JUDGMENT 1. This Criminal appeal is directed against the judgment of Additional Sessions Judge, Dausa, dated 22-2-1930, by which the appellant was convicted under Section 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further three months' imprisonment along with set off under section 428 Cr.P.C. 2. The prosecution case, in brief, is that on 29.6 1979 at 8.00, P.M., Raghu Nath Singh resident of Gudha-Chandarji and at present driver at P.H.C , Mandawari informed on telephone to SHO, Police Station, Lalsoth that a person has been admitted at P H C. who has been seriously injured by gun shot and his condition was serious. On receiving this information, Inoharge Police Station, Head Constable Hajari Lal and other constables reached P. H. C., Mandawari and found one Madho Singh son of Moharpal Meena resident of Maheria in serious condition, on the request of the Police, the Doctor recorded the dying declaration of Madho. Moharpal father of Madho also lodged a F.I.R., Ex. P. 4 at Police Station, Lalsoth on 29.6.1979 at 10.05 P. M. The case as stated in the F.I.R. was that a dispute was going on for the last one year between the informant and Keria son of Sukhji Meena of Maharia (father of accused appellant) in respect of boundary wall of the field. On 29 6.1979 the Informant son of Madho was sitting in the field at about 5-6.P.M. in the evening. Prior to this the accused Nathu Lal alias Mithu Lal son of Karia Meena was sitting in a concealing manner with a gun. Accused hurled abuses on Madho Lai and there after, accused Nathu Lal fired two shots, out of which one shot went empty and the other went inside the stomach of Madho Lal. When our partner Shri Nathu Lal son of Moju Ram Meena came running and at ended Madho Lal. He found that a bullet had gone inside the stomach of Madho Lal and the accused Nathu Lal son of Keria was standing with a gun. Then Shri Nathu Lal son of Moji Ram after going at the house of Kajod son of Lohadiya Meena told that Madho Lal has been fired by a gun shot by Nathu Lai alias Mithu Lal son of Keria. Then Shri Nathu Lal son of Moji Ram after going at the house of Kajod son of Lohadiya Meena told that Madho Lal has been fired by a gun shot by Nathu Lai alias Mithu Lal son of Keria. The the informant, his brother Kalyan and Prabhu son of Dhanna came at the field of the informant Mohar Pal and found Madho Lal lying there. Blood was oozing out from his stomach. Injured Madho Lai was then brought to Mandawari P.H.C. in a Camel Cart and requested the Police to take action. The Police registered a case under Section 307, 447 and 323 I.P.C. and started investigation. The statement of injured Madho was recorded under Section 161, Cr. P C. On the advise of the Medical Officer, injured was sent for treatment to Jaipur with Head Constable Shankar Singh. Soon after reaching Jaipur hospital, injured Madho succumbed to the injuries and the police registered a case under Section 302 1. P.C. The police inspected the site and prepared site-plan Ex. P. 2 and got the post mortem examination of deceased Madho. In the post mortem of the deceased two pieces at pallets and round pallet was found inside the body of the deceased. Accused Nathu was arrested and the double barrel 12 bore gun was recovered from bis possession. The blood-stained clothes and sample of earth were sent for chemical examination. Accused after usual investigation was challenged under Section 302 I.P.C. The prosecution examined 18 waitresses in support of its case and the statement of accused was recorded Under Section 313 Cr.P.C. The accused submitted his written statement also in writing on 2.2.1980. The accused in his statements under Section 313 Cr.P.C. admitted that he had fired a shot and deceased Madho died of account of the said gun shot. However, the case of the accused was that he had no intention to cause the death of Madho. He admitted that he had given gun to the police with which he had fired on Madho and he himself had surrendered before the police. According to the accused, P.W. 13 Nathu Lal was giving statement against him due to enmity. In the written statement submitted by the accused he has stated that in June 1978 his father was mercilessly beaten by Madho (deceased) and his father Moharpal. According to the accused, P.W. 13 Nathu Lal was giving statement against him due to enmity. In the written statement submitted by the accused he has stated that in June 1978 his father was mercilessly beaten by Madho (deceased) and his father Moharpal. On account of the injuries the head and the left hand of his father were broken. Due to injury, in the hand his father was unable to cultivate. He was the only son of his father. Deceased Madho and Moharpal wanted to kill him and to grab the field and other properties belonging to him. As there was danger to his life from the side of deceased Madho and others he had filed an application under Section 107/- 116 Cr.P.C. in the court of S.D.M., Dausa in 1978 against Madho (deceased), Moharpal, the witness Nathu and 6 other persons. He had also given an affidavit in May, 1979 in that case for his safety. On 29.6.1979 the alleged day of incident, he along with Nanga son of Budha were spreading manure in their field Choksrwala. Madho and his partner Nathu came in his field Chokar wala armed with in order to take forcible possession. It is further stated th3t when the accused asked not to do so than Madho inflicted blows by a lathi. Accused tried to scape but both the aforesaid persons chased in order to kill him and on this first fired in the air to scare them but they did not stop and when accused became fully convinced that he would be killed by these persons then he fired a shot on the legs of the deceased so that he may desist from chasing him but as the deceased instantaneously set down, case of the pallets went inside his stomach. According to the accused he had no intention at all to cause death of the deceased but the entire act was done to save his own life. Accused in his defence examined Nanag Ram, DW.l and Ganga Dhar, D. W. 2 3. The learned Sessions Judge, after recording the statements of the witnesses placed reliance on the statement of Nathu, P.W. 13. and did not believe the story set-up by the defences and in the result, convicted and sentenced the accused in the manner indicated above. 4. Mr. The learned Sessions Judge, after recording the statements of the witnesses placed reliance on the statement of Nathu, P.W. 13. and did not believe the story set-up by the defences and in the result, convicted and sentenced the accused in the manner indicated above. 4. Mr. Faiyaz Ali, learned counsel for the appellant contended that the learned trial court h3S wrongly placed reliance on the sole testimony of Nathu Lai, P. W. 13. Nathulal is not an independent witness. He is not only interested but also enimical to the accused appellant. He is admittedly a partner with the complainant in the field in dispute. Proceedings under Section 107 Cr. P. C. were taken on the report of appellant's father in which the police and the court had come to the conclusion that prima-facie there was danger to the life of the appellant from Madho (Now deceased), Moharpal. P. W. 12 and Nathya P. W. 13 the learned trial court itself has disbelieved the statement of P. W. 13 with regard to the place of occurrence. This witness has even denied that proceedings under Section 10 Cr. P. C. were started against the complainant party by the father of the appellant and this shows that the witness can tell a lie even with regard to admitted facts. It is further submitted that if he had come to know about the intention of the accused that he would take the revenge of his father and if such intention was really made known to him at 11-30 A. M. then he should have certainly taken steps to inform Madho about such intention of the accused Learned counsel also submitted that the conduct of Nathu Lal in not making any hue and cry and not collecting public to rescue deceased by calling villagers even up to Dhani is of Cajod and Hargovind, which were just near the place of occurrence and remaining silent on receiving threat or call of death of his partner Madho clearly leads to the presumption that the accused had no homicidal intension prior to the intention it is also argued that though in the F. I. R. it is mentioned that the accused was already lying in wait by concealing himself when Madho was putting makeover in his field, while according to Nateya. P.W. 13 when he had started smoking `Shri with Masho than accused came running from the side of Dhani of Hargovind. Thus the story as narrated by the prosecution in the F. I. R. is not correct. In fact, struggle took place at the time when deceased Nathu encroached in the field of the accused. It is further submitted that Nanga Ram was shown as an eyes witness in the challan submitted by the Police and it is admitted by P.W. 18 Shri Ram Singh, Investigating Officer that in his investigation Nange Ram was found to be an eyewitness. Inspite of that the prosecution failed to examine him and he has been produced from the side of the defence as S.W.I. In these circumstances, it is argued that D.W. Nanga Ram should be considered as a prosecution witness and there is no reason to disbelieve his statement. Reliance in this regard is placed on 71 P.W.R. (1910) in which it was observed that if a witness is cited as prosecution witness and not produced then a character of the witness is not changed and he must be regarded as witness of the prosecution. It is further argued that from Ex. P. 2 itself it is proved beyond any manner of doubt that the place of occurrence when deceased Madho along with other had come armed with lathis and had trespassed in the field of the accused and were chasing and he has a danger to his own life, then the act committed by the accused appellant was within the exercise of his right of private defence and he cannot be held guilty for any offence. It is also argued that the names of the eye witnesses were not mentioned in the F. I. R. nor any other eye witness was produced in support of the prosecution on case except Nathulal, P.W. 13 who was a partition witness. Learned counsel for the accused appellant also argued that Dr. Pathak, P. W. 1 in his cross examination stated that the injury No. 2 was not such as likely to cause death but it was in the ordinary course of nature sufficient to cause death. He admitted that the cade of injury No. 2 resulted perforation of intestine and bearing and laceration of muscles under-neath injury No. 2 and also producing fractures of allium bone and vertebral column of lumber region resulted death. He admitted that the cade of injury No. 2 resulted perforation of intestine and bearing and laceration of muscles under-neath injury No. 2 and also producing fractures of allium bone and vertebral column of lumber region resulted death. According to him, all these injury were result of injury. No Death might or might not have occurred by this tearing of muscles alone. On the contrary in the opinion of Dr. P. Narayan, P. W. 5 death was not essential if such injuries were found in the small intestines, Learned counsel for the accused appellant also pointed out the discrepancies in the dimension of injury No. 1 to 2 pointed out by two doctors. On the basis of the above statements, it is contended that it cannot be said with certainty that these injuries were the cause of death. Originally the case was registered under Section 307 I. P. C. and it was possible that the dimension of injury No. 2 increased as the injured Madho had taken a long journey in a camel cart upto Lalsoth and then from Lalsoth to Jaipur in a Jeep. As regards dying declaration, it is contended by the learned counsel for the accused that the S.H.O. was already informed through a letter by Dr. P. Narayan, P.W. 5. that dying declaration had already been recorded by him vide Ex. P. 6 and thereafter there was no reason to again record his dying declaration by the Police. It is submitted that the first dying declaration Ex. P. 6 did not help the prosecution and as such second dying declaration was recorded to said the prosecution story and no reliance can be placed on the same. The contents of first and second dying declaration differs in material particulars. Learned counsel for the appellant in support of his above contention placed reliance on State of Rajasthan v. Take : 1977 (2) R. Cr. C. 273 , Panni and Ors. v. State of Rajasthan 1978 (3) R. Cr. C. 219 , Ganasha v. State of Rajasthan: 1978 (3) R. Cr.C. 247 Seddiq v. State of Rajasthan : 1978 (3) R.Cr.C. 434 and Chacko Mathai v. State of Kerala : A.I.R. 1964 Kerala 222. 5. C. 273 , Panni and Ors. v. State of Rajasthan 1978 (3) R. Cr. C. 219 , Ganasha v. State of Rajasthan: 1978 (3) R. Cr.C. 247 Seddiq v. State of Rajasthan : 1978 (3) R.Cr.C. 434 and Chacko Mathai v. State of Kerala : A.I.R. 1964 Kerala 222. 5. Learned Public Prosecutor on the other hand contended that there was no infirmity in the judgment of the learned trial court and he supported the grounds and reasons given by the learned trial court in its judgment. 6. We have given our careful consideration to the arguments advanced by learned counsel for both the parties and perused the record thoroughly. It is not in dispute that the accused fired two shots from his gun, out of which one went empty and the other caused injuries in stomach of the deceased. According to the site plan prepared by the Investigating Officer, the gun shot was fired on Madho from place `C' and he was found dead at Place `A'. The distance between place `A' and`O'has been shown as 15 yards. It has further been mentioned that the accused had come from the side of Dhani of Hargovind Meena, which has been shown by marks of arrow. It has also been mentioned that there tire marks of feet of several persons at place `A' and 'C The Places `A' and `C' have been shown inside the field of Karia and Mithu Meena. Karia is the father of the accused appellant. This goes to show that both the places that is from where the gun shot was aimed at and the place where the deceased was standing were m the field of the accused appellant. Learned trial court itself placed reliance on Ex. P. 2 for determining the place of occurrence. We fail to understand as to how after placing reliance on Ex. P. 2, site plan the learned trial court observed in Ex. P 2 the place of occurrence has been shown in the field of Madho (deceased). In our view the learned trial court misdirected in properly considering the places `A' and 'C' shown in Ex. P. 2. The learned trial court has also observed that the occurrence took place on the southern boundary of the field of the accused, which is situated on the northern side. In our view the learned trial court misdirected in properly considering the places `A' and 'C' shown in Ex. P. 2. The learned trial court has also observed that the occurrence took place on the southern boundary of the field of the accused, which is situated on the northern side. Thus, we hold that the occurrence took place in the field of the accused had fired on the deceased. 7. The next question is as to in what manner and circumstances, the accused fired and what was his intention at the time of firing. In this regard the only eye witness examined from the side of the prosecution is P.W. 13 Nathu Lal. The defence has examine D. W. Nanag Ram. Nathu Lal has admitted to be a partner with the complainant in the cultivation of an agricultural field. Mohar Pal P. W. 12 the father of the deceased and the person who had lodged the F. I. R., Ex. P. 4 has admitted in cross examination that a case is pending against them of having broken the hands of the father of the accused. He further stated that the accused appellant was the only son of Keria. It was wrong to say that they wanted to kill the accused Nathu. He, however, admitted that the police on the report of the accused has started a case under Section 107 Cr. P. C. against him and 15 other persons, in which Moji Ram and his son Nathya were also parties and thus proceedings were continuing at the time of incident. Nathu Lal, P. W. 13 clearly denied that case under Section 107 Cr. P C. was ever lodged against them. P. W. 7 Kalyan has admitted in cross examination that the police had taken proceedings for binding them as there was danger to the life of the accused. From a perusal of the above evidence i is proved that a dispute was going on between the parties regarding possession over the field of accused and proceedings under Section 107 Cr. P. C. were pending, against the complainant party including Moharpal, father of the deceased, Nathu Lal P. W. 13 and his father Moira and these proceedings were initiated at the instance of the accused, under these circumstances, the statement of Nathu Lal P. W. 13 cannot be taken at its face value. P. C. were pending, against the complainant party including Moharpal, father of the deceased, Nathu Lal P. W. 13 and his father Moira and these proceedings were initiated at the instance of the accused, under these circumstances, the statement of Nathu Lal P. W. 13 cannot be taken at its face value. Nathu Ram is admitted by the Investigating Officer, Ratan Singh (P. W. 18) to be an eye witness in the course of investigation. He has not been produced from the side of the prosecution and he appeared as a defence witness. In the F I. R. itself it has been admitted that dispute was going on between the parties regarding the boundary wall for the last one year. Though it is mentioned in the F.I.R. that on 29.6.1979 at about 5. 6. P. M. Madho Lal was sitting in his field and prior to this accused Nathu Lal was lying in wait with a gun by concealing himself and there after hurbd abuses on Madho Lal from a distant of 10 steps. But according to P. W. 13 Nathu Lal at about 4.00 P. M. Madho earn from towards the village. Accused had a talk regarding the land with the witness Nathu Lal and he narrated the talk to Madho bad taken place with the accused at 11.30 A.M. in the morning in which the accused had told that he would finish Madho. Thereafter both of them started smoking `Bidi'. At this point of time the accused came running from the side of Dhani of Hargovind and the witness told Madho to run away, As the accused had come very near as such they could not run away and then the accused hulled abuses that he was in his search for many days and by good luck he was able to find his prey. Then the accused said that he would take revenge of his father. The deceased tried to specify the accused and told him to take his land and not to kill him but the accused told that he did not want the land and he has to kill him. After saying this the accused fired two shots first shot did not struck, but the second one went inside the stomach of Madho. The deceased tried to specify the accused and told him to take his land and not to kill him but the accused told that he did not want the land and he has to kill him. After saying this the accused fired two shots first shot did not struck, but the second one went inside the stomach of Madho. There after the accused ran away, this story as cited by Nathu Lal does not support from the facts mentioned in the F. I. R. that the accused was lying in wait by coo staling himself and the accused came from the place of his concealment. In the cross examination, P W. 13 Nathu Lal admitted that at the time of incident Nanga wail putting manures in the adjoining field. When confronted with portion marked `A' to `D' in his statement Ex. D. 4 given before the police, in which he had stated that fact, then he stated that he had not given such statement before A police and could not assign the reasons as to why it was recorded bit the Police. He also denied several other contradictions pointed out by the defence counsel from his statement Ex. D. 4 recorded by the Police. He also denied all the findings made regarding the case setup by the defence. In the back-ground oil their facts and circumstances, it is difficult to believe the entire story as set-up by the prosecution. We find force in the case set-up by the defence that the accused fired on Madho when he had trespassed in the field of the accused and he fired in order to scared, but when the deceased did not desist then he fired an other shot which struck in the stomach and the same resulted in the death of deceased Madho. Accused thus, cannot be held guilty under Section 302 I. P. C. 8. We are, however, of the opinion that the case falls within exception 2 of Section 300, the act of the accused is culpable homicide not amounting to murder done in good faith in the exercise of right of private defence of his person and property, but he exceeded the power given to him by law. The act was done without any intention of doing more harm than was necessary for the purpose of such defence. The act was done without any intention of doing more harm than was necessary for the purpose of such defence. From a perusal of the entire evidence of the prosecution and defence witnesses, we are convinced that it was not a case where there was any danger of life or grievous hurt to the accused to justify the accused to kill deceased Madbo but he had a right of private defence and he exceeded such right. The case falls within the ambit of section 304 Part one and not 302 1 P. C. As regards of the matter of sentence, the learned counsel for the appellant contended that the accused is the only son of his father. He is a graduate and the complainant party had broken the band of his father and their intention was to grab the land belonging to the accused after killing him. The accused was taken into custody soon after the occurrence i. e. 29th June, 1979 and a lenient view should be taken in awarding he 'sentence. 9. Taking in view the entire facts and circumstances of the case and the fact that the accused is young educated man, the interest of justice would be served if the accused is sentenced to 5 years' rigorous imprisonment. 10. In the result, we partly allow this appeal. The conviction and sentence of the accused appellant under Section 302 I.P.C. is set aside and he is convicted under Section 304 Part one I P. C. and sentenced to five years' rigorous imprisonment. He shall be given set off against the term of imprisonment for the period of detention, if any, undergone by him during the investigation, inquiry or trial in this case as provided under Section 428 Cr. P. C. *******