JUDGMENT : A. Misra, J. - Appellant No. 1 Satar Khan has been convicted u/s 304, Part II and 324, Indian Penal Code and sentenced to undergo rigorous imprisonment for four years under the former and six months under the latter count. Both the sentences are to run concurrently. Appellant No. 2 Akbar Khan has been convicted u/s 304, Part 11, Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and Appellant No. 3 Ellai Bux has been convicted u/s 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. 2. The prosecution case, in brief, is as follows : Accused No. 2 is the son of accused No. I who is the son of one Baku Khan, p.w. 1 is the son of Raheman Khan and p.ws. 2, 3 and to are Bons of Hadi Khan. Baku, Raheman and Hadi were three brothers. They were possessing their properties including homestead separately, roughly according to their shares. Disputes, however, arose regarding anabadi plot No. 849. A suit for eviction was filed by the descendants of Hadi and Raheman alleging that accused No. 1 encroached upon a portion of the said plot and included it within the enclosure of his bari. The suit was pending by the date of occurrence. 3. On 16-2-1965, it is alleged by the prosecution that p.ws. 1 to: along with deceased Suleman and two labourers (p.w. 4 & 5) commenced repair of a rasta on the said plot during the absence of accused Nos. 1 and 2 from their house. At about 11.00 A.M. accused Nos. 1 and 2 returned home and protested against the action of the p.ws. As the party of the p.ws. did not desist from their work, the latter pelted a brickbat or two, one of which, bit p.w. 4. In spite of it, the party of p.ws. proceeded with their work. While p.w. 2 Mazid was returning after unloading a hasted of earth, it is alleged that accused No. 1 assaulted him on his back with a butia and he fell down. Deceased Suleman went to the assistance of p.w. 2 and was assaulted with butia by accused No. 2 on his head, as a result of which, he fell down. Thereupon, accused No. 1 gave another blow on the bead of Suleman with a butia. Deceased Suleman went to the assistance of p.w. 2 and was assaulted with butia by accused No. 2 on his head, as a result of which, he fell down. Thereupon, accused No. 1 gave another blow on the bead of Suleman with a butia. p.w. Basis armed with a spade proceeded to rescue the injured Suleman, and when accused No. 1 came to bit him, he assaulted the latter with the spade on his head and band. Accused No. 3 is alleged to have assaulted p.ws. 1 and 2 with lathi on their heads. The injured persons, p.w. 2 and Suleman were removed to the hospital at Bhadrak where the latter succumbed to the injuries on the next day. 4. The accused in defence deny the allegations and allege that there was no old rasta in existence on the said plot. According to them, when they returned home at 11.00 A.M. they found the party of p.ws. including deceased Suleman had uprooted a portion of the fence on the western side of their bari to an extent of 8 cubits and constructed a new road trespassing into their bari for some distance. The verbal protest of accused No. 1 proving infructuous, he threw a brickbat or two to scare away the party of p.ws. Thereupon, p.w. 2 chased accused No. 1 into his bari and assaulted him with a butia. Similarly, deceased Suleman with a crowbar and p.w. 3 with a spade also committed assault on him. As a result, he fen down. When accused No. 2 came to his rescue, he was also assaulted by deceased Suleman with a crowbar and by p.w. 3 with a spade. p.w. 8 assaulted and injured Hanifa Bibi, wife of accused No. 1. Accused No. 3 denies to have been present at the place of occurrence. 5. The learned Sessions Judge disbelieved the plea of accused No. 3 about his absence from the place of occurrence and found that though members of both parties sustained injuries during the occurrence as a result of mutual assault, the accused persons were the aggressors and first to attack, and as a result of injuries inflicted with axe by accused Nos. 1 and 2, Suleman sustained injuries and did. He also found that p.w. 2 was assaulted by accused No. 1 by a sharp cutting weapon and p.w. 1 was assaulted by accused No. 3 with lathi. 1 and 2, Suleman sustained injuries and did. He also found that p.w. 2 was assaulted by accused No. 1 by a sharp cutting weapon and p.w. 1 was assaulted by accused No. 3 with lathi. The claim of exercise of right of private defence was negatived. The accused were found guilty of the various offences convicted and sentenced as mentioned above. 6. The conviction and sentence are challenged by learned Counsel for Appellants on the ground that the learned Sessions Judge has failed to make a proper appreciation of the evidence and that he has failed to make a correct approach in deciding the case, inasmuch as, he has not considered whether the accused persons were entitled to exercise their right of private defence of property and person, and if so, whether in the circumstance, they or any of them exceeded the same. It is also contended by him that there is no positive proof as to which of the accused caused the injury that resulted in the death of deceased Suleman. 7. In this case, up to a certain point, the facts and circumstance are either admitted or proved. There is no dispute that accused No. 2 is the son of accused No. 1. It is common ground that accused No. 1 is the son of Baku Khan, while p.w. 1 is the son of Raheman and p.ws. 2, 3 and 8 are sons of Hadi Khan, the two other brothers of Baku. They have been: possessing their properties including their homestead separately, roughly according to their shares. It is further not seriously challenged that prior to the date of occurrence, there were disputes between accused and the p.ws. regarding the anabadi plot No. 849. The latter filed a suit to eject accused No. 1 alleging that he bad unauthorisedly encroached upon a portion of the said plot and included it within the enclosure of his bari. During investigation, an Amin (p.w. 9) was deputed to prepare a spot map (Ex. 1). The evidence of p.w. 9 and the testimony of the I.O. (p.w. 13) show that the road which p.ws. 1 to 3 and their associates were constructing on the date of occurrence had extended to an extent of 30 links inside the bari of accused No. 1 and a portion of the fence of accused No. 1's bari had been cut and removed. 8. 1 to 3 and their associates were constructing on the date of occurrence had extended to an extent of 30 links inside the bari of accused No. 1 and a portion of the fence of accused No. 1's bari had been cut and removed. 8. Apart from the broad undisputed facts stated above, there is ample evidence on record to show the during the occurrence, there was mutual assault in which members of both parties sustained injuries and one of the injured Suleman subsequently died. Exs. 5 to 7 are the injury reports relating to deceased Suleman, p.w. 2 and p.w. 1 respectively granted by the doctor (p. w. 11), who examined them on police requisition. So also, on police requisition, p.w. 11 examined accused Nos. 1 and 2 and found a number of injuries on each of them as recorded in his reports (Exs. 9 and 10). p.w. 11 also examined the wife of accused No. 1 and found injuries as recorded in his injury report (Ex. C). 9. Thus, in short, the following facts are either admitted or proved and not seriously disputed : (I) By the date of occurrence, disputes existed between accused Nos. 1 and 2 on the one part and p.ws. 1 to 3 on the other, and a civil suit was pending for ejecting accused No. 1 on the allegation that he had included a portion of the said plot within the fenced enclosure of his bad; (2) on the date of occurrence during the absence of accused Nos. 1 and 3 from their house, p.ws. 1 to 3 together with deceased Suleman and p.ws. 4 and 5 were constructing a road on the said plot and had extended it inside the bari of accused No. 1 to a length of 30 links after damaging a portion of his fence; (3) on return of accused Nos. 1 and 2 at about 11.00 A.M. they protested against the action of the prosecution party and asked them to desist from their work to which they did not respond and (4) in the occurrence that took place, members of both parties sustained injuries, out of whom, Suleman subsequently died. The prosecution version that the p.ws. were repairing an existing road and that they had not trespassed into any portion of the bad in possession of the accused is clearly belied by the testimony of p.ws. The prosecution version that the p.ws. were repairing an existing road and that they had not trespassed into any portion of the bad in possession of the accused is clearly belied by the testimony of p.ws. 9 and 13. 10. The aforementioned facts being thus established, the next point for consideration is whether the accused are entitled to claim exercise of right of private defence of property and person. The learned Sessions Judge has held that accused Nos. 1 and 2 being the aggressors, claim of exercise of right of private defence of property or person is not available to them. He has arrived at this conclusion, while considering whether the version put forth by the prosecution is true or the version put forth by the accused is probable. According to the prosecution, it is accused No. 1 who committed the first act of assault with a butia on p.w. 2, while the latter was returning after unloading a basted of earth and thereafter, when deceased Suleman and p.w. 1 went to the rescue of p.w. 2, the former was assaulted by both the accused and the latter by accused No. 3. The prosecution does not offer any explanation for the injuries on accused No. 2 and wife of accused No. 1. On the other hand, the version of the accused is that it is p.w. 2 that chased accused No. 1 and assaulted him and thereafter Suleman and others committed assaults with crowbar and spade. The learned Sessions Judge has mainly relied on the testimony of p.w. 6 for his finding that accused Nos. 1 and 2 were the aggressors believing that the first act of assault was committed by accused No. 1. While rejecting the claim of right of private defence, the learned Session Judge has not applied his mind or considered whether the accused persons had right of private defence of their property, and if so, whether they exceeded the same. 11. On the proved facts, there cannot be any doubt that accused Nos. 1 and 2 clearly had right of private defence of their property. As already stated, the prosecution version that they were only laying a new road, and that too, on the anabadi plot without in any manner encroaching or trespassing into the bari in possession of accused No. 1 has to be disbelieved. It is clear from the evidence of p.ws. As already stated, the prosecution version that they were only laying a new road, and that too, on the anabadi plot without in any manner encroaching or trespassing into the bari in possession of accused No. 1 has to be disbelieved. It is clear from the evidence of p.ws. 9 and 13 and also from Ex. 1, the correctness of which has not been challenged, that there was no old rasta in existence at that place and in constructing the road on the date of occurrence, the p.ws. had not only cut a portion of the fence of accused No. 1, but had trespassed to a certain extent into his bari and laid the road. u/s 17, Indian Penal Code, every person has a right, subject to the restrictions contained in Section 99 to defend his property against any Act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. The act of the p.ws. in cutting the fence and constructing a road well inside the bari of the accused clearly amounted to an act of mischief and criminal trespass, and therefore, the accused undoubtedly had right to defend their property. The fact that a suit had been filed by p.ws. 1 to 3 to recover possession of the portion of the said plot alleged to have been enclosed within the bari of accused shows that the latter were in possession of the same by the date of occurrence. The learned Sessions Judge, while considering the question of right of private defence, has observed that it would also appear that the preparation of the road was going on for a long time after uprooting of the fence, and therefore, there had been ample time for accused Nos. 1 and 2 to take shelter in the police station. No doubt, Section 99 lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities, but this does not mean that a person in actual possession is, when attacked, to abandon his property to the mercy of the miscreants with a view to making an application to the police for assistance. The law cannot be invoked to suppress persons who, when there is no time to have recourse to public authorities, find themselves in a position in which they must either exercise the privilege of private defence as provided or submit to a forcible invasion of their right to property. u/s 97, the law does not require any such submission. When accused returned home at 11.00 A.M. and found that mischief and trespass were being committed by the prosecution party, it was not obligatory for them to resort to the police station allowing the miscreants to proceed with their activities and take forcible possession and continue committing further mischief. It was when within their rights to defend their property. Therefore, in the circumstance, there can be hardly any doubt that subject to the limitations accused Nos. 1 and 2 had right to protect or defend their property against the Acts of mischief and trespass being committed by the party of p.ws. Further, u/s 105, Indian Penal Code, this right to defend their property against criminal trespass or mischief existed as long as the wrong doers continued their wrongful activities. From the prosecution evidence, it is clear that in spite of the protest by accused No. 1, the party of p.ws. did not discontinue or desist from, but seem to have persisted and continued their work of laying the new road. So, the right to defend property undoubtedly continued until the occurrence took place. 12. The accused thus having the right to defend their property, the next point for consideration is whether as has been found by the learned Sessions Judge, they can be treated as aggressors. The learned Sessions Judge has primarily relied on the testimony of p.w. 6 to arrive at the finding that accused Nos. 1 and 2 were the aggressors. According to him, p.w. 6 is a thoroughly disinterested witness, and therefore, his evidence that accused Nos. 1 and 2 committed the first assault is to be accepted. Ostensibly, nothing has been suggested to this witness to show that he is interested in the prosecution. A perusal of his evidence, however, shows that in some of his statements he has departed from the truth, obviously to support the prosecution version. Though the evidence of p.ws. 1 and 2 committed the first assault is to be accepted. Ostensibly, nothing has been suggested to this witness to show that he is interested in the prosecution. A perusal of his evidence, however, shows that in some of his statements he has departed from the truth, obviously to support the prosecution version. Though the evidence of p.ws. 9 and 13 clearly show that the road under construction had extended to a length of 30 links inside the bari of accused No. 1, p.w. 6 has stated that the place where the earth was put is not inside the bari or, the accused, but is on the rasta. Similarly while describing the occurrence, he states that accused No. 2 participated in the assault committed on Suleman, but does not speak a word about any assault on the former or any assault by p.w. 1. In his cross-examination, however, it has been elicited that he stated before the police that there was a fight between p.w. 1 and accused No. 2. This shows that this witness has deliberately tried to suppress certain facts which may be detrimental to the prosecution version. In such circumstance, it will be unsafe to rely on his sole testimony and arrive at a conclusion that accused Nos. 1 and 2 were the aggressors being the first to commit violence. Further, neither this witness nor p.ws. 1 to say that except p.w. 3, any others on the prosecution side was armed with any weapon or committed any assault. p.w. 13 arrived at the spot shortly after the occurrence and seized two crowbars and one spade under Ex. 2. Obviously, these crowbars belong to the prosecution party as it is not even suggested that any of the accused was armed with crowbars. p.w. 13 in his cross-examination has stated that some of the crowbars seized were also blood-stained. If according to this witness and other p.ws., only p.w. 3 committed assault on accused No. I with a spade, there is no explanation how these crowbars could get blood-stain. As already stated, it transpires from the evidence of p.w. 11 that accused Nos. 1, 2 and wife of accused No. 1 sustained multiple injuries. The medical certificate (Ex. If according to this witness and other p.ws., only p.w. 3 committed assault on accused No. I with a spade, there is no explanation how these crowbars could get blood-stain. As already stated, it transpires from the evidence of p.w. 11 that accused Nos. 1, 2 and wife of accused No. 1 sustained multiple injuries. The medical certificate (Ex. 9) shows as many as five injuries on accused No. 1, including an incised wound on the dorsum of the left hand joint, lacerated wound on the parietal bone and multiple abrasions on the left parietal region. The lacerated wound is likely to have been caused by a crowbar. If as stated by the p.ws. including p.w. 6, p.w. 3 gave him only two blows with a spade, these multiple injuries on him cannot be explained. Similarly, as many as four injuries were found on accused No. 2 as per Ex. 10 including two lacerated wounds on the left parietal bone. According to p.ws., nobody assaulted accused No. 2, and it was faintly suggested that all these injuries were self-inflicted. The suggestion of self-infliction is belied by the prosecution evidence itself. p.w. 8 who is a post-occurrence witness and reached the spot immediately after the occurrence, in his cross-examination stated that he saw injury on the head of accused No. 2. This clearly proves that accused No. 2 was also assaulted and his statement u/s 342, Code of Criminal Procedure is that deceased Suleman assaulted him with crowbar and p.w. 3 with spade. Besides these two, the medical certificate (Ex. C) shows that the wife of accused No. 1 also sustained two injuries. In his statement u/s 342, Code of Criminal Procedure, accused No. 2 has stated that his mother was assaulted by Hanif (p. w.). The above circumstance clearly prove that the version of the prosecution that only p.w. 3 from their side assaulted accused No. 1 during the occurrence is not and cannot be true. On the other hand, the presence of multiple injuries shows that more then one person on each side participated in committing assault on the other. Therefore, I am unable to agree that it is accused Nos. 1 and 2 who alone committed the assault and thereby can be doubted as aggressors. 13. This being the position, the next important aspect is the actual site or place of occurrence. Therefore, I am unable to agree that it is accused Nos. 1 and 2 who alone committed the assault and thereby can be doubted as aggressors. 13. This being the position, the next important aspect is the actual site or place of occurrence. Already it has been found that the prosecution version of the road being constructed on land outside the enclosed bari of accused No. 1 is not correct and that the party of p.ws. had trespassed into the land in possession of the accused and were proceeding with laying the road. Ex. 1 shows the spot where blood was found which is clearly inside the enclosure of the bari of accused No. 1. p.w. 13 has deposed that the blood-stained earth was found at a distance of about 3 cubits from the road where the earth was being put on the road and blood-stained earth was inside the area of accused persons. The other p.ws. also admit this fact. p.w. 1 has stated that there were blood stains at the place of assault. p.w. 2 has stated that the place where he fell down is away from the road and inside the bari of accused No. 1. Of course, according to him, the assault on him was made on the road, but he ran a few steps before he fell down. If really he ran a few steps before he fen down, normally his running would not have been towards the bari of accused but away from it. p.w. 3 in his evidence has stated that blood stain was inside the bari of accused No. 1 at a distance of 4 to 5 cubits from the road. p.w. 5 has stated that the place where the injured persons were lying was inside the bari of accused No. 1 and it was 10 to 5 cubits from the place where they were putting earth. Though p.w. 6 states that the place of occurrence is 5 to 7 cubits from the western fence of accused No. 1, he admits that the place where p.w. 2 fell down was inside the bari of accused (sic) 10. 1. Thus, from the prosecution evidence itself, it is clear that the actual occurrence took place inside the bad of the accused persons and not outside. 14. 1. Thus, from the prosecution evidence itself, it is clear that the actual occurrence took place inside the bad of the accused persons and not outside. 14. It is admitted case of both parties that immediately on arrival at about 11.00 A.M., accused No. 1 protested against the action of p.ws., and as a matter of fact, threw a brickbat or two to scare them away. Subsequent to this, the occurrence took place in which both sides sustained injuries and one member of the party of p.ws. died. On these facts, the reasonable inference is that when brickbats were thrown by accused No. 1, the party of p.ws. must have entered the bari to proceed with their work in spite of resistance, and it is not unlikely that they were armed with crowbars and spades. If thereafter an occurrence took place in which at least three members on the side of accused sustained multiple injuries, the same must have been committed by more then one person on the side of the prosecution party. Therefore, the defence version appears to be more probable, i.e., that in spite of the resistence and throwing of brickbats, the p.ws. and the deceased proceeded with their crowbars and spades to continue their work with show of force and it is not unlikely that in the course of that, assault took place and ultimately ended in a mutual assault. When p.ws. 1 and 3 and Suleman possessed weapons like crowbar and spade and head injuries were found on accused Nos. 1 and 2, it is not unreasonable to infer that the accused retaliated apprehending death or grievous hurt unless they protected themselves. Therefore, as the circumstances disclose, the accused persons bad definitely a right to defend their property against wrong doers who were committing mischief and criminal trespass and subsequently while so defending their property, when they had to face physical violence which might have caused reasonable apprehension in their mind, they were also entitled to exercise their right of private defence by retaliating which ultimately led to the death of one and injuries on the other members of the prosecution party. 15. Learned Addl. 15. Learned Addl. Standing counsel contended that the accused persons have not specifically pleaded right of private defence of person or property and in their examination u/s 342, Code of Criminal Procedure they do not claim to have committed the assaults in exercise of that right. It is also contended that even if they bad a right of defending their property, they must be deemed to have exceeded that right as only in the circumstance mentioned in Section 103, Indian Penal Code, the exercise of right of private defence will extend to the causing of death. It is further contended that u/s 105 of the Evidence Act, the burden is on the accused to prove one of the exceptions, and in the absence of any affirmative evidence in support of their version, such a claim cannot be available to them. I do not find merit in any of these contentions. 16. It is well settled that, the fact that the accused does not specifically plead right of self-defence should not influence the Court in concluding that the plea of self-defence was not available to the accused to any degree. Even though the plea of self-defence may not have been taken by the accused specifically it is open to the Court to judge if the same was available to him if on a proper appraisal of the evidence it comes to the conclusion that the injury caused by the accused was inflicted at a time and in circumstance when be might have reasonably apprehended that grievous injury or death would result to him, if be failed to protect himself-vide AIR 1956 Allahabad 2441 and AIR 1957 Kerala 532. 17. The second contention of learned Addl. Standing counsel has also no force. In the first phase of the occurrence the accused had undoubtedly a right to defend their property against acts of criminal trespass and mischief being committed by the wrong doers. It is true that unless the circumstances mentioned in Section 103(4), Indian Penal Code are satisfied, this right would not extend to the causing of death. In the first phase of the occurrence the accused had undoubtedly a right to defend their property against acts of criminal trespass and mischief being committed by the wrong doers. It is true that unless the circumstances mentioned in Section 103(4), Indian Penal Code are satisfied, this right would not extend to the causing of death. In the present case, however, the circumstance show that though initially it started with the protection of their property against the acts of the wrong doers, by the subsequent act of the wrong doers who entered in to the bari obviously armed with deadly weapons, the reasonable apprehension of grievous hurt or death must have arisen in their minds. Therefore, if to protect their person against the aggressors they retaliated and caused injuries which resulted in death, they cannot be said to have exceeded that right. 18. Coming to the last contention, doubtless u/s 105 of the Evidence Act, the onus to prove the,existence of circumstance bringing the case within any of the general exceptions is on the accused. It is however, well settled that this burden is not of the same nature as the one which lies on the prosecution to establish commission of the offence beyond reasonable doubt. The position of law has been explained in a decision of this Court reported in State of Orissa Vs. Chakradhar Behera and Others wherein it is observed: The nature of the burden on the accused to bring its case within the general exceptions is analogous to that resting on the Plaintiff in civil cases. The juristic principle in civil matter is that preponderance of probable is the basis of success. It is also well accepted that accused need not prove the general exceptions by adducing positive evidence. The same can be established through the prosecution evidence also. If from the entire evidence on record, it is probable that the offence version may be true, they are entitled to a verdict in their favour even though the truth of the version might not have been proved beyond reasonable doubt. This view finds full support from the observations of the Supreme Court in the decision reported in Dahyallhai v. State of Gujarat 1965 S.C.D. 44. This view finds full support from the observations of the Supreme Court in the decision reported in Dahyallhai v. State of Gujarat 1965 S.C.D. 44. While discussing the scope of Section 105 of the Evidence Act and the nature of burden on the accused, it has been observed: Under Section 105 of the Evidence Act, read with the definition "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it believes the said circumstance existed or their existence was so probable that 9 "prudent man" ought, under the circumstance of the peculiar 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 circumstance did not exist by placing material before the Court sufficient to make it consider of 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, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden u/s 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. Thus, the position is well settled that the burden on the accused does not extend to his affirmately proving his version, but if he shows the probability of his version or at least creates a reasonable doubt in the prosecution case, he is entitled to the benefit. Therefore, for the reasons already discussed, as I have come to the conclusion that the accused persons had right of private defence of their property as when as person, and in the circumstance as they cannot be said to have exceeded the said right, they are protected and are entitled to an acquittal. In view of my above finding, it is unnecessary to consider other aspects argued in this appeal. 19. In the result, the appeal is allowed, the convictions and sentences are set aside and the Appellants are acquitted. Final Result : Allowed