( 1 ) THIS appeal involves a point of law of great importance in the administration of criminal justice, and as we find ourselves in respectful disagreement with at least one decision of a Division Bench of this Court, that of Roxburgh and Blank, JJ. in -- 'ashiruddin Ahmed v. The King', AIR 1949 Cal 182 (A), I feel it to be our duty to refer the question for the decision of a Full Bench to be constituted by the learned Chief Justice. My learned brother is, however, of the opinion that the said decision is not binding upon us and that the matter should accordingly rest here. I do not agree. Moreover, the point of law is of such importance that it deserves to be considered by a fuller Bench. This case must, therefore, be placed before the learned Chief Justice for such action as he may be minded to take.

( 2 ) THE point of law involved concerns the nature and extent of the burden which is placed upon an accused by Section 105, Evidence Act which is as follows :"when a person is accused for any offence, the burden of proving the existence of circumstances bringing the case within any of the general Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. "

( 3 ) HAVING regard to the terms of Section 105, the question for decision is : Is the extent of the onus on the accused the same as that which lies upon the prosecution or is the accused entitled to be acquitted if there is reasonable doubt as to the existence of the circumstances which bring the case within any of the exceptions concerned? Before we answer the question, we must state the facts which give rise to it.

( 4 ) IN the course of a quarrel with their neighbours over the ownership of a tree, ' the appellants were alleged to have committed offences, 'inter alia' under Sections 148, 325 and 304, I. P. C. In the course of that quarrel, appellant Yusuf Shaikh is alleged to have picked up from the ground an axe and to have hit with it one Mir Hossain on his head. Mir Hossain died as a result of the injuries. It was the prosecution case that the tree concerned was in the joint possession of the appellants and their neighbours, the complainants, whereas the appellants' case was that it was in their exclusive possession and that they were its owners. It was alleged that the quarrel started with an attempt on the part of the complainants to take away a branch of that tree when the appellants resisted saying that it was their property. Although various other defences were taken by the appellants, the right of private defence to both person and property was one of them. In dealing with this case the learned Sessions Judge charged the jury as follows :"it is pertinent to tell you here that if the right of private defence is claimed by an accused as a lawful excuse for his act, the burden of proof rests upon him. Section 96, Penal Code is one of the general exceptions and lays down that nothing is an offence which is done in the exercise of the right of private defence. You must remember that when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is upon him and the Court shall presume the absence of such circumstances (section 105 Evidence Act read and explained ). It follows therefore that an accused is not entitled to the benefit of any exception such as that provided for in Section 98, Penal Code merely because there is a reasonable doubt in the mind of the Court about the existence of circumstances bringing the case within the exception. "the concluding portion of the passage quoted involves the direction that in order to entitle an accused to the benefit of the exception in Section 96, Penal Code the accused must prove beyond reasonable doubt the existence of circums