Agarwala, Ag. C.J.

1. The appellant has been sentenced to transportation for life on the charge of murdering Bujhawan Raut on 26-1.1946.

2. The occurrence which gave rise to the death of Buj ha wan has its origin in a dispute about two plots of land Nos. 2380 and 2381 in village Chhitouli. The prosecution case is that, on a civil Court partition between Devi Prasad. (p.w. 8) and his cosharer some years ago, these two plots were allotted to Devi Prasad, and that, there-After, he left them in batai to Rajkumar (P.W. 2) foe a number of years, and then, eventually, sold them to him on 20-1-1946, although the appellant Narayan Raut was anxious to buy them. It is said that on the morning of 2-10-1946 Rajkumar, Ma sons Ramsakal (P.W. 1) and Ugam (P.W. 4) and his brother Bujhawan were ploughing this land when seven persons including the appellant appeared on the scene and ordered the ploughing to be stopped. Rajkumar protested, and, it 4th said, that Nagina then struck him three blows with a lathi, and that, when Bujhawan protested, Naratyan struck him with a bhala. Ramsakal is alleged to have been struck by Baburam with a bhala, and by Sakal and Sheosaran with lath is. Similarly, Sheologan and Kesar are said to have struck Ugam with lath is. The injured men left for the police station in the company of the chaukidar, but Bujhawan died en route. A first information was laid by Rajkumar at 3 P.M., the police station being six miles away. On these facts Narayan was charged with the murder of Bujhawan and the remainder were charged u/s 302/149. There were also charges of rioting and of injuries committed on the other injured men in prosecution of the common object of the rioters.

3. The defence was that Narayan was in possession on the day of occurrence and had been in possession for many years beforehand. His case is that he was in possession long before the civil Court partition between Devi Prasad and his co-sharer, and that the sale to Rajkumar by Devi Prasad was merely effected for the purpose of dispossessing him. The defence was that on 2-10-1946, when it was found that Rajkumar and his men were ploughing the land, Narayan went and protested. He was then assaulted, with the result that the other accused came to his assistance, and in the fracas which occurred four of them were injured. The Court below has found that Narayan was in possession, and that the prosecution party did go to the land on the date of the occurrence for the purpose of ploughing it and dispossessing Narayan. The medical evidence shows that four of the defence party received in the injuries, two of them sustaining injuries on their heads.

4. The question that arises, in these circumstances, is whether the accused persons were protected by the right of private defence. The Court below has held that they had a right to defend their possession of the land, but that Narayan exceeded that right by inflicting a fatal blow on Bujhawan. He has, therefore, acquitted all the accused on the charges of rioting. He has also acquitted those accused who were charged with inflicting injuries on persons other than Bujhawan in the view that they did not exceed the right of private defence, but has convicted and sentenced Narayan as stated above because he has exceeded the right of private defence.

5. The Court below has fallen into an error in considering that there was any right of private defence of property in this case. The land was not under crop at the time of the occurrence. All that the prosecution party were doing was to plough the land. They were not doing any immediate harm. There was, therefore, ample time for Narayan to have recourse to the public authorities for the protection of his rights; In this case, as so often happens in cases of this nature, the fact that the right of private defence does not arise when there is time to have recourse to the public authorities, has been overlooked. Even in this Court the learned Advocate referred us to Section 97, Penal Code, and argued that as the act of the prosecution party amounted to criminal trespass, the defence were protected by that section. The section, however, expressly states that it is subject to Section 99, which explicitly provides that there is no right to private defence when there is time to have recourse to the public authorities.

6. The next question that arises is whether Narayan was protected by the right of private defence of person. For the determination of this question it is necessary to consider the facts, and they are these: Narayan was in possession. The prosecution party went with the deliberate object of taking forcible possession. With this aim in view they went armed and commenced ploughing the land. Narayan protested. Up to this stage the facts are clear. What is not so clear is whether the prosecution story is true that Narayan and his companions began an assault on Rajkumar and his companions, or whether Narayans protest led the prosecution party to attack him and the men who were with him. Now, the learned Government Advocate rightly points out that the burden of proving the circumstances which justify the exercise of the right of private defence rests on the accused. The law on that subject is contained in Section 105, Evidence Act, which states that the burden is on the person pleading the right and that the Court shall presume the absence of circumstances justifying the exercise of such right in the absence of evidence. It is contended that this section means that when the accused person pleads the right of private defence, he must prove beyond reasonable doubt the existence of the circumstances on which the right is founded, and, if that proposition is true, it must be conceded in this case that the defence have not proved beyond reasonable doubt that the prosecution party were the first to attack Narayan and his companions. What has to be considered, therefore, is the nature, or rather the extent of the burden which lies on the accused to establish circumstances justifying the exercise of the right of private defence. A similar question has lately been the subject-matter of discussion in the Kings Bench Division in Rex v. Carr Briant (1943) 1 K.B. 607. The enactment which was being considered in that case was Section 2, Prevention of Corruption Act, 1916, which provides that where in any proceedings against a person for an offence under the Act it is provide that any money, gift, or other consideration has been paid or given to or received by a person in public employment, or the agent of such person, the money, gift or consideration shall be deemed to have been paid or given and received corruptly unless the contrary is proved. It will be observed that the effect of that section is that when the prosecution has proved that the accused has received money, gift, or consideration, a presumption arises, that it was received corruptly, and that the onus of proving that it was innocently received lies on the accused.

7. The learned Judges who decided that case held that, where either by statute or common law some matter is presumed against an accused person, unless the contrary is proved, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish. What was held, therefore, in this case was that the accused was not required to prove that the receipt of the money was innocent beyond reasonable doubt, hut that what he was required to prove was that the circumstances were such that the receipt was probably innocent.

8. The learned Judges referred to the decision in Sodeman v. Rex (1936) 2 A.E.R. 1138 which is a decision of the Privy Council. That was a; case where the accused in a murder charge pleaded insanity, and the onus of proof was under consideration. The case is important in this country because the plea of insanity, like the plea of tight; of private defence of property, is one of those general exceptions the burden of proving which is placed on the defence by Section 105, Evidence Act. Their Lordships of the Privy Council held that the burden, in cases in which the accused has to prove insanity may fairly be stated as not being higher than the burden which rests on the plaintiff or defendant) in civil proceedings. In civil cases the preponderance of probability constitutes sufficient ground for the verdict: see Cooper v. Slade (1858) 6 H.L.C. 746. These cases have recently been referred to by my learned brother in Mathura Singh v. Emperor Cri. Appeal No. 124 of 1947. The question has also been considered by a Full Bench of the Allahabad High Court in Parbhoo and Others Vs. Emperor, , where the majority of the learned Judges held that, having regard to Section 96, Penal Code, and Section 105, Evidence Act, is all cases in which the right of private defence or any other general exception in the Penal Code is pleaded by an accused persons, 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 entitled to be acquitted, if upon a consideration of the evidence as a whole reasonable doubt has crept into the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception.

9. 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 to 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 circumstances which have been established by the evidence of the prosecution in the present case do, in my opinion, raise a probability that the defence version is true. As I have already stated above, the prosecution party went to the scene armed, with the deliberate intention of dispossessing Narayan, who was in possession, and they inflicted injuries on Narayan and the men who were with him. Haying done that they have deliberately suppressed the fact that they did so. Every witness who was examined by the prosecution relating to the. incident has denied that any injuries were inflicted on any member of the defence party. The fact that they considered it necessary to do so suggests the inference that they were aware of (he fact that, if they admitted the injuries caused to the defence, they would have to be prepared to state at what stage of the proceedings these injuries were inflicted, that is to say, whether they were inflicted before Narayan inflicted the fatal injury on Bujhawan or after. A consideration of all the circumstances that have been proved, in my view, suggests the probability that the prosecution party were the aggressors. That, however, does not necessarily exonerate Narayan for the injury which he inflicted on Bujhawan. The injury was a fatal one from which Bujhawan expired very soon after it was inflicted, and, in order to be exonerated from the consequences of inflicting this injury, it is necessary for Narayan to prove more than has been proved in this case. Although some of the injuries inflicted on four members of his party were on the head, none of them appears to have been of such gravity as to justify the conclusion that there was any reason for him to apprehend that either he or any member of his party would be killed, or would receive grievous injury. He was not, therefore, justified in causing the death of Bujhawan. The weapon he used, however, was a fatal, and he must have known that an injury inflicted with such a weapon was likely to cause death, even though he had no intention either to cause death or grievous bodily injury. I would, therefore, alter the conviction from one of murder to one under the second part, of Section 304 and alter the sentence from transportation for life to rigorous imprisonment for two years.

Ramaswami, J.

10. I agree that this appeal should be allowed to extent proposed. I agree that Section 105, Evidence Act, should be construed in the manner expounded by My Lord the Chief Justice.

In the recent case in Mathura Singh v. Emperor Cri. Appeal No. 124 of 1947, I had occasion to examine and construe in a similar fashion the provisions of Section 105, Evidence Act; Under this section the burden of proving an exception is upon the person accused of an offence, and the section lays down that the Court shall presume the absence of such circumstances. It is axiomatic that the prosecution must prove the prisoner guilty beyond all reasonable doubt Woolmington v. Director of Public Prosecution (1935) 1935 ACC 462 butis the same burden placed on the prisoner where either by statute or by common law some matter is presumed against him unless contrary is proved in Sodeman v. Rex (1936) 2 A.E.R. 1138 Lord Hailsham thought that the burden od proof for thedefenee was not so onerous, that it was certainly plain that the burden in cases where accused had to prove insanity was not higher than the burden which rested upon the plaintiff or defendant in a civil proceeding. In the more recent case Rex v. Carr Briant (1943) 1 K.B. 607, the defendant was charged with an offence under she Prevention of Corruption Act, 1916, which provided in Section 2 that in certain circumstances the onus of proving that payments made to a Government employee were not corruptly made was on the defendant. The trial Judge charged the jury that it was the defendants duty to satisfy them "beyond reasonable doubt". But the Court of Criminal Appeal quashed the conviction on the ground that burden of proof was not so onerous. It was no more than that which rested on the plaintiff in a civil proceeding; and therefore it was sufficient if accused satisfied the jury of the probability of that which he was called upon to-establish.

11. In the Indian case Parbhoo and Others Vs. Emperor, 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 is the mind of Court as regards the guilt of the accused.

12. I am definitely of opinion that the quantum of proof required u/s 105, Evidence Act, is not proof beyond reasonable doubt; that the accused need merely make out a prima, facie case, in other words, it is sufficient if he satisfied the Court of the probability of what he is called upon to establish.

Apart from the weight of authorities this-construction is obviously reasonable, for it would be strange if a principle of law intended to benefit the accused could be used to his disadvantage.