D. C. GHEEWALA, M. K. SHAH, J. ( 1 ) IN the unfortunate incident which happened on 5th March 1974 in the town of Khambhat a youthful life just on the threshold of a career. got extinguished. These were the days when the Nav Nirman movement rather a unique popular agitation which ultimately resulted not only in the downfall of the State Government established by law but in the dissolution of the State Assembly elected by popular votes also had spread like a wild fire throughout the length and breadth of the State of Gujarat; and the town of Khambhat was no exception to it. As a part of the agitation the members of the Assembly as also those occupying positions as Members in Local Bodies such as municipal ities were being pressed and coerced into tendering their resignations. ( 2 ) ACCUSED No. 1 at the relevant time was the President of the Khambhat Municipality and he was one of those few who had withstood the pressure as also the threats and had refused to resign his post. He and his house therefore were the targets of attacks by the agitators and the accusation was that when deceased Jyotindrakumar accompanied by 3 or 4 boys threatened to stage a hunger strike near the house of accused No. 1 if the latter failed to resign within 2 days accused No. 1 got enraged and asked accused No. 2 to open fire on the deceased and thereupon accused No. 2 fired a shot on the deceased who along with his companions had in the meanwhile started running away which shot hit the deceased on his gluteal region through and through and killed him ( 3 ) THE defence of the accused was more or less on the same lines as is indicated in the complaint ex. 35 filed by accused No. 2 against the deceased and a crowd of 1000 to 1500 boys within a few houre of the incident. Accused No. 1 denied that he had given any instructions or instigation to accused No. 2 to resort to firing or that any such previous incident as alleged by the prosecution wherein the threat with regard to the breaking of the skull of the deceased as alleged to have been given by accused No. 1 had happened. Accused No. 1 denied that he had given any instructions or instigation to accused No. 2 to resort to firing or that any such previous incident as alleged by the prosecution wherein the threat with regard to the breaking of the skull of the deceased as alleged to have been given by accused No. 1 had happened. The defence case to put it in a nutshell is that when accused No. 2 found that there was imminent danger to his life as well as lives of his colleagues accused No. 1 and inmates of his family he in the exercise of the right of self defence when the crowd which inspite of repeated warnings was advancing in a menacing manner with continuous stone throwing came very near the place where accused No. 2 was standing i. e. within 20 or 25 feet from that place and apprehending that if no immediate action was taken the action of the crowd or some of its members may result in grievous hurt or death being caused of any one or more of them as a last resort fired the said gun shot and that too after he had ducked to avoid being hit by the incessant hurling of stones on him and after even with this precaution he had received injuries by the pelting of stones and after hls constables also were similarly injured and after he sat down on his knees on the ground. In addition the following features also indicate that according to the defence there was no criminal intention of opening fire in the circumstances in which it was resorted to. The gun was not specifically aimed towards the deceased but was aimed in the direction of the crowd towards the ground and on realising that some boy had sustained injuries no further shot was fired seen though at that time the members of the crowd were delivering threats. Be it noted that as a matter of fact the god shot hit the lower middle of the glottal region but unfortunately it proved fatal as there was laceration of the funeral vessels. . . . . . . . . . . . . . . Be it noted that as a matter of fact the god shot hit the lower middle of the glottal region but unfortunately it proved fatal as there was laceration of the funeral vessels. . . . . . . . . . . . . . . ( 4 ) WHEN the prosecution witnesses on a vital aspect of a case give contradictory versions as the four eye witnesses and the father of the deceased depose in this case then not only they do not advance the prosecution case any further but they destroy the case inter se. It would be hazardous for the court to place reliance on the evidence of a particular witness disregarding the contradictory evidence given by the other witnesses unless the court has in an exceptional case some sound reasons to adopt that course. ( 5 ) IN the instant case apart from the fact that the evidence of the eye witnesses and other witnesses does not inspire confidence and is not reliable as held by the learned Judge with which finding we agree on scrutinising the evidence ourselves as earlier stated there are other features of the case which render the prosecution case highly improbable. In the first instance it is difficult to understand how and why an experienced senior armed head constable like accused No. 2 would in a matter of this nature where the life of a citizen is involved be guided and act according to the dictates of the president of a municipality at whose house he along with other policemen was keeping guard. His duty was to see that the inmates of the house has also the property of accused No. 1 is protected. He had no business to fire at an innocent man simply because there is heated exchange of words between him and accused No. 1 as is the prosecution case and because in the heat of the moment when tempers rise accused No. 1 directs accused No. 2 to use fire arms against such an innocent person. Again the very fact that no information was lodged with the police for a considerable time also weakens the prosecution case. The complaint which is lodged by the father of the deceased is of a perfunctory nature. Again the very fact that no information was lodged with the police for a considerable time also weakens the prosecution case. The complaint which is lodged by the father of the deceased is of a perfunctory nature. It also makes general allegation about the murder of his son having been committed in pursuance of a conspiracy hatched between the police and accused No. 1. It does not specifically refer to accused No. 2 at all. It is true as pointed out by Mr. Shah the senior P. S. I. Khambhat who received the fathers complaint behaved rather in a manner which is not consistent with the duties of a police officer who receives such a complaint. He refused to take action on it on the ground that an offence had been registered against the deceased and the same was under investigation. The deceased died in the morning of 6th March 1974 and therefore there was no question of the processing of any investigation in respect of the offences alleged to have been committed by the deceased. It is true the complaint filed by accused No. 2 is against the deceased and a crowd of about 1000 or 1560 students and in that way even after the death of the deceased an investigation can be carried on to filed out as to who were the other persons involved in the incident. But that does not mean that the complaint of such a serious nature received from the father of the deceased could be treated so lightly and ordered to be filed on such a flimsy ground as is done by the senior police subinspector Khambhat in the instant case. It is obvious that he did not take any section because it inter alia involved a member of the police force. This conduct on the part of a senior P. S. I. in our opinion is highly objectionable. But this circumstance though it reflects badly on the behaviour pattern of the police does not lend any support to the prosecution case which is full of infirmities. ( 6 ) AGAIN the complaint from which the proceedings with which we are concerned in the the instant case arose was filed after undue delay after lapse of one month and 2 days and that too after contacting all the eye witnesses act the complainant says. ( 6 ) AGAIN the complaint from which the proceedings with which we are concerned in the the instant case arose was filed after undue delay after lapse of one month and 2 days and that too after contacting all the eye witnesses act the complainant says. Such complaint can hardly be of any assistance to the prosecution in providing and corroboration to the prosecution case. ( 7 ) AS against this we find that by and large the defence version appears to be reasonable and probable particularly when it is supported by cogent and reliable documentary evidence. ( 8 ) AS per the complaint Ex. 35 filed by Accused No. 2 as also as per the defence case and the evidence led by them it is claimed that at about 6-30 or thereabout a crowd consisting of 200 to 300 young boys aged 10 to 12 years came there; shouted slogans and pelted stones on the house of accused No. 1. That crowd was dispersed by persuasion. But thereafter a crowd of about 500 elder boys aged between 20 and 30 years was sighted in the Zanda chowk and accused No. 2 thereupon instructed constable Revabhai to go to the house of accused No. 1 and to inform the police station about the some throwing incident which had happened as also the boys who had collected in the Zanda chowk. Now as per ex. 43 which is an entry contained in the occurrence book of the Khambhat police station we find an entry made precisely at 6-50 p. m. which mentions that a telephone call was received from constable Revabhai informing about collection of boys in the Zanda chowk as also about the incident of stone throwing and asking for police help. It also mentions that the stone throwing was continuing on the house of accused No. 1. In the last column it is mentioned that police inspector Koole along with policemen was deputed to the place. The complaint also mentions this fact. Again the case set out in the complaint as also in the defence version about the manner in which the main incident happened (as earlier set out while referring to the complaint Ex. 35 is also borne out by Ex. The complaint also mentions this fact. Again the case set out in the complaint as also in the defence version about the manner in which the main incident happened (as earlier set out while referring to the complaint Ex. 35 is also borne out by Ex. 42 which is an entry made at 7-50 p. m. Now this telephone call was sent by accused No. 1 personally and he has inter alia stated that there was stone throwing near his house and he has asked for immediate police help. In the remark column it is stated that Dhariya and Jani who are subinspectors are deputed along with the policemen; and the very entry in the station diary is at Ex. 41. This entry in terms mentions that it is conveyed by head constable Shanabhai accused No. 21 that firing will have to be resorted to ( 9 ) IT will be seen that the evidence on record shows that the situation in the town was very tense as admitted by the witnesses. The agitation had become so violent that shops were being looted public property was also attacked and considerable damage was being done to private as well as public properties. The evidence also shows that crowds of students and young men were going to the places of persons occupying positions of authority either with the Government or Assembly or local bodies and they were being coerced into tendering their resignations. Two or three days earlier an incident had happened near the house of accused No. 1 wherein because of stone throwing indulged in by a crowd some inmates of his house were injured. On the day of the incident the situation had become tense after the afternoon. First younger boys bad come and had thrown stones and after they were persuaded and they dispersed a crowd started collecting in the Zanda chowk. Two crowds from different directions came indulged in stone throwing and a telephone call was sent at the instance of accused No. 2 by accused No. 1 to the police station apprising the police authorities at the police station of the situation and asking for immedia te help stating that the policemen on duty at the house of accused No. 1 were actually besieged and it would become necessary to resort to firing. Not only accused No. 2 but two police constables got injured by the stones. Not only accused No. 2 but two police constables got injured by the stones. It may at this stage be noted that as earlier stated the injuries on these policemen were possible by pelting of stones as per the medical evidence; and if in this situation accused No. 2 after having ducked himself for protection against stone throwing and after taking shelter behind a wall stationing himself in a kneeling position aims a gun at the crowd and fires a solitary shot it would be perfectly justified in the circumstances in which be was complied to resort to the said action. There is nothing on record to justify a conclusion as suggested by the prosecution that when the incident happened merely 4-5 boys were present and that accused No. 1 flared up when the deceased gave an ultimatum of hunger strike in case of failure on the part of accused No. 1 to tender his resignation in a day or two. If that was the position we would not find these entries in the occurrence book as also in the station diary. A very relevant aspect in this connection worth noting is that the gun is not aimed at any vital part of the upper limb of the person of the deceased as is evident from the fact that the shot has bit the gluteal region. ( 10 ) MR. Shah submitted that injuries on accused No. 2 and the two police constables were very insignificant injuries and were of a trivial nature which could be even self inflicted and that in any event that did not justify such a drastic action of firing resulting in the death of a citizen. We are unable to see any force in this submission of Mr. Shah. It is true because of the trivial nature of the injuries the prosecution witnesses can be excused for not having explained the same as it is likely that they may not have noticed the same. But these injuries do probabalise the defence version and lends corroboration to the say of the defence witnesses with regard to the genesis of the incident and the circumstances which caused reasonable apprehension in the mind of accused No. 2 about the safety of the members of the police party as also accused No. 1 and the inmates of his house. In the first instance these injuries though they were trivial in nature were injuries which could be caused and must have been caused by stone throwing. It is possible the injuries may not be serious if small stones have hit the injured (the bigger stones missing the the targets) and if they are thrown either from a distance or with lesser force. But if the crowd comes within a particular range and crosses the danger line it would become difficult for accused No. 2 and others to cope up with the situation or to save themselves and accused No. 1 and other inmates of the house of accused No. 1. In such a situation it cannot be said that there was no justification for reasonable apprehension in the mind of accused No. 2 that if firing was not resorted to grievous hurt or even death would be caused of the said accused or others who were with him ( 11 ) WE are also not in agreement with Mr. Shahs submission that in any event without opening fire on the crowd accused No. 2 should have first fired a shot in the air which would have scared the crowd putting them to their heels. In the first instance the decision has to be taken in this regard by the man on the spot. We have to enter his mind to appreciate the reasonableness of his action. Could it be said that in the predicament in which accused No. 2 and others were placed with a huge crowd advancing Pelting stones against a handful of policeman and with injuries caused to three of them any further delay would not prove to be a fatal mistake and lack of vigilance on the part of the police ? After all the crowd does not behave like an army or a police force in a disciplined manner. After all the crowd does not behave like an army or a police force in a disciplined manner. A mob behaves in a queer manner and therefore if the mob had turned violent had started pelting stones and injured three persons and had advanced in a menacing manner and was about to cross the danger line there would hardly be any time to take the risk of firing a shot in the air because if the crowd did not heed to the same and advanced it would put three or four policemen who were on duty to grave risk of being attacked violently and done away with. It cannot be said that accused No 2 behaved in an unreasonable manner in taking the action that he did and that too after taking due precaution and giving all possible warnings keeping in mind the risk involved in liking a shot in the air in a crowded pole where the incident happened and where the shot may enter any of the house windows and kill someone besides involving loss of valuable time in such a situation. ( 12 ) A very striking feature of the prosecution story is that it sounds inherently improbable. A person occupying such a responsible position as the president of a municipality is not likely to behave in the most unatural manner as accused No. 1 is alleged to have behaved as per the prosecution case. To get excited and infuriated so furiously as to be driven to the extreme length of asking accused No. 2 to fire at the deceased as a direct result of a mere threat from the deceased to go on hunger strike if accused No. 1 did not resign within 2 days does not impress one as natural human conduct of a person occupying the position which accused No. 1 was occupying. But to literally take a command from accused No. 1 a person not in authority so far as accused No. 2 is concerned to fire a shot at an innocent boy whose only crime (?) was to give prior intimation of his intention to go on hunger strike before the house of accused No. 1 is something absolutely inconsistent with formal human behaviour. ( 13 ) IN any event in the context of the situation which accused No. 2 had to face there could hardly be any doubt that the act of firing was done without any criminal intention to cause harm and in good faith for the purpose of preventing further harm to the persons at the house of accused No. 1 and his property and this would squarely bring the case within exception embodied in sec. 81 of the I. P. C. [ Rest of the judgment is not material for the reports. ]appeal dismissed. .