JUDGMENT : Narain, J. There are six appellants in this appeal. For assault on Sheoji Pandey, Ugrah Kahar, appellant no. 1, Fudena Kahar, appellant no.5 and Talu Kahar, appellant no. 6 have been convicted under Section 325/34 of the Indian Penal Code and sentenced to five years rigorous imprisonment besides a fine of - Rs. 200/-, in default six months rigorous imprisonment. For assault on Badri Narain Pandey, Bhalu Kahar, appellant no. 2, Malu Kahar Appellant no. 3 and Kedar Kahar, appellant - no. 4, have been convicted under Section 307 of the Indian Penal Code and the sentence imposed on them is the same as above. For abatement Ugrah Kahar, appellant no. 1 has been further convicted under Section 307/109 of the Indian Penal Code and the same sentence as stated above has been imposed upon him. The sentences are to run concurrently. The conviction and sentence as set above have been passed by the Assistant Sessions Judge, Arrah. 2. The prosecution case - was that Sheoji Pandey had some land bearing plot no. 1001 in village Piraota within Police Station Arrah Mufassil, District Shahabad. At about 2, P.M. on 15.2.1966 Sheoji Pandey accompanied by his nephew Badri Pandey (P.W. 3) and his son Hari Kumar Pandey (P.W. 6) had been to his field when he saw the six appellants armed with lathi and bhala cutting the Masuri crops grown by him. On his protest the appellants escaped with the bundles of Masuri but Sheoji Pandey, his son and nephew pursued them. When they reached near the orchard of Ramta Prasad the appellants threw down the bundles and at the instigation of appellant Ugrah Kahar, appellants Bhalu Kahar, Malu Kahar and Kedar Kahar assaulted - Badri Narain Pendey with bhala. Appellants Ugrah Kahar, Talu Kahar and Fudena Kahar assaulted Sheoji Pandey with lathi and thereafter all the appellants fled away with. The Masuri brindles. On hulla-people assembled and witnessed the occurrence. Some of the appellants had assaulted. Har Kumar also 'but acquittal has been recorded in respect of this part of the; occurrence. The injured persons came to Arrah Sadar hospital at about 8.30 P.M. the same day and their injuries were medically treated. On receiving information from the hospital Assistant Sub-Inspector of Police Md. Some of the appellants had assaulted. Har Kumar also 'but acquittal has been recorded in respect of this part of the; occurrence. The injured persons came to Arrah Sadar hospital at about 8.30 P.M. the same day and their injuries were medically treated. On receiving information from the hospital Assistant Sub-Inspector of Police Md. Ayub (P.W. 10) came to the hospital and recorded the fard-beyan of Sheoji Pandey on the basis of which first information report was drawn up. 3. The following injuries were found en' the person of Sheoji Pandey: (P.W.1) :- 1. One lacerated - wound 21/2 x l/3 x scalp deep on the bead on the front portion. 2. One -lacerated wound 1/6Wx/1/6 x 1/6W with swelling of 4" diameter with air crepitalien on the left side of the chest. X-ray showed fracture of 8th and 9th ribs. Injury No. 1 was simple and injury no. 2 grievous and this could be caused by means of lathi. 4. On Badri Narain Pandey the following injuries were found ;- 1. One incised wound 1/3" x 1/3" x 1/3" on the back in the centre. 2. One incised wound 1/2x1/2x1/3” on the right side back. 3. One incised wound 1/2x 1/3" x 1/3" on the left thigh. These injuries were simple in' nature and could be caused by means of bhala. 5. The appellants claimed that they had been in possession of plot no. 1001 and that Masuri crop had been raised by them which they peacefully harvested on 15.2.1966 and when they were carrying the bundles of Masuri and had reached near the orchard of Ramta Prasad the prosecution party consisting of the informant Sheoji Pandey, his nephew Badri Narain Pandey and son Har Kumar -came-and-tried to snatch the Masuri harvested- by them and this led, to a scuffle in the course of which the prosecution party sustained injuries. Appellants Bhalu Kahar, Malu Kahar, Kedar Kahar, Fudena Kahar and Talu Kahar took a plea of alibi. The appellants pleaded that they were innocent and had been falsely implicated. 6. Eleven witness were examined on behalf of the prosecution and three on behalf of the appellants. Appellants Bhalu Kahar, Malu Kahar, Kedar Kahar, Fudena Kahar and Talu Kahar took a plea of alibi. The appellants pleaded that they were innocent and had been falsely implicated. 6. Eleven witness were examined on behalf of the prosecution and three on behalf of the appellants. On consideration of the oral and documentary evidence produced before him the learned Assistant Sessions Judge found that plot no, 1001 had been in possession of the appellants and that the Masuri had been grown by them, Regarding the occurrence the finding is that Sheoji Pandey, Badri Narain and Har Kumar ,had chased the appellants and when they reached near the orchard of Ramta Prasad, appellant Ugrah Kahar instigated others to kill Sheoji Pandey and others whereupon appellants Bhalu Kahar, Malu Kahar and Kedar Kahar assaulted Badri Narain Pandey with bhala and appellants Ugrah Kahar, Fudena Kahar and Talu Kahar assaulted Sheoji Pandey with lathi. The trial judge did not find substance in the plea of alibi. On the findings arrived at by him the learned Assistant Sessions judge further found that the right of private defence of property was available to the appellants but they exceeded this right. 7. In ORDER :to determine the question of possession the learned Assistant Sessions Judge took into consideration the evidence of P. Ws. 1, 2, 3, 4, 5, 6 and 8 on behalf of the prosecution and D. Ws. 1 and 3 on behalf of the appell3.nts and the entry in the khatian, rent receipt, ORDER :sheet of the mutation appeal and on their basis came to the conclusion that the prosecution failed miserably to prove that the plot in question was in possession of Sheoji Pandey; rather the evidence showed that the land was in possession of the appellants and that they had grown the Masuri crops. I have looked into the evidence and the documents and I agree with the conclusion drawn by the court below. The plea of alibi the court below has dealt in Paragraphs 83 to 88 of the JUDGMENT :. He has also referred to the evidence of D.W. 2 on the point. I agree with the finding that the evidence does not establish the plea of alibi. At the time of hearing learned counsel for the appellants did flat dispute the finding of possession arrived at by the trial court nor the finding concerning alibi. He has also referred to the evidence of D.W. 2 on the point. I agree with the finding that the evidence does not establish the plea of alibi. At the time of hearing learned counsel for the appellants did flat dispute the finding of possession arrived at by the trial court nor the finding concerning alibi. Learned counsel confined his arguments to the question that on the evidence on record the appellants cannot be held to have exceeded their right of private defence• of property. As against this the learned Government Advocate on behalf of the State seriously attacked the finding of the learned Assistant. Sessions Judge that right of private defence of property was available to the appellants. He invited attention to Section 96 of the Indian Penal Code and contended that there is nothing to show that the prosecution party committed any Act which amounted to theft or an attempt to commit theft and that being so, right of private defence of property cannot be held to have• been attracted, The argument is not tenable, In this connection, provisions of Section 105 of the Indian Penal Code are relevant. It says that the right of private defence of property commences when a reasonable apprehension of danger to the property commences. Thus what is relevant to investigate is whether or not reasonable apprehension of danger to the property had commenced. Once a reasonable apprehension of danger to the property commences the right of private defence of property becomes available and it is not necessary that the offence or an attempt should actually have been committed. A similar view has been laid down in (1) Ram Autar V. State (A. I. R. 1954 Allahabad 771). 8. Thus the point for consideration is that when the assault by the appellants took place whether a reasonable apprehension of danger to the property, which in this case were bundles of Masuri, was there or not. The finding is clear, and which has not been challenged on behalf of the State, that the prosecution party chased the appellants and when they reached near the orchard of Ramta Prasad the assault took place. Such being the circumstance in which the assault took place conclusion is irresistible that reasonable apprehension of danger to the property had already commenced, That being so, manifestly the right 6f private defence of property was available to the appellants. 9. Such being the circumstance in which the assault took place conclusion is irresistible that reasonable apprehension of danger to the property had already commenced, That being so, manifestly the right 6f private defence of property was available to the appellants. 9. It was next urged for the appellants that on the evidence on record conviction under Section 307 of the Indian Penal Code of Bhalu Kahar, appellant no. 2, Malu, Kahar, appellant no. 3, and Kedar Kahar, appellant no. 4 cannot be sustained in law. As already stated above their conviction is founded on assault on Badri Narain Pandey. I have set out above the injuries on Badri Narain Pandey, Regard being had to the fact that they occur on the back and on toe left thigh, the necessary intention, knowledge and the circumstances as contemplated by section 307 of the Indian Penal Code are not made out. In the evidence also there is nothing to establish these ingredients of the offence, That being so, conviction of appellant nos. 2, 3 and 4 for offence under Section 307 of the Indian Penal Code cannot be upheld. 10. Now as to the conviction under Section 325/34 of the Indian Penal Code of Ugrah Kahar, appellant no.1, Fudena Kahar, appellant no. 5 and Talu Kahar appellant no. 6 for assault on Sheoji Pandey. It has been argued that this conviction also cannot be sustained since the injuries inflicted cannot be said to be in excess of the right of private defence, and, secondly, because there is no clear evidence as to who inflicted which of the injuries on Sheoji Pandey, and, thirdly, that it is not a case of assault in furtherance of the common intention, Regarding assault, evidence of Sheoji Pandey (P.W.1) is that Fudena Kahar, Ugrah Kahar and Talu Kahar assaulted him with lathi on head, back and on left thigh. A similar general statement occurs in the evidence of P. Ws. 2 and 3. I have already set out above the injuries on the person of Sheoji Pandey and one of them shows fracture of two of the ribs. There is no evidence as to who was the author of even this injury. There is also no evidence which of these appellants inflicted which of the injuries. Evidence on record does not establish that the injuries on Sheoji Pandey were the result of furtherance of any common intention. There is no evidence as to who was the author of even this injury. There is also no evidence which of these appellants inflicted which of the injuries. Evidence on record does not establish that the injuries on Sheoji Pandey were the result of furtherance of any common intention. As such, conviction recorded against appellants Ugrah Kahar, Fudena Kahar and Talu Kahar also cannot be sustained and it must be set aside. 11. In ORDER :to adjudge whether or not right of - private defence has been exceeded, the observation made by their Lordships of the Supreme Court in the case of (2) Jai Dev V. State of Punjab ( A. I. R. 1963 Supreme Court 612) are relevant. It was observed there : "It is no doubt true that in striking a decisive blow he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales.” Judged in this light also the appellants cannot be held to have exceeded the right of private defence of property. 12. Now remains the consideration of conviction of Ugrah Kahar under Section 307/109 of the Indian Penal Code. A controversy has arisen whether the words used by Ugrah Kahar which led to the occurrence can be held to be protected by right of private defence of property. The fard-beyan says that appellant Ugrah Kahar asked his companions and relations to finish the prosecution party by means of a bhala. Similar is the tenor of the evidence of P. Ws. 2 to 6. P. W. 2 stated that Ugrah Kahar instigated saying that Sheoji Pandey and others instigated saying that the prosecution party should be done to death. Evidence of P. Ws. 4, 5 and 6 is also similar to this. These witnesses further stated that thereupon assault took place. This is also the finding of the trial court. 2 to 6. P. W. 2 stated that Ugrah Kahar instigated saying that Sheoji Pandey and others instigated saying that the prosecution party should be done to death. Evidence of P. Ws. 4, 5 and 6 is also similar to this. These witnesses further stated that thereupon assault took place. This is also the finding of the trial court. I have held above that on account of chase by the prosecution party and there being apprehension of the offence of theft of Masuri bundles the appellants are protected by the right of private defence of property. It has been argued for the State that under the provision of Section 104- of the Indian Penal Code that right could extend to voluntary causing of any harm other than death and since in the present case abetment was to kill the members of the prosecution party, the offence committed by appellant Ugrah Kahar is not protected by the right of private defence of property. The argument does not impress me. Under Explanation 2 of Section 108 of the Indian Penal Code offence of abetment is committed irrespective of the question whether the act abetted has been committed or not. Therefore although nobody was killed yet the abetment of such an offence is committed. Abetment of offence is an offence by itself or as has been observed by their Lordships of the Privy Council in (3) Barendra Kumar Ghosh V. Emperor (1925 Privy Council-l) it is a crime apart. The point thus to be noticed is that this separate offence of abetment is an offence short of death. I have already held above that in the present case the appellants were entitled to the voluntary causing of any harm other than death. The above offence of abetment was manifestly a harm other than death. That being so, protection of Section 104 of the Indian Penal Code must be available to Ugrah Kahar also for the offence under Section 307/109 of the Indian Penal Code. As such the conviction recorded under Section 307/109 of the Indian Penal Code cannot be maintained. 13. The result is that conviction and sentences recorded against the appellants cannot be sustained and are accordingly set aside and the appeal is allowed. The appellants are discharged from their bail bonds. Appeal allowed.