JUDGMENT Dr. G. F. Couto, J. - The appellant has been charged of having committed an offence of attempt to murder punishable under section 307 of the Indian Penal Code. After trial, the appellant was convicted for an offence punishable under section 308 and thereafter, given the benefit of Section 4(1) of the Probation of Offenders Act, 1958 and therefore directed to execute a personal bond of Rs. 5,000/- with one surety in the like amount in order to appear and receive sentence in case such contingency arises, He also was directed to pay compensation of Rs. 1,000/-to the injured person. 2. The prosecution case has been that on 29th March, 1982, at about 8.20 a.m. the complainant Diogo Proenca went to the property known as 'Juliana Oxir' belonging to his father in the company of his brother Jose Proenca, his, father Benjamin Proenca two pluckers namely Shamlo Simapuruskar, Simon Fernandes and one Pedro Coutinho, for the purpose of plucking the coconut from trees. While in the property the complainant his brother and father, found a stone wall in front of the house of the appellant which was obstructing their way to the property. The appellant is a mundkar in the property. The father, of the complainant began to remove the stones of the said wall, which had been built with loose stones, with the help of the appellant and Jose Proenca. At that time, the appellant began to abuse Benjamin Proenca with filthy words, and when told to stop such abuses, he assaulted Benjamin Proenca with a kick on his right thigh. Thereafter, the mother and one brother of the appellant intervened and took him inside their house. They latched the door of the house with a latch existing outside the door. Once inside, while Benjamin Proenca was having a discussion with the mother of the appellant, the latter fired a shot from an air-gun through the window of his house. The shot was fired against the complainant Diogo and hit him on the left frontal area of the bead. Diogo fell down unconscious and bleeding, and. thereafter, was taken first to the Police Out-Post and from there to the Medical College, Panjim. 3. The shot was fired against the complainant Diogo and hit him on the left frontal area of the bead. Diogo fell down unconscious and bleeding, and. thereafter, was taken first to the Police Out-Post and from there to the Medical College, Panjim. 3. The learned trial Judge, in his judgment dated 17th May, 1986, held that an incident had taken place in the property 'Juliana Oxir' when the complainant has accompanied his father and his brother to pluck coconuts therein. The learned Judge recorded a finding 'that the evidence was showing that Benjamin Proenca has found a wall of loose stones built near the house of the appellant and that he along with the complainant and his brother Jose Proenca began to demolish such wan. This gave cause to the appellant starting to abuse the said Benjamin with filthy words and to assault him with a kick on his right thigh. The learned Judge further recorded a finding that the mother and brother of the appellant removed him from the place and took him inside their house, latching the door from outside. Finally, he recorded a finding that the appellant shot the complainant Diogo by firing an air gun from inside the house. The learned Judge however, held the view that the air gun ordinarily does not constitute a weapon likely to cause death and therefore, he was of the opinion that the prosecution has failed to establish, that the appellant has shot the complainant Diogo with intention to kill him or with the knowledge that his act of firing the air gun against the complainant was likely to cause his death. However, he took the view that the facts proved were falling squarely under the provision of Section 308 I.P.C. 4. Mr. S. D. Lotlikar, the learned counsel appearing for the appellant, contended that the conviction of the appellant is not sustainable on several grounds. Firstly, the learned Judge did not give reasons to justify why in his opinion, the acts of the appellant were falling within Section 308 I.P.C. Particularly, he did not record a finding that the requirements under section 308 had been proved. Secondly, the learned counsel submitted that the incident has admittedly occurred at about 8 a.m. Though reveral houses are in the vicinity and a shot was allegedly fired, no independent witness, namely no person residing in the neighborhood was examined. Secondly, the learned counsel submitted that the incident has admittedly occurred at about 8 a.m. Though reveral houses are in the vicinity and a shot was allegedly fired, no independent witness, namely no person residing in the neighborhood was examined. All the witnesses who were examined are related to the complainant and therefore, they are not independent witnesses. He further contended that P.W. 3 Anita who is residing at a distance of about 40 metres from the scene of the offence has stated that she had heard the shot. If this is so, neighbors residing at a closer distance were bound to have heard the said shot and come out. That apart, it is the prosecution case that two pluckers, namely Shamlo Simapuruskar and Simon Fernandes and one Pedro Coutinho were on the spot, According to the prosecution, Simon and Pedro were already dead at the time of the trial and therefore, could not be examined. However, nothing was said in respect of Shamlo and the same Shamlo, though available, was not examined. Therefore, according to the learned counsel, an adverse inference is to be drawn against the prosecution to the effect that if Shamlo had been examined his evidence would have been against the prosecution and favourable to the appellant. Reliance was placed in this connection on the decision of the Delhi High Court in Tul Mohan Ram v. The State1. Thirdly, the learned Judge has held that there was some right of private defence available to the appellant since the complainant and others had demolished the loose stone wall though he bad exceeded in his private defence. The learned counsel contended that once the learned Judge' held that the accused had a right of private defence, the question to which he had to address himself was the seriousness of the injury or harm caused to the complainant. Now, the medical evidence of Dr. Kamat clearly shows that the injuries sustained by the complainant are medically simple in nature. Therefore, it cannot be said that while exercising the right of private defence, the appellant had in any manner exceeded such right. Fourthly, according to the learned  counsel, it is the case of the prosecution that the injury was caused to the complainant by error. Kamat clearly shows that the injuries sustained by the complainant are medically simple in nature. Therefore, it cannot be said that while exercising the right of private defence, the appellant had in any manner exceeded such right. Fourthly, according to the learned  counsel, it is the case of the prosecution that the injury was caused to the complainant by error. The medical evidence is not conclusive inasmuch as the injuries sustained by the complainant had been caused by an air gun shot, He submitted that the evidence of Dr. Barbosa and of Dr. Kamat merely shows that the injuries sustained by the complainant were caused by a missile and Dr. Kamat specifically stated that' he was unable to say whether or not the injuries observed by him on the complainant had been caused by a pellet/slug from an air gun. Fifthly, the learned counsel submitted that the prosecution has failed to recover the gun allegedly used in the commission of the offence and in the absence of such gun, there was no material before the Court as to enable it to record, a finding whether or not the injuries sustained by the complainant could have been caused by an air gun. In the light of all these circumstances, according to the learned counsel, at least a reasonable doubt arises. He also placed reliance on the decision of the Supreme Court in Mohinder. Singh v. The State2 in support of his submission that in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely, or at least possible for the injuries to have been caused with the weapon with which; and the manner in which, they are alleged to have been caused. 5. The above view of the learned counsel for the appellant was however, strongly opposed by Mr. Bhobe, the learned Public Prosecutor. He urged that there are some facts on record, which had not been at all controverted and those facts establish beyond any reasonable doubt that an incident took place on 29th March, 1982, at about 8.20 a.m. in the property 'Juliana Oxir' belonging to P.W. 7 Benjamin Proenca, just near the house of the appellant. Bhobe, the learned Public Prosecutor. He urged that there are some facts on record, which had not been at all controverted and those facts establish beyond any reasonable doubt that an incident took place on 29th March, 1982, at about 8.20 a.m. in the property 'Juliana Oxir' belonging to P.W. 7 Benjamin Proenca, just near the house of the appellant. In fact, according to the learned Prosecutor, the appellant has not denied that he was present at the time of the incident that there was a not discussion between, him and Benjamin and his sons in respect of the construction of the wall in the property of the said Benjamin and that the wall had been put up in Benja min's property without his permission. Then, the learned counsel submitted that the evidence of the complainant Diogo corroborates that he was standing near the window of the house of the appellant while a discussion was going on between the appellant's mother and his father Benjamin when he heard the sound of a shot and felt that he was hit on the head. Then, the evidence of P.W.2 has not been at all shaken in the cross-examination and though the said P.W. 2 Jose is the brother of the complaint, none-the-less, there is no reason whatsoever to disbelieve, his evidence. Similarly, P.W. 6 T. Korgaonkar, who happens to be a Panch witness, has stated that the height of the window from the ground level is at the level of the waist and this explains how the direction of the shot was upwards. The evidence of P.W. 2 is corroborated by the evidence of P.W. 3 Anita, who is residing in the property at a distance of about 40 metres of the scene of the offence. So also, the evidence of P.W, 7 Benjamin corroborates that there was an incident that the appellant had been taken inside the house and that while he was discussing, a shot had been fired and his son Diogo has fallen down, wounded on the head. Mr. Bhobe argued that if Benjamin was an untruthful witness, he would have stated that be had seen the appellant firing the shot. However, the very fact that be confined himself to say that he heard the shot goes to show that he is a reliable and truthful witness. Mr. Bhobe argued that if Benjamin was an untruthful witness, he would have stated that be had seen the appellant firing the shot. However, the very fact that be confined himself to say that he heard the shot goes to show that he is a reliable and truthful witness. That apart, the learned Prosecutor invited my attention to the evidence of P.W. 10 Navel Proenca and P.W. 11 Anthony Mascarenhas, who deposed about the possession of an air gun by the family of the appellant. Then, the learned counsel placing reliance on the decisions of the Supreme Court in Masalti v. The State of Uttar Pradesh3 and in Darya Singh and others v. The State of Punjab4 submitted that the mere fact that a witness happens to be related to the complainant, such fact is not a reason to disbelieve such witness and to discard his evidence. What is necessary is to see whether the evidence of the witnesses stand a close scrutiny and whether such witnesses are purely chance witnesses. In the present case, in the light of the admitted facts, it is obvious that none of the prosecution witnesses was a chance witness. The learned Prosecutor finally invited my attention to the medical evidence of Doctors Barbosa and Kamat and submitted that it clearly flows from the said evidence that the injuries sustained by the complainant were caused, undoubtedly, by it pellet fired from an air gun. In these circumstances, according to the learned counsel the failure on the part of the prosecution to produce the gun is of no consequence. The prosecution has in fact proved the motive, then the act of firing a shot and the injury sustained by the complainant as a consequence of such shot. This being so, the prosecution has entirely proved its case, the theory of private defence advanced by the learned Judge having no place in the facts and circumstances of the case, where admittedly, the appellant has constructed the wall in the property belonging to the complainant's father without his permission and without any right. The learned counsel also submitted that the learned Judge was wrong in saying that "some right of private defence" was available to the appellant. In fact, either there was a right of private defence available, or no right at all. Such right cannot exist in small portions. 6. The learned counsel also submitted that the learned Judge was wrong in saying that "some right of private defence" was available to the appellant. In fact, either there was a right of private defence available, or no right at all. Such right cannot exist in small portions. 6. There is considerable force in the arguments and submissions made by the learned Public Prosecutor. In fact, it is not disputed that on the day of the incident, the appellant has accompanied his father Benjamin and his brother Jose to the property where the house of the appellant is situated for the purpose of plucking coconuts. It is not also disputed that on seeing a wall of loose stones erected near the house of the appellant, the father of the complainant asked the family of the appellant why the said wall has not been removed though illegally constructed. This gave cause to a hot discussion between the appellant and Benjamin and it appears, also to abuses and an assault on the person of Benjamin by the appellant. Then, if is well proved that the appellant was taken inside his house by his brother and mother and the door of the house was latched from the outside. It is not also disputed that the house of the witness Anita is situated nearby. Now, P.W. 1, that is to say the complainant, after narrating that he had gone to the property along with his father and brother Jose with pluckers for the purpose of plucking the coconuts made a reference to the demolition of the loose stone wall, to the abuses given by the appellant to Benjamin, to his assault and finally to that the accused had threatened his father, his brother and himself by saying, "tuca dakoita". He also stated that the accused fired a shot of an air gun from a window of his house hitting him on the head. P.W. 2 is the main and crucial witness. He stated' that he had accompanied his father Benjamin and his brother Diogo for the plucking of the property 'Juliana Oxir' and that on such occasion, they had seen a wall of loose stones near the house of the appellant. P.W. 2 is the main and crucial witness. He stated' that he had accompanied his father Benjamin and his brother Diogo for the plucking of the property 'Juliana Oxir' and that on such occasion, they had seen a wall of loose stones near the house of the appellant. That about 8 to 15 days prior to the incident, his father Benjamin had warned the family of the accused to remove the said stones and on seeing that the stones had not been removed, he had started to remove them with the help of the witness and his brother Diogo. At that time, the appellant was present and he started abusing the said, Benjamin. He also assaulted Benjamin with a kick on the right thigh and when the complainant and he rushed to the rescue of his father 85 well as Pedro Coutinho the brother, the mother and sisters of the appellant took him inside the house. Thereafter the said mother sisters and brother of the appellant began to discuss with Benjamin. He saw that the curtain of the window of the house was moving and Ii barrel of a gun was coming out of the grill. The, said gun was being held by the appellant. He was nervous and wanted to take Diogo away, but at that time, he heard a shot and soon after, Diogo fell on the ground with an injury on the head. He immediately with the help of Pedro lifted Diogo and took him to the road. Thereafter he ran for a taxi. In the meanwhile, Miss Assunta came to the place. He brought the taxi and the complainant was taken by Assunta and Pedro Coutinho to the hospital. He also stated that when the shot was fired, the complainant was at a distance of about two metres from the window of the appellant's house. In cross-examination, he stated that after putting Diogo in the taxi, he went first to his house and from there to the Police Station. . He also said that the appellant fired the shot two or three seconds after he saw the moving of the curtain of the window. Mr. In cross-examination, he stated that after putting Diogo in the taxi, he went first to his house and from there to the Police Station. . He also said that the appellant fired the shot two or three seconds after he saw the moving of the curtain of the window. Mr. Lotlikar submitted that the evidence of this witness is most unnatural and therefore, unreliable for, according to the learned counsel, it is rather strange that the witness did not accompany his brother in the taxi and instead went to his house first. Secondly, the said witness stated that about two or three seconds lapsed between his seeing the accused pointing the gun to the complainant and his firing .the shot. According to the learned counsel, nothing was preventing the said witness from shouting and warning the complainant. However, as rightly pointed out by Mr. Bhobe, the evidence of the said witness shows that after bringing the taxi, the complainant was accompanied in the taxi by his Aunt Assunta' and by Pedro Coutinho. He went to the house and then proceeded to the Police Station. This conduct is in no way unnatural, for in all probability the witness after having taken care of the complainant, most probably, went to inform the other members of the family. So far as the statement that two or three seconds elapsed between his seeing the gun and the firing of the shot, one has to bear in mind that the witness stated this only by presumption and further that he specifically stated that he was highly nervous. In any event, these are minor aspects of his evidence, which otherwise in the major and relevant points had not at all been shaken by the defence. 7. The evidence of P.W. 2 is also corroborated by the evidence of P.W. 3 Anita Proenca, Anita Proenca appears to be related to the complainant, but admittedly, she is residing at a distance of 30 to 40 metres from the scene of the offence. Her evidence had not been at all shaken in cross-examination and fully stands. Similarly, the evidence of P. W. 2 gets substantial and. material corroboration in the evidence of P. W. 7 Benjamin and as rightly pointed out by the learned Prosecutor, if, Benjamin had been deposing falsely, he would have definitely also stated that he had seen the appellant firing the shot against the complainant. Similarly, the evidence of P. W. 2 gets substantial and. material corroboration in the evidence of P. W. 7 Benjamin and as rightly pointed out by the learned Prosecutor, if, Benjamin had been deposing falsely, he would have definitely also stated that he had seen the appellant firing the shot against the complainant. That much he did not say and this shows that he was speaking the truth. 8. Undoubtedly, the above' witnesses are related to the complainant, but they cannot be said by any stretch of imagination to be chance witnesses and that their evidence is otherwise unreliable and unworthy. They had stood the test of cross-examination and therefore, their evidence is as good as any other evidence. I am supported in this view by the decision of the Supreme Court in Masalti v. The State of Uttar Pradesh (above). 9. It is true that Mr. Lotlikar contended that the non-examination of the witness Shamlo is highly pre-judicial to the case of the prosecution since Shamlo was admittedly an eyewitness and was in addition, an independent witness. The learned Counsel therefore, contended, placing reliance on Tul Mohan Ram's case (above), that the non-production of material witnesses by the prosecution justifies the presumption that if such witness had been produced, his evidence would have supported the defence, rather than the prosecution. It is no doubt true that ordinarily, such an adverse inference can be drawn, but one has to see always the facts and circumstances of the case with which he is dealing. In the present case, as I already said, the evidence of, P.W. 2 was corroborated by the evidence of the witnesses Anita and Benjamin and the said evidence had stood the test of cross-examination. This being so, therefore, there is no reason for drawing an adverse inference against the prosecution on account of the non-examination of the witness Shamlo. 10. Mr. Lotlikar contended thereafter that the medical evidence excludes the case of the prosecution for, according to him, Dr. Kamat stated that the injuries sustained by the complainant were not caused by a slug or pellet of an air gun. There is no force in this submission of the learned counsel. In the first instance, it is pertinent to say that P.W. 4 Dr. Kamat stated that the injuries sustained by the complainant were not caused by a slug or pellet of an air gun. There is no force in this submission of the learned counsel. In the first instance, it is pertinent to say that P.W. 4 Dr. Barbosa, who is the Medical Officer who first examined the complainant, stated that on examination he found two small wounds on the left frontal region of the head of the complainant. The said wounds were 1 cm. apart, each other and were piercing wounds due to some hard small object. He stated that wounds could have been caused by the pellets of an air gun. He also, in cross-examination, stated that be had not examined the injuries in detail and therefore, he was not in a position to state whether the entry wound had inverted edges. Then, P.W. 5, Dr. Kamat, who examined the complainant in the Goa Medical College stated that he found two wounds on the complainant, the first being an oval wound with abrased margins (wound of entry) ¼’’ x 1/5’’ on the left side forehead, 11/2’’ above the lateral 1/3 of the left eyebrow. The cause of injury being a missile entry and the second, an irregular wound without abrasions of the margins, but the margins slightly averted 1/2" x 1/5" x 1/3" lateral and slightly above the wound No. 1. This wound also was caused by a missile and is the exit injury. -He stated that the age of both the injuries was of about six hours. He deposed that bath the wounds were communicating with each other in the sub-cutaneous region and in medical terms, the injuries were simple in nature. However, he was specific in saying that the character, of the wound' of entry and. the exit wound suggested a missile entry and were caused by the same missile. He added that he could not say if the said injuries were caused by a slug/pellet of an air gun. He also added that if the missile after entry, had penetrated into the artery in the intra-craminal region, it would have caused death. This medical evidence establishes beyond and reasonable doubt that the injuries sustained by the complainant were caused by a missile. This means by a projectile, which had hit the complainant on his forehead. It is true that Dr. This medical evidence establishes beyond and reasonable doubt that the injuries sustained by the complainant were caused by a missile. This means by a projectile, which had hit the complainant on his forehead. It is true that Dr. Kamat stated that he could not say whether the said injuries had been caused by a pellet from an air gun, but this statement does not in any manner exclude such possibility. Thus, in the light of the other evidence, the statements of Drs. Kamat and Barbosa only corroborate that the Injuries were caused by a shot from an air gun. 11. It is true that unfortunately the Police had not been able to recover the air gun. No explanation was given for this non-recovery of the gun and this is a regretable flaw on the part of the investigating agencies. However, in the light of the above evidence, the non-production of the gun is no fatal to the case of the prosecution, specially when the evidence was brought through P.W. 10 Navel Proenca and P.W. 11 Anthony Mascarenhas to prove that the family of the appellant was possessing an air gun. No doubt, the learned Judge disbelieved Anthony Mascarenhas on account of his demeanour, namely that he hesitated in giving his oath and in giving his replies. But the fact remains that the evidence of Navel Proenca was not at all shaken and that Anthony Mascarenhas although hesitating, finally gave his oath and evidence in Court. Therefore, only on the ground of his demeanour, the evidence of Mascarenhas could not be discarded. 12. Mr. Lotlikar submitted that the requirements under section 308 of the I.P.C. had not been proved and the learned Judge has not recorded any finding in that Connection. I am afraid that this submission of the learned counsel is not well-founded. In fact, the evidence brought on record by the prosecution has clearly established that the appellant has shot the complainant with an air gun aiming the said gun to the head. The complainant was hit near the eye and in these circumstances, it is obvious that the appellant could not have ignored that he could have hit the complainant in the eye and therefore, caused his death. To that extent therefore, one has to hold that he had the knowledge that in the circumstances, his act could have caused the death of the complainant. 13. To that extent therefore, one has to hold that he had the knowledge that in the circumstances, his act could have caused the death of the complainant. 13. I will now turn to the submission of Mr. Lotlikar that once the learned Judge held the view that some right of private defence was available to the appellant, it can pot be said that the appellant has exceeded his right of private defence as the injury inflicted on the complainant was minor in nature. As rightly contended by the learned Prosecutor, the learned trial Judge was entirely wrong in, holding the view that a right of private defence was available to the appellant in the facts and circumstances of this case. In fact, it is common ground that the appellant is residing as a mundkar in the property of the complainant's, father and that without his licence or permission, has put up a wall of those stones in the said property, adjoining his house. The evidence on record also shows that the appellant's family had been warned to remove the said wall about 15 to 16 days prior to the incident and that, on the day of the incident, on seeing that the wall had not been removed, Benjamin with the help of his sons had started removing it. The evidence further shows that after the initial discussion and assault, the appellant had been taken inside the house. If this is the case, there was not property of the appellant to be defended and the appellant and his family themselves had given cause to the demolition of the wall and in any event, there was no risk of whatsoever nature justifying an immediate reaction and that too by the use of an air gun by the appellant. Therefore, the contention of Mr. Lotlikar cannot be accepted. 14. The learned Judge while, passing the sentence had given the benefit of the probation of Offenders Act to the appellant. It is not thus possible in the circumstances of the case, to say that the sentence passed is in any way severe or harsh. If anything is to, be said, it is that the learned Judge has been quite lenient. However, as no appeal was filed by the prosecution, there is no reason for interference by this Court. 15. The result therefore is that this appeal fails and is consequently dismissed. 1. 1981 Crl. If anything is to, be said, it is that the learned Judge has been quite lenient. However, as no appeal was filed by the prosecution, there is no reason for interference by this Court. 15. The result therefore is that this appeal fails and is consequently dismissed. 1. 1981 Crl. L.J. N.O.C. 223. 2. 19S0 S.C.R. 821. 3. AIR 1965 SC 202 . 4. AIR 1965 SC 328 ,