Misra, J.

(1) The petitioners, Brindaban Prasad and Mathura Sao, were convicted by the learned Assistant Sessions Judge of Dhahbad under Section 326, Indian Penal Code, and each of them was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 100/- in default to suffer further rigorous imprisonment for a period of two months. They were also convicted under Section 148, Indian Penal Code, and each of them was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs, 50/- in default to undergo further rigorous imprisonment for a period of one month. The sentences were to run concurrently. They were charged before the learned Assistant Sessions Judge also under Section 307 and Section 307/149, Indian Penal Code, respectively. There were six other accused men also put on their trial along with these two petitioners. The learned Assistant Sessions Judge, however, acquitted others but convicted the two petitioners. They preferred an appeal against their conviction and sentence passed upon them. The learned Sessions Judge who heard the appeal substantially affirmed the conviction and sentence passed upon Brindaban Prasad and the conviction of Mathura under Section 326, Indian Penal Code, was altered into a conviction under Section 326/34 of the Code, and his sentence of imprisonment was reduced to rigorous imprisonment for one year and a fine of Rs. 100/,- in default rigorous imprisonment for a further period of two months. The conviction and sentence passed by the learned Assistant Sessions Judge under Section 148 were set aside.

(2) The prosecution story, put in a brief compass, was that between 6 and 6.30 a.m. on the 20th November, 1959, Rameshwar Singh of village Hariharpur within police station Topchanchi went to village Lakhanpur, which is a neighbouring village, to graze his cattle along with Darshan Singh (P. W. 4) and Harinarain Sihgh (P. W. 2). While they were grazing the cattle in the harvested paddy field of Bashir Mian, petitioners Brindaban Prasad, Mathura Sao along with six other persons came there. Bridaban Prasad was armed with a gun and so was Mathura Sao. The remaining accused persons were armed with lathis and swords. They asked as to why the cattle were being grazed there and tried to seize the cattle. Rameshwar replied that he would not allow them to take away the cattle. Thereupon petitioner Mathura, Sao ordered them saying "assault the rascals". Petitioner Brindaban Prasad fired his gun on the leg of Rameshwar and wounded him. Brindaban Prasad opened fire again aiming at Harinarain Singh and Darshan Singh. They were, however, not hit. Thereafter they went towards village Hariharpur and raised an alarm. Hearing the alarm. Chetlal Singh (P. W. 3) Karam Chand Singh (P. W. 5) and others came. The accused persons who are residents of village Karkata some distance away ran away to their village. Rameshwar Singh was lying on the spot and unable to move. The fardebayan of Rameshwar Singh was recorded by Sub-Inspector K. K. Sahay (P. W. 8) at 10 a.m. at the place of occurrence. It may be stated, however, that the Sub-Inspector came there as a result of a Sanha which was already lodged at the police station at 8.30 a.m. by Mathura Sao and one Nathu Ram. Therein it was stated that at about 6 OClock in the morning an alarm was raised towards the paddy field at village Lakhanpur belonging to petitioner Binda Ram. The two persons, who happened to be Mukhiya and Sarpanch respectively of village Karkata, heard reports of gun firing from the side of the field of Binda Ram. They stated that they did not know whether anybody was hurt or not nor could they give any reason for the gun firing. They stated that they did not go to the field of Lakhanpur out of fear. They prayed for investigation of the case. Sub-Inspector K. K. Sahay came to me village accordingly where, as I have mentioned above, he found the informant Rameshwar Singh lying injured in the field on a cot and recorded his fardbeyan. He inspected the place of occurrence, the field of Bashir Mian, which was a harvested paddy field. He found wads at a distance of 3 paces, 14 paces and 10 paces; three wads were complete and one broken. He seized them. He took blood scrapings. He also found a bundle of cut paddy on the common al between the fields of Motia Thakur and Birbal Thakur and that of Binda Prasad. He took charge of the paddy also. Thereafter he examined Harinarain, Darshan, Karam Chand and others. He then proceeded to village Karkata where accused Binda Sao gave a written report at noon, He also produced a D. B. B. L. gun No. 5426, two fired cartridges and three arrows. He also inspected the paddy field of Parmeshwar, brother of Binda which was pointed out to him by accused Binda Sao. After completing investigation he submitted chargesheet against the accused persons.

(3) The accused thereafter were committed to the Court of Session to stand their trial on the charges mentioned above out of whom the petitioners were convicted and sentenced. Their conviction and sentence were upheld by the learned Sessions Judge. This petition has been preferred accordingly against the decision of the learned Sessions Judge. At the time of the admission of this petition notice was issued by the Court calling upon the petitioners to show cause why the sentence passed upon them should not be enhanced if the conviction were to be upheld. Accordingly, this petition has been placed before us for decision, and in view of the notice for enhancement we have been taken by the learned Counsel for the petitioners through the entire evidence to see whether the conviction and sentence passed upon the petitioners can be held to be based on reliable evidence.

(4) It is admitted by the learned counsel for the petitioners that Rameshwar Singh did receive a gun-shot injury. This is also supported by the evidence of Dr. Brajeshwar Singh (P. W. 7) who was a Deputy Superintendent of the Civil Hospital at Dhanbad and examined the injury on Rameshwar Singh. He stated that the injury which he found on the lower part of the left leg of Rameshwar Singh was grievous and caused by gun shot. As mentioned above petitioner Brindaban Prasad admitted that he had opened fire with his gun which injured Rameshwar Singh but this was so because Rameshwar Singh along with two of his companions had gone to his field in village Lakhanpur where ripe paddy was standing. He along with his companions was harvesting the paddy and removing it. He and his companions had also let loose the cattle in the field and on being informed of it, they went and protested upon which Rameshwar Singh and his companions, who were armed with various deadly weapons, threatened to assault them. They also aimed a few arrows at them. Accordingly, he opened fire and hit Rameshwar on the leg.

(5) Before I proceed to deal with the evidence in detail, I will refer here to the argument of Mr. Awadesh Nandan Sahay, who has appeared in support of the petition, that in view of the defence raised by the petitioners and in view of the evidence of D. W. 1. Jodha Ram, it should be held that the petitioners cannot be convicted of the offence charged against them. He has supported his contention with reference to the fact that even the Sub-Inspector not only found hoof marks in the field of Bashirmian and in the fields on its boundary, but he also found a bundle of cut paddy on the southern al of Parmeshwars field. Parnicshwar being the brother of Brindaban Prasad, In support of this argument learned counsel has referred to a decision of the Allahabad High Court in the case of Parbhoo v. Emperor, AIR 1941 All 402 [LQ/AllHC/1941/63] . It may be staled that this argument advanced along with the allied argument which arises in the case to the effect that where the accused person admits the commission of the offence but pleads circumstances which will exempt him from the liability for the offence, it is sufficient if he has ratsed a plausible defence and it is not necessary for him to substantiate the defence plea beyond reasonable doubt. The decision of the Allahabad High Court is a Full Bench decision of that Court consisting of seven Judges and the following question was referred to the Full Bench for consideration:

"Whether, having regard to Section 96, Penal Code, and Section 105, Evidence Act, in a case in which any general exception in ihe Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is cntiiled to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception), a reasonable doubt is created in the mind of the Court whether the accused persons is or is not entitled to the benefit of the said exception"

It may be accordingly held that the answer of the learned Judges to the question above formulated must be read in the light of the question itself. The proposition for consideration before their Lordships was not that merely a plausible defence raised by an accused person in the case would be sufficient for his acquittal but whether in such a case, if upon a consideration of the evidence as a whole including the evidence given in support of the plea of the said general exception, a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception. It is obvious, therefore, that the proposition of law for the decision of the Full Bench is entirely different from the form in which the learned counsel endeavoured to support his contention. On an analysis of the Full Bench decision it appears that the main question mooted before the Court was whether where an, accused sets up a distinct plea of the right of private defence of person or property, the burden would lie upon him com-pletely to establish the circumstance which would exonerate him from the liability and, secondly, in he event of his failure to do so, it would be taken into account or not. It was in that context that their Lordships answered the question in the affirmative and laid down that even where the accused person pleaded the right of private defence or some such exception which would exonerate him from the liability, it was not necessary that he must necessarily establish the case like the prosecution, having to discharge the onus lying upon it of proving the case, and on failure to do so, he would be convicted. The real principle, according to their Lordships, was that even where the accused person fails to establish the right of private defence or any such exemption to which he is entitled in law. it is still open to the Court to take the plea of the ac-caused into account along with the prosecution evidence and then to come to a decision whether the prosecution has succeeded in proving its case beyond reasonable doubt or not. The whole thing to the contrary would be prima facie an indefensible position, and it would have to be laid down that the moment the accused person pleads the case to be plausible which has to be established by circumstances, even direct evidence of reliable witnesses to the contrary would have to be discarded. It was not the law laid down even in the well known case of Woolmirigton v. Director of Public Prosecutions, 1935 AC 462 in the House of Lords. There also it was observed: "If the jury are either satisfied with his explanation or, upon a review of all the evidence are left in reasonable doubt whether, even if his explanation be not accepted, the act was unin entional or provoked, the prisoner is entitled to be acquitted." It is not necessary to refer to the general principle laid down in that decision that:

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is ihe duty of the prosecution to prove the prisoners guilt subject to ..... the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by cither the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal."

Learned counsel also drew our attention in this connection to a decision of this Court in Narayan Raut v. Emperor, AIR 1948 Pat 294 [LQ/PatHC/1947/142] . That was the case in which the main question that arose was, whether it was necessary for the defence in every case in which the right of private defence was pleaded to establish it by leading evidence on that point. In that connection Agarwala, C. J. observed as follows:

"In the present case the defence led no evidence to prove the circumstance on which they rely as a foundation for the exercise of the right of private defence, namely, that the prosecution party commenced the attack. It is not necessary for the defence to lead evidence if they are able lo establish what they seek to prove by the evidence-that is on the record. If from that evidence it appears probable that the defence version is true, they are entitled to a decision in their favour, even though they have not proved the truth of their version beyond reasonable doubt."

The head-note of the case is likely to give a wrong impression as to what actually was decided in that case and what the observation meant. Rama-swami, J. (as he then was) also adverted to the same point observing as follows:

"In the Indian case, ILR (1941) All 843: (AIR 1941 All 402 [LQ/AllHC/1941/63] ) (FB) a majority of three out of five Judges construed Section 105, Evidence Act, to mean that though the accused failed to satisfy the Court affirmatively of the existence of the pleaded exception, the accused was entitled to be acquitted if upon consideration of the evidence as a whole (including the evidence in support of plea of exception) a reasonable doubt was created in the mind of Court as regards the guilt of the accused."

It is true, no doubt, that in the subsequent paragraph there is an observation which, if read apart from the context, may create an impression as if the law laid down in that case was that the accused need merely make out a prima facie case, in other words, it is sufficient if he satisfies the Court of the probability of what he is called upon to establish, but, as I have mentioned above, this paragraph is to be read along with the preceding paragraph, and the two read together alone can explain what was the ruling on this point in the judgment of Ramaswami, J. It is sufficient to mention that both the learned Judges in this connection referred to the Full Bench decision of the Allahabad High Court referred to above, and, therefore, the excerpt given from the Allahabad High Court references to (sic) the Full Bench decision is relevant in understanding the scope of the decision of this Court.

(6) In this connection I may also refer to a decision of this Court to which our attention has been drawn by the learned Counsel for the State. In the case of Farman Khan v. Emperor, ILR 5 Pat 520: (AIR 1926 Pat 433 [LQ/PatHC/1926/33] ) a Division Bench of this Court consisting of Ross and Kulwant Sahay, JJ. had laid down that when a person charged with causing injury to another pleads the right of private defence of property the onus lies on him to show that the property was his. It is not enough to show that neither he nor the injured party was in peaceful possession. Dhavle, J. in Raghunath Gope v. Emperor, AIR 1941 Pat 175 [LQ/PatHC/1940/174] has explained the position to the effect that although there is no question in a 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 fails to establish his innocence. It 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, From this also the inference is that his Lordship laid down that where the accused person fails to establish the explanation which he has given or the exemption on which he relies to establish his innocence, the matler may be considered with the rest of the evidence to find out whether he is giulty or not. It is not necessary for me to refer to the decisions of the other High Courts in some of which a general observation has been made that when the accused pleads right of private defence, It is enough that he has been able to establish his plea in general terms and not beyond reasonable doubt as the prosecution is required to prove its ease for the conviction of the accused. The point is now settled beyond controversy by the pronouncement of the Supreme Court in the case of K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 [LQ/SC/1961/372] at p. 618 from which the following excerpt may be made:

"As in England so in India, the prosecution must prove the guilt of the accused, i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of Section 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to Section 80 of the Indian Penal Code, but Viscount Sankey, L. C. makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find in Section 105 of the Indian Evidence Act".

(7) Learned counsel for the petitioners has argued in the next place that the evidence of D. W. 1 Jodha Ram, should be accepted. The two courts below, however, have rejected his evidence as interested and false. He is the Kamia of Brindaban Pra- sacl and the sole testimony of this witness cannot be preferred to the evidence of the prosecution witnesses who state in clear terms as to how the occurrence took place. Of the witnesses for the prosecution, three have been examined as eye witnesses to the occurrence but one of them Darshan Singh (P. W. 4) was declared hostile as having been gained over by the accused party, and, as such, his evidence was not relied upon. The evidence of Rameshwar Singh and Harinarain Singh has been found reliable by the two courts below and nothing has been brought to our notice which can persuade us to differ from the conclusion arrived at by them. Apart from the testimony of these two witnesses there are important circumstances in the evidence of K. K. Sahay, Sub-Inspector of Topchanchi, who was examined as P. W. 8 in the case. He arrived at the scene of occurrence after having seen the boundary of Parmeshwars field pointed out by Brindaban Sao where theft of Paddy was. alleged to have been committed by the accused persons. The Sub-Inspector deposed as follows:

"On the southern al I found some cut paddy plants but I found no signs of cutting of paddy in the field itself".

Since the field of Parmeshwar, which was pointed out to the Sub-Inspector, was the field, according to Brindaban Prasad where some paddy was cut and removed by the accused persons it was natural that there should have been marks of cutting of paddy in the field. Some cut paddy plants which were found on the southern al, according to defence, were the paddy plants cut in this field. What the Sub-Inspector, however, noted gives the lie direct to this defence, because obviously no cutting of any kind of any paddy plant in that field was noticed by the Sub-Inspector although he was taken to the field specifically for that purpose in the company of Binda Sao himself. It was not suggested that the Sub-Inspector did not do his duty properly. It is true no doubt that there was another field closely not belonging to the petitioners where harvesting had been done. The inference therefore, is clear that after the occurrence took place when the two companions of Rameshwar Singh fled away to their own village Hariharpur and Rameshwar was lying injured by the gun shot injury on his left leg, some of the accused party in order to prepare a defence, took up some paddy plants from the field closeby and put the same on the southern al of Parmeshwars field in order to show to the Sub-Inspector that the occurrence took place on account of the cutting of paddy belonging to Brindaban Prasad. It is true no doubt that there was trouble going on between some persons of village Hariharpur, namely, Mulchand on one hand and the two peti-tioners Brindaban and Mathura on the other, and a proceeding under Section 107, Criminal Procedure Code, was afoot on account of the dispute between them. It is also true that the prosecution claimed to be on the side of Mulchand, their Malik. It is curious, however, that the Sub-Inspector found hoof marks on Bastiir Mians field where there was no standing paddy which was already harvested and only stumps of cut paddy were found there. It is not the defence case that the accused party had any right to stop Rameshwar Singh or his men from grazing iheir cattle in the paddy field of Bashir Mian; but on the contrary it set up the case that Rameshwar Singh and his companion had come determined armed with various weapons including bows and arrows to remove the paddy from their field. The two courts below have rightly stressed the circumstance that if the prosecution party had come determined to remove the paddy armed with various weapons including bows and arrows, it was not likely that absolutely no injury would be caused to the side of the accused persons, whereas in fact no injury whatsoever was caused on their side. This, according to the courts below, was also consistent with the prosecution case that they had not come prepared for any kind of trouble and Rameshwar and his two companions came early in the morning as is the habit of the villagers to graze the catile in the fields where crop was removed, and that the petitioners were annoyed with them, because they were on the side of Mulchand Singh, and the petitioners wanted to teach them a lesson by taking away their cattle to the pound and they were prepared to go to the extreme limit in case of protest. Rameshwar Singh protested against the taking away of the cattle to the pound and it appears that Brindaban Prasad opened fire not because Rameshwar Singh or his companions were armed, but Rameshwar Singh had the hardihood to protest against the unlawful and illegal act of Brindaban Prasad in driving away the cattle to the pound, or at any rate to take them away from the persons who were tending the cattle. The prosecution story has been supported by P. Ws 3 and 5 who also said that they saw the accused persons running away. The only criticism advanced against the veracity of P. W.s 3 and 5 is that when Rameshwar Singh was injured by Brindaban Prasad which is the prosecution case and he lay in the field with gunshot wound, it was not likely that the party of the accused would be still in the field so that when P. Ws, 3 and 5 came after having been called by P. Ws, 2 and 4, they would see them running away. In my opinion, there is no substance in this argument. It is likely that the party of the accused persons felt strong enough being armed with two guns and might be with other weapons also, and they did not fear any harm to be done to them by the men from village Mariharpur. In the circumstances there is no reason to cast any doubt on the testimony of P. Ws. 3 and 5 as well. The fact remains that one resident of village Hariharpur was injured while there was no injury on the side of the accused persons, and the circumstances referred to above, which were accepted as being of strong evidentiary value, point to the conclusion that it was the party of the petitioner that took the aggressive part and who were out to teach a lesson to the men of Hariharpur on account of the trouble which was going on between Mulchand supported by others and the petitioners. In the result, therefore, I see no reason to differ from the conclusion recorded by the courts below, I am satisfied that the prosecution case has been proved beyond reasonable doubt.

(8) Coming, however, to the individual case of the two petitioners, although the evidence against Brindaban Prasad, both direct and circumstantial, is abundant and his plea has been found to be completely false, in view of the evidence of the Sub-Inspector (P. W. 8) his conviction cannot be interfered with. So far as Mathura Sao is concerned, the learned counsel for the petitioners has contended that in his case, at any rate, it should be taken that the prosecution has not been able to prove beyond reasonable doubt his participation in the illegal act of the party that went out to attack Rameshwar Singh and his companions. In the first Instance, it is urged that Mathura Sao is uncle of Brindaban Prasad and is an elderly man. If Brindaban Prasad along with others had been to the field with a gun, there was no reason why Mathura Sao would have also joined, and assuming that he did so, it was not likely that he himself armed with a gun would give order to Brindaban Prasad to open fire and himself would do nothing. The learned counsel for the State, however, contended that the very fact that although Brindaban Prasad fired twice hitting Rameshwar Singh in the first instance and then tried to injure his two companions who, however, managed to run away unhurt, the .witnesses could have attributed an active part to Mathura Sao as well. The fact that no such part was attributed to him, would show that the prosecution case is based on reliable evidence in respect of Mathura Sao also. The learned counsel for the petitioners, however, urged that in view of the circumstances of ill-feeling between Mathura Sao and Brindaban Prasad on the one hand and Mulchand and the prosecution party on the other, it is likely that, although Brindaban Prasad himself has admitted that he fired the gun, the prosecution witnesses slightly exaggerated the case in order to rope in Mathura Sao as well. Although I have found the prosecution evidence supported as it is by strong circumstantial evidence to be reliable, I would, however, in the peculiar circumstances of this case, be inclined to give Mathura Sao the benefit of doubt. Mathura Sao is accordingly acquitted of the charge brought against him and he must be discharged from his bail bond.

(9) As stated above, the learned Judges who issued notice in this case also called upon the petitioners to show cause why the sentence passed on them would not be enhanced if the conviction be upheld and accordingly this revision petition has been considered even on facts. It is noticeable that according to the evidence of Rameshwar Singh himself Brindaban Prasad aimed deliberately a shot at the leg of Rameshwar Singh. He carefully avoided causing an injury on a vital part. His intention therefore, appears to be just to cause him some hurt so that he might be scared away and leave the cattle to be impounded which would give satisfaction to the party of Brindaban Prasad and would be a punitive measure against the man who were siding with Mulchand Singh. It is true no doubt that grievous hurt as a result of it was caused. Considering, however, the fact that Brindaban Prasad was very careful to avoid hitting Rameshwar Singh which might have caused serious injury to him, it appears to me that it is not a fit case for enhancing the sentence imposed upon him by the learned Sessions Judge. The rule for enhancement issued against him is accordingly discharged.

(10) The application fails in so far as Brindaban Prasad is concerned but succeeds so far as Mathura Sao is concerned.