Oak, J.:— This is an appeal by Ram Prasad and three others, who have been convicted by the learned Additional Sessions Judge of Ballia under Sec. 323 and 325, I.P.C read with Sec. 34, I.P.C Each of them has been sentenced to imprisonment for two years and a fine of Rs. 25/- or further imprisonment for one month in default of fine under Sec. 325/34, I.P.C Each of them has been sentenced to imprisonment for one year under Sec. 323/34, I.P.C The sentences have been ordered to run concurrently.

2. The prosecution case is that, Sheo Muni is a resident of village Qazipur. The four appellants are residents of village Kharid. One afternoon 8 or 10 cows belonging to the appellants were grazing in a sugarcane field belonging to Sheo Muni. Deo Narain conveyed this information to Sheo Muni. Sheo Muni, his cousin Musafir, uncle Parshad, and Sheo Muni's father Parsan rushed to that field. These men drove out the cows from the field, and were taking them towards the cattle pound. The cows, however, filed, and got mixed in other cows which were grazing in an adjourning field belonging to Kalkatti Halkhor. Sheo Muni and his relations were picking up the cows belonging to the accused from the herd. At this time the appellants, arrived there with lathis. They objected to the taking of the cows to the pound. Sheo Muni's party insisted on taking the appellants' cows to the pound. Thereupon all the four accused attacked Sheo Muni and his relations with lathis. Musafir and Parsan fell down as a result of their injuries. The same day Sheo Muni lodged a report about the occurrence. The injuries received by Sheo Muni and his relations were medically examined. Musafir died after a few days as a result of his injuries. The four accused were, therefore, prosecuted for causing Musafir's death and for causing injuries to Sheo Muni, Ram Parshad and Parsan. All the four accused pleaded not guilty. They said that they had been implicated due to enmity. In the alternative, it was pleaded that Sheo Muni and others were beaten in the exercise of the right of private defence.

3. The learned Sessions Judge held that the four accused jointly beat Sheo Muni and others. The plea of private defence was overruled by the Court. It was held, that the offence under Sec. 304, I.P.C had not been made out against any accused. In the result, all the four accused were convicted under Sec. 325 and 323, I.P.C read with Sec. 34, I.P.C

4. It is common ground that, there was a quarrel between the parties over the question whether certain cows should be taken to the pound or not. The prosecution examined a number of eye-witnesses. Sheo Muni (P.W 1), Ram Prashad (P.W 3) and Parsan (P.W 14) are the three injured men. The other eye-witnesses are Hasan Ali Khan, Suleman Khan, Deo Narain and Ganga. Their names were mentioned in the first information report (Ex. P-2) lodged by Sheo Muni. The learned Sessions Judge accepted the evidence of Deo Narain and Ganga. No witnesses were examined in defence. There is, therefore, ample evidence to prove that, the four accused beat Sheo Muni and others, because Sheo Muni's party insisted on taking the cows to the pound, while the accused objected.

5. Medical evidence shows that, Sheo Muni received two injuries. Musafir received two injuries. Ram Prashad received five injuries; and Parsan received four injuries. These four men received 13 injuries in all. Musafir's post-mortem examination revealed fracture of skull bones. Dr. Tangri noted that death was due to heart failure as a result of injuries received during Musafir's life time.

6. There is evidence to the effect that, some cows were grazing in a field belonging to Sheo Muni. Sheo Muni justified in driving out those cows from the field and taking them to a pound. But complication arose, because those cows got mixed up among the cows, which were grazing in the field of Kalkatti Halkhor. Sheo Muni's Party picked up some cows from that herd, and were driving those cows to the pound. The appellants objected. Sheo Muni's case was that, the cows, which were ultimately being driven towards the pound, were identical to the cows, which were initially grazing in Sheo Muni's field. The contention of the defence was that, the cows, which were being ultimately led towards the pound, had never grazed Sheo Muni's field. The learned Sessions Judge went into this question carefully. He remarked that the evidence of the prosecution on the point that the cows, which were picked out by Sheo Muni and his party men in order to take them to the cattle pound, were those which had grazed the field is not satisfactory. The cows, which were grazing in Sheo Muni's field, were white. The cows, which were grazing in Kalkatti Halkhor's field, were also white. So the question of picking out the offending cows was of some difficulty. The finding of the learned Sessions Judge that the identity of the cows has not been established may be accepted. The learned Sessions Judge summarised the position thus:—

“The defence has only succeeded in proving that the evidence was not satisfactory to prove that the cattle which Sheo Muni and his men were taking to the cattle pound grazed the field. But it has also not been proved by the defence that the cattle which they were taking to the cattle pound did not graze their field”.

7. Since identity of the cows has not been established the accused must get the benefit of doubt. In other words, we have to proceed on the footing that, cows belonging to the accused were being wrongly driven towards the pound by the Sheo Muni's party.

8. The learned Sessions Judge observed that, even on this basis, the accused were not entitled to exercise the right of private defence. The Court held that Sheo Muni's party might be under an honest mistake. He held that in such a case an accused cannot exercise the right of private defence. Reliance was placed upon “Faiyaz Khan v. Rex A.I.R 1949 All. 180.”. In that case it was observed by Agarwala, J. on page 183 thus:—

“Right of private defence does not arise merely because an unlawful or wrongful act has been done. It arises only when that unlawful or wrongful act is an ‘offence’……Not only that, it must be an offence of particular kind. In the case of defence of person, it must be an offence ‘affecting the human body’ and, in the case of defence of property, it must be either theft, or robbery, or mischief, or criminal trespass, or an attempt to commit any of these offences”.

9. These observations were made with reference to Sec. 97, I.P.C The learned Judge did not discuss the effect of Sec. 98, I.P.C Sec. 98, I.P.C states:—

“When an act, which would otherwise be a certain offence, is not that offence ….by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.”

10. Sec. 98 makes it clear that, a person does not lose the right of defence of property merely because the opposite Party is under misapprehension. The point has been made clear in illustration (b) to Sec. 98, I.P.C So in the present case the accused were entitled to exercise the right of private defence of property, even if Sheo Muni's party was under the wrong impression that the cows in dispute had really grazed Sheo Muni's field.

11. The evidence shows that Sheo Muni and his relations insisted on taking these cows to the pound. They persisted in taking the cows to the pound in spite of the appellants' objection. In view of the attitude taken up by Sheo Muni's party, it became necessary for the accused to use some force to recover the cows from Shea Muni's custody. The appellants cannot be blamed for the use of reasonable force for rescuing their cattle from Sheo Muni's party.

12. The question arises whether the appellants exceeded the right of private defence of property. There is no medical evidence to show that, any accused received any injury. There was, therefore, no question of right of private defence of the person. The case was merely one of private defence of property. Since the opposing party consisted of as many as four persons, a little violence was permissible. The accused cannot be blamed for causing simple and grievous hurts to Sheo Muni's party. The right of private defence of property did not extend to the voluntary causing of death of Musafir. It appears that some one from the four accused exceeded the right of private defence.

13. It is, however, difficult to say which particular accused exceeded the right of private defence. The learned Sessions Judge relied upon the statements of Deo Narain (P.W 11) and Ganga (P.W 15). According to Deo Narain's statement, Ram Prashad gave a lathi blow to Musafir, Musafir fell down. Later all the four accused struck Musafir and others with lathis. This account suggests that Ram Prashad was responsible for the most serious blow received by Musafir. The account given by Ganga (P.W 15) was somewhat different. According to Ganga's statement, Ram Prashad gave the first lathi blow to Musafir. The second lathi blow was inflicted on Parsan by Balli. Thereafter all the four accused persons started beating all the four persons. On receiving these injuries, Musafir and Parsan fell down. From the account given by Ganga witness one does not know which accused was responsible for delivering the fatal blow to Musafir. Two bruises were noticed on Musafir's body. It appears that Musafir received two blows. The first injury was just a swelling on the forearm. The second injury was a bruise with a depression all round on the head. It appears that injury no. 2 proved fatal. One does not know which particular accused was responsible for the fatal blow on the; head. It is not, therefore, possible to fix the responsibility on any particular accused for exceeding the right of private defence.

14. All the four accused were at first lawfully exercising the right of private defence. They were not committing any illegal act. In order to attract Sec. 34, I.P.C a criminal act has to be done by a number of persons. If a number of persons are doing a lawful act, Sec. 34, I.P.C has no application. So although one accused was responsible for causing Musafir's death unlawfully, other accused cannot be held responsible on the principle of Sec. 34, I.P.C The result is that none of the accused would be convicted of any offence. The appeal is allowed. Ram Prashad Ahir, Harakh Ahir, Balli Ahir and Ram Nath Ahir are acquitted of the charges under Secs. 325 and 323, I.P.C read with Sec. 34, I.P.C Their bail bonds are discharged. If any fines have already been paid, they shall be refunded.

15. Appeal allowed.