N. M. MIABHOY, J. ( 1 ) APPELLANT Govind Natha has been convicted by the learned Sessions Judge Kutch at Bhuj for the offence under section 304 Part I Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and for the offence under section 21 Indian Arms Act and sentenced to suffer rigorous imprisonment for three months. The learned Judge has ordered both the sentences to run concurrently. ( 2 ) THE first charge against the appellant was that on or about 3-10-1959 at about 5-00 P. M. he committed the murder of one Aher Suthar Punja Mahisur at his i e. appellants shop in the village Mirzapur Taluka Bhuj District Kutch. The second charge against the appellant was that in contravention of a licence to possess 12 cartridges at a time the appellant possessed on the aforesaid date and time 30 cartridges. ( 3 ) A majority of the facts on which the prosecution has relied to establish the two charges against the appellant has been admitted by the appellant and those facts have not been challenged before us by Mr. Bhragu Shastri learned Advocate for the appellant. We shall first of all briefly mention those undisputed facts. ( 4 ) THE appellant conducts a grocery shop in the village Mirzapur. That shop is situated at one of the corners of a place where four roads meet The shop faces north and measures 12 x 12. To wards the west of the shop there was a small desk which was used by the appellate as a counter and the appellant used to sit on a cushion spread near that counter. On 3 deceased Punja had come to the shop of the appellant for purchasing a match-box and Bidis. The deceased was a carpenter by profession and belonged to the said village Mirzapur. The appellant gave a match-box and Bidis to Punja and accepted their price. At this time witnesses Mohanlal and Meghji were present at the shop Mohanlal had come there for purchasing sugar and Meghji had come at the shop to call Mohanlal back because one of Mohanlals relatives was ailing. After the match-box and the Bidis had been sold the appellant demanded the arrears of his dues from Punja. At this time witnesses Mohanlal and Meghji were present at the shop Mohanlal had come there for purchasing sugar and Meghji had come at the shop to call Mohanlal back because one of Mohanlals relatives was ailing. After the match-box and the Bidis had been sold the appellant demanded the arrears of his dues from Punja. It appears from the account-book of the appellant that Punja was indebted to him at the date of the offence to the tune of about Rs. 100. 00. This demand of previous dues in the presence of other customers was resented by Punja and as soon as the demand was made Punja picked up a weight which was lying in the shop and threw it against the appellant. Fortunately appellant quickly stood up and parried the throw and no injury was caused to the appellant: There is the prosecution evidence to show that after appellant had stood up on the Thada of the shop Punja caught hold of appellants testicles. This is deposed to by witness Mohanlal and Meghji examined on behalf of the prosecution. This part of their testimony has not been accepted by the learned Judges Then according to the prosecution certain acts were committed by the appellate as a result of which Punja died on the spot. This part of the prosecution case is disputed by the appellant and we shall mention that part just in a moment. Then it is common ground that after some time appellant left his shop on a motor cycle and went to Bhuj in search of witness Vaghji who appears to be a leader of the village. On the way appellant met his servant Pramji and asked him to go to the shop and keep a watch there by sitting outside the shop during his absence. The appellant met with an accident on the way and fell down from his motor-cycle and as a result his knees were injured. Then the appellant borrowed a bicycle from one Naran Jiva and exchanged that bicycle for another bicycle from one Shamji Nanji and ultimately he reached Bhuj on that bicycle but he learnt that Vaghji was not in Bhuj but he was at Madhapur an adjoining village. Thereupon the appellant engaged a taxi car of one Hussain and went to Vaghjibhai and told him that he should accompany him to Mirzapur. Thereupon the appellant engaged a taxi car of one Hussain and went to Vaghjibhai and told him that he should accompany him to Mirzapur. Thereafter the appellant and Vaghji came to Mirzapur and when Vaghjibhai saw that Punja was Lying injured in the shop of the appellant he advised the appellant to report the matter to the police and consequently appellant and Vaghjibhai both went to the police station at Bhuj at about 8-00 or 8-30 P. M. The appellant was then sent to the dispensary for medical treatment and the P. S. I. proceeded to the shop of appellant and made certain Panchnamas and attached certain articles therefrom. ( 5 ) THE prosecution case is that after Punja hat thrown a weight against the appellant and after appellant had stood up on his Thada appellant fired six rounds of shots from a pistol which was In appellants possession and in respect of which he held a licence; that three out of these shots mis-fired and out of the remaining three only one hit the deceased Punja as a result of which he fell down on the Thada of the appellants shop and died instantaneously. ( 6 ) THERE is extremely good evidence to show that Punja had received six ante-mortem injuries on 3-10-1959. Three of these injuries were contused lacerated wounds. The medical testimony is that these three wounds would have been caused either with a hard and blunt substance or by a fall. It is not the prosecution case that these three injuries were caused by the appellant. But these three injuries are consistent with the prosecution case in as much as according to that case the deceased fell down after he received the fatal shot on the Thada and therefore these three injuries can be attributed to the fall of the deceased after he received the fatal out. The fifth injury according to the Doctor was a punctured wound with slight irregular margins 1/4 diameter 3 deep 4. 1 below the interior angle of the left scapula. It is also not the prosecution case that this injury was caused by the appellant. According to the Doctor this injury could have been caused with a sharp pointed instrument. There is no clear explanation in the prosecution evidence as to how the deceased happened to receive this fifth injury. 1 below the interior angle of the left scapula. It is also not the prosecution case that this injury was caused by the appellant. According to the Doctor this injury could have been caused with a sharp pointed instrument. There is no clear explanation in the prosecution evidence as to how the deceased happened to receive this fifth injury. However there is no doubt that all the aforesaid four injuries were non-fatal injuries and that the appellant was not responsible for any one of them. But according to the Doctor there were two more injuries which are described by him as injuries Nos. 4 and 6 in Column 17 of the Post Mortem Notes. The fourth injury was an entry would 1/4 diameter 4. 1 above the medial end of the spine of the left scapula. The sixth injury was a punctured wound 1 diameter with averted margins in the epigastic region 2 below the left lower coastal margin about 3 1/2 to the left of mid-line. According to the Doctor the injuries Nos. 4 and 6 could have been caused by a bullet shot and the bullet article No. 26 attached from the shop could have caused those two injuries. The Doctor also expressed the opinion that the injury No. 4 was the entry wound and the injury No. 6 was the exit wound. According to the Doctor these two injuries had ruptured the lung the heart the diaphragm and the stomach. According to the Doctor these two injuries were sufficient in the ordinary course of nature to cause death and death was due to shock and hemorrhage as a result of those two injuries. Thus on the medical testimony there is no doubt whatsoever that the deceased Punja received injuries Nos. 4 and 6 on or about 3-10-1959 as a result of which he died. ( 7 ) THE prosecution case is that above two injuries were caused on the deceased by the appellant by firing a pistol shot from his pistol. The appellant does not admit this fact. His case is that after deceased Punja had thrown a weight towards him and after he had stood upon the Thada the deceased Punja bad pressed his testicles and that as a result of this pressure he had become unconscious and fallen down in his shop. According to him he knows nothing about the pistol shots. His case is that after deceased Punja had thrown a weight towards him and after he had stood upon the Thada the deceased Punja bad pressed his testicles and that as a result of this pressure he had become unconscious and fallen down in his shop. According to him he knows nothing about the pistol shots. His further case is that after about 15 minutes he regained consciousness and found that the deceased was lying on his Thada and that thereafter he proceeded to Bhuj. Therefore the main point of controversy between the appellant and the prosecution is as to whether the appellant was or was not responsible for the two injuries Nos. 4 and 6 noticed by the Doctor and whether he did or did not fire six pistol shots or any of them in his shop after the aforesaid incident took place between him and the deceased. According to the prosecution when the appellant went with Vaghji to the Police Station at Bhuj he carried with him the pistol which he had fired against the deceased Punja and that the appellant produced that pistol in the presence of the Panchas and the same was attached from the possession of the appellant on 3-10-1959 at about 8-30 P. M. The appellant also disputes these facts. According to him he had not carried his pistol with him nor did he produce the pistol in the presence of the Panchas. This is another point of controversy between the appellant and the prosecution. According to the prosecution the pistol smelt of having been recently fired at the time when it was produced and there was one live cartridge inside the chamber of the pistol. The pistol is article No. 24 and the live cartridges alleged to be inside the chamber is article No. 25. ( 8 ) THEREFORE the main points which required to be decided by the learned Sessions judge were two in number. The first was whether the prosecution had established that the appellant had fired pistol shots and that one of these shots hit the deceased; and the second was whether the appellant had produced the pistol and that pistol and the live cartridges were attached as a result of the production before the P. S. I. at Bhuj. The first was whether the prosecution had established that the appellant had fired pistol shots and that one of these shots hit the deceased; and the second was whether the appellant had produced the pistol and that pistol and the live cartridges were attached as a result of the production before the P. S. I. at Bhuj. The learned Sessions Judge felt convinced that prosecution had established both these points and he held it proved that the appellant was responsible for the murder of Punja. Though the two prosecution witnesses admitted that the deceased Punja had pressed the testicles of the appellant the learned Judge was not prepared to accept their testimony. He held that this was an improvement which the two witnesses had made in favour of the appellant. The learned Sessions Judge further held that the deceased Punja was the aggressor on the day in question. However he held that in firing the shots as the appellant did he had exceeded the right of private defence and consequently the learned Judge though he held that prima facie Punja was murdered held that the crime which was committed was the offence of capable homicide not amounting to murder and consequently he convicted the appellant for the offence under section 304 Part I Indian Penal Code. ( 9 ) MR. Bhragushastri contended that the learned Judge was not right in holding that the testimony of Meghji and Mohanlal should not be accepted that the testicles of the appellant were pressed by the deceased on the day in question. The evidence which these two witnesses have given struck the learned Judge as improbable in so far as these two witnesses stated that inspite of the incident which they had seen they left the scene of offence just at the crucial time. We are in agreement with this view of the learned judge. In our Judgment it is extremely improbable that these two witnesses should have left the shop of appellant just at the time when deceased Punja had adopted an aggressive attitude in a small matter such as demanding his legitimate dues from the deceased by the appellant. There is a strong probability that the two witnesses had actually seen what happened thereafter. There is a strong probability that the two witnesses had actually seen what happened thereafter. Though this is a legitimate criticism which can be advanced against she testimony of these two persons we do not find any good material on the record which can lead us to disbelieve these two witnesses so for as their testimony that the deceased Punja had pressed the testicles of the appellant is concerned. It is true that the appellant was examined by the Doctor on the same day and the Doctor did not find any trace of a pressure having been applied on the testicles of the appellant. It is true that the Doctor says that though the appellant complained of pain in the testicles when he himself pressed the testicles he found that there was no painful reaction against the appellant. But the aforesaid two witnesses have not said anything as regards the amount of pressure which was applied on the testicles and under the circumstances the mere fact that no injury was actually found on the testicles would not mean that the testicles were not actually pressed. Under the circumstances in our judgment we must decide the present appeal on the basis that the deceased had not merely thrown a weight against the appellant but that he had also pressed his testicles. ( 10 ) BUT the main point which requires to be decided in the present case is as to whether the appellant had fired a shot or shots from his pistol and whether one of these shots hit the appellant. On this point the only evidence which the prosecution had led is that of the child witness Jayantilal. The evidence of Jayantilals mother Kunverbai is that on that day she was about to leave for the village Mankuwa and for that purpose she had come to a bus stand and from that bus stand she had sent her son Jayantilal to the shop of the appellant for purchasing sweets. Jayantilals evidence is that he had gone to that shop on that day and he had seen the appellant firing crackers. He further deposed that when appellant fired crackers one Pama was there (The reference is to the witness Prema who was the servant of the appellant.) Then he deposed that the carpenter Punja of his village died by the firing of the crackers. He further deposed that when appellant fired crackers one Pama was there (The reference is to the witness Prema who was the servant of the appellant.) Then he deposed that the carpenter Punja of his village died by the firing of the crackers. The age of this witness has been stated by the learned Sessions Judge to be five years and the learned Judge has also made a note after the examination-in-chief was over to the effect that the witness did not appear to be of full mature understanding. In the cross-examination only three questions were asked to the witness and nothing more. The witness stated that there were no other boys present that he was standing outside the shop and that he had not got the peppermints. It appears that the learned Judge had given oath to this witness and his evidence was accorded on oath. ( 11 ) MR. Bhragushastris contention was that having regard to the note which the learned Sessions Judge has made about the immaturity of the understanding of the witness the witness was not a competent witness and therefore his evidence can not be considered against the appellant. Section 118 Indian Evidence Act states: All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years extreme old age disease whether of body or mind or any other cause of the same kind. From this section it appears that every person is a competent witness unless the Court is of the opinion that by reason of any of the causes mentioned in the section the person is prevented from understanding the questions put to him or from giving rational answers to those questions. Therefore when a Court has got to deal with a child witness before deciding that the witness is a competent witness the court must come to the conclusion that by reason of his age the child is not intellectually deficient i. e. that it cannot understand the questions put to him or give rational answers to those questions. Therefore when a Court has got to deal with a child witness before deciding that the witness is a competent witness the court must come to the conclusion that by reason of his age the child is not intellectually deficient i. e. that it cannot understand the questions put to him or give rational answers to those questions. The section does not deal with the understanding of person in respect of the particular topics on which his deposition is to be recorded but the section deals with the general intellectual capacity of the child and if the Court is satisfied about the general intellectual capacity of the child to give evidence then the witness would be a competent witness and it would be the duty of the court to assess the evidence of that child on the particular topic deposed to by him and decide for itself if the child had sufficient intellectual capacity to understand the matter deposed to by it and whether the evidence given by it was credible reliable arid trustworthy. Therefore the mere fact that the learned Judge had made a note that the witness is not of full mature understanding does not necessarily mean that the witness was an incompetent witness in the sense that he was not able to understand the questions put to him or give rational answers there-to. The learned Judge has explained the above not in his Judgment by stating that when the witness stated about the firing of the crackers and the incident having taken place in the morning those statements were due to the fact that the witness did not understand the difference between morning and evening and difference between crackers and pistol shots. But apart from these two deficiencies which affect his testimony on the merits there is nothing in Jayantilals testimony or any thing also on the record which would go to show that the witness was an incompetent witness in the sense that he was not able to understand the questions put to him or to give rational answers thereto. ( 12 ) HOWEVER there is nothing on the record to show that the learned Judge had himself asked any questions to witness Jayantilal before putting him in the witness box to satisfy and to give rational answers thereto. ( 12 ) HOWEVER there is nothing on the record to show that the learned Judge had himself asked any questions to witness Jayantilal before putting him in the witness box to satisfy and to give rational answers thereto. It is true that the law as it stands does not cast a duty of upon a Judge to ascertain by way of voire dire to the competency of a person to be a witness. In a large majority of cases the presumption would be that the person is a competent witness. But when the Court has got to deal with a child witness who is only five years old it would not be proper to act on any such presumption in such a case it is desirable that the Judge should undertake a voire dire with a view to satisfy himself that the witness is a competent witness. Of course the view which the Judge would form at this preliminary enquiry would not be the final view and toe Judge might have to change that view if the examination and the Cross-examination revealed his incompetence. In the absence of a voire dire in this case we have to form an opinion about the competency of Jayantilal on the answers given by him in deposition. One material which exists on the record is the observation made by the learned Judge that he himself had put a certain number of questions to witness Jayantilal to satisfy himself that he was not a tutored witness. The learned Judge has in another part of the Judgment also mentioned that he was impressed by the way in which the witness had given his evidence. Unfortunately the learned Judge had not kept a record of the questions put by him to witness Jayantilal and the failure to do so has created a handicap and has precluded us from attaching the weight which otherwise we would have done if the record of questions and answers had been preserved. The trial courts must remember that in appealable cases it is the view of the appellate Court which must finally prevail and when the appellate Court has to decided a matter it must decided on its own views and not on the views of the trial Judge on the questions involved in a case. The trial courts must remember that in appealable cases it is the view of the appellate Court which must finally prevail and when the appellate Court has to decided a matter it must decided on its own views and not on the views of the trial Judge on the questions involved in a case. Therefore in all such cases if any questions are asked by a Judge it is always advisable that a record of those questions must be kept so that the appellate Court may not be handicapped in the discharge of its own duties. ( 13 ) HOWEVER we have carefully considered the evidence of Jayantilal as a whole and in doing so we have also borne in mind the fact that the learned cross-examiner did not make any attempt to show that the witness Jayantilal was suffering from any general intellectual incapacity or deficiency which would make him an incompetent witness. We have also borne in mind the fact that the witness did not understand the difference between morning and evening and pistol shots and cracker shots. But from the answers given by him to questions on a large number of matters it does appear that the witness did understand questions put to him and he was able to give rational answers on those questions and in our judgment he was a competent witness. ( 14 ) IT also appears from the record that the learned judge did not make any attempt to ascertain whether the witness Jayantilal understood the nature and the significance of the oath which was given to him. In our judgment in a case of the present type where the Judge had got to deal with a child of a very tender age it is always advisable that he should keep a record or make a note somewhere on the record that he had satisfied himself that the witness knew and understood the nature the significance and the sanctity of the oath given to him. If he has asked any questions on the subject it is also advisable that a memorandum of the same should be kept on the record. If he has asked any questions on the subject it is also advisable that a memorandum of the same should be kept on the record. Having regard to the fact that witness Jayantilal was only five years old prima facie it appears to be doubtful whether the witness understood the importance and consequence of an oath or an affirmation under the circumstances we have decided to read the evidence of Jayantilal on the basis that he did not understand the nature and the significance and sanctity of oath and we have preferred to proceed on the basis that his evidence was without any affirmation. But having regard to the proviso to sec. 5 which has been added by the legislature by Act No. 39 of 1939 it can not now be disputed that even if by the evidence of a child below twelve years of age not on oath the evidence is still admissible and forms part of the record under the circumstances in spite of the aforesaid infirmity in the evidence of Jayantilal in our judgment that evidence does constitute evidence against the appellant and must be considered on its own merits. ( 15 ) HAVING regard to the fact that Jayantilal is a child witness we must scrutinise his evidence very minutely and carefully and especially we must be satisfied that there has been no coaching or tutoring of that witness. Now the evidence which this witness has given is on the whole very simple and as the learned Judge has remarked he has described the occurrence of pistol shots in the way in which one would expect a child of that age to describe it if he had heard reports of pistol shots. It is nobodys case that any crackers were fired in the shop of the appellant at the time when the incident took place. That the witness could not be referring to firing of any crackers is quite clear from the fact that the witness states in specific terms that as a result of the cracker shots Punja had expired. ( 16 ) THE witness undoubtedly appears to be an independent person. His mother or his relative do not appear to be interested in favour of prosecution or against the defence 50 that one could reject his testimony on the ground of malice or enmity or bias. ( 16 ) THE witness undoubtedly appears to be an independent person. His mother or his relative do not appear to be interested in favour of prosecution or against the defence 50 that one could reject his testimony on the ground of malice or enmity or bias. The appellant has alleged that Kunverbai was deposing against him because she was his debtor. There is nothing on record to show that this is a fact much less is there any ground to believe that because of some indebtedness ill-feelings had arisen between appellant and Kunvarbai. The evidence of the child witness Jayantilal is in our judgment sufficiently corroborated not only by an important piece of circumstantial evidence presently to be noted but also by the evidence given by Kunvarbai and Bachibai. Thus the immediate conduct which was executed by Jayantilal is a sufficient guarantee of the truth of the evidence which he gives. Kunvarbais evidence is that whilst she was standing at the bus stand her son Jayantilal came there and told her that Punja had been murdered by crackers fired by the appellant in his shop. It is quite obvious that she is not reproducing the exact words used by the appellant but the substance of the same. There is no reason to disbelieve Kunvarbai on the subject. Then she states that she went to Bachibai who is the maternal aunt of Punja and asked her to listen to what Jayantilal had to say. Bachibai corroborates both Jayantilal and Kunvarbai as to what was told to her by Jayantilal. Though appellant has made some allegations against Kunverbai it is noteworthy that he has not said anything against Bachibai. It is true that all these three witnesses belong to the same community to which the deceased Punja did and they are also in some way related to be deceased Punja. But there is not reason whatsoever to believe that these three witnesses were giving false evidence against the appellant because of this relationship. On the whole therefore in our judgment the evidence given by Jayantilal is true that he had seen crackers being fired by appellant and as a result thereof Punja expired. ( 17 ) WE have no doubt whatsoever that the appellant carried with him his pistol and produced the same before the Head Constable in charge of the Police Station. On the whole therefore in our judgment the evidence given by Jayantilal is true that he had seen crackers being fired by appellant and as a result thereof Punja expired. ( 17 ) WE have no doubt whatsoever that the appellant carried with him his pistol and produced the same before the Head Constable in charge of the Police Station. That part of the prosecution case is proved by the evidence given by the Panch witness Suleman Ayub. There is nothing suggested in the cross-examination of this Panch witness which would go to show that his evidence was a fabrication. The Panch is supported by the Panchnama which was made at that time. The Police Head Constable also deposes to the same effect. The Police at that time also attached the pistol article No. 24 and it was found that the chamber of the pistol contained a live cartridge article No. 25. The defence case is that this pistol was produced subsequently by Premji. The latter has been examined but no question was asked to him by the defence to show that he had come into possession of the pistol and that subsequently he had produced it before the police. ( 18 ) THE prosecution case is that the pistol smelt of having been recently fired at the time when it was produced. The Panch witness Suleman however does not support the prosecution. In the cross-examination he admits that he had never handled a gun and that he cannot say definitely that the pistol smelt of having been recently used. The Police Constable who attached the pistol does not say anything about this. The expert who was examined is unable to say as to when the pistol could have been last fired. Under the circumstances though the prosecution has been able to establish that a pistol was produced by the accused which contained in its chamber a live cartridge it has failed to establish that the pistol had been recently fired. ( 19 ) THEN there is the evidence relating to the discovery of certain misfired cartridges and empty cartridge shells and a bullet from the shop of the appellant when the same was inspected by the Panchas on 4-10-1959 at about 1-00 A. M. The evidence shows that in all three empty cartridge shells two touched cartridges and a pressed lead bullet were discovered from the shop. A flattened bullet besmeared with blood was attached from near the wooden box on the cushion where the corpse was lying. Having regard to the fact that the bullet was flattened that it was besmeared with blood that it was lying near the corpse and that the corpse had a bullet would on it the only inference which can be drawn from these circumstances is that this flattened bullet was the one which had come out of the bullet wound. On the side of the wooden box at a distance of one foot two pistol cartridges were found and the other three cartridges shells were found from near a wooden stand and the eastern wall. The prosecution contends that the presence of the three empty cartridge shells and two touched cartridge shells are evidence of the fact that several shots were fired by the appellant on that date. In addition to this the prosecution also relies upon the fact that one empty cartridge shell was produced by Premji before the Police on 7-10-1959. However Premji does not state as to where he found the empty cartridge shells and when and that evidence in our judgment is entirely useless for the purpose of the present case. But the question is whether the mere presence of the aforesaid three empty cartridge shells and two touched cartridge shell can necessarily lead to the conclusion that they were fired from the pistol on the date of the offence. The point in favour of the prosecution appears to be the location of these three cartridges at the time when the shop was inspected. But as against this are two more facts. One is that the bullet corresponding to one of the two empty cartridge shells was not discovered from the shop and secondly no questions were asked to the appellant as to the presence of these empty cartridge shells and touched cartridge from his shop. Under the circumstances in our Judgment it is not permissible on the circumstantial evidence itself to hold that the aforesaid empty cartridge shells and touched cartridge shells necessarily show that they were fired on the date in question. It is true that the evidence show that the cartridges were such as could be fired from 32 * Bore pistol which was in the possession of the appellant. It is true that the evidence show that the cartridges were such as could be fired from 32 * Bore pistol which was in the possession of the appellant. There is no doubt that these cartridges must have been fried from that pistol but the question is as to whether they were fired on that date or not. Jayantilal does not mention specifically the number of shots which were fired on that day although he does mention a plural number of cracker shots having been fired. But there is no definite evidence on the record to show what was the exact number of shots which was fired or the reports of which were heard on that day. Under the circumstances it would not be prudent to proceed on the basis that the appellant had fired in all six shots as alleged by the prosecution though one can safely hold that two shots were fired. ( 20 ) BUT in our Judgment the testimony of Jayantilal is corroborated by the fact that one flattened bullet besmeared with blood was found near the corpse of Punja and that Punja had bullet wounds one of entry and the other of exit. Having regard to the fact that Jayantilal says more than one cracker was fired one may hold that more than one shot was fired; but it is not possible to say with certainly that in all six shots were fired by the appellant. . ( 21 ) UNDER the aforesaid circumstances in our judgment the evidence of Jayantilal is reliable and is sufficient to establish that the appellant was the person who had fired a pistol shot which hit Punja and which caused his death. ( 22 ) THE version of the appellant that he had become unconscious as a result of the pressure on his testicles is not credible. Having regard to the fact that no injury was noticed on his testicles it is quite clear that the pressure on the testicles could not have been so hard as to render him unconscious. That part of the version of the appellant is undoubtedly improbable and unbelievable and under the circumstances we have come to the conclusion that the prosecution evidence is sufficient to establish that the appellant was responsible for the two bullet wounds Nos. 4 and 6 on the deceased. ( 23 ) AS regards the plea of self-defence Mr. That part of the version of the appellant is undoubtedly improbable and unbelievable and under the circumstances we have come to the conclusion that the prosecution evidence is sufficient to establish that the appellant was responsible for the two bullet wounds Nos. 4 and 6 on the deceased. ( 23 ) AS regards the plea of self-defence Mr. Bhragushastri is right in saying that though the appellant had not actually pleaded self-defence it is open to him to show from the prosecution evidence itself that the appellant had caused the fatal wound under such circumstances as gave him the right of private defence. ( 24 ) THERE is no doubt whatsoever that the burden of proving the right of private defence is on the appellant. But if he fails to establish it then the appellant would be criminally responsible for the bullet wound. Unfortunately the appellant precluded himself from establishing the right of private defence by taking up the attitude in the trial Court that he had become unconscious after his testicles were pressed and that he regained consciousness 15 minutes thereafter where he found that the appellant was lying injured. The witnesses Mohanlal and Meghji do not throw any light on this aspect of the case and therefore we are left with the following facts and the question for consideration is whether those facts do establish that the appellant had the right of private defence and that when he fired the fatal shot he did so in the exercise of that right. The facts are that deceased Punja become angry on the demand of the dues by the appellant; that he picked up a weight and threw it against the appellant; and that he pressed the appellants testicles. These facts undoubtedly show that Punja was the aggressor and that he intended to do harm to the appellant. But these facts only prove the commencement of the right of private defence. In order that the right of private defence may be established it is not sufficient for the accused merely to establish that the right had commenced he must also further establish that the right had not ended. But these facts only prove the commencement of the right of private defence. In order that the right of private defence may be established it is not sufficient for the accused merely to establish that the right had commenced he must also further establish that the right had not ended. In other words in order that the right of private defence may be held to prove that reasonable apprehension which had been created in the mind of the appellant as a result of the act of the aggressor had continued at the time when the impugned injury was caused. No attempt appears to have been made by the defence to prove this fact. The only witness who could have thrown light on this subject is Jayantilal. No questions have been asked to him on the subject. The appellant has thought it fit to give a statement which stops short at the point where his testicles were pressed. Under the circumstances in our judgment the prosecution evidence as such does not establish that the reasonable apprehension which has been created in the mind of the appellant as a result of the acts of Punja had continued at the time when the fatal shot was fired. Under the circumstances in our judgment it is impossible to hold that the appellant had fired the fatal shot in the exercise of the right of private defence. In that view of the matter there is no question of any application of Exception II to section 300 of the Indian Penal Code and in our judgment the learned Judge was wrong in applying that section to the facts of the present case. But though this is so in our Judgment it does not make any difference to the actual offence brought home against the appellant because the testimony of Meghji and Mohanlal on the admitted facts in the case do establish that a sudden quarrel and fight arose between the appellant and Punja and it was in the course of that sudden quarrel and fight that passions were excited on both the sides and the pistol shot was fired by the appellant. Consequently the appellant is entitled to the benefit of Exception IV to sec. 300 I. P. C. and he has been rightly convicted for the offence under sec. 304 Part I of the Indian Penal Code and sec. Consequently the appellant is entitled to the benefit of Exception IV to sec. 300 I. P. C. and he has been rightly convicted for the offence under sec. 304 Part I of the Indian Penal Code and sec. 21 of Indian Arms Act and the appeal must fail and must be dismissed. ( 25 ) THE appeal fails and is dismissed. Appeal dismissed. .