Judgment B.N. Sapru, J. 1. THE appellant Raghuraj Singh has been convicted under Section 302 IPC and sentenced to imprisonment for life for having committed the murder of ones Raj Kumar Singh on 4-6-1972 at about 8 A. M. in Alawal Khera, a hamlet of village Domanpur, which lies within the jurisdiction of P. S. Man- rajpur in the District of Kanpur. 2. THE first information report of the incident was lodged by Surajpal Singh in the aforesaid Police Station at 10.13 A.M. THE distance between the place of occurrence and the Police Station is 10 miles. The prosecution version is that the complainant and his brother Raj Kumar Singh (deceased) lived together and Raghuraj Singh appellant is their cousin brother. There was a room, of which all the said persons were joint owners. On 4-6-1972 at about 8 A. M. Raj Kumar Singh (deceased) started getting a wall built in his portion of the room through the agency of one Gola Chamar. At that time, it is said that the complainant and Amar Singh who had been brought up by Raj Kumar Singh (deceased) were present on the spot. The appellant Ragauraj Singh is alleged to have said In temper that he would not let the wall be built and the deceased said that ha would definitely build the wall. Thereupon Raghuraj Singh appellant is reported to have said, "All right, you wait, I will just tell you." Thereafter he ran to his house and brought a country made pistol and shot Raj Kumar Singh dead. The appellant is thereafter said to have run away. 3. AFTER the report was lodged the police took up investigation. The investigating Officer took the body of the deceased into his possession and sent it for post mortem examination. 4. THE post-mortem examination of the body of Raj Kumar Singh was held on 5-6-1972 at 12.40 P.M. by Dr. J. S. Lakhera, Medical Officer, U. P. ML Hospital, Kanpur. He found the following ante-mortem injuries on the body of the deceased :- Gunshot wounds eleven in number, in an area of 3 1/2" x 2 1/2" on the right side front of the neck just above the middle of the right clavicle, varying from 1/3" x 1/10" to 1/5" x 1/10" size x muscle deep, about 1/2" to 1/3" apart from each other. Irregular margins- wounds of entry. Irregular margins- wounds of entry. THE skin surrounding the wounds was blackened and scorched In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the gunshot injuries described in the post-mortem report and from the statement of Dr. Lakhera it is established that the death of the deceased was due to the gunshot injuries which were sufficient in the ordinary course of nature to cause death. The investigating Officer also took into his possession the clothes of the deceased and the earth from the place where the murder was alleged to have been committed. These items were sent for chemical analysis to the Serologist and Chemical Examiner, who reported that the clothes were stained with human blood and the earth was also stained with blood. Thus it is established that the deceased Raj Kumar Singh was killed at the place as shown by the prosecution. 5. AFTER the completion of investigation, the case was committed to the Court of Session by the Committing Magistrate. 6. THE appellant pleaded not guilty and denied the entire prosecution case. In support of its case the prosecution has produced three eye-witnesses, namely, Surajpal Singh, the brother of the deceased (PW 1), Ram Pal Singh (PW 2) and Rajendra Singh (PW 3). 7. THE presence of Ram Pal Singh (PW 2) has been doubted by the learned Sessions Judge who tried the case. THE name of this witness was not mentioned in the first information report. THE complainant also did not refer to him as having been present on the scene of occurrence in his statement before the investigating officer. We are in agreement with the learned Sessions judge that reliance cannot be safely placed on the testimony of Ram Pal Singh. 8. THE deposition of Surajpal Singh (PW 1) discloses that the shares of the room between the deceased Raj Kumar Singh and the appellant Raghuraj Singh were not partitioned. THE testimony of two eye-witnesses, namely Surajpal Singh (PW 1) and Rajendra Singh (PW 3), establishes that the deceased was constructing a wall in the undivided room which jointly belonged to the deceased and the appellant on 4-6-1972. THE construction of the wall, according to the prosecution witnesses, was started on that very day. THE testimony of two eye-witnesses, namely Surajpal Singh (PW 1) and Rajendra Singh (PW 3), establishes that the deceased was constructing a wall in the undivided room which jointly belonged to the deceased and the appellant on 4-6-1972. THE construction of the wall, according to the prosecution witnesses, was started on that very day. THE wall had been raised only to a small height when the appellant protested against Raj Kumar Singh (deceased) constructing the wall, but the deceased insisted that the wall would be built. Thereupon the appellant went to a room which was a few paces from the place where the murder was committed and took a country made pistol and shot Raj Kumar Singh dead. The room admittedly not having been partitioned between the appellant and the deceased, the deceased had no right to construct a wall on the joint property. The appellant protested against Raj Kumar Singh (deceased) making the construction but Raj Kumar Singh (deceased) insisted on constructing the wall. The action of the deceased in constructing the wall amounted to committing mischief. In these circumstances, the appellant had a right to prevent Raj Kumar Singh (deceased) from making the construction. However, the appellant had no right under the law to cause the death of Raj Kumar Singh while exercising the right of private defence of property. 9. THE deceased was told clearly by the appellant that he should desist from making the construction but the deceased insisted on making it. THE construction of a wall on joint property against the wishes of a co-owner in his presence amounted to an act of grave and sudden provocation. Thus when the appellant shot at and killed the deceased, he committed an offence which is punishable not under Section 302 IPC but under Section 304 (Part 1) IPC. 10. IN this view of the matter, the appeal has to be partly allowed. The conviction and sentence of imprisonment for life imposed upon the appellant under Section 302 IPC is set aside. The appellant is however, convicted under Section 304 (Part I) IPC. The Incident took place in June, 1972. The appellant was arrested immediately and after his arrest he has been in jail all through. IN these circumstances, we find that the appellant has already undergone over six years' imprisonment. We, therefore, sentence him to imprisonment for the period already undergone. The appellant is however, convicted under Section 304 (Part I) IPC. The Incident took place in June, 1972. The appellant was arrested immediately and after his arrest he has been in jail all through. IN these circumstances, we find that the appellant has already undergone over six years' imprisonment. We, therefore, sentence him to imprisonment for the period already undergone. He shall be released forthwith unless wanted in connection with some other offence. Appeal partly allowed.