JUDGMENT Madeley, J. - In this case 12 persons were put on their trial under Sections 147, 148, 323, 326 and 304 read with Section 149, I. P. C. Of them five were acquitted but Makhdoom Singh, Surendra Bahadur Singh, Bajrang Singh v. Sahdeo Singh, Faujdar Singh, Samar Bahadur Singh alias Sambhar Singh and Mahabir Singh were convicted and sentenced each to one year's rigorous imprisonment u/s 147, I. P. C, one and a half years' rigorous imprisonment u/s 148/149, 1. P. C, six months' rigorous imprisonment u/s 323 149, I. P. C, three years' rigorous imprisonment u/s 326/149, I. P. C, and five years' rigorous imprisonment u/s 304/149, I. P. C. All these sentences are to run concurrently. 2. The facts of the case are that Mst. Ram Kumari, widow of Balwant Singh, executed a deed of gift in June 1943 in favour of Sinsh Chandra of her one anna one pie share in village Pure Madho Sirgh. Plots Nos. 31 and 110 were included in that share. Before the deed of gift was made Thakur Har Bux Singh, the father of Bajrang Singh appellant, was entered as tenant of these plots but after the deed of gift the patwari, who has subsequently been dismissed, forged an entry of Sirish Chandra's possession which he attributed to the Kanungo. After Sirish Chandra had obtained a copy of this entry in the khasra, the patwari made away with the original. Sirish Chandra then considered himself to be fully fortified to take away-the barley crop which had been sowed and reaped by Bajrang Singh and he collected a gang of men and proceeded to do so. He was resisted by the appellants and a "marpit" took place. Injuries were received by both sides, but the party of the appellants got the best of the fight and unfortunately Anrudh Singh was killed. 3. The learned lower Court has held that the crop harvested by Bajrang Singh was stored in the grove on that day and, while Sirish Chandra and his party went fully prepared to take away that crop from there forcibly, the accused Bajrang Singh" and Sahdeo Singh also collected some men and went there fully pre- pared and determined not to let Sirish Chandra take that crop, and that it was as a result of this determination on both sides that the "marpit" in question took place. 4. 4. The trial Court has held on the basis of two decisions, total Husain v. King-Emperor (1930) 7 O W N 449 and AIR 1934 740 (Lahore) that when both parties come down armed with a full determination to settle their quarrel by force neither party is entitled to a right of private defence and also that it is immaterial in such a fight as to who gave the first below. In the Oudh ruling it was held, Where a quarrel begins with a few men on both sides, but it rapidly becomes a serious riot with dozens of men on both sides and there is no question of maintaining possession lawfully achieved etc. 5. But in the present case there was certainly a question of maintaining possession lawfully achieved. Bajrang Singh and his father had for a long time been in lawful possession of the plots in dispute as tenants, they had sowed, reaped and stored the crop and in resisting its unlawful seizure by the complainant they were in fact resisting an armed robbery by more than five men. 6. In the Lahore ruling the circumstances were quite different. There was a dispute as to whose turn it was to irrigate. Each party insisted and came down with an armed party to enforce their right. A mutual fight ensued, It' was held that no right of private defence existed. 7. The next case relied on by lower Court is Ghyasuddin Ahmad v. Emperor AIR 1938 Pat 215 unless a right of private defence is established a claim of title (even bona fide) or a claim (even bona fide) of possession will avail nothing. There is no distinction between forming an assembly to enforce a right or supposed right within the meaning of Section 141 (fourthly) and forming an assembly forcibly to maintain an existing right, and an assembly will be considered unlawful unless the defence has succeeded in establishing that the parties who committed the riot acted in private defence of the property and not exceed it. 8. This is the headnote, but as it is not in conformity with the body of the judgment 1 will venture to criticise it without apology, In the first place the passage "as assembly will be considered unlawful unless the defence has succeeded in establishing that the parties who committed the riot acted in private defence of the property" is illogical. This is the headnote, but as it is not in conformity with the body of the judgment 1 will venture to criticise it without apology, In the first place the passage "as assembly will be considered unlawful unless the defence has succeeded in establishing that the parties who committed the riot acted in private defence of the property" is illogical. It is obvious that if they acted in exercise of the right of private defence, there was no riot. Secondly I do not consider that it is correct to say that the accused have to establish both that they acted in the right of private defence and that they did not exceed it. If the accused are able to establish that they acted in the right of private defence, it appears to me that the burden of proving that they exceeded it lies upon the prosecution, nor have I succeeded in rinding anything in the body of the judgment to contradict this. At page 217, column I their Lordships remark: The point we have to determine is whether it is proved that Udro Singh had grown this tori crop and that his possession required to be protected by force against the offence of theft on the morning of the 19th January when Jai Narain began to. reap the crop 9. It was alleged by the defence that Udro Singh had sown the crop. From this it is clear that it was a very relevant question to the decision of the present case to find out who had sown the crop in plots 31 and 110. This point has been determined by the lower Court in favour of the appellants. It has decided that Bajrang Singh not only sowed the crop but also reaped and stored it and that these plots had been In the possession of him and his father from before, and that the only evidence upon which Sirish Chandra relied was a forgery, presumably arranged by Sirish Chandra himself, in the patwari's papeis. It appears from the findings of the learned lower Court that after obtaining this false entry Sirish Chandra began to give it out in the village that these two plots were in his possession. Thus Bajrang Singh was on his guard and when Sirish Chandra came with his men to take the crop by force, he was opposed and his gang was defeated. 10. Thus Bajrang Singh was on his guard and when Sirish Chandra came with his men to take the crop by force, he was opposed and his gang was defeated. 10. In my opinion Bajrang Singh certainly had the right of private defence of his crop when Sirish Cnandra came to take it. by force. There was no genuine question of disputed title. The crop clearly-belonged to Bajrang Singh. He had an incontrovertible right to resist the theft and the other side by using force attempted to commit robbery. The only question is whether Bajrang Singh and his party exceeded the right of private defence of their property. I have already stated my view that once the defence has established that the! accused acted in the exercise of the right of, private defence, the burden of proving that they exceeded that right lies upon the prosecution. Excepting the fact that Anrudta Singh was killed in the fight, there is no- thing to indicate that the accused exceeded the right of private defence. Once an attempt was made by the other side to' carry away the crop of Bajrang Singh and force was used by the party of Sirish Chandra to overcome the legitimate resistance of Bajrang Singh and his party, the right of private defence of the body arose in favour of Bajrang Singh and his party. u/s 100, I. P. C. death might voluntarily be caused to the aggressors provided that the assault reasonably caused the apprehension that grievous hurt win otherwise be the consequence. In the present case one grievous hurt was actually caused to Sahdeo Singh who had no less, than nine injuries. Samar Bahadur Singh had two injuries, Mahabir Singh four injuries and Faujdar Singh three injuries. It does not appear to me to be established that the appellants exceeded the right of private defence which they had. 11. The learned Assistant Government Advocate argues that the trial Judge has made out a new case for the accused which they never pleaded. I have examined the record and I find that the questions put to the accused by the Magistrate, and not improved upon by the Judge, were not calculated to bring out their true case as they should have been, It would not therefore be fair to penalise the accused for this. I have examined the record and I find that the questions put to the accused by the Magistrate, and not improved upon by the Judge, were not calculated to bring out their true case as they should have been, It would not therefore be fair to penalise the accused for this. Moreover the findings of the Judge seem to be so well founded that it would be impossible to discard them on this ground 12. I therefore allow this appeal and set aside the convictions and sentences of the ' appellants. They will be set at liberty forthwith.