Judgment :- 1. This is an appeal by the accused. He was charged with the offence of murder of one Kunjappan. 2. The accused joy was standing on the side of Muvattupuzha-Kaliyar public road on 13-9-1981 at 10 AM. Muvattupuzha-Kaliyar road runs east-west. The accused was waiting for a bus. The deceased came from the west. The accused commanded the deceased Kunjappan not to stir a step. Kunjappan turned back and ran to the side of a shop-room. The accused remained static. Toe deceased re-appeared on the road. A tussle ensued. The accused stabbed Kunjappan. Kunjappan was taken to the Taluk Hospital. On the way. Kunjappan died. Joy, the accused was apprehended on 24-9-1981. He was indicted for committing the offence of murder of Kunjappan. The Sessions Court, Ernakulam tried the accused, found him guilty and convicted him. The accused challenges the verdict of the Sessions Court in this appeal. 3. Before the Sessions Court, in order to establish the guilt of the accused, the prosecution examined pws. 1 to 31, marked MOs.1 to 16 and Exts. P1 to P9. The defence marked Ext. D1 to prove certain contradictions. The accused was questioned under S.313 of the Crl.PC. He pleaded right of private defence and justified the act. The trial court did not accept the plea of the accused and found him guilty. 4. The question to be considered in this appeal is whether the trial court was justified in refusing the plea of private defence pleaded by the accused. Taking into account the circumstances and proved facts of this case, the question that assumes importance is whether the accused was the aggressor or not. It is proved in this case that an altercation and scuffle preceded the causing of the fatal injury. 5. The learned counsel for the appellant Sri Manual Thomas argued his case very ably. He contended that there is no clear proof of stabbing of the deceased by the accused. He submitted that the evidence relied on by the trial court in respect of this is wholly unacceptable and the trial court ought to have rejected the same. He particularly pointed out that the trial court committed an error in relying on the evidence of Pw. 2 and Pw. 4 who were the eye witnesses in the case. He submitted that the evidence of Pw. 2 is corroborated only by the evidence of Pw. He particularly pointed out that the trial court committed an error in relying on the evidence of Pw. 2 and Pw. 4 who were the eye witnesses in the case. He submitted that the evidence of Pw. 2 is corroborated only by the evidence of Pw. 4 and that since Pw. 4 is a doubtful witness, there is no proper corroboration. Relying on decisions reported in V. Thevar v. State of Madras (AIR. 1957 SC. 614) and State v. Tula Ram (AIR. 1960 Allahabad 585) the learned counsel submitted that the evidence of a doubtful witness cannot be used for corroboration of another witness of the same character. He submitted both pws. 2 and 4 are doubtful witnesses. The counsel further argued that at any rate, the trial court erred very seriously in appreciating the evidence to find out an answer to the crucial question as to who was the aggressor in this case. He elaborated his point by submitting that since there is clear evidence of a tussle preceding the fatal act of stabbing, the court below ought to have given a definite answer in regard to the genesis of the tussle. He submitted that there is absolutely no evidence to warrant a conclusion that the accused was the aggressor. 6. pws. 2 and 4 are eye witnesses in this case. They have been examined to prove the actual stabbing by the accused. Pw. 2 has stated that he has seen the accused stabbing the deceased. According to him, he was standing in front of his house which is only 150 feet away from the scene of occurrence. The counsel submitted that considering the distance it may not be possible for Pw. 2 to see the actual stabbing. It is difficult to accept the submission of the counsel. The witness has clearly said that he has seen the stabbing and it is not proved that it is not possible to see the stabbing at a distance of 150 feet. The incident took place in broad day light. Of course, the counsel pointed out that there are two bends in the road which may cause difficulty for Pw. 2 to see the stabbing from the place he was standing. Anyhow, for us it is difficult to accept the submission of the counsel on this aspect. Pw. The incident took place in broad day light. Of course, the counsel pointed out that there are two bends in the road which may cause difficulty for Pw. 2 to see the stabbing from the place he was standing. Anyhow, for us it is difficult to accept the submission of the counsel on this aspect. Pw. 4 would say that she has seen the accused stabbing the deceased on his back just below the left shoulder. She also said that she has seen the accused putting the knife in a bag after the incident. The counsel pointed out that Pw. 4 cannot be believed since she has omitted to say certain crucial facts including the fact that she has seen the stabbing when she was questioned by the police. Pw. 4 has given an explanation for the omission of the material facts when she was questioned by the police. She has stated that out of fear she omitted to tell the details to the police. The counsel is certainly justified in attacking the trustworthiness of these two witnesses. But, as regards the stabbing by the accused, there is evidence in this case and more or less it is an admitted fact. Though Pw.1 has not seen the actual stabbing he has seen the deceased with bleeding injuries and trying to escape from the clutches of the accused. As stated earlier, Pw. 2 has said that he has seen the accused and the deceased on the road and that the accused was sitting on the back of the deceased. He also said that he has seen the stabbing by the accused. 7. Pw. 5 has narrated the whole incident that took place on the fateful day. But, he did not wait to see the act of stabbing. He stated: It is not difficult to conclude that the accused stabbed the deceased and that the stabbing took place while the deceased was lying on the road. 8. Pws. 5 and 6 are the witnesses who testify the first stage of tussle. Pw. 5 has deposed: Similarly, Pw. 6 has deposed: The quoted portions of the evidence of pws. S and 6 are important for determining the question who was the aggressor. The prosecution also relies on the evidence of pws. 5 and 6 for proving the fact that the accused was the aggressor. Pw. 5 has deposed: Similarly, Pw. 6 has deposed: The quoted portions of the evidence of pws. S and 6 are important for determining the question who was the aggressor. The prosecution also relies on the evidence of pws. 5 and 6 for proving the fact that the accused was the aggressor. It is in evidence that when the accused asked the deceased the deceased ran away from the accused for a short distance. It has to be noted that the accused did not chase the deceased. The accused remained fixed. What we see is that, after some time the deceased re-appeared on the spot again and the actual scuffle started. There is no evidence how exactly the scuffle began, alter the deceased came back on the spot. The prosecution relies very much on the fact that the accused wanted to waylay the deceased by commanding him not to proceed. But, when the deceased retreated, the accused did not do anything but remained where he was standing. It is difficult for us to infer that the accused was so aggressive when he said It is in evidence that the deceased owed money to the grandfather of the accused and that the accused had taken the responsibility to collect the same from the deceased. Perhaps to ask for the money, the accused stopped the deceased by saying From this conduct alone, it is difficult for us to come to a definite conclusion that the accused was the aggressor. As stated earlier, Pw. 5 as well as pw.6 have stated that the deceased ran away from the accused and after a short while be again appeared on the scene. What prompted the deceased to come before the accused is a matter of serious doubt and controversy. The prosecution wanted us to believe that the deceased came again on the road only for the purpose of going to his house. The defence counsel submits that the deceased ran to a near-by shop and he came armed with a weapon M. 0.1. The counsel further submits that it has been proved that MO.1 does not belong to the accused. The case of the prosecution is that the accused has stolen MO.1 from pw. 26 who had a beetle nut shop and it is stated that MO.1 was the knife he was using for cutting beetle nuts. The counsel further submits that it has been proved that MO.1 does not belong to the accused. The case of the prosecution is that the accused has stolen MO.1 from pw. 26 who had a beetle nut shop and it is stated that MO.1 was the knife he was using for cutting beetle nuts. It is difficult to accept the submission of the defence counsel that the deceased came armed with MO.1 knife, on an overall assessment of evidence in this case, nevertheless there is no evidence in this case clean and clear to say that the deceased re-appeared before the accused only for the purpose stated by the prosecution. If we cannot accept the prosecution case that from the conduct of the accused trying to stop the deceased is sufficient to establish that the accused was the aggressor, we have to find out an answer to the question as to who was the aggressor, on some other reliable materials. There is no evidence other than the evidence of Pws. 5 and 6 on this point. Hence, we find it difficult to conclude that the accused was the aggressor in this case. 9. It cannot be disputed that the burden is on the accused to make out that his case would come under any one of the exceptions. When two men fight, and one says he was acting in self-defence, there is really a formidable problem of proof. A person who kills another in what he conceives to be self-defence is subject to the serious risk that the emergency will not appear to the court in the same light that it appeared to him. Lord Morris of Borth-y-Gest has stated in 1975 Appeal Cases at 670: "In the calm of the court-room measures of fortitude or of heroic behaviour are surely not to be demanded when they could not in moments for decision reasonably have been expected even of the resolute and the well disposed." "When looking back at the incident, the fact likely to make the strongest impression is that a man has been killed; the transitory fear felt by the accused person has left no memorial to compare with the tragic reality of the injured dead body. If there is a survivor of the incident on the other side, his account of what happened is likely to differ essentially from that of the accused. If there is a survivor of the incident on the other side, his account of what happened is likely to differ essentially from that of the accused. Even impartial spectators are unreliable witnesses to a sudden affray that is over in a few minutes or seconds. When the issue is one of self-defence, everything depends on which side was the aggressor, and the temporal order of events is therefore of high importance. But experiments indicate that it is difficult to establish by oral evidence: In particular witnesses have been shown to have been unable to recall words with accuracy. Hence arise two dangers in the administration of the law: unjust conviction, and unmerited acquittal after a concocted defence. Of the two risks, the former has to be taken the more seriously, and for this reason the law casts the burden of negativing the defence of self-defence upon the prosecution, only the evidential burden being rested on the accused." (Vide Willians The Proof of Guilt, 3rd Edn.) 11. Dealing with the legal impact of the provisions of S.105 on the question of burden of proof, Subba Rao J. said in Narain Singh v. State of Punjab ((1964) 1 Crl. L. J. 730): "In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the general exception is the Indian Penal Code or on any special exceptions or proviso contained in any other part of the Penal Code, or in any law defining an offence, S.105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is the Court shall regard the non-existence of such circumstances as proved till they are disproved". Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is the Court shall regard the non-existence of such circumstances as proved till they are disproved". His Lordship has referred to the leading decision on the subject, namely Woolmington v. Director of Public Prosecutions and stated: "As in England so in India, the prosecution must prove the guilt of the accused, i. e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused has committed the offence, he is entitled to the benefit of doubt. In India, if an accused pleads an exception within the meaning of S.80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to S.80 of the Indian Penal Code, but Viscount Sankey, L.C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof". 12. The burden of proof required to be discharged by the accused is certainly less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that burden may be discharged by evidence satisfying the court of the probability of that, which the accused is called upon to establish. It is often said that where an onus is placed on an accused person, it may be discharged by proving what would be enough to support a verdict in a civil action and that to use the words of Wills J. in Cooper v. Slade, 'in civil cases the preponderance of probability may constitute sufficient ground for a verdict'. 13. The right of self-defence is a highly valued power granted to the citizens to protect themselves by effective self-resistance against felonious aggression. No man is under law obliged to fly away when he is attacked. It is a right conferred on the agressee. It is a right recognised in all civilized countries. 13. The right of self-defence is a highly valued power granted to the citizens to protect themselves by effective self-resistance against felonious aggression. No man is under law obliged to fly away when he is attacked. It is a right conferred on the agressee. It is a right recognised in all civilized countries. He could fight back and when he apprehends death or grievous hurt, he could see that his adversary is vanquished without modulating his defence step by step. Faced with a dangerous adversary no man can possibly act with a detached reflection and under such circumstances, if he travels a little beyond the limit, the law protects him and hence courts should not place more restrictions on him than the law demands. In judging whether the action of the accused in causing injuries to the victim in the purported exercise of right of self defence is justified or not and whether it ceases to be an offence, one has primarily to look into the bonafides of the accused in causing such injuries. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales and in judging whether or not the right of self defence existed, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room. The law does not expect from the person whose life is placed in danger to weigh with nice precision the extent and degree of the force which he employs in his defence. 14. If it is not proved that the accused was the aggressor, we have to apply the above principles of law. It was contended by the prosecution that the stab injury was inflicted at a time when the deceased was lying flat with face downwards on the road. So long as there is no clear evidence in the case in regard to the crucial fact that the accused was the aggressor, we cannot refuse the plea of self-defence. 15. The only question that remains is whether the accused has exceeded his right of private defence. The tussle continued for considerable time. Faced with a dangerous adversary no man can possibly act with a detached reflection and under such circumstances if he travels a little beyond the limits, the law protects him. The accused has inflicted only one stab injury. The only question that remains is whether the accused has exceeded his right of private defence. The tussle continued for considerable time. Faced with a dangerous adversary no man can possibly act with a detached reflection and under such circumstances if he travels a little beyond the limits, the law protects him. The accused has inflicted only one stab injury. It cannot be said that the only one injury inflicted by the accused is clearly in excess of the right of private defence and it has to be presumed that the accused inflicted the injury honestly believing that it was necessary to cause such injury for defending himself. It is not a case of the accused inflicting injuries on his assailant not with a view to protect his person but with a view to punish him for the assault made to him. In the circumstances, it cannot be said with definiteness that the accused exceeded his right of private defence. In the result, the appeal is allowed. The conviction and sentence against the accused are set aside and he is acquitted and set at liberty forthwith.