JUDGMENT 1. - This appeal by Francis Alfred is directed against the judgment, dated January 24, 1976, of the learned Additional Sessions Judge, Ajmer, whereby he convicted the accused-appellant under Section 302, IPC and sentenced him to imprisonment for life. He was also convicted under Section 27 of the Indian Arms Act and was sentenced to one year's rigorous imprisonment. The substantive sentences of imprisonment, awarded under both the counts were directed to run concurrently. 2. Tersely speaking the prosecution case as disclosed at the trial in brief is that PW Edward Smith was a tenant of Francis Alfred accused. Bunty (deceased) was a friend of Edward Smith. Edward Smith used to take his meals at the house of Bunty. On December 8, 1974 Bunty (deceased) had gone to the house of Edward Smith to take meals. When they were taking meals, Christopher Clement and the accused Francis Alfred also happened to arrive there. Edward Smith gave a ten rupee note to the accused to get some liquor. Liquor was brought and served. Under the influence of liquor Bunty (since deceased) and Francis Alfred exchanged hot words. Bunty abused Francis Alfred and remarked that he was mal-treating his wife and that he should abstain from doing so. The accused retorted in a tell tale manner that he should mind his own business and should not intervene in his family affairs. On intervention of Edward Smith the accused went away. Later on Edward Smith accompanied Bunty to his house where the latter gave him some thing to eat. The accused also happened to arrive there. While talking about the maltreatment by Francis Alfred with his wife, quarrel ensued. Again, Edward Smith had to intervene. He persuaded Francis Alfred to go back to his house. After some time Edward Smith left Bunty's house for his own residence, It appears that Bunty also followed him. When Edward Smith reached the outer gate of his house, he found accused Francis Alfred standing with a 12 bore gun. Edward Smith asked him to go away. He accordingly left the place. At that stage Bunty appeared on the scene. He went after Francis Alfred towards the verandah of his house. Soon after accused Francis Alfred turned his face and fired a shot, as a result of which Bunty sustained an injury on his chest and met instantaneous death. Edward Smith asked him to go away. He accordingly left the place. At that stage Bunty appeared on the scene. He went after Francis Alfred towards the verandah of his house. Soon after accused Francis Alfred turned his face and fired a shot, as a result of which Bunty sustained an injury on his chest and met instantaneous death. Dumb founded and non-pleased PW 1 Edward Smith rushed to the house of Bunty and had a talk with PW 2 Mrs, Tinkie Margaret, wife of Bunty deceased. He then asked her to accompany him, On the way he told her that Bunty had been shot dead by Francis Alfred. The woman then went upto her husband and found him dead. She asked the accused as to what made him to shoot her husband. The latter replied that he had done the right thing. She went back to her place and informed Panna Singh PW 3. Panna Singh then informed the police on telephone. The police reduced the information into writing. The same constitutes the first information report of the case. It is marked Ex. P/38. Autopsy of the dead body of Bunty deceased was performed by PW 12 Dr. Sita Ram Mittal. The postmortem report is Ex. P/17. On clinical examination the Doctor found the following external injuries on the dead body of Bunty: 1. An almost circular wound about 2.5 cms. in diameter on left side of chest over left third rib, and third inter costal space about 3 cms. medial to left nipple. Direction backwards downwards and lightly outward. Abraded collar about 1-2 cm wide all round the wound, more clear along upper border margins of wound inverted. Skin around wound preserved. No scorching or blackening of skin around the wound. The Doctor also found the following internal conditions:- "It was found that the wound was going inside the thoracic cavity after fracturing left fourth rib near its medial end. Pericardiam was full of clotted blood. Heart showed a laceration in 6 cms. x 5 cms. near its apex. Both the ventricals were open and full of blood clots. Many small metallic pellets were present in both the ventricals. 5 small metallic pellets were removed from left dome of the diaphram. Few metallic pellets along with other parts of bullet were recovered from left plural cavity, which was full of blood. x 5 cms. near its apex. Both the ventricals were open and full of blood clots. Many small metallic pellets were present in both the ventricals. 5 small metallic pellets were removed from left dome of the diaphram. Few metallic pellets along with other parts of bullet were recovered from left plural cavity, which was full of blood. There were few small openings in left dome of diaphram through which few pellets passed into abdomen and were recovered from the wall of stomach. Pellets and other parts of the bullet were preserved and must have been handed over to police." According to the Doctor Bunty died of the above injury which was antimortem in nature. 1. After registering the case, the S. H. O., Police Station, Alwar Gate, Ajmer, reached the scene of the occurrence. He prepared site plan Ex. P/8, seized a pair of chappals as well as one Baniyan and one Bushshirt from the dead body. The seizure memos are Ex. P/11 and Ex. P/12 respectively. A gun lying near the verandah was also recovered under memo Ex. P/10. Two broken Muddahs with a Jhadu and blood stained earth were also seized. After his arrest the accused expressed his desire to get the empties recovered. The information memo is marked Ex.P/39. In consequence of this information three empties were recovered. The empties so recovered, along with the 12 boregun, were sent to the Ballistic Expert for examination. The reports of the Ballistic Expert are Ex P/36 and Ex. P/37. The police after investigation, submitted a challan against the accused Francis Alfred in the Court of Additional Munsif Magistrate, Ajmer City East. Learned Munsif Magistrate committed the accused to the Court of Sessions Judge, Ajmer, for taking trial under Section 302. I.P.C. as also under Section 27 of the Arms Act. 3. In the course of trial in the Court of Additional Sessions Judge, Ajmer the accused pleaded not guilty to the charges under Section 302 I.P.C. and Section 27 of the Arms Act. The prosecution examined 16 witnesses in support of its case, out of these witnesses PW Edward Smith is the solitary eye-witness of the occurrence. PW 2 Mrs. Tinkie Margaret is the wife of the deceased. PW 3 Panm Singh is the person, who gave first information report in this case. The prosecution examined 16 witnesses in support of its case, out of these witnesses PW Edward Smith is the solitary eye-witness of the occurrence. PW 2 Mrs. Tinkie Margaret is the wife of the deceased. PW 3 Panm Singh is the person, who gave first information report in this case. PW 4 Duli Chand was examined to prove that there had been some quarrel between Bunty and Francis Alfred about a month and a half before the occurrence. PW 12 Dr. Sita Ram was examined to prove the postmortem report Ex P/17 and the injury sustained by the deceased. PW 15 Dr. G.R. Prasad is the Ballistic Expert. He examined the live cartridge as well as the gun. PW 16 Loknath is the investigating officer of this case. The accused in his statement, recorded under Section 313 Cr.P.C., denied his complicity in the crime. He, however, admitted that he had been to the house of Edward Smith when Bunty was sitting there. Edward Smith gave him ten rupee note to bring liquor, which was brought by him. Bunty told him that he was a drunkard and used to beat his wife and children. As a retort he told Bunty that he had kept his own sister as his wife, who gave birth to four children, even though her husband was alive. This enraged Bunty and he rushed towards him in a threatening posture. Christopher Clement aud Edward Smith intervened and asked him to go home. At about 12.30 A. M. in the dark night Bunty came to his house. He knocked at the door and asked him to come out. On the threatening attitude of Bunty, his wife and children raised alarm. He then came out with a gun to defend himself. At that stage Bunty caught hold of the barrel of the gun and they began to quarrel with each other. He informed Bunty that the gun was loaded and that it might hit any one of them. Without any intention of firing the gun accidentally went off and it hit Bunty. He had no intention to kill Bunty. The accused in his defence examined his wife and one child, namely, DW 1 Mrs. Vimla and DW 2 Vinod respectively. 4. Learned Sessions Judge, Ajmer held that the statement of Edward Smith was convincing and credible. There was no possibility of an accident. He had no intention to kill Bunty. The accused in his defence examined his wife and one child, namely, DW 1 Mrs. Vimla and DW 2 Vinod respectively. 4. Learned Sessions Judge, Ajmer held that the statement of Edward Smith was convincing and credible. There was no possibility of an accident. The theory of grappling and struggle was an after thought and the accused had no danger to his person and property and was not entitled to the right of self-defence. Placing reliance on the statements of the prosecution witnesses and rejecting the defence theory and its evidence, he convicted and sentenced the accused, as mentioned above. 5. Learned counsel for the appellant endeavoured hard to convince the Court on the point that the entire prosecution case is a myth and is full of tissues of lies. The prosecution witnesses, according to him, had suppressed material truth and as such no reliance could be placed on their testimony. He in the end, asked the Court to acquit the accused of the charges framed against him. Learned Public Prosecutor supported the judgment of the trial court. 6. There is no dispute between the parties that there was no immediate cause for the accused to commit the murder of Bunty. The witnesses examined on behalf of the prosecution rather prove that relations between the parties were almost normal. May be due to exchange of hot words under the influence of intoxication both of them might have lost the balance. But that by itself cannot be held to be sufficient to incite either of the parties to take the life of the other. 7. According to learned Public Prosecutor the clinching evidence in the case is extra-judicial confession made by the accused. PW 2 Mrs. Tinkie cannot be said to be an independent witness. She is definitely interested in getting the accused punished. She admitted in her statement before the Court that prior to her giving information to Panna Singh she had been at the scene of the occurrence and had a talk with the accused. A perusal of the first information report shows that this fact is significantly missing from the first information report. If any extra-judicial confession had been made by the accused in presence of PW 1 Edward Smith or PW 2 Mrs. Tinkie Margaret, it does not stand to reason why the first information report Ex. A perusal of the first information report shows that this fact is significantly missing from the first information report. If any extra-judicial confession had been made by the accused in presence of PW 1 Edward Smith or PW 2 Mrs. Tinkie Margaret, it does not stand to reason why the first information report Ex. P/38 does not contain this fact. The faint suggestion made by the learned Public Prosecutor that first information report in this case was given by a third person and that also on telephone and specially at a time when Mrs. Tinkie having lost her busbind, was in grief. She, in that circumstance, could not possibly narrate the whole story to him. 8. The argument is no doubt attractive and the product of an intelligent brain. But such an explanation, at no stage of the case was given by the witness. The evidence of Mrs. Tinkie, therefore, does not help the prosecution. 9. The other evidence relied upon by the prosecution is that of PW 1 Edwar Smith. He stated in the Court that from the house of Bunty he went home all alone and that at that time he saw Francis Alfred standing near the gate of his compound. He had a 12 bore gun with him. The witness asked the latter to go inside. Meanwhile Bunty came there. He followed Francis Alfred to his house and the witness also went after them. When Bunty was on the steps and the moment he got into the verandah, Francis Alfred fired his gun towards Bunty. Bunty had nothing in his hands. On this point the witness was confronted with his previous statement Ex. D/1, recorded in the police, with portions marked A to B and C to D. In his police statement he had stated that Francis Alfred, Bunty and the witness left together the house of Bunty and came to the house of Francis Alfred. All of them sat in the verandah and started talking and at that stage there was some exchange of hot words as a result of which Francis Alfred got enraged. He went inside the house and brought out a gun and fired a shot. The witness failed to explain the contradictions appearing in the two conflicting statements and had the audacity to insist that such a statement had not been made by him at the police station. He went inside the house and brought out a gun and fired a shot. The witness failed to explain the contradictions appearing in the two conflicting statements and had the audacity to insist that such a statement had not been made by him at the police station. A perusal of the first information report shows that the case disclosed by the prosecution at the outset was that all the three persons were sitting in the verandah, talking to each other. At that stage hot words were exchanged, which resulted in a quarrel. Francis Alfred went inside the house and brought out a gun and fired the shot. No explanation has been given as to what made the eye-witness to change the story. The earlier version has been given a complete go-bye by the witness. In criminal trial it is of prime importance for the accused to know as to what the exact prosecution case is, If the prosecution choose to change the version, a new prosecution case cannot be made to imperil the defence and the advantage of it must go to the accused. Keeping in view the infirmities appearing in the statement of PW 1 Edward Smith, it cannot be said that he is a witness of sterling worth. His evidence needs corroboration in material particulars by other evidence. PW 2 Mrs. Tinkle Margaret states that just after the occurrence Edward Smith came to her and told her that Francis Alfred had shot Bunty dead. The statement of PW 1 Edward Smith also finds material corroboration from the medical evidence. The evidence of PW 1 Edward Smith, therefore, is acceptable on the point that Francis Alfred shot Bunty dead. We accordingly hold that the accused fired a a shot as a result of which Bunty met instantaneous death. 10. The other contention raised by the learned counsel for the appellant is that at about 12.30 in the dark night in the month of December when people preferred to keep themselves warm, the deceased had no reason to come to his house. Admittedly the deceased was a wrestler and he was under intoxication at the relevant time. It is not possible to believe that the deceased came to the verandah of the accused for friendly talks. His presence at the dead of the night is nothing short of a trespass over the land of the accused. Admittedly the deceased was a wrestler and he was under intoxication at the relevant time. It is not possible to believe that the deceased came to the verandah of the accused for friendly talks. His presence at the dead of the night is nothing short of a trespass over the land of the accused. Learned counsel for the State also agrees that in the facts and circumstances of the case of deceased can be termed to be a trespasser, but his contention is that the accused did not have a right of self defence to the extent of causing death. We have placed reliance on the statement of PW 1 Edward Smith for holding that the accused fired the shot. However, it is not possible to discard that part of the statement which favours the accused and we hold that the deceased was a trespasser. 11. Keeping in view the background that there had been exchange of hot words between the parties and the fact that the deceased was a wrestler and they had two pages of drinks, the very presence of the deceased in Verandah of the accused was a trespasser on the land of the accused. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the defender could extend even to the extent of causing death. A mere reasonable apprehension is enough to put the right of self defence in to operation, but it is also settled, position of law that a right of self defence is only right to defend oneself and not to retaliate. It is not a right to take revenge. 12. The right of private defence is extended to causing of voluntary death only if the conditions mentioned in the fourth clause of Section 103 I. P. C. exists. Where as here, no such conditions exist, the right would be subject to limitations under Section 104 I. P. C, and would extend only to voluntary causing to the wrong-door of any harm other than death. Where as here, no such conditions exist, the right would be subject to limitations under Section 104 I. P. C, and would extend only to voluntary causing to the wrong-door of any harm other than death. Thus where there is no indication that the trespasser showed any fight or even a cmblance of fight, the right of private defence would be governed by Section 104 I. P C. and would not extend to the causing of death of the trespasser, vide Ramanand Singh v. State of Bihar (A.I.R. 1968 Patna 258). The right of private defence under Section 103 as well as under Section 104 I. P. C. is subject to the restrictions under Section 99 I.P.C., namely, of not inflicting more harm than necessary for the purpose of defence and if death is caused in the above circumstances, the right is exceeded and the case is covered by Exception 2 to Section 300 I. P. C. and if it is so covered the accused is liable to conviction under Section 304 I. P. C., vide Jodha Cova v. the State (A.I.R. Saurashtra 1). 13. In this case the deceased was the trespasser in the dark night. The accused, therefore, got apprehensive and had a right to defend himself. But there was no basis for him to apprehend that death or grievous hurt would be the consequence. His case is, therefore, not covered by Section 103 I. P. C , but by Section 104 I. P. C. and the accused is guilty under Section 304 Part 11. P. C. 14. Now remains the question of sentence. Admittedly the accused is not a previous convict and had been living a peaceful life with his wife and children. His prolonged continuance in jail is not likely to have any reformative effect upon him. There is every danger of his taking up a life of crime in the company of hardened criminals, who might happen to be the inmates of the jail. We cannot lose sight of the fact that at the time when the crime was committed the accused and the deceased both were under heavy drinks and normal behaviour could not be expected from him. We cannot lose sight of the fact that at the time when the crime was committed the accused and the deceased both were under heavy drinks and normal behaviour could not be expected from him. Taking a conspectus of the facts of the case we are of the opinion that it would meet the ends of justice if the accused-appellant is sentenced to five years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of the payment of which, he shall further undergo six months' rigorous imprisonment. If the fine is realised, the same shall be paid to Mrs. Tinkle Margaret. The conviction and sentence awarded to the accused-appellant under Section 27 of the Indian Arms Act are maintained. The substantive sentences of imprisonment are ordered to run concurrently. 15. The appeal is partly allowed, as indicated above. 16. It is. however, made clear that the accused appellant shall be entitled to the benefit of Section 428, Cr. P. C. and the period of detention undergone by him during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by this Court. *******