JUDGMENT H.P. Asthana, J. - The Appellants Shri Kishan, Bansu and Tirra have each been convicted u/s 304 read with Section 34 I.P.C. and have been sentenced to 5 years' rigorous imprisonment and a fine of Rs. 50/-, and in default of payment of fine to 6 months' further rigorous imprisonment, by the learned Sessions Judge of Banda. 2. The prosecution case is that on the 3rd August, 1952, P.W. 4 Bhura, who is a boy of 11 or 12 years of age, had taken his bullocks for grazing in his pasture land; that one of the bullocks (sic) into the pasture land of the accused Sri Kishan; that Bhura could not take out that bullock from the pasture land and went home and informed his father Gajraj Singh about it; that in the meantime Sri Kishan also came there and complained to his father Gajraj Singh about the bullock straying into his pasture land; that Gajraj Singh told him that it would not go there in future and sent his son Bhura to bring back the bullock from there. It is further alleged that Bhura brought the bullock from the pasture land of Sri Kishan and while he was on his way to his home he was surrounded by the three accused who wanted to take the bullock to the cattle pound; that Gajraj Singh and his other son Kallu Singh, who is about 8 or 9 years old, went there and asked the accused not to take the bullock to the cattle pound but they insisted on it, and thereupon there was an exchange of hot words between them and the three accused beat Gajraj Singh with lathis as a result of which he died the same evening. The report of the occurrence was made by Smt. Sukhdarya, widow of Gajraj Singh, the next morning on the 4th August 1952, at 6-30 a.m. at Polire Station Badausa which is at a distance of about 10 miles from the scene of occurrence. The Appellants and one Baldeo were named in this report as the persons who had assaulted her husband, After the report the police went to the house of Gajraj Singh and found his dead body there. It was sent to Karwi for post mortem examination which was performed on the 5th August, 1952, at 11-45 a.m. by Dr. S.M. Patankar, Medical Officer, Karwi. It was sent to Karwi for post mortem examination which was performed on the 5th August, 1952, at 11-45 a.m. by Dr. S.M. Patankar, Medical Officer, Karwi. The postmortem report disclosed that the deceased Gajraj Singh had 6 injuries on his person, one of which was a contusion and the rest were contused wounds on the different parts of the body; that his spleen was ruptured and that his death was due to haemorrhage and shock resulting from the rupture of the spleen. 3. The accused denied that they had inflicted the injuries on Gajraj Singh. They stated that they had been falsely implicated on account of enmity. They did not produce any evidence in their defence. 4. The prosecution examined P.W. 1 Sheo Balak Ram, P.W. 2 Karimuddin, P.W. 3 Sheoraman, P.W. 4 Bhura, P.W. 5 Kallu Singh, P.W. 6 Smt. Sukhdei and P.W. 7 Mushtaq Ahmad. Of these witnesses only P.W. 4 Bhura, P.W. 5 Kallu Singh and P.W. 6 Smt. Sukhdei are the eye-witnesses of the occurrence. P.W. 3 Sheoraman, who is also the son of Gajraj Singh deceased, is not a witness of the occurrence. He deposed that his mother Smt. Sukhdei informed him about the occurrence and then he went with her to the scene of the occurrence and brought Gajraj Singh home. The other witnesses are more or less formal. 5. The learned Sessions Judge after a consideration of the above evidence was of the opinion that Gajraj Singh died as a result of the beating he received in the afternoon of the 3rd August, 1952 and that the three accused had beaten him. He did not believe the defence theory that Gajraj Singh had been beaten the previous night by someone who had not been seen. On the above findings he convicted and sentenced the Appellants as stated above. 6. It cannot be disputed that Gajraj Singh was beaten on the 3rd August, 1952 and died as a result of the injuries received by him. The post mortem examination was performed on the 5th August 1952, at 11-45 a.m. and it appears from the post mortem report that his death had taken place about 40 or 44 hours before the post mortem examination. It also appears from the medical evidence that several ribs of Gajraj Singh were fractured and his spleen was ruptured due to the injuries. It also appears from the medical evidence that several ribs of Gajraj Singh were fractured and his spleen was ruptured due to the injuries. The main question which arises for consideration is under what circumstances Gajraj Singh was beaten and whether he was beaten by the accused. There does not appear any satisfactory reason to disbelieve the evidence of the three eye-witnesses, namely, Bhura, Kallu Singh and Smt. Sukhdei, that he was beaten with lathis by the accused. It, however, appears from the evidence of these witnesses that the bullock of Gajraj Singh had strayed into the pasture land of the accused Sri Kishan and Sri Kishan and the other accused wanted to take it to the cattle pound; that Gajraj Singh resisted it and there was an exchange of hot words between him and the accused. It further appears from their evidence that Gajraj Singh and the accused were armed with lathis and that there was an exchange of lathi blows between them but the lathi of Gajraj Singh did not strike the accused whereas Gajraj Singh was severely injured. It was contended before me on behalf of the Appellants that in the circumstances the accused could not be convicted of the offence u/s 304 I.P.C. because they had full right to take the bullock to the cattle pound; that Gajraj Singh had no right to forcibly rescue it from the possession of the accused and that the accused acted in self-defence when they resisted the attempt of Gajraj Singh to rescue the bullock and inflicted injuries on him. Learned Counsel for the State argued that from the prosecution evidence it did not appear that Sri Kishan seized the bullock while it was grazing in his pasture land. He contended that the bullock was seized after it had already been taken out of the pasture land by P.W. Bhura. After a perusal of the prosecution evidence I am of opinion that the contention of the learned Counsel for the State is not correct. It appears from the evidence of P.W. Bhura that Sri Kishan was present in the pasture land when the bullock of Gajraj Singh was grazing there. It also appears from his evidence that Sri Kishan had driven the bullock from the pasture land. It appears from the evidence of P.W. Bhura that Sri Kishan was present in the pasture land when the bullock of Gajraj Singh was grazing there. It also appears from his evidence that Sri Kishan had driven the bullock from the pasture land. P.W. 5 Kallu Singh, who is also a son of Gajraj Singh, stated in his evidence that Sri Kishan caught the bullock in the pasture land and brought it in the Tari of Pattidar and that his brother Bhura followed it. He further stated that he, Bhura and his father Gajraj Singh, prevented Sri Kishan from taking the bullock; that Sri Kishan insisted on taking it to the cattle pound; that thereupon there was an exchange of hot words between them; that Sri Kishan stood there holding the bullock and his father Gajraj Singh also stood there; that thereafter there was an altercation and both the parties plied lathis; that when Sri Kishan raised his lathi, Gajraj Singh also raised his lathi; that Bhura drove the bullock towards the village and then a marpit started and lathis were plied and all the accused gave two lathis blows each to his father who too plied his lathi but could not strike anyone. It also appears from the prosecution evidence that Gajraj Singh raised an alarm when he was being beaten but the village people did not come to his help as they were not pleased with Gajraj Singh. There does not appear any satisfactory reason why Sri Kishan would not have seized the bullock when it was grazing in his pasture land and he was present there. If he had already allowed Bhura to take the bullock from his pasture land and he was satisfied merely with making a complaint to Gajraj Singh about it, there does not appear any satisfactory reason why subsequently Sri Kishan would have taken it into his head to go to the house of Gajraj Singh and seize the bullock from the possession of Bhura in order to take it to the cattle pound. 7. P.W. 4 Bhura in his statement said that he could not bring the bullock from the pasture land when it strayed there but he did not state in his evidence as to why he could not take it out. 7. P.W. 4 Bhura in his statement said that he could not bring the bullock from the pasture land when it strayed there but he did not state in his evidence as to why he could not take it out. This statement is significant and indicates that Sri Kishan who was present there at that time did not allow him to take away the bullock and it was for this reason that he could not bring it back from there. In view of the above evidence I am of opinion that the accused seized the bullock when they found it grazing in the pasture land of Sri Kishan and wanted to take it to the cattle pound but they were resisted by Gajraj Singh and the members of his family; that the accused insisted in taking it to the cattle pound and that this resulted in a marpit. The learned Sessions Judge in his finding did not state in what circumstances Gajraj Singh had been beaten and it appears that on account of this omission in his finding he did not proceed further to consider the question whether in the circumstances in which the occurrence took place the accused had committed any offence or not and whether they were entitled to the right of self-defence. 8. The question which next arises for consideration is whether on the circumstances in which the occurrence took place the accused committed any offence or not. In my opinion the accused were entitled to the right of self-defence in spite of the fact that they did not plead such self-defence in their state ments. The reason why they did not plead it is obvious. They did not want to take the responsibility of beating Gajraj Singh because they did not know whether after that admission they could be justified in beating Gajraj Singh, or not. It has been held in Kishan L.al and Ors. v. Emperor 22 A.L.J.R. 501 that even where a right of private defence is not pleaded the court, on finding on the evidence before it, that the accused acted in the exercise of his right of private defence is bound to take cognisance of the fact. In the case of Udit Singh and Ors. v. Emperor 22 A.L.J.R. 501 that even where a right of private defence is not pleaded the court, on finding on the evidence before it, that the accused acted in the exercise of his right of private defence is bound to take cognisance of the fact. In the case of Udit Singh and Ors. v. Emperor AIR 1925 Pat 762 some cattle belonging to the complainant were doing damage to the field of the accused and consequently they seized them and were taking them to the cattle pound. In the meantime the complainant and his men came and began to rescue the cattle by use of force. The accused, however, succeeded in taking some of the cattle to the pound but the accused party inflicted some injuries on the party of the complainant. It was held that the act of the complainant in rescuing the cattle was unlawful and therefore the accused were protected by their right of private defence. It was, further, held that the question of exceeding the right of private defence did not always depend upon the amount of injuries caused. In this connection it may be mentioned that the Appellants had a right u/s 10 of the Cattle Trespass Act to seize the bullock when it was found grazing in the pasture land of Sri Kishan and take it to the cattle pound. It is further clear from Section 24 of the Act that the owner of the cattle or anyone else is not entitled to resist the seizure of the cattle and their taking to the cattle pound, and when Gajraj Singh forcibly wanted to rescue the bullock from the possession of the accused he was guilty of the offence u/s 378 or 392 IPC. The accused had full right to prevent the bullock from being forcibly taken by Gajraj Singh and also to inflict injuries on the person of Gajraj Singh in case it was necessary to enforce the right. 9. The question which further arises is whether any of the accused acted in excess of the right of self-defence. It appears from the prosecution evidence that each of the accused gave two lathi blows to Gajraj Singh. There is no satisfactory evidence On the record that the accused exceeded their right of self-defence. Moreover, even if such right was exceeded then only that person can be held responsible for it who exceeded it. It appears from the prosecution evidence that each of the accused gave two lathi blows to Gajraj Singh. There is no satisfactory evidence On the record that the accused exceeded their right of self-defence. Moreover, even if such right was exceeded then only that person can be held responsible for it who exceeded it. 10. Considering the entire evidence on the record I am of opinion that the conviction and sentence of the Appellants u/s 304/34 I.P.C. cannot be maintained. This appeal is therefore allowed and the conviction and sentence of the Appellants under the aforesaid section is set aside. As they are on bail they need not surrender; their bail bonds are discharged. The fine, if paid, shall be refunded.