Paul, J.-The appellant has been convicted by the learned II Additional Sessions Judge of Madras Division of an offence punishable under section 302, Indian Penal Code, for having on 5th June, 1973 at about 2 p.m. committed the murder of one Arumugam by beating him with an iron pipe on his head in front of shop No. 67, Royapettah High Road, Madras and has been sentenced to imprisonment for life. 2. The facts appearing in the evidence adduced on the side of the prosecution are as follows: P.W. 6 and her husband P.W. 8 were living in a house belonging to the appellant at No. 50, Mundakkanniamman Koil Street along with their children. About a week prior to the occurrence one night when P.W. 8 was away from the house and his wife P.W. 6 was alone in the house with her children, the appellant and one Francis who was working in the O.K. Fabrication Factory situated in Mundakkanniamman Koil Street, went to the house of P.Ws. 6 and 8 and knocked at the door, and finding the appellant and Francis there she questioned them why they came and knocked at the door, whereupon Francis ran away. P.W. 6 then chided the appellant for having come and knocked at the door when her husband was away from the house; whereupon the appellant retorted saying, “Shut up and go to bed” and he also abused her. P.W. 6 however, closed the door, bolted it and then went off to sleep. The next morning when her husband P.W. 8 returned home at about 5 a.m. P.W. 6 cried and told him how Francis came and knocked at the door and when she opened it and questioned him he ran away and when she complained to the appellant who was standing near his house about the conduct of Francis, the appellant asked her to vacate the house and go away. P.W. 8 then went to P.W. 12 who is also working in the O.K. Fabrication Factory, at about 9 a.m., and told him about that incident. He also told P.W. 12 that he was going to complain to the owner of the factory. Francis was also there at that time. Francis then apologised for his conduct. P.W. 8 then went to P.W. 12 who is also working in the O.K. Fabrication Factory, at about 9 a.m., and told him about that incident. He also told P.W. 12 that he was going to complain to the owner of the factory. Francis was also there at that time. Francis then apologised for his conduct. P.W. 6 then requested P.W. 7, who is residing next door to the house in which P.W. 6 was living with P.W. 8 to be on the lookout for another house for him to live in and when P.W. 7 asked her why she wanted to shift to another house, she told her about the incident when Francis and the appellant came to the house when P.W. 6 was alone in the house and knocked at the door and when P.W. 6 questioned them the appellant asked her to shut up. Two days later, Arumugam who is the deceased in this case and who was having a shop in the Royapettah High Road for repairing punctures and vulcanising the tyres and tubes of cars, scooters and cycles, questioned the appellant above the above said incident and abused the appellant and told him that instead of knocking at the door of the house of another man’s wife and disgracing her, he could use the women in his house, as prostitutes. The appellant thereupon uttered words of threat against Arumugam saying that he would deal with him in two days. This according to the prosecution furnished the motive for the murder of Arumugam which took place on 5th June, 1973 at about 2 p.m. On that afternoon at about 1-30 p.m. Arumugam whose shop is at No. 67, Royapettah High Road, borrowed a mat from P.W. 1 who lives at No. 67, Royapettah High Road and by the side of whose house Arumugam was having the vulcanising shop, and spread that mat on the road pavement in front of his shop and lay down and slept on it. At about 2 p.m., when P.W. 1 and her sister-in-law P.W. 4 were in their house at No. 67, Royapettah High Road talking to each other, they hoard somebody shouting whereupon they ran out of their house. At about 2 p.m., when P.W. 1 and her sister-in-law P.W. 4 were in their house at No. 67, Royapettah High Road talking to each other, they hoard somebody shouting whereupon they ran out of their house. P.W. 2 and his wife P.W. 3 who are residding at 39, Mundakkanniamman Koil Street which is close to the scene of the occurrence, while they were in their house heard that noise and they also came running out of the house. P.Ws. 1 to 4 saw the appellant beating Arumugam once on his head with the iron pipe M.O. 1, while Arumugam was lying on the mat and then they saw the appellant going away to a short distance, throwing away the pipe and then returning to the place where Arumugam was and telling him and then going away from the scene along with his daughter Mallika. The injured Arumugam was lying unconscious in a pool of blood. He was then removed to the Royapettah Hospital by P.W. 13, a cycle rickshaw driver and one Jayaraman who had turned up to the scene on seeing, while they were seated in P.W. 13’s cycle rickshaw, a crowd near the Tiruvalluvar statue. 3. At the Royapettah Hospital P.W. 13 and Jayaraman were asked to take the injured to the General Hospital and hence they took him to the General Hospital where at 2.45 p.m. P.W. 9, a Civil Assistant Surgeon and Casualty Medical Officer examined Arumugam and found on him (1) a diffused swelling over the right-side neck extending to the jaw, (2) a lacerated injury over the right front, parietal region of the scalp 10 x 2 cms., (3) a lacerated injury over the right side of the occipital region over the scalp 6 x 2 cms., (4) a lacerated injury below injury No. 3. 15 X 1 cms over the right occipital region extending to the back of the right-ear and (5) a contusion over the right side forehead 8x3 cms. The doctor opines that, these injuries could have been caused by an iron pipe like M.O. 1. 4. P.W. 10, Duty Assistant Surgeon of that Hospital saw the injured at 2.45 p.m. and found him unconscious and in a state of shock. P.W. 10 called the duty Neuro Assistant Surgeon, sutured the wound on the scalp and administered oxygen as well as intravenous fluids and blood transfusion. 4. P.W. 10, Duty Assistant Surgeon of that Hospital saw the injured at 2.45 p.m. and found him unconscious and in a state of shock. P.W. 10 called the duty Neuro Assistant Surgeon, sutured the wound on the scalp and administered oxygen as well as intravenous fluids and blood transfusion. The case was then referred to Neuro Surgery for possible operation but the Neuro Surgeon found the patient rot in a fit condition to be operated upon. The injured expired at 4.30 p.m. on 5th June, 1973. 5. Meanwhile after the injured had thus been taken away to the hospital, P.W. 1 went into her house, woke up her daughter Devaki and sent her to inform the wife of Arumugam what had happened and since people there advised P.W. 1 to go to the police station and give a report, she proceeded, to the Mylapore Police Station at 2.30 p.m. and there she gave the report Exhibit P-1 to P.W. 15 to Sub-Inspector. P.W. 15 then registered a. case under section 324, Indian Penal Code and took up the investigation and went to the scene of the occurrence. He then proceeded to the Royapettah Hospital and on learning that the injured had been removed to the General Hospital, he went there at 4 p.m. but found the injured in an unconscious state. He then came to the scene of the occurrence, prepared an observation mahazar Exhibit P-7 and seized the bloodstained mat M.O. 1 and bloodstained articles including bloodstained cement slabs, bloodstained tarred earth etc. from the scene of the occurrence. He examined P.W. 1 at about 5.40 p.m. On receiving intimation of the death of the patient at the hospital, P.W. 15 altered the section to section 302, Indian Penal Code and sent express First Information Reports. P.W. 16 the Inspector of Police, E. 3 Police Station, Teynampet on the instructons of the Assistant Commissioner, South Range took up the investigation in to this case since the Inspector of Mylapore was sick. P.W. 16 went to the Mylapore Police Station at 7 p.m. perused. the records in this case and then proceeded to the Government General Hospital and there held the inquest over the dead body of Arumugam between 8 p.m. and 12.30 p.m., during the course of which ha examined P.Ws. 1 to 4 and also the appellant’s daughter Mallika. 6. P.W. 16 went to the Mylapore Police Station at 7 p.m. perused. the records in this case and then proceeded to the Government General Hospital and there held the inquest over the dead body of Arumugam between 8 p.m. and 12.30 p.m., during the course of which ha examined P.Ws. 1 to 4 and also the appellant’s daughter Mallika. 6. The autopsy on the dead body was conducted by P.W. 11, the Professor of Forensic Medicine, Madras Medical College and Police Surgeon, Madras at about 12 noon on 6th June, 1973. The doctor found two sutured wounds one over the right frontal parietal region of the scalp starting 6 cms above the right car and, the other over the right occipital region of the scalp below and parallel to the first mentioned injury. Apart from those he also found another linear sutured wound 6cms. in length over the right occipital region of the scalp below injury No. 2. On dissecting the above 3 injuries, the doctor found the right frontal parietal, and the whole of the occipital regions covered with clots of blood and there was a fracture 38 cms long runnirg around the vault of the skull starting from the right glabella and traversing longitudinally backwards and crossing to the left side and ending in the left middle cranial fossa and a fragment of bone 6 x 4 cms. involving one table of skull was found adherent to the scalp. There were also a linear fissured fracture 8 cms. starting from the parietal eminence and another such fracture 9 cms. long extending down from the fracture in the occipital bone and another horizontal fissured fracture 7 cms. long and running across. There was also a vertical sutured wound 4 cms. in length behind the root of the right ear. There was a laceration over the outer edge of the lower part of the right car and another laceration on the inferior aspect of the right temporal lobe of the brain. There was subdural and subarachnoid -haemorrhage over the right half of the brain, and the left frontal, left parietal and left occipital lobes of the brain and extensive bruising of the tissues of the right check, right mandible, right Side of neck, right shoulder and upper part of the right side of the chest. There was subdural and subarachnoid -haemorrhage over the right half of the brain, and the left frontal, left parietal and left occipital lobes of the brain and extensive bruising of the tissues of the right check, right mandible, right Side of neck, right shoulder and upper part of the right side of the chest. The doctor opines that all these injuries could have been caused by an iron pipe like M.O. 1 and the injuries are sufficient in the ordinary course of nature 10 cause death. 7. P.W. 16 examined the other witnesses:. He searched for the appellant but the appellant was absconding. He caused a plan of the scene of the occurrence to be drawn by P.W. 5, a plan drawer. He arrested the appellant at 6.30 p.m at the Broadway bus-stand. 8. When examined under section 313’ Criminal Procedure Code by the trial Court the appellant refuted the evidence of P.Ws. 1 to 4. In regard to the evidence of P.W. 6 he stated that he did not know about Francis knocking at the door of her house. He admitted that he told P.W. 6 that she was a woman of bad character and asked her to vacate the house since there were 8 other families living in the premises, He gave his own version of the occurrence. Accordng to him that afternoon when he and his daughter Mallika were returning from the Isabella Hospital, Arumugam who was lying on the platform in front of his shop, on seeing him said, where upon he, the appellant, eluded Arumugam for saying such things and asked him not to say such thing with reference to an unmarried girl, whereupon, Arumugam saying “Who is here to (question) whatever I do” stretched out his hand and clutched at the saree of Mallika and dragged it; whereupon he the appellant lost control of himself, picked up something which was lying nearby and hit Arumugam twice with it and then went away home with his daughter Mallika. The appellant, however, did not examine any witnesses in support of that version. He did not even examine his daughter Mallika for tcason best known to himself. 9. The learned Sessions Judge has relied on the testimony of P.Ws. 6 to 8 and 12 which according to the prosecution established the motive for the murder and also on the testimony of P.Ws. He did not even examine his daughter Mallika for tcason best known to himself. 9. The learned Sessions Judge has relied on the testimony of P.Ws. 6 to 8 and 12 which according to the prosecution established the motive for the murder and also on the testimony of P.Ws. 1 to 4 with regard to the occurrence. He considered the version, put forward by the appellant and rejected it as improbable. The learned Sessions Judge found it “impossible to concede that Arumugam after having attempted to molest Mallika or after having used vulgar expressions casting aspersion on Mallika before the occurrence would have been docile and did not react when the appellant attacked him with the iron pipe M.O. 1”. He has also pointed out that if actually Mallika had been the victim of any indecent act of Arumugam just before the attack on him by the appellant, Mallika would not have shouted or He found that the evidence of P.Ws. 1 to 4 made it abundantly clear that Arumugam was in a lying pose and was hit by the appellant while he was so lying; and the medical evidence in regard to the injuries found on the deceased did not suggest that the deceased put up any resistance, and as such the version put forward by the appellant was quite artificial and unconvincing. He therefore rejected the defence contention that the act of the appellant in so attacking and inflicting fatal injuries on Arumugam would come under Exception 1 to section 300, Indian Penal Code. He therefore found that an offence punishable under section 302, Indian Penal Code had been established beyond reasonable doubt against the appellant. 10. During the course of his arguments, Mr. Vanamamalai the learned Counsel for the appellant vehemently contended that in all likelihood Arumugam had used vulgar expressions casting aspersions on Mallika, the daughter of the appellant who was an unmarried girl and that had offered such grave and sudden provocation as would bring the act of the appellant within the ambit of Exception 1 to section. 300, Indian Penal Code or even that the act of the appellant would have been one done in the exercise of the right of private defence for it is quite likely that the deceased had tried to outrage the modesty of Mallika by dragging her by her saree. 300, Indian Penal Code or even that the act of the appellant would have been one done in the exercise of the right of private defence for it is quite likely that the deceased had tried to outrage the modesty of Mallika by dragging her by her saree. In view of such an argument very strenuously pressed before us by the learned Counsel, we felt that Mallika should have been examined during the trial, for P.Ws. 1 to 4 had definitely stated that they saw Mallika with the appellant when they came out on hearing the cries apparently raised by Mallika. Accordirg to the Inspector P.W. 16 Mallika was examined during the inquest. Therefore after deeply considering the matter we decided to examine Mallika as a Court-witness and issued summons to her and accordingly she appeared before the Court. The learned Public Prosecutor at that stage argued that if Mallika were to be examined as a Court witness, she should be questioned by the Court with reference to her statement during the inquest and contradicted by that statement for her statement during the inquest did not support the appellant’s version. In support of that argument of his, he cited the decision Raghumandan v. State of Uttar Pradesh1. After hearing the arguments of both sides on that aspect, we gave a ruling that in the circumstances of this case it would not be proper for the Court in the exercise of its power under section 165, of the Indian Evidence Act to so question Mallika, who has been summoned as a Court witness, with reference to what she 1 ad stated during the investigation. Mallika was then examined as a Court witness and she has testified that when she and her father, the appellant were returning from the hospital that afternoon, Arumugam saw them and abused them in vulvar language and when her father questioned him why he was abusing him and her, Arumugam remarked that her father had taken her for an immoral purpose and was returning whereupon her father shouted to Arumugam asking him not to talk ill of her; whereupon Arumugam dragged her saree and she shouted “Don’t spoil me, don’t spoil me” and her father then got wild took the iron pipe which was lying nearby and hit Arumugam with it and threw away the pipe and went away home. During her cross-examination she stated that Arumugam was in a sitting posture when he dragged her saree and that her father beat Arumugam only twice. She denied that her father was drunk. She denied the suggestion that it was from his house that her father went to hit Arumugam and that knowing that her father was going to beat Arumugam she followed him. She denied that she was examined by the Police and refuted the suggestion that she was deposing falsely in order to save her father. 11. Undoubtedly that afternoon the appellant had made a murderous attack on Arumugam and had inflicted fatal injuries on him by hitting him on the head with the iron pipe M.O 1. The evidence of P.Ws. 1 to 4 who are all witnesses residing very close to the scene of the occurrence and who are highly respectable and disinterested witnesses clearly establishes that fact and that fact is not denied by the appellant. P.Ws. 1 to 4 however turned up only on hearing the cries and saw the appellant dealing the last blow on the head of the deceased and they saw the deceased lying on the mat at that time. They did not know what preceded that last blow. There is only the testimony of Mallika as to what happened just prior to that. The learned Public Prosecutor has however argued that the nature and the positions of the injuries found on the deceased would clearly show that they were inflicted on him while he was lying or the ground with the left side of his head on the ground and the blows had been delivered on the right side of the head and as such the version put forward by Mallika and the appellant could not be true. No doubt the nature and positions of the injuries show that the blows had been dealt on the right side of the head and the doctor P.W. 11 who conducted the autopsy has stated that if the injured had been lying with the left side of his head supported on a firm surface and the blows had been delivered on the right side of the head and neck, the injuries found on the deceased could have been caused. But then merely from that, it cannot be found that the appellant’s version supported by Mallika’s is not true. But then merely from that, it cannot be found that the appellant’s version supported by Mallika’s is not true. It is quite possible that the deceased got up on seeing Mallika and the appellant and was sitting on the mat at the time when the first blow was delivered, after which it is likley that he tell unconscious and further blows were dealt at him. That would also explain the fact that no injuries were found on him to indicate that he had put up a resistance and fought for his life which fact has been relied upon by the learned Public Prosecutor for showing that the version put forward by Mallika and the appellant was not true. 12. Of course, the burden of proving any of the exceptions in the Indian Penal Code lies on the accused. Nevertheless that burden is not of the same kind as the burden placed on the prosecution to prove the guilt of the accused beyond reasonable doubt. 13. As has been held by the Supreme Court in Sawal Das v. State of Bihar1, the burden of proving a plea specifically set up by an accused certainly lies upon him. But neither section 103 nor section 106 can absolve the prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when the prosecution has led evidence which if believed will sustains conviction, or makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. 14. It is enough for the purpose of enabling an accused person to get the advantage of a general or special exception to criminal liability, if the Court is left with a reasonable doubt based on substantial grounds where circumstances existed which could give the accused the benefit of that exception. 15. It has been observed that the Supreme Court in K.M. Nanavati v. State of Maharashtra2, that “Their is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence.” 16. As we have already pointed out in this case the eye-witnesses turned up only when the last blow was struck and they had not witnessed what preceded the actual attack. In regard to that we have only the testimony of the appellant’s daughter Mallika. There are however, certain circumstances appearing in the evidence which would render probable the version put forward by Mallika. It is clearly seen from the testimony of P.W. 7 that in regard to the incident when the appellant and Francis went to the house of P.W. 6 when she was alone and Francis knocked at the door of the house and P.W. 6 came out and chided him the deceased subsequently questioned the appellant aboutthat incident and said to the appellant: It is difficult to believe that when the deceased was merely sleeping on the platform some days later the appellant went there and attacked him murderously merely because of the aforesaid words of the deceased. We are of the firm view that something must have happened just before the occurrence to provoke the murderous attack by the appellant on the deceased and there is the evidence of the appellant’s daugher as to what exactly transpired. No doubt, she is the daughter of the appellant and as such is an interested witness. But there is nothing which would render her testimony false. The aforesaid words uttered by the deceased to the appellant a few days earlier shows that the deceased was a person who did not hesitate to use most provocative words casting reflections on the chastity of the women of the Appellant household. It is quite likely therefore that just before the occurrence also he taunted the appellant and used such words casting aspersions on the chastity of the unmarried girl Mallika, as testified to by her. It is quite likely therefore that just before the occurrence also he taunted the appellant and used such words casting aspersions on the chastity of the unmarried girl Mallika, as testified to by her. We find that the version put forward by Mallika was plausible and therefore the act of the appellant would be one coming under Exception 1 to section 300, Indian Penal Code. We therefore set aside the conviction of the appellant of an offence punishable under section 302, Indian Penal Code, and the sentence imposed on him to that offence, but instead convict him of an offence under section 304, Part I, Indian Penal Code, and sentence him to undergo rigorous imprisonment for five years. With this modification the appeal is dismissed.