A.K.Mathur, CJ

[1] This judgment governs Criminal Appeal No. 2 of 1956 and Cr. Jail Appeal No. 3 of 1956 both by Choteylal, against his conviction of an offence under Section 302, I.P.C., for committing murder of his only son Purshottam, aged six years. The first appeal was presented through a counsel, while the other was received from the jail recently.

[2] The fact that Purshottam died at the hands of the appellant is not challenged. But the only point urged before me is that at the time the offence was committed, the appellant was, by reasons of unsoundness of mind, incapable of knowing the nature of the act, or that what he was doing was either wrong or contrary to law.

The appellant thus seeks protection under the general exception contained in Section 84, I.P.C. The appellant would, therefore, be deemed to have been rightly convicted, unless he was entitled to the benefit of Section 84, I.P.C. and consequently deserved acquittal, even though the death of his son was caused by him,

[3] In this connection two points will require consideration. The first is a pure Question of law as to what extent the burden of proving the existence of circumstances contained in Section 84, I. P. C. lies upon the appellant; and the second one is a question of fact as to whether there existed a possibility of the existence of the circumstances mentioned in the above section.

[4] There was some controversy in the interpretation of Section 105, Evidence Act as to the extent of the burden of proof which lay upon an accused person to establish the existence of circumstances to bring his case within any of the general exceptions in the Indian Penal Code. But this controversy appears to have been set at rest by the decision of the various High Courts by giving an interpretation more favourable to the accused.

One view was that the burden on the accused Under Section 105, Evidence Act, lay to the same extent as lies on the prosecution to prove the charge against him. In other words, the accused was to prove the existence of the circumstances beyond the possibility of any doubt. This view appears to have been taken in 'Baswantrao Bajirao v. Emperor' AIR 1949 Nag 66 (A).

But the same High Court took a contrary view in another subseauent decision reported in 'Holia Budhoo v. Emperor' AIR 1949 Nag 163 (B). In deciding this latter case, the Nagpur High Court, followed the full Bench decision of the Allahabad and the Rangoon High Court, in 'Parbhoo v. Emperor' AIR 1941 All 402 (FB) (C), 'Emperor v. TJ Damapala' AIR 1937 Rang 83 (D). The Patna High Court followed these decisions in 'Kamalasingh v. The State' .

A similar view was taken by the Chief Court of Sind in 'Waroo v. Emperor' AIR 1948 Sind 40 (F). This other view taken by the Nagpur, Allahabad, Rangoon, Patna and Sind High Courts is that the burden to prove the existence of the circumstances to bring a case within any of the exceptions technically lies upon the accused person, as laid down in Section 105, Evidence Act, but the burden has not to be discharged in the same manner as by the prosecution in proving a charge against the accused.

The prosecution has to establish its case beyond any reasonable doubt and for establishing the charge it was to depend upon the evidence led by it and not by taking advantage of any isolated statement of the accused or of the defence witnesses. In other words, the prosecution has to stand on its own legs in proving the charge. But an accused person can discharge the onus which lay upon him either by himself leading evidence or by merely placing reliance upon the admissions of the prosecution witnesses or on the circumstances of the case proving or indicating in the affirmative the existence of such circumstances.

On consideration of all such evidence or circumstances, the burden would be discharged if the accused is able to establish the defence beyond any doubt. But even if the evidence or the circumstances do not reach that mark to prove the exception beyond d