OAK, C. J. :- The question before the Full Bench is :

"Whether the dictum of this Court in the case of Parbhoo v. Emperor, 1941 All LJ 619 : (AIR 1941 All 402) (FB) to the effect that the accused who puts forward a plea based on a general exception in the Indian Penal Code is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea based on such a general exception) a reasonable doubt is created in the mind of the Court whether the accused person is entitled to the benefit of the said exception is still good law".

2. I have read the judgment prepared by my learned brother Mathur, J. In my opinion, the statement of law in Parbhoo's case, 1941 All LJ 619 : (AIR 1941 All 402) (FB) is not accurate, and needs qualification. Section 105, Indian Evidence Act, states :

"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, 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."

Mr. P. C. Chaturvedi, appearing for the appellants conceded that when an accused pleads an exception in the Indian Penal Code, the burden of proof lies upon him. Parties are not agreed as to the manner in which the burden may be discharged. One can conceive three different modes: (1) by proving the exception beyond all reasonable doubt; (2) by proof through preponderance of probabilities; and (3) by creating a reasonable doubt in the mind of the Court. According to the learned Advocate-General, the second mode is the correct solution. According to Mr. Chaturvedi, the third mode is the correct method. It is well settled that when burden of proof lies upon an accused person, he need not prove his case beyond all reasonable doubt. We may therefore, confine our attention to the second and the third alternatives.

3. According to Section 3 of the Evidence Act, a fact is said to be proved when, after considering the matters before it, the Court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. It will be seen that a fact may be said to be proved under one of the two possible situations. Either the Court believes that the fact exists, or the Court considers existence of the fact probable. There is no indication in Section 3 of the Evidence Act that a fact can be said to be proved, even when the Court entertains a reasonable doubt as to whether the fact exists or not.

4. Mr. P. C. Chaturvedi contended that unless an accused person is given the benefit of reasonable doubt on an exception, there will be miscarriage of justice in many cases. Suppose two persons, A and B quarrel at a lonely place, and cause injuries to each other. They are both prosecuted in two cross-cases. In neither case will the accused be able to produce an independent witness to prove that he was the victim of an assault by his opponent. The plea of private defence will fail in each case. The result will be that each case will end in conviction. In most of such cases the accused in one case ought to be acquitted. The same difficulty will arise, when an accused pleads the right of private defence of property, but is unable to collect reliable evidence in support of his plea.

5. I think, such cases would be rare. In most cases the accused person is in a position to substantiate the plea of private defence. If the question is whether the complainant or the accused was in possession over a field in dispute, the accused is generally in a position to establish his plea by producing local residents and village papers in his support.

6. In Jumman v. State of Punjab, AIR 1957 SC 469, it was observed on p. 474 :

"In such a case where a mutual conflict