Nesargi, J.-The appellants were the two accused, A-1 and A-2, in Sessions Case No. 15 of 1971 before the First Additional Sessions Judge, Belgaum. A-1 has been convicted for having committed an offence punishable under section 338 of the Indian Penal Code and sentenced to pay a fine of Rs. 1,000 and in default, 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 P.W.7, who sustained injuries. A-2 has been convicted for having committed an offence punishable under section 302 of the Indian Penal Code 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 Kullolli and his son Shiddappa Bhaima Kullolli at about 2 p.m. on 29th August, 1970, on Hidakal Alagawadi cart track at a place about two furlongs still away from Hidakal, Taluka Raibag, District Belgaum. 3. The prosecution case, in brief, was that A-1 and the two deceased belonged to one family which owned Sannadi lands. P.W.6 Appanna and P.W.8 Rayappa are the sons of deceased Bharma. Disputes had arisen in regard to partitioning of these lands and in view of those disputes father of A-1 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 that led to institution of proceedings under section 107 of the Code of Criminal Procedure, which had been closed much earlier to 29th August, 1970. In view of these ill-feelings, A-1 was under an apprehension that he was also going to be murdered by these persons and therefore, secured a licence to have a double barrel gun for self-protection. On his so securing a licence and purchasing a double barrel gun, the deceased, P.Ws. 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 offence of criminal trespass and mischief of doing damage to the gun. This also led to heightening of the ill-feelings between them. A-1 felt certain that one day or the other he was going to be murdered by these people and therefore, engaged A-2 to act as bodyguard. This also led to heightening of the ill-feelings between them. A-1 felt certain that one day or the other he was going to be murdered by these people and therefore, engaged A-2 to act as bodyguard. A-2 always used to move about along with A-1, when A-1 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 A-1 on the ground that the father of A-1 had promised to give that much of land. It is the prosecution case that A-1 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 29th August, 1970, A-1 and A-2 were proceeding towards Hidakal. There was a well in the land by the side of the cart track. P.W.6 was at the well. On seeing these persons, P.W.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. P.W. 6 also had a battle-axe. Then P.W. 6 called out Bharma who was in his hut nearby. By that time some exchange of words had taken place between P.W.6 and Sidda on the one hand and A-1 on the other. Bharma came out holding a thick; bamboo stick M.O. 14 in his hands. By that time A-1 and A-2 had gone ahead towards Hidakal. Bharma ran after them calling names to A-1 and A-2 and asking them to stop. P.W.6 and deceased Sidda also followed Bharma and all the while carrying their battle-axe. Bharma was ahead of P.W.6 and deceased Sidda. Then exchange of words and shouting was heard by P.W.7 Karyappa who was in his land nearby. He came towards the spot out of sheer curiosity. He saw deceased Bharma running after A-1. When they were proceeding towards Hidakal he also saw that P.W. 6 and P.W.8 were going behind Bharma and were having the battle-axes. Then exchange of words and shouting was heard by P.W.7 Karyappa who was in his land nearby. He came towards the spot out of sheer curiosity. He saw deceased Bharma running after A-1. When they were proceeding towards Hidakal he also saw that P.W. 6 and P.W.8 were going behind Bharma and were having the battle-axes. When Bharma, according to the prosecution, was about 20-30 feet still away from A-1, A-1 discharged his gun for the first time. But Bharma avoided the shot. Unfortunately, the pellets struck on the stomach and right side of P.W.7 who was standing aside in the land by the side of the cart track. P.W. 7 ran towards the land where his uncle was and fell down unconscious. When he regained conscience he found himself in the hospital. Even after the first shot was discharged Bharma continued to run after A-1 and when he was just about four feet or just beyond four feet away from A-1, A-1 fired for the second time and the shot struck Bharma and Bharma collapsed. Deceased Sidda rushed on A-1 and dealt two blows with the battle-axe that was in his hand. One blow was on the right scapula of A-1 and the other was on the arm. On seeing that A-2 who was till then inactive dealt blows by means of his axe on Sidda who was assaulting A-1. Sidda sustained bleeding injuries and collapsed. Then P.W. 6 dropped his axe and went away. It is also the case of the prosecution that P.W. 8 was in another land of P.W.13 Shivappa and then he came on hearing the shots he saw his father Bharma being shot down by A-1 and Sidda attacking A-1 with axe and A-2 cutting Sidda by means of his axe. He gave information as per Exhibit P-13 and it was on the basis of this information that P.W.20 S.H.O. at Kudchi registered a case in Crime No. 51 of 1970 and took up investigation. The investigation was completed by the Circle Inspector of Police P.W.21 Nandolkar. 6. The defence put forward by the accused is that they were attacked by these persons and in order to save themselves A-1 firstly discharged the gun in the air. The investigation was completed by the Circle Inspector of Police P.W.21 Nandolkar. 6. The defence put forward by the accused is that they were attacked by these persons and in order to save themselves A-1 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 attack on himself A-2 weilded his axe and dealt blows. In other words, they have put forward that they were entitled to defend themselves in the exercise of right of private defence and had exercised that right and therefore, had not committed any offence. In regard to the injuries on P.W.7, it is the say of A-1 that he had discharged the gun in the air and had not seen P.W.7 Karyappa and hence, it was a sheer accident. 7. The learned First Additional Sessions Judge, has, in regard to the first shot fired by A-1 and due to which, injuries were caused on P.W.7, concluded that it was a rash and negligent act on the part of A-1 and hence, he was guilty of the offence punishable under section 338 of the Indian Penal Code. In regard to the killing of Bharma by A-1 by firing the gun and discharging a second shot, he has held that A-1 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 A-2, he has found that if A-2 had not attacked Sidda there was every likelihood of A-1 having been cut to death by Sidda and P.W.6 and therefore, it was necessary for A-2, in order to prevent A-1 being murdered, to cut Sidda by means of his axe. After having found as above, he has held that in view of the fact that A-2 was only, according to him, ‘a hireling’, he could not have exercised the right of private defence and therefore, A-2 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 when A-1 discharged the gun on the first occasion he was under reasonable apprehension of death at the hands of Bharma, Sidda and P.W.6 and therefore, in exercise of the right of private defence he discharged the gun with an idea of scaring away those people, but unfortunately the pellets struck P.W.7 and therefore, the conviction of A-1 for an offence punishable under section 338 of the Indian Penal Code is unsustainable. He further urged that the only effectual way of exercising his right of private defence for A-1 was by discharging the gun at Bharma, Sidda and P.W.6 in the first instance and therefore, he had to act in that manner and as such, even though that act of A-1 caused injuries on P.W.7, A-1 is protected by the previsions of section 106 of the Indian Penal Code. The learned Government Pleader contended that when A-1 discharged the first shot Bharma was still about 20-30 feet away from A-1 and P.W. 6 and Sidda were at a little distance behind Bharma and therefore, there was no occasion for A-1 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 1¼" only. It is on this basis he contended that benefit of section 106 of the Indian Penal Code was not available to A-1. 9. Section 106 of the Indian Penal Code reads as follows: 106. He, in this connection, pointed out that Bharma was only armed with a bamboo stick of a diameter of about 1¼" only. It is on this basis he contended that benefit of section 106 of the Indian Penal Code was not available to A-1. 9. Section 106 of the Indian Penal Code 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 A-1 discharged the first shot the assault on A-1 was such as to reasonably cause apprehension of death in the mind of A-1 and whether A-1 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 longstanding dispute between the deceased persons and A-1 and earlier to that between the deceased persons and the father of A-1 in regard to Sannadi lands belonging to the family. The father of A-1 had been murdered and the two deceased and P.W.6 Appanna were tried for that offence, but were acquitted. Even thereafter, the ill-will grew to such an extent that A-1 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 A-2 as his body-guard. A-2 was all along moving about with A-1 in order to guard A-1. Elders had attempted to patch up the dispute and A-1 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 A-1. 11. No persons were prepared to give such an assurance to A-1. 11. The above mentioned facts go to show how acute was the fear in the mind of A-1 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 A-1 must have reasonably apprehended, when he discharged the first shot at deceased Bharma, P. W. 6 and deceased Sidda. 12. P.Ws. 6, 7, 8, 9 and 12 are witnesses speaking to the incident. P.Ws. 6, 7, 9 and 12 speak to the beginning of the incident. P. Ws. 6, 8, 9 and 12 speak to the latter part of the incident also. The version given by these witnesses has undergone certain changes from the version that was given by them during the investigation and in Exhibit P-13, the information lodged by P. W. 6. All that material has been brought about in the cross-examination of these witnesses. The unadulterated version of P. Ws. 6 and 8 discloses that it was P. W. 6 who called out Sidda, on seeing these two persons passing on the cart track; Sidda came out of the well having a battle-axe, with him; P.W.6 called out his father from the hut; and Bharma the deceased came out having the bomboo stick M.O. 14 in his hands and rushed at A-1 and A-2 who had already proceeded towards Hidakal and all the while calling names at them. P.Ws. 6 and 8 followed deceased Bharma having their axes with them. A-1 discharged the first shot and even then deceased Bharma ran at A-1 and A-1 shot at him again and Bharma collapsed. Then deceased Sidda cut twice with the axe on the back and arm of A-1 and on seeing that assault A-2 dealt blows with his axe on Sidda the deceased and Sidda expired. 13. A-1 discharged the first shot and even then deceased Bharma ran at A-1 and A-1 shot at him again and Bharma collapsed. Then deceased Sidda cut twice with the axe on the back and arm of A-1 and on seeing that assault A-2 dealt blows with his axe on Sidda the deceased and Sidda expired. 13. In view of the state of mind of A-1 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 A-1 must have entertained a reasonable apprehension that he was going to be murdered by these people, on seeing P.W.6 call out deceased Sidda; Sidda came with an axe and then P.W.6 called out Bharma; Bharma came out with a bamboo stick and all these people-the lead being taken by Bharma-run after him and A-2. It is clearly available in the evidence of these witnesses that the deceased Bharma went after A-1 in order to assault him with a stick. It is no wonder that A-1, on seeing those acts on the part of Bharma, P.W.6 and Sidda, 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 A-1 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 A-1.Hence, A-1 had the right of private defence available to him. It is now to be decided whether A-1 could not have effectually exercised that right of 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 A-1 would not have been effective because not only Bharma was armed with a stick but also P. W. 6 and deceased Sidda were armed with battle-axes. The only weapon in the hands of A-1 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 section 106 of the Indian Penal Code, are satisfied. The only weapon in the hands of A-1 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 section 106 of the Indian Penal Code, are satisfied. It, therefore, follows that the conclusion of the learned First Additional Sessions Judge that A-1 is guilty of the offence punishable under section 338 of the Indian Penal Code, is not sustainable. 15. The reasoning of the learned First Additional Sessions Judge while convicting A-2 that the right of private defence was not available to A-2 because A-2 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 A-2 had not been hired to commit the murders of any one of these persons, namely, Bharma, Sidda, Appanna and Rayappa. He was engaged by A-1 to act as body-guard to protect A-1 from being murdered by these persons. The learned First Additional Sessions Judge has apparently ignored section 97 of the Indian Penal Code 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 section 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 movable or immovable, of himself or of any other person, against any act 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 him own but of any other person also when any offence is being committed against that person. Hence, when the situation was such that A-1 had the right of private defence and A-2 saw that A-1 was going to be murdered by Sidda and P. W. 6, such a right was also available to A-2 and therefore, the acts of A-2 in assaulting Sidda are protected in law. Reasoning of the learned First Additional Sessions Judge cannot be sustained in law. Reasoning of the learned First Additional Sessions Judge cannot be sustained in law. The learned Government Pleader pointed out that according to the evidence of P. Ws. 9 and 12, Sidda was holding the legs of A-1 because the battle -axe that was in his hands had fallen down as the gun of A-1 had struck against it when A-2 assulted Sidda, and urged that A-2 had no reason to apprehend that A-1 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 P.Ws. 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. P.Ws. 6 and 8 have in unequivocal term stated that on Bharma being shot at and collapsing, Sidda went at A-1 and dealt two blows by means of his battle-axe and at that time A-2 assaulted Sidda by means of his battle-axe. The version given by P.W.6 and P.W.8 is the very version found in Exhibit P-13 the first information. Even then there was P.W.6 having a battle axe with him and he was also about at attack A-1. 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 A-1 in discharging the first shot and accidently causing the injuries on P. W. 7 is protected by section 106 of the Indian Penal Code and the assault by A-2 on Siddappa is in the exercise of his right of private defence in defending A-1 while he was being assaulted by Sidda the deceased. 18. We, therefore, allow this appeal and set aside the convictions and sentences passed on the two appellants by the First Additional Sessions Judge. We acquit them of the offences of which they have been convicted. We direct that A-2 be set at liberty forthwith. S.V.S. ----- Appeal allowed.