The right of private defence of property extends to causing harm to a wrongdoer, but not to causing death, unless the offence committed by the wrongdoer falls within the categories specified in Section 103 of the Penal Code.

Mangalmurti, J—The six applicants in this case have been convicted of rioting, Mst. Rambai and Firtu under Section 148 and the remaining four under Section 147, Penal Code. Each of them has been sentenced to a fine of Rs. 50/- or three months' rigorous imprisonment in default.

2. The trouble arose over the possession of the field known as Kisansinghwala field. Shardaprasad alleges that he purchased it on 2-11-1946 from the accused Rambai for Rs. 2,000/- Rambai denies the sale of the field. The learned Magistrate has not given any finding regarding the fact of sale, but has found that the possession of the field was with Rambai and that Shardaprasad was not right in taking the cattle grazing in the field to the cattle pound. The cattle belonged to some of the accused (Kudau, Baiju and others).

3. In spite of these findings the learned Magistrate said: However as the story of the cattle grazing in the field is not the story of the accused persons I need not discuss the point further. It is also not the story of the accused that the 'marpit' took place in the exercise of the right of private defence of property. .... Section 105, Evidence Act says nothing about pleas but places the burden of proof in certain circumstances on an accused person But if the prosecution has already performed that task for him, it is clearly not necessary for him or anybody else to do it all over again. For a Court to say that a fact is not proved, which, after considering the matters before it, it confidently believes to exist is to stultify itself and to go contrary to the dictates of common sense and the definition of proof in S. 3. Evidence Act.

4. The reasoning of the learned Magistrate goes against the very aim of a criminal trial which is to find out the truth. Sarkar in his Law of Evidence (8th Edn. (1948) ) at page 818 says It would appear from the cases above that there is some divergence of judicial opinion on the point, but the preponderance of authority seems to be in favour of the view taken by the Calcutta High Court in - 'Kali Charan Mukerjee In the matter of, and that view seems to be more rational. There is nothing in law to warrant the proposition that an exception should be specifically pleaded or that there must be some evidence on the accused's side to prove that his case comes within the exception. The conclusion may be drawn from the evidence in the case although it might be on the prosecution side. It ought not to matter from which quarter the evidence came. If on the facts proved, it is found by the Court that the accused did not commit any offence, or the Court is left in reasonable doubt of his guilt he cannot certainly be convicted merely because he failed to plead any exception or was unable to give any evidence on his side.

In , their Lordships of the Calcutta High Court observed "From this we understand the Sessions Judge to be of opinion that had the Appellants before him been in a position to claim an acquittal on the ground that they had not been properly convicted because on the evidence on the record they had committed no offence, he would have acquitted them, but inasmuch as by not raising before the Magistrate the plea that they were acting merely in exercise of the right of private defence, he could not consider the point except in mitigation of the sentences passed. Such an argument is clearly untenable. If the plea could be entertained at all, it could be maintained to the fullest extent. The Sessions Judge has in effect held that on, account of a technicality which is altogether without any force, the Appellants before him were unable to contend that they had not committed the offence of noting, but that although they were not guilty still in consequence of the omission to plead this before the Magistrate, they could not claim absolute exemption from punishment.

It is true that S. 105, Evidence Act placed on the accused the burden of proving that in any criminal trial, they acted within their legal rights i