JUDGMENT 1. - Respondent Boota Singh was tried for the offences under section 302 and 307 of the Indian Penal Code by the Sessions Judge, Shri Ganganagar and by the judgment dated February 11, 1972 acquitted for the aforesaid offences. 2. The State of Rajasthan has preferred an appeal against the judgment of acquittal. Nand Ram, the maternal-uncle of deceased Brij Lal, has also invoked the revisional jurisdiction of this Court in dissatisfaction to the aforesaid judgment of acquittal. 3. As the D.B. Criminal Appeal No 448/1972 and D.B. Criminal Revision Petition No. 265/1972 arise out of the same judgment, we propose to decide them with one common judgment. 4. Briefly stated the facts of the case giving rise to the appeal and the revision petition are as under:On September 29, 1971 in the morning, respondent Boota Singh, deceased Brij Lal and Darshan Singh (PW 2) were sitting on a cot and playing cards under the `Kikar' tree in the Pid (threshing floor) of Jabarjansingh at village Gurusar. At about 11.00 a.m Bhag Singh (PW 4) went there and sat on the same cot. He demanded Rs. 1800/- from the respondent Boota Singh which the latter owed to him. Boota Singh refused to make the payment at the time. There was exchange of abuses and hot words between them The respondent, during the course of that quarrel took out his pistol from the scabbard and fired it at Bhag Singh. Bhag Singh managed to get up and the shot hit Brij Lal who fell down on the cot. Boota Singh fired the second shot which he missed. The third shot fired by him hit Bhag Singh passing from his left side towards the umbilicus Bhag Singh rushed to the house of his brother-in-law Malkiyat Singh (DW 2). The respondent also left the place with the pistol with him. Jetha Ram (PW 1) brother of deceased Brij Lal is also said to be present at the time of the occurrence. On his raising hue and cry Khumaram, Hardevaram and Surjanram also reached the spot Darshan Singh (PW 2) immediately went to the Police Station, Kesrisinghpur and lodged an oral report to the Station House Officer, Bhag Singh (PW 6). The information reduced into writing is Ex.P.1. A case u/s 307 IPC was registered against the respondent and the SHO proceeded for village Gurusar for investigation. The information reduced into writing is Ex.P.1. A case u/s 307 IPC was registered against the respondent and the SHO proceeded for village Gurusar for investigation. Brij Lal had already been taken to the hospital by his relatives Four or five minutes after reaching the hospital, Brij Lal breathed his last On being informed about Brij Lal being taken to hospital, the Station House Officer went to the hospital, Gulabewala with injured Bhag Chand. The SHO prepared the inquest memo Ex.P. 3 and a Panchayatnama Ex P. 7 of the dead body of Brijlal in the hospital. Dr. Harbhajan Singh (PW 1) examined Bhag Singh and noted the following injuries on his person: 1. Gun shot wound of entrance having, lacerated edges with tattooing of the skin upto 1" in diameter all round the wound 1/2" x 1/2" just on the left side of abdomen 1/2" lateral to the linea bla 4" down to the umbilicus. 2. Wound of exit of gun shot having irregular edges, size 1/2" x 1/2"on the lower lateral side of left side of abdomen in the mid axillary line 21/2" lateral to the upper and of illic crest. 5. The Doctor prepared the injury report Ex.P. 4. On September 29, 1971 at 2 30 p.m. the same Doctor conducted the autopsy over the dead body of Brij Lal and noted the following external injuries. Wound of entrance, one fire arm shot with lacerated edges 1/2" x 1/2" on the frontal bone, 3" superior from the base of the nose 3/4" of the left side of inter parietal suiture line. Wound of exit of gun shot lacerated edges 1/2" x 1/2" on right side of occipital bone 21/2" posterior superiorly from the mestiod process. 6. On opening the dead body the Doctor noted one compound fracture of frontal bone and other of occipital bone. He also found the fracture of brain membrane at the site of the injuries and the brain tissues torn. Post-mortem examination report is Ex.P. 6. 7. The S.H.O. again went to village Gurusar and prepared the site plan Ex.P. 2 and site inspection memo Ex.P. 2A. He took the blood soaked earth from there. Three empty cartridges of 32 bore pistol were found there, which the S.H.O. took in possession vide memo Ex.P. 9. Post-mortem examination report is Ex.P. 6. 7. The S.H.O. again went to village Gurusar and prepared the site plan Ex.P. 2 and site inspection memo Ex.P. 2A. He took the blood soaked earth from there. Three empty cartridges of 32 bore pistol were found there, which the S.H.O. took in possession vide memo Ex.P. 9. Pair of cards lying on the `chatti' were also taken in possession some of the cards were found to be blood stained. The respondent was arrested on the same day and he produced 32 bore pistol and five live cartridges which were also taken in possession vide memo Ex.P. 11. The licence of the pistol was also taken in possession by the S.H.O. 8. After completion of necessary investigation, charge sheet against the respondent for the aforesaid offences was filed in the Court of Munsif, Magistrate, Sri Karanpur. The learned Magistrate finding a prima facie case exclusively triable by the court of Sessions, committed the respondent to the court of Sessions Judge, Sri Ganganagar to stand his trial. He was chargesheeted by the learned Sessions Judge for the aforesaid offences. On his denial for the indictments, trial proceeded. 9. Prosecution examined seven witnesses in all. The respondent in his statement u/s. 342 Cr.P.C. (old) admitted the incident but stated that it had not taken place in the way prosecution has alleged. He admitted the demand of Rs. 1800/- by Bhag Singh and hurling of abuses but contended that it was Bhag Singh who had hurled the abuses relating to the sister of the respondent first and insisted upon the payment of money at that every moment, and continued hurling filthy abuses. That, Bhag Singh took out, `gupti' and wanted to injure him (respondent) and in order to save himself he took out the pistol and fired three shots in quick succession, one of which unfortunately hit Brijlal and the other hit Bhag Singh. He denied the presence of Jetha Ram (PW 1) at that time. 10. The respondent appeared in the witness box to substantiate the defence version. One more defence witness Malkiyat Singh was examined to substantiate the plea that there was naked `gupti' with injured Bhag Singh when he had gone to the house of that witness after sustaining injuries at the hands of the respondent. 10. The respondent appeared in the witness box to substantiate the defence version. One more defence witness Malkiyat Singh was examined to substantiate the plea that there was naked `gupti' with injured Bhag Singh when he had gone to the house of that witness after sustaining injuries at the hands of the respondent. The learned trial Judge believed the defence version and held that it was in exercise of right of private defence of person that the respondent had fired the gun. In view of that finding, the learned Judge passed the judgment of acquittal, challenged in this appeal and the revision petition. 11. This being the admitted position that the respondent had fired three shots at the time of the incident, one of which hit Brijlal resulting in his death and the other hitting Bhag Singh (PW 4), the only point to be determined by this Court is, whether the learned trial Judge was right or not in holding that the right of private defence of person had accrued to the respondent in the given circumstances of the case. 12. Mr. H.N. Calla, learned Public Prosecutor strenuously contended that from the statements of Jetha Ram (PW 1) Darshan Singh (PW 2) and Bhag Singh (PW 4) it is well established that it was the respondent who initiated the quarrel by hurling abuses to Bhag Singh on his demanding money. That the plea about Bhag Singh taking out the `gupti' and attempting to attack the respondent, should not have been relied upon by the Learned trial Judge. 13. According to Mr. Calla, even if the defence version that Bhag Singh had a `gupti' with him is taken to be true, still no right of private defence to person could have accrued to the respondent in view of the fact that Bhag Singh had not taken the `gupti' out of the sheath. Mr. Calla vehemently argued that even if there was any danger of sustaining any injury at the hands of Bhag Singh, it had ceased the moment Bhag Singh left the cot and proceeded ahead. Mr. Calla stressed, that the very fact of the respondent going infront of Bhag Singh and then firing the shot, shows his intention to commit his murder and therefore at least for the offence under section 307 IPC, the finding of the learned trial Judge require interference by this Court. 14. Mr. Mr. Calla stressed, that the very fact of the respondent going infront of Bhag Singh and then firing the shot, shows his intention to commit his murder and therefore at least for the offence under section 307 IPC, the finding of the learned trial Judge require interference by this Court. 14. Mr. M. L. Garg, learned counsel for the respondent referred to the statements of Darshan Singh (P.W.2) and Malkiyat Singh D W. 2) to controvert the contention of the learned Public Prosecutor and submitted that, when there was a naked' gupti' with Bhag Singh, the respondent must have apprehended danger and therefore, his act of firing the pistol fell within the ambit of exercise of right of private defence to person. Mr. Garg also emphasised that the three shots must have been fired in quick succession and not with any gap. 15. Besides the injured Bhag Singh, prosecution has examined Jetha Ram P.W.l) & Darshan Singh(P.W 2' as the eye witnesses to the occurrence. There is no dispute about Darshan Singh (P.W.2) being there at the relevant time. So far as Jetha Ram (P.W.l) is concerned, we find ourselves unable to agree with the learned Public Prosecutor that his presence has been duly established. The learned trial Judge, has given cogent, convincing reasons for the conclusion that Jetha Ram was a got witness and must not have been there at the time of the actual occurrence. One of the factors doubting Jetha Ram's presence at the time is that the `Pid' of Jabarjangsingh did not fall in the way from the house of the witness to the house of his `Siri', where he was going. The statement of the witness that he had gone to pass a message to the brother of Darshan Singh (P.W.2) through him, regarding the irrigation water, has also been rightly disbelieved by the learned trial Judge, because no message was conveyed at the time though the witness had time to do so. The learned trial Judge has also taken into consideration, and rightly so, the fact that Jetha Ram (P.W.l) happens to be the brother of deceased Brijlal and was therefore, interested in the prosecution This fact, coupled with the inconsistencies and improbabilities in his statement has rightly led the learned trial Judge to discard his testimony. 16. The learned trial Judge has also taken into consideration, and rightly so, the fact that Jetha Ram (P.W.l) happens to be the brother of deceased Brijlal and was therefore, interested in the prosecution This fact, coupled with the inconsistencies and improbabilities in his statement has rightly led the learned trial Judge to discard his testimony. 16. The presence of Darshan Singh (P.W.2), an independent witness at the time of occurrence is not disputed. Witness Darshan Singh (P.W.2) has stated about exchange of abuses between the respondent and Bhag Singh. He has further stated that it was the respondent who started hurling abuses first. 17. According to the learned counsel for the respondent, the prosecution story about respondent hurling abuses first is improbable in the circumstances of the case. The reason pointed out by Mr. Garg, is that it was Bhag Singh who, determined to recover the money that very day had gone there and therefore, respondents refusal to make the payment must have irritated Bhag Singh and he might have hurled abuses first. 18. In the given circumstances of the case, it is not of much importance as to who started hurling abuses first, because mere hurling of abuses even if by the injured Bhag Singh first, could not have justified the firing the shots by the respondent The main point for consideration therefore would be, whether there was any imminent danger to the respondent, creating an occasion for him to fire the shots causing death of one person and injuring the other. 19. The defence story of Bhag Singh having `gupti' with him at the relevant time stands proved to some extent from the statement of Darshan Singh (P.W 2). The witness had admitted that when there was exchange of abuses, Bhag Singh was having a `gupti' with him. The witness has however denied the suggestion that Bhag Singh had taken the `gupti' out of the Sheath. Bhag Singh on the other hand denied the fact of his having `gupti' at the relevant time. We have no reason to disbelieve Darshan Singh (P.W. 2) an independent witness on the point. 20. The next question emerging for determination is that in case Bhag Singh had not taken out the `gupti' from the sheath where was the occasion for the respondent to fire the pistol. We have no reason to disbelieve Darshan Singh (P.W. 2) an independent witness on the point. 20. The next question emerging for determination is that in case Bhag Singh had not taken out the `gupti' from the sheath where was the occasion for the respondent to fire the pistol. In this connection, our attention has been drawn to the statement of Malkiyat Singh (D.W. 2) who had clearly stated about Bhag Singh having a naked `gupti' with him when he in injured condition went to the house of the witness.There is no reason to disbelieve the statement of this witness Malkiyat Singh who happens to be the real brother-in-law of Bhag Singh and at whose house he had gone prior to his going to the site for making a demand of money from the respondent. If Bhag Singh would not have taken cut the `gupti' from the sheath at the site, there was no necessity for him to do so after sustaining the injuries and prior to reaching the house of his brother-in-law Malkiyat Singh (D.W.2). 21. In view of this type of reliable evidence supporting the defence version, we are in perfect agreement with the observations of the learned trial Judge that the respondent had the danger of sustaining injuries by `gupti' at the hands of Bhag Singh and had reason to take out the pistol and fire the shot. 22. Whether all the three shots were fired in exercise of right of private defence to the person would however depend on the fact, whether the shots were fired in quick succession or two of them after a gap when Bhag Singh had already left the cot and the danger of sustaining any injury at his hands had ceased. According to Bhag Singh the first shot was fired when he was on the cot and the second, when he got up from there According to him the assailant fired the third shot coming in front of him which hit his stomach. Darshansingh's statement is that the third fire was shot by the respondent from the side of Bhag Singh when he had gone five paces away from the cot. 23. In order to ascertain as to which of the two versions, one of the prosecution and the other of the accused is worthy of credence, the statement of Doctor Harbhajan Singh (P.W. 7) will have to be examined. 24. 23. In order to ascertain as to which of the two versions, one of the prosecution and the other of the accused is worthy of credence, the statement of Doctor Harbhajan Singh (P.W. 7) will have to be examined. 24. According to the Doctor injury of Bhag Singh was caused from a distance of about 1" but it was not caused from the distance of one to two feet. This falsifies the version about Bhag Singh going five paces away from the cot at the time of the third shot. The direction of the injury according to the Doctor was from the left side towards umbilicus. If the assailant would have been in front of the victim, the entrance wound should have been in the abdomen or the front side of the body and the exit wound in the back side. The opinion of the Doctor and the location of the injuries of Bhag Singh lend support to the defence story. This is also noteworthy that the pistol was automatic and no time was required to load it. 25. In this view of the matter,we are in perfect agreement with the findings of the learned trial Judge that there must have been an imminent danger of sustaining any fatal or grievous injury at the hands of Bhag Singh with the 'gupti', and the respondent must have fired the shots to ward off that danger. We are also inclined to hold that all the three shots must have been fired in quick succession. The conclusion arrived at by the learned trial Judge is therefore based on sound reasons and calls for no interference. 26. In view of the above discussions, the appeal filed by the State and the revision petition filed by Nand Ram, have no merits and both of them are dismissed. The respondent is on bail. He need not surrender to it. His bail bonds stand discharged.Appeal Dismissed. *******