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37. In AIR 1966 SC 97 only one point was considered in detail namely, the nature and the extent of evidence which would discharge the onus of proof placed on an accused person claiming the benefit of an Exception. Observations on the other point are in consonance with the earlier decision. The relevant observations made on the point are as below:--

"There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused: but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds in proving a preponderance of probability. As seen the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be lemembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt."

108. In Parbhoo's case, 1941 All LJ 619 = AIR 1941 All 402 (FB) Bajpai, J., held that the fixed or stable burden of proof is found in Sections 101 and 102 of the Evidence Act, whereas Sections 103 and 105 of the Act contain the unstable burden which shifts in the course of the trial "as one scale of evidence preponderates over the other," In other words, preponderance of evidence was the test to be used in criminal as well as in civil cases for judging the veracity of a case, the only distinction being that such preponderance has to be great or overwhelming enough to eliminate reasonable doubt to warrant conviction in a criminal trial. Again, Mulla, J., who expressed the opinion, in Parbhoo's case, that the principle of reasonable doubt may not be found incorporated "in its entirety" in Sections 3 and 101 of the Act, relied on Sir John Woodroffe's work on. Evidence to hold that the test which the prosecution had to satisfy to secure conviction by proving its case beyond reasonable doubt was higher than the ordinary criterion of "preponderance of probability" contained in Section 3. Even this expression of an individual opinion by Mulla, J. implied that all parties, other than prosecutors, were required to satisfy the test of "preponderance of probability" for proving their pleas or cases. To hold that the special burden of the prosecution to prove its case beyond reasonable doubt is higher than the burden which lies upon a party in a civil proceeding or upon an accused under Section 105 of the Act does not mean that the accused could establish his own plea completely by anything less than a "preponderance of probabilities." Whenever the Supreme Court had held that the burden of the accused under Section 105 was discharged on a balancing of probabilities, it had referred to a full discharge of the burden; but, that was not the type of case under consideration in Parbhoo's case.

127. While the process of balancing probabilities is common for all cases, the burdens of the parties to establish their respective cases in a criminal trial are really only two in kind; the higher one of the prosecution to establish its case beyond reasonable doubt and the lower one of the accused to prove his plea by a mere preponderance of probability. As, however, the conclusions which can emerge from the process of assessing evidence include a state of reasonable doubt about the existence of an exception pleaded by the accused, which necessarily involves the failure of the prosecution to discharge its burden of eliminating reasonable doubt when an ingredient of an offence jecomes involved, the result, viewed from the point of view of the practical or actual, as distinguished from the legally imposed, burden of the accused, is sometimes put as it is in Phipson's Evidence where it is stated that it is "enough" for the accused to raise a reasonable doubt as to his guilt. This mode of describing the result of the prosecution's higher burden to eliminate reasonable doubt about the guilt of the accused has led to an attempt to reduce the legally imposed burden of proving an exception to the lower level of a burden of creating reasonable doubt only and to equate reasonable doubt with complete proof of an exception. On the other hand, the duty imposed by law upon the accused to prove the exception pleaded by him, by a "preponderance of probability", is sought to be used to reduce so much the prosecution's undeniable burden to eliminate reasonable doubt as to eliminate the accused's right to the benefit of doubt itself. In my opinion, neither should "preponderance of probability" be confounded with and reduced to the level of a reasonable doubt only, nor can the principle of reasonable doubt be eliminated altogether in a criminal trial. Each of the two kinds of conclusion--proof of an exception by a preponderance of probability and reasonable doubt about guilt--reflects a different situation. As soon as a Court finds one of these two types of conclusion to be the correct one to reach in a case the other is necessarily excluded.

136. In AIR 1966 SC 97 the Supreme Court, after citing Woolmington's case held: "The principle of common law is part of the criminal law of the country. That is not to say that if an exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case." Here, the Supreme Court was really contrasting the lower degree of proof required from the accused for fully establishing the exception pleaded, by a "preponderance of probabilities" just like the burden of a party in civil litigation, with the heavier special burden resting upon the prosecution in a criminal case to prove its case "beyond reasonable doubt". This was a case in which the accused, having completely justified his plea of protection, under the ninth exception contained in Section 499, in a prosecution for defamation, was acquitted. As I have already explained, the majority view in Parbhoo's case, where quite a different problem was before this Court, also was that the accused could fully establish the exception pleaded by a "preponderance of probability." The Supreme Court, in holding here that "as soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus", evidently took the view, also expressed by the majority in Parbhoo's case, 1941 All LJ 619 = AIR 1941 All 402 (FB) that Section 105 deals with the shifting burden and Section 101 with the stable burden, This was not a case of an equipoised balance of probabilities. Nor was it a case, where the prosecution version, although not improbable, was yet faced with a genuine or serious doubt. In this case, the Supreme Court did not really have the problem before it which was before this Court in Parbhoo's case, 1941 All LJ 619 = AIR 1941 All 402 (FB). I, therefore, find no conflict whatsoever between what was held here by the Supreme Court and the majority view in Parbhoo's case, 1941 All LJ 619 = AIR 1941 All 402 (FB). On the other hand, in my estimation, the views expressed by the Supreme Court in this case give considerable support, either directly or Indirectly, to the majority view in Parbhoo's case, 1941 All LJ 619 = AIR 1941 All 402 (FB).