JUDGMENT S. K. Kaul, J. 1. THIS is an appeal by Kamta against his sentence and conviction to undergo 7 years' R. I. under Section 304 Part I, IPC as awarded to him by learned Sessions Judge, Hardoi. 2. BEFORE taking up the facts of this case, I would like to mention that at the time of Mahabharat, the famous epic of our country, when Arjuna showed his disinclination to take part in the fight as he found his near and dear ones arrayed on the opposite side lest he might be the instrument in their killing, Lord Krishna, apart from teaching him and all of us the knowledge contained in Gita, remarked that man is only an instrument of the happenings that take place in the world and birth and death are determined by the will of God. This unfortunate case is an example of the above preachings of Lord Krishna. The accused appellant stood trial for committing murder of his own elder brother. The story is that Mendai, father of the accused, deceased and witness Ghurai, used to live with Ghurai in village Saidapur. Deceased Chutta and accused Kamta resided in adjacent houses. In fact, the houses of three brothers were separate. In front of the houses of the accused and the deceased, was an open space, lying to the east. To the south of the aforesaid land stood Chaupal of Ghurai. To the south of the aforesaid Chaupal, there is again an open space which continued to be joint of the three brothers. Some Andi plants stood on this joint land. On this unfortunate date namely, 30th of June, 1975 accused Kamta cut three Andi plants in connection with his Chappar at about 9 a.m. Smt. Lalkora, wife of deceased Chutta, now widow for the acts of the accused, protested. This was responsible for an exchange of abuses between Smt. Lalkora, on one hand and Kamta, on the other. Ghurai at that time was ploughing his field which was close to the land. Hearing these abuses, he asked, from that very place, Kamta and Smt. Lalkora not to quarrel, but his advice was unheeded. Chutta deceased was also ploughing the same field on the northern side. He came back to his house. Smt Lalkora complained of what the accused had done. Hearing these abuses, he asked, from that very place, Kamta and Smt. Lalkora not to quarrel, but his advice was unheeded. Chutta deceased was also ploughing the same field on the northern side. He came back to his house. Smt Lalkora complained of what the accused had done. Chutta remostrated to the accused and then ensued an altercation accompanied by exchange of abuses between Kamta and Chutta. Chutta went a few steps towards the accused and then the accused taking out a tamancha from the folds of his Dhoti, shot at Chutta from a very close range on account of which Chutta dropped down dead. This incident, apart from Smt. Lalkora and Ghurai, was also witnessed by Munni Devi daughter of Chutta. Ghurai went to Police Station Sandi and lodged a report about this occurrence on the same date at about 10 a.m. Mahadeo Singh Station Officer, Sandi took up investigation. He reached the spot on the same date at about 11 a.m. He found the dead body of Chutta lying on the ground at the scene of occurrence. He prepared an inquest report relating to the dead body, and after sealing the same he sent it for autopsy. Mahadeo Singh interrogated witnesses. He also found two tiklis on the spot. He took possession over the same sealed them in a packet and prepared a memo accordingly. Autopsy upon the dead body of Chutta was conducted by Dr. Verma Medical Officer, District Hospital, Hardoi, on 1st of July, 75. The following ante-mortem injury was found upon the dead body : Multiple gunshot wounds .25 cm x .25 cm to .25 cm x .35 cm muscle to chest cavity deep on the front of left side of chest, left shoulder and upper part of left arm in an area of 25 cm x 22 cms. Margins of the wound were inverted and lacerated. There was no blackening or tatooing around the wounds. The direction of the wound was posteriorly, slightly to the right. The internal examination revealed 2nd and 3rd ribs on the right side to have been fractured. Five small pellets were recovered from the muscles. Pleura was punctured on both sides. Chest cavity contained about half pound of blood and fourteen pellets were recovered from this place. Right lung was punctured at four places. Left lung was punctured at multiple places. Six small pellets were recovered from this place. Five small pellets were recovered from the muscles. Pleura was punctured on both sides. Chest cavity contained about half pound of blood and fourteen pellets were recovered from this place. Right lung was punctured at four places. Left lung was punctured at multiple places. Six small pellets were recovered from this place. Pere cardium was punctured at two places. Stomach contained about two ounces of watery fluid. The opinion of Dr. Verma was that death was caused due to shock and haemorrhage as a result of firearm injury which, in his view, was sufficient in the ordinary course to cause death. 3. THE accused was not to be found by the investigating officer. He was absconding. On 10th July, 1975 Mahadeo Singh Investigating Officer gave report to the Magistrate concerned for taking proceedings under Sections 82/83 CrPC. However the accused surrendered in the court on 24th of July, 1975. On completing investigation, a charge sheet was submitted against the accused under Section 302 IPC. 4. THE accused denied having anything to do with the occurrence. He admitted, however, that on the date of incident, he had cut three Andi plants from the joint land. He also admitted that on that account there was exchange of abuses between him and Smt. Lalkora. He also admitted that when his brother Chutta came, there was an exchange of abuses between him and Chutta. His case was that while this wordy war was going on between him and others, some body from the crowd which had collected had shot at Chutta. A suggestion was also made by the accused that the deceased had advanced towards him with a Kanta in his hand and in his defence, he had shot at the deceased. We may note here that the suggestion thrown to the witnesses was that the deceased had advanced towards the accused with a Danda. The learned Sessions Judge, on an appraisement of evidence found that the accused was responsible for committing the murder of his own brother without any rhyme or reason and that he had no right of self defence in inflicting the injury upon the deceased. He, however, looking to the antecedents, observed that the case would fall under Section 304 Part I, IPC rather than under Section 302 of the Indian Penal Code. In that view of the matter, he sentenced and convicted the accused as above. 5. He, however, looking to the antecedents, observed that the case would fall under Section 304 Part I, IPC rather than under Section 302 of the Indian Penal Code. In that view of the matter, he sentenced and convicted the accused as above. 5. ONLY one submission was made before me by learned counsel, Sri J. N. Misra, and that submission was that sentence may be modified. 6. FIRST of all, I would like to discuss in brief the prosecution case. It is admitted as well as proved from the lips of PWs Ghurai, Smt. Lalkora and Smt. Munni Devi that on the relevant date, time and place the deceased was shot by a fire arm on account of which ultimately he expired. On the question whether the accused was responsible for commission of the crime, no doubt, Ghurai tried to resile by stating that he had actually not seen the accused firing at the deceased, but we find that the two witnesses Smt.. Munni Devi and Smt. Lalkora have stood the test of cross examination. Indeed, the presence of Smt. Lalkora is admitted even to the accused. In fact, this incident took place because of an exchange of abuses between the accused and Smt. Lalkora. There is no enmity between Smt. Lalkora and the accused. It is impossible to believe that when the incident took place in broad daylight, Smt, Lalkora or for the matter of that Smt. Munni Devi would give up the true assailant of their husband and father respectively and would implicate the accused inspite of the fact that he happened to be the real brother of the deceased. A passing reference may also be made here about the so called theory set up by the accused. The first theory was that somebody from the crowd had shot at the deceased. The next theory was that although he had shot at the deceased, but he had done so in the exercise of his private defence. It is true that a theory of private defence can be set up even for the first time by means of a suggestion thrown to the prosecution witnesses and if that theory can be made out from the prosecution evidence itself, the accused can legitimately take advantage of the same. It is true that a theory of private defence can be set up even for the first time by means of a suggestion thrown to the prosecution witnesses and if that theory can be made out from the prosecution evidence itself, the accused can legitimately take advantage of the same. I would like to mention here, however, that suggestion thrown to the witnesses was as if the deceased armed with a danda had advanced towards the accused. The accused himself stated that the deceased had advanced towards him being armed with a kanta. Both the prosecution witnesses Smt. Lalkora and Smt. Munni Devi stated on oath that Chutta deceased had no weapon at all in his hand. Indeed, Ghurai also does not say that the deceased had any weapon on that occasion. It may be that the deceased had advanced a few steps towards the accused, but I think being an elder brother, he could have gone to the extent of giving a few slaps to the accused for not only having abused his own Bhavaj who must be elder to him in age, but also having gone to the extent of abusing his own elder brother, namely, the deceased. Merely because the deceased advanced a few steps towards the accused, was no justification for the accused to shoot at the deceased. Besides, it is surprising how the accused could have a country made pistol on that occasion. That shows his criminal mind. I have, therefore, no hesitation in coming to this conclusion that it was the accused who shot at his own brother. Coming to the question of sentence, I am not inclined to modify sentence in a case of the present type. Apart from having done the shameful act, I find that at no stage the accused showed his repentance. I would have appreciated if at the earliest opportunity the accused had thrown himself at the mercy of the court, thereby showing repentance for his fault. Once again, I would like to mention that in Hindu Dharma if somebody commits a sin, he can expiate about it in this very life by showing repentance. The courts, no doubt, are courts of justice as well as of mercy, but before one wants to invoke the power of granting mercy, one has to show that he deserves it. Once again, I would like to mention that in Hindu Dharma if somebody commits a sin, he can expiate about it in this very life by showing repentance. The courts, no doubt, are courts of justice as well as of mercy, but before one wants to invoke the power of granting mercy, one has to show that he deserves it. The accused by keeping a country made pistol in this case with him shows that he had a criminal mind. He had the audacity to abuse his own Bhavaj who was wife of his elder brother and in Hindu religion wife of an elder brother is like a mother to a younger brother. The accused was not satisfied, but he went to the extent of abusing his own elder brother and then without any rhyme or reason shot at him. It may be that it was not a premeditated act and it was done in the heat of moment, but then, as noted above, having committed the crime, we could have expected repentance from the accused. He will have to answer for his sin when he goes before God for having killed his brother, but he should not forget that he has not only made his own Bhavaj a widow, but has also deprived a daughter of love and affection of his own father and still at no stage in the trial any repentance was shown by the accused. He went on inventing stories step by step. Indeed, at the time of filing of appeal also it was not argued or mentioned that the appeal may be admitted only on the question of sentence. I should not be misunderstood because after all the learned counsels are engaged to do whatever they are asked to do from their clients. Suffice it to say that the accused, though in jail has never shown any repentance and in that situation, I do not think he deserves any leniency nor does the sentence require any modification. 7. AS a result, I would dismiss the appeal and maintain sentence and conviction awarded to the accused by the trial court. The accused is in jail. He shall serve out the sentence awarded to him. Appeal dismissed.