The burden of proof lies on the accused to establish the right of private defence.

S.C.Misra, J.

1. The petitioners, Brindaban Prasad and Mathura Sao, were convicted by the learned Assistant Sessions Judge of Dhahbad under Sec.326, Indian Penal Code, and each of them was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 100.00 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, 50.00 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 Sec.307 and Sec.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 Sec.326, Indian Penal Code, was altered into a conviction under Sec.326/34 of the Code, and his sentence of imprisonment was reduced to rigorous imprisonment for one year and a fine of Rs. 100.00 in default rigorous imprisonment for a further period of two months. The conviction and sentence passed by the learned Assistant Sessions Judge under Sec.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 fardbey