent for a little while, and of his having had to shoot P.W. 2 in self defence appear to me true. 14. P.W. 4 has sworn that when the deceased rushed into the garage he was carrying a spade in his hand: Malayalam (Page 13) In the re-examination by the prosecution he said: Malayalam C.I. Malayalam (Pages 15-16) There is no inherent improbability in the answer given by the witness to the prosecution challenge. Simply because a statement made by the prosecution witness is felt inconvenient by the prosecution they cannot belittle its significance by the mere throw of a bald suggestion at him that he was helping the defence. That the witness has not made the statement before the committing Magistrate does not affect its reliability when it is remembered that he was not subjected to cross-examination there. Excepting the bald suggestion referred to above, nothing has been brought out in evidence to show that P.W. 4 had a bias towards the defence. On the other hand, I have already pointed out above that his bias was in favour of the prosecution. 15. P.W. 17 is an attestor to the scene mahazar. He is a merchant by profession. Absolutely no interest between himself and the accused is brought out or even alleged in his examination except by a bald question in re-examination whether the statement which he has made in cross-examination was not to help the accused, which he denied. He belongs to a different community and lives half a furlong off the scene of occurrence. Absolutely no interest between himself and the accused is brought out or even alleged in his examination except by a bald question in re-examination whether the statement which he has made in cross-examination was not to help the accused, which he denied. He belongs to a different community and lives half a furlong off the scene of occurrence. He has sworn in cross-examination: Malayalam tyre lever Malayalam (Page 5-6) He is not a witness to the incident but had been to the scene of occurrence only long thereafter, when it was that he saw a tyre lever at the spot where P.W. 2 lay, and also the handle of a spade in the garage. That corroborates P.W. 4 testimony as to the tyre lever and also in a way his testimony that the deceased carried a spade as he rushed towards the accused. What happened to the blade of the spade there is no explanation in the case; but, in view of the fact that very many persons had entered the garage and left it after the incident and before P.W. 17 went there, the non-explanation of the absence of the blade from the handle could not be a circumstance to disbelieve the disinterested sworn testimony of P.W. 17. 16. P.W. 4 the eye-witness was positive that the accused warned the deceased not to rush at him. Both P.W. 4 and P.W. 1 were positive that, at the time when the accused shot the deceased, he was within 6 ft. of the accused. Considering the prior lawless conduct of the deceased, who defied the delivery by Court Amin in the presence and with the aid of the Police, to break open the house at dead of night and re-occupy it and disregarded the directions of the Circle Inspector as stated in Ext. P-39, and his rush at him with a spade in hand in spite of warning, the accused could well have apprehended either grievous hurt or death from him if he remained quiescent. His act in prompt self defence was warranted in the circumstances. 17. It is pertinent hereto compare the character and conduct of the accused, the deceased and P.W. 2 as disclosed by the evidence on record. The evidence is that the accused had all along been a well-disciplined law-abiding citizen. He had been for a period in war service and retired from the Indian Medical Service. 17. It is pertinent hereto compare the character and conduct of the accused, the deceased and P.W. 2 as disclosed by the evidence on record. The evidence is that the accused had all along been a well-disciplined law-abiding citizen. He had been for a period in war service and retired from the Indian Medical Service. Even in the petitions, Exts. P-35 and P-38, filed by the deceased before the Police authorities on 20th December 1964 and 9th February 1965 they had no allegation to make against the accused except that he was seeking to get possession with the help of the Police of the property that was delivered to him on 3rd December 1964. In spite of 20 years of long litigation after the purchase of the property by the accused mother ending in delivery of possession to him by the Court in the presence and with the assistance of the Police and women Police and the lurking house-trespass made by the deceased and his people, P.Ws. 1, 2, 3, and 10, the accused had not used or attempted to use force on his part to eject them out but had only informed the Police of the high-handedness on the part of the deceased and his people. It is the deceased and his people inclusive of P.Ws. 1, 2, 3 and 10, who are seen to have no respect for law or order or to the Court process. Added to the above is the evidence given in this respect by Ext. P-39, a statement given by the Divisional Inspector of Police, P.W. 22, under section 151 Crl. P.C. which says categorically that the deceased and P.W. 2 were found prepared to commit grave offences to prevent accused repairing his house and that his warnings to desist therefrom could not avail with them wherefore he had to arrest them forthwith to prevent the commission of such offences. P.W. 2 has admitted in the present case bat he had been strictly warned against entry in the garage, T.C. No. 607, and that by the Sub Inspector, Divisional Inspector and the Detective Inspector having jurisdiction in the area. In spite of all that, on the midnight of 15th/16th November 1965 he broke open the garage that was then under the lock of the accused and put his car therein (vide pages 2, 35 and 36 of the deposition of P.W. 2). 18. In spite of all that, on the midnight of 15th/16th November 1965 he broke open the garage that was then under the lock of the accused and put his car therein (vide pages 2, 35 and 36 of the deposition of P.W. 2). 18. The accused had been put in possession of the property inclusive of the house and the garage, and he had put his locks on them in the presence of Police officers. Yet the deceased and P.W. 2 broke open the lock of the use and re-occupied it. His complaint to the Police about that trespass was made the subject of a prosecution, which failed before a Magistrate on a technicality. (It is now pending appeal here.) Jubilant over that acquittal, P.W. 2 in the small hours of 16th November 1965 broke open the lock of the garage and put his car in it. The accused found the door of the garage open and P.W. 2 car in it at noon the same day. In these circumstances he had every right to exercise his right of private defence of property and push the car out. And, if, in his attempt to exercise that right of private defence of property, such resistance was offered by the trespasser that a reasonable apprehension of death or grievous hurt was caused to him, the right of private defence of person arose and it would extend to the causing of the death of trespasser. 19. As has been observed in Kurian v. Nandakumaran, 1960 K.L.J. 24 trespass, in the absence of acquiescence, is a continuing offence; and under section 105 I.P.C., The right of private defence of property against criminal trespass ..continues as long as the offender continues in the commission of criminal trespass...... The accused entry into the garage, demand to remove the car therefrom, and his advance towards the car to push it out himself when he found P.W. 2 not prepared to comply with his direction were justified in law; and P.W. 2 throwing the pliers at him or taking the tyre lever to attack him had no justification in law. Nor was the rush of the deceased towards the accused, in spite of warning, warranted. Admittedly, the deceased came within 6 ft. of the accused when he was shot. Nor was the rush of the deceased towards the accused, in spite of warning, warranted. Admittedly, the deceased came within 6 ft. of the accused when he was shot. The law of private defence has been succinctly stated by the Supreme Court in Jai Dev v. State of Punjab, A.I.R. 1963 S.C. 612. Speaking for a Bench of four, Gajendragadkar, J. has observed therein: There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt to true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than vas justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require as Mayne has observed, that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require as Mayne has observed, that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by using the necessary force. 20. Judged by the above dictum, I am of the view that, in the circumstances of this case detailed above, the accused is entitled to the benefit of the exception of private defence of person under section 100 I.P.C. in having shot P.W. 2 and the deceased. I therefore find him not guilty and acquit him of the charges in this case. OPINION Raman Nayar, J.- It is proved, found and indeed admitted that, at about noon on the 16th November 1965, the accused in this case, Dr. V. S. Iyer, formerly of the Indain Medical Service, shot two persons, Subbarayalu Reddiar and his son, Muthukrishna Reddiar (examined at the trial as P.W. 2), with a revolver killing the former and causing grievous hurt to the latter. His plea, of private defence, was rejected by the learned Sessions Judge who convicted under section 302 of the Indian Penal Code, of the murder of Subbarayalu Reddiar, and under section 307, of the attempted murder of P.W. 2, sentencing him to imprisonment for life for the former offence and to rigorous imprisonment for five years and a fine of Rs. 1,000 (with a default sentence of one year rigorous imprisonment) for the latter. He appealed to this court, and his appeal was heard by and Madhavan Nair, JJ. They differed. While was of opinion that the Sessions Judge had rightly rejected the accused plea and that the appeal should be dismissed, Madhavan Nair, J., was of opinion that the accused had established his plea and was entitled to an acquittal. Because of this difference the case has been laid before me under section 429 of the Criminal Procedure Code. * * * * 21. The accused version of what happened is contained in his statement, Ext. Because of this difference the case has been laid before me under section 429 of the Criminal Procedure Code. * * * * 21. The accused version of what happened is contained in his statement, Ext. P-54, in the committing Magistrate Court and in his statement at the trial. When questioned by the committing Magistrate with specific reference to the evidence of P.Ws. 1 and 4 (also of P.W. 5, who gave evidence at the trial claiming to be an eye-witness, but whose presence at the spot was doubted by the Sessions Judge these witnesses had been examined by the Magistrate as P.Ws. 1 to 3) the accused replied that their statements were all false. And when asked whether he had anything more to say he said, They attacked me while I was in my car-shed. I defended myself. That car-shed belongs to me and it has been in my possession from 3rd December 1964. That was all he had to say. 22. At the trial the accused made the following statement: "I deny all the allegations made by the prosecution in this case. I was attacked by Muthukrishnan (P.W. 2) and Subbarayalu Reddiar at about noon on 16th November 1965. While I went into that shed Muthukrishnan attacked me first with a pair of pliers which he threw at me; and then with a tyre lever. On 16th November 1965 I went to my dispensary as usual at 8 a.m. As usual on that day also a large number of patients had come to my clinic. Usually it will be at mid-day or even later I finish looking up my patients who come to my clinic. On 16th November 1965 from 8 a.m. till 12 noon I was continuously in my clinic attending to my patients. I did not go out at all. By 12 noon I walked back home. In the morning when I went to the clinic the gates of my shed were closed. It was only when I was walking back from the clinic to my house that I found a part of the gates of the shed open and Muthukrishnan car K.L.E. 45 inside. Muthukrishnan was also there. I went up to the shed and objected to his having brought the car inside secretly by breaking the lock and committing trespass. It was only when I was walking back from the clinic to my house that I found a part of the gates of the shed open and Muthukrishnan car K.L.E. 45 inside. Muthukrishnan was also there. I went up to the shed and objected to his having brought the car inside secretly by breaking the lock and committing trespass. I told him to remove the car forthwith or else I will push it out. When he did not do so I stepped into the shed. When I went near the car, he told me he would finish me if I touch that car and immediately threw a pair of pliers at me which somehow missed me narrowly. If it had hit me on the head I would have been knocked unconscious. I warned him not to play with weapons of this kind. Muthukrishnan suddenly went (sic bent) down and picked up a tyre lever to attack me. Apprehending immediate danger to my life I pulled my revolver and pulled the trigger aiming low in self defence. But it hit him unfortunately on his chest. I did not mean to shoot him on his chest. I am sure he would have killed me with the tyre lever in another second. Almost at the same time I found Subbarayalu Reddiar rushing from the southwest corner of the shed with a mammatti. I feared that he would have killed me and shouted to him, Don't come here. My warning had no effect. Then I pulled the trigger aiming a shot away from him. That cartridge did not explode properly, but there was a muffled sound and the bullet just dropped out of the barrel. In spite of this warning shot Subbarayalu Reddiar rushed towards me in a frenzy and I pulled the trigger again, aiming low. The cartridge exploded and the bullet hit him as he was ducking. I have not taken aim on his head at all and it would not have hit him on the head but for his ducking. He was within live feet from me when hit. Both these Reddiars, the father and the son were younger and stronger than I and in the past they have been violent bullies. Guru Ammal (P.W. 1) was not there at all when the occurrence took place. They might have come there afterwards, but I did not see them. He was within live feet from me when hit. Both these Reddiars, the father and the son were younger and stronger than I and in the past they have been violent bullies. Guru Ammal (P.W. 1) was not there at all when the occurrence took place. They might have come there afterwards, but I did not see them. I did not fire at Guru Ammal nor did Saraswathi Ammal (P.W. 3) come there till I left the shed. It is false to say that Subbarayalu Reddiar or Guru Ammal entreated me not to shoot. This if a false story invented by these people now. I did not see anybody inside the shed or on the road. The whole incident from my entry into the shed to the time I left the shed for my house was a matter of about 20 seconds. It was only after I got into my house, Guru Ammal (P.W. 1) and Saraswathi Ammal (P.W. 3) could have come to the shed. Neither Sarangadharan (P.W. 5) nor Appu (P.W. 4) had seen the occurrence. The gate itself was more than half closed and men standing in the road could not see properly. I have been apprehending that Muthukrishnan (P.W. 2) and Subbarayalu Reddiar would attack and kill me. I have been warned by others also about this. By way of protection in the event of surprise attack I used to carry a revolver, whenever I went to the dispensary or felt that there was danger to my life. This I have been doing a month or two before the occurrence. I did not purposely take the revolver before going to the shed on that day. As soon as I went home, I had telephoned first to the City Commissioner, then the I-G. of Police and I was directed to contact the control room. I told the telephone operator there my name, residence and telephone number. Then I told him, I was attacked by two Reddiars with iron implements I had specifically mentioned mammatti and tyre lever. I have defended myself and the two Reddiars have been shot. I said all these in English. About five minutes later a telephone call came from the control room to repeat the message which was conveyed earlier. I said the same message more or less in the same words. I have defended myself and the two Reddiars have been shot. I said all these in English. About five minutes later a telephone call came from the control room to repeat the message which was conveyed earlier. I said the same message more or less in the same words. About 25 minutes after the first message, the police came to my house."� 23. The physical acts attributed to the accused, namely, causing grievous hurt to P.W. 2 and the death of the deceased being proved and admitted, the first question is whether the accused did these acts with the mens rea required by section 300 of the Indian Penal Code. Here, it is important to bear in mind that notwithstanding that the accused has admitted the acts and has pleaded private defence, the burden lies on the prosecution, as it does in every criminal case, to prove beyond reasonable doubt what I might call this positive element of mens rea as distinguished from the negations and mitigations of mens rea embodied in the general and special exceptions under section 6 of the Code every definition of an offence has to be read subject to the general exceptions although those exceptions are not repeated in the definition and this means that once a general exception is established there is no mens rea for all the seeming appearance of the positive element described in the definition of the offence. The burden on the prosecution is not one whit reduced by reason of the accused admission or his plea. This is the caution conveyed in propositions (1) and (3) appearing in paragraph 7 of the report in Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563. These propositions are true of every criminal case, not merely of cases where the accused pleads a general exception, but the emphasis is that, in the context of such a plea and the burden it imposes on the accused, the court should not forget that the burden with regard to what I have called the positive element of mens rea lies, as always, on the prosecution and that there is no burden whatsoever on the accused in that regard. The prosecution must prove beyond reasonable doubt that the accused committed the offence with the requisite mens rea. That is the first proposition. The prosecution must prove beyond reasonable doubt that the accused committed the offence with the requisite mens rea. That is the first proposition. There is a rebuttable presumption that the case does not come within any of the general exceptions. The accused may rebut this by placing before the court all relevant material, oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests on a party in a civil proceeding. That is the second proposition. And the third, which only emphasises that the burden which the second proposition places on the accused in no way affects the burden placed on the prosecution by the first, is that even if the accused does not succeed in establishing a general exception in his favour he might, in his attempt to establish his plea, succeed in raising a reasonable doubt in the mind of the court, on the basis of the evidence as a whole, regarding the ingredients of the offence including mens rea. And if he does this (but not, be it noted, if he merely succeeds in creating doubt regarding the exception where the burden lies on him and none on the prosecution) he is entitled to an acquittal, the burden of proving all the ingredients of the offence including mens rea being on the prosecution and that burden being in no way relieved by the fact of the accused having taken shelter under a general exception which he has failed to establish. In short, because the accused has taken the special burden of an exception on himself, the court should not be misled into assuming that the general burden, which always lies on the prosecution, has been discharged or even diminished. 24. An illustration might serve to explain my meaning. Supposing to a charge of murder the accused pleads the general exception of accident falling within section 80 of the Code. The burden of proving that the accused caused the death with the positive mens rea defined in section 300 of the Code rests, and always rests, on the prosecution. 24. An illustration might serve to explain my meaning. Supposing to a charge of murder the accused pleads the general exception of accident falling within section 80 of the Code. The burden of proving that the accused caused the death with the positive mens rea defined in section 300 of the Code rests, and always rests, on the prosecution. The burden of proving the negation of mens rea in section 80 lies on the accused and this burden he discharges if he satisfies the court to the extent that a party to a civil proceeding must satisfy the court to obtain a verdict in his favour; he need not to the extent of excluding all reasonable doubt as the prosecution must to secure a conviction. Supposing the accused does not succeed in discharging the burden, yet, on the evidence as a whole, including all the materials placed by him before the court to establish his plea of accident, the accused might be able to raise a reasonable doubt in the mind of the court as to whether he had the requisite intention or knowledge demanded by section 300. He would then be entitled to an acquittal notwithstanding his failure to establish his plea under section 80 because the burden that ever rests on the prosecution to prove beyond reasonable doubt all the elements of section 300 would not have been discharged. 25. In the illustration I have given and I have chosen it on purpose if the accused, although failing to establish that the killing was an accident, succeeds in creating a reasonable doubt as to whether or not his case came within section 80 of the Code, he would, I think, have succeeded in throwing reasonable doubt regarding the mens rea required by section 300. The third of the three propositions stated in Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563 would entitle him to an acquittal but not, be it noted because of the second he would have failed on the second but because of the first since the prosecution would have failed to establish the requisite mens rea. But, if the general exception pleaded be, for example, that in section 79 or section 84 or, as in this case, section 96, creating reasonable doubt regarding the exception would not necessarily involve throwing reasonable doubt regarding mens rea although in some cases it might. But, if the general exception pleaded be, for example, that in section 79 or section 84 or, as in this case, section 96, creating reasonable doubt regarding the exception would not necessarily involve throwing reasonable doubt regarding mens rea although in some cases it might. In cases where it does the third proposition would come into play but not in cases where it does not. 26. In a celebrated and oft-quoted passage in his speech in Woolmington v. The Director of Public Prosecutions, (1935) A.C. 462 Lord Sankey L.C. said: "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner guilt subject to what I have already said as to the defence of insanity (and what his Lordship had already said as to this defence was that, in M'Naughton case the onus was definitely and exceptionally placed upon the accused to establish such a defence) and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention (this is what I have called the positive mens rea defined in section 300 of the Code) the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his Explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing-up in the present case: If the Crown satisfy you that this woman died at the prisoner hands then he has to show that there are circumstances to be found in the evidence which has been given from the witness box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident."� 27. The golden thread runs no less through the web of the Indian Criminal law and the principle that the prosecution must prove the guilt of the prisoner is no less a part of the law of this country. And, any attempt to whittle it down will no more be entertained here than in England. But, it must be remembered and this is of special significance when considering whether a general exception has been established that the principle of benefit of doubt does not extend to those regions from which Lord Sankey has by the words, [subject to what I have already said as to the defence of insanity and subject also to any statutory exception] expressly excluded it. Where the defence is of insanity or where a statutory exception applies, the onus is definitely though exceptionally placed on the accused. 28. While on this matter, I might point out that, whereas by reason of the statutory exception embodied in section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing a case within a general or a special exception or a proviso is upon the accused, in England, the only exception, so far as murder is concerned, seems to be a defence of insanity. Accident or self-defence or grave and sudden provocation (falling under our law within section 80, section 96 and Exception 1 to section 300 of the Indian Penal Code respectively) do not, in English law, fall within the exceptions subject to which Lord Sankey set out the golden principle that the prosecution must prove the guilt of the prisoner. Therefore, whereas in India, a defence of accident, or private defence, or grave and sudden provocation would come within the statutory exception in section 105 of the Evidence Act, in England it would come under no such exception and the burden, it would appear, would lie on the prosecution to prove the absence of circumstances justifying such a defence if it is to prove the mens rea requisite for the offence. The decision of the Privy Council in Chan Kau v. Reginam 1955 (1) A.E.R. 266 that (as set out in the head-note), "Where murder is charged and the evidence discloses a possible defence of self-defence or of provocation, the burden of proof remains throughout on the prosecution and it is not at any time on the accused for him to establish either defence."� and of the Court of Criminal Appeal in R. v. Lobell 1957 (1) A.E.R. 734 that, "Where the defence of self-defence is set up in a criminal case, the onus of proving the accused guilt remains on the prosecution; and, if, on the whole of the evidence, the jury are in doubt whether the act was done in necessary self-defence they should find the accused not guilty." While perfectly in accord with what Lord Sankey said in Woolmington case, the law applicable being the English law, would not, I am afraid, be in accord with what His Lordship said if the cases fell to be decided under the Indian law. For, under the Indian law, they would be cases coming within the statutory exception to which His Lordship expressly subjected his statement. 29. Once you remember that, in respect of our general exceptions, section 105 of the Evidence Act constitutes a statutory exception of the kind to which Lord Sankey expressly subjected his statement, you will find that his statement of the law is completely in accord with the statement in Dahyabhai v. State of Gujarat A.I.R. 1964 S.C. 1563. 30. 29. Once you remember that, in respect of our general exceptions, section 105 of the Evidence Act constitutes a statutory exception of the kind to which Lord Sankey expressly subjected his statement, you will find that his statement of the law is completely in accord with the statement in Dahyabhai v. State of Gujarat A.I.R. 1964 S.C. 1563. 30. If the prosecution succeeds in establishing beyond reasonable doubt the positive element of mens rea defined in section 300 of the Indian Penal Code, the question will arise whether the case can be brought within the general exception in section 96. I understand the law regarding the burden of proof so far as this question is concerned to be this: section 105 of the Evidence Act squarely places the burden upon the accused and says that the court shall presume the absence of circumstances attracting the exception. But the burden, it is well-settled, is not as heavy as that which rests on the prosecution of having to prove its case beyond reasonable doubt; it is no heavier than that which rests on a party in a civil proceeding. Reasonable doubt need not be excluded, preponderance of probability is enough-see Dahyabhai v. State of Gujarat A.I.R. 1964 S.C. 1563 to which I have already referred and H. Singh v. State of Punjab A.I.R. 1966 S.C. 97. As explained in Bhikari v. State of U.P. A.I.R. 1966 S.C. 1 and as is clear from section 105 of the Evidence Act itself, the court shall presume the absence of circumstances bringing a case within an exception; it is for the accused to prove the existence of such circumstances; and no burden whatsoever lies on the prosecution. Logically, therefore, it is not enough if the evidence discloses a possible defence of self-defence [as in Chan Kau v. Reginam 1955 (1) A.E.R. 266 or creates reasonable doubt in the mind of the judge whether the act was done in self-defence [as in R v. Lobell 1957 (1) A.E.R. 734. For, I do not suppose that a civil court would uphold a plea of discharge in a suit for money if the defendant merely succeeds in throwing some doubt on the matter. He would have to show that there is at least a preponderance of probability in his favour. For, I do not suppose that a civil court would uphold a plea of discharge in a suit for money if the defendant merely succeeds in throwing some doubt on the matter. He would have to show that there is at least a preponderance of probability in his favour. And, logically, the position should be the same when an accused person seeks to establish a defence under an exception. But, perhaps, the law in this, as in other matters, is not always logical. Judges are human; the presumption of innocence tends to be a brooding obsession (especially in a capital case) placing the accused in all matters in a position of vantage over the prosecution; and the golden thread of Lord Sankey often strays into that portion of the web from which His Lordship by the words, subject to what I have already said as to the defence of insanity and subject also to any statutory exception excluded it. One of many such instances brought to my notice is Parbhoo v. Emperor A.I.R. 1941 Allahabad 402 (F.B) where four of the seven judges who decided the case held (purporting to follow Woolmington case) that, even if an accused person fails to satisfy the court affirmatively of the existence of circumstances bringing the case within the general exception pleaded by him, the accused is entitled to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea), reasonable doubt is created in the mind of the court whether the accused person is or is not entitled to the benefit of the said exception (thus repealing, as it were, section 105 of the Evidence Act and casting on the prosecution the burden of proving beyond reasonable doubt the non-applicability of the exception); while the remaining three took the view which I have described as the logical view. There are other cases which follow this case or echo Chan Kau v. Reginam 1955 (1) A.E.R. 266 or R v. Lobell 1957 (1) A.E.R. 734. There are other cases which follow this case or echo Chan Kau v. Reginam 1955 (1) A.E.R. 266 or R v. Lobell 1957 (1) A.E.R. 734. And it is claimed on behalf of the accused that the decision in Dahyabhai v. State of Gujarat A.I.R. 1964 S.C. 1563 applies the principle laid down in Parbhoo v. Emperor A.I.R. 1941 Allahabad 402 (F.B) In the concluding portion of the judgment in that case, Their Lordships gave this (among other reasons) as their reason for upholding the conviction of the accused on a charge of murder: "It has not been established that he was insane; nor is the evidence sufficient even to throw a reasonable doubt in our mind that the act might have been committed when the accused was in a fit of insanity." It is argued that the second part of this reason necessarily implies that if the evidence were sufficient to throw a reasonable doubt that the act might have been committed when the accused was in a fit of insanity Their Lordships would have acquitted the accused. But, in the light of the subsequent explanation of this case in Bhikari State of U. P. A.I.R. 1966 S.C. 1. I am inclined to think that the first part of the reason, namely, that it had not been established that the accused was insane, is the only operative part and that what was meant was no more than that, far from the evidence establishing that the accused was insane, it was not even sufficient to throw a reasonable doubt on the matter, thus emphasising the extent to which the accused had fallen short of the mark. 31. There is in this case no plea of accident or mistake. It is proved and admitted that the accused voluntarily shot at P.W. 2 and the deceased, inflicting grievous hurt on the former and causing the death of the latter. The shots were admittedly fired at very close range, about five feet in the case of P.W. 2, and about the same distance according to the evidence of P.W. 1 and the statement of the accused in the case of the deceased, although the remaining evidence in the case would indicate a greater distance of about 12 feet. The shots were admittedly fired at very close range, about five feet in the case of P.W. 2, and about the same distance according to the evidence of P.W. 1 and the statement of the accused in the case of the deceased, although the remaining evidence in the case would indicate a greater distance of about 12 feet. The bullet caught P.W. 2 in the vital region of the chest, and the injury it caused might very well, in the ordinary course of nature, have caused his death. The bullet caught the deceased in the more vital region of the head and caused what was a necessarily fatal injury. The natural and probable consequences of the accused acts would have been to cause the death of P.W. 2 and of the deceased, at any rate, to inflict on them injuries sufficient in the ordinary course of nature, to cause death. It is proper to infer that the accused intended such consequences a state of mind like intention is rarely susceptible of direct proof and is almost always a matter of inference and, even if it be that P.W. 2 was bending down to pick up something when the accused shot him, and that the deceased was struck as he ducked to avoid the shot fired at him, I find it difficult to believe that the bullets could have caught P.W. 2 high up in the chest and the deceased on the head, if indeed the accused was, as he says he was aiming low so as to inflict the minimum possible harm on them. The evidence of the prosecution witnesses indicates that the accused was holding his revolver, as is natural, a little below the level of his nipple and that of P.W 4 shows that its barrel was tilted slightly downwards when he shot at the deceased. I do not really believe that an ordinary person witnessing a shooting would be able to observe with any degree of accuracy either the precise position of the body of the victim, or the precise position of the gun of the assailant. I do not really believe that an ordinary person witnessing a shooting would be able to observe with any degree of accuracy either the precise position of the body of the victim, or the precise position of the gun of the assailant. But, taking the evidence of the prosecution witnesses as to the position in which the accused held his revolver when he fired his shot for what it is worth, I do not think it lends any support, as it is contended it does, to the case that the accused did not intend that the shots should catch P.W. 2 and the deceased where they actually caught them. The positive element of mens rea required by section 300 of the Code, namely, the intention to cause death or the intention to cause bodily injury sufficient in the ordinary course of nature to cause death, is, it seems to me, established beyond doubt. 32. For the prosecution, reliance is placed on the circumstance that the accused went to the spot armed with a revolver, and it is said that the accused statement that, for fear of violence at the hands of the deceased and his people, he was always carrying his revolver with him from about a month or two before the occurrence, is unworthy of belief. At first blush this might appear to be a circumstance of great significance, and it is a circumstance that might well weigh considerably with a jury unless they are directed to the contrary. But, on further thought, I am not disposed to attach much significance to this, especially since the alleged threat held out at 10 a.m. has not been believed. For the prosecution it is urged that the very fact that the accused went armed with a revolver shows premeditation. I do not think it necessarily does. Forethought, yes; but, premeditation, not necessarily, if by premeditation is meant the deliberately preconceived intention of committing an offence. Even if it be that the accused was not usually carrying his revolver with him but took it specially for that particular occasion, why should it be presumed that he did so with the deliberately preconceived intention of shooting P.W. 2 or the deceased? Even if it be that the accused was not usually carrying his revolver with him but took it specially for that particular occasion, why should it be presumed that he did so with the deliberately preconceived intention of shooting P.W. 2 or the deceased? Why should it not be thought that, when he embarked on what was a legitimate, but to his mind hazardous, enterprise of vacating the trespass on his property by P.W. 2, he took the revolver with him for the sake of self-protection in case P.W. 2 or his supporters should turn violent? Or for scaring P.W. 2 away? P.W. 2 and his father were no respecters of the law, and there is some evidence on the side of the prosecution to show that to gain their ends they were not unwilling to break the peace so much so that the police had had to warn them repeatedly and even threaten action against them under section 107 of the Criminal Procedure Code. The accused might well have believed that in exercising his legitimate right of private defence of property he would be running the risk of violence to his person, and, is he to be blamed if he armed himself with a revolver against the possibility of his having to protect himself against that? Having regard to the presumption of innocence in a criminal case, if two inferences are possible, I think I should draw the inference more favourable to the accused, and I refuse to infer a premeditated design to shoot and kill P.W. 2 or the deceased merely from the circumstance that the accused had armed himself with a revolver. 33. Now from the positive element of mens rea defined in section 300 of the Code, to the negation of mens rea in section 96, the general exception pleaded by the accused. Here, as I have said, it is for the accused to establish the circumstances which would bring his case within that exception; in other words, having regard to the degree of harm he voluntarily inflicted on P.W. 2 and the deceased, that the circumstances were such as to cause him reasonable apprehension that death or grievous hurt would be the consequence if he did not act as he did. This he need do only by showing a preponderance of probability, not as the prosecution must do to obtain a conviction, beyond reasonable doubt. This he need do only by showing a preponderance of probability, not as the prosecution must do to obtain a conviction, beyond reasonable doubt. But this, it seems to me, he has singularly failed to do. In his statement at the trial, the accused has, no doubt, given a graphic picture of the situation in which he found himself, and if that picture were true, he was not merely under the reasonable apprehension, but was under the certainty, that if he did not shoot P.W. 2, and, after him, the deceased, they would kill him. But one might well ask why, if this picture were true he made no attempt whatsoever to paint it when the committing magistrate confronted him with the evidence against him and asked him whether he had anything to say by way of explanation. As we have seen, all that he then said was that P.W. 2 and the deceased attacked him and that he defended himself. He said nothing about the nature of the assault on him, nothing about the pliers or the tyre lever or the mammatti, nothing whatsoever to give the least indication that the alleged assault could possibly have caused him reasonable apprehension of death or grievous hurt. The inference seems to me legitimate that the picture he painted at the trial was nothing but an after thought. 34. There is, of course, the statement of the accused that, when he telephoned to P.W. 21 immediately after the occurrence, he told P.W. 21 that he had been attacked with iron implements making specific mention of the mammatti and tyre lever. But, the record that P.W. 21 made of this conversation in Ext. P-33 is as bald as the accused statement in the committing magistrate court. It only says that the accused shot two persons in self-defence and says nothing about these persons having attacked the accused with dangerous weapons. Now, it would be quite understandable, if, in his excitement and hurry the accused gave no details regarding the nature of the assault on his person when he reported the matter to the police. It only says that the accused shot two persons in self-defence and says nothing about these persons having attacked the accused with dangerous weapons. Now, it would be quite understandable, if, in his excitement and hurry the accused gave no details regarding the nature of the assault on his person when he reported the matter to the police. But it is quite understandable that when, after he had had enough time to think over the matter, he was questioned by a magistrate, in the safe and detached atmosphere of a court, with specific reference to the evidence against him, the accused should have failed to state the nature of the assault on him if indeed there was an assault. The accused must have known by then that he could vindicate his conduct only if he could show that he acted out of reasonable apprehension of death or grievous hurt, and, if he said nothing about the nature of the alleged assault, nothing to indicate that it could have caused him such apprehension, it seems to me that it can only be because there was no such assault. Ext. P-33, I am satisfied, must be a substantially correct record of what the accused told P.W. 21. For if he did in truth say anything more, it is incredible that he should not have stated that something more when questioned by the committing magistrate. No explanation of any kind has been offered by the accused, or even suggested on his behalf, as to why, if his statement at the trial were true, he should have maintained such as unnatural reticence in the committing magistrate court. 35. The following question was put to P.W. 21 in the course of the cross-examination: "Two persons attacked me with iron implements and I fired in self-defence Was this what the accused said over the telephone in English?" (The question was in Malayalam but the alleged statement of the accused was put to P.W. 21 in English in the very words set out above). To this question P.W. 21 replied, 'Yes'. It is to me by no means clear whether this affirmative answer was with reference to the whole of the alleged statement of the accused or only to the second part of it, namely, that he fired in self-defence. To this question P.W. 21 replied, 'Yes'. It is to me by no means clear whether this affirmative answer was with reference to the whole of the alleged statement of the accused or only to the second part of it, namely, that he fired in self-defence. And, although P.W. 21 explanation that he did not fully understand the question put to him in cross-examination when he answered it in the affirmative, loses much of its value from the circumstance that the learned Public Prosecutor thought fit (and was suffered to) elicit it by putting leading questions, I am inclined to think that it must be true. P.W. 21 had earlier said that he did not know much English, having studied only up to the III Form and that when the accused first spoke over the phone in English he had him repeat the message in Malayalam. It was only after that that he made a record of the message in Ext. P-33. P.W. 21, it would appear, tripped in answering a question which was not very fairly put, and, in fairness to him. I must say that I do not subscribe to the view expressed by the Sessions Judge and by Govinda Menon, J., that P.W. 21 answer in cross-examination was a deliberate prevarication designed to help the accused. 36. I wish to make it clear that, as I have already indicated, I draw no adverse inference against the accused on the basis of the record made in Ext. P-33 of his report to the police immediately after the occurrence. For, any man in those circumstances might well have omitted to furnish the details of the assault alleged by him as compelling him to act in self-defence. But, I do not believe that any man would have omitted to furnish the details when questioned by a court with reference to the evidence against him if in truth there was such an assault. 37. It is said that the accused was not bound to disclose the facts and circumstances that would make out his defence when he was questioned by the committing magistrate. That is of course so. He was not bound to disclose anything, not even his defence, even at the trial. 37. It is said that the accused was not bound to disclose the facts and circumstances that would make out his defence when he was questioned by the committing magistrate. That is of course so. He was not bound to disclose anything, not even his defence, even at the trial. If the entire material in the case should spell out a case of private defence, the court would acquit the accused notwithstanding that the accused said nothing in his defence, adduced no evidence whatsoever, and did not even put forward a plea of self-defence. But, where the accused invites the court to accept the positive case put forward by him in his statement at the trial, and on the strength of that statement, find that he acted in private defence, the question might well be asked why, if that statement were true, the accused did not make it earlier when opportunity was offered. As I have already said, it is proper to infer from this piece of conduct that the statement at the trial was a belated after-thought. 38. It is argued on the strength of Ramanarayan v. State of Maharashtra, A.I.R. 1964 S.C. 949 that no adverse inference should be drawn from the circumstance of an accused person declining to avail himself of the opportunity offered at a preliminary enquiry to explain the circumstances appearing against him in the evidence. But that decision lends little support to the argument so far as this case is concerned. All that was there decided (by a majority of three against two) was that, failure on the part of the accused to avail himself of such an opportunity and his reserving the right to make a defence at the trial, do not amount to a refusal to answer a question so as to attract the presumption in Illustration (h) to section 114 of the Evidence Act. Therefore, the failure on the part of the accused would not amount to an admission by him of the truth of the evidence against him. In the present case, the failure on the part of the accused is in no sense being depended upon as an admission by him of the truth of the prosecution case. Therefore, the failure on the part of the accused would not amount to an admission by him of the truth of the evidence against him. In the present case, the failure on the part of the accused is in no sense being depended upon as an admission by him of the truth of the prosecution case. But when, as I have said more than once, an accused person wants the court to believe a positive case set up by him such as an alibi or a general exception, his failure to set up that case when opportunity to do so was afforded earlier, is certainly a piece of conduct which can be taken into account in deciding whether his case is true or is only an afterthought. Nothing stated in Ramanarayan v. State of Maharashtra, A.I.R. 1964 S.C. 949 would stand in the way of this being done. Indeed, it was on similar grounds that the defence of insanity set up by the accused and spoken to by the prosecution witnesses themselves was rejected in Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563. Neither the accused nor the prosecution witnesses had spoken of this alleged insanity until examined at the trial. They had said nothing about it at the preliminary enquiry or at any previous stage. Therefore, they were disbelieved on this point and it was held that what they said at the trial was nothing but an afterthought. (It is pertinent to note that one of the judges who subscribed to the majority view in Ramanarayan v. State of Maharashtra A.I.R. 1964 S.C. 949 spoke for the court in Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563. It happens every day that witnesses and parties are disbelieved by the courts, both civil and criminal, because the case they put forward was not put forward by them at the earliest opportunity. * * * * * * * 39. I see no reason whatsoever to doubt the version spoken to by P.Ws. 1 to 4, and that version is altogether inconsistent with the accused case of a murderous assault on him by P.W. 2 and the deceased, a case which for reasons I have already stated is of no intrinsic worth. True, P.Ws. 1 to 4 have not in express terms denied the accused case; but then that case was never put to them. True, P.Ws. 1 to 4 have not in express terms denied the accused case; but then that case was never put to them. They were asked in cross-examination about pliers and a tyre lever and a mammatti but not a word as to whether P.W. 2 or the deceased made any attempt to attack the accused with such weapons or to attack him at all. The necessary implication of their evidence is that the accused case is false. 40. If the true test is, as logically I think it is, that it is for the accused to establish private defence with that preponderance of probability sufficient for a favourable verdict in a civil suit, it seems to me clear that the accused has failed to establish his plea. Even if the true test be, as some decisions say it is, that it is enough if the accused succeeds in creating a reasonable doubt in the mind of the court as to whether or not he is entitled to the benefit of the exception of private defence, I wish to observe that the accused his not succeeded in creating any such doubt in any mind. 41. It only remains to consider whether the accused case can be brought within any of the exceptions to section 300 of the Indian Penal Code. The only exceptions that can conceivably apply are Exceptions 1, 2 and 4. I do not think that any of them does. No doubt the act of P.W. 2 in entering on the property of which the accused had obtained delivery through court must have caused the accused some provocation. But it could not have been grave enough or sudden enough to deprive him of the power of self-control. The accused, it is true, might have been driven to despair by the fact that the law of the land seemed helpless to secure his rights and that, in the face of the courts and the police, P.W. 2 could with impunity trespass on his property. The accused, it is true, might have been driven to despair by the fact that the law of the land seemed helpless to secure his rights and that, in the face of the courts and the police, P.W. 2 could with impunity trespass on his property. More than 20 years of litigation and of resort to peaceful remedies like complaints to the police and to the courts had not secured him his legitimate rights, and, if this drove him to a course of conduct which one would not ordinarily expect any man to take, least of all a man of the accused position and antecedents, that is far from saying that the accused acted as he did whilst deprived of the power of self-control by grave and sudden provocation. 42. So much so far as Exception 1 is concerned. With regard to Exception 2 there can be no doubt that the accused had a right of private defence of property and that he was entitled to use the force necessary to vacate the trespass of P.W.2. But the use of a fire-arm in the circumstances without, as I have shown, any apprehension of bodily injury to himself, betrays a lack of good faith and an intention of doing more harm than was necessary for the purpose of defence. Against the deceased, it would appear, the accused had no right of private defence at all for it can scarcely be said that the deceased committed criminal trespass or any other offence incoming into the shed on hearing the shot and the cries of P.Ws. 1, 2 and 3. And, so far as Exception 4 is concerned, there is nothing to show that there was here a sudden fight and that the accused acted in the heat of passion upon a sudden quarrel. Even if there were, the accused certainly took undue advantage of his being armed with a revolver and acted in a cruel and unusual manner in using it on the deceased and P.W. 2. 43. I am of opinion that the accused has been rightly convicted under sections 302 and 307 of the Indian Penal Code. For the former offence he has been awarded only the lesser of the two sentences permitted by the law. The sentence for the latter calls for no interference. I would therefore dismiss his appeal. Mr. Justice Govinda Menon and Mr. Justice Madhavan Nair. For the former offence he has been awarded only the lesser of the two sentences permitted by the law. The sentence for the latter calls for no interference. I would therefore dismiss his appeal. Mr. Justice Govinda Menon and Mr. Justice Madhavan Nair. Following the decision of the third Judge, who heard this Appeal, we confirm the conviction and the sentence passed on the accused and dismiss his appeal.