A. S. SARELA, N. G. SHELAT, J. ( 1 ) THUS Mr. Shukla has proceeded to argue before us on the assumption that one stick blow was given by the appellant-accused No. 1 which hurt Karamshi on his head at about 12 noon on 27-7-63. He has however advanced two contentions before us. The first is that in the field bearing survey No. 25 belonging to the appellant there was standing Juwar crop and the deceased Karamshi had taken his cattle for grazing and in fact had caused damage to his crop. It was on hearing or com- ing to know about it that he went there and as he found Karamshi as also his cattle grazing in his field and thereby committing trespass and causing mischief he had every right to take or ask Karamshi to have his cattle taken to the cattle-pound and when he asked him to do so not only he refused but on the contrary began to beat him and it was that way that as he apprehended that he would cause grievous hurt or the like by reason of his having an iron-shod stick with him that he had in exercise of his right of private self defence given a blow with the stick that he had which hurt him on his head. He is therefore according to him completely exonerated of liablity for the injury caused to Karamshi on his head. Another contention made out by him is that now with the finding of the learned Sessions Judge that there was no common intention on the part of all the three accused to bring about the death of Karamshi and when the charge against him remains in respect of his having brought about his death by reason of an injury caused to him with a stick the liability or otherwise of the appellant would arise out of his own act alone. Since that act was in respect of only one injury by him with a stick though no doubt on his head but when the evidence led by the prose- cution shows that there were two injuries caused on the head of deceased Karamshi and when it is not clear from evidence as to which of the two blows brought about his death he can be attributed with the minimum intention or knowledge regarding his act and his liability cannot therefore be more than that of an offence of voluntarily causing hurt with a stick so as to be punishable under sec. 323 of the Indian Penal Code and not for an offence of murder under sec. 302 of the Indian Penal Code. Before we go to the first point raised by Mr. Shukla with regard to the exercise of the right of private defence we have first to find out as to for which offence in case we come to the conclusion that the plea of self-defence is not available or is not established he would be guilty of. ( 2 ) NOW in respect of the main charge under sec. 302 read with sec. 34 of the Indian Penal Code against all the three accused with regard to the death of Karamshi it has been found by the learned Sessions Judge as not established and all of them are acquitted in respect of that charge. Thus there exists no case of common intention contemplated in sec. 34 of the Indian Penal Code shared by this appellant with any other persons and consequently the question of liability would obviously turn on the act indivi- dually committed by the appellant. It is amply established and even in respect of which there is no dispute that the appellant had an iron-shod stick and it was with that stick that he had given a blow which hurt Karamshi on his head in the noon of 27-7-63. That injury is taken as fatal by the learned Sessions Judge and it is that way that he is found guilty of an offence of murder of Karamshi. It was urged by the learned Assis- tant Govt. Pleader that the learned Sessions Judge has found that only one blow was on his head as in respect of the other blow on him in view of the medical evidence he has acquitted accused No. 2. It was urged by the learned Assis- tant Govt. Pleader that the learned Sessions Judge has found that only one blow was on his head as in respect of the other blow on him in view of the medical evidence he has acquitted accused No. 2. While it is one thing to acquit a person in respect of any such act it is another to say that therefore there remained one injury and since it was caused by the appellant it being fatal he would be guilty under sec. 302 of the Indian Penal Code. We have first to examine as to how many injuries were found on his head and if they were two and the medical evidence is consistent in that respect it is obvious that the liability of the appellant cannot be as is sought to be made out by the learned Assistant Govt. Pleader and found by the learned Sessions Judge. The story in the first information report Ex. 5 was given by eye-witness Bhima at about 4-30 p. m. on that very day before the Police Patel and it clearly sets out that while this appellant had given one blow with a stick on the head of Karamshi one other blow with a stick was also given by his brother Jaga Sura-accused No. 2 which hurt him on his head. Bhima has also stated the same thing and that again finds support from another eye witness Sujan examined in the case. According to Sujans evidence while Gator Sura inflicted one stick blow on the head of Karamshi Jaga Sura inflicted a blow which hurt him above the eye of Karamshi and then Karamshi fell down on the ground. The third eye-witness is Pamu Versi of about 10 years of age. She is the daughter of the sister of Bhima and she has also given similar evidence in the case. Both these witnesses are however not so very clear as to on what side whether the right side or the left side the blows had fallen on Karamshi. The fact however remains that the case of prosecution as disclosed from the evidence of Bhima and others was about two blows given on the head of Karamshi one by the appellant and the other by accused No. 2. If we then turn to the evidence of Dr. The fact however remains that the case of prosecution as disclosed from the evidence of Bhima and others was about two blows given on the head of Karamshi one by the appellant and the other by accused No. 2. If we then turn to the evidence of Dr. Vaidya he does not say that the injury found on the head of Karamshi was a result of only one blow as thought by the learned Sessions Judge. According to him the injury noticed by him was possibly by one or two blows. Since it created doubt in his mind about the number of blows Karamshi had received on his head and as accused No. 2 was said to have given a blow on his forehead he came to be given the benefit of doubt in that respect. Now both blows were given by instrument like stick. Dr. Vaidyas evidence further shows that the swelling was 5 x 3 and it may be the result of two injuries as accord- ing to him the swelling of the two injuries might have connected each other. If the two injuries were just near each other they would result in only one swelling. In other words all along the case of the prosecution was and which also was borne out by the medical evidence that the injuries on the head of Karamshi were as a result of the two blows given on his head. The witnesses may not be able to say clearly as to on what side and what part of head those blows had fallen. At any rate it can be easily said that the injuries on head were as a result of two blows with sticks and at any rate the evidence does not rule out the same by establishing that only one blow was given on the head of Karamshi. In those circumstances after accused No. 2 has been acquitted of the charge it would hardly lie in the mouth of the prosecution now to say that the medical evidence tends to suggest about only one injury being caused on the head and that since that injury was caused by the appellant he must be held liable for the death resulting therefrom. Going further which of the two blows was fatal is in no way clear and obviously cannot be so clear for the reason that Dr. Going further which of the two blows was fatal is in no way clear and obviously cannot be so clear for the reason that Dr. Vaidya has all along remained in a doubt as to whether the injury found on the head of Karamshi was as a result of one blow or two blows. Nor is it possible to make out as to on what particular part of the head the injury was caused by the appellant and the other by another person. When such is the position it cannot be said that it was by reason of the blow given by the appellant that the entire injury was caused and that alone brought about the death of Karamshi. The benefit arising out of such a doubtful position would obviously go to the accused in the circumstances of the case. The offence in that respect for which the appellant can be held responsible would be on the basis of the minimum intention actuating his act and thereby giving vise to his liability for the same. It was in this connection urged by Mr. Nanavati the learned Assistant Govt. Pleader appearing for the State that the appellant was armed with an iron-shod stick and that when he chose to give a blow with it on his head a very vital part of the body he should be taken to have intended to kill him and that in that event even if he had given one blow his act should be taken to have brought about his death as a result thereof so as to be liable for an offence under sec. 302 of the Indian Penal Code. It was also said that it is immaterial whether the other injury caused on the forehead contributed to his death. A blow with such an instrument on such a vital part of the body is in all probability likely to bring about his death and that in any view of the case according to him the offence for which he is liable would be one under sec. 302 of the Indian Penal Code. This argument lacks the appreciation of a very obvious fact that once the Court came to the conclusion that all the accused did not share any common intention to cause death of Karamshi the individual liability with regard to his individual act would arise. 302 of the Indian Penal Code. This argument lacks the appreciation of a very obvious fact that once the Court came to the conclusion that all the accused did not share any common intention to cause death of Karamshi the individual liability with regard to his individual act would arise. Besides it cannot be said on the evidence as it stands with any certainty that the blow given by the appellant was by itself so fatal as to bring about his death. It is possible that both the blows together may have a cumulative effect to result in his death. It may well be that a second blow which was alleged to have been given by another accused and which hurt deceased Karamshi on his forehead may have been fatal or had even accelerated or led to his death which one single blow may not have brought about his death. The ques- tion of intention to cause his death besides can be easily ruled out in the circumstances of this case as the quarrel was of a sudden nature arising out of the suspicion about the cattle of Karamshi having caused damage to the crop of the appellant in his field Besides they bore no enmity and no grudge whatever against each other. In no case therefore the argument of the learned Assistant Govt. Pleader can be accepted to say that the appellant intended to cause his death or intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause his death. On the contrary in such circumstances when a person is said to have given one blow with a lathi on the head of the deceased it has been held in several cases that one can only impute knowledge that such an injury was likely to cause death and the offence would that way fail under sec. 304 Part II of the Indian Penal Code. 304 Part II of the Indian Penal Code. In Chamru Budhwa v. State of Madhya Pradesh A. I. R. 1954 S. C. 652 the accused was found to have given one blow with a lathi on the head of the deceased and the Supreme Court held that when the fatal injury was inflicted by the accused on the head of the deceased by only one blow it could as well be that the act by which death was caused was not done with the inten- tion of causing death or of causing such bodily injury as was likely to cause death. That act appears to have been done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death within the meaning of Part II of sec. 304 of the Penal Code. In other case where a blow was given with a hockey stick on the head of the deceased the accused was found to be guilty by the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh A. I. R. 1956 S. C. 116 for the offence under second part of sec. 304 of the Indian Penal Code. More often it would depend on the force used as a single blow may or may not be sufficient to bring about his death. In the present case however we are not required to go so far for the obvious reason that it cannot be said to have been established beyond any reasonable doubt that it was the appellants blow which alone brought about the death of Karamshi so as to hold him liable for an offence under sec. 304 Part II much less for holding him liable under sec. 302 of the Indian Penal Code as urged by the learned Assistant Govt. Pleader before us. When it is not possible to 6nd out as to which of the two blows was fatal in absence of any common intention shared by him with any other person he can only be saddl- ed with the liability on the principle of attributing to him the minimum inten- tion or knowledge for the act committed by him. When it is not possible to 6nd out as to which of the two blows was fatal in absence of any common intention shared by him with any other person he can only be saddl- ed with the liability on the principle of attributing to him the minimum inten- tion or knowledge for the act committed by him. In fact we have taken a similar view very recently in case of Nasir v. State of Gujarat (Criminal Appeal No. 1091 of 1964) judgment whereof was delivered by us on 13 In that case we found that there were two blows given on the head of the deceased and the prosecution evidence established only one blow having been given with an axe by the accused-appellant. There were however two injuries on his head one of which an incised wound caused by an axe and the other also on head with a lathi stick and it was further found that it was not possible to say with certainty as to which of the two injuries found on his head was fatal. On an application of the principle of minimum liability arising out of attributing to him minimum intention or knowledge in respect of an injury caused on the head of the deceased the appellant was held liable for an offence of voluntarily caus- ing hurt with an axe under sec. 324 of the Indian Penal Code. The same principle can well govern the present case and the liability that way arising of the appellant for his act would be one for an offence of voluntarily causing hurt with any hard blunt substance like a stick. Ordinarily no doubt if the blow-was given with an ordinary stick on the head the liability would be one under sec. 323 of the Indian Penal Code. But we find that the stick used by the appellant in causing that injury on his head was a bamboo stick having an iron-shod. That iron-shod adds to the gravity of the weapon which otherwise would be a simple one and it is that way that we are inclined to hold it to be a dangerous one if used as a weapon for committing an offence. That iron-shod adds to the gravity of the weapon which otherwise would be a simple one and it is that way that we are inclined to hold it to be a dangerous one if used as a weapon for committing an offence. Section 324 of the Indian Penal Code refers to voluntarily causing hurt by means of any instrument of shooting stabbing or cutting or any instrument which if used as a weapon of offence is likely to cause death. . . A stick becomes a dangerous weapon by reason of its iron-shod at its top and when that part of a stick is used as an weapon of offence it is likely to cause death and that the offence committed with such an instrument would fall under sec. 324 of the Indian Penal Code. It can stand in line with other type of instru- ments referred to in sec. 324 or 326 of the Indian Penal Code. This aspect of the case is lost sight of by the learned Sessions Judge as he has proceeded on the basis that it was one blow and that it was that one blow given by the appellant which had proved fatal so that he can be liable under sec. 302 of the Indian Penal Code. We therefore alter that part of his finding and hold that the appellant would only be liable for an offence of voluntarily causing hurt with a dangerous weapon as to fall under sec. 324 of the Indian Penal Code. ( 3 ) THE further question that arises to be considered is as to whether the appellant is exonerated from his liability of having caused injury on the head of deceased Karamshi on the plea of an exercise of the right of private self-defence under sec. 96 of the Indian Penal Code. In that respect it is hardly essential to show that the burden of proving the exercise of such a right falling within any of the general exceptions such as one under sec. 100 of the Indian Penal Code would obviously be on the appellant in view of sec. 105 of the Indian Evidence Act though no doubt the initial burden of establishing the causing of an injury to the deceased has got to be discharged by the prosecution. 100 of the Indian Penal Code would obviously be on the appellant in view of sec. 105 of the Indian Evidence Act though no doubt the initial burden of establishing the causing of an injury to the deceased has got to be discharged by the prosecution. Sec. 105 of the Indian Evidence Act provides that when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general Exceptions in the Indian Penal Code? or within any special exceptions or proviso contained in any other part of the same Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances. Such burden of proof on the accused would be no more than that on a party in a civil proceed- ing as observed by the Supreme Court in Dahyabhai a. State of Gujarat A. I. R. 1964 S C. 1563. (V G. L. R. 911 ). The initial burden that lay on the prosecution is already established and inasmuch as the appellant is as already found hereabove liable for an offence under sec. 324 of the Indian Penal Code. That liability would however depend upon the proof or otherwise of the right claimed by the appellant. That right can be established either by leading any evidence in that respect or by reference to the circumstances disclosed from the evidence led by the prosecution in the case. The Court shall however presume the absence of such circumstances and it would therefore be entitled to find out whether the appellant has been able to show to the satisfaction of the Court that not only a right exist and that it has been so exercised so that the justi- fication for the act can be held as established having regard to the provisions contained in sec. 100 clause (2) and sec. 102 of the Indian Penal Code. It is then that by reason of sec. 96 of the Indian Penal Code that he would be exonerated from his liability for the act committed by him. the plea is said to be covered under clause (2) of sec. 100 of the Indian Penal Code. 100 clause (2) and sec. 102 of the Indian Penal Code. It is then that by reason of sec. 96 of the Indian Penal Code that he would be exonerated from his liability for the act committed by him. the plea is said to be covered under clause (2) of sec. 100 of the Indian Penal Code. Sec. 100 of the Indian Penal Code says that the right of private defence of body extends to the voluntary causing of death or of any other harm to the assailant-if the offence which occasions the exercise of the right be of any descriptions enumerated there below. The second clause relates to an assault as may reasonably cause appre- hension that grievous hurt will otherwise be the consequence of such assault. . . . . Thus there must arise reasonable apprehension in his mind that he would be so assaulted as grievous hurt may be caused to him. That right commences as soon as reasonable apprehension of danger arises from an attempt or threat though offence may not have been committed and it continues as long as such apprehension of danger to his body continues as contemplated in sec. 102 of the Indian Penal Code. When such a right is justifiably exercised the law says that the act committed by him which is an offence in law would not be an offence it being done in the exercise of the right of private defence under sec. 96 of the Indian Penal Code. At the outset an attempt was made to suggest that the plea of right of defence of property was available under sec. 103 of the Indian Penal Code as well but it was not pressed and abandoned. It is in light of these provisions of law and having regard to the burden of proof being on the appellant that we have to consider the submissions made by Mr. Shukla the learned advocate for the appellant before us. ( 4 ) THE version of the appellant can be divided in two parts. The first part thereof is that he saw Karamshi and his cattle having trespassed in his field S. No. 25 and his cattle then causing damage to his standing Juwar crop as he went up there on coming to know about the same. ( 4 ) THE version of the appellant can be divided in two parts. The first part thereof is that he saw Karamshi and his cattle having trespassed in his field S. No. 25 and his cattle then causing damage to his standing Juwar crop as he went up there on coming to know about the same. He therefore wanted to seize those cattle or wanted Karamshi to allow him or himself take them to the cattle pound as he was so entitled to do under sec. 10 of Cattle Trespass Act. Not only that but according to Mr. Shukla Karamshi had no right to give any resistance or in other words cause any obstruction to his taking away his cattle to the cattle- pound. The second part of his version is that Karamshi did not allow him to take away his cattle to the cattle-pound and on the contrary started beating him with an iron-shod stick that he had and it was only there- after that when the appellant apprehended danger of being further beaten as to cause grievous hurt that the appellant had given one blow with a stick which he had in the exercise of his right of private self-defence. ( 5 ) WITH regard to the first part of the version secs. 10 and 24 of the Cattle Trespass Act were referred to by Mr. Shukla. Sec. 10 of the Act provides that The cultivator or occupier of any land. . . . . . . . . may seize or cause to be seized any cattle trespassing on such land and doing damage thereto or to any crop or produce thereon and send them or cause them to be sent within twenty-four hours to the pound established for the village in which the land is situate. Then sec. 24 of the Act provides that whoever forcibly opposes the seizure of cattle liable to be seized under this Act and whoever rescues the same after seizure either from a pound or from any person taking or about to take them to a pound such person being near at hand and acting under the powers con- ferred by this Act shall on conviction before a Magistrate be punished with imprisonment for a period not exceeding six months. The contention is that there was standing crop in the field bearing survey No. 25 belonging to the accused and that some crop was found damaged. That damage has been estimated at Rs. 5. 00 as per the panchnama Ex. 24 in the case. That panchnama further shows that footprints of some 5 or 6 cattle having moved in that part of the field were also found. From these two facts and having regard to the fact that Karamshi with his cattle was there in his field when the appellant went there it was said that he had a right to seize those cattle and take them to the cattle pound under sec. 10 of the Cattle Trespass Act and it was when the deceased Karamshi chose to obstruct or not allow him to take them away that the quarrel had taken place. Now the fact about the appellant hav- ing found Karamshi and his cattle actually in the field of the appellant when he went does not appear to be so probable or true in view of the other circumstances borne out from the recitals of that very panchnama Ex. 24. Not only that there were also foot-marks of cattle in the adjoining field S. No. 23 of one Bahadurbhai but that there were foot prints suggestive of a scuffle having taken place between human beings. Besides there were stains of blood found on stone and earth in that particular field. The earth from the scene of offence was attached and it was also found to have been stained with human blood. The place where the stains of blood were found was at a distance of about 42 feet from the end of the field survey No. 25 belonging to the appellant. If therefore Karamshi and cattle were in his field the incident would have taken place in his field but that does not seem to be so true. No such marks were found in his field. Thus the story given out by the appellant both in his statement before the trial Court as also in his complaint Ex. 37 about his having seen the cattle and even Karamshi inside his field as also about the incident having taken place inside his field cannot be believed. No such marks were found in his field. Thus the story given out by the appellant both in his statement before the trial Court as also in his complaint Ex. 37 about his having seen the cattle and even Karamshi inside his field as also about the incident having taken place inside his field cannot be believed. One other fact that appears from his complaint is that it was not on hearing that Karamshis cattle were damaging his crop that he had gone there as he wants the Court to believe but he had gone to his field for keeping a watch over his crop in the field and it was on finding some damage done to his crop that he started the quarrel finding Karamshi and his cattle in the nearby field. Thus his version cannot be believed. In that event there would not ordinarily arise any right to seize his cattle for impounding under sec. 10 of the Cattle Trespass Act. ( 6 ) BUT finding that difficulty the ground was shifted to say that the right to seize begins as soon as he sees them damaging the crop and continues till the cattle are taken to the cattle-pound. For that an attempt was made to suggest that cattle are bound to run away on seeing an owner or occupier of the land coming up and he has a right to pursue them for taking to the cattle-pound. According to him on seeing appellant coming up they must have gone away to the nearby field and he had therefore a right to go to seize them from that field where Karamshi had gone. There is no evidence whatever to suggest that they were run- ing away and that he had pursued them for the purpose of seizing them and his complaint Ex. 37 as also his version in his statement do not suggest any such thing. The eye-witnesses are also not asked any such thing. The law on the point which we discuss hereafter would not be of any help to him in the circumstances of the case. Now the words tres- passing and doing damage occurring in sec. 37 as also his version in his statement do not suggest any such thing. The eye-witnesses are also not asked any such thing. The law on the point which we discuss hereafter would not be of any help to him in the circumstances of the case. Now the words tres- passing and doing damage occurring in sec. 10 of the Cattle Trespass Act were interpreted in the case of Bhagwant Rao v. Champat Rao A. I. R. 1925 Nagpur 50 as giving a right to seize the cattle till they are in that very field and that right ceases no sooner they left the land. That was however treated to be a very narrow interpretation of the words in a sub- sequent case of Jagannath Singh v. Emperor A. I. R. 1934 Nagpur 258. A liberal construction was put on those words holding inter alia that while the right of capture of the cattle does not extend to following them to their sheds and seizing them there but if the owner of a field attempts to seize them while actually trespassing he would be within his rights in capturing them before they have definitely made their escape from the spot even though they were not actually inside the field when captured. The same view is expressed in a case of Hansa and others v. State 1954 Allahabad 381 where it is observed that under the English Law the position appears to be that the cattle can be seized only while they were actually trespassing and not afterwards. But the codified law in India is slightly different and gives the right of seizure even though the cattle have in the meantime left the field of the complainant and reached the field or grove of the accused (the owner of the cattle) provided notice of trespass was taken immediately and the complainant was pursuing the cattle in order to take them to the pound. In such a case the accused would have no right to forcibly rescue he cattle and cause injuries to the complainant who were taking the cattle to the pound and who resisted the rescue. This is a broad approach to the words used in sec. In such a case the accused would have no right to forcibly rescue he cattle and cause injuries to the complainant who were taking the cattle to the pound and who resisted the rescue. This is a broad approach to the words used in sec. 10 of the Act and much though words trespassing and doing damage being in the present tense plainly mean actually doing damage it would reasonable to take the view taken in the last two cases referred to as ordinarily the cattle would begin to run away from that field no sooner someone turns up to catch them and if he cannot pursue them for the purpose of impounding them within reasonable limits i. e. before they reach their destinations the purpose or right given under sec. 10 would be meaning- less. However in order to apply this view of the matter it appears essential to establish that (a) the cattle must have trespassed into the field of the other person; (b) he must have noticed them having trespassed and causing damage to his crop; (c) he must have followed them with a view to seize them for taking them to the cattle-pound and (d) that was forcibly resisted by the owner or the person in charge of the cattle. It is only in those circumstances that he would have a right to seize them before reaching their shed or grove which cannot be challenged by that person whose cattle he wants to seize. If however these conditions were not existing his rights dos not remain and if he believed that his cattle had trespassed and caused damage to the crop etc. in his field he could take action against him under secs. 447 and 426 of the Indian Penal Code and cannot take law in his own hands and then claim protection as sought to be done here. Now we have already shown that though damage is caused to his crop it is not shown that his cattle had tres- passed and caused that damage and that he had seen them trespassing and damaging his crop and that while he pursued them they ran away therefrom and that Karamshi resisted him for rescuing his cattle from being taken to the cattle pound. Besides as pointed out by the learned Sessions Judge Karamshi was not the only person who was grazing his cattle by about that time in Bahadurbhais field. The cattle of the two eye-witnesses Bhima and Sajan and of Pamu were also grazing in Bahadurbhais field. It is not unlikely that the cattle of those persons may have caused damage to the Juwar crop in the field of the appellant. Whose cattle caused damage to the crop of the appellant is not clear and it was on suspicion that he took aggressive on Karamshi finding him there as some damage by cattle was caused in his field. It is therefore clear that the appellant gets no right by reason of sec. 10 of the Cattle Trespass Act to seize the cattle of Karamshi or even ask him to surrender them for being impounded. If he felt that Karamshis cattle had caused damage to his crop he could have filed a complaint for trespass in his field and causing of damage to his crop under secs. 447 and 426 of the Indian Penal Code. He was thus not within his right contemplated in the Allahabad case referred to above to take law in his own hands and start abusing and causing injuries to deceased Karamshi on that grounds .