SANTHOSH, J. ( 1 ) THE appellant before this Court, Narasinga Naika alias Narasa Naik, was the 7th accused in the Court of Session, Bellary Division, in SC. No. 22 of 1968. He has been convicted of an offence under S. 302 IPC. and sentenced to imprisonment for life. He has also been convicted of offences under Ss. 25 (1) and 27 of the Arms Act and sentenced on each count, to ri. for one year. All the sentences have been directed to run concurrently. He was tried along with 10 other accused for various charges and the other accused have all been acquitted. There is no appeal by the State against their acquittal. In this appeal, the appellant challenges the legality and correctness of the said convictions and sentences passed on him by the learned Sessions Judge. ( 2 ) THE prosecution case, briefly stated, is as follows: All the 11 accused persons and PWs. 1 to 4 are residents of Honnalli Thanda which is situate at a distance of about 6 miles from Bellary. PWs. 1 to 4 are brothers Accused-1 and 2 are brothers and they are the uncles of PWs. 1 lo 4. Accused-11 is the son of accused-1 and accused-9 is the son of accused-2 accused-7 and 8 are brothers and they are the sons of PW. 21 who s also an uncle of PWs. 1 to 4. The other accused are also sons of one of the unrles of PWs. 1 to 4. The prosecution case is that there were misunderstandings between PW. 2 Bhimanaik and his brothers on the one hand and the 11 accused persons on the other. There was a well outside the Thanda at a distance of one or two furlongs from Thanda. All round the well there were Jali trees belonging to Government. Accused-2 cut all these Jali trees and converted the land into a garden. Some persons sent a petition to the authorities about this. Accused-2 thought that it was PW. 2 who sent the petition and ill-feelings developed between the accused and PW. 2 and the brothers. As accused-2 and some of the other accused threatened PW. 2, he sent petitions to the Superintendent of Police alleging that his life was in danger It may be mentioned that in petitions exts. Accused-2 thought that it was PW. 2 who sent the petition and ill-feelings developed between the accused and PW. 2 and the brothers. As accused-2 and some of the other accused threatened PW. 2, he sent petitions to the Superintendent of Police alleging that his life was in danger It may be mentioned that in petitions exts. P3 and P4 thr name of accused-7 is referred to as one of the supporters of accused-2. An enquiry was held by PW. 27, Sub Inspector of police, 'bellary. on the directions of the Superintendent of Police and accused 2 was warned. ( 3 ) THE prosecution case is that on 3-7-1968 which was a festival day, in the evening" PWs 1 to 4 were standing in front of PW. l's house. At that time all the 11 accused persons formed themselves into an unlawful assembly with the common object of murdering PW. 2 and his brother, almed with deadly weapons. Then, according to the prosecution, these accused came there and began attacking PW. 2 and his brothers and inflicte d injuries on them. It is unnecessary to go into the details of the attack as all the accused have been acquitted of this charge. The case of the prosecution is that when the assault on PWs. 1-4 was going on, PWs. 22 to 24 and some others came and separated accused and PWs. 1 to 4. At that time accused-7 ran into the house of accused-2 which is nearby, and brought a gun, MO. 1. When accused-7 came in front of the house of pw. 1 with a gun and stood at a distance of about 30 to 35 feet from the house, PWs. 1 to 4 Pot frightened and began running into the house. At that time, accused-7 fired a shot. This shot hit Honnurappa, servant of pw. l who was standing near the door of the house and killed him. The prosecution case is that thereafter, the prosecution witnesses ran into their house and PW. 6 Lakshmibai, wife of PW. 3 Lakshma Naik, who was carrying in her amis her child Rukmini, aged about 1\ years, tried to close the front door. l who was standing near the door of the house and killed him. The prosecution case is that thereafter, the prosecution witnesses ran into their house and PW. 6 Lakshmibai, wife of PW. 3 Lakshma Naik, who was carrying in her amis her child Rukmini, aged about 1\ years, tried to close the front door. Just at that time, accused-7 re-loaded the gun and fired a shot This shot hit the head of the child Rukmini who was being carried bv PW 6 and the head of the child was broken to pieces and the child died instantaneously Thereafter, the prosecution witnesses closed the door of their house Then the accused pelted stones at the house Out of fear, PWs. 1 to 8 did not come out of their house. ( 4 ) PW. 10 Sri Sivaraj who was the President of Bellary City Municipal council, was informed that some rioting was taking place in Honnali thanda and he phoned to the police. PW. 12, Head Constable Hanumantha rao who was in charge of the Bellary Police Station made an entry in the Station House Diary. Ext. P19 (a) and immediately contacted his superier officers. Thereafter PW. 30, the Circle Inspector of Police along with the other staff went to Honnalli Thanda and reached the place at about 10-45 P. M. They found the dead body of the child Rukmini inside the house. The dead body of Honnurappa was not there. Then PW. 30 recorded the complaint of PW. 1 as per Ext. P1 and registered the same. Thereafter, he searched the house of the accused but nothing incriminating was found. At 6 A. M. on the next morning he held inquest over ihe dead body of Rukmini and he examined PWs. 3, 4, 5, 6, 7,8 and some other witnesses. Then he prepared the Panchanama of the scene of offence as per ext. P3. He collected the bloodstained earth found at the seene. At a distance of about 42 feet from the house of PW. 1 he found 4 card-board wads and rubber wad, MOs. 20 to 24 and seized them. He also found lead pieces embedded on the door-frame. He also found some distorted pellets inside the house. The body of Honnurappa was traced on 5-7-1963 underneath a culvert about 3. miles away from the scene. PW. 30 held inquest over the dead body. 1 he found 4 card-board wads and rubber wad, MOs. 20 to 24 and seized them. He also found lead pieces embedded on the door-frame. He also found some distorted pellets inside the house. The body of Honnurappa was traced on 5-7-1963 underneath a culvert about 3. miles away from the scene. PW. 30 held inquest over the dead body. He tried to trace the accused, but they were not available On 15-7-1968, accused-1, 5 and 7 were arrested. On 24-7-1968, he arrested accused-2, 3 and 8 after they were discharged from the Medical college Hospital, Bellary where they were inpatients. He arrested the other accused on different days. After completing the investigation, he submitted a charge-sheet to the Court of the I Additional Munsiff-Magistrate, Bellary. ( 5 ) THE case of the appellant was one of total denial. He stated that the witnesses were deposing' falsely and he did not know anything about the occurrence. The appellant stated that he was not present in the village at the time of the occurrence and that he was living at that time with his family at Bellary. His plea was one of total denial. ( 6 ) IT has not been disputed before us that Honnurappa and the child rukmini met with unnatural death. Apart from the evidence of the eyewitnesses, PWs. 1 to 8, there is the evidence of the PW. 28, Dr. Thangaraj, who conducted post-mortem examination on the bodies of Honnurappa and Rukmini, which clearly proves that both these persons met with homicidal death. PW. 28 conducted the post-mortem on the child Rukmini at 2 P. M. on 4-7-1968. The doctor has noted the three injuries found on the body, in Ext. P39, the post-mortem report. ( 7 ) IT has not been challenged before us that both Honnurappa and the child rukmini met with their death as a result of gun-shot injuries. ( 8 ) THE prosecution case rests mainly on the direct evidence of the eight eye witnesses PWs. 1 to 8. PW. 1 Seku Naik has stated that PWs. 2-4 are his brothers, and that accused-1 and 2 are the brothers of his father and the other accused are his cousins. He has also stated that in his house pw. 7 Ruplibai, his wife, and his sister-in-law, PW. 6 Lakshmibai and pw. 8 Sethubai are residing; PW. 5 Mangalabai, his elder sister is residing nearby. 2-4 are his brothers, and that accused-1 and 2 are the brothers of his father and the other accused are his cousins. He has also stated that in his house pw. 7 Ruplibai, his wife, and his sister-in-law, PW. 6 Lakshmibai and pw. 8 Sethubai are residing; PW. 5 Mangalabai, his elder sister is residing nearby. He has stated that there were misunderstandings between himself and his brothers on the one hand and the 11 accused persons on the other hand. PW. 2 had given number of petitions to the authorities, such as exts. P3 and P4, alleging that their lives were being threatened by accused-2 and some cf the other accused. As a result of this, the police came and enquired into the matter and warned the accused PW. 1 has also, stated that on the evening in question, which was a festival day, while he and his brothers were standing in front of their house, the 11 accused came in a body and attacked them. The prosecution case was that these accused were armed with different weapons and they attacked the four brothers and caused injuries on them. As already stated, it is unnecessary to go into the details as the accused have all been acquitted of this charge. The prosecution case is that when the witnesses were being assaulted by the accused, PWs. 22 to 23 came there and separated them and the accused. Then accused-7 ran into the house of accused-2 and brought a gun, it may be mentioned that accused-2 is the licensed owner of the gun, mo. 1. Accused-7 then came in front of the house with the gun and stood at a distance of about 30 to 35 feet from PW. 1's house. On seeing him standing with the gun, PWs1 to 4 got afraid and were trying to get into the house. At that time their servant Honnurappa was standing outside the door of the house. Accused-7 fired one shot and this shot hit the head of Honnurappa and he fell down. The witnesses ran inside the house. PW. 6 Lakshmibai, sister-in-law of PW. 1 and wife of PW. 3, was then inside the house and she was carrying in her arms her child Rukmini aged 1 years. After the witnesses got into the house, she went to close the door, carrying the child in her arms. The witnesses ran inside the house. PW. 6 Lakshmibai, sister-in-law of PW. 1 and wife of PW. 3, was then inside the house and she was carrying in her arms her child Rukmini aged 1 years. After the witnesses got into the house, she went to close the door, carrying the child in her arms. Just at the time when she was attempting to close the door, accused-7 fired a second shot with the gun and that shot hit the head of the child and broke it into pieces and the child died instantaneously. The prosecution witnesses were all afraid and closed the door and sat inside. The accused thereafter went on throwing stones at the house. At about 10 or 11 P. M. , the Police party came there and asked them to open the door. The body of Honnurappa was not then in front of the house. The Inspector questioned him and recorded his statement as per Ext. P1. The evidence given by PW. 1 has been fully corroborated by the evidence of the other eye witnesses, PWs. 2 to 8. It may be mentioned that just before the occurrence, PW. 5 Mangalabai, one of the sisters of PW. 1 had also come to the house. PWs. 5, 6 and 8, the wives of the brothers of PW. 1 were residing in the house of PW. 1 and were present at the time of occurrence. ( 9 ) SRI Shamanna, learned Counsel appearing on behalf of the appellant, has contended that all the eye witnesses are close relations and are interested witnesses. The evidence discloses that accused-2, 3 and 8 had undoubtedly suffered grievous injuries and the prosecution witnesses had deliberately suppressed the fact that the prosecution party had inflicted grievous injuries on these accused. It is pointed out by the Counsel that the learned Sessions Judge has held that PWs. 1 to 4 were the aggressors in the incident that happened on the evening in question and that they had inflicted grievous injuries on accused-2, 3 and 8. It is pointed out by the Counsel that the learned Sessions Judge has held that PWs. 1 to 4 were the aggressors in the incident that happened on the evening in question and that they had inflicted grievous injuries on accused-2, 3 and 8. It is argued that as the learned Sessions Judge has not relied on their evidence and held that the accused were not members of an unlawful assembly and all the accused except accused-7, were not responsible for committing the murder of Honnurappa and Rukmini, it is unsafe to rely on the evidence of the same witnesses to convict the appellant of the charge under S. 302, indian Penal Code. ( 10 ) THIS contention has been urged before the learned Sessions. Judge and he has rejected the same. The learned Sessions Judge has pointed out that though the evidence of PWs. 1 to 8 with regard to the first part of the prosecution case was exaggerated and because of that the accused have been acquitted with regard to those charges, as the evidence of those witnesses with regard to the charge against PW. 7 was clear and convincing and found support in the circumstantial evidence and also the medical evidence and the Fire Arms Expert's opinion, he held that there was no reason why the evidence of the same witnesses should not be accepted. He has relied on Ugar Ahir v. State of Bihar, AIR. 1965 SC. 277. and Nizar Ali v. State of U. P. , AIR. 1957 SC. 366. wherein their Lordships have pointed out that if a part of the evidence of witnesses is false, there is no rule of law that their evidence which is clear and cogent with regard to the other part should not be accepted. We will now examine whether the evidence given by the eye witnesses, PWs. 1-8 is reliable and trustworthy so far as it relates to the appellant (accused-7 ). ( 11 ) ALL the eight eye witnesses have consiistently deposed that after pws. 22 to 25 had come and separated the accused and the prosecution witnesses, accused-7 went into the house of accused-2 and brought a gun and stood at a distance of 30 to 35 feet from the house of PW. 1. After seeing the gun with him, PWs. 1 to 4 got frightened and were trying to get inside the house. 22 to 25 had come and separated the accused and the prosecution witnesses, accused-7 went into the house of accused-2 and brought a gun and stood at a distance of 30 to 35 feet from the house of PW. 1. After seeing the gun with him, PWs. 1 to 4 got frightened and were trying to get inside the house. Then Honnurappa was standing near the door of the house. Then accused-7 fired a shot and that shot hit the head of Honnarappa and he fell down. Then all of them ran inside the house. When pw. 6 Lakshmibai, who was carrying the child Rukmini in her arms, tried to close the door, accused-7 fired a second shot and this shot hit the head of the child Rukmini and the child died as a result of this injury. The consistent evidence given by these witnesses has not been shaken in cross- examination. No serious contradictions have been pointed out in their evidence. In the first information, Ext. P1, given at the earlier point of time, PW. 1 has set out fully the facts as stated by the eye-witnesses with regard to the two shots fired by accused-7. In Ext. P1 it has been specifically stated how after the witnesses PWs. 22 to 25 separated the accused and the prosecution witnesses, when the prosecution witnesses were going towards their house, accused-7 went into the house of accused-2 and brought a gun and fired a shot and how the shot hit the head of the servant Honnurappa. It has also been stated that when accused-7 fired the second shot, it hit and fractured the head of the child Rukmini which was being carried by PW. 6 Lakshmibai. It may be jpointed out that if the witnesses wanted to depose falsely it would have been easy for them to have stated that accused-2 himself, who was the owner of the gun and against whom the prosecution witnesses had the main grudge, shot those two persons. The very fact that these prosecution witnesses have not stated that accused-2 who was heir principal enemy, had shot these persons, but stated that accused-7 shot those persons shows that they were not interested in foisting a false case. The version given by these witnesses finds corroboration in the medical evidence and the evidence given by the Fire Arms Expert, PW. The version given by these witnesses finds corroboration in the medical evidence and the evidence given by the Fire Arms Expert, PW. 26, that these two persons Honnarappa and rukmini met with their death as a result of shooting. We may also point out that the eye witnesses, PWs. 2, 3, 4, 5, 6, 7 and 8 have been examined by the Inspector at the earliest point of time at the inquest held on the morning of 4-7-1968 at 6 A. M. Apparently PW. 1 was not examined at the inquest as he had already given the complaint, Ext. P1. The learned Sessions Judge who had the benefit of seeing these witnesses in the box, has accepted the evidence given by them so far as it related to the shooting by accused-7 and there are no good reasons for us to disagree with the conclusion arrived at by the learned Sessions Judge. At paragraph 26 of his judgment, when discussing the evidence of PWs. 1 to 8, the eye witnesses he has observed as follows:"but when their evidence with regard to the complicity of accused-7 is clear and convincing and finds support in the circumstantial evidence and also the medical opinion and the Fire Arms expert's opinion, there is no reason why their evidence should not be accepted. Because their evidence with regard to one part of the prosecution case is not relied upon, it is no rule of law that their evidence regarding the other part of the prosecution case, which is clear and cogent, cannot be accepted. "again, at paragraph 33, the learned Judge observes as follows:"therefore, from the above discussion, I am convinced that the prosecution has proved beyond all reasonable doubt that Honnurappa and Rukmini Bai died a homicidal death, that they died on account of the injuries to their heads, that the injuries were caused by gun shots and that the gun shots were fired by accused-7 Narasa Naik. The prosecution has proved these facts both by direct and circumstantial evidence. The direct evidence of PWs. 1 to 8 inspire confidence and there is no reason to disbelieve their evidence. Their evidence is corroborated by the circumstantial evidence which I have stated above in detail and by the recitals in the first information report, Ext. P1, and their evidence conforms to probabilities. . . . . The direct evidence of PWs. 1 to 8 inspire confidence and there is no reason to disbelieve their evidence. Their evidence is corroborated by the circumstantial evidence which I have stated above in detail and by the recitals in the first information report, Ext. P1, and their evidence conforms to probabilities. . . . . "after going through their evidence carefully, we agree with learned Sessions judge that the evidence of the witnesses, PWs. 1 to 8 is reliable and trustworthy so far as shooting by A-7 is concerned and can be acted upon. ( 12 ) AS pointed out by the learned Sessions Judge, the circumstantial evidence in the case also supports the version given by the eye witnesses as to how the occurrence took place. The panchanama of the scene of occurrence, Ext. P43, prepared by the Inspector fully bears out the truth of the version of the eye-witnesses. ( 13 ) THE prosecution has also relied on the evidence of motive. The evidence discloses that there was ill-will between PW. 2 and his brother on the one side and the accused on the other side. From what has been stated above, it is clear that there was ill-will between pw. 2 and his brothers on the one side and A-2, A-7 and A-8 and some of the other accused on the other side. ( 14 ) IT is strenuously contended by Sri Shamanna that even assuming that A-7 fired shots with the gun, he had the right of private defence. Attack by PWs. 1 to 4 on his (A-7's) brother (A-8) and the other accused (A-2 and A-3) was going on and as A-7 apprehended that there was danger of life to these persons, he was justified in making use of the gun and firing the shots in question. It is argued that the prosecution case that pws. 22 to 25 separated the accused and PWs. is not true. PWs. 22 to 25 when examined in Court have not stated that they separated the PWs. and the accused. It is stressed that even in their statements recorded under S. 162 Crpc. , they have not stated so before the police. It is hence argued that what PW. 1 and PW. 8 stated in evidence that these persons (PWs. PWs. 22 to 25 when examined in Court have not stated that they separated the PWs. and the accused. It is stressed that even in their statements recorded under S. 162 Crpc. , they have not stated so before the police. It is hence argued that what PW. 1 and PW. 8 stated in evidence that these persons (PWs. 22 to 25) separated them when the fight was going on and that the shots were fired later on, is not true. It is also contended that A-7 had no intention of killing anybody and that he just fired shots to frighten and scare away PWs. l to 4 and make them desist from attacking A-2, A-3 and a-3 It is stressed that it is an error of judgment and A-7 never intended to harm anybody and the firing was without pre-meditation and in a heat of the moment, when he was in an excited mood. Strong reliance is placed on the decision in Jai Dev v. State of Punjab, AIR 1963 SC 612 in support of the said contentions. It is urged by Sri Shamanna that the first shot was clrarly fired in the right of private defence and that the second was also fired immediately after the first shot. It is finally urged that so far as the second shot at least is concerned, it may be a case of exceeding the right of private defence. ( 15 ) WE see no force in the said contentions. PWs. 1 to 8 have all specifically stated that after PWs. 22 to 25 had separated them and the accused, A-7 went into the house of A-2 and brought the gun MO. 1 and stood with the gun about 30-35 feet away. Seeing this, they got frightened and they were all returning to the house. Then A-7 fired a shot which kiled Honnurappa. They have also stated that after they had all got into the house and when PW. 6 went to close the door, the second shot was fired into the house which resulted in the death of the child Rukmini. From the fact that PWs. 22 to 25 have turned hostile and did not support the prosecution version, the evidence given by PWs. 1 to 8 does not become false. It may be mentioned that in the first information given at the earliest point of time PW. From the fact that PWs. 22 to 25 have turned hostile and did not support the prosecution version, the evidence given by PWs. 1 to 8 does not become false. It may be mentioned that in the first information given at the earliest point of time PW. 1 has specifically mentioned that PWs. 22 to 25 separated them and that when they were going to their house A-7 fired the first shot. We may also point out that the eye witnesses have all been examined at the inquest itself and the verson given by them is that after PWs. 22-25 separated them and when they were going into the house A-7 fired the first shot. We may also point out that the eye witnesses have all been examined at the inquest itself and the version given by them that after PWs. 22 to 25 separated them and when they were going into the house A-7 shot at them, has been mentioned by them at the earliest point of time and no contradiction has either been marked 01 pointed out in their evidence. It is therefore not possible to say that what these witnesses have stated is an after-thought or an improvement made by them in Court. If really the defence contention that A-7 fired the shot when fight was going on is true, then one would expect) that pws 1 to 4 would have been injured and possibly some of the accused also would have been injured. In anv case there was absolutely no need to fire the second shot when PWs. l to 4 had sot into the house. Hence there is no force in the contentions urged by Sri Shamanna. ( 16 ) WITH regard to the theory of private defence put forward by sri A. Shamanna on behalf of A-7, we would like to first point out that a-7 had not raised the plea of private defence, and his case was that he was not at all at the scene and was at the time in Bellary City. As per s. 105 of the Indian Evidence Act. when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions of the Indian Penal Code or any special exception is upon him and the Court shall presume the absence of such circumstances. As per s. 105 of the Indian Evidence Act. when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions of the Indian Penal Code or any special exception is upon him and the Court shall presume the absence of such circumstances. So it is for the accused to make out the plea of right of private defence. But it is well settled that though the accused might not have raised the plea of private defence, if there is material on record to show that he had a right of private defence, the Court can act upon the same. It is also well settled that the accused need not prove beyond reasonable doubt the plea raised by him, but if there is preponderance of possibilities in favour of his version, the Court can act upon it. In the instant case, as already stated, the evidence of the eye wtnesses PWs. 1 to 8 clearly shows that no fight was going on when A-7 fired the shots. The evidence clearly discloses that after PWs. 22 to 25 separated the accused and PWs. 1 to 4 A-7 went into the house of A-2 and brought the gun mo. 1 and stood in front of the house with the gun. Seeing the gun, p. Ws. 1 to 4 got frightened and were trying to get into the house. It was then that A-7 fired the shot when the P. Ws. were trying to escape into their houses. It is clear from the evidence that there was no fight going on and there was no apprehension of danger when A-7 fired the two shots. It is also in evidence that A-7 fired the shots from a distance of about 35. If the fight between P. Ws. 1 to 4 and the accused had been going on, as already pointed out, P. Ws. 1 to 4 or some of the accused surely would have been injured. When P. Ws. 1 to 4 were rushing into the house, the shot fired at them hit Honnurappa. To a case like this, S. 301 of the I. P. C. is clearly attracted. 1 to 4 or some of the accused surely would have been injured. When P. Ws. 1 to 4 were rushing into the house, the shot fired at them hit Honnurappa. To a case like this, S. 301 of the I. P. C. is clearly attracted. S. 301 states that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause. At paragraph 38 of his judgment, the learned Sessions judge in considering this aspect of the case has observed as follows: -"it is true that accused No. 7 had no intention to murder honnurappa or Rukmini Bai. He wanted to kill some of the P. Ws. But, unfortunately, the shots were fired at the two innocent persons. By virtue of Section 301 of the Indian Penal Code, he would be clearly guilty of murder. " ( 17 ) IN Jai Dev v. State of Punjab (3) their Lordships of the Supreme court have pointed out that right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted or which is reasonable to apprehend and should not exceed its legitimate purpose, and the exercise of right of defence must never be vindictive or malicious. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted or which is reasonable to apprehend and should not exceed its legitimate purpose, and the exercise of right of defence must never be vindictive or malicious. Their Lordships have also stated that in a situation where a person is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably crentes in his mind some excitement and confusion, in judging the question whether more force is used than necessary or justified by the prevailing Circumstances it would be inappropriate to adopt tests of detached obiectivity or to weigh the force that is used in golden scales. Their Lordships have also pointed out that to begin with a person exercising a right of private defence must consider whether the threat to his person or propprty is real and immediate. Their Lordships have also stressed if the said apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion for exercise of the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence. So it is clear from the said decision that if the danger or apprehension ceased to exist, there is no longer a right of private defence. In the instant case we have already pointed out that PWs. were all trying to escape into their house and the danger or apprehension had ceased to exist and as such A-7 cannot claim the right of private defence. ( 18 ) IN any case after A-7 fired the first shot which killed Honnurappa, there was absolutely no justification for him to re-load the gun and fire the second shot. After PWs. 1 to 4 had got into the house, there was absolutely no need for him to fire into the house when a number of persons were inside the house. It was this shot that killed the child Rukmini when p. W. 6 Lakshmibai tried to close the door. After PWs. 1 to 4 had got into the house, there was absolutely no need for him to fire into the house when a number of persons were inside the house. It was this shot that killed the child Rukmini when p. W. 6 Lakshmibai tried to close the door. This act of A-7 would clearly come under 4thly of S. 300 of I. P. C. The said clause reads as follows: -"if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily' injury as is likely to cause death, and commits such act without and excuse for incurring the risk of causing death or such injury as aforesaid. "the illustration (d) to S. 300 states that: -"without any excuse A fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. "we are therefore of opinion that A-7 would come within the definition of clause (4) of S. 300 I. P. C. and would be clearly guilty of an offence under s. 302 I. P. C. ( 19 ) IN para 37 of his judgment, the learned Sessions Judge has observed as follows: -"in my opinion, there was no justification for accused No. 7 to fire two shots indiscriminately and to take away the lives of two innocent persons. I have no doubt that the shooting indulged in by accused No. 7 was purposeful, vindictive and callous in highest degree. Malicious and vindictive acts are outside the protection afforded by law. It is in evidence that when accused No. 7 brought the gun, P. Ws. were afraid, P. W. 2 began to run towards his house and the other p. Ws. tried to enter inside their house. It is nowhere suggested by the defence that even when accused No. 7 brought the gun and stood in front of P. W. 1's house at a distance of thirty to thirty-five feet, P. Ws. were near any of the accused persons and much less they were assaulting them. "we therefore agree with the learned Sessions Judge that the offence made out in the instant case falls within S. 302 IPC. and A-7 has rightly been convicted for the said offence. were near any of the accused persons and much less they were assaulting them. "we therefore agree with the learned Sessions Judge that the offence made out in the instant case falls within S. 302 IPC. and A-7 has rightly been convicted for the said offence. ( 20 ) WE are also of opinion that the charge under S 25 (1) and S 27 of the Arms Act has been established against the appellant. The evidence clearly discloses that A-7 was in possession of the gun M. O. 1 and that he did not have licence for the same. It is also clear that the accused has made use of the gun MO. 1 for an unlawful purpose. He is therefore guilty of offences punishable under S. 25 (1) and S. 27 of the Arms Act and has been rightly convicted. ( 21 ) IN the result for the reasons mentioned above, we confirm the convictions and sentences passed on the appellant (A-7) and dismiss this appeal. --- *** --- .