NESARGI, J. ( 1 ) THE appellants were the two accused A1 and A2, in SC. No. 15/1971 before the First Add1. Sessions Judge, Belgaum. Ai has been convicted for having committed an offence punishable under S. 338 1pc and sentenced to pay a tine of Rs, 1,000 and in delault to undergo rigorous imprisonment for six months. Out of this amount of Rs. 1,000, a sum of Rs. 500 has been directed to be paid over to Karyappa Lakkappa PW. 7, who sustained injuries. A2 has been convicted for having committed an offence punishable under S. 302 1pc and sentenced to imprisonment for life. They have challenged the said convictions and sentences in this appeal. ( 2 ) THE prosecution allegation against them was that they together committed the murder of Bharma Bheema Kulloli and his son smauappa bharma Kullolli at about 2 p. m. on 29-8-l970 on Hidakal Alagawadi cart track at a place about two furlongs still away from Raibag, District Belgaum. ( 3 ) THE prosecution case in brief, was that Al and the two deceased belonged to one family which owned Sannadi lands. PW. B Appanaa and pw. 8 Rayappa are tne sons of deceased bharma. Disputes had arisen in regard to of these lands and in view of taose disputes talker of Al had been murdered and the two deceased and P. W. 6 were accused in that murder case. They were acquitted. There was serious ill-will between these persons and tnat led to institution of procedings under S. 107 of crl. P. C. which had been closed much earlier to 29-8-1970. in view of these ill-feelings, A1 was under an apprehension that he was also going to be murdered by these persons and therefore, secured a licence to mave a double barrel gun for self protection. On his so securing a licence and purchasing a double barrel gun, the deceased, PWs. 6 and 8 trespassed into his place and caused damage to his gun. A criminal case was instituted against them and they were convicted for the oftence of criminal trespass and mischief of doing damage to the gun. This also led to heigntening of the ill-feelings between them. Al felt certain tnat one aay or the other he was going to be murdered by these people and therefore, engaged a2 to act as body-guard. This also led to heigntening of the ill-feelings between them. Al felt certain tnat one aay or the other he was going to be murdered by these people and therefore, engaged a2 to act as body-guard. A2 always used to move about along with A1. when Al was going out of his house for work. ( 4 ) SOME elders in the village tried to patch up the disputes between these persons and at that time they found that deceased Bharma demanded six acres of garden land from Al on the ground tnat tne father of A1 had promised to give that much of land. It is the prosecution case that al agreed to give six acres of land as demanded by Bharma on the elders assuring him that even after that he would not be murdered by Bharma and his people. No elders in the village were prepared to give such assurance and therefore, the negotiation fell through. ( 5 ) AT about 2 p. m. on 29-8-1970 Al and A2 were proceeding towards hidakal. There was a well in the land by the side of the cart track. PW. 6 was at the well. On seeing these persons, PW. 6 called out his brother saying that those people had come. Deceased Sidda came out of the well. He had a battle-axe in his hand. PW. 6 also had a battle axe. Then PW. B called out Bharma who was in his hut nearby. By that time some exchange of words had taken place between PW. 6 and Sidda on the one hand and al on the other. Bharma came out holding a thick bamboo stick MO. 141 in his hands. By that time Al and A2 had gone ahead towards Hidakal. Bharma ran after them calling names to Al and A2 and asking them to stop. PW. 6 and deceased Sidda also followed Bharma and ail the while carrying their battle-axe. Bharma was ahead of PW. 6 and deceased Sidda. Then exchange of words and shouting was heard by PW. 7 Karyappa who was in his land nearby. He came towards the spot out of sheer eunosity. He saw deceased Bharma running after Al. When they were proceeding towards Hidakal' he also saw that PW. . 6 and PW. 8 were going benind bharma and were having the battle-axes. Then exchange of words and shouting was heard by PW. 7 Karyappa who was in his land nearby. He came towards the spot out of sheer eunosity. He saw deceased Bharma running after Al. When they were proceeding towards Hidakal' he also saw that PW. . 6 and PW. 8 were going benind bharma and were having the battle-axes. When Bharma, 'according to the prosecution, was about 20-30 ft. still away from Al, Al discharged his gun for the first lime. But Bharma avoided the shot. Unfortunately, the pellets struck on the stomach and right side of PW. 7 who was standing aside in the land by the side of the cart track. PW. 7 ran towards the land where his uncle was and fell down unconscious. When he regained consciousness he found himself in the hospital. Even after the first shot was discharged Bharma continued to run after Al and when he was just about four feet or just beyond four feet away from Al Al fired for the second time and the shot struck Bharma and Bharma collapsed. Deceased Sidda rushed on Al and dealt two blows with the battle-axe that was in his hand. One blow was on the right scapula of Al and the other was on the arm. On seeing that A2 who was till then inactive dealt blows by means of his axe on Sidda who was assaulting A1. Sidda sustained bleeding injuries and collapsed. Then PW. 6 dropped his axe and went away. It is also the case of the prosecution that PW. 8 was in another, land of PW. 13 Shivappa. and then he came on hearing the shots he saw his father Bharma being shot down by Al and Sidda attacking Al with axe and A2 cutting Sidda by means of his axe. He gave information as per Ex. P13 and it was on the basis of this information that PW. 20 SHO. at Kudchi registered a case in Crime No. 51/1970 and took up investigation. The investigation. was completed by the Circle Inspector of Police PW. 21 Nandolkar, ( 6 ) THE defence put forward by the accused is that they were attacked by these persons and in order to save themselves A1 firstly discharged the gun in the air. 20 SHO. at Kudchi registered a case in Crime No. 51/1970 and took up investigation. The investigation. was completed by the Circle Inspector of Police PW. 21 Nandolkar, ( 6 ) THE defence put forward by the accused is that they were attacked by these persons and in order to save themselves A1 firstly discharged the gun in the air. But even then Bharma and others continued to attack him and hence he shot at Bharma and Bharma died and on seeing the the attack on himself A2 weilded his axe and dealt blows. In other wor is they have put forward that they were entitled to defend themselves in the exercise ot right of private defence and had exercised that right and there fore, had not committed any offence, In regard to the injuries on PW7, it is the say of Al that he had discharged the gun in the air and had. not' seen PW7 Karyappa and hence it was a sheer accident. ( 7 ) THE learned First Additional Sessions Judge, has, in regard to the first shot fired by Al and due to which, injuries were caused on PW. 7 concluded that it was a rash and negligent act on the part of A1 and hence, he was guilty of the offence punishable under S. 338 IPC. In regard to the killing of Bharma by Al by firing the gun and discharging a second shot he has held that Al had done it in the exercise of his right of private defence and therefore, he was not guilty of the offence of murder. In regard to A2, he has found that if A2 had not attacked Sidda there was every likelihood of Al having been cut to death by Sidda and PW. 6 and therefore, it was necessary for A2, in order to prevent Al being murdered to cut Sidda by means of his axe. Afer having found as above, he has held that in View of the fact that A2 was only according to him, a hireling he could not have exercised the right of private defence and therefore, A2 was guilty of the offence of murder. ( 8 ) IT is seen from the above that almost all the particulars necessary for a decision in this matter are undisputed. ( 8 ) IT is seen from the above that almost all the particulars necessary for a decision in this matter are undisputed. Shri B. V. Deshpande, the learned Counsel appearing on behalf of the appellants contended, in the first instance, that wnen A1 discharged the gun on the first occasion he was under reasonable apprehension of death at the hands of Bharma, Sidda and PW. 6 and there fore in exercise of the right of private defence he discharged the gun with an idea of scaring away those people, but unforunatery the pertes struck PW. 7 and therefore, the conviction of Al for an offence punishable under S. 338 IPC is unsustainable. He further urged that the only effectual way of exercising his right of private defence for al was by discharging the gun at Bharma, Sidda and PW. 6 in the first instance and therefore, he had to act in that manner and as such, even though that act of Al caused injuries on PW. 7, Al is protected by the provisions of S. 106 IPC. The learned Government Pleader contended that when Al discharged the first shot Bharma was still about 20-30 feet away from Al and PW6 and Sidda were at a little distance behind Bharma and therefore there was no occasion for Al to entertain any apprehension that he was going to be murdered by these persons. He, in this connection pointed out that Bharma was only armed with a bamboo stick of a diameter of about 11/2 only. It is on this basis he contended that benefit of s. 106 IPC was not available to A1. ( 9 ) SECTION 106 of IPC reads as follows ; 106. Right of private defence against deadly assault when there is risk of harm to innocent person.-If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. It is therefore, necessary to decide whether at the time when Al discharged the first shot the assault on Al was such as to reasonably cause apprehension of death in the mind of Al and whether Al was so situated that he could not have effectually exercised the right of private defence without taking the risk of causing hurt to an innocent person also. ( 10 ) THE evidence adduced by the prosecution shows that there was a long-standing dispute between the deceased persons and Al and earlier to that between the deceased persons and the father of Al in regard to sannadi lands belonging to the family. The father of Al had been murdered and the two deceased and PW6 Appanna were tried for that offence tut were acquitted. Even thereafter, the ill-will grew to such an extent that Al was entertaining a fear that he would be any day murdered by these people. He had, therefore, secured a licence to possess a gun for his self protection. He had also engaged A2 as his body-guard. A2 was all along moving about with Al in order to guard A1. Elders had attempted to patch up the dispute and Al agreed to part with six acres of land as demanded by deceased Bharma on condition that any of the elders were to assure him that even after that he would not be murdered by deceased bharma and his people. No persons were prepared to give such an assurance to Al. ( 11 ) THE above mentioned facts go to show how acute was the fear in the mind of A1 that it was certain that some day attempt to murder him would be made by these people. This back-ground cannot be forgotten while assessing as to what Al must have reasonably apprehended, when he discharged the first shot at deceased Bharma, PW. 6 and deceased sidda. ( 12 ) PWS. 6, 7, 8, 9 and 12 are witnesses speaking to the incident. PWs. 6, 7, 9 and 12 speak to the beginning of the incident. PWs. 6, 8, 9 and 12 speak to the later part ot the moment also. The version given by thesewitnesses has undergone certain changes from the version mat was given by them during the investigation and in Ex. P13, the information lodged by PW. 6. PWs. 6, 7, 9 and 12 speak to the beginning of the incident. PWs. 6, 8, 9 and 12 speak to the later part ot the moment also. The version given by thesewitnesses has undergone certain changes from the version mat was given by them during the investigation and in Ex. P13, the information lodged by PW. 6. Ail that material has been brought about in the cross-examination of these witnesses. The unadulterated version of PWs. 6 and 8 discloses that it was PW. 6 who called out Srdda, on seeing these two persons passing on the cart track Sidda came out of the well having a battle-axe with him; PW. 6 called out his father from the hut; and Bharma the deceased came out having the bamboo stick MO. 14 in his hands and rushed at A1 and A2 who had already proceeded towards Hidakal and all the while calling names at them. PWs. 6 and 8 followed deceased Bharma havingtheir axes with them. A1 discharged the first shot and even then deceased bharma, ran at Al and Al shot at him again and Bharma collapsed. Then, deceased Sidda cut twice with the axe on the back and arm of Al and on seeing that assault A2 dealt blows with his axe on Sidda, the deceased and sidda expired. ( 13 ) IN view of the state of mind of A1 because of the long-standing enmity between him and the deceased and their people and the circumstances that had transpired in regard to patching up of the dispute, we have no hesitation in holding that A1 must have entertained a reasonable apprehension that he was going to be murdered by these people, on seeing pw. 6 call out deceased Sidda; Shidda came with an axe and then PW. 6 call out Bharma; Bharma came out with a bamboo suck and all these people- the lead being taken by Bharma-run after him and A2. It is clearly available in the evidence of these witnesses that the deceased Bharma went after Al in order to assault him with a stick. It is no wonder that Al, on seeing those acts on the part of Bharma, PW. It is clearly available in the evidence of these witnesses that the deceased Bharma went after Al in order to assault him with a stick. It is no wonder that Al, on seeing those acts on the part of Bharma, PW. 6 and Shidda must have immediately concluded that those persons had determined to do away with him ( 14 ) WE, therefore agree with the contention of Shri B. V. Deshpande the learned Counsel appearing for the appellants, that even when Al discharged the first shot at those persons, he was about to be assaulted and such assault had caused reasonable apprehension of death in the mind of a1. Hence, Al had the right of private defence available to him. It is now to be decided whether Al could not have effectually exercised that right it private defence without discharging the first shot. We are clearly of the view that any other way of exercising the right of private defence that was available to A1 would not have been effective because not only bharma was armed with a stick but also PW6 and deceased Sidda were armed with battle-axes. The only weapon in the hands of Al was the gun. " he had to use it in order to effectually exercise his right of private defence. It is to be, in view of these conclusions, held that the ingredients of S. 106, ipc are satisfied. It therefore, follows that the conclusion of the learned first Additional Sessions Judge that Al is guilty of the offence punishable under S. 338 IPC is not sustainable. ( 15 ) THE reasoning of the learned First Addl. Sessions Judge while convicting A2 that the right of private defence was not available to A2 because A2 was a hireling, is on the face of it, erroneous. ( 16 ) THE meaning of the word hireling in common parlance is a person hired in order to assault or murder or commit some such act. The evidence of the prosecution itself shows that A2 had not been hired to commit the murders of any one of these persons namely, Bharma, Sidda, appanna and Ravanpa. He was engaged by Al to act as bodv-guard to protect A1 from being murdered by these persons. The Teamed First Addl. Sessions Judge has apparently ignored S. 97 IPC in this connection. It reads as follows :"97. He was engaged by Al to act as bodv-guard to protect A1 from being murdered by these persons. The Teamed First Addl. Sessions Judge has apparently ignored S. 97 IPC in this connection. It reads as follows :"97. Right of private defence of the body and of property every person has a right, subject to the restrictions contained in S. 99. to defend- firstly-His own body and the body of any other person, against any offence affecting the human body; secondly-The property, whether moveable or immoveable, of himself or of anv other person, against anv art which is an offence falling under the definition of theft robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. It is therefore clear that every person has a right of private defence of the body not only his own but of any other person also when any offence is being committed against that person. Hence, when the situation was such that A1 had the right of private defence and A2 saw that A1 was going to be murdered by Sidda and PW6. such a right was also avail able to A2 and therefore, the acts of A2 in assaulting Sidda are protected in law. Reasoning of the learned First Add1. Sessions Judge cannot be sustained in law. The learned Government Pleader pointed out that according to the evidence of PWs. 9 and 12. Sidda was holding the legs of A1 because the battle axe that was in his hands had faten down as the gun of A1 had struck against it, when A2 assaulted Sidda, and urged that A2 had no reason to apprehend that Al was about to be murdered. We find that this portion of their evidence is an improvement and that is not the earliest version, and, moreover the evidence of PWs. 6 and 8 in the Sessions Court is not to that effect. They have not at all sworn that the battle-axe that was in the hands of Sidda had fallen being struck against by the gun. PWs6 and 8 have in unequivocal terms stated that on Bharma being shot at and collapsing, Sidda went at Al and dealt two blows by means of his bottle-axe and at that time A2 assaulted Sidda by means of his battle axe. PWs6 and 8 have in unequivocal terms stated that on Bharma being shot at and collapsing, Sidda went at Al and dealt two blows by means of his bottle-axe and at that time A2 assaulted Sidda by means of his battle axe. The version given by PW 6 and PW 8 is the very version found in ex. P13 the first information. Even then there was PW 6 having a battleaxe with him and he was also about to attack A1. It is, hence, clear that the material on which the contention of the learned Government Pleader is placed is not available for that purpose. " ( 17 ) IN view of the foregoing reasons, we hold that the act committed by Al in discharging the first shot and accidently causing the injuries on pw. 7 is protected by S. 106 IPC and the assault by A2 on Siddappa is in the exercise of his right of private defence in defending A1 while he was being assaulted by Sidda the deceased. ( 18 ) WE, therefore, allow this appeal and set aside the conviction and sentences passed on the two appellants by the First Addl. Sessions Judge. We acquit them of the offences of which they have been convicted. We direct that A2 be set at liberty forthwith. --- *** --- .