Thadani C. J.-This is a reference made by the learned Sessions Judge, L. A. D., under S. 307, Criminal P. C., in the case of one Dinanath Das and 8 others who were tried by the learned Judge under 8s. 148, 302 read with 88. 34, 324 and 823,I. P. C. with the aid of a Jury which unanimously found the accused not guilty. The learned Sessions Judge declined to accept the verdict of the Jury and has made this reference in the interests of justice. [2] The case of the prosecution is that a cer­tain piece of land comprising some 33 or 35 bigbas was reclaimed by one Bilu, Loro, Malia, Bhatia and Tithi Sntradhar 3 or 4 years before the occurrence which is said to have taken place in the afternoon of 30-11-1918; they took posses­sion of the land and divided it amongst them­selves; on the day in question, they were cutting paddy grown by them in their respective plots when the 9 accused persons, along with some 20 or 30 others, came armed with deadly wea­pons, trespassed upon the land in order to take forcible possession of it and made an attack upon them; in the course of the attack, accused Dinanath, Ranga, Sarbeswar and Gabru killed one Loro and the remaining • accused caused hurt to Bilu, Bhati Maya and Malia. The P. I. R, was lodged at the Police Station within 7 hours of the occurrence by the injured Malia. The Police investigated the case and sent up the 9 accused persons for trial. [2al The learned Judge points out in the reference that the main question for consi­deration in the case was as to which party was in actual possession of the land, and as he has himself come to the conclusion that the persons in actual possession were the complain­ant and his party, he has regarded the verdict of the Jury as unsustainable. But he has also stated : "The main point for consideration wag whether the complainant party had been in actual possession of the land. But he has also stated : "The main point for consideration wag whether the complainant party had been in actual possession of the land. They bad no patta for the land but they claimed to have been in possession of the land since the time they reclaimed it which was about three or four years before the date of occurrence of this case." The learned Judge has then set out the oral evidence of the prosecution witnesses which according to him, establishes the fact that the complainant's party was in possession of the disputed land. The learned Judge observes: "There was nothing to disbelieve the evidence of these witnesses about the actual possession of the land by these claimants." We think the learned Judge is in error in thinking that there was nothing to discredit the evidence of these witnesses as to actual posses­sion. Indeed the documentary evidence led in the case tends to show that the accused persons must be regarded as being in possession right up to the time when the occurrence took place. It is in evidence that one Kambal Gaonbura and Loro Sutradhar had filed a case u/S. 145, Criminal P. C, being case Mo. 349/48, against the accused Dinanath and some other persons. The Magistrate, after holding an enquiry into the question of possession, found that the accused Dinanath and his men were in possession. There was, therefore, documentary evidence before the Jury, namely, tee-order of the Magis­trate passed in case No. 349/48, which proved that the accused Dinanath and his men were in actual possession of the land shortly before the occurrence. The evidence of the prosecution witnesses is that they were in possession of the land daring 3 or 4 years before the date of the occurrence, namely, 30-11-48. This oral evidence, in view of the order of the Magistrate in the S. 146, Criminal P. 0. proceeding, cannot, with any degree of confidence, be regarded as true. If the Jury acted upon the documentary evidence rather than on the oral evidence in the case, we do not think that their leaning in favour of the documentary evidence can be questioned. [3] The learned Sessions Judge is no doubt right when he says that the question is not so much as to what was the decision of the Magis­trate in S. 146, Criminal P. 0. [3] The learned Sessions Judge is no doubt right when he says that the question is not so much as to what was the decision of the Magis­trate in S. 146, Criminal P. 0. proceedings, but as to who was in actual possession. But the Jury was entitled to argue that if the possession of the accused Dinanath and his men was esta­blished until a few days before the occurrence, it must be presumed that it continued till the date of the occurrence unless the accused were forcibly or otherwise dispossessed. It is not the case of the prosecution witnesses that they had dispossessed Dinanath and his men after the order of the Magistrate was passed in the pro­ceedings u/3. 148, Cr. P. 0.; their case is that 3 or 4 years before the order of the Magistrate was passed, they were in possession, and were in possession, right up to the time when this occurrence took place. [4] The question of actual possession was ai simple one of fact and as the Jury had before it documentary evidence which tended to discredit the oral evidence of the prosecution witnesses, we do not think that the Jury's conclusion on! the question of actual possession was so errone­ous as to justify a reference. In his summing up] to the Jury, the learned Judge left the question of possession entirely to the Jury and gave no indication of his view which he has subsequently expressed in the reference. In course of his summing up, the learned Judge stated: "In this case, the main point for determination would be which party had been in actual possession of the land in question. If it is found that it had been in actual possession of the complainant party, then yon will have to find out from the evidence and decide whether the offence of rioting was established against the accused in the dock. If it is found that it had been in actual possession of the complainant party, then yon will have to find out from the evidence and decide whether the offence of rioting was established against the accused in the dock. If, on the other hand, it is found that the prosecution has failed to establish the fact of possession in favour of the complainant and further it is found that the land had been in actual possession of the accused, then the charge about the offence of rioting under S. 147, I, P. C. would fail, because in that case when the accused persons were in actual possession of the land, they could not be held to lave formed an unlawful assembly, and therefore, could not also be held to be guilty of rioting. So, if the accused party had been in possession of the land, the charge under S. 147, I. P. C. and, therefore, the charge under S. 148, I. P. C. would fail. In that case, the accused and their party would be entitled to resist he complainant party if the latter attempted to reap the paddy grown by the accused's party, and, in that case the accused party would be entitled to cause simple hurt to the complt. party while resisting and defending be accused's right to the possession of the land as well as in defence of their property. In that case also the charge under Ss. 323 and 324, I. P. C. would ail. I it is found that the complt. had been in possession of the property, that is, the land, and was the grower-of the paddy and the accused were found guilty of rioting, the next point yon will have o consider is - whether the other charges framed against some of them were proved. If the accused party were in possession of the land and the complainant were the aggressors, it has been already aid that the charge of rioting and of causing; simple hurts would fall. In that case, it will have to be seen whether while defending their person and properties, be accused Dina, Ranga, Sarbesver and Gabru exceeded heir right of private defence and caused murder of Loro in furtherance of their common intention. Every person has a right to defend his own body and the body of any other person against any offence affecting be human body. Every person has a right to defend his own body and the body of any other person against any offence affecting be human body. Every person also has a right to defend the property against any act which is an offence theft, mischief or criminal trespass. So, if the complainant's party went to' cut the paddy of the accused party the accused had a right of defence of their such property f the accused had a reasonable apprehension of death r grievous hurt of any of their party, at the hands of Loro, and his party, then they could cause to Loro or any one of his party any harm up to death according o the circumstances of the case. The right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an Kempt or threat to commit the offence, though the Hence may not have been committed and it continues as long as such apprehension of danger o the body continues. The right of private defence of property commences when a reasonable apprehension, of danger to the property commences, and such right against criminal trespass continues as long as the offender continues in the commission of the criminal trespass. So, if the accused party had a cause of right )( private defence of their body and property against be complainant party, then it is to be seen whether in exercise of the right of private defence, the four accused lamed above exceeded the right or not." [6] Having left these simple questions of fact o the Jury, it was scarcely necessary for the earned Judge to make a reference simply because he himself came to the conclusion that he complainant's party was in actual possession. It is to be observed that the learned Judge has accepted the verdict of the Jury bearing upon charges under SS. 147, 148, 323 and 324, I. P. C., against the accused. He has only declined to accept the verdict bearing upon the charge S. 302/34,I.P.C. The question, therefore, for con­sideration is-whether on the facts and circum­stances of this case, we would be justified in inter­fering with a part of the Jury's verdict. [6] The prosecution case bearing upon the charge under 8. 302/34, I. P. 0. He has only declined to accept the verdict bearing upon the charge S. 302/34,I.P.C. The question, therefore, for con­sideration is-whether on the facts and circum­stances of this case, we would be justified in inter­fering with a part of the Jury's verdict. [6] The prosecution case bearing upon the charge under 8. 302/34, I. P. 0. was that the accused Dinanath caused injury to Loro in the abdomen with a spear ; then accused Banga struck a blow on the head with a lathi. Loro fell down, when accused Sarbeswar pierced Loro's-ear with a spear: the accused Gabru then struck Loro indiscriminately. Now, although specific parts were assigned to certain accused persons, it cannot be said, having regard to the unsatis­factory evidence of the prosecution witnesses generally, that the Jury was unreasonable in disbelieving the evidence as to the part played by each of the accused in the attack made on the prosecution witnesses. The learned Judge in his reference says that tha accused Dinanatb, Banga, Sarbeswar and Gabru should have been found guilty under part i of S. 304, Penal Code read with S. 34, Penal Code. In other words, the learned Judge himself has not been able to say as to which of the accused persons inflicted the fatal injury. .There are obvious difficulties in applying s. 84, Penal Code, to the facts of this case. The case of the prosecution was that the accused had formed themselves into an unlawful assembly for taking forcible possession of the land. It does not follow that where a body of persons attempt to take forcible posses­sion of land and in the act some one is killed, the terms of S. 34, Penal Code, are necessarily attracted. We ourselves are not prepared to say on the facts of the case that the common intention as required by 8. 84, Penal Code, has been established against the nine accused persons with any degree of certainty. We do not think, therefore, that the Jury was perverse in coming to the conclusion that the nine accused persons against whom reference has been made by the learned Judge were actuated by the identical common intention, namely, to cause the death of Loro, and that in furtherance of that common intention, one of them caused Lore's death. [7] In this view, we are unable to accept the reference. [7] In this view, we are unable to accept the reference. The verdict of the Jury stands and the accused are acquitted. They will be set at liberty. [8] Ram Labhaya J-I agree in the conolu. sion reached. D.H. Reference rejected.