Santhosh, J.-The appellant before this Court, Narasinga Naika alias Narasa Naik, was the 7th accused in the Court of Session, Bellary Division, in Sessions Case No. 22 of 1968. He has been convicted of an offence under section 302, Indian Penal Code and sentenced to imprisonment for life. He has also been convicted of offences under sections 25(1) and 27 of the Arms Act and sentenced on each count, to rigorous imprisonment 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 P.Ws. 1 to 4 are residents of Honnalli Thanda which is situate at a distance of about 6 miles from Bellary. P.Ws. 1 to 4 are brothers. Accused 1 and 2 are brothers and they are the uncles of P.Ws. 1 to 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 P.W. 21 who is also an uncle of P.Ws. 1 to 4. The other accused are also sons of one of the uncles of P.Ws. 1 to 4. The prosecution case is that there were misunderstandings between P.W. 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 P.W. 2 who sent the petition and ill-feelings developed between the accused and P.W. 2 and his brothers. As accused 2 and some of the other accused threatened P.W. 2 he sent petitions to the Superintendent of Police alleging that his life was in danger. Accused 2 thought that it was P.W. 2 who sent the petition and ill-feelings developed between the accused and P.W. 2 and his brothers. As accused 2 and some of the other accused threatened P.W. 2 he sent petitions to the Superintendent of Police alleging that his life was in danger. It may be mentioned that in petitions Exhibits P-3 and P-4, the name of accused 7 is referred to as one of the supporters of accused 2. An enquiry was held by P.W. 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 3rd July, 1968, which was a festival day, in the evening, P.Ws. 1 to 4 were standing in front of P.W. 1’s house. At that time all the 11 accused persons formed themselves into an unlawful assembly with the common object of murdering P.W. 2 and his brother, armed with deadly weapons. Then, according to the prosecution, these accused came there and began attacking P.W. 2 and his brothers and inflicted injuries on them. It is unnecessary to go into the details of the attack, all the accused have been acquitted of this charge. The case of the prosecution is that when the assault on P.Ws. 1 to 4 was going on, P.Ws. 22 to 24 and some others came and separated accused and P.Ws. 1 to 4. At that time accused 7 ran into the house of accused 2 which is nearby, and brought a gun, M.O. 1. When accused 7 came in front of the house of P.W. 1 with a gun and stood at a distance of about 30 to 35 feet from the house, P.Ws. 1 to 4 got frightened and began running into the house. At that time, accused 7 fired a shot. This slot hit Honnurappa, servant of P.W. 1 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 P.W. 6 Lakshmibai, wife of P.W. 3 Lakshma Naik, who carrying in her arms her child Rukmini, aged about 1½ years, tried to close the front door. Just at thai time, accused 7 reloaded the gun and fired a shot. The prosecution case is that thereafter, the prosecution witnesses ran into their house and P.W. 6 Lakshmibai, wife of P.W. 3 Lakshma Naik, who carrying in her arms her child Rukmini, aged about 1½ years, tried to close the front door. Just at thai time, accused 7 reloaded the gun and fired a shot. This shot hit the head of the child Rukmini who was being carried by P.W. 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, P.Ws. 1 to 8 did not come out of their house. 4. P.W. 10 Sri Sivaraj, who was the President of Bellary City Municipal Council, was informed that some rioting was taking place in Honnali Thenda and he phoned to the police. P.W. 12, Head Constable Hanumantha Rao who was in charge of the Bellary Police Station made an entry in the Station House Diary, Exhibit P-19(a) and immediately contacted his superior officers. Thereafter P.W. 30, the Circle Inspector of Police along with the other staff went to Honnali 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 P.W. 30 recorded the complaint of P.W. 1 as per Exhibit P-1 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 the dead body of Rukmini and he examined P.Ws. 3, 4, 5, 6, 7, 8 and some other witnesses. Then he prepared the Panchanama of the scene of offence as per Exhibit P-43. He collected the bloodstained earth found at the scene. At a distance of about 42½ feet from the house of P.W. 1 he found 4 card-board wads and rubber wad, M.Os. No. 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 5th July, 1968 underneath a culvert about 3½ miles away from the scene. P.W. 30 held inquest over the dead body. He tried to trace the accused, but they were not available. 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 5th July, 1968 underneath a culvert about 3½ miles away from the scene. P.W. 30 held inquest over the dead body. He tried to trace the accused, but they were not available. On 15th July, 1968, accused 1, 5 and 7 were arrested. On 24th July, 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 competing the investigation, he submitted a charge-sheet to the Court of the First 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 Honnuprappa and the child Rukmini met with unnatural death. * * * * * [His Lordship discussed the evidence and held that the shots that caused the death of Honnurappa and child Rukmini were fired by A-7 and that not when the fight was going on between the 2 opposing parties but after the retreat of P.W. 1 and others into P.W. 1’s house for shelter.] 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 section 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. 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 witnesses P.Ws. 1 to 8 clearly shows that no fight was going on when A-7 fired the shots. The evidence clearly discloses that after P.Ws. 22 to 25 separated the accused and P.Ws. 1 to 4. A-7 went into the house of A-2 and brought the gun M.O. 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 feet. 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, section 301 of the Indian Penal Code is clearly attracted. Section 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 know 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 Punjab1, 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. 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 creates in his mind some excitement and confusion in judging the question whether mere force is used than necessary or justified by the prevailing circumstances it would be inappropriate to adopt tests of detached objectivity or to weight 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 property is real and immediate. Their Lordships have also stressed in the said judgment that as soon as the cause for reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion for exercise 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. 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 P.Ws. 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 reload the gun and fire the second shot. After P.Ws. 1 to 4 had got into the house, there is 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 section 300 of Indian Penal Code. 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 any excuse for incurring the risk of causing death or such injury as aforesaid.” The illustration (d) to section 300 states that: “A without any excuse 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 section 300, Indian Penal Code and would be clearly guilty of an offence under section 302, Indian Penal Code. 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. 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 section 302, Indian Penal Code and A-7 has rightly been convicted for the said offence. 20. We are also of opinion that the charge under section 25(1) and section 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 M.O. 1 for an unlawful purpose. He is therefore guilty of offences punishable under section 25(1) and section 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. S.V.S. ----- Appeal dismissed; Conviction and sentence confirmed.