JUDGMENT P.T. Raman Nayar, J. 1. The appellant was the 1st of the two accused at the trial. He was charged with murder, his offence being that he caused the death of the deceased Ouseph, an old man of 62, by kicking him in the stomach in an attempt to free his friend, the 2nd accused, whom Ouseph and some of his relatives had caught and were holding in confinement, on discovering him in the compound of Ouseph's house under suspicious circumstances late in the night. (According to the prosecution the accused had gone there to elope with the deceased's daughter with whom the 1st accused was in love.) The 1st accused admitted having kicked the deceased, and his plea was one of private defence of the body of the 2nd accused. The plea was not accepted by the Trial Court which convicted the 1st accused under S. 323 I. P. C. and sentenced him to suffer rigorous imprisonment for one year, the 2nd accused who was charged with abetment of the murder being altogether acquitted. The 1st accused appealed and his appeal was heard by a Division Bench of this Court in Criminal Appeal 236 of 1957. The case had ] already been taken up suo motu in revision and the revision was heard along with the appeal. The Bench agreed with the Trial Court in rejecting the 1st accused's plea of private defence, but thought that his offence was a graver offence than that of which the Trial Court had convicted him. In that view it set aside the conviction and the sentence recorded against the 1st accused and sent the case back to the Trial Court for fresh disposal. When the case went back to the Trial Court, that court did not hold a fresh trial but, acting on the evidence recorded at the original trial and hearing arguments afresh, proceeded to convict the 1st accused under the second part of S. 304 I. P. C. and to sentence him to undergo rigorous imprisonment for five years. Against that conviction and sentence, the 1st accused has come up with his present appeal. 2. There can be no doubt that what this court ordered in Crl. Appeal 236 of 1957 was a retrial. This is indeed what S. 423(1)(b) Criminal Procedure Code contemplates and the power exercisable in revision under S. 439 is this very same power. Against that conviction and sentence, the 1st accused has come up with his present appeal. 2. There can be no doubt that what this court ordered in Crl. Appeal 236 of 1957 was a retrial. This is indeed what S. 423(1)(b) Criminal Procedure Code contemplates and the power exercisable in revision under S. 439 is this very same power. But there was no retrial, and the conviction of the 1st accused on the evidence recorded at the original trial (which trial had, as it were, been set aside) virtually amounts to a conviction without a trial. It necessarily follows that the conviction and the sentence cannot be upheld and must be set aside. 3. The question remains whether I should order a retrial which would be the normal course to follow. I do not however think that, in the special circumstance of this case, it is necessary in the interests of justice to do so. 4. It has been argued on behalf of the 1st accused that he had the right of private defence since, put at the worst, the offence committed by the 2nd accused was only one falling under S. 447 I. P. C. To defend his property against such an offence, the deceased had no doubt the right to use the force necessary to throw the 2nd accused out, but he had not the right to arrest him and keep him in confinement. Such confinement was not necessary for the protection of the property, and under S. 59 of the Criminal Procedure Code, the right of arrest given to a private person is confined to cases where a non bailable and cognizable offence has been committed, whereas an offence under S. 447 I. P. C., though cognizable is bailable. Therefore the deceased and his relatives neither acted in the right of private defence nor within the power given to them under S. 59 Crl. Procedure Code, in catching and detaining the 2nd accused. In doing so they committed the offence of wrongful confinement and against that offence the 1st accused had a right of private defence and was entitled to use the force necessary to release the 2nd accused from confinement. 5. I am inclined to agree that the 1st accused had a right of private defence. But, even so, it would appear that he exceeded his right and caused more harm than was necessary. 5. I am inclined to agree that the 1st accused had a right of private defence. But, even so, it would appear that he exceeded his right and caused more harm than was necessary. No injury or hurt was threatended to the 2nd accused, and for the purpose of releasing the 2nd accused, it was hardly necessary to kick an old man of 62 so hard in a vital region like the stomach as to cause his death on the spot. There can be no doubt that the kick must have been a violent kick, for it caused a contusion 7"x3" over the epigastric region. Indeed I should think that I am bound by the finding of the Division Bench and cannot, even if I were so minded, regard the 1st accused's act as completely justified by private defence. But I take the view that the 1st accused had the right of private defence. Only, he exceeded that right and therein lies his offence. 6. It would thus appear that although the 1st accused's offence is one falling under the second part of S.304 I. P. C., the circumstances are such-it is to be remembered that he gave only one kick -- that a light sentence would have met the ends of justice. The 1st accused has already, after the second conviction, been in jail for seven months. It would also appear that he was in jail for some period during his first trial and he has been in jail since his retiral was ordered in August 1958. Although the exact period is not available from the records, it would appear that in all he has been in jail for well over a year which, in the circumstances, I should regard as a sufficient punishment. The effect of ordering a retrial would be to invite a fresh conviction and a further sentence which seems to me unnecessary and unjust. 7. In the result I allow the appeal, set aside the conviction and sentence recorded against the appellant (1st accused) and direct that he be discharged.