Ross, J.This case bad an unfortunate course, largely the result of an order passed by the District Magistrate of Purnea directing the Public Prosecutor to appear on behalf of the Government before the committing Magistrate and that his fees should be paid by the parties and he should receive instructions from the Court Inspector. This order is to be deprecated. It has resulted in a trial in which forty-seven witnesses were examined for the prosecution and which lasted for thirty-six days. Day after day the prosecution presented to the Court evidence which was false, evidence which has been rejected by the assessors and the Sessions Judge, and which the learned Assistant Government Advocate has not attempted to support here. The case which the trial Court found to be proved and which rests on a first information given by Lodhi chaukidar, is supported by the evidence of a dafadar and three chaukidars only. It differs from the official case of the prosecution in every respect and there can be no question that this trial has involved a great waste of public time and money.

2. The three appellants have been sentenced to three years rigorous imprisonment u/s 304 read with Section 149 of the Indian Penal Code and to concurrent terms of one year under each of the Sections 148 and 324. I do not propose to discuss the case upon which the prosecution relied and which has been found to be false. I shall confine myself to the case upon which the appellants have been convicted. The occurrence took place at 7. 30 A.M. on the 22nd of May 1925. Information was given at the police station, six miles distant, at 9. 30 A.M. on the same day by Lodhi chaukidar to the effect that in the morning at about 6 A.M. two or three Muhammadans whom Gour Babu zamindars men had brought from Bengal for cutting lac and forty or forty-two peons on behalf of Gour Babu were getting lac gathered. At about 7 A.M. twenty or twenty-five peons on behalf of Muhammad Bakhsh Chowdhry, zamindar came from the direction, of Manshahi Kothi armed with lathis, spears and axes. The peons of Gour Babu were similarly armed. Durga Singh, the jamadar of Chowdhry, said to Mahadeo Singh, Jamadar the Gour Babu:"Why do you cut lac. On this Mahadeo Singh said: The "banker belongs to my master Gour Babu, I will cut the lac." When this talk was going on, Durga Singh was trying to appease them saying that there is no need of quarrelling, give up gathering lac, the landlords will settle among themselves. In the meantime three peons of Gour Babu began to shout "Beat beat" and came forward jumping and the peons of both sides closed and began to use lathis axes and spears. The dafadars and three chaukidars tried to stop the fight, but without success. When a peon of Gour Babu fell, the mob dispersed and a man was found to be dead. This was Misri Gope, and later it was found that Mahadeo Singh had also been killed. There was some discussion about the side to which Misri Gope belonged. The question is immaterial, but, in may opinion, the evidence that he was a peon of Gour Babu ought to be believed. The only reason for doubting it is that no one was able to identify the man; but as the peons were collected from the outlying villages, there was nothing necessarily suspicious in this.

3. The accused were charged u/s 302 read with Section 149, the common object of the unlawful assembly being to beat the man of Gour Babu. There was also a charge u/s 148 and minor charges against the individual accused u/s 324. The defence was that the lac of mauza Narainpur had been settled on behalf of Chowdhary Sahib with Sheikh Kalu; and on the day of the occurrence peons of Gour Babu were getting this lac cut without any right or possession and that a riot occurred in which Gour Babus men were the aggressors. It thus appears that the appellants raised a plea of private defence both of property and of person, and that is the defence that has been urged in this Court. There was also a general argument on behalf of the appellants that the common object of assaulting the peons of Gour Babu alleged by the prosecution arose out of a dispute over the cutting of trees, that this was the case which the prosecution put forward as true and which the accused were called upon to meet, and that when that case broke down, the prosecution were not entitled to substitute what was really a different intention, though included within the same words, of assaulting the peons of Gour Babu over a dispute about lac. In my opinion there is no substance in this argument. The whole case was presented against the accused--both the allegation but the tree cutting and its sequel and the allegation about the lac cutting and its sequel. There was no embarrassment or prejudice to the accused as is shown by their written defence; and the fact that they were able to destroy the case for the prosecution about the tree cutting is no reason for acquitting them of rioting in connexion with the lac cutting.

4. On the plea of private defence of property, the burden of proof is on the accused. If they assert that they injured the deceased in the defence of their property, they must show that it was their property. Learned Counsel relied on the the finding of the Sessions Judge that it was not proved that either side had peaceful possession; but this is a finding which is fatal to the defence. It was also argued that the defence on the question of possession of the lac had been prejudiced by the fact that the prosecution had set up as their substantive case an occurrence arising out of tree cutting and that the cutting of lac was only a subsidiary element. But the evidence was there and there was no question of prejudice. The accused had ample notice (as their written statement shows) and if they had any proof of possession of the lac they ought to have given it. Learned Counsel admitted that the proof of possession on behalf of the defence was meagre, and on the evidence it must be held that the possession of the party of the accused has not been proved. (His Lordship then discussed the evidence on the point of possession and proceeded). All that can be concluded from the evidence is that rival claims ware being made by Gour Chandra Roy and the tenants, who were is league with him, on one side, through their lessee Haro, and by Chowdhry Muhammad Bux, the proprietor of the village, on the other side, through his lessee Kalu. But it is not proved that Kalu was in possession or that the accused were defending his property. The plea of private defence of property therefore fails.

5. I now turn to the plea, of defence of person. It was strongly contended on behalf of the appellants that the prosecution evidence, from the first information onward, proves that the accused had the right of private defense of person and that this is clear when the sequence of events is closely examined. The learned Assistant Government Advocate contended that the evidence of the dafadar and the chaukidars is partial to the accused because these witnesses are tenants of Chowdhry. I have considered the evidence of these witnesses at the different stages at which it was given, and in my opinion, it is fairly consistent throughout and makes the sequence of events sufficiently plain. I have already given the substance of the first information, and from that document it would appear that the sequence of events was this. Lac cutting was going on from about 6 A.M. At 7 A.M. Chowdhrys men came armed from the direction of the factory. Some of the men of Gour Babu went near the door of Phuhi Khan and some hid themselves in the jungle. Then there was a conversation between the leaders, Durga Singh, the jamadar of Chowdhry, and Mahadeo Singh, the jamadar of Gour Babu, in which Durga Singh took up a pacific attitude, but the persons of Gour Babu shouted "Beat, beat" and then a conflict ensued. In his statement before the committing Magistrate Lodhi made a few additions to his statement. He then said that he asked Chowdhrys men not to riot. He also said that Chowdhrys men rushed towards Gour Babus men. That apparently was before the conversation between the leaders. With regard to the conversation he then stated that he did not hear what was said. Then he added that Rupan Singh, peon of Gour Babu, was beaten and thereafter there was intervention by the chaukidars and dafadar after which both sides dispersed. Then Debi Singh taunted Gour Babus men and the riot ensued. Some parts of this statement are apparently untrue in points that bear against the defence, especially, that Chowdhrys men rushed towards Gour Babus men at an early stage and that Rupan Singh was beaten. In the Sessions Court be returned to his original statement, giving slightly fuller details. Thus after the talk between the leaders he says that half an hour elapsed before the dafadar came. He changes his statement with regard to Rupan Singh and says that ha with others shouted "Maro." He speaks of the intervention of the chaukidars and dafadar and the incitement by Debi Singh. Behari is a more common place witness. He agrees with Lodhi about the arrival of the two parties and then he was sent to fetch the dafadar. On his return he says that the men of Gour Babu abused the men of Chowdhry Sahib and began to fight them. This was before the committing Magistrate. He amplifies this statement in the Court of Sessions and says that Gour Babus men raised the alarm "Mar, mar" and the chaukidars and dafadar entreated Gour Babus men not to commit rioting, but they did not listen. He also adds that Debi Singh instigated and that Mahadeo Singh struck the first blow. The evidence of Jalil dafadar is to the same effect and his statement has not varied. He also speaks about the intervention of the chaukidars and himself and the withdrawal of both sides thereafter and the instigation by Debi Singh.

6. The argument on behalf of the appellants based on this evidence is that the appellants did not fight until they were compelled to, that they adopted a pacific attitude, that Gour Babus men were the first to attack, and that they acted in self-defence. The learned Assistant Government Advocate on the other hand in his very able argument contended, and I think rightly, that this is not a case of the private defence of person at all. Both parties went out armed on account of the dispute about the right to cut lac. Apparently the peons of Gour Babu had been collecting for some days though they may not have arrived on the scene till the morning of the 22nd, the chaukidar says that they had not arrived the previous evening, and the twenty or thirty men who were on the side of Chowdhry were not collected in a moment either. There was therefore ample time to have recourse to the authorities, the police station being only six miles distant and it was the clear duty of Muhammad Bukhsh Chowdhry when he heard that armed peons were being collected on behalf of Gour Chandra Roy, to inform the authorities instead of raising an armed force on his own account.

Homicide upon chance medley (or chaude mellee) borders very nearly upon manslaughter and in fact and experience, the boundaries in some instances are scarcely perceivable, though in consideration of law they have been fixed.... It all cases of homicide excusable by self-de-fence, it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice; and from the doctrine which has been above laid down, it appears that the law requires that the person who kills another in his own defence should have retreated as far as he conveniently or safely could to avoid the violence of the assault before he turned upon his assailant; and that not fictitiously, or in order to watch his opportunity but from a real tenderness of shedding his brothers blood.... The party assaulted must therefore flee, as far as he conveniently can, either until prevented by reason of some wall, ditch or other impediment or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm, and then, in his defence he may kill his assailant instantly. Before a person can avail himself of the defence, that he used a weapon in defence of his life, he must satisfy the jury hat that defence was necessary; that he did all he could to avoid it and that it was necessary to protect his own life or to protect himself from such serious bodily harm as would give him a reasonable apprehension that his life was in immediate danger. If he used the weapon having no other means of resistance and no means of escape, in such case, if he retreated as far as he could, he would be justified: (Russel on Crimes, Eighth Edition, pages 769-77).

And it may be further observed that a man cannot, in any case, justify killing another by pretence of necessity unless he were wholly without fault in bringing that necessity upon himself, ibid, page 777.

7. This statement of the law is based upon authority [1 Hale, 440, 441, 481, 483, R. v. Smith [1837] 8 C & P 160 which is as valid in India as in England. Now the accused in this case had no notion of retreating. They actually advanced to meet the attack. There can be no doubt that this was a free fight for which both sides had come prepared. In Queen v. Jeolal [1867]7 WR Cr 34 was it said:

In such a case there would be no private defence either to one side or the other. Both sides were evidently aware of what was likely to happen, for they both turned out in force and were armed with deadly weapons.

8. In Kalee v. Baparee [1878] 1 CLR 521, where the appellants had been concerned in an affray in which a man was killed, their Lordships observed as follows:

There is a good reason to believe that on both sides there was irritation and also determination to resort to force to support the rights and wishes of the parties; and the Judge expressly says that it appears from the evidence (and it must be taken therefore that he believes it in that respect) that there had been preparation on both sides for an armed encounter.

9. It was held that under these circumstances it made no difference who was the attacking party where both parties were armed and prepared for battle. The leading case is Kahiruddin v. Emperor [1908] 35 Cal 368 where it was laid down that according to the Penal Code no right of private defence arises in circumstances such as those of that case when both parties armed themselves for a fight to enforce their right or supposed right and deliberately engaged in very large numbers in a pitched battle. And in Queen-Empress v. Prag Dat [1898] 20 All 459 the opinion of Sir John Edge was quoted with approval:

That when a body of men are determined to vindicate their rights, or supposed rights, by unlawful force, and when they engage in a fight with men who on the other hand are equally determined to vindicate by unlawful force their rights or supposed rights, no question of self-dance arises. Neither side is trying to protect itself but each side is trying to get the better of the other.

10. There can be no doubt in the present case that if Chowdhrys men had wanted to get away from the fight, they could have done so. The evidence of the chaukidar makes it clear that after the leaders had had their discussion both parties continued to stand their ground for a considerable time and it was in these circumstances that the fight took place. No right of private defence, therefore arose, and, in my opinion, the appellants were rightly convicted. The appeal must be dismissed and the appellants will surrender to their bail to undergo their sentence.

Kulwant Sahay, J.

11. I agree.