R. K. SHUKLA, J. ( 1 ) THIS appeal is directed against the judgment and order dated 30. 7. 1977 passed by the Sessions Judge, Etah, whereby he has acquitted Todi and Manoon accused of the charge under section 302/34 Indian Penal Code but convicted Lala Ram appellant under section 302 Indian Penal Code and sentenced him to life imprisonment. ( 2 ) BRIEF facts of the case are that on 11. 4. 1976 complainant Kamta Prasad, his brother Narsingh Pal and his father Hakim Singh harvested upto 1 p. m. their gram crop standing in a portion of their Chak situated just on the boundary of their village Sikara. Thereafter the went to take their food at their house. At about 4 30 p. m. when they went back to their Chak to collect the aforesaid harvested gram crop, they found that accused Todi and Manoon of the adjoining village Nagla Rajan had pushed their cattle in the gram field and the cattle were damaging the harvested gram crop. When the complainant protested, then abuses started between the parties and Todi accused plied Lathi on Hakin Singh. Ram Chandra, Moti and Pokhpal, who were in the neighbouring filed tried to mediate. At that very time, Lala Ram appellant came running from Nagla Rajan and fired a shot at Hakim Singh father of the complainant. He received gunshot injuries in his abdomen and fell down on the ground. Thereafter all the accused ran away. ( 3 ) HAKIM Singh was taken to police station Ganjdundwar where an FIR. was lodged on 11. 4. 1976 at about 7. 30. p. m. and a case was registered under section 307, Indian Penal Code. The injured Hakim Singh was sent to Ganjdundwar dispensary but the Medical Officer was not present and the Compounder after dressing the wound, advised the complainant to take him to the district hospital, Etah. The complainant arranged for a private bus to take the injured to Etah; but the injured Hakim Singh died near the town hall. The complainant came back with his body to the Police Station. The crime was convened from Section 307 to 302, Indian Penal Code. Shri Ram Bachan Tewari (P. W. 6) 10 was present at the Police Station. He took up the investigation, prepared the inquest report and sent the body for post mortem examination. ( 4 ) DR. The complainant came back with his body to the Police Station. The crime was convened from Section 307 to 302, Indian Penal Code. Shri Ram Bachan Tewari (P. W. 6) 10 was present at the Police Station. He took up the investigation, prepared the inquest report and sent the body for post mortem examination. ( 4 ) DR. R. P. Yadav (P. W. 7) performed the post mortem examination on the dead body of Hakim Singh on 12. 4. 1976 at 11. 45 a. m. He found tile following ante mortem injuries on the dead body: Multiple fire-arm wound of entry over middle of abdomen over and around the umblicus and supra public region in an area of 20 c. m. x 91/2 c. m. size of wounds 3/4 cm. x 1/2 cm. x skin to abdominal cavity deep to 11/2 cm. x t com. skin to abdominal cavity deep. Margins inverted. Slight tattooing present around the margins of the wound and over the margins of wound an abrasion present in between the wounds. On internal examination, it was further found that the shots entered through abdominal well and perforated the small intestine under it, part of large intestine and urinal bladder, clotted and fluid blood was present. 26 pellets were removed from the intestines and abdominal cavity in the lower part. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the fire-arm injuries. After completing the investigation, charge-sheet was submitted against the three accused, namely, Todi, Manoon under section 302/34, Indian Penal Code and against Lala Ram under section 302, Indian Penal Code. ( 5 ) THE prosecution examined in all eight witnesses in support of its case. Out of whom complainant Kamta Prasad (P. W. 1), Moti (P. W. 2), Pokhpal (P. W. 3) and Ram Chandra (P. W. 4) are the eye-witnesses of the occurrence. Rest of the witnesses are the aforesaid 1. 0. , doctor and some formal witnesses of police. ( 6 ) THE defence of the accused was simple dental. They have stated that they have been falsely implicated in the case due to enmity. They have not produced any evidence in their defence. Rest of the witnesses are the aforesaid 1. 0. , doctor and some formal witnesses of police. ( 6 ) THE defence of the accused was simple dental. They have stated that they have been falsely implicated in the case due to enmity. They have not produced any evidence in their defence. ( 7 ) AFTER considering the entire evidence on record the learned Sessions Judge has held that Todi and Manoon accused did not share the common intention with Lala Ram to commit the murder of Hakim Singh. In fact they were having a petty dispute with Hakim Singh. It could not be said that the aforesaid two accused, Todi and Manoon shared in common intention to kill Hakim Singh. Consequently they were acquitted. Lala Ram appellant was convicted and sentenced under section 302, Indian Penal Code. ( 8 ) THE factum of the occurrence is not disputed before us by Mr. C. S. Saran, learned counsel for the appellant. He only urged before us that the appellant fired a single shot from a TAMANCHA (country made pistol) in the exercise in good faith of the right of private defence to defend his friends. Therefore, this case falls under Exception 2 of section 300, Indian Penal Code and the conviction of the appellant under sect on 302, Indian Penal Code is not justified. ( 9 ) ON the other hand the learned Additional Government Advocate vehemently contended that the appellant bad no right of private defence and his conviction and sentence under section 302, Indian Penal Code are perfectly justified. In support of his contentions, he relied on three cases, namely (i) Pandurang Narayana Jawalekar v. State of Maharashtra1, (U) State of U. P. v. Ram Swarup and another2, and (Hi) Bhagwan Munjaji Pa wade v. State of Maharashtra3. ( 10 ) KEEPING in view the aforesaid submissions, the only question, we have to examine, is whether under the facts and, circumstances of this case the offence would be under section 302, Indian Penal Code. At this stage it is necessary to recall the circumstances under which the appellant is alleged to have fired only one shot with a TAMANCHA. At this stage it is necessary to recall the circumstances under which the appellant is alleged to have fired only one shot with a TAMANCHA. Facts alleged by the eye-witnesses and held proved are that Todi and Manoon acquitted accused initiated the trouble by pushing their cattle in the field of the complainant and the cattle were damaging the harvested gram crop lying in the aforesaid field. On the protest of the complainant and his father, Hakim-Singh, an exchange of abuses followed between the parties. During the exchange of-abuses, the deceased had admittedly used Dandah. No doubt, it is alleged that he did so forwarding off a Lathi attack on him. Ram Chandra (P. W. 4), Moti (P. W. 2), and Pokhpal (P. W. 3) who were in the neighbouring field tried to intervene in the quarrel. It was at that time, that is when the quarrel was going on, that the appellant came running from his village Nagla Rajan situated at a distance of about one and a half furlongs and fired at Hakim Singh who fell down after receiving gun shot injury on his abdomen. Thereafter the three accused ran away. ( 11 ) UNDER these circumstances it cannot be said that the appellant knew as to which party was aggressor when he fired at the deceased. There was no previous enmity between the complainant and the appellant and the aforesaid two acquitted accused. Kamta Prasad (P. W. 1) has clearly stated that he has no enmity with Todi and Manoon accused. No malice is alleged against the appellant also. Only this much is alleged that the appellant and two acquitted accused are friendly and belong to the same caste and village. The appellant crime running from his village Nagla Rajan situated at a distance of about one and a half furlongs from the place of the occurrence, and fired only one shot which struck on the abdomen of Hakim Singh, and resulted into his death. The learned Sessions Judge himself has held that it may be true that Lala Ram had good relations with them (acquitted accused) and for that reason he rushed to the scene to take their side. In these circumstances when the appellant had no enmity with the complainant there appears no reason to suppose that the appellant was actuated by any other impulse but that of defending his friends. In these circumstances when the appellant had no enmity with the complainant there appears no reason to suppose that the appellant was actuated by any other impulse but that of defending his friends. ( 12 ) IN order to attract the provisions of Exception 2 of section 300, Indian Penal Code the harm caused must have been caused solely with the intention of private defence. It must not be maliciously excessive nor vindictively unnecessary. Excessive harm caused must be un-intentional. It is also necessary to get benefit of the Exception 2 that the offender must act in good faith Good faith has been defined under section 52, Indian Penal Code which says nothing is said to be done in good faith which is done without due care and attention. What is due care and attention depends on the position in which a man finds himself and varies in different cases. It does not require logical infallibility. The degree of proof required from the accused is not the same as is expected of the prosecution, which is required to prove its case beyond reasonable doubt, but is to show preponderance of probability even from the evidence of the prosecution. ( 13 ) IN the instant case no malice has been alleged to have been entertained by the appellant towards Hakim Singh (deceased ). The incident occurred on the spur of the moment. It has come in evidence that the house of the appellant is about one and a half furlongs away from the place of the occurrence and he came from there and when he reached the place of the occurrence, be was excited to hear abusive languages of the persons of other village to his friends and to see the complainant party quarrelling with them. In this back ground he fired a single shot. It is unjustifiable; of course, but then it may be so on account of the natural want of justment which the person cannot be expected to possess at a moment of great excitement, or it may be because of an exaggerated sense of the danger. It may also be due to an exaggerated sense of the right, out of all proportion to the real requirement of the case. It may also be due to an exaggerated sense of the right, out of all proportion to the real requirement of the case. In the absence of any previous enmity or malice towards Hakim Singh, it cannot be said with reasonable certainty that the appellant intended to commit murder of Hakim Singh or intended to cause that particular injury, which was. sufficient in the ordinary course of nature to cause death. The place of injury also depends on the lie of land, movement of the body of the victim and other circumstances in such circumstances following the ratio of previous decisions of the Supreme Court in the case of Jagrup Singh v. State of Haryana4, Randhir. Singh v. State of Punjab5, Kuiwant Ral v. State of Pun jab6 , Han Ram v. State of Haryana7, and Jagtar Singh v. State of Punjab8, in the case of Tholan v. State of Tamilnadu9, the Supreme Court has held as under: Even if Exception 1 is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an offence under section 304 Part II of the Indian Penal Code. ( 14 ) IN view of the above discussions, we are satisfied that this case is covered by Exception 2 of section 300, Indian Penal Code inasmuch as, in the exercise in good faith of the right of private defence the appellant Lala Ram exceeded that right. But since his act was without premeditation and without any intention of causing death, he is guilty of committing an offence punishable under section 304, Part II of the Indian Penal Code and not under section 302, Indian Penal Code as held by the learned Sessions Judge. ( 15 ) WE find no force in the argument of the learned Additional Government Advocate that the offence punishable under section 302, Indian Penal Code has been made out against the appellant. Therefore, we reject that argument accordingly. The aforesaid three cases cited by the learned Additional Govt. Advocate are distinguishable on facts. ( 15 ) WE find no force in the argument of the learned Additional Government Advocate that the offence punishable under section 302, Indian Penal Code has been made out against the appellant. Therefore, we reject that argument accordingly. The aforesaid three cases cited by the learned Additional Govt. Advocate are distinguishable on facts. In the case of Pandurang Narayana Jawalokar (supra) the appellant intended to cause an iron bar blow on the head of the deceased. Therefore, in the circumstances of that case it was held that the offence was committed under section 302, Indian Penal Code. in the instant case we have held otherwise. In Ram Swarups case (supra), the accused were charged under section 302 read with section 34 Indian Penal Code. In that case the shooting was preceded by a previous incident on that very day. It was alleged that at 7 a. m. Ganga Ram had gone to the market to purchase a basket of melons. The deceased declined to sell it saying that it was already marked for another customer. Hot words followed during which the deceased, asserting his authority, said that he was the Thekedar of the market and his word was final. Offended by this show of authority, Ganga Ram is alleged to have left in a hugg. An hour later Ganga Ram went back to the market with his three sons. Ram Swarup, Somi and Subhash. Ganga Ram had a knife, Ram Swarup had a gun and the two others carried Lathis. They threw a challenge saying that they wanted to know whose authority prevailed in the market. They advanced aggressively to the Gaddi of the deceased, who taken by surprise attempted to rush in a neighbouring Kothari. But that was much too late for before he could retreat, Ram Swarup shot him dead at point blank range. In the present case, there is no such evidence. We are unable to follow as to how this case is applicable to this case whose facts and circumstances are quite different. In the third case of Bhagwan Munjaji Pawade (supra), according to the prosecution there was long standing dispute between Smt. Baijabai and her sons on the one hand and the accused on the other. Further more, no less than three fatal injuries were inflicted by the appellant with an axe on an innocent victim. In the third case of Bhagwan Munjaji Pawade (supra), according to the prosecution there was long standing dispute between Smt. Baijabai and her sons on the one hand and the accused on the other. Further more, no less than three fatal injuries were inflicted by the appellant with an axe on an innocent victim. In the instant case there is no such enmity between the assailant and the deceased, and only one injury has been caused by the appellant to the deceased. Thus all the cases cited by the learned Additional Government Advocate are distinguishable on facts. ( 16 ) IN view of the facts and circumstances discussed above, the conviction of the appellant under section 302, Indian Penal Code cannot be sustained. On the other hand his case is covered by Exception 2 of section 300, Indian Penal Code and consequently the appellant is liable to be convicted under section 304 Part II, Indian Penal Code. We are further satisfied that even if Exception 2 of section 380, Indian Penal Code is not attracted, the requisite intention of murder cannot be attributed to the appellant. No doubt the appellant had fired a weapon like TAMANCHA. But, then he can only be attributed with the knowledge that he was likely to cause an injury, which was likely to cause death. In such a situation also he would be guilty of committing an offence punishable under section 300 Part II, Indian Penal Code. Since the appellant has used a fire arm, a sentence of seven years RI. would be adequate. ( 17 ) IN the result the appeal is partly allowed. Conviction and sentence of life imprisonment of the appellant under section 300, Indian Penal Code are set aside. Instead he is convicted and sentenced to seven years RI. under section 304 Part II, Indian Penal Code. He is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith and sent to jail to serve out the sentence according to law. Appeal partly allowed. .