JUDGMENT 1. - Appellant Bhera was tried for the offence under Section 302 IPC by the Sessions Judge, Udaipur and by the judgment dated 3rd December, 1974, convicted for the aforesaid offence and sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further suffer three months rigorous imprisonment. 2. Succinctly narrated the prosecution case leading to the trial and conviction of the appellant is as under. Appellant and deceased Mana were near relatives of the same Gotra and were residing at village Maldhar. Devli was the wife of Jeta (PW 3) brother of deceased Mana. A few days prior to the date of the incident. Anda son of appellant Bhera eloped with Smt. Devli wife of Jeta. Vesa (PW 4) was sent to Bhera to inquire of him as to how Anda had run away with Smt. Devli wife of Jeta. Appellant denied the allegation and told him that Anda had gone as a guest to some relations and had not abducted Smt. Devli. Natha and Kala were again sent to the appellant and at their intervention the appellant assured that he would send his son Kamla to trace out Anda and find out if Smt. Devli was with him. On 23rd April, 1974, Kamla son of the appellant returned with Anda and Smt. Devli. Appellant Bhera sent a word through Natha (PW 5) and Kala (PW 6) that Whether Jeta would like to take Devli back or the `Jhagda Money'. At that time Champa (PW 2) was also there at the house of Jeta and Mana. Jeta, Champa and Mana went to the house of Bhera to inquire of him as to how Anda had returned with Smt. Devli when he (appellant) had previously told that Anda had not abducted Devli and had gone as a guest to some relatives. When the deceased and the two witnesses, Champa and Jeta were at a little distance from the house of the appellant they saw the latter sitting on a cot in the Dagla. The reprimanded Bhera for his telling a lie. The appellant got enraged and fired the shot with the muzzle loading gun, he had with him. towards Mana, Jeta and Champa, Mana was hit by the shot and sustained, pellet injuries on his abdomen and other parts of the body and fell down. The reprimanded Bhera for his telling a lie. The appellant got enraged and fired the shot with the muzzle loading gun, he had with him. towards Mana, Jeta and Champa, Mana was hit by the shot and sustained, pellet injuries on his abdomen and other parts of the body and fell down. On hearing the report of the gun fire Vesa (PW 4), Natha (PW 5) and Kala (PW 6) also reached the site. Mana who was obvious at the time uttered that he had been hit by the shot fired by Bhera. Champa and Jeta also narrated so before them. Champa went to lodge the report at police station Bikarni on 24th April, 1974. Datar Singh (PW 10) SHO Police Station Bikarni, was there at Jhuda in connection with the inspection of the out post. Champa gave the oral information to the SHO which was reduced into writing and is Ex. P. 2, Ex. P. 2 was sent to the police station Bikarni for registering the case. The SHO went to the site. By that time Mana had succumbed to the injuries sustained by him. The SHO prepared inquest report and the panchayat nama of the dead body of Mana. On inspecting the site, he recovered one was Ex. 7 at a distance of 5 yards from the house of the appellant. He also took in possession the blood soaked earth from the place of the alleged occurrence and the place where Mana was lying. The clothes which Mana was wearing were also taken in possession as they were smeared with blood. All the articles so recovered were sealed. 3. The dead body was sent for post-mortem examination to Government Hospital, Rohida. Dr. Harish Chandra (PW 1) conducted the autopsy over the dead body of Mana on 25th April, 1974 and prepared the post mortem report Ex. P. 1. The Doctor noted three injuries on the abdomen, two on the hip and two on the elbow. The margins of all the above seven punctured wounds were covered with clotted blood. The wounds according to the Doctor were gun shot wounds caused by pellets. The Doctor found three punctured wounds placed obliquely at 1/4" distance to each other, covered with clotted blood at left part of the abdomen below 10th rib. There being no wound on the back, the Doctor opined that the pellet should be in the abdomen. The wounds according to the Doctor were gun shot wounds caused by pellets. The Doctor found three punctured wounds placed obliquely at 1/4" distance to each other, covered with clotted blood at left part of the abdomen below 10th rib. There being no wound on the back, the Doctor opined that the pellet should be in the abdomen. The peritoneum was ruptured irregularly zigzag at the entrance of the pellet. The left lobe of the liver was found ruptured. There was one pellet in the liver which was the result of the abdominal injury, 10th rib was injured at contrial junction and the wound showed the fracture of the 10th rib which was also on account of the one of the abdominal injury. All the injuries were ante-mortem in nature. According to the Doctor the injuries on the abdomen were sufficient in the ordinary course of nature to cause death. The Doctor extracted one pellet Ex. 1. In the opinion of the Doctor death was due to the rupture of left lobe of the liver and illeum part of small intestine leading to hemorrhage, shock and death. 4. SHO Datar Singh arrested the appellant on 25th April, 1974. He was at the time having the muzzle loading gun Ex. 2, which the SHO took in possession and made the endorsement to that effect in the seizure memo Ex. P.7. 5. After completion of necessary investigation charge-sheet was filed against the appellant in the court of Addl. Munsif & Judicial Magistrate No. 3, Udaipur. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions committed the appellant to the court of Sessions, Udaipur to stand his trial. The learned Sessions Judge charge sheeted the appellant for the offence under Section 302 IPC and recorded his plea. He denied the indictment and claimed to be tried. To substantiate its case prosecution examined 11 witnesses in all. In his statement under Section 313 Cr. P.C., the appellant totally denied the allegations levelled against him and stated that the witnesses wanted to snatch his land, Mangos trees and Madhuva trees and were, therefore, telling a lie. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated above. 6. Being aggrieved by his conviction and sentence, the appellant preferred a jail appeal. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated above. 6. Being aggrieved by his conviction and sentence, the appellant preferred a jail appeal. As he was not represented by any counsel, Mr. I.J. Lodha was appointed Amicus Curiae to plead on his behalf. We heard Mr. LJ, Lodha, learned Amicus Curiae and Mr. M.D. Purohit, learned Public Prosecutor for the State and carefully examined the record of the case. 7. Mr. I.J. Lodha, while assailing the finding of the guilt his strenuously contended that there is no credible evidence to uphold that it was the appellant who had fired the shot which hit Mana. According to the learned counsel, it being dark, it was not possible for the witnesses standing at a distance from the Dagla to identify the assailant. 8. The prosecution has led direct as well as circumstantial evidence to substantiate its case, that, it was appellant Bhera from whose shot Mana had sustained injuries. The direct testimony is the statements of Champa and Jeta. These two persons are said to have gone to the house of Bhera along-with Mana deceased to scold him for his conduct in telling a lie that his son Anda had gone as a guest to the relative and not abducted woman. While placing reliance on the testimony of these two witnesses and this part of the prosecution case, the learned Sessions Judge had observed that the three persons going for that purpose in the intervening night of 23rd and 24th April, 1974 had not been denied by the accused even. The presence of the two eye-witnesses Champa and Jeta at the time of the incident also stands supported by the statements of Vesa, Natha and Kala, who had seen them near the dead body of Mana when they reached there on hearing the report of the gun fire. The houses of these witnesses were only at a little distance from the site of the occurrence. Jeta happens to be the real brother of Mana, and the person actually aggrieved because of the undesired act of Anda son of appellant and the conduct of Bhera in concealing the real fact and, therefore, his going to the site with Mana was quite natural. Jeta happens to be the real brother of Mana, and the person actually aggrieved because of the undesired act of Anda son of appellant and the conduct of Bhera in concealing the real fact and, therefore, his going to the site with Mana was quite natural. Champa happened to be there at the house of Mana and Jeta and had accompanied those two persons while going to the house of Bhera appellant, It is pertinent to note that Champa is equally related to deceased Mana and appellant Bhera, being their cousin and, therefore, he can not be said to be a witness interested in the prosecution. Champa and Jeta have been cross-examined at length and there is nothing to disbelieve their testimony regarding Mana sustaining injuries from the gun shot by the person sitting on a cot in the Dagla of the appellant. 9. The pertinent point to be determined is whether it was appellant Bhera and none-else who had fired the shot, the argument of Mr. I.J. Lodha is that it would not have been possible for the witnesses to identify the assailant from such a distance in the dead of night. It is relevant to mention that there is evidence that there was a kindled lantern hanging on the pillar of the Dagla. The lantern being near the assailant the light must have been on him and therefore it could not have been impossible for the person at a distance of only about 20 feet to recognise that man in that light. The rustic people, not accustomed to the dazzling electric light, are capable of identifying persons in the light of lantern as they are habituated to it. 10. Another point raised by the learned Amicus Curiae is, that there was the fencing between the Dagla and the place of occurrence creating obstacle. The fencing was of course there in between the two places, but is was only upto the height of the chest of a man and that too in such a broken condition that cattle could pass through it. This being the position,there was no hurdle for the witnesses in identifying the assailant sitting on the cot. Hence the statements of Champa and Jeta, the two eyewitnesses about the appellant Bhera being the assailant inspires confidence. 11. Mr. This being the position,there was no hurdle for the witnesses in identifying the assailant sitting on the cot. Hence the statements of Champa and Jeta, the two eyewitnesses about the appellant Bhera being the assailant inspires confidence. 11. Mr. I.J. Lodha referred to the conduct of the appellant In sending his son Kamla to trace out Anda and Smt. Devli and on their return sending a word to Jeta that would he like to have Devli back or the `Jhagda Money', and submitted that he would not have fired the shot towards his own kith and kin. The record, does not speak that the appellant was in any involved in the matter of elopement of Anda with Smt. Devli. However this is evident that at the first instance the appellant denied the allegation against his son Anda and then at the intervention of Natha and Kala, agreed to send Kamla to trace out Anda and Smt. Devli. On being reprimanded or scolded by Mana, Jeta and Champa for his previously telling a lie, his getting enraged and firing the shot can not be said to be an improbable act. 12. The learned trial Judge has also placed reliance on the recovery of the gun Ex. 2 from the possession of the appellant at the time of his arrest and the report of the Ballistic Expert that the wad and the pellet (recovered from the dead body) could have been fired from the gun, 2. The learned Amicus Curiae could not point out any infirmity in this part of the prosecution. 13. Mr. I.J. Lodha next argued that even in case the prosecution version about the appellant Bhera being the author of the gun shot is believed, still the conviction of the appellant cannot stand because his case falls within the ambit or right of private defence to person. The argument has no force. The accused has not pleaded any such right, Even in cases where there is no specific plea taken by the accused for exercise of right of private defence, if the circumstances so speak or it can be spelt out from the prosecution evidence that there was reason for the accused to do a particular act in exercise of right of private defence of person or property, courts are bound to take note of that evidence and extend the benefit to the accused. Quite alive of this principle we have carefully looked into the prosecution evidence and the circumstances of the case to find out, if there is anything to help the accused in this respect, but we found none. The only suggestion to the prosecution witnesses was the Champa and Jeta were armed at the time of the occurrence. The suggestion was denied and no other evidence was led to substantiate the defence plea so taken. It is important to consider that the two eyewitnesses and the victim were at a distance of about 20 feet from the place where the appellant was sitting and if they had even scolded or reprimanded him for his conduct, it cannot be said that there was any apprehension of death or sustaining any grievous injury at their hands so as to lead the the appellant to take such step, that is, to fire the shot resulting in the death of Mana. We, therefore, do not agree with the learned Amicus Curiae that in this case any right of private defence to person might have accrued to the appellant. 14. The learned Amicus Curiae then vehemently argued that in any circumstance the act of the appellant was on account of Grave and Sudden Provocation and, therefore, his conviction for the offence under Section 302 IPC is not sustainable. The argument is based on the fact that on account of the appellant previously telling a lie about Anda running away with Smt. Devli and subsequently sending a word as to whether Jeta would like to have Smt. Devli back or the `Jhagda money', Jeta and Mana must have felt annoyed and, therefore, must have naturally gone in an angry mood to the house of the appellant and, their scolding the latter must have enraged him. According to Mr I.J. Lodha this act of scolding by the complainant party must have provoked the appellant, specially when he had tried to get back Smt. Devli by sending his son Kamla and, therefore, his filing the shot must have been on account of grave and sudden provocation caused by the deceased and the two eye witnesses Jeta and Champa. 15. 15. In order to bring the case within the exception (1) of Section 300 IPC it is to be seen whether there was any such grave and sudden provocation which could have deprived the assailant of the power of self control, resulting in an act of his causing death of a person who caused the provocation or any other person by mistake or accident. If a person wants to claim the benefit of Exception (1) of Section 300 IPC, he must prove that the provocation was so grave and sudden as to reasonably justify such loss of self control as to take the life of a person, in such cases distinction is to be drawn between a person who by temperament is unusually excitable and a person of normal temperament. The test is whether the words or conduct is of the type that a normal reasonable man would lose control of himself to the extent of inflicting the injury or injuries that he did inflict. Keeping this principle in mind, when we turn to the facts and circumstances of the present case, we find ourselves unable to subscribe to the contention of the learned Amicus Curiae that the case falls within the Exception (1) of Section 300 IPC. The deceased and the two eye-witnesses Jeta and Champa had simply told the appellant as to how Anda and Smt. Devli have returned when he (appellant) had previously told that Anda had not abducted Devli rather had gone as a guest to some relation. Even assuming for the sale of argument that this fact was told by these persons in a scolding voice, still that can not be said to be such a factor which may provoke a normal reasonable man so as to fire the shots towards his own relations. This being the position, we are in perfect agreement with the learned Judge that it was appellant Bhera who had fired the shot, with an intention to commit murder, causing injuries to Mana, resulting in his death. 16. In view of the above discussion, we find no reason to interfere with the findings of the learned trial Judge based on sound reasons. 17. Consequently, the appeal having no merits is dismissed.Appeal dismissed. *******