(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 :
(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.
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