S.S. BYAS, J.—Since these two connected appeals - one against conviction and the other against acquittal-arise out of one and the same judgment of the learned Sessions Judge, Churu dated May 11. 1982, they were heard together and are disposed of by a common judgment. By the impugned judgment, Accused Dharamveer was convicted under section 302, I.P.C. and sentenced to imprisonment for life with a fine of Rs. 50/- and accused Shubhram was convicted under sections 304 and 323 I.P.C. and was sentenced to seven years rigorous imprisonment with a fine of Rs. 50/- on the first count and eight months rigorous imprisonment on the second count. By the same judgment, four persons Sumersingh, Ramsingh, Rooparam and Madansingh were convicted under section 323 I.P.C. and each was sentenced to eight months rigorous impnsonment, but they alongwith three others Dayaram, Mangeram and Shubhram, were acquitted of the offences under sections 302/149, 148,307/149, 452 and 392 I.P.C. Accused Dharamveer and Shubhram have come-up in appeal and challenge their convictions, while the State, in its appeal, challenges the acquittal. 2. The incident is alleged to have taken place at about 11.00 or 11.30 a.m. on May 30, 1981 in village Chandgoti P.S. Hamirwas district Churu, in which two members of the complainant party, viz., Lalchand and his son Singh Ram, and one member of the accused party, viz., Mool Chand alias Moolaram, lost their lives. 3. Briefly recounted, the prosecution case is that at about 8.00 a.m. on May 30, 1981, Vimla the daughter of the deceased-victim Singhram and Guddi daughter of accused Badansingh (both the girls being 6/7 years in age), while playing in the street, picked-up quarrel. The mother of accused (appellant) Shubnran, who is also the grand- mother of Guddi, gave a beating to Vimla. Vimla went to her house and apprised her father Singhram of her being beaten by Shubhrams mother. Singhram went to the house of accused Shubhram, reprimanded his (Shubhrams) mother and came back to his house. At about 11.00 or 11.30 a.m., Lalchand (father of Singhram) was sitting in the Polli of his Bakhal (house). The other inmates of the family, viz , PW 1 Sajjana, PW 2 Smt. Krishna, PW 3 Mahendra, PW 4 Smt. Nimmo and Singhram were sitting in the Varandah of the house. At about 11.00 or 11.30 a.m., Lalchand (father of Singhram) was sitting in the Polli of his Bakhal (house). The other inmates of the family, viz , PW 1 Sajjana, PW 2 Smt. Krishna, PW 3 Mahendra, PW 4 Smt. Nimmo and Singhram were sitting in the Varandah of the house. All of a sudden, nine persons viz., Dharamveer, Ramsingh, Dayaram, Mangeram, Rooparam, Badansingh alias Badnaram, Sumersingh Shubhram and the deceased Moolchand alias Moolaram stormed into the Bakhal. Dharamveer had an axe, Moolaram had a jelly and the rest had lathis. They asked Lalchand to drive out Singhram as they wanted to kill him because he had abused their mother in the morning. Hearing the noise. Smt. Santosh, Smt. Krishna, Smt. Sajna, Smt. Nimmo and Singhram came out in the Bakhal. As soon as Singhram came out, nine miscreants made an assault on him and started administering blows to him with their weapons. Lalchand and other inmates tried to rescue Singhram. Accused Shubhram struck a blow of his lathi on the head of Lalchand. Accused Dharamveer struck a blow of his axe also on the head of Lalchand. Lalchand fell down with profuse bleeding from his wounds. Singhram went into the Varandah brought a gun and in order to save himself and other inmates of the family, fired a shot. The shot hit Moolchand alias Moolaram. Accused Shubhram struck a blow of his lathi on the gun of Singhram. The gun got broken. Thereafter Singhram was struck blows by the nine miscreants. The other inmates of the house also sustained injuries when they tried to intervene. The accused, while fleeing away , took away the broken gun with them. Lalchand did not survive and passed-away instantaneously. His son Harpath (PW 5), who had gone to Rajgarh, returned after some time. He found his father lying dead and his brother Singhram lying in a pool of blood with multiple injuries and in unconscious state. He further noticed Krishna, Nimmo, Sajna and Mahendra lying injured. Smt. Sajna (PW 1) narrated the incident to him. Harpath arranged a jeep and took Singhram, Smt. Nimmo, Smt. Sajna and Smt. Krishna in it to Government Hospital, Rajgarh. In the way, he got down at Police Station, Hamirwas and sent the jeep to the hospital. At about 1.50 p.m. on the same day, he verbally lodged report EX. P 7 of the occurrence. Harpath arranged a jeep and took Singhram, Smt. Nimmo, Smt. Sajna and Smt. Krishna in it to Government Hospital, Rajgarh. In the way, he got down at Police Station, Hamirwas and sent the jeep to the hospital. At about 1.50 p.m. on the same day, he verbally lodged report EX. P 7 of the occurrence. The police registered a case and proceeded with investigation. While the jeep was proceeding to Rajgarh, Singhram passed away. 4. The investigation was taken-up by the Station House Officer Har Chand (PW 12). He arrived on the spot, inspected the site and prepared the site plan. He found Lalchands deadbody in the Polli of the Bakhal. He prepared the inquest report of his deadbody. He went to the hospital and prepared the inquest report Ex. P8 of Singhrams deadbody. He lifted the blood stained soil scattered around at some places near the site of occurrence. He also found blood at place shown by mark A-2 in site plan Ex. P 1. He found one fired cartridge case, four live cartridges in a packet and the broken piece of the butt of a 12-bore gun on the spot alongwiih other articles. They were seized and sealed. The post-mortem examination of the deadbodies of Lalchand and Singhram was conducted on May 31, 1981 by PW 13 Dr. Umaidsingh the then Medical Jurist, Government Hospital, Churu. The doctor stated that he noticed the following ante-mortem injuries on the deadbody of Lalchand :- External Incised wound 4" x 1/2" x bone deep along the saggital sutural line mid of scalp. Internal Fractures of frontal bone, right parietal bone, left parietal bone and occipital bone. In the opinion of Dr. Umaidsingh, the cause of death was head injury. The post-mortem examination report issued by him is Ex.P 65. The doctor further stated that he noticed 17 external injuries and two internal injuries-all ante-mortem, on the deadbody of Singhram, as described in post-mortem examination report Ex. P. 66. He was of the opinion that the cause of death was head injury. The injuries of other injured persons Mahendra, Smt. Krishna, Smt. Nimmo and Smt. Sajna were examined on May 31, 1981 by PW 6 Dr. B.K. Deora the then Medical Officer Incharge, Government Hospital Rajgarh. The injury reports issued by him are Ex. P15, Ex. P16, Ex.P 17 and Ex.P 18. X-ray examination of their injuries was also conducted. The injuries of other injured persons Mahendra, Smt. Krishna, Smt. Nimmo and Smt. Sajna were examined on May 31, 1981 by PW 6 Dr. B.K. Deora the then Medical Officer Incharge, Government Hospital Rajgarh. The injury reports issued by him are Ex. P15, Ex. P16, Ex.P 17 and Ex.P 18. X-ray examination of their injuries was also conducted. Most of their injuries were found simple caused by blunt weapons. 5. The accused persons were arrested and in consequence of the disclosure statements made by them, the barrel of the gun, lathis and blood stained clothes were recovered. On the completion of investigation, the police submitted a crime report against eight persons, viz., Dharamveer, Ramsingh, Dayaram, Mangeram Rooparam, Badansingh, Sumersingh and Shubhram, in the Court of Munsif cum Judicial Magistrate, Rajgarh, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 148, 302/149, 307, 307/149 and 452, I. P. C. against all of them, to which they pleaded not guilty and faced the trial. They denounced the whole prosecution story as false and incorrect. Five of them, viz., Dharamveer, Rooparam, Mange-ram, Dayaram and Ramsingh denied their presence on the scene of occurrence, and pleaded that they were at some other places. The remaining three accused viz., Shubhram, Badansingh alias Badnaram and Sumersingh, admitted their presence, but came out with a counter version. According to them, the police has submitted only a truncated version suppressing the real one. According to them, Singhram (deceased) had come to their house in the morning to reprimand Shubhrams mother. Moolaram alias Moolchand, who was brother of accused Shubhram, turned away Singhram and told him bluntly that he may do what he liked. Singhram returned to his house and Moolchand went to his field. At about 11.00 a.m., Moolchand alias Moolaram, Sumersingh, Badanaram and Shubhram were returning from their field to their house. When they reached the place Chokka situate out-side the house of the complainant party, as shown in site plan Ex.P. 1, from where they were to take a turn to their house, Singhram, who was standing in his Bakhal, fired a shot with his gun at them. The shot hit Moolchand alias Moolaram and he fell down. Apprehending grave danger to their lives, Shubhram, Badnaram and Sumersingh rushed towards Singhram to disable his fire-arm. The shot hit Moolchand alias Moolaram and he fell down. Apprehending grave danger to their lives, Shubhram, Badnaram and Sumersingh rushed towards Singhram to disable his fire-arm. There they were beaten by Singhram, Lalchand and other inmates of their family. In order to save themselves from being further beaten, they snatched away the lathi from Mahendra, Lalchand and others and started landing blows to Singhram in order to prevent him from re-loading his gun. Singhram and Lalchand, thus, sustained injuries. Accused Shubhram went to Police Station and lodged report of the incident. The police registered a case under section 302, I. P. C. against Singhram, but on account of his death, sub-mitted final report. They have, thus, come with a definite plea of the right of private defence of person. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused examined no witness. On the conclusion of the trial, the learned Sessions Judge, after a close scrutiny of the evidence, recorded his findings as under:- (1) the two minor girls Vimla D/o deceased Singhram and Guddi D/o accused Badansingh picked-up quarrel in the morning of the day of the incident. The mother of accused Badansingh slapped Vimla. Vimla complained to her father. Her father Singhram went to Badansinghs house and reprimanded the mother of accused Badansingh; (2) the deceased Singhram was the aggressor. The accused party was coming from their fields on their way to their house. When they reached the Choka in the street, shown by mark A-2 in site plan EX. P 1, situate out-side the house of the complainant party, Singhram, standing in the court-yard of his house, fired a shot at them, which hit Moolaram (brother of accused Badansingh). Moolaram fell down and died on the spot; (3) the members of the accused party, seeing Moolaram shot dead and further seeing Singhram standing in the court-yard of his house with a gun in his hand, apprehended grave danger to their lives They, therefore, rushed towards him in order to over power him and disable his gun. They had a right of private defence of person in doing so. Though they were more than five in number, they did not form an unlawful assembly because their common object was to defend themselves; (4) the accused persons had a right to use force but within the permissible limits. They had a right of private defence of person in doing so. Though they were more than five in number, they did not form an unlawful assembly because their common object was to defend themselves; (4) the accused persons had a right to use force but within the permissible limits. Since they did not form an unlawful assembly, if any of them caused more harm than necessary, he alone was individually responsible for it. The other members of the accused party could not be fastened with vicarious liability under section 149, I.P.C; (5) accused Shubhram caused the death of Singhram. He, of course, had a right to use force against Singhram, but in causing his death, he caused-more harm than necessary. Even after the gun of Singhram was broken, he (Shubhram) struck blows to him and caused his death. He, thus, exceeded the right of private defence and was, therefore, guilty under the first part of section 304, I. P. C; (6) Lalchand- father of Singhram- was only an intervenor who came forward to rescue his son. No right of private defence was available against him. Only one blow was struck on his head by accused Dharamveer. No other accused inflicted any injury to him. His head injury was sufficient in the ordinary course of nature to cause death Accused Dharamveer was, therefore, guilty for the offence of murder u/s 302, I. P. C. (7) PW 1 Smt. Sajna, PW 2 Smt. Krishna, PW 3 Mahendra and PW 4, Smt. Nimmo were struck blows by accused Sumersingh, Ramsingh, Rooparam and Badansingh. Some of their injuries were grievous. Since it could not be established as to who out of the accused persons caused grievous injuries, none of them could be convicted under section 325, I. P. C. Each of them could, however, be convicted under section 323, I. P. C; and (8) accused Mangeram and Dayaram were not in the party of the accused persons. They did not come on the spot. 6. The learned Sessions Judge, on the basis of the above findings, convicted and sentenced the accused persons as mentioned at the very out-set. 7. We have heard Mr. Ganpatram and Mr. B. R. Arora-learned counsel for the appellants and the learned Public Prosecutor for the State assisted by Mr. M. D. Purohit learned counsel for the complainant. 8. 6. The learned Sessions Judge, on the basis of the above findings, convicted and sentenced the accused persons as mentioned at the very out-set. 7. We have heard Mr. Ganpatram and Mr. B. R. Arora-learned counsel for the appellants and the learned Public Prosecutor for the State assisted by Mr. M. D. Purohit learned counsel for the complainant. 8. Since there are cross-appeals against convictions and acquittals, we were thoroughly taken through the entire evidence by the learned counsel for the parties and the learned Public Prosecutor. Before dealing with the respective contentions, we may state that Moolaram of the accused party was shot dead by the deceased Singhram. This fact is no more under controversy The post-mortem examination report of his deadbody was conducted at about 11.00 a.m. on May 31, 1981 by PW 13 Dr. Umaidsingh. The post-mortem examination report prepared by him is EX. D 9, the certified copy of which is there on the record. The doc or stated that he noticed the following ante-mortem injuries over his deadbody:- (1) Ten wounds of entry 2 at 1 1/2" above the right nipple, 2 at on right and below the right nipple about 1". 2 in the anterior axillary line near the pectoral region, one wound of entry on the anti-axillary fold. Three are placed in the anterior lateral surface of right arm in its upper 1/2. There was blackening around all these wounds. Each wound was roughly 1/6" x 1/6" size. All the wounds going obliquely downwards medially and towards left side. (2) wounds- two wounds of exit on the medial surface of right arm at its upper 1/2 of two wounds of entry out of three corresponds. (3) One wound of exit on the left post axillary line lower part of thorax left side of thorax. The doctor also detected two buck-shots lodged in the right fore-arm. In the opinion of the doctor, the cause of his death was injuries to the vital organ, leading to haemorrhage. The injuries were caused by the shot of a fire-arm. The injuries were stated to be sufficient in the ordinary course of nature to cause death. The dispersion of the pellets leading to the injuries of the entry was in the chamber of about ten inches. The injuries were caused by the shot of a fire-arm. The injuries were stated to be sufficient in the ordinary course of nature to cause death. The dispersion of the pellets leading to the injuries of the entry was in the chamber of about ten inches. The doctor further stated that the blackening around the entry wounds was on the immediate edge of the wounds and was due to smoke-layer around each individual pellet and due to its heated nature. There was no blackening on the surface of the hit area. The doctor further stated that the shot at Moolaram was fired from a range between ten to twenty yards. The death of Moolaram plays a very significant role in deciding the fate of the case. 9. We shall take-up the States appeal against acquittal to start with. In assailing the acquittals, the learned Public Prosecutor and Mr. Purohit formulated the following contentions — 1) the finding of the court-below that Singhram fired the shot first when the accused persons were at Choka 2-A in site plan EX. P 1, is pulpably wrong and incorrect. Moolaram was fired at by Singhram when the former was in his (Singhrams) Bakhal alongwith other accused persons; 2) the accused, who were more than five, had formed an unlawful assembly. When Singhram went to reprimand the mother of accused Badansingh, he slapped her. The deceased Moolaram was then present there. He went to the field and collected the other accused persons. They all came together from there with axe, Jelly and lathis and went to Singhrams house to take him to task. Their common object was to kill Singhram and any other person who came in their way of accomplishing their task. They, thus, constituted an unlawful assembly with the common object of committing the murder; and 3) no right of private defence of person was available to the accused party. The accused were the aggressors and intruded into the Bakhal of Singhram. Since the common object of the unlawful assembly was to commit murders, each of them must have been convicted under sec. 302 read with s. 149, I.P.C. for causing the murders of Singhram and his father Lalchand. 10. Before proceeding further, we may point out that what actually happened at the house of the accused persons when Singhram went to reprimand the mother of accused Badansingh, cannot be ascertained. 302 read with s. 149, I.P.C. for causing the murders of Singhram and his father Lalchand. 10. Before proceeding further, we may point out that what actually happened at the house of the accused persons when Singhram went to reprimand the mother of accused Badansingh, cannot be ascertained. Singhram is dead and the mother of accused Badansingh has not been examined as a witness in the case. It is possible that Singhram rebuked and slapped her. It is equally possible that Singhram was turned away from there and he was manhandled by the deceased Moolaram. The sequence of events, however, strongly suggest that Singhram came back annoyed from the accuseds house as we will see that it was he who first fired the shot. 11. The first and fore-most fact-in-issue arising for consideration is which of the parties was aggressor? That depends on the question as to at which place Moolaram was shot dead. If he was shot-at in the Bakhal of the complainant party, it can be easily held that the accused were the intruders and aggressors who had stormed into the Bakhal. However, in case he was shot at when he was at Choka (2-A in site plan EX. P 1), Singhram must then naturally be held as the aggressor. The distance between the place where Singhram was standing in his Bakhal and Choka (2-A) is of 46 feet 3 inches, as stated by the investigating officer Harchand (PW 12). The Court below, after a careful scrutiny of the evidence and the circumstances, concluded that Singhram was standing at the place shown by mark X in site plan EX. P 1. The accused persons alongwith Moolaram were coming from the Eastern way. When they happened near Choka, Singhram fired his gun at them. The shot hit Moolaram and he fell down. His blood was found at place A-2 near the Choka as shown in EX. P 1, The Bakhal of the complainant party has been shown by digit 15 in EX.P 1. 12. It was contended by the learned Public Prosecutor and Mr. Purohit that the aforesaid finding of the Court below that Singhram fired the shot standing at place X and Moolaram was hit when he was standing near the Choka, is erroneous and should not be accepted. 12. It was contended by the learned Public Prosecutor and Mr. Purohit that the aforesaid finding of the Court below that Singhram fired the shot standing at place X and Moolaram was hit when he was standing near the Choka, is erroneous and should not be accepted. It was argued that the four eye witnesses PW 1 Smt. Sajna, PW 2 Smt. Krishna, PW 3 Mahendra and PW 4 Smt. Nimmo categorically stated that the accused alongwith Moolaram stormed into their Bakhal and it was in the Bakhal that Moolaram was fired at by Singhram. The Court below summarily dismissed their evidence on this material point without assigning any cogent reasons. We have examined the contention. 13. The aforesaid eye witnesses were, no doubt, present on the scene of the occurrence. Since they are injured persons, their presence on the spot is not open to any challenge. But the pertinent question is whether their version that Moolaram was hit when he was in the Bakhal is true? There are some convincing circumstances which impel us to hold that their evidence on this material point cannot be accepted. They stated that the accused, all of a sudden, stormed into the Bakhal and made an assault on Singhram, who was their main target. Singhram was unarmed at that time. When Singhrams father and these witnesses tried to rescue Singhram, they too were assaulted. Singhram went in the Varandah (shown as Tibari in site plan EX. P 1) and brought a gun. He fired the gun which hit Moolaram. It is difficult to conceive that the accused would have permitted their main target Singhram to escape and to arm himself with the gun. These witnesses stated that Singhram fired the shot at Moolaram from a distance of 4/5 paundas, that is to say, from a distance of 16 to 20 feet. But the medical evidence completely falsifies this distance. PW 13 Dr. Umaidsingh, who conducted the post-mortem examination of Moolaram, stated that the dispersion of the pellets leading to injuries of the entry on the body of Moolaram was in a chamber of about ten inches. No rat-hole was found on Moolarams deadbody. There were multiple pellet injuries on his person. But the medical evidence completely falsifies this distance. PW 13 Dr. Umaidsingh, who conducted the post-mortem examination of Moolaram, stated that the dispersion of the pellets leading to injuries of the entry on the body of Moolaram was in a chamber of about ten inches. No rat-hole was found on Moolarams deadbody. There were multiple pellet injuries on his person. The doctor stated that looking to the dispersion of the pellets leading to the injuries of the entry, which was in a chamber of about ten inches, Moolaram was hit from a distance between 10 to 20 yards, that is to say, thirty to sixty feet. He further stated that after a range of ten yards or above, there will be individual pellet holes on the body as were there on Moolarams dead body. This is a strong circumstance to reject the evidence of the four eye witnesses that the shot at Moolaram was fired from a distance of sixteen to twenty feet We may reiterate here that the distance from the place shown by mark A and Choka near the mark A-s in EX.P. 1, as stated by the investigating officer and as mentioned in the site inspection note EX 8-A of cross-case, is 46 feet 3 inches. The investigating officer further stated that when he inspected the site, he found blood of Moolaram at the place shown by mark A-2 near the Choka in EX. P1. The presence of Moolarams blood at place A-2 in EX. P 1, is of vital significance and affords a clue where he was hit. Every criminal incident generally leaves an indelible mark on the spot which tells the tale. The presence of Moolarams blood at place A-2 near the Choka in site plan EX. P1 has the telling effect and shows that he was hit when he was there at A-2. 14. F.I.R. EX. P 7 was lodged by Lalchands son Harpat (PW 5). He stated that when he reached the house, the entire incident was narrated to him by P.W. 1 Smt. Sajna and it was thereafter that he went to the Police Station and lodged F.I.R. EX P 7. Curiously enough, in F.I.R. EX. P 7, it has been not mentioned that Moola Ram was hit when he was in the Bakhal,. He stated that when he reached the house, the entire incident was narrated to him by P.W. 1 Smt. Sajna and it was thereafter that he went to the Police Station and lodged F.I.R. EX P 7. Curiously enough, in F.I.R. EX. P 7, it has been not mentioned that Moola Ram was hit when he was in the Bakhal,. Had Moolaram been hit in the Bakhal as stated by the eye witnesses, this fact must have been mentioned in F.I.R. EX. P7. The omission of this important fact in F.I.R. EX, P7 shows that the story that Moolaram was hit in the Bakhal by the gun shot, is not true. This story was developed during trial. If Moolaram was hit in the Bakhal by the gun shot, he must have fallen down there. There should have been blood of his wounds spread in the Bakhal. But the investigating officer did not find his blood in the Bakhal, Contrary to it, Moolarams blood was found at A-2 in EX. P 1. These four eye witnesses then do not state as to how Moolaram was carried from their Bakhal by the accused persons. They had seen the entire incident from its commencement to the end. They were, therefore, expected to state as to how Moolarams deadbody was removed from the Bakhal. They are all silent on this essential point. 15. The learned Public Prosecutor made a feeble attempt to impress us that if the shot was fired from place A, it could not have hit Moolaram near the Choka at place A-2 because the distance was 46 feet 3 inches and the shot could not have coveved this long distance. We find no substance in the contention. Singhram was in the active service of the Army. He had the licenced gun. The licence of his gun is EX. P 64. EX. P 64 gives the description of his gun as 12-bore S.B.B.L. The 12-bore gun is a shot gun. On page 154 of Sharmas "Firearms in Criminal Investigation and Trials", approximate ranges of fire arms have been given. It would be useful to re-produce the same:- Approximate ranges of fire-arms Fire-arm Accuracy Range in metres Dangerous Maximum Pistols and Revolvers 75 1000 2000 Service Rifles 1000 2000 over 3000* Shotguns (Buck-Shot ammunition) 57 200 600 * The projectile may be dangerous even at the extreme range. 16. It would be useful to re-produce the same:- Approximate ranges of fire-arms Fire-arm Accuracy Range in metres Dangerous Maximum Pistols and Revolvers 75 1000 2000 Service Rifles 1000 2000 over 3000* Shotguns (Buck-Shot ammunition) 57 200 600 * The projectile may be dangerous even at the extreme range. 16. The shot-gun, thus, has a vita! range upto 75 meters and if the target is hit within this distance, it is fatal. Here the distance between Singhram and Moolaram, as discussed above, was of 46 feet 3 inches. Moolaram was, therefore, in the fatal range of the shot. Thus, the contention of the learned Public Prosecutor has no merit. 17. There is yet another reason to hold that Singhram fired the gun while standing at a place shown by mark A in EX. P 1. The site inspection note EX. P 1-A shows that one fired cartridge case was found at place A. That again clinches that issue and drives home the point that Singhram, while standing at the place A fired the shot at Moolaram, who was then at A-2 near the Choka. . 18. We may, therefore, sum-up that in view of the circumstances, (1) the fired cartridge case was found at place A, (2) blood of Moolaram was found at place A-2 near the Choka, (3) the dispersion of the pellets on Moolarams body was in an area often inches, (4) the accused would have never allowed an opportunity to Singhram to go to the Tibari and bring the gun from there as he was their main target, (5) the omission in F. I. R. EX. P 7 that Moolaram was hit in the Bakhal and (6) the silence of the eye witnesses that in case Moolaram was shot dead in the Bakhal how his deadbody was carried away, it can be safely held that Singhram standing at place A fired the shot at Moolaram when he was at place A-2 near the Choka. The evidence of the four eye witnesses that Moolaram was hit in the Bakhal cannot be accepted at their face value. 19. The accused persons and Moolaram were coming from their fields and were going to their house. When they reached Choka and were to take a turn towards their house, Singhram fired a shot and the shot hit Moolaram. It was ,thus, Singhram who took to violence first and fired the shot. 19. The accused persons and Moolaram were coming from their fields and were going to their house. When they reached Choka and were to take a turn towards their house, Singhram fired a shot and the shot hit Moolaram. It was ,thus, Singhram who took to violence first and fired the shot. He was, therefore, the aggressor. The finding of the learned Sessions Judge that Singhram was the aggressor, is correct and calls for no interference, 20. The next contention of the learned Public Prosecutor is that the accused were more than five in number. Accused Dharamveer had an axe, Moolaram had a Jelly and the remaining accused had lathis. They intruded into the Bakhal and made an assault on the victims. Their common object was to kill Singhram and any other person who came in their way of accomplishing that task. They, thus, constituted an unlawful assembly with the common object of committing the murders. As such, every member of the unlawful assembly was vicariously or constructively liable under section 149, I. P. C. for the murders. It was, on the other hand, contended by Mr. Ganpatram that it was Singhram of the complainant party who first fired the shot and hit Moolaram. Moolaram fell down. Singhram was standing with a gun in his hand in his Bakhal. Apprehending grave and imminent danger to their lives the accused stormed into the Bakhal to disable Singhram from again firing the shots. A right of private defence was, therefore, available to the accused. An assembly using violence in the exercise of the right of private defence cannot be termed and designated as an unlawful. 21. We have held above that Singhram of the complainant party was the aggressor and he had fired the shot at Moolaram when he and the accused were coming from their field on their way to their house. It was only thereafter that the accused stormed into the Bakhal of the complainant party. Since the complainant party was the aggressor, the accused had a right of private defence of person. 22. To constitute an unlawful assembly within the meaning of Section 141, I.P.C., there should be (1) an assembly of five or more persons, (2) they must have a common object and (3) the common object must be one of those five specified in the section. 22. To constitute an unlawful assembly within the meaning of Section 141, I.P.C., there should be (1) an assembly of five or more persons, (2) they must have a common object and (3) the common object must be one of those five specified in the section. Mere assemblage of persons- however large- does not constitute an unlawful assembly unless they have one or more illegal common object(s) as specified in Clause (1) to (5) in section 141, I. P. C. Defending one self against aggression- actual or apprehended- is a lawful act recognized by section 96, 1. P. C. Defending one self is not an unlawful object coming within the mischief of any of the five Clauses of section 141, I.P. C. 23. In Veeriah Vandayan v. Emperor (1) it was held that where a right of private defence does exist but it is exceeded only by one or some members of the assembly, acting in prosecution of their common private aims and not in pursuance of the common object of the assembly, it is only such member or members that will be liable and all the members of the assembly cannot be treated as members of an unlawful assembly. Where the right of private defence was exceeded by individual members of the party, the remainder cannot be held constructively liable for such excesses. In our opinion, this decision lays down the correct proposition of law and we are in respectful agreement with it. 24. The position of law, in our opinion, boils down to this that an assembly of five or more persons resisting an attack upon them does not come within the definition of an unlawful assembly and within the meaning of section 141 I. P. C. If one of them causes more harm than necessary and exceeds the right of private defence, he is individually liable for it The other persons cannot be vicariously fastened with the criminal liability for exceeding the right of private defence by that individual. Since Singhram fired the shot first at the accused persons and killed one of them (Moolaram). it was naturally for them to rush towards Singhram and to over-power him in order to disable him from re-loading his gun. 25. Since Singhram fired the shot first at the accused persons and killed one of them (Moolaram). it was naturally for them to rush towards Singhram and to over-power him in order to disable him from re-loading his gun. 25. The right of private defence of person or property is a valuable right recognized by law in sections 96 to 106, I. P. C, The right of private defence was recognized and accepted even in ancient Hindu Jurisprudence. In Chapter VIII SLOKA 51, Manu ordinand:- ^^ukrrkf;o/ks nks"kks gUrqHkZofr dpu 11 izdkka okMidkka ;k eU;qLr eU;qe`PNfr AA5AA He laid down that by killing an assassin, who attempts to kill, whether in public or private, no crime is committed by the slayer. It is because fury recoils upon fury. 26. In her cross-examination, PW 1 Smt. Sajna categorically admitted that Singhram fired the shot which hit Moolaram. Moolaram fell down. Singhram wanted to re-load his gun. He was having a bag of cartridges with him. It was thereafter that Singhram was assaulted and struck blows. It would be useful to quote her statement in her own words:- ^^,d Qk;j esjs ekek flagjke ds djus ds ckn o ewykjke ds fxjus ds ckn esjs ekek flagjke us cUnwd dks [kksydj fQj yksM djuh pkgh FkhA flagjke ds ikl dkjrwl dk FkSyk FkkA kqHkjke us mls nqckjk cUnwd ugha Hkjus nh Fkh vkSj cUnwd dh uky ij ykfB;ka ekjhA 27. It may be mentioned that Singhram was having a S. B. B. L. gun. Had his gun been a D. B. B. L. gun, probably he would have shot dead some more persons of the accused party. Any way, when Moolaram was shot dead by Singhram, the accused had a right to over-power him and to disable him from using his gun, further. They were not expected to run away, because in case they tried to run away, Singhram would have then killed some more persons of the accused party. 28. It was next argued by the learned Public Prosecutor that the accused persons mercilessly landed blows to Singhram and caused his death. Every member of the accused party had, thus, exceeded the right of private defence. We are unable to accept his contention. Dr. Umaidsingh (PW 13) stated that injury No. 3 found on Singhrams deadbody was alone sufficient to cause death in the ordinary course of nature. This injury Mo. Every member of the accused party had, thus, exceeded the right of private defence. We are unable to accept his contention. Dr. Umaidsingh (PW 13) stated that injury No. 3 found on Singhrams deadbody was alone sufficient to cause death in the ordinary course of nature. This injury Mo. 3 of Singhram has been attributed to accused Shubhram. We will deal with the case of Shubhram when we take-up his appeal. Dr. Umaidsingh further stated that the other injuries of Singhram were collectively sufficient in the ordinary course of nature to cause death. He has however not mentioned in the post-mortem examination report EX. P 66 that the other injuries of Singhram were collectively sufficient in the ordinary course of natuce to cause death. Apart from that, it cannot be said that the accused exceeded their right of private defence by causing more harm than necessary to Singhram. The four eye witnesses have not stated as to which of the accused caused which particular injury to Singhram. In our opinion, none had exceeded the right of private defence of person by causing more harm than necessary. The right of private defence-whether of person or property- is a complete answer to a charge of rioting. 29. It was also contended by the learned Public Prosecutor that accused Shubh Ram struck a blow of his lathi on the head of Lalchand. It was thereafter that accused Dharamveer struck a blow of his axe on the head of Lalchand. Accused Shubhram should have been, therefore, convicted under section 302, IPC. as no right of private defence was available to him against Lalchand. We are again unable to accept the contention. The post-mortem examination report of Lalchand is EX. P 65. Dr. Umaidsingh (PW 13) stated that only one injury (incised wound) was found on his head caused by some sharp weapon. No other injury caused by any blunt weapon was found on Lalchands head. The four eye witnesses Smt. Sajna, Smt. Krishna, Smt. Nimmo and Mahendra; finding themselves in difficulty and in inconvenient position in view of the postmortem examination report EX. P 65, stated that the blow inflicted with axe by accused Dharamveer was hit on that very part of Lal chands head where Shubhram (accused) had landed him the blow with his lathi. It is rediculous on the part of these witnesses to have stated so. P 65, stated that the blow inflicted with axe by accused Dharamveer was hit on that very part of Lal chands head where Shubhram (accused) had landed him the blow with his lathi. It is rediculous on the part of these witnesses to have stated so. It is inconceiveable that second injury would exactly sit on the first injury and cover it so as to make the first injury not perceptible. The eye witnesses introducted this site of the injuries of Lal Chand in order to over-come the difficulty created by the medical evidence. The learned Sessions Judge rightly held that Lalchand was struck only one blow and not two blows. The author of the blow is Dharamveer. The accused Shubhram inflicted no injury to Lalchand. The evidence of four eye witnesses that Shubhram struck a blow of lathi on the head of Lalchand is contaminated and ex-facie untrue. Shubhram, therefore, cannot be held guilty for the killing of Lalchand. 30. No other contention was raised by the learned Public Prosecutor in challenging the acquittals. The State appeal against acquittal must, therefore, fail. 31. We shall next turn to the appeals of accused Shubhram and Dharamveer, which we propose to take separately one by one. Appeal of accused Subharam 32. In challenging his conviction under section 304 Part I, I.P.C. Mr. Ganpat Ram, with his usual characteristic style, contended that by no stretch of imagination it can be said that accused Shubhram had exceeded the right of private defence and caused more harm than necessary. It was argued that he alongwith other accused persons stormed into the Bakhal to over-power Singhram who was holding a gun in his hand and to disable his weapon. It was in this process of disabling Singhram that Shubhram and other accused persons struck blows to him. Singhram had already killed Moolaram (one of the members of the accused party) when they were retuning from their fields to their house. Singhram was holding a gun in his hand. There was, thus, a grave and imminent danger to the life of every member of the accused party. In such a situation, it cannot be said that any member of the accused party would weigh the right of private defence in golden scales. As such, accused Shubhram cannot be said to have caused more harm than necessary. The contention of Mr. Ganpatram is not without force. In such a situation, it cannot be said that any member of the accused party would weigh the right of private defence in golden scales. As such, accused Shubhram cannot be said to have caused more harm than necessary. The contention of Mr. Ganpatram is not without force. In Yogendra Morarjiv. State of Gujarat (2) the general principles relating to right of private defence, as embodied in the Penal Code, were dealt with at length. It was held:- "Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. In other words, the injury which is inflicted by the person exercising the right should be comm-ensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep-within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack". It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100. For our purpose, only the first two clauses of Section 100 are relevant. The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reason-able apprehension of death or grievous hurt to the person exercising the right, In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened." 33. In the instant case, Singhram of the complainant party was the first to use the fire-arm. In the instant case, Singhram of the complainant party was the first to use the fire-arm. He fired the shot and killed Moolaram, who, alongwitb the other accused persons, was coming from the field. Moolaram was a close relative of the other accused persons. When one is attacked and shot is fired at him and his kith and kin and the assailant is standing with a gun in his hand with an attempt to re-load it, he naturally gets confused and excited. His blood is then hot. In that moment of excitement and finding the grave,. imminent and impending danger in sight, it is difficult for him to judge as to what amount of harm he should inflict on the assailant in order to disable him. He is not expected to apply the mind of a cool bystander and to containor restrain himself. It is difficult to conceive in the given situation of the present case that accused Shubhram should have inflicted the blow not on the head of Singhram but on some other part of his body. Accused Shubhram cannot be expected to weigh the right of private defence in golden scales at that time as to judge what harm would be necessary in order to disable the assailant Singhram. Accused Shubhram had a complete right of private defence to cause any harm including death of Singhram because S*nghram had already shot dead Moolaram and was heaving a gun and a bag of cartridges with him. We cannot imagine a graver and more imminent danger to the lives of the accused persons than that which was before them. The Learned Sessions Judge was in a clear error in concluding that accused Shubhram had exceeded the right of private defence in inflicting injuries to Singhram. The finding of the Court below that accused Shubhram exceeded the right of private defence is only a guess work of imagination. The conviction of accused Shubhram under section 304 Part I, I.P.C. is clearly erroneous and unsustainable. He must be acquitted. His conviction under section 323, I.P.C, however, calls for no interference because Singhram alone was the aggressor. No other member of his family used violence against him or any other accused. Appeal of accused Dharamveer:- 34. Accused Dharamveer was convicted under section 302, I. P. C. for committing the murder of Lalchand. He must be acquitted. His conviction under section 323, I.P.C, however, calls for no interference because Singhram alone was the aggressor. No other member of his family used violence against him or any other accused. Appeal of accused Dharamveer:- 34. Accused Dharamveer was convicted under section 302, I. P. C. for committing the murder of Lalchand. As per medical evidence, only one injury was caused on the head of Lalchand, resulting in his death. The injury was caused by a sharp-edged weapon. The four eye witnesses stated that the injury on the head of Lalchand was caused with an axe by accused Dharamveer. The learned Sessions Judge accepted the evidence of these witnesses against accused Dharamveer and held him guilty under section 302, I. P. C. 35. In assailing his conviction, Mr. Ganpatram raised two contentions, namely (1) the evidence of the four eye witnesses that accused Dharamveer inflicted the blow with an axe on the head of Lalchand, is erroneous and (2) even if it is held that he was the author of the head injury, the offence made out is not that of culpable homicide amounting to murder. 36. Developing and elaborating his first contention, it was argued by Mr. Ganpatram that in the F. I. R. EX. P 7 it has not been mentioned that accused Dharamveer had an axe. It has also not been mentioned in it that Lalchand was struck blow by him with an axe. It was only during trial that the four eye witne-sses, for the first time, developed the story that the head injury to Lalchand was inflicted by accused Dharamveer. 37. We have examined the contention and find no substance in it. F.I.R. EX. P 7 was lodged by PW 5 Harpat, who was not an ocular witness of the inci-dent. Though the incident was narrated to him by PW 1 Smt. Sajna, he was not expected to remember all the details of the incident. However, in F. J. R. EX. P 7, it has been mentioned that the accused persons were armed with axe and lathis, though it has not been mentioned that axe was with accused Dharamveer. However, this omission is not material and the evidence of the four eye witnesses cannot be thrown over-board only on account of this omission. The four eye witnesses were examined during investigation in the afternoon of the day of the incident. However, this omission is not material and the evidence of the four eye witnesses cannot be thrown over-board only on account of this omission. The four eye witnesses were examined during investigation in the afternoon of the day of the incident. They have clearly stated in their statements recorded under section 161, Cr. P. C. during investigation that it was accused Dharamveer who had inflicted an injury on the head of Lalchand with his axe. We are, therefore, unable to accept the contention of Mr. Ganpatram that it was for the first time during trial that the four eye witnesses came with the story of accused Dharamveers inflicting a blow of axe on Lalchands head. 38. Mr. Ganpatram also invited our attention to the cross-examination of PW 13 Dr. Umaidsingh, wherein he admitted that in case the hook of the barrel of a gun is hit on the head and there is a movement of the head, the resulting injury may appear as incised wound. It was argued that the head injury to Lalchand was inflicted by one of the accused with the barrel of the broken gun of Singh-ram and it cannot be ascertained as to who was that out of them. It was argned that in view of the aforesaid medical evidence, it cannot be positively stated that the injury on the head of Lalchand was inflicted with an axe. We are again unable to agree with the learned counsel. PW 13 Dr. Umaidsingh has only pointed out the possibility. The possibility is not sufficient to throw away over-board the direct evidence of the four ocular witnesses. The four eye witnesses have categorically stated that it was accused Dharamveer who had inflicted an injury on the head of Lalchand with his axe. We find no good and cogent reasons to disbelieve these eye witnesses on this material point. Dr. Umaidsingh (PW 13) has admitted that the head injury found on Lalchands head was caused by the sharp-edged weapon like axe. The possibility pointed-out above may be three, but the fact remains that the injury found on Lalchands head was caused by the axe. According to the eye witnesses, only accused Dharamveer had an axe and no other member of the accused party had any axe. The possibility pointed-out above may be three, but the fact remains that the injury found on Lalchands head was caused by the axe. According to the eye witnesses, only accused Dharamveer had an axe and no other member of the accused party had any axe. It can be, therefore, safely held that it was accused Dharamveer and none else who had inflicted an injury on the head of Lalchand with the axe. The finding of the Court below, holding accused Dharamveer as the author of the head injury of Lalchand, is perfectly correct and requires no alteration or modification. 39. Coming to the second contention, it was vehemently contended by Mr. Ganpatram that though no right of private defence was available to accused Dharamveer against Lalchand, the blow was struck to him (Lalchand) when he came to intervene and rescue his son Singhram. Accused Dharamveer never intended to cause the death of Lal chand. He never intended to strike any blow on his head. It was only by accident that the blow happened to fall on his head. In view of this admitted position, the offence made out does not fall within the ambit of section 302, I. P. C. Reliance in support of the contention Was placed on Hardeosingh v. State of Punjab (3). 40. In Hardeosinghs case, Kewalsingh was the target of the accused, whom they wanted to kill. In order to rescue him, his mother Smt. Tej Kaur came and lay herself on him. Accused Hardeosingh inflicted a Kripan blow on the head of Smt. Tej Kaur, who fell down and passed away. The injury caused to her was found, as per medical evidence, sufficient in the ordinary course of nature to cause death. Accused Hardeosingh was convicted under section 302, I. P. C. Their Lordships of the Supreme Court held that in order to bring Clause 3rdly of Section 300, I. P. C. into play, it must be seen whether the causing of the fatal injury was accidental or un-intentional or whether some other kind of injury was intended to be inflicted by the assailant. Their Lordships further held that the main target of the accused party was Kewal Singh. His mother came suddenly to rescue him when he was being assaulted It could not be ascertained nor was it clear from the evidence that Hardeosingh(accused) aimed his Kripan blow at the head of Tej Kaur. Their Lordships further held that the main target of the accused party was Kewal Singh. His mother came suddenly to rescue him when he was being assaulted It could not be ascertained nor was it clear from the evidence that Hardeosingh(accused) aimed his Kripan blow at the head of Tej Kaur. It was further observed that it may well be that Hardeosingh wanted to give a Kripan blow to Tej Kaur as she lay herself upon her son, but not necessarily on her head. 41. Exactly same is the position in the instant case in our hand. According to all the four eye witnesses, the main target of the accused was Singhram. When Singhram was assaulted, his father Lalchand came to rescue and save him. It was in that process that he was hit a blow on his heed with an axe by accused Dharam-veer. It is not clear from the evidence that accused Dharamveer wanted to give the axe-blow on the head of Lalchand. It may well be that accused Dharamveer wanted to give an axe-blow to Lalchand because he tried to intervene, but not necessarily on his head. Lalchand was not the target of accused Dharamveer. In view of these facts and circumstances, it cannot be positively said that the head injury to Lalchand was intentionally inflicted by accused Dharamveer. The intention to cause the particular injury must be there in order to press Clause 3rdly into service. Since death has been caused, knowledge atleast can be attributed to accused Dharamveer. When Dharamveer struck Lalchand with an axe, he must have known that the blow could land on any vital part of his body and that it was likely to result in his death. Accused Dharamveer is, therefore, guilty under the II part of Section 304, I. P. C. His conviction under section 302, I.P.C. is not sound. 42. In the result, (1) the appeal of the State against acquittals is dismissed; (2) the appeal of accused Shubhram is partly allowed. His conviction and sentence under section 304 Part I, I. P. C. are set-aside and he is acquitted of the said offence. His conviction and sentence under section 323, I.P.C. are maintained. He had already remained in jail for more than eight months during investigation, inquiry, trial and thereafter. His conviction and sentence under section 304 Part I, I. P. C. are set-aside and he is acquitted of the said offence. His conviction and sentence under section 323, I.P.C. are maintained. He had already remained in jail for more than eight months during investigation, inquiry, trial and thereafter. He has, thus, served out the full term of sentence under section 323, I. P. C. He need not surrender. His bail bonds shall stand concelled; and (3) the appeal of accused Dharamveer is partly allowed. His conviction and sentence under section 302, I. P. C. are set-aside. He is, however, convicted under sec. 304 Part II, I.P.C. and is sentenced to seven years rigorous imprisonment The period of detention undergone by him during investigation, inquiry and trial shall be set-of against the term of imprisonment imposed on him. 43. The appeals shall stand accordingly disposed of.