JUDGMENT 1. In this case the Appellant Baseruddin Sheikh has been convicted on the unanimous verdict of a jury under sec. 326 of the Indian Penal Code and has been sentenced to five years' rigorous imprisonment. The accused was charged along with six others under sec. 148. I. P. C., and there was a specific charge under sec. 304, I. P. C., against him and two others--Naburali Sheikh and Fatik Faraji. The jury found all the accused not guilty under sec. 148, I. P. C., found two other accused who were specifically charged under sec. 324 not guilty and convicted the Appellant and the two others, Naburali Sheikh and Fatik Faraji, who were charged jointly with him under sec. 304, I. P. C., under sec. 326 of the said Code. The prosecution case briefly was that the party went to seize the wife of the accused Naburali Sheikh and in the course of this, Jeher Sheikh, the father-in-law of the accused Naburali Sheikh, was attacked and received certain injuries as a result of which he subsequently died. The evidence is that the present Appellant caused an injury on the right arm which the Medical Officer of the hospital who examined it described it as slight. The main injury which caused the death of the deceased was a severe injury on the left arm. 2. The learned Judge in charging the jury has nowhere mentioned or explained the provisions of sec. 34 of the Indian Penal Code. In his reference to the specific charge against the three accused Naburali, Baseruddin and Fatik under sec. 304. I. P. C., there is some implied suggestion of some of the provisions of sec. 34. I. P. C., and some suggestion that there was evidence of joint liability among the three accused for the death. But when the learned Judge told the jury to consider the case under sec. 326, I. P. C., he has given no assistance in considering how far the present Appellant Baseruddin should be liable for the injuries caused by the other two and the results thereof. Again, in dealing with the question of the right of private defence the learned Judge has mentioned that this might be considered in the case of Naburali and Fatik although in fact the directions he gives on the question are quite unsound. Again, in dealing with the question of the right of private defence the learned Judge has mentioned that this might be considered in the case of Naburali and Fatik although in fact the directions he gives on the question are quite unsound. He says "You will have to consider whether the accused party had the right of private defence or not. I should tell you that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt," a very inadequate and incorrect exposition of the subject. It is true that the main defence of the present Appellant was that he had taken no part whatever in the occurrence and had been merely implicated out of enmity; nevertheless we think that the learned Judge should have pointed out to the jury that if they did not accept this defence and considered that the accused had taken part in it as stated by the prosecution, they should consider whether on the prosecution evidence and in view of what had been elicited, there had been sufficient material to show that the accused either acted in the right of private defence or in excess of it and that the jury, in considering whether he had exceeded the right of private defence, might be influenced if they held the view that the only offence he could be held guilty of was one under sec. 324, I. P. C., in view of the medical evidence that the actual injury caused by him was slight. 3. There are several other misdirections in the charge which we do not think it necessary to discuss at length. If the matter was fairly put to the jury they might have returned a verdict under sec 326, I. P. C., against the accused Baseruddin or they might have convicted him under sec. 324 of the said Code or they might possibly have found he did not exceed the right of private defence. In the circumstances we think that it is not possible in view of the mis-directions to uphold the verdict of the jury. 4. We accordingly allow the appeal, set aside the conviction and sentence under sec. 326, I. P. C., and direct that the Appellant Baseruddin Sheikh be retried according to law. In the meantime the Appellant will remain on the same bail.