JUDGMENT : Misra, J. - 5 persons were put on trial and acquitted. The appeal is filed only against Sabu Dalbehera (accused No. 1) and his nephew Suna Sanra (accused No. 3). Prosecution case is that the Respondents with the persons acquitted chased and assaulted the deceased Dora Saura to death in the jungle near their village Gadiabang. The case of the Respondents is that the deceased was a notorious thief and committed theft of Jawa and Mohula in the house of accused No. 1. On being questioned the deceased threatened to assault them. Accordingly they assaulted the deceased with sticks. The learned Sessions Judge accepted the defence version as true. 2. There is no controversy that the deceased died as a result of the injuries caused on him. Death was due to shock and haemorrhage. Respondents admitted to have killed the deceased in the circumstances narrated by them. The only point of difference between the prosecution and the defence versions is whether the deceased was killed in the house of accused No. 1 in the course of his committing theft or he was chased to the jungle, while he was carrying away Jawa and Mohula, and assaulted there. It is somewhat remarkable that the learned Sessions Judge did not at all address himself to this aspect of the case and the relevant evidence on the point has been completely overlooked. The dead body of the deceased was recovered from inside the jungle at a distance of 546 feet from the house of accused No. 1. Jawa and Mohula tied up in the wrapper (M.O. II) were recovered from near the dead body. P.ws. 1 and 3 are independent witnesses. They had been to the jungle to bring fire-wood. They saw the accused No. 1 with others chasing and assaulting the deceased. Some criticism was levelled against the discrepancies in their statements regarding the factum of chasing having not been subjected to cross-examination. The learned Sessions Judge did not accept the evidence of p.ws. 1 and 3 only with regard to the identification of the three other accused persons and had not discarded their evidence in other respect. Some criticism was levelled against the discrepancies in their statements regarding the factum of chasing having not been subjected to cross-examination. The learned Sessions Judge did not accept the evidence of p.ws. 1 and 3 only with regard to the identification of the three other accused persons and had not discarded their evidence in other respect. On the basis of the aforesaid evidence, we are of opinion that the deceased was not killed inside the house of accused No. 1, but was chased, while he was carrying away Jawa and Mohula in his own wrapper (M.O. II), and killed inside the jungle. 3. Section 105, Indian Penal Code prescribes the commencement and continuance of the right of private defence of property. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or tin the property has been recovered. As the deceased was carrying away the property of accused No. 1, there was not only a reasonable apprehension of danger to the property, but the real danger had ensued. Their right of private defence of property thus commenced. As the deceased was running away with the property, the right of private defence of property against theft also continued till the time of assault in the jungle, as the offender had not effected his retreat with the property or the property had not been recovered. The continuance of such right is integrally connected with the time factor. There was no lapse of time between the theft and the effort on the part of the accused to recover the property before the offender effected his retreat. It is unnecessary to discuss in this case whether if the thief had retreated with the property out of sight and after lapse of a few days the owner would exercise his right of private defence of property on coming to know that the stolen articles were with the thief. This part of Mr. Panda?s argument is wholly academic as the accused pursued the deceased in the course of commission of theft for recovery of the property. Section 103, Indian Penal Code prescribes the conditions under which the right of private defence of property extends to causing death. This part of Mr. Panda?s argument is wholly academic as the accused pursued the deceased in the course of commission of theft for recovery of the property. Section 103, Indian Penal Code prescribes the conditions under which the right of private defence of property extends to causing death. The Fourth Clause therein is to the effect that the right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death, if the offence, the committing of which occasions the exercise of the right, be theft under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. P.W. 13 states that while the deceased went to the village of the accused, he was carrying an axe. P.w. 13 is an ex-convict and is unreliable. No axe belonging to the deceased has been recovered either from the house of the accused or from the jungle. Even assuming that the deceased brought an axe while he came to the village, there is absolutely no evidence that he was carrying the axe while running away with Jawa and Mohula. At the time of the assault, the deceased was wholly defence less and was carrying no arms. There is no evidence that he threatened to assault the accused. There was thus complete absence of circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence. The right of private defence of property, which the Respondents had, did not extend to causing death of the deceased. 4. Mr. Panda then contended that the Respondents are not guilty of murder as their case comes within Exception 2 to Section 300, Indian Penal Code which lays down that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Assuming that the killing was without premeditation, the accused cannot be said to have no intention of doing more harm than it was necessary for the purpose of such defence. Assuming that the killing was without premeditation, the accused cannot be said to have no intention of doing more harm than it was necessary for the purpose of such defence. This intention is to be gathered from the acts preceding and subsequent to the assault. The evidence of the Doctor (p. w. 4) shows that 4 lacerated wounds and 2 bruises were caused. The four lacerated wounds were caused by la this and injuries 2 to 4 were grievous. Injury No. 1 on the left parietal region above the top of left ear was fatal. The evidence of the eye-witnesses (p.ws. 1 and 3) is to the effect that after the first blow was given by accused No. 1 on the head, the deceased fell down and all other injuries were caused on him indiscriminately thereafter. This subsequent conduct of indiscriminately assaulting the deceased after he became disabled clearly shows the intention of causing more harm than was necessary for the purpose of defence. This also shows the absence of good faith. Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. (See Section 52, Indian Penal Code).The subsequent indiscriminate assaults committed on the deceased were without due care and attention. Exception 2 to Section 300, Indian Penal Code has, therefore no application as the element of good faith and absence of intention of doing more harm than is necessary for the purpose have not been established. The onus of proving these elements is on the accused u/s 105, Evidence Act, and the Court shall presume the absence of such circumstances. It is somewhat remarkable that the learned Sessions Judge acquitted the accused by accepting the defence without any discussion on the question of right of private defence. The Respondents are guilty u/s 302, Indian Penal Code. 5. Respondents Sabu Dalbehera and Suna Saura are convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life each. The appeal is accordingly allowed. Barman, J. 6. I agree. Final Result : Allowed