Judgment Tarkeshwar Nath, J. 1. All the appellants have been convicted under Sec.302/149 of the Indian Penal Code for the murder of Ramdhari Singh and sentenced to rigorous imprisonment for life each. They have been convicted again under Sec.302/149 of the Indian Penal Code for the murder of Ramswarup Singh and sentenced to rigorous imprisonment for life each Appellants Mathu Pandey alias Maiukdhari Pandey Chandradeo Pandey Kundal Pandey Davanand Pandey. Nasir Main and Muneshardhar Dubey alias Butan Dubey have been convicted under Sec.148, Indian Penal Code, and sentenced to rigorous imprisonment for one year each. The remaining appellants Bife Bhogta, Thegu Bhogta, Nageshwardhar Dubey and Uma-shankar Dhar Dubey have been convicted under Sec.147, Indian Penal Code, and sentenced to rigorous imprisonment for 6 months each. Appellants Bife Bhogta and Thegu Bhogta have been further convicted under Sec.323, I. P. C. and sentenced to rigorous imprisonment for 6 months each. The sentences of each appellant are to run concurrently 2. The case of the prosecution was that village Phatpani also known as Goniyari Kala, was within Nagaruntari estate belonging to Bhaiya Rudra Pratap Deo and there were bakasht and ghairmazrua lands in village Phatpani. There were a number of mahua trees on those lands. Bhaiya Rudra Pratap Deo (hereinafter to be referred as former Bhaiya Saheb for the sake of brevity) died on 30-9-1945. After his death, his son Bhaiya Ramanuj Pratap Deo became the proprietor and he will be referred to hereinafter as present Bhaiya Saheb for the sake of brevity. It was alleged that the present Bhaiya Saheb was in khas possession of the bakasht lands and the mahua trees in the year 1962 and on 104-1962 at 3 p. m. Bindeshwari Singh. an employee of the present Bhaiya saheb, was getting mahua fruits collected on behalf of the proprietor in the field known as Barmania field in village Phatpaui. This field was in the north-estern side of that village. Dhaneshwari, Deokalia and Dewal Mahto (P Ws 1, 2 and 3) were collecting rnahua at that place. At another place on the same field and at the same time. Rajmatia, Udal Singh. Border Singh. Meglum Chamar, Ram Dihal Kharwar, Ram Toral Kharwar. Manan Singh and Jhagar Kharwar (P Ws 4, 6, 7, 8, 9, 10, 11 and 13) also were collecting mahua fruits on behalf of the proprietor Ramswarup Singh and Ramdhari Singh. At another place on the same field and at the same time. Rajmatia, Udal Singh. Border Singh. Meglum Chamar, Ram Dihal Kharwar, Ram Toral Kharwar. Manan Singh and Jhagar Kharwar (P Ws 4, 6, 7, 8, 9, 10, 11 and 13) also were collecting mahua fruits on behalf of the proprietor Ramswarup Singh and Ramdhari Singh. employees of the present Bhaiya Saheb were supervising the collection of mahua fruits Bindeshwari Singh (P W 33) heard a noise coming from the south-western side to the effect "run. run. we are being killed." He and Dewal Mahto rushed in that direction and he noticed that these appellants had surrounded Ramswarup Singh and Ramdhari Singh and were assaulting them with bhalas. garassas and lathis Dewal Mahto requested the appellants not to assault Ramdhari and Ramswarup but Bife Bhogta and Thegu Bhogta assaulted him as well with lathis. Mathu Pandey Kundal Pandey and Muneshardhar Dubey were armed with garassas. Chandradeo Pandey Dayanand Pandey and Nasit Mian were armed with bhalas whereas the remaining appellants were armed with lathis. Ramswarup Singh and Ramdhari Singh fell down and then the appellants fled away Ramdhari Singh died on the spot whereas Ram Swarup Singh was gasping for breath RamSwarup Singh was carried to the house of Butan Singh for being taken to the hospital but meanwhile he also expired Karorpati Shukla (P. W 29) another employee of the proprietor, also arrived at the time of the occurrence. The cause of the dispute was that Chandradeo Pandey (appellant No. 2) was litigating with the present Bhaiya Saheb for some years and he wanted to take possession of the lands of Bhaiya Saheb by force. Village Phatpani was at a distance of 14 miles from police station Nagaruntari. Bindeshwari Sinha (P. W. 33) lodged a first information report (Ext. 17) at 8 p. m. on 10-4-1962 in police station Nagaruntari against the 10 appellants and it was recorded by Gaya Prasad Singh, Officer-in charge (P. W 35). Appellants 1 to 7 were residing in village Phatpani. but appellants 8 9 and 10 were residents of village Achla Nawadih Police station Garhwa. 3. Gaya Prasad Sinha (P. W. 35) look up the investigation and reached the place of occurrence at 6 a. m. on 11-4-1962. He found the dead body of Ramadhari Singh lying there and he held an inquest and prepared a report (Ex. 18). but appellants 8 9 and 10 were residents of village Achla Nawadih Police station Garhwa. 3. Gaya Prasad Sinha (P. W. 35) look up the investigation and reached the place of occurrence at 6 a. m. on 11-4-1962. He found the dead body of Ramadhari Singh lying there and he held an inquest and prepared a report (Ex. 18). He found blood marks on the ground at two places and there was a pair of blood-stained canvass shoes. He further found a broken portion of a bhala, a portion of another bhala, one lathi and two pieces of another lathi. He took charge of these articles. He then went to the house of Butan Singh (P W 22) and noticed the dead body of Ramswarup Singh lying there. He prepared another inquest report (Ext 18/1) He sent those two dead bodies to Garhwa Hospital through constable Chand Govind Singh (P. W. 24) for post-mortem examination. He found that the place of occurrence lay in village Phatpani and that place was in the eastern side of that village. He noticed two palas trees to the north of the place where the dead body of Ramdhari was lying There was a mahua tree to the north of that dead body There was another mahua tree to the west of that dead body. The place where the dead body of Ramdhari was lying was a fallow land. According to P W 35. the plot number of the fallow land was 1308 of khata No. 92. but subsequently the place of occurrence was inspected and measured by Bashir Ahmad and Ramnarain Sah (P Ws 26 and 28) and they found that the occurrence took place in plot No 1311 of khata No 3 in village Phatpani The investigating officer (P W 35) found footprints of many persons at the place of occurrence. The nearest house to the place of occurrence was at a distance of 500 yards. He examined some witnesses in course of the investigation and made over charge of this case to another officer S.P. Singh (P W 31) on 5-5-1962. It appears, however, that P. W 35 again took charge of this case from P W 31 on 5-8-1962 and ultimately he submitted chargesheet against the appellants. He examined some witnesses in course of the investigation and made over charge of this case to another officer S.P. Singh (P W 31) on 5-5-1962. It appears, however, that P. W 35 again took charge of this case from P W 31 on 5-8-1962 and ultimately he submitted chargesheet against the appellants. He had investigated the counter case as well started on the first information report (Ext 17/1) of Mathu Pandey (appellant No 1) drawn up at 9 a.m on 14-4-1962 against Bindeshwari Singh (P W 33) and some other prosecution witnesses of the present case hut he submitted a final report in that case. 4. The appellants were then committed to the Court of Session for trial and there were two charges against them under Sec.302/149. Indian Penal Code, lor the murder of Ramadhari Singh and Ramswarup Singh separately. Bife Bhogta and Thegu Bhogta, Nageshwardhar Dubey and Umashankar Dhar Dubey (appellants 6, 6, 9 and 10) were charged under Sec.147, whereas the remaining appellants were charged under Sec.148. Bife Bhogta and Thegu Bhogta were further charged under Sec.323, Indian Penal Code, for voluntarily causing hurt to Dewal Mahto (P. W. 3). 5. The appellants pleaded innocence and alleged that the case of the prosecution was false. Dayanand Pandey stated, while being examined under Sec.342 of the Code of Criminal Procedure that he had gone to the house of his father-in-law and he returned home on the 17th after the occurrence. Kundal Pandey stated that he had gone to the house of hit sister. Umashankar Dhar Dubey stated that he was at Garhwa from 4-4-1962 to 18-4-1902 for appearing at the practical examination of Geography (Higher Secondary examination) and was not in village Phatpani at the time of the occurrence. It appears from the evidence of the Investigating Officer (P. W. 35) that on the statement of Saligram Pandey, son of Mathu Pandey (appellant No. 1). there was a station diary entry No. 192 (Ext. 22) on 11-4-1962 (at 3.45 a.m.). After perusing this entry, P. W. 36 went to Nagaruntari hospital at 7.30 a.m. and he examined Mathu Pandey in the hospital. He recorded the fardbeyan of Mathu Pandey at 8 a.m. on 14-4-1962. there was a station diary entry No. 192 (Ext. 22) on 11-4-1962 (at 3.45 a.m.). After perusing this entry, P. W. 36 went to Nagaruntari hospital at 7.30 a.m. and he examined Mathu Pandey in the hospital. He recorded the fardbeyan of Mathu Pandey at 8 a.m. on 14-4-1962. Mathu Pandey made out that at 3 p.m. on 10-4-1962, while he was returning home after getting the gram crops of plot No. 716 harvested he noticed a mob consisting of the employees of present Bhaiya Saheb, such as, (1) Bhuneshwar Singh. (2) Jokhulal, (3) Gogri Singh. (4) Ranbadan Singh, (5) Bindeshwari Singh, (6) Karorpati Shukla, eleven pahalwans (wrestlers), whom he could not identify by name and 15 to 20 tenants of village Phatpani, including Dewal Mahto, Udal Singh, Bandhu Kharwar. Border Kharwar, Manan Kharwar. Ramprit Mistry, Mahru Kharwar, Dharu Kharwar and a few others at distance of a few bamboos. They told him that he was taking the gram crops of present Bhaiya Saheb after getting the same harvested but he replied that the said crops belonged to him, as the former Bhaiya Saheb had given the land in question to him. Jokhulal ordered his men to assault Mathu Pandey. He was then assaulted by lathis, garasas and bhalas. One of them assaulted him on the right leg with a garassa and he fell down and became unconscious. On the basis of this fardbeyan, P. W 35 drew up a first information report (Ext. 17/1) at 9 a.m. on 14-4-1962. 6. The learned Sessions Judge believed the evidence adduced on behalf of the prosecution and convicted and sentenced the appellants as stated above. Hence, they have preferred this criminal appeal. 7. XXX 8. XXX 9. XXX 10. XXX 11. XXX 12. XXX 13. On a consideration of the evidence and the circumstances, I am of the opinion that Chandradeo Pandey (appellant No. 2) being the thicadar of the bakasht land (plot No, 1311) even during the period 1365 to 1369 Fs. was in possession of the Mahua trees on that land and he was entitled to the mahua fruits thereof on the date of occurrence. The case of the prosecution that the present Bhaiya Saheb was in possession of those trees and that he was entitled to get the Mahua fruits collected cannot be accepted as correct and the evidences adduced in this respect is not at all reliable. 14. The case of the prosecution that the present Bhaiya Saheb was in possession of those trees and that he was entitled to get the Mahua fruits collected cannot be accepted as correct and the evidences adduced in this respect is not at all reliable. 14. Next question for consideration is whether the common object of the charge under Sec.302/149, Indian Penal Code, against these appellants has been proved. The relevant words of the charge are as follows: "That you, on or about the 10th day of April 1962 at village Phatpani also known as Ganiari Kalan P S. Nagar. Dist. Palamau were members of an unlawful assembly in prosecution of the common object of which, viz., in forcibly preventing Ramdhari Singh and Ramswarup Singh from collecting mahua from Barmanla field of village Phatpani and if necessary in causing the murder of the said two persons, for the said purpose some of you caused the murder of Ram Swarup Singh and you are thereby Under Sec.149 of the I. P. C. guilty of causing the said offence of murder, an offence punishable Under Sec.302 of the Indian Penal Code.. .." There was a similar charge against the appellants relating to the murder of Ramdhari Singb as well. The aforesaid finding that Chandradeo Pandey was in possession of the mahua trees in question and that he had a right to the fruits thereof changes the complexion of the prosecution case and it cannot be held that when the appellants went to prevent Ramdhari Singh and Ram Swarup Singh from collecting mahua fruits they were members of an unlawful assembly or that they had an unlawful object in view. Appellant No. 2 being in possession he had a right to defend his property and prevent the unlawful collection of the mahua fruits by the members of the prosecu tion party. The position thus was that the appellants going upon the land in question and the resistance offered by them to the collection of the Mahua fruits were not illegal in any manner. The position thus was that the appellants going upon the land in question and the resistance offered by them to the collection of the Mahua fruits were not illegal in any manner. Learned counsel for the State urged that even if the appellants were entitled to go on that land and prevent the collection of the Mahua fruits they were not entitled to cause the murders and they had the other common object of causing the murders of Ramdhari Singh and Ramswarup Singh The main and principal common object of the charge was to forcibly prevent Ramdhari Singh and Ramswarup Singh from collecting, mahua from Barmania field and the other common object of causing the murder if necessary was the subsidiary one. If the principal common object is not established, the appellants would be protected by the law of private defence. In Kapil-deo Singh V/s. The King. AIR 1950 FC 80 a charge under Section 147. Indian Penal Code, was framed in the following manner: "That you, on or about the 25th June 1947 at B. Sakaria P. S. Sandes were members of an unlawful assembly and in prosecution of common object of such assembly, viz., in dispossessing Chulhan Tewari and to assault and murder Nasiba Ahir and others and committed the offence of rioting and thereby committed an offence punishable under Sec.147. Indian Penal Code. . . ." After referring to that charge, their Lordships observed as follows: "By having the charge framed in this manner, the prosecution clearly took upon itself the onus of proving that Chulhan Tewari was in possession of the disputed land, and there can be no doubt that of the three items set out in the charge as constituting the common object of the alleged unlawful assembly, dispossession of Chulhan Tewari, the complainant, was the most important one the other objects stated being more or less subsidiary to the former The most important part of the charge therefore would have failed if the appellant had been found to be in possession and such a finding would have also seriously affected the case of the prosecution with regard to the second common object, viz., to assault, because it would have at once given rise to the question as to whether the accused should be held to be protected by the law of private defence. The position thus is that the principal common object of these charges under Sec.302/149 not having been established the appellants had the right of private defence to protect the pro-perty (Mahua fruits) which was in possession of Chandradeo Pandey (appellant No. 2) and their common object was not to cause the two murders. 15. Sec.103 of the Indian Penal Code provides as follows: "The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: xx xx xx xx Fourthly, theft, mischief or house-trespass, 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" This fourth clause deals particularly with cases where the act which causes the exercise of the right of private defence amounts to theft, mischief or house-trespass under such circumstances which reasonably may cause apprehension that death or grievous hurt would be the consequence, if such right of private defence would not be exercised In the present case, mahua fruits had been collected by some of the prosecution witnesses as labourers ot Bhaiya Saheb and this was being done under the direction and supervision of Ramdhari Singh and Ramswarup Singh. This collection amounted to theft, but the point to be consider-ed is as to whether theft was committed in such circumstances which reasonably caused apprehension that grievous hurt would be the consequence, if the right of private defence was not exercised. 16. Learned counsel for the State urged that, in any event the appellants had exceeded the right of private defence and they went not at all justified in inflicting grievous injuries and committing the two murders. It appears from the evidence of Rajmatia (P. W. 4) that the two deceased Ramdhari and Ramwarup had arms with them, meaning thereby, that Ramdhari had a danta whereas Ramswarup had a tangi. The tangi had a handle which was about 1 cubit in breadth. Border Singh (P. W. 7) as well stated that Ramdhari had a danta while Ramswarup had a tangi with him. The tangi had a handle which was about 1 cubit in breadth. Border Singh (P. W. 7) as well stated that Ramdhari had a danta while Ramswarup had a tangi with him. These two witnesses have further stated that appellants Mathu and Chandradeo had exchange of words with Ramdhari and Ramswarup and when Mathu and Chandradeo assaulted Ramdhari and Ramswarup they tried to ward off the blows on them and save themselves with the help of the danta and tangi. It appears that appellant Mathu had received injuries and these injuries were noticed by Sheoji Singh (P. W. 36), literate constable of Nagaruntari Police station, when he recorded the station diary entry (Ext. 22) at 3-45 a.m. on 11-4-1962. According to the station diary entry, Mathu Pandey had (1) one injury on the right side of the head with dried up blood, (2) one injury on the middle of the head with dried up blood, (3) one injury on the left side of the head with dried up blood, (4) one bleeding cut injury near the knee of the right leg, (5) ecchymosis on the middle of the back, caused by lathi and the injured was in an unconscious condition. P. W. 36 deposed that Mathu Pandey was not in a position to speak on account of the injuries and so he could not question him. He prepared the injury report and sent Mathu Pandey to the Hospital at Nagaruntari. The Medical Officer, Singheshwar Missir (P. W 12) stated at the trial that Mathu was brought to Nagaruntari dispensary in the night between 10th and 11th April 1962 and was kept there as an indoor patient. According to him, Nathu was brought in an unconscious condition and he regained consciousness after a few days. The Sub-Inspector of Police arrested Mathu Pandey on 14-4-1062 and then took him out of the dispensary His evidence further is that he examined Mathu Pandey and sent a copy of his report to the said police officer He could not remember in absence of the report as to how many injuries Mathu Pandey had. The Sub-Inspector of Police arrested Mathu Pandey on 14-4-1062 and then took him out of the dispensary His evidence further is that he examined Mathu Pandey and sent a copy of his report to the said police officer He could not remember in absence of the report as to how many injuries Mathu Pandey had. Learned counsel for the appellants submitted that a petition was filed on their behalf in the trial Court on 6-7-1963 calling for the injury report sent by the doctor (P W. 12) to the police officer and some other documents as well but the prosecution withheld the said injury report and other documents causing a great prejudice to the appellants It appears that the learned Sessions Judge made a note of this petition and passed the following order on 6-7-1963: "Accused persons have filed another petition asking the Court to direct the prosecution to produce the documents noted in this petition. A copy of this petition has already been given to the Public Prosecutor. The P- P. should direct the I. O. to produce the documents mentioned in the petition on the date fixed for the trial of this case. Since this petition has been filed at a very late stage, the accused persons should note that if the documents are not produced on the date fixed there will not be any adjournment". The trial commenced on 17-7-1963 and continued till 14-8-1963 when the arguments were heard in full. The injury report was not produced by the prosecution in spite of the said order and there is much force in the contention that the prosecution had withheld it and Mathu Pandey had received severe injuries. It appears from the evidence of the doctor (P. W. 12) himself that Mathu Pandey was unconscious for a few days and he was not able to speak. The learned Sessions Judge, while dealing with the injuries of Malhu Pandey observed that it was just possible that Mathu had sustained some injuries while Ramdhari and Ramswarup were trying to save themselves with their respective weapons and that if Mathu had been assaulted in the manner alleged by him it was highly improbable that he would make so much delay in lodging a first information report. He further observed that neither Chandradeo nor the sons of Mathu Pandey took the earliest possible opportunity of lodging information at the police station and their conduct was not consistent with their defence I do not find any justification for this comment, inasmuch as the occurrence took place at 3 P.M. on 10-4-1962 and within about 12 hours Mathu Pandey was carried by his son to the police station at a distance of 14 miles on a khatoli (planquin) and P. W. 36 as well found that Mathu Pandey was not then in a position to speak due to his injuries. In these circumstances, it will be a fair inference in this case that Mathu Pandey had received severe injures and had become unconscious on account of the assault committed on him by the lathi and tangi of Ramdhari and Ramswarup and it was not a case of the latter two only warding off the blows It was put to the first informant Bindesh-wari Singh (P. W. 33) that he and others had assaulted Mathu Pandey and Mathu Pandey had become unconscious but he denied this suggestion Learned counsel for the State urged that the case of the appellants (as made out by Mathu Pandey) was that Mathu Pandey was assaulted elsewhere while he was returning home after getting the gram crop harvested; in other words, according to Mathu Pandey he was not assaulted in the occurrence on plot No. 1311 and as such there was no obligation on the prosecution to explain the injuries on Mathu Pandey. It appears, however, from the evidence of P. Ws. 4 and 7 themselves that Ramdhari and Ranswarqp had used their danta and tangi to ward off the blows of Mathu Pandey. There can thus be no doubt that Mathu Pandey received injuries in this occurrence on plot No. 1311. Learned counsel for the State pointed out that the labourers who had gone to collect the Mahua fruits were in two batches, One batch consisted of P. Ws. 1, 2 and 3 and they were in the north-eastern portion of plot No. 1311. P. W 33 as well happened to be there. The other batch consisted of P. Ws 4, 6. 7, 8. 9, 10, 11 and 13 and they were in the southern portion of the very same plot The supervision was by Ramdhari and Ramswarup. 1, 2 and 3 and they were in the north-eastern portion of plot No. 1311. P. W 33 as well happened to be there. The other batch consisted of P. Ws 4, 6. 7, 8. 9, 10, 11 and 13 and they were in the southern portion of the very same plot The supervision was by Ramdhari and Ramswarup. It appears from the evidence of Rajmatia (P. W. 4) that Ramsarup and Ramdhari were at a distance of only 30 to 40 steps from her and others Meghan Chamar (P. W 8), husband of P. W. 4, also stated that Ramdhari and Ramswarup were about 40 or 50 steps from him and others. The position thus was that the prosecution party included the labourers, the employee (P W 33) and the two deceased Ramdhari and Ramswarup and consisted of 14 persons in all and two out of them, namely, Ramswarup and Ramdhari had a tangi and danla respectively The collection of Mahua fruits was going on and this was noticed by Chandradeo Pandey and the other appellant In a situation like this, the appellants were entitled to go on the said land and the evidence indicates that when they went therein there was exchange of words between Ramdhari and Ramswarup on one hand and Mathu Pandey and Chandradeo Pandey on the other with regard to the collection of mahua fruits. Thereafter the circumstances indicate that Mathu Pandey was a victim of assault and he received multiple injuries. In my opinion, the appellants have sufficiently made out that the theft of the mahua fruits was committed under such circumstances which reasonably caused an apprehension that grievous hurt would be the consequence if the right of private defence was not exercised. It was held in Ramras Mohton V/s. The King. ILR 26 Pat 550: (AIR 1949 Pat 61) that the fourth clause of Section 103. It was held in Ramras Mohton V/s. The King. ILR 26 Pat 550: (AIR 1949 Pat 61) that the fourth clause of Section 103. Indian Penal Code, dealt specifically with cases where the act which caused the exercise of the right of private defence amount ed to theft, mischief or house trespass and this clause really meant that when the act which amounted to theft, mischief or house-trespass was such as per se to cause a reasonable apprehension that death or grievous hurt would be the result, then the causing of death in order to prevent the commission of such act was justified, but it did not apply when the apprehension of death arose by reason of intervention of the person exercising the right of private defence. 17. Learned counsel for the State contended that the onus lay on the appellants in the present case to make out that they had a right of private defence and that it was not exceeded, but they have failed to discharge this onus. He pointed out that view taken in Narayan Raut V/s. Emperor, AIR 1948 Pat 294 that the quantum of proof required under Sec.105. Evidence Act, was not proof beyond reasonable doubt and that the accused need merely make out a prima facie case to satisfy the Court of the probability of the defence version was not accepted in a later decision of this Court in Brindaban Prasad V/s. The State, AIR 1964 Pat 188. In this later decision, their Lordships accepted the following view taken by Dhavle, J. in Raghunath Gope V/s. Emperor. AIR 1941 Pat 175: "There is no question in such cases--or in any criminal case--of the accused being required to prove his innocence The issue in such cases is whether the accused is to be convicted, and he can only be convicted if he is proved to be guilty, and not merely because he falls to establish his innocence.... .. AIR 1941 Pat 175: "There is no question in such cases--or in any criminal case--of the accused being required to prove his innocence The issue in such cases is whether the accused is to be convicted, and he can only be convicted if he is proved to be guilty, and not merely because he falls to establish his innocence.... .. .If any explanation that the accused chooses to give is not proved beyond doubt, he cannot claim to be Innocent; but even so, should the explanation throw any reasonable doubt on the prosecution story, he would be entitled to an acquittal, not Indeed because he has proved the facts and circumstances referred to (for example) in Sections 105 and 106, Evidence Act, but because the prosecution has failed to prove its story and establish the guilt of the accused beyond reasonable doubt" Relying on this view, their Lordships observed in Brindaban Prasads case, ( AIR 1964 Pat 138 ) that where the accused failed to establish the explanation which he had given or the exemption on which he relied to establish his innocence the matter might be considered with the rest of the evidence to find out whether be was guilty or not Their Lordships relied on the case of K.M. Nanavati V/s. State of Maha-rashtra. AIR 1962 SC 605 as well and referred to a passage from page 618. There has been a recent decision of the Supreme Court with regard to the real scope of Sec.105 of the Evidence Act in the case of Dahyabhai Ch-haganbhai V/s. State of Gujarat. AIR 1964 SC 1563 Subba Rao J observed as follows. AIR 1962 SC 605 as well and referred to a passage from page 618. There has been a recent decision of the Supreme Court with regard to the real scope of Sec.105 of the Evidence Act in the case of Dahyabhai Ch-haganbhai V/s. State of Gujarat. AIR 1964 SC 1563 Subba Rao J observed as follows. "Under Sec.105 of the Evidence Act, read with the definition of shall presume in Sec. 4, thereof, the Court shall regard the absence of such circumstances as proved unless after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them The accused has to satisfy the standard of a "prudent man" If the material placed before the Court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of prudent man the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Sec.299 of the Indian Penal Code. If the judge has such reasonable doubt he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity." The position thus is that the special burden is on the accused to prove the existence of circumstances bringing his case within any of the general exception in the Indian Penal Code. It is open to the accused to adduce evidence for establishing those circumstances, but even if he fails to do that he can still show from the evidence adduced by the prosecution itself that the circumstances were such which brought his case within one of the general exceptions laid down in the Indian Penal Code. In other words, the accused can point out to the Court the proper materials justifying his action and raising a reasonable doubt with regard to the truth of the prosecution case. In the light of these principles, the case of the appellants has to be considered and it can be summarised in the following manner: (a) Chandradeo Pandey (appellant No. 2) being the thicadar at the relevant time was in possession of the mahua trees and be was entitled to the fruits thereof. (b) The members of the prosecution party had no right to collect the mahua fruits on the date of occurrence. (c) The members of the prosecution party committed theft and two of them were armed witb danta and tangi respectively. (d) Ramdhari and Ramswarup (two members of the prosecution party) seemed to have caused severe injuries to appellant Nathu Pandey. (e) Theft of the mahua fruits was committed under such circumstances as reasonably caused apprehension that grievous hurt would be the consequence if right of private defence would not be exercised. In view of all these features, the appellants have sufficiently made out that they had a right of private defence and they did not exceed it in causing grievous hurt either to Ramdhari or Ramswarup and simple hurt to Dewal Mahto (P W. 3) The evidence of P. Ws 4 and 7 that Ramdhari and Ramswarup used their weapons only to ward off the blows and save themselves cannot be accepted as correct and the facts and circumstances justify the inference that they had caused multiple injuries on the person of Mathu Pandey Accordingly, the manner of occurrence as alleged by the prosecution is not true and there is a considerable doubt about the guilt of the appellants. 18 Learned counsel for the State submitted alternatively that even if the common objects of the charges under Sec.302/149 of the Indian Penal Code were not established the appellants could be held guilty under Sec.302/84 of the Code. He referred to Gurdatta or of Ramdhari. 18 Learned counsel for the State submitted alternatively that even if the common objects of the charges under Sec.302/149 of the Indian Penal Code were not established the appellants could be held guilty under Sec.302/84 of the Code. He referred to Gurdatta or of Ramdhari. The person or persons who caused the two deaths no doubt exceeded the right of private defence, but the identity of that assailant cannot be ascertained in this case, as the evidence has been adduced in a general manner that subsequently all the accused surrounded Ramdhari and Ramswarup and began to assault them with their respective weapons. The position thus is that in absence of satisfactory proof as to who was responsible for the fatal blow given either to Ramswarup or Ramdhari no accused can be held to be guilty in respect of those blows. In Ambika Singh V/s. Emperor, ILR 1 Pat 212: (AIR 1922 Pat 498) the five appellants were convicted under Sec.147 of the Indian Penal Code on a charge of rioting with the common object of assaulting one Balbhadra Singh Three of them, Ragho Singh, Harihar Singh and Mutru Singh, were also convicted under .Sec.323 in respect of hurt caused to certain persons. The case of the prosecution was that in the evening of 12th of June about 50 or 60 persons went to the house of Balbhadra Singh and an altercation took place with the result that Balbhadra was struck on the head a severe blow which caused his death. Certain other persons also received slight injuries The finding of the learned Sessions Judge did not support the prosecution as regards the occasion of the assault, and he found that Kirpal Singh, one of the accused, an old man of 65, had gone to invite Balbhadra to dinner on some social occasion. There was a question of outcasting and taking back into caste on which Balbhadra differed from Kirpals view. Accordingly. There was a question of outcasting and taking back into caste on which Balbhadra differed from Kirpals view. Accordingly. Balbhadra refused the invitation, whereupon there was an altercation which led to Balbhadras attacking Kirpal Singh and inflicting two injuries upon him with a stick Kirpal cried out for help and a tumult of people came, and Balbhadra received a fatal injury It was urged that, on those facts, there was no common object to assault Balbhadra; that the object of the accused was to rescue Kirpal Singh; and that if any of them in the course of effecting that object inflicted grievous injuries he was answerable for the injuries he caused, but the assembly did not become thereby an unlawful assembly. This contention was accepted. Excessive force was no doubt used by some persons but it could not be ascertained on the evidence as to who had caused the injury to Balbhadra Singh. It was held that the mere fact that Balbhadra Singh was fatally hurt by some unascertained persons could not be a ground for convicting all the members of the assembly for rioting. The convictions for rioting under Section 147 were set aside. In Suba Ahir V/s. Emperor. AIR 1927 Pat 27 as well it was held that if someone or more of the accused exceeded the right of private defence, unless those individuals could be identified the mere presence of the accused at or near the spot was not sufficient to bring home to them guilt for the acts of others who had exceeded their rights. 19. Learned counsel for the appellants referred to Ram Autar V/s. The State, AIR 1984 All 771 in support of the contention that the provisions of Sec.34 of the Indian Penal Code could not apply to the facts and circumstances of the present case. The circumstances in that case were that a body of persons armed with lathis and accompanied with bullocks and a plough were going with the avowed object of upturning the crop which had previously been sown by the appellants. There was no doubt about their intention and is a matter of fact they admitted that they were going to commit the very act which the accused apprehended. There was no doubt about their intention and is a matter of fact they admitted that they were going to commit the very act which the accused apprehended. There was no time for having recourse to lawful authorities because the police station was five miles away in those circumstances, the restriction imposed by Section 99, Indian Penal Code did not come into play. While the appellants were asserting their right and protecting their property they were doing a perfectly legitimate act and the assembly was not an unlawful assembly. It was held that the person from amongst the appellant who exceeded that right and gave the blow which caused Shankers death did exceed that right but it was his individual act and he alone was liable for the consequences thereof. There was no evidence whatsoever to fix the identity of that individual and the result was that the Court could not convict anyone of the appellants for an offence under Sec.304, Indian Penal Code. There being no unlawful assembly the provisions of Sec.149. Indian Penal Code, could not be invoked so as to make the persons who did not give any blow vicariously liable for the acts of their comrades. It was further held that Sec.34, Indian Penal Code as well did not apply, because there was no prearranged plan and all the appellants were given the benefit of doubt. The position in the present case is similar for application of Sec.34, it was necessary that each appellant had the common intention of murdering Ramdhari Singh and Ramswaroop Singh. In the present case the appellants had gone to prevent the collection of mahua fruits and their intention was not to murder one or the other. It appears from the evidence of Rajmatia (P. W 4) and Border Singh (P. W. 7) that after the falling down of Ramdhari and Ramswarup the appellants fled away and there was no further assault. On a consideration of these circumstances, I am of the opinion that the provisions of Sec.34 cannot be applied for convicting these appellants 20. It appears from the evidence of Rajmatia (P. W 4) and Border Singh (P. W. 7) that after the falling down of Ramdhari and Ramswarup the appellants fled away and there was no further assault. On a consideration of these circumstances, I am of the opinion that the provisions of Sec.34 cannot be applied for convicting these appellants 20. Learned counsel for the State submitted further that appellants 5, 6, 9 and 10 were charged under Sec.147 and the remaining appellants under Sec.148 of the Indian Penal Code and the common objects of those charges were to assault Ramswarup Singh and Ramdhari Singh He contended that the trial Court had rightly convicted the first group (appellants 5, 6, 9 and 10) under Sec.147 and the remaining appellants under Sec.148. This contention cannot be accepted as 1 have already indicated that the appellants went there to prevent the collection of mahua fruits That being so, they cannot be held to be members of an unlawful assembly having an unlawful object or of Ramdhari. The person or persons who caused the two deaths no doubt exceeded the right of private defence, but the identity of that assailant cannot be ascertained in this case, as the evidence has been adduced in a general manner that subsequently all the accused surrounded Ramdhari and Ramswarup and began to assault them with their respective weapons. The position thus is that in absence of satisfactory proof as to who was responsible for the fatal blow given either to Ramswarup or Ramdhari no accused can be held to be guilty in respect of those blows. In Ambika Singh V/s. Emperor. ILR 1 Pat 212: (AIR 1922 Pat 498) the five appellants were convict-ed under Sec.147 of the Indian Penal Code on a charge of rioting with the common object of assaulting one Balbhadra Singh Three of them, Ragho Singh, Harihar Singh and Mulru Singh, were also convicted under Section 323 in respect of hurt caused to certain persons. The case of the prosecution was that in the evening of 12th of June about 50 or 60 persons went to the house of Balbhadra Singh and an altercation took place with the result that Balbhadra was struck on the head a severe blow which caused his death. The case of the prosecution was that in the evening of 12th of June about 50 or 60 persons went to the house of Balbhadra Singh and an altercation took place with the result that Balbhadra was struck on the head a severe blow which caused his death. Certain other persons also received slight injuries The finding of the learned Sessions Judge did not support the prosecution as regards the occasion of the assault, and he found that Kirpal Singh, one of the accused, an old man of 65, had gone to invile Balbhadra to dinner on some social occasion. There was a question of outcasting and taking back into caste on which Balbhadra differed from Kirpals view. Accordingly. Balbhadra refused the invitation, whereupon there was an altercation which led to Balbhadras attacking Kirpal Singh and inflicting two injuries upon him with a stick. Kirpal cried out for help and a lumult of people came, and Balbhadra received a fatal injury. It was urged that, on those facts, there was no common object to assault Balbhadra; that the object of the accused was to rescue Kirpal Singh; and that if any of them in the course of effecting that object inflicted grievous injuries he was answerable for the injuries he caused, but the assembly did not become thereby an unlawful assembly This contention was accepted. Excessive force was no doubt used by some persons but it could not be ascertained on the evidence as to who had caused the injury to Balbhadra Singh. It was held that the mere fact that Balbhadra Singh was fatally hurt by some unascertained persons could not be a ground for convicting all the members of the assembly for rioting. The convictions for rioting under Section 147 were set aside. In Suba Ahir V/s. Emperor. AIR 1927 Pat 27 as well it was held that if someone or more of the accused exceeded the right of private defence, unless those individuals could be identified the mere presence of the accused at or near the spot was not sufficient to bring home to them guilt for the acts of others who had exceeded their rights. 21. Learned counsel for the State finally submitted that the occurrence in the present case had been proved by the evidence of P. Ws. 3, 4, 7. 8, 10, 11. 29 and 33 and those witnesses had sufficiently identified these appellants. 21. Learned counsel for the State finally submitted that the occurrence in the present case had been proved by the evidence of P. Ws. 3, 4, 7. 8, 10, 11. 29 and 33 and those witnesses had sufficiently identified these appellants. He pointed out that their evidence was corroborated by that of P Ws. 18 and 21. Learned counsel for the appellants rightly pointed out that P. Ws. 3, 4, 7, 8, 10 and 11 had gone on the day of occurrence to collect the mahua fruits in capacity of labourers of present Bhaiya Saheb and P Ws. 3, 7. 10. 11 and 13 happened to be even the settlees on the basis of exhibit 13/5. P. Ws. 29. 33 and 34 were the employees of present Bhaiya Saheb Another comment of learned counsel for the appellants was that P. Ws 18 and 21. along with P Ws. 7, 29, 33 and a few other prosecution witnesses were members of the second party in the proceeding under Sec.144 of the year 1961. whereas Chandradeo Pandey (appellant No. 2) was a member of the first party in that proceeding. In other words, according to him, these witnesses were the creatures of Bhaiya Saheb and they came to support his false case regarding the Mahua fruits There can be no doubt that these witnesses were interested, but they being labourers they had to go there on being asked by Bhaiya Saheb. The evidence identification of the appellants is quite sufficient and there has been no comment by learned counsel for the appellants in that respect, but in view of my finding that they had a right of private defence of property they cannot be held guilty. 22. In the result, the appeal is allowed and the convictions and sentences of the appel lants are set aside. Ramratna Singh, J. 23 I agree.