Judgment ANANT SINGH, J. 1. The seven appellants have been convicted and sentenced, in the first instance, for rioting, under S. 147 of the Indian Penal Code with one years rigorous imprisonment each, and with the exception of appellant Ramsharnagat Singh, the remaining six appellants have been further convicted under S. 326 read with S. 149 of the Penal Code with five years rigorous imprisonment each. Appellant Ramsharnagat Singh has been convicted and sentenced to life imprisonment under S. 302 for the murder of Sheonandan Singh. Appellants Mahadeo Singh and Amar Pandit have further been convicted under S. 323 with one years rigorous imprisonment each for causing simple hurts to Sia Singh (P.W. 8). Appellant Chandra Shekhar Singh and Gena Mahton have also been further convicted under S. 323 for causing simple injuries to Jia Singh (P.W. 10). The sentences against different appellants are to run concurrently. 2. The date of occurrence was the 9th July, 1961, at about 6-30 p.m. and the place, a field of Ramsanehi Singh, (P.W. 7) near survey plot No. 87/560, known as Kharhaul situate in Sheonagar Top of Mauza Dighra within the Sadar police station of the district of Muzaf-farpore the place of occurrence being 5 to 7 miles from the police station. 3. The incident was reported in a Fardbeyan (Ext. 6) by Gaya Singh (P.W. 1) at the Thana at 8-30 P.M. on the same date and it was recorded by the officer-in-charge, Ramchhabila Singh (P.W. 16) who will be referred to hereafter as the I.O. 4. Plot No. 87/560 and another plot No. 87/562 along with three other plots are recorded in the Khatian (Ext. 8) being the same as another copy of the Khatian (Ext. C) which was produced on behalf of the defence. The Khata was recorded in the names of Drigpal Singh, Deonarain Singh and Mt. Kumrain Kuer, each having equal share. As against plot No. 87/560, there was an entry that there stood on this plot two shisam trees in possession of raiyats, meaning the persons in whose names the Khata was prepared. The area of this plot is shown as .42 acre equivalent to a little more than 10 kathas and the area of plot No. 87/562 is mentioned as .26 acre equivalent to a little more than 4 Kathas. 5. The area of this plot is shown as .42 acre equivalent to a little more than 10 kathas and the area of plot No. 87/562 is mentioned as .26 acre equivalent to a little more than 4 Kathas. 5. Deceased Sheonandan Singh, Jia Singh and Sia Singh on the one hand, and the Singh appellants admittedly descended from a common stock from Fakira Singh, who had three sons, Drigpal Singh, Sonful Singh and Ramdhani Singh. 6. The deceased Sheonandan Singh was one of the grand-sons of Drigpal Singh from his one son, (Harinandan Singh being his one of the brothers). Sia Singh (P.W. 8) and Jia Singh (P.W. 10) are also grandsons of Drigpal Singh from his another son Ramautar Singh. Ramdhani Singh died issue less, leaving his widow Kumrain Kuar, who also died a long time ago. Ramautar Singh, father of P.Ws. 8 and 10, died about 1« years before the occurrence. The Singh appellants are among the descendants of Sonful Singh. Appellants Chandra Shekhar Singh and Ramlakhan Singh are brothers, and appellants Mahadeo is son of Chandra Shekhar Singh and appellants Ramsharnagat Singh and Ramjanam Singh are brothers inter se. Appellants Gena Mahton and Amir Pandit are from different families. 7. The prosecution case, briefly stated, is as follows : A long time back, there was a private partition between the family of the deceased, on the one hand, and the family of the Singh appellants, on the other. As a result of the partition, the entire plot No. 87/560 measuring about a little more than 10 kathas fell to the share of the family of the deceased. Nothing, however, was said about one of the two Sheesam trees standing on this plot, presumably, because it was cut away a long time back. As to the other Shisham tree standing on it, it was said that this tree was also in exclusive possession of the members of the family of the deceased but, in Chait preceding the occurrence, the tree had been cut by Sia Singh and Jia Singh on behalf of their family. It was left at the spot for drying. It was also said that the appellants had no right or possession to any portion of plot No. 87/560, and as a matter of that, to the Shisham tree standing on it. 8. It was left at the spot for drying. It was also said that the appellants had no right or possession to any portion of plot No. 87/560, and as a matter of that, to the Shisham tree standing on it. 8. The further case of the prosecution is that Sheonandan Singh, deceased, and Sia Singh and Jia Singh were at about the time of the occurrence in their maize field, which was about 400 yards east of the place of occurrence, when they saw the appellants taking the aforesaid out Shisham tree on a cart from the Kharhaur. The cart with the log of Shisham free reached the field of Ramsanehi Singh (P.W. 7) when Sheouandan and P.Ws. 8 and 10 also arrived there. They objected to the taking away of the log of wood when appellant Lakhan ordered assault. Thereafter appellant Ramsharnagat assaulted Sheonandan Singh on his head with a Sipaha. Sheonandan fell down. Appellants Ramtanam, Mahadeo and Laldian also assaulted him with their Lathis or Sipaha which they had carried. Sia Singh (P.W. 8) was assaulted with Lathi or Sipaha by appellants Mahadeo and Amir and Jia Singh (P.W. 10) was also assaulted with Lathi or Sipaha by appellants Chandra Shekhar Singh and Gena Mahto. P.Ws. 8 and 10 were assaulted also by Jogendra Pandit (since acquitted). While these persons were being assaulted Jia Singh snatched a Lathi from Genas hand and had hit with it Ramsharnagat. As a result of the injuries inflicted, Sheonandan died on the spot and Jia Singh and Sia Singh also became senseless. The appellants and the other accused left thereafter. The occurrence was being witnessed by Gaya Singh (P.W. 1) Rambaran Singh (P.W. 2) and Bilat Missir (P.W. 3), from some distance and they had arrived at the scene, while it was still in progress. After the appellants had left, the daffadar Tapsi Choudhary (P.W. 4) on hearing halla, arrived at the scene of the occurrence. Gaya Singh (P.W. 1) mentioned to him about the occurrence. The dead body of Sheonandan Singh had been left at the spot where he had died but the two injured in their unconscious state were taken on one or two rickshaws to the Thana by P.W. 4. They had reached the Thana, as the I. O. said, in an unconscious state at 11 P.M. during the same night. The dead body of Sheonandan Singh had been left at the spot where he had died but the two injured in their unconscious state were taken on one or two rickshaws to the Thana by P.W. 4. They had reached the Thana, as the I. O. said, in an unconscious state at 11 P.M. during the same night. They were unable to speak and were sent to the hospital. They could be examined in the hospital by the I. O. on the 11th July, 1961 at 6 P.M. 9. It appears that a few minutes earlier before the recording of the Fardbeyan (Ext. 6) appellant Ramsharnagat Singh had reached the Thana in an injured condition and he also had made a report of his version of the occurrence, Ext. B. He also was sent to the hospital and the I. O. on his report, did not institute any case, because it did not disclose commission of any cognizable offence. 10. The I. O. after having recorded the Fardbeyan (Ext. 6) on the statement of P.W. 1 and forwarding the three injured, P.Ws. 8, and 10 and appellant Ramsharnagat, reached the place of occurrence at 1.30 A.M. on the 10th July, 1961, along with Gaya Singh (P.W. 1). As pointed out by the latter, the I. O. inspected the place of occurrence and its neighbourhood. He found, as he said, the dead body of Sheonandan lying in a field of Ramsanehi Singh, being contiguous north which is obviously a mistake for east, of the Kharahaur field, being survey plot No. 87/560. The I. O. also found some Sipahas and lathis near about that place, lie noticed marks of trampling round the dead body in 2 dhurs of land. He also saw a cart loaded with Shisham log, about 20 steps away from the dead body. He noticed a trail of cart wheel from the aforesaid Kharhaur field up to the place where it was standing. From the dead body, the distance of the Kharhaur was about 100 yards north, which is again obviously a mistake for "south west", as the map (Ext. 7), which the I. O. had prepared, would indicate. He found blood near the head side of the dead body. He seized the Sipahas and Lathis and also scraped some blood-stained earth. From the dead body, the distance of the Kharhaur was about 100 yards north, which is again obviously a mistake for "south west", as the map (Ext. 7), which the I. O. had prepared, would indicate. He found blood near the head side of the dead body. He seized the Sipahas and Lathis and also scraped some blood-stained earth. Near the scene there was no house and the houses of the parties were found to be about a mile away towards east. The I. O. held inquest over the dead body and sent it along with a constable for post mortem examination. lie examined some witnesses, including Rambaran Singh (P.W. 2) and Bilat Singh (P.W. 3). lie proceeded with his investigation and during the course of it, statements of P.Ws. 1, 2 and 3 were recorded by a Magistrate under S. 164 of the Code of Criminal Procedure, Exts. 5 series. The I. O. submitted charge sheet in the case on the 16th September, 1961, against these seven appellants and three more accused. They were all committed to the court of Session after the usual enquiry by a Magistrate. The appellants alone were convicted in the manner aforesaid and the other three accused persons were acquitted. 11. The appellants pleaded not guilty to the charges framed against them. The defence was a denial of the manner of the occurrence, though not the time and place of it. It was said that the Shisham tree in question was of the Singh appellants and not of the deceased and the members of his family. It was said that they were carrying the log of wood in a cart as of right as the log belonged to them. It was further said that it was the members of the prosecution party who were aggressors because they came armed with Lathis and assaulted appellants Ramsharnagat, Ramjanani and Ramlakhan, and this led to mutual marpit. They seem to have claimed right of private defence of property and person. 12. An autopsy on the dead body of Sheonandan Singh was made on the 10th July, 1961, by Dr. T.P. Singh, (P.W. 13) who was the civil Assistant Surgeon of the Sadar hospital at Muzaffarpore. The dead body was of a strong built man of about 46 years of age and bruises and swelling were found on the whole of left side of head. T.P. Singh, (P.W. 13) who was the civil Assistant Surgeon of the Sadar hospital at Muzaffarpore. The dead body was of a strong built man of about 46 years of age and bruises and swelling were found on the whole of left side of head. There was one bruise on right arm and other on the right side of chest and clavicle. The skull was found fractured running transversely on the frontal and temporal bones on both sides. The injuries were ante-mortem and death was, in the opinion of the doctor, due to the injuries on the skull and the brain. They could be caused by blunt weapon like Sipaha and Lathi. The further evidence of the doctor is that the "death took place about 24 hours" probably before the time of his examination. 13. On the medical evidence, it is clear that Sheonandan Singh died due to the injuries referred to above, whoever might have been the assailants a question to which I shall address myself later. 14. The injuries sustained by Sia Singh (P.W. 8) and Jia Singh (P.W. 10) were examined by Dr. S.N. Imam (P.W. 11), a civil Assistant Surgeon of the Muzaffarpore Sadar hospital, at 12-40 A.M. and 12.50 A.M. on the 10th July, 1961, respectively. The same doctor had examined earlier also the injuries of appellants Ramsharnagat Singh, Ramjanam Singh and Ramkhelawan Singh at 8.45 P.M., 11.10 P.M. and 10.55 P.M. respectively on the 9th July, 1961, the date of occurrence itself. 15. The doctor had found one lacerated wound of different dimensions each on the head of Sia Singh and Jia Singh, besides one ecchymosis and one abrasion on Sia Singh and two abrasions and one ecchymosis on Jia Singh. The injuries on both of them were simple having been caused by hard and blunt weapon like Lathi or Sipaha within six hours from the time of examination. 16. Appellant Ramsharnagat was found to have three lacerated wounds, one of them being on the head. Appellant Ramjanam Singh had four wounds in the nature of ecchymosis, bruise and one lacerated wound appearing on the head, being scalp deep. Appellant Ramlakhan Singh was found to have four wounds, one being lacerated wound on the head, being scalp deep. The injuries of all the three were simple and appeared to have been caused by hard and blunt weapon like Lathi. Appellant Ramlakhan Singh was found to have four wounds, one being lacerated wound on the head, being scalp deep. The injuries of all the three were simple and appeared to have been caused by hard and blunt weapon like Lathi. The age of the injuries on appellant Ramsharnagat Singh was within two hours, and that of appellants Ramjanam Singh and Ramlakhan Singh, within six hours from the time of examination. 17. The age of the injuries on P.Ws. 8 and 10, as also the age of the injuries of the three appellants, named above, roughly coincides with the time of the occurrence. The nature of the injuries would also support an inference that the injuries were all caused by bard and blunt substance like Lathi or Sipaha, as is the prosecution case. Thus, the inference becomes irresistible that Sheonandan Singh, deceased and P.Ws. 8 and 10 on the one hand and appellants Ramsharnagat, Ramjanam and Ramlakhan, on the other, were also injured in the same fracas, though the witnesses examined on behalf of the prosecution would not admit how the injuries on appellants Ramjanam and Ramlakhan were caused, but they have admitted that the injuries to Ramsharnagat were caused by Jia Singh in self-defence after the deceased was assaulted by some of the appellants. Jia Singh further admitted that he after snatching the Lathi of appellant Gena had wielded it 3 or 4 times, suggesting impliedly thereby that appellants Ramjanam and Ramlakhan might have sustained the injuries when Jia was wielding his Lathi 3 or 4 times in self defence. Thus, with regard to the injuries sustained by the three of the appellants, mentioned above the prosecution would plead right of private defence to persons. 18. As for the injuries sustained by the deceased, resulting in his death and the injuries sustained by P.Ws. 8 and 10, the defence would claim that it was during the course of mutual marpit that they sustained injuries and they would also claim right of private defence of property and person. Appellant Ramsharnagat in his report (Ext. B), which he had lodged before the I. O. 15 minutes earlier than the report of Gaya Singh (P.W. 1) had said that the Shisham tree belonged to him and that it was being stealthily carried on a cart by appellants Ramjanam Singh, Mahadeo Singh and Ramlakhan Singh, besides Jogi Paswan and Pundeo Pandit, both acquitted. B), which he had lodged before the I. O. 15 minutes earlier than the report of Gaya Singh (P.W. 1) had said that the Shisham tree belonged to him and that it was being stealthily carried on a cart by appellants Ramjanam Singh, Mahadeo Singh and Ramlakhan Singh, besides Jogi Paswan and Pundeo Pandit, both acquitted. He had further said in the said report that Sia Singh (P.W. 8) and Jia Singh (P.W. 10) both had appeared armed with Lathis and protested to the carrying of the Shisham wood by the aforesaid appellants and Sia assaulted Ramsharnagat with Lathi on his head, when Ramsharnagat ran to Thana to make his report. He however made ho mention of the presence of Sheonandan Singh and the injuries sustained by him nor to the injuries sustained by two other appellants, Ramjanam Singh and Ramlakhan Singh. It may be that in his obvious anxiety, knowing that Sheonandan Singh was already dead, he made no mention about his injuries though it cannot be visualised, why he suppressed also the injuries sustained by the other two appellants on his side. But the fact, on the evidence adduced on behalf of the proscenium read with the aforesaid Ext. B of Ramsharnagat, cannot be doubted that all the six injured persons, including Sheonandan Singh, deceased, received their respective injuries during the course of the same fight. It also becomes admitted by the aforesaid report, Ext. B, that four of the appellants, Ramsharnagat, Ramjanam, Mahadeo and Ramlakhan, were present during the course of the fight. 19. The fact that an occurrence took place in the field of Ramsanehi (P.W. 7) and round about it, is further confirmed by what the I. O. had found at that place, as I have already indicated. Thus, on the evidence, the time and the place of occurrence as set out on behalf of the prosecution, cannot be doubted. It cannot also be doubted that in the fight, Sheonandan received fatal injuries and Sia and Jia as also three of the appellants, namely, Ramsharnagat, Ramjanam and Ramlakhan, received some simple injuries. In that fight the presence of four of the appellants, as mentioned above, was also virtually admitted in the report (Ext. B). As to the presence of all the appellants, there is also the evidence of P.Ws. 1, 2, 3, 8 and 10. 20. In that fight the presence of four of the appellants, as mentioned above, was also virtually admitted in the report (Ext. B). As to the presence of all the appellants, there is also the evidence of P.Ws. 1, 2, 3, 8 and 10. 20. The main question for consideration is, whether the genesis and the manner of the occurrence, as alleged on behalf of the prosecution is true or whether the defence had any right of private defence to property or person or both. 21. The witnesses deposing to the genesis and the manner of occurrence, as set up on behalf of the prosecution, are P.Ws. 1, 2, 3, 8 and 10. As to the presence of P.Ws. 8 and 10 in the fight there can be no doubt, since they had themselves received some injuries as already mentioned. As to the presence of P.Ws. 2 and 3, there may be some doubt, because, their names were not mentioned among the witnesses in the Fardbeyan lodged by P.W. 1, although he admitted having lodged it after having get both these witnesses near the place of occurrence. The informant (P.W. 1) would claim that he was at the time of occurrence n his field, which, as the I. O. had found, was about 300 yards east. The witness on hearing halla and seeing Shisham log being carried on a cart from the Kharhaul of Sheonandan Singh ran to the place of occurrence and it was from a distance of about 7 laggas from it that he could see the whole of the occurrence. Similar is the claim of the other eye-witnesses to the occurrence, and, as I have said, there is no reason to doubt the story that the whole occurrence developed over the log of the Shisham wood that was being carried by the appellants on a bullock-cart. The question is, if the log of wood was the property of the deceased and Jia Singh and Sia Singh and whether it was being stealthily removed by the appellants, or it was the property of the Singh appellants and was being carried lawfully in their own right. 22. The parties by which I mean the deceased and the members of his family on one side and the Singh appellants on the other at one time, held their properties jointly. 22. The parties by which I mean the deceased and the members of his family on one side and the Singh appellants on the other at one time, held their properties jointly. The prosecution case is that there was a partition among the parties a long time back, and each party took separate possession of their ancestral properties. It was as a result of that partition that the prosecution party came in possession of plot No. 87/560 with one Shisham tree standing thereon and the appellants party was given possession of plot No. 87/562, though in that plot also, the deceaseds family had 18 dhurs of their own. The prosecution party further claimed that the share of Kumrain Kuer, after she died years before, devolved on Drigpal Singh, to the exclusion of the branch of the Singh appellants, because at the time of the death of Mt. Kumrain Kuer, Drigpal Singh, being nearer relation, got her properties to tike exclusion of the branch of Singh appellants. The appellants did not dispute the prosecution case of partition but their claim was that the Singh appellants got a share in plot No. 87/560 and that the Shisham tree stood on their share. Thus, each party would claim exclusive possession of the Shisham tree. 23. No documentary evidence was filed on behalf of the prosecution to show how the properties had been partitioned and whether the whole of plot No. 87/560 with the Shisham tree on it was allotted to them. Similarly, the defence also filed no document to show how the partition had been effected and how much of plot No. 87/560 was allotted to them. The Khatian entry indicates that there were two Shisham trees on plot No. 87/560 and the prosecution did not say any thing what became of the other Shisham tree. There is no suggestion made to any of the witnesses even on behalf of the defence as to the other tree, though, Mrs. Lall appearing for the appellants, in course of argument before us, tried to make out a theory that the other Shisham tree must have been cut sometime back on behalf of the prosecution and the tree that was standing was of the share of the Singh appellants. There was however, no such case made out at the trial, not even in the written statement filed on behalf of the appellants. There was however, no such case made out at the trial, not even in the written statement filed on behalf of the appellants. Therein also, it was clearly averred that the Shisham tree in question stood on their share in Kharhaul. On behalf of the appellants, some rent receipts, Exts. A to A/9 were filed and these receipts were proved by Ramsanehi Singh (P.W. 7), one of the landlords. He was the author of receipts Exts. A to A/2 and he proved receipts. Exts. A/3 to A/6 and A/8 to A/9 as having been granted by Ramkheyali Singh. another landlord. Ext. A/7 was granted by Amir Lal Patwari. In these receipts, the area of the holding and the rental were similar. But with the exception of Exts. A/5 and A/6 the other receipts made no mention of the plots constituting the holdings. In Ext. A/5, which was for the year 1362, both plots Nos. 87/560 and 87/562 were mentioned, besides various other plots. But in Ext. A/6, which was for the year 1356 Fasli, there was no mention of plot No. 87/560 in dispute, though plot No. 87/562 was mentioned along with other plots. It would appear, therefore, that in 1356 Fasli, the appellant had laid no claim on plot No. 87/560, otherwise there is no reason why that plot was not mentioned in the earlier receipt (Ext. A/6),. when the other plot 87/562 had been mentioned and that plot according to the prosecution case, had fallen to the share of the Singh appellants. The receipt Ext. A/6 would thus support the prosecution case that plot No. 87/560 was not of the defences share. As to the subsequent receipt of 1362 Fasli, it may be that this plot was shown therein with some ulterior motive for shortly after that, some dispute appeals to have cropped up with regard to some 2 Kathas ghareri land said to have been purchased by both the parties. 24. During the course of trial no claim was set up on behalf of the appellants that the tree in question had been cut on their behalf, although on behalf of the prosecution evidence was led that the tree had been cut on behalf of the deceased and the members of his family in the preceding Chait and that it had been left at the spot for drying. The witness speaking to the cutting of the tree on behalf of the prosecution were P.Ws. 2, 3, 4, 7 and 8, though P.W. 4 had told the I. O. that the tree had been cut only a month before the occurrence, but this discrepancy was not material. The evidence of the other witnesses was consistent that the tree had been cut on behalf of the prosecution party in the preceding Chait. On behalf of the defence, however, no evidence was led, not even any suggestion was made to any of the prosecution witnesses, that the tree had been cut any time on their behalf. It is only in the written statement that such a claim was made that the tree had been cut on their behalf a month before the occurrence. In the circumstances of the case. I have no reason to disbelieve the prosecution case that the tree in question stood on plot No. 87/560, which was in possession of the deceased and the members of his family and that it had beep cut three months prior to the occurrence on behalf of the deceased. It was, therefore, the property of the deceased and the members of his family and the appellants had no right to remove it and as such, they cannot claim any right of private defence of property, when it is said that they were carrying it in their own right or at least in exercise of their bona fide claim to it. The appellants were clearly thieves when they were carrying away the log of the wood. 25. There cannot be any gainsaying that the Singh appellants had never any exclusive claim to the Shisham tree and in the rent receipts, as I have already indicated, plot No. 87/560 containing the Shisham tree, was not shown in Ext. A/6. On the basis of Khatian, however, it can be assumed that the branch of the Singh appellants had one share in the plot and as a matter of that also in the Shisham tree. The share was evidently defined in the Khatian itself. Now even supposing that the plot with the tree was not in exclusive possession of the prosecution party, there can be no doubt that at least 1/3rd share, excluding the share of Kumrain Kuar, about which there was dispute, was surely of their share. The share was evidently defined in the Khatian itself. Now even supposing that the plot with the tree was not in exclusive possession of the prosecution party, there can be no doubt that at least 1/3rd share, excluding the share of Kumrain Kuar, about which there was dispute, was surely of their share. Thus, the prosecution party had at least 1/3rd share in the disputed tree. Assuming that 1/3rd share in the field and the tree was also with the Singh appellants, it can only be said that both parties were co-owners in respect of the Shisham tree. It is an admitted position that the appellants were carrying the log of the wood which did not belong to them in its entirety, since at least 1/3rd share was of the prosecution party. Now a question may arise, if the appellants could be justified in removing the whole of the log when only 1/3rd share of it belonged to them and 1/3rd belonged to the prosecution party. In my opinion there can be theft of even a joint property, if one of the co-owners removes it without even an implied consent of the other co-owner with dishonest intention. Mrs. Lall, however, would contend that there could be no theft of a joint property, if a co-owner acts in good faith in the sense that he had no dishonest intention, but he was removing it in his bona fide belief of the exercise of his own right. In support of this contention she has referred to two Single Judge decisions, one in the case of Choudhary Mehton V/s. The State, Cri. Revn. No. 97 of 1964 decided on the 14th April 1964 (Pat) by Sahai, J., and the other in the case of Ram Naresh V/s. the State, Cri. Revn. No. 1215 of 1959 (Pat) decided by Kanhaiya Singh, J. It is true that in both these cases there was a question of theft of some movable properties of joint owners, but in none of these cases, the question of dishonest intention appears to have been raised. The facts of these cases, have, therefore, no application to the instant case. 26. Mrs. Lall then referred to the decision in Hasni V/s. Emperor, AIR 1927 Lah 650. In that case also there was no element of any dishonest intention, because, the co-owner accused had taken away the joint mare for riding. The facts of these cases, have, therefore, no application to the instant case. 26. Mrs. Lall then referred to the decision in Hasni V/s. Emperor, AIR 1927 Lah 650. In that case also there was no element of any dishonest intention, because, the co-owner accused had taken away the joint mare for riding. Thus, the facts of this case also have no application to the present case. Similarly, in the case of Phul Singh V/s. Emperor, (1913) 18 Ind Cas 146 (All) the landlord, who had cut and removed the crops, cultivated jointly by himself and a non-occupancy tenant, was not found guilty, of theft because the element of dishonest intention was wanting. Mrs. Lall also referred to the decision of S.S. Apparao V/s. B. Lakshminarayana, AIR 1962 SC 586 wherein it was held that "where bona fide claim of right exists, it can be a good defence to prosecution for theft". The principle cannot be doubted. 27. The question in the instant case depends upon whether there was any bona fide on the part of the defence to plead removal of the log of wood. The principle bearing on the question of theft and bona fide has been fully explained by the Supreme Court in the case of K.N. Mehra v State of Rajasthan, AIR 1957 SC 369 . The main element of theft consists of removal even without implied consent, of movable property from the possession of another with a dishonest intention. Dishonest intention consists as defined in S. 24 of the Indian Penal Code, in causing wrongful gain or wrongful loss. In the aforesaid decision the Supreme Court has laid down that a person is said to gain wrongful when such person retains wrongfully, as well us when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept of it of any property, as well as when such person is wrongfully deprived of property". It is clear, therefore, that even a co-owner of a movable property with another, if his share is defined, can be guilty of theft, if he is found to remove the joint property without even an, implied consent, of the co-owner with dishonest intention, that is, with a view to cause wrongful loss to the co-owner and consequently wrongful gain to himself or anybody else. In the instant case, the appellants would be clearly guilty of theft, since they were not in any view of the matter entitled to the whole of the log of wood. At best, they could have their claim to only 1/3rd but another 1/3rd belonged to the prosecution party. The dishonest intention is apparent from the fact that the appellant had tried to remove the log of wood surreptitiously at about 6 in the evening, and they would not leave the log of wood, even when some of the co-owners with their defined share object to the removal In this connection I may refer to the evidence of Rameshwar Prasad Singh (P.W. 6). It appears from his evidence that he had been appointed a Panch between the parties in connection with some dispute relating to 2 Kathas gharari land which each party claimed to have purchased from the widow of one Pahari Singh. The dispute had been referred, out of court, by the parties to the arbitration of P.W. 6. He said that he had asked both the parties to decide the dispute of gharari by the help of Amin arid it was then that Sia was to lift the cut Shisham, referring to the Shisham tree in question. It appears that although the dispute primarily related to gharari land, the question of Shisham tree was also included in the dispute when P.W. 6 had been asked to decide it, and he had asked Sia Singh not to lift the cut Shisham tree. This evidence, would lend support to the prosecution case that the tree had been cut by Sia Singh, for the appellants do not appear to have been forbidden by the Panch to remove the tree. This could be only when the tree had been cut by Sia Singh. Mrs. Lall would however, contend that no ban was placed by the Panch on the appellants to remove the tree, but when once one of the parties claiming the Shisham tree had been forbidden to remove it, there is no reason to think that the other party had been permitted to take it away. It follows that the tree, according to the Panch was not to be removed by either party. It follows that the tree, according to the Panch was not to be removed by either party. It was in spite of the direction of the Panch that the appellants were found taking away the log of Shisham tree, which, as the evidence is, had been cut by the prosecution party. Mrs. Lall has, however, drawn my attention to the evidence of P.W. 2, who said that the appellants were at the time of occurrence claiming the log of wood as their own but their mere claim, which was most flimsy, cannot show their bona fides when they were asked by the members of the prosecution party not to remove the log of wood. The defence, therefore, cannot plead any justification for their act of removal of the tree, even if it be supposed that they had 1/3rd share in it, though my finding is, as I have already indicated, that the whole of the log belonged to and was the property of the prosecution party. In any view of the matter, the appellants were guilty of having committed theft. 28. At this stage, I may refer to a petition filed on behalf of the appellants before us with a prayer to take some additional evidence. It is stated in that petition that in the recent survey operations, an order has been made to record the old plot No. 87/560 with their new plots under a joint khata in the names of some of the appellants and some members of the prosecution party. It is further stated in that petition that in respect of some area acquired by the State under the Land Acquisition Act out of the old plot, an order has been made by the Additional Subordinate Judge holding that both parties have interest in the land in equal shares. But no useful purpose could be served by taking the aforesaid additional evidence, particularly, when the new-record of rights has not been finally published and the order of the Additional Subordinate Judge is post occurrence. It does not relate to the tree in question with which we are mainly concerned in the present action. I have also held that the joint possession of the parties will not after the liability of the defence. I would therefore, reject the petition for taking additional evidence. 29. It does not relate to the tree in question with which we are mainly concerned in the present action. I have also held that the joint possession of the parties will not after the liability of the defence. I would therefore, reject the petition for taking additional evidence. 29. I have held that the appellants were found committing theft of the log of Shisham wood. The members of the prosecution party, namely, the deceased and P.Ws. 8 and 10, were justified in obstructing the removal of the log of wood by the appellants. They had, therefore, right of private defence to property and also to person, if they had reason to apprehend any violence at the hands of the appellants, who were removing the log. The appellants were as the evidence is, armed with Sipahas and Lathis. In the very nature of things, Sipahas could be on the cart and Lathis must have also been taken to lift the log of wood on the cart. The I. O. had also found some Lathis and Sipahas present at the scene when he had visited it. Since the appellants were carrying log of wood, armed with Sipahas and Lathis, it was natural that they would try to assault those who obstructed them. According to the report (Ext. B) Jia Singh and Sia Singh alone had appeared at the scene with Lathis, whereas the appellants were at least seven in number. Of course, Sheonandan must also have gone along with Jia and Sia. Thus, the parties were divided into the camp of three to seven and it is not possible to conceive that the prosecution party could have been the aggressors. I have no reason, therefore, to disbelieve the evidence, as led on behalf of the prosecution, that the appellants were not only thieves but also aggressors in launching assault on Sheonandan, Jia and Sia. It is true that they also must have retaliated by inflicting injuries on three of the appellants but, in the circumstances they were justified to do so. 30. The next question for consideration is as to the offence the appellants can be found guilty of. It is true that they also must have retaliated by inflicting injuries on three of the appellants but, in the circumstances they were justified to do so. 30. The next question for consideration is as to the offence the appellants can be found guilty of. They had surely constituted themselves into an unlawful assembly, being more than five in number, with the common object of committing theft in respect of the log of wood and also to assault those, who came to obstruct the removal of the log, as was the charge. Appellants Mahadeo and Amir could be guilty under S. 323, for having assaulted Sia Singh (P.W. 8). Appellants Chandra Shekhar and Gena could be guilty under S. 328, Penal Code, for having assaulted Jia Singh (P.W. 10). 31. As to the charge under S. 302, Penal Code against Ramsharnagat Singh, the evidence cannot be considered to be definite that it was he who caused the fatal blow to the deceased by giving him one or two blows on the head. The Fardbeyan (Ext. 6) lodged by P.W. 1 gave no such indication. P.Ws. 2 and 3, who were examined on the following day, also did not tell the police that it was Ramsharnagat who had given fatal blows by hitting the deceased with lathis on his head. It was only P.W. 8 and 10, who came with such a claim, but they were examined by the I. O. two days after the occurrence, on the plea that they had on receipt of their injuries, become unconscious. The story of their having remained unconscious for these two days may or may not be correct, since the doctor (P.W. 11) had made no note in the injury certificates of their having remained unconscious. In the very nature of the incident also it could not be possible to mark accurately that the fatal blow or blows were given by Ramsharnagat, when, at least four persons, were assaulting the deceased with similar weapons as Ramsharnagat had. In this view of the matter, the fatal blow or blows to the deceased cannot be attributed with any amount of precision to appellant Ramsharnagat. I would not therefore, find him guilty of the charge of murder, when the assailants of the deceased were about four in number. 32. In this view of the matter, the fatal blow or blows to the deceased cannot be attributed with any amount of precision to appellant Ramsharnagat. I would not therefore, find him guilty of the charge of murder, when the assailants of the deceased were about four in number. 32. All the seven appellants were among the members of the unlawful assembly and while assaulting the deceased, they must be deemed to have knowledge that at least grievous hurt could be caused to some one on the side of the prosecution, as indeed some grievous hurts were caused to the deceased, when the four of the appellants charged him with their lathis. The other three, who did not actually participate in the actual assault on the deceased would also be guilty of their constructive liability for the same offence. I would, therefore, find all the seven appellants guilty under S. 325 read with S. 149, Penal Code, and not under S. 326, as found by the learned trial Court, since none of the members of the unlawful assembly had earned any deadly weapon. I would, therefore, alter the conviction of all the appellants to one under S. 325 read with S. 149. Penal Code, setting aside the conviction and the sentence of appellant Ramsharanagat Singh under S. 302 of the Code. I would sentence all the seven appellants to five years rigorous imprisonment each, the sentence as was awarded in the six appellants. 33. With the modification indicated above, the appeal is dismissed. 34. UNTWALIA, J. : I agree.