JUDGMENT 1. The Appellant Nur Miah has been convicted under sec. 304, Part I of the Indian Penal Code and sentenced to five years' rigorous imprisonment, the verdict of the jury being unanimous. The case arose out of what may be called a fight between two parties as a result of which one Imanali was killed, and it is alleged by the prosecution that Nur Miah was responsible for the fatal blow. The prosecution had one version of the case to the effect that the Opposite Party had caught some of the cows of Nur Miah which had been damaging their crop and were taking them into the pound when Nur Miah stopped them and there was a struggle and the fight developed. The defence version was that the accused was milking his cow when he was attacked by the opposite party and pursued by them up to and into his dwelling hut. There Imanali struck him on the head with a konch, that he snatched the konch away from the hand of Imanali and returned the blow on his head. 2. The learned Judge's charge to the jury has been attacked before us on the ground that he has misdirected the jury on the question of the right of private defence of the body. The learned Judge has said: The fact that Imanali struck the accused first, if true, is quits immaterial in your consideration of the situation, for such act would not give the accused any right of private defence, because the offence apprehended had already been done; and after the accused had snatched away the weapon from the hand of Imanali making him totally unarmed, there was nothing in the conduct of Imanali to cause any apprehension of death or grievous hurt in the mind of the accused then, The accused could at best apprehend some assaults by lists of Imanali, if Imanali was in the room at the time, and there was absolutely no such apprehension even if Imanali was outside the room at the time as we are told by the witness Makbul Ahmed. 3. Later, in dealing with the right of private defence of property the learned Judge says: It is only when you have decided that the occurrence took place in the house of the accused that you should apply your mind to this point. 3. Later, in dealing with the right of private defence of property the learned Judge says: It is only when you have decided that the occurrence took place in the house of the accused that you should apply your mind to this point. In that case after you have accepted the story of the accused as given in his F. I. R. to be true, you should see that Imanali and his people were inside the dwelling but of the accused Nur Miah for the purpose of assaulting him, There was thug a criminal trespass on the part of Imanali that amounted to a house-trespass and if the accused apprehended death or grievous hurt from the circumstances of the situation at the hand of Imanali he was entitled to exercise the right of defence of property and to cause the death of Imanali or any assault upon him to prevent the offence. 4. The learned Judge then proceeded to tell the jury that if they were of opinion that the accused had caused the death of Imanali in the exercise of the right of private defence of his person or property as explained previously, then he should be found not guilty of the charge. On the other hand, if they were not prepared to find the accused had such right under the circumstances he must be held guilty of the offence. 5. It will be seen that there is a complete contradiction between the two parts of the charge dealing with the right of private defence of person and the right of private defence of property. In fact the accused received a number of injuries in the course of the attack. His version is that one Idris has a chheni, Imanali a konch, another man Naderuzzaman had a chal and Akhteruzzaman a lathi and that he was given two blows with the chheni by Idris, Naderuzzaman struck him with a chal on his left hand and Akhteruzzaman struck him with lathi on his left leg while Samsul Hnq struck him two lathi blows on the shoulder. It will thus be seen that according to his version he was attacked by a number of armed men, he snatched the weapon of one of them and clearly in self-defence he struck out and happened to hit one man of the party whose weapon he had seized. It will thus be seen that according to his version he was attacked by a number of armed men, he snatched the weapon of one of them and clearly in self-defence he struck out and happened to hit one man of the party whose weapon he had seized. This happened according to him in his own hut. To direct the jury in these circumstances that merely because the particular individual struck by the accused happened to have been disarmed by the accused himself and that, therefore, the accused no longer had the right of private defence of the body is totally wrong. Later, in dealing with the right of private defence of property the learned Judge gives approximately correct directions, but we think that the jury must have been hopelessly confused as to what was the correct law to apply to the matter in view of the error of directions on the question of the right of private defence of the body. 6. The result is that the conviction in the circumstances cannot possibly be upheld. The only question that remains is whether there should be a retrial in this case. It appears that the accused had already previously been tried for the offence and convicted but a retrial was ordered on appeal by the Sessions Judge. He has been in jail during part of the commitment of trial proceedings and since the present conviction on the 3rd of April, 1945. We consider that having regard to the evidence in the case he should not be further harassed by a further re-trial. We accordingly decline to order such re-trial. The result is that the appeal is allowed. The conviction and sentence under sec. 304, Part I of the Indian Penal Code are set aside and the accused is acquitted. He is directed to be set at liberty forthwith.