Judgment B.P. Jha, J. This appeal arises out of a judgment dated 11th August 1969 passed by the 2nd Additional Sessions Judge, Gaya. 2. The trial court convicted appellant no. 1, Jamuna Singh, in respect of the offence under section 302 of the Indian Penal Code and sentenced him to under go rigorous imprisonment for life. He was also convicted in respect of the offence under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months; He was also sentenced to rigorous imprisonment for one month under section 24 of the Cattle Trespass Act (hereinafter called the C.T. Act). The rest of the appellants were convicted in respect of the offences under sections 147 of the Penal Code and S.24 of the Act and sentenced to undergo rigorous imprisonment for three months and one month, respectively. The sentences were ordered to run concurrently. Appellant Rambilas Singh was acquitted in respect of the charge under section 302/114 of the Penal Code. 3. The prosecution case, in short, is as follows. The occurrence took place on 13.4.1967 at 7 a.m. Four heads of cattle belonging to Jamuna Singh and Rambilas Singh were grazing the wheat crop of P.W. 8 in plot no. 590. P.W. 6 and his father were authorised by P.W. 8 to look after the wheat crops in plot no. 590. P.W. 6 and his father, Ramdeo Singh deceased, surrounded the cattle. The appellants were in their fields. They followed P.W. 6 and his father. The appellants asked P.W. 6 and his father to release the cattle. On their refusal, there was exchange of hot words between the prosecution party and the appellants. In the meantime, Rambilas ordered for assault. P.W. 6 and his father left the cattle and proceeded towards south. Appellant Jamuna Singh followed them and caused gransa injury on the head of the deceased, Ramdeo Singh. Ramdeo fell in plot no. 579 belonging to Jamuna Singh and he died instantaneously. There was sufficient blood near the dead body. P.W. 6 lodged first information report before the Assistant Sub Inspector of Police (P. W. 9) at 10 a.m. The distance between the place of occurrence and the police station is 8 miles. 4. Ramdeo fell in plot no. 579 belonging to Jamuna Singh and he died instantaneously. There was sufficient blood near the dead body. P.W. 6 lodged first information report before the Assistant Sub Inspector of Police (P. W. 9) at 10 a.m. The distance between the place of occurrence and the police station is 8 miles. 4. On recording the first information report, P. W. 9 proceeded to the place of occurrence at 11.30 a.m. and reached there at 1 p.m. He found the dead body in plot no. 579 and there was sufficient blood near the dead body. He scraped the blood-stained earth and prepared a seizure list to that effect (Ext. 5). He also found grazing of wheat crops in plot. 590. Thereafter, P.W. 9 prepared the inquest report (Ext. 4). After preparing the inquest report, he sent the dead body for post-mortem examination. Thereafter, he examined Baliram Singh (P.W. 1) Ramasis Singh (P.W. 4) and others. He had also examined P.W. 6 (first informant) and Kedar Nath Singh (P.W. 7) at the police station. 5. The appellants pleaded, (1) that the prosecution has failed to prove the place of occurrence and the manner of occurrence; (2) that the seizure of the cattle was illegal; in the alternative, it was pleaded that the appellants had a right to rescue the cattle in view of section 105 of the Indian Penal Code; (3) that the conviction of appellant no. 1 under section 302 is illegal, his case is covered by Part II of section 304 of the Penal Code; (4) that in view of the findings of the trial court, the conviction of appellants 2 to 5 is illegal in respect of the offence under section 147 of the Penal Code and section 24 of the Act. 6. On the first point, it is clear that the prosecution has proved the place of occurrence. The investigating officer found the dead body in plot no. 579 and there was sufficient blood. On the point of manner of occurrence, the appellants have challenged the correctness of the grazing story. P.W. 1 (Baliram Singh), P.W. 4 (Ramasis Singh), P.W. 6 (Bhagwat Singh) and P.W. 7 (Kedar Nath Singh) have consistently stated that plot no. 590 was grazed by the cattle of Jamuna Singh and, Rambilas Singh. The grazing story was supported by the evidence of P.W. 9, the investigating officer. P.W. 1 (Baliram Singh), P.W. 4 (Ramasis Singh), P.W. 6 (Bhagwat Singh) and P.W. 7 (Kedar Nath Singh) have consistently stated that plot no. 590 was grazed by the cattle of Jamuna Singh and, Rambilas Singh. The grazing story was supported by the evidence of P.W. 9, the investigating officer. So far as P.W. 4, Ramasis Singh, is concerned, he has not stated about the grazing story before the investigating officer, and as such I exclude his statement from consideration. P.W. 4 is also not mentioned as a witness in the first information report, but his statement was recorded by the investigating officer on the same day on which he visited the place of occurrence. P.W. 9 has specifically stated in paragraph 7 of his evidence that he found the wheat crops grazed in plot no. 590. Reference was made to paragraph 15 of his evidence, where he clearly stated that he found no trampling mark in that portion of the plot which was not' grazed. In this view of the matter, I hold that the prosecution has proved the grazing story as well as the manner in which the occurrence took place. 7. In this connection, the next point is: whether the appellants had the right to rescue the cattle or not? In this paragraph, I deal with points 2 and 1. The cattle were grazing in the field of Rajbimshi Singh (P. W.8) P.W. 6 and his father had the right to seize the cattle because they were authorised by P.W. 8 to look after the field. In the present case, the difficulty is that there is no evidence to suggest that P.W. 6 and his deceased father were taking the cattle to the pound. In this connection, the evidence of only one witness, that is, P.W. 4, is relevant. He stated that the prosecution party were taking the cattle to the pound, but I cannot accept his testimony on this point for the simple reason that he did not state anything about the grazing story before the investigating officer. Other witnesses do not say anything about the taking of the cattle to the pound. This story is also absent in the first information report. I, therefore, hold that there is no evidence on the record to suggest that the cattle were being taken to the pound. Other witnesses do not say anything about the taking of the cattle to the pound. This story is also absent in the first information report. I, therefore, hold that there is no evidence on the record to suggest that the cattle were being taken to the pound. If the cattle were not taken to the pound, the appellants had the right to rescue them. 8. It is also relevant to state that there were two common objects of the unlawful assembly, one was to rescue the cattle and the other was to assault the deceased and P.W.6. The trial court acquitted the accused persons so far as the common object to assault was concerned, but convicted the appellants in respect of the offence under section 147 or section 148 of the Penal Code on the ground that they illegally rescued the cattle. In this connection, the finding of the trial court is not clear. In my opinion, the appellants had the right to rescue the cattle. In absence of any evidence that the prosecution party were taking the cattle to the pound, the assemblage was not unlawful but lawful. In this connection section 105 of the penal code is quite clear. It. provides that the right of private defence of property commences when a reasonable apprehension of danger to the property commences and it continues against theft till the offender has effected his retreat with the property. In this view of the matter, the appellants had the right to rescue the cattle till the offender had effected his retreat with the property. If this is correct them the conviction of appellants 2 to 5 under section 117 is illegal. I, therefore, set aside the conviction and sentence passed against appellants 2 to 5 in respect of the offence under section 147. The conviction of appellant no. 1, Jamuna Singh, is also set aside in respect of the offence under section 148 of the Penal Code, because he was justified in rescuing the cattle. 9. All the appellants have been convicted in respect of the offence under section 24 of the Act. In the present case, section 24 of the Act does not apply, because there was no forcible opposition to the seizure of the cattle nor were the cattle rescued from any person taking them to the pound. 9. All the appellants have been convicted in respect of the offence under section 24 of the Act. In the present case, section 24 of the Act does not apply, because there was no forcible opposition to the seizure of the cattle nor were the cattle rescued from any person taking them to the pound. In order to bring home the guilt under section 24 of the Act, the prosecution must prove two ingredients, namely, (i) the accused opposed the seizure of the cattle liable to be seized under the Act and (ii) the accused rescued the cattle either from a pound or from any person taking or about to take them to a pound. In the present case, these two ingredients have not been proved and, therefore, the appellants are entitled to the benefit of the doubt in respect of the offence under section 24 of the C.T. Act. 10. The alternative submission of learned counsel for appellant no. 1 is that the case of appellant no. 1, Jamuna Singh, is not covered by section 302 of the Penal Code. In this connection, he referred to the evidence of P.Ws. 1, 6 and 7. It is clear from the testimonies of the prosecution witnesses that the cattle were surrounded by P.W. 6 and his father deceased Ramdeo Singh. The appellants followed them and asked them to release the cattle. They did not care to release the cattle. Thereafter, there was exchange of hot words between the parties, whereupon appellant Rambilas ordered for assault. Thereafter, appellant no. 1 caused garansa injury on the head of the deceased Ramdeo. There is no evidence on the record to suggest that P. W.6 and his father were taking the cattle to the pound. In the absence of this evidence, I hold that appellant no. 1 has the right to rescue the cattle in view of section 105 of the penal code. If he had such a right to reseue the cattle he exceeded that right of private defence of property in assaulting the deceased on his head. It is relevant at this stage to quote the injury on the head of the deceased, as found by the doctor (Dr. Ahmed Hussain. who held the post-mortem examination), whose evidence was tendered under section 509 of the Code of Criminal Procedure. It is relevant at this stage to quote the injury on the head of the deceased, as found by the doctor (Dr. Ahmed Hussain. who held the post-mortem examination), whose evidence was tendered under section 509 of the Code of Criminal Procedure. "Incised wound 10" x ½" x bone deep cutting the membrane and deeping into the substance of the brain up to 2". Extent of the wound was from the outer angle of the right eye to the parietal eminence of the left side of the scalp." According to the doctor, the death was caused by shock and hemorrhage caused by the injury. The injury was sufficient to cause death in the ordinary course of nature. It is, therefore clear that appellant no. 1 had the right to rescue the cattle, unless the case is brought within the purview of the C.T. Act. In the present case, the prosecution has failed to bring the case within the purview of section 24 of the C.T. Act. Therefore, I hold that, while rescuing the cattle appellant no. 1 had exceeded the right of private defence of property, and his case is covered by section 304, Part I of the Penal Code. His conviction under section 302 is altered to one under section 304, Part I of the Penal Code and he is sentenced to ten years' rigorous imprisonment under the latter section. He is acquitted in respect of the offences under sections 148 of the Penal Code and 24 of the Act. 11. Subject to the modifications mentioned above, the appeal of appellant no. 1, Jamuna Singh, is dismissed. The appeal of the rest of the appellants is allowed and they are acquitted in respect of offences under sections 147 of the Penal Code and 24 of the Act. Appeal allowed in Part.