JUDGMENT : 1. This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C. No. 482/2001 on the file of the 1st Additional Sessions Judge, Thiruvananthapuram. 2. The prosecution case is that on 02-05-1999, at about 9 p.m. when PWs. 1 to 3 (son, wife and daughter of the deceased Subair Kunju) and the deceased Subair Kunju were in their house, the appellant/accused, who was their neighbour was seen coughing and spitting on a small public pathway in front of their house. It is alleged that when PW-1, son of the deceased Subair Kunju, had come out of the house and had questioned the appellant/accused as to why he was coughing and spitting, the appellant/accused got infuriated. It is alleged that the appellant/accused and PW-1 engaged in a tussle and the appellant/accused took out a folding knife (a penknife) and stabbed PW-1 causing an injury on his right thigh. On hearing the cries of PW-1, the deceased Subair Kunju and his wife (PW-2) came rushing out and while they were trying to ensure that the appellant/accused did not cause any further injury to PW-1, the appellant/accused stabbed the deceased Subair Kunju and he died almost instantaneously. Following the investigation of the matter, a final report was filed before the Judicial First Class Magistrate Court-III, Thiruvananthapuram from where it was committed to the Sessions Court, Thiruvananthapuram. The Sessions Court, Thiruvananthapuram made over the matter to the court of the 1st Additional Sessions Judge, Thiruvananthapuram for the purpose of trial and disposal. 3. Charges were framed against the appellant/accused under Sections 447, 307 and 302 of the Indian Penal Code (hereinafter referred to as ‘the Code’). The appellant/accused pleaded not guilty. The prosecution examined PWs. 1 to 13 and marked Exts.P1 to P21 documents. The material objects, including the knife, were not identified during the trial as those were reported missing. On the closure of the prosecution evidence, the appellant/accused was examined under Section 313 of the Cr.P.C. The appellant/accused denied all incriminating materials appearing against him and also set up a plea of private defence. Finding no reason to acquit the appellant/accused under Section 232 of the Cr.P.C. the trial court called upon the appellant/accused to tender his defence evidence. DW-1, the wife of the appellant/accused was examined on the side of the defence. 4. Finding no reason to acquit the appellant/accused under Section 232 of the Cr.P.C. the trial court called upon the appellant/accused to tender his defence evidence. DW-1, the wife of the appellant/accused was examined on the side of the defence. 4. After hearing both sides and on an appreciation of the evidence in the case, the trial judge convicted the appellant/accused under Sections 447, 324 and 304 (Part I) of the Code. The appellant/accused was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 15,000/- (Rupees fifteen thousand only) under Section 304 (Part I) of the IPC. In default of payment of fine, the appellant/accused was sentenced to undergo rigorous imprisonment for a further period of one year. The appellant/accused was also sentenced to undergo rigorous imprisonment for one year for the offence under Section 324 IPC and rigorous imprisonment for three months for the offence punishable under Section 447 IPC. The substantive sentences were directed to run concurrently. The remand period from 09.05.1999 to 13.07.1999 and 16.01.2006 was allowed as set off as permitted under Section 428 of the Cr.P.C. 5. I have heard Sri. Sasthamangalam S. Ajithkumar, learned counsel appearing for the appellant/accused and Sri. Renjith George, learned Sr. Public Prosecutor, appearing for the State. 6. The learned counsel appearing for the appellant/accused submits that S.C. No. 482/2001 arises out of Crime No. 134/1999 of Kazhakoottam police station which was registered on the basis of a First Information Statement given by PW-1, the son of the deceased Subair Kunju. He submits that on the basis of the First Information Statement given by the appellant/accused, Crime No. 135/1999 of Kazhakoottam police station was registered under Sections 323 and 324 r/w. Section 34 IPC, against the deceased Subair Kunju, PW-1 and PW-2. He submits that the investigating officer who was examined as PW-13 in S.C. No. 482/2001 was the investigating officer in Crime No. 135/1999 of Kazhakkoottam police station as well. He submits that following a shabby, partisan and prejudicial investigation carried out by PW-13, a refer report was filed in Crime No. 135/1999 where the appellant/accused had alleged that the deceased Subair Kunju, PW-1 and PW-2 had attacked him with a stick and knife and that PW-2, the wife of deceased Subair Kunju, had caused injuries on his back by fisting him. He submits that the evidence of PW-8, the doctor who examined the appellant/accused, following his admission to hospital and who marked Ext.P8 wound certificate in respect of the appellant/accused, would show that the case put forth by the appellant/accused that he was attacked by deceased Subair Kunju, PW-1 and PW-2, was true in every respect. He submits that the evidence of the investigating officer (PW-13) will reveal that the police had not conducted any search in the house of the deceased Subair Kunju even to find out as to whether there was any stick or knife used to inflict injures on the appellant/accused. He states that, from the evidence of PW-13, it is clear that he had, even before conducting any proper investigation in Crime No. 135/1999, concluded that the allegations made by the appellant/accused against deceased Subair Kunju, PW-1 and PW-2 were completely false. He submits that the evidence of PWs. 1 to 3 who are the only eyewitnesses to the incident would indicate that the appellant/accused was the one who suffered injuries initially which indicates that the appellant/accused was exercising a right of private defence and the aggressors were actually the deceased Subair Kunju and PWs. 1 and 2. He submits that there are material contradictions in the First Information Statement given by PW-1 regarding the incident and the evidence tendered in the box. In particular, the following contradictions are stated to be material in a manner that would cause serious doubt regarding the evidence tendered in the box by PW-1. Firstly, it is submitted that in order to explain injuries on the appellant/accused, PW-1 improved his version in the box and deviated from his first information statement which led to the registration of Crime No. 134/1999. It is submitted that in his first information statement, he did not state anything regarding the appellant/accused falling down and hitting his head on a concrete basement and injuring himself and stabbing PW-1 while lying down in a fallen position. However, in the box, he tried to explain the injuries of the accused, in the manner indicated above, to make it appear that the deceased Subair Kunju, himself and PW-2 were not the aggressors. However, in the box, he tried to explain the injuries of the accused, in the manner indicated above, to make it appear that the deceased Subair Kunju, himself and PW-2 were not the aggressors. Secondly, in order to find an explanation for the injury caused to the left hand of the appellant/accused, PW-1 has stated in the box that this injury occurred when the deceased Subair Kunju, himself and PW-2 were trying to retrieve the knife used by the appellant/accused from his possession. Thirdly, it is submitted that while Ext.P1 First Information Statement states that after stabbing Subair Kunju, the appellant/accused ran away from the spot, the evidence given in the box is to the effect that the wife of the appellant/accused came and escorted him away. Lastly, it is submitted that while the First Information Statement is explicit inasmuch as it refers to only one stab on the neck portion of deceased Subair Kunju, the evidence given in the box is to the effect that Subair Kunju was stabbed twice and this caused injuries which led to his death as described in Ext.P4 postmortem report. Learned counsel appearing the appellant/accused further submits that even in the remand report prepared on 10.05.1999, the only reference is to one stab injury and not to two stab injuries as is now brought out from Ext.P4 postmortem report. 7. The learned counsel for the appellant/accused submits that from a reading of the evidence of PW-8, the doctor who conducted the postmortem, it is clear that the cause of injury to the left hand of the appellant/accused was brought out by asking a leading question which was clearly prohibited under Section 142 of the Indian Evidence Act. 8. The learned counsel for the appellant/accused further submits that the evidence of the prosecution witnesses is sufficient itself to establish that the appellant/accused was exercising his right of private defence and submits with reference to the provisions of Section 100 of the IPC that even where there was the apprehension of grievous hurt, the right of private defence will extend to causing the death of the aggressor. He submits that the recovery of the alleged weapon used by the appellant/accused stated to be under Section 27 of the Indian Evidence Act is itself doubtful as it does not accord with the ordinary circumstances of human conduct. He submits that the recovery of the alleged weapon used by the appellant/accused stated to be under Section 27 of the Indian Evidence Act is itself doubtful as it does not accord with the ordinary circumstances of human conduct. He submits that immediately after the incident, the appellant/accused who suffered injuries had been admitted to the General Hospital, Thiruvananthapuram, from where he had given his First Information Statement which led to the registration of Crime No. 135/1999 of Kazhakoottam police station. He submits that the First Information Statement which led to the registration of Crime No. 135/1999 of Kazhakoottam police station which was marked as Ext.P14 itself shows that the appellant/accused had described in very clear terms the attack by PWs. 1 and 2 and deceased Subair Kunju and had also admitted to having stabbed the deceased Subair Kunju. In such circumstances, the learned counsel submits that it is inconceivable that the appellant/accused would have gone through the ritual of hiding the knife used to inflict injury on the deceased Subair Kunju. He submits with reference to Ext.P14, the First Information Report in Crime No. 135/1999 that the case was registered with the number assigned to it only to make it appear that the said case was only a counterblast to Crime No. 134/1999, registered on the basis of the First Information statement of PW-1. He submits that this is clear from the fact that while Ext.P1 First Information Report in Crime No. 134/1999 by Kazhakoottam police station bears a number of the General Diary entry, Ext.P14 the First Information Report in Crime No. 135/1999, does not bear the General Diary number. He submits that though the prosecution alleges that the injury caused to the head of the appellant/accused was an injury caused due to the appellant/accused falling upon and hitting his head on a concrete basement, the investigating officer (PW-13) has clearly stated in the box that he made no attempt to see whether there were any traces of blood or tissue or hair on the concrete basement where the appellant/accused was alleged to have sustained an injury by hitting his head. He submits that the investigating officer also did not attempt to show the knife allegedly used by the appellant/accused to PW-8, the doctor who examined the appellant/accused. 9. He submits that the investigating officer also did not attempt to show the knife allegedly used by the appellant/accused to PW-8, the doctor who examined the appellant/accused. 9. In support of the contention that the appellant/accused had exercised right of private defence, learned counsel has referred to the provision of Sections 96 and 100 of the Code and has also placed reliance on the judgment of a nine Judge Bench of the Allahabad High Court in Rishi Kesh Singh and Others vs. The State, AIR 1970 All. 51 to contend that even if the right of private defence has not been established (on the test of preponderance of probabilities) as required under Section 105 of the Indian Evidence Act, if the court, on an overall appreciation of the facts and circumstances of the case comes to the conclusion that the claim of private defence by the accused is a reasonably acceptable version, the court would then grant the benefit of doubt and acquit the accused on the premise that the prosecution has failed to establish its case beyond all reasonable doubt or on the premise that the prosecution had failed to prove certain ingredients of the offence alleged. 10. The learned counsel places reliance on V. Subramani vs. State of Tamil Nadu, AIR 2005 SC 1983 to contend that a plea of private defence can be established not only by the accused leading evidence but also by eliciting the necessary facts from witnesses examined on the side of the prosecution. He also places reliance on the judgment of the Hon'ble Supreme Court in Darshan Singh vs. State of Punjab and Another, AIR 2005 SC 1983 to contend that even where the accused faced only a reasonable apprehension of grievous hurt, the right of private defence extended to even causing the death of the aggressor. 11. Learned counsel cites the judgment of the Hon'ble Supreme Court in Ravishwar Manjhi and Others vs. State of Jharkhand, AIR 2009 SC 1262 to contend that where the accused has suffered serious injures, the prosecution had the duty to properly explain the same and that the court should take serious notice of the nature of the injuries suffered by the accused. He refers to the judgment of the Hon'ble Supreme Court in Faddi vs. State of M.P. AIR 1964 SC 1850 to contend that the court is not precluded from taking notice of the contents of the First Information Report either under Section 25 of the Indian Evidence Act or Section 162 of the Cr.P.C. He cites the judgment of the Hon'ble Supreme Court in Ram Kumar Pande vs. State of M.P. (1975) 3 SCC 815 and Mitter Sen and Others vs. State of U.P. (1976) 1 SCC 723 for the proposition that an FIR is a previous statement which can normally be only used to corroborate or contradict the maker of it but that omission of important facts, affecting the probabilities of the case, is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. 12. The learned counsel places reliance on the judgment of the Hon'ble Supreme Court in Kalyan vs. State of U.P. (2001) 9 SCC 632 to contend that where the story given in the box is completely in variance with the version given at the time of registration of the First Information Report, the court was entitled to draw the presumption that the entire prosecution story was false. 13. Lastly, it is submitted that in the facts and circumstances of the case, the conviction for offences under Sections 447 and 324 of the Code is patently unsustainable. It is submitted that the prosecution has failed to prove any ingredient of Criminal Tresspass as defined in Section 441 of the Code. It is also submitted that the offence under Section 324 of the Code is also not attracted as the appellant/accused was clearly acting in self-defence. 14. In the light of the fact that the Learned Counsel for the appellant has not attempted to establish that the injuries caused the deceased Subair Kunju was not caused by the appellant/accused or that those injuries were not the cause of death of Subair Kunju, the learned Senior Public Prosecutor has focussed his argument on establishing that the accused was not acting in the exercise of the right of private defence. The learned Senior Public Prosecutor contends that this is a case where the evidence clearly establishes that there was previous enmity between the accused and the family of the deceased. The learned Senior Public Prosecutor contends that this is a case where the evidence clearly establishes that there was previous enmity between the accused and the family of the deceased. He submits that the evidence also suggests that the accused was the actual aggressor because going by the evidence of PW-1 the action of the accused in making strange noises and spitting in front of the house of the deceased was the provocation for PW-1 to come out and enquire as to why the accused was doing the same. It is submitted that there is no dispute that the actual incident took place inside the property of the deceased which again suggests that the aggressor was the accused for there was no reason for the accused to enter upon the property of the deceased at that point in time. It is submitted that even the accused has no case that the events unfolded in any different manner. 15. The learned Prosecutor places reliance on the judgment of the Supreme Court in Manjeet Singh vs. State of H.P. (2014) 5 SCC 697 to contend that where the accused was the aggressor he could not have recourse to the plea of private defence. It is submitted that such a right can be exercised only to defend the unlawful action and not to retaliate. My attention was also drawn to the following part of the said judgment i.e. Paragraph 19 of Manjeet Singh (supra): 19. This Court in George Dominic Varkey vs. State of Kerala, (1971) 3 SCC 275 : 1971 SCC (Cri) 532, has held: (SCC pp. 276-277, Para 6) “6........Broadly stated, the right of private defence rests on three ideas: first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence......” 16. The Learned prosecutor cites Nagji Odhavji Kumbhar vs. State of Gujarat, (2019) 5 SCC 802 to contend that where there is no evidence to suggest that the accused was attacked using dangerous weapons etc. it is possible for the court to take the view that the accused had clearly exceeded his right of private defence. The Learned prosecutor cites Nagji Odhavji Kumbhar vs. State of Gujarat, (2019) 5 SCC 802 to contend that where there is no evidence to suggest that the accused was attacked using dangerous weapons etc. it is possible for the court to take the view that the accused had clearly exceeded his right of private defence. The judgment of a Division Bench of this Court in Shanifa Beevi vs. State of Kerala, 2019 KHC 4383 is relied on to contend that a person who criminally trespassed into the property of the deceased cannot easily plead the right of private defence. He submits that on the admitted facts of the present case, it is established that the accused had actually gone to the property of the deceased to commit the offence. 17. The learned Public Prosecutor would submit that the contention of the learned counsel for the appellant that Crime No. 135/1999 was not properly investigated is completely incorrect. He submits with reference to the evidence of PW-13 that the officer had properly investigated Crime No. 135/1999 of Kazhakoottam Police Station and had come to the conclusion that the case put forth by the accused was completely false. He also submits that the question of attempting recovery of the stick and the knife allegedly used by PW-1 and the deceased to allegedly inflict injury on the accused did not arise as the Investigating officer had clearly formed an opinion that the entire story put forth by the accused was clearly unbelievable. He submits that the conclusion attempted to be drawn from the evidence of PWs. 1 to 3 that the appellant/accused was not the aggressor is clearly not acceptable in the light of the fact that PWs. 1 to 3 have given consistent versions of how the incident unfolded. He submits that even if the accused could be said to have acted in private defence at the time he caused injury on the thigh of PW-1, the subsequent act of stabbing the deceased was clearly an act exceeding the right of such private defence. He submits that the contradictions in the statements given by PW-1 referred to by the learned counsel for the appellant are not contradictions of such a nature as contemplated by Tahsildar Singh and Another vs. State of U.P. AIR 1959 SC 1012 so as to make the version of PW-1 unbelievable. He submits that the contradictions in the statements given by PW-1 referred to by the learned counsel for the appellant are not contradictions of such a nature as contemplated by Tahsildar Singh and Another vs. State of U.P. AIR 1959 SC 1012 so as to make the version of PW-1 unbelievable. He submits that the contradiction must be of such a nature that both statements i.e. one given before the police and the other given in the box cannot exist together. He submits that the suggestion of the learned counsel for the appellant that the cause of injury on the left hand of the accused was brought out by asking a leading question to PW-8 is not correct as the prosecution was only trying to extract from PW-8 the probable cause of injury to the left hand of the accused. 18. The Learned Prosecutor submits with reference to Section 105 of the Evidence Act that the burden of proof to show that a case falls within one of the exceptions in the Code is squarely that of the accused. He submits that while it may be possible in law for the accused to establish from the prosecution evidence itself that he had exercised a right of private defence, there is no element of the prosecution evidence in this case that would enable the accused to raise a claim of private defence. Learned Public Prosecutor refers to the provisions of Section 100 of the Code and concludes his argument on this point by stating that even if the plea of private defence can be taken in the facts of this case, the right exercised by the accused clearly exceeded the right of private defence as the nature of injuries on the accused does not show that he had a right of private defence which extended to causing the death of Subair Kunju. 19. Lastly, the Learned Prosecutor submits that in the facts and circumstances of this case, the accused was rightly convicted for the offences under Section 304 (Part-I), Section 324 and Section 447 of the Code and that the prosecution had clearly established its case against the appellant/accused beyond all reasonable doubt. 20. I have considered the contentions raised by the learned counsel for the appellant and the learned Sr. Public Prosecutor appearing for the State. 21. 20. I have considered the contentions raised by the learned counsel for the appellant and the learned Sr. Public Prosecutor appearing for the State. 21. In the light of the facts of the case noticed above and in the light of the evidence tendered in the box by witnesses, namely PWs. 1, 2, 3, 6 and 13, it is clear that there is substantial evidence in this case that the appellant/accused had stabbed the deceased-Subair Kunju, with a knife in his possession and that the injuries so caused to the deceased-Subair Kunju ultimately led to his death. The statement of the accused which led to the registration of Crime No. 135/1999 of Kazhakkoottam police station is not admissible in evidence if it is to be treated as a confessional statement. [See: Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 ]. The information/statement which led to the registration of Crime No. 135/1999 of Kazhakkoottam police station is clearly not a confessional statement. Therefore, even relying on that statement, it can be safely concluded that the injury caused by the appellant/accused using a knife that was in his possession was the cause of the death of the deceased Subair Kunju. Indeed, to be fair to the learned counsel for the appellant, he did not even attempt to suggest that the injuries caused by the appellant/accused was not the cause of the death of the deceased Subair Kunju. 22. Therefore, the only question to be considered, in the matter of conviction under Sections 304 (Part 1) and 324 is whether the appellant/accused is entitled to the benefit of the exception contained in Section 96 of the Code also having regard to the provisions of Sections 97, 100 and 102 of the Code. 23. The case put forth by the appellant/accused is that while returning home after closing his pan shop and when he was passing the house of the deceased, he had coughed up some phlegm and spit it out which provoked PW-1 (son of the deceased), to come out the house of the deceased and to question the appellant/accused as to what he was doing. According to the appellant/accused, this led to an argument and a small scuffle between the appellant/accused and PW-1. According to him, PW-1 had hit him on his head with a stick, as a result of which he fell down and accepted a further attack. According to the appellant/accused, this led to an argument and a small scuffle between the appellant/accused and PW-1. According to him, PW-1 had hit him on his head with a stick, as a result of which he fell down and accepted a further attack. He had taken out a penknife which he used to carry around usually and he inflicted an injury on the right thigh of PW-1. According to him, hearing the cry of PW-1, the deceased Subair Kunju had come out of his house armed with a chopper in the company of his wife, PW-2. According to the appellant/accused, deceased Subair Kunju had inflicted an injury on his left hand using the said chopper while the wife of Subair Kunju (PW-2) had fisted him on his back and to defend the risk of death/grievous hurt at the hands of the deceased and his family members, he had stabbed Subair Kunju and that this was clearly an act of private defence. 24. The evidence of PW-1 (son of the deceased), PW-2 (wife of the deceased) and PW-13, (the investigating officer) is consistent in that the first injury in the scuffle between the appellant/accused and PW-1 was sustained by the appellant/accused and that he had fallen down and inflicted an injury on PW-1 when he was lying down. The fact that the injury inflicted by the appellant/accused was on the thigh of PW-1 also supports the fact that the appellant/accused had fallen down and had injured PW-1 from that position. Of course, in the box, PW-1 has stated that the initial injury on the appellant/accused was not caused on account of PW-1 hitting his head with a stick, but was on account of the fact that the appellant/accused had hit his head on a concrete basement while falling down. As rightly pointed out by the learned counsel appearing for the appellant/accused, this version given in the box is inconsistent or contrary to the version given by PW-1 while giving the First Information Statement which led to the registration of Crime No. 134/1999 of Kazhakoottam police station, in as much as the fact of the appellant/accused injuring himself by hitting his head on the concrete basement is totally absent therein. Tahsildar Singh (supra) is the authority for the proposition that when there is an inherent contradiction between the First Information statement or any statement given to the police and the version given by the witnesses who gave the statement in the box in such a manner that one of the versions cannot be true, the Court should view the evidence with suspicion. I am, therefore, of the view that the story of the appellant/accused, having fallen down and hit his head on a concrete basement, is an attempt of the prosecution to explain the injuries on the accused. Though the prosecution attempted to establish that the injury to the left hand of the appellant/accused had been occasioned in the attempt to dislodge the knife that he had been holding in his right hand, the contradiction in the statement of PW-1 and his evidence and the manner in which the question was put to PW-8 compels me to hold that there was no evidence that the injury to the left hand of the appellant/accused was caused in the manner suggested by the prosecution. From the evidence of PW-13, it is clear that though the appellant/accused had given a statement (which led to the registration of Crime No. 135/1999 of Kazhakoottam police station) in which he had clearly stated that the deceased-Subair Kunju had attacked him with a chopper and that PW-1 had attacked him with a stick, causing injuries on his left arm and on his head, the investigating officer who was common in both the cases made no attempt whatsoever to determine whether the deceased and PW-1 had used a stick and a chopper to attack the appellant/accused. This, in my opinion, is a fatal flaw. The evidence of PW-13 also shows that he had taken over the investigation of both the cases on 03.05.1999. The incident occurred in the night on 02.05.1999. It appears from the evidence of the investigating officer that he had reached a conclusion on 03/04.05.1999 itself that the case of the appellant/accused that he had been attacked by the deceased-Subair Kunju and PWs. 1 and 2 was completely false. The record, in this case, is woefully insufficient to conclude that proper investigation had been conducted into the allegation made by the appellant/accused that the deceased Subair Kunju and PWs. 1 and 2 had attacked him in the manner described above. 25. 1 and 2 was completely false. The record, in this case, is woefully insufficient to conclude that proper investigation had been conducted into the allegation made by the appellant/accused that the deceased Subair Kunju and PWs. 1 and 2 had attacked him in the manner described above. 25. The evidence of PW-8, the doctor, who examined the appellant/accused and treated him also appears to suggest that injuries sustained by the appellant/accused are consistent with his version of the incident. 26. Section 105 of the Evidence Act places the burden of proving that his case comes within one of the exceptions, squarely on the accused. But what exactly is the nature of this burden? What is the standard of proof placed on the accused? This issue has been the subject matter of two celebrated decisions of the Allahabad High Court namely that of a seven-judge bench of that court in Parbhoo vs. Emperor, ILR 1941 All. 843 and later of a nine-judge bench of the same court in Rishi Kesh Singh vs. State, AIR 1970 All 51 which reconsidered the statement of the law in Parbhoo. The law laid down by the Allahabad High Court has been considered by the Supreme Court in Partap vs. State of U.P. (1976) 2 SCC 798 and Paul vs. State of Kerala, (2020) 3 SCC 115 . 27. Moitra, in his celebrated work Anukul Chandra Moitra - The Law of Private Defence (4th Edn. 1953) opines thus: “In some cases it is not possible for the accused to prove his statement by independent evidence, though those may be the very cases where an effective exercise of the right of self-defence was most necessary. To place the onus rigorously on the accused in such circumstances would mean that if he exercises the right, he runs the risk of failure to prove his case, while if he does not exercise the right, he suffers an undeserved penalty at the hands of the aggressors. The means and opportunity lying open to the accused to substantiate his plea by oral testimony on his behalf are matters of no mean importance to be considered in connection with the question of burden of proof. The means and opportunity lying open to the accused to substantiate his plea by oral testimony on his behalf are matters of no mean importance to be considered in connection with the question of burden of proof. How could independent evidence be expected to be adduced on behalf of the accused to prove that he used force in defence of his person or property, or for the matter of that, to show that he did not exceed his right, when, he had occasion suddenly to exercise the right, say, against the assault of a burglar in the solitude of the night? Or, how could the accused produce evidence in his favour when he and his companions are put on trial, the only witnesses to the occurrence being those very men against whom the right was exercised? The only possible oral evidence on behalf of the defence in such circumstances is the statements of the accused except, perhaps, a few favourable statements of the complainant's witnesses elicited in cross-examination. So it is quite possible that to produce the moral conviction of his innocence, the accused may have nothing beyond his own uncorroborated statement as to the precise circumstances under which he acted; and although under the Indian Evidence Act the burden of proving an exception under the Indian Penal Code is on the accused person, and although it has been held that in order to establish that a party acted in the exercise of the right of private defence in a riot it lies upon such party to establish the circumstances under which each blow that caused an injury to the member of the opposite party was inflicted, it does not follow that the circumstances together with the accused person's statements cannot be sufficient evidence to establish the exception in his favour. When it is found that his acts are, according to his statement, prima facie self-protective and not aggressive, and further when it appears from the circumstances that he acted bona fide, it is but reasonable to take a lenient view of the matter and relax the standard of proof in his favour. When it is found that his acts are, according to his statement, prima facie self-protective and not aggressive, and further when it appears from the circumstances that he acted bona fide, it is but reasonable to take a lenient view of the matter and relax the standard of proof in his favour. The most important thing in the decision such cases is that judging of the evidence in the light of probabilities, and if the circumstances as stated by the accused under which he acted appear to be probable from a consideration of the prosecution evidence, and if those circumstances justify his acts, it is not safe to press the point strongly against him, and if it appears from the circumstances that he acted in good faith, the law should be construed liberally in his favour. Accordingly, it has been said that when a person pleads the right of self-defence, it is not necessary to prove the fact conclusively. The defence is to prove with that degree of probabilities as is required by the Court when an accused person is required to prove a fact that he was justified in acting in the way he did. Further, when as a result of sifting the evidence, or owing to the absence of any evidence, it appears that the facts are consistent as much with his guilt as with his innocence, whether on the question of his being entitled to the right of self-defence or of his exercise of the right within limits, the innocence of the accused is to be presumed. Thus, put shortly, the test is not whether the accused had proved beyond all reasonable doubt that he comes within any exception to the Code, but whether in setting up his defence he has established a reasonable doubt in the case for the presumption and had thereby earned his right to an acquittal.” In Partap (supra) the law on the point was succinctly stated by M.H. Beg, J. Incidentally, Beg, J. was also part of the nine-judge bench of the Allahabad High Court which decided Rishi Kesh Singh (supra). The majority in Partap (supra) found that on the test of preponderance of probabilities, the accused in that case had succeeded in establishing that he had acted in private defence. The majority in Partap (supra) found that on the test of preponderance of probabilities, the accused in that case had succeeded in establishing that he had acted in private defence. Beg, J. in his separate concurring judgment considered the law laid down by the Allahabad High Court in the judgments referred to above and held: “31. It was held in the case of Rishi Kesh Singh by a majority of a Full Bench of nine Judges of the Allahabad High Court explaining and relying upon the decisions of this Court discussed there (at p. 51): “The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused.” In that case, the result of a consideration of the decision of this Court in relation to the provisions of Section 105 of the Evidence Act was summed up by me as follows (at pp. 97-98): “.......an accused plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are: firstly, a lifting of the initial obligatory presumption given at the end of Section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence and thirdly a complete proof of the exception by “a preponderance of probability” which covers even a slight tilt of the balance of probability in favour of the accused plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal.....” 32. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal.....” 32. Provisions of Section 105 of the Evidence Act, which are applicable in such cases, contain what are really two kinds of burden of the accused who sets up an exception: “firstly, there is the onus laid down of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code, 1860, or, within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence.” Secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which says that “the Court shall presume the absence of such circumstances”. The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self-defence as an exception to the criminal liability which would otherwise be there. But, when both sides have led evidence of their respective versions, the accused can show, from any evidence on the record, whether tendered by the prosecution or the defence, that the mandatory presumption is removed. The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for an acquittal. 33. Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh case (at p. 95): “Even a literal interpretation of the first part of Section 105 could indicate that the burden of proving the existence of circumstances bringing the case within an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof of circumstances showing that the exception may exist which will entitle the accused to the benefit of doubt on the ingredients of an offence. If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a preponderance of probability, more direct and definite language would have been employed by providing that the accused must ‘prove the existence’ of the exception pleaded. But, the language used in the first part of Section 105 seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused. Again, the last part of Section 105, even if strictly and literally interpreted, does not justify reading into it the meaning that the obligatory presumption must last until the accused plea is fully established and not just till circumstances (i.e. not necessarily all) to support the plea are proved. Moreover, a restrictive interpretation of Section 105, excluding an accused from the benefit of bringing his case within an exception until he fully proves it, is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 105 and the prosecution's duty to prove its case beyond reasonable doubt. Hence, the obligatory presumption, at the end of Section 105, cannot be held to last until the accused proves his exception fully by a preponderance of probability. It is necessarily removed earlier or operates only initially as held clearly by Judges taking the majority view in Parbhoo case.” 34. It was also said there (at p. 89): “The legal position of a state of reasonable doubt may be viewed and stated from two opposite angles. One may recognise, in a realistic fashion, that, although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reasonable doubt about the accused guilt and that an accused can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true. Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. This technically more correct way of stating the law was indicated by Woolmington Case [1935 AC 462: 104 LJKB 433] and adopted by the majority in Parbhoo case and, after that, by the Supreme Court. It seems to me that so long as the accused legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of mode in describing the position, from two different angles, is an immaterial matter of form only. Even if the latter form appears somewhat artificial, it must be preferred after its adoption by the Supreme Court. [See: K.M. Nanavati vs. State of Maharashtra, AIR 1962 SC 605 : 1962 Supp. (1) SCR 567 : (1962) 1 Cri. L.J. 521].” The above principles laid down in the concurring judgment of Beg, J. in Partap (supra) were quoted with approval by the Supreme Court in Paul (supra). The principles that emerge can, I think, be summarized as under: (i) The accused is obliged to lift the initial obligatory presumption given at the end of Section 105 of the Act; (Stage-I). This obligatory presumption, at the does not last until the accused proves his exception fully by a preponderance of probability. “......The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for an acquittal.” (ii) He (the accused) may either from the evidence of the prosecution witnesses or the defence witnesses create a reasonable doubt about the existence of an ingredient of the offence; (Stage-II). “......The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for an acquittal.” (ii) He (the accused) may either from the evidence of the prosecution witnesses or the defence witnesses create a reasonable doubt about the existence of an ingredient of the offence; (Stage-II). “....although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reasonable doubt about the accused guilt and that an accused can obtain an acquittal by satisfying this lower burden too in practice.” (iii) He (the accused) may be able to offer complete proof of the exception by “a preponderance of probability” (Stage-III). (iv) “The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal.” 28. It is apparent from a reading of the judgment of the learned Sessions Judge in S.C. No. 482/2001 that the learned Judge concluded that the appellant/accused was not entitled to plead the exceptions of private defence, on account of the following: (i) The incident unfolded, admittedly with the appellant/accused making provocative sounds and spitting in front of the house of the deceased. (ii) The appellant/accused and the family of the deceased were admittedly on enmical terms. (iii) The appellant/accused was armed with a knife. (iv) The appellant/accused had trespassed into the courtyard of the deceased and attacked him. (v) The version of the of the appellant/accused that the PW-1 had attacked him with a wooden stick cannot be believed at all. (vi) The wounds on the appellant/accused were minor. (vii) The fact that the appellant/accused had inflicted injury on PW-1 is proved. (viii) The evidence suggests that the appellant/accused was the aggressor. (ix) The deceased was a handicapped person and PW-2 was a weak woman. (x) The case of the appellant/accused that the deceased had caused injury on his left hand using a chopper cannot be believed and the evidence is clear that the said injury was caused from the knife being held by the appellant/accused in his right hand. (ix) The deceased was a handicapped person and PW-2 was a weak woman. (x) The case of the appellant/accused that the deceased had caused injury on his left hand using a chopper cannot be believed and the evidence is clear that the said injury was caused from the knife being held by the appellant/accused in his right hand. I am of the view that the circumstances taken into consideration by the learned Sessions Judge to conclude that the appellant/accused was not acting in self defence, are not sufficient to hold that the appellant/accused was not entitled to the benefit of that exception. It is settled law that even if the accused faces only a reasonable apprehension of grievous hurt, the right of private defence may even extend to causing death of the aggressor. The fact that the appellant/accused coughed provocatively in front of the house of the accused is not a circumstance that can be taken into consideration to hold that the appellant/accused was the aggressor. The evidence in the case is clearly suggests that on hearing the appellant/accused coughing in front of the house of the accused , PW-1 came out of the house and questioned him. It is not suggested that at that time, the appellant/accused had entered the property of the deceased. It appears that there was an argument and a scuffle between PW-1 and the accused at that point of time. This may have taken place inside the property of the deceased. But these circumstances, by itself, cannot be lead to the conclusion that the appellant/accused was the aggressor. Again, it is in evidence that the appellant/accused was running a pan shop (see Ext.P13). The knife which was used by the appellant/accused though not marked in evidence, was a small folding knife. It has come out in evidence that the knife, that was used by the appellant/accused to inflict injuries on the deceased-Subair Kunju was, according to the recovery mahazar, a knife, the blade of which was 8 cms in length from the sharp tip to the base. The handle of the knife was 10 cm long. The width of the knife on its widest portion was 1.8 cm. The handle of the knife was 10 cm long. The width of the knife on its widest portion was 1.8 cm. The fact that appellant/accused was running a pan shop leads me to conclude that he would not have been carrying the knife in question with the intention of creating an issue with the deceased-Subair Kunju and with the intention of attacking Subair Kunju. It is probable that the appellant/accused was carrying the knife of the nature described in the mahazar on account of the fact that he was running a pan shop. The injuries on the appellant/accused were not ‘minor’ as found by the learned Sessions Judge, going by the wound certificate and the evidence of the doctor who examined and treated the appellant/accused. That apart, as already noticed the injuries to the head of appellant/accused was attempted to be explained as one sustained when the appellant/accused fallen down and hit his head on a concrete basement. This statement of PW-1 in the box, apart from being clearly contradictory to his First Information Statement, is also not proved in any manner, by any sort of scientific evidence collected from the concrete basement on which the appellant/accused had allegedly fallen. If this version was correct, one must assume that there would have been some traces of tissue or hair or blood on the concrete basement which could have been easily verified by the prosecution. But this was not done. The injury on the left hand of the appellant/accused was explained as having been caused by the knife which the appellant/accused was holding in his hand. The manner in which this fact was brought out (through the version of PW-1 which, contradicts his initial statement) and through the examination of PW-6 by asking a clear leading question leads me to conclude that there is no evidence to suggest that the injury to the left hand of the appellant was the with the same knife which he was holding in his right hand and during an attempt by the deceased and his family members to relieve him of such knife. The injuries on the accused have not been properly explained by the prosecution. This is fatal to the prosecution especially when a case of private defence is put up. The injuries on the accused have not been properly explained by the prosecution. This is fatal to the prosecution especially when a case of private defence is put up. [See: Lakshmi Singh vs. State of Bihar, AIR 1976 SCC 2263, Bishna @ Bhiswadeb Mahato vs. State of West Bengal, (2005) 12 SCC 657 and Asokan vs. State of Kerala, 2017 (2) KHC 669 ]. It is established and requires no elaboration at my hands that when considering whether the accused had exceeded his right of private defence, the nature of the threat held out by the deceased or the injured and the response of the accused cannot be weighed on golden scales. The Court must, on an overall appreciation of the facts, determine whether the accused had actually exercised his right of private defence or had exceeded the same. [See: Jai Dev vs. State of Punjab, AIR 1963 SC 612 , Buta Singh vs. State of Punjab, AIR 1991 SC 1316 and V. Subramani vs. State of Tamil Nadu (supra)]. The alleged handicap of the deceased was not, according to available evidence in this case, sufficient to conclude that he was a weak person. One cannot ignore the fact that, even going by the prosecution case, the deceased was in the company of his young son and his wife when the incident took place. I am therefore, of the view that the circumstances noticed by the learned Sessions Judge to hold against the plea of private defence does not sustain and the appellant/accused had, applying the test of preponderance of probabilities, established that he was acting in private defence and was entitled to the benefit of that exception. At the very least, I am convinced that it can be held that the appellant/accused had by showing the circumstances relatable to a plea of private defence showed that he had created a reasonable doubt in the mind of this Court, regarding his guilt. This also entitles him to an acquittal on the ratio of Partap (supra). For these reasons, the conviction of the appellant/accused under Sections 304 (Part-I) and 324 of the Code cannot be sustained. The injuries caused to PWs. 1 and 2 (which led to the conviction of the appellant/accused under Section 324 of the Code) can only be considered as part of the right of self defence. 29. For these reasons, the conviction of the appellant/accused under Sections 304 (Part-I) and 324 of the Code cannot be sustained. The injuries caused to PWs. 1 and 2 (which led to the conviction of the appellant/accused under Section 324 of the Code) can only be considered as part of the right of self defence. 29. It has come out in evidence that the appellant/accused was accosted by PW-1 for making provocative sounds while he was admittedly outside the property of the deceased. Thereafter it appears that an argument broke out between the appellant/accused and PW-1 and the appellant/accused continued the argument inside the compound of the deceased. This, in my view, does not amount to a criminal trespass as defined in Section 441 of the Code. At any rate there was no mens rea to commit any criminal trespass. I am therefore of the opinion that the conviction of the appellant/accused under Section 447 of the Code also cannot be sustained. 30. In the result, this appeal is allowed and the conviction and the sentence imposed on the appellant/accused in S.C. No. 482/2001 on the file of the First Additional Sessions Judge, Thiruvananthapuram, under Sections 304 (Part-I), 324 and 447 of the Code will stand set aside. The appellant/accused will stand acquitted.