Brij Mohan Lal, J.

[1] This is an appeal by six persons, viz., Ram Autar, Bharosa, Binda, Ram Kumar, Raja Ram and Sheo Moorat who have been convicted by the learned Sessions Judge of Banda under Sections 302/149, 325/149, 323/149 and 147, I. P. C. Every one of them has been sentenced to transportation for life and to pay a fine of Rs, 100/ under Section 302/149, to three years' rigorous imprisonment and a fine of Rs. 50/- under Section 325/149, to six months' rigorous imprisonment under Section 323/149 and to one year's rigorous imprisonment under Section 147, I. P. C.

[2] It appears that there is a grove known as Gunji Bagh in village Man in the district of Banda. This grove has an area of 3 bighas and 14 biswas. The owners thereof agreed on 1-5-1950 to sell one bigha and 17 1/2 biswas of the grove to the appellants. On 15-5-1950 they agreed to sell one bigha and 17 biswas to the complainant's party. It will thus appear that the total area agreed to be sold exceeded the actual area of the grove by half a biswa.

Pursuant to these agreements the vendors executed a sale deed on 7-11-1950 in respect of one bigha and 17 1/2 biswas of this grove in favour of the appellants and later on they sold 1 bigha and 17 biswas to the complainant's party. This led to a dispute between the parties in respect of an area of half a biswa. The appellants, however, succeeded in getting actual possession over the disputed area and in getting their names mutated over it. They actually sowed crop therein.

[3] The complainant's party also made an application for mutation of their names in respect of the disputed area but this petition was dismissed on 31-3-1952.

[4] On 11-7-1952 the complainant's party was proceeding towards the disputed grove with the avowed object of upturning the crop which had been sown previously by the appellants therein. The latter are said to have met the members of the complainant's party in the way at a distance of about 6 or 7 furlongs from the said grove and to have enquired of them as to where were they going. They were told that the complainant's party was going to replough the land.

Thereupon a quarrel took place between the two parties as a result whereof one Shankar was killed, Rameshwar received grievous hurt and four others-received simple injuries out of the complainant's group. Three persons received injuries on the appellants' side also. Raja Ram received seven injuries, Ram Autar received eight while Bharosa received one injury only.

[5] From amongst the appellants, the injured persons admitted their presence. Others contended that they were not present at the time of occurrence. The persons who admitted their presence had alleged in the Court below that they were returning after attending to call of nature when they were attacked. We may mention at once that the learned Counsel for the appellants has abandoned this theory before us and has accepted the findings recorded by the learned Sessions Judge, viz. that the complainant's party was proceeding towards Gunji Bagh to overturn the crop which had previously been sown by the appellants, that the latter on coming to know of the complainant's intention-offered obstruction and this led to the fight.

[6] The first point that arises for decision is whether or not the appellants had the right of private defence of property in the circumstances mentioned above. Section 97, I. P. C.. confers on every person a right, subject to the restrictions contained in Section 99, to defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. The complainant's party's act, if completed, would have amounted to mischief and criminal trespass.

[7] Under Section 105, I. P. C., the right of private defence of property commences when a reasonable apprehension of danger t