JUDGMENT 1. - This appeal is directed against the judjement dated 29-9-78 Passed by the learned Sessions Judge, Pratapgarh, by which appellant Rameshwarlal was convicted for the offence under Section 304, Part-II of the Indian Penal Code and sentenced to one year's rigorous imprisonment and a fine of Rs. 300/-, in default, to undergo one month's rigorous imprisonment. 2. Briefly stated, the facts of the case are as under: The appellant was posted as Forest Guard at Sonva forest out-post on 29-10-1977. When he had gone for strolling in the forest, he found deceased Nana Chand (PW 2), Bhera PW 3) and Dalla (PW 4) cutting wood from the jungle. He abused them and fired shot. Nana sustained injury on the back-side of loin. Nana's companions ran away, In the morning, the appellant took the deceased on his back to the village. He gave Rs. 140/- for his treatment. The deceased was taken to the Hospital, Chittorgarh on 30th November, 1977. Dr. Ravi Bhargava (PW 1), Medical Jurist, examined him and found four injuries. The medicial report is Ex. Pl. The injured was sent to the Surgical word. Police was informed. Nana succumbed to the injuries on 4-12-1977. Dr. G.L. Dad, Medical Jurist, General Hospital, Udaipur conducted the post mortem examination of the dead body and prepared the report Ex. P. 12. Ram Singh S.H.O. of Police State, Chittorgarh during investigation of the case, recovered one axe from the site and one gun produced by witness Jodha (PW 11), said to have been given to him by the accused. The S.H.O. upon completion of necessary investigation filed the charge sheet in the Court of Munsif and Judicial Magistrate, Chittorgarh. The learned Magistrate committed case to the Court of Sessions, Pratapgarh. The learned Sessions Judge charge-sheeted the appellant for the offence under Section 302 Indian Penal Code and Section 27 of the Arms Act. The charges were explained to the appellant and his plea was recorded. He denied the charges and claimed to be tried. Prosecution examined 16 witnesses in all. The appellant, in his statement under Section 313 Criminal Procedure Code, denied the firing of the shot and causing injury to Nana. He stated that the witnesses were committing theft of forest wood. He also stated that on 29-11-1977 he had gone for patrolling in village Senya, where certain persons were cutting wood. When he called them, they attacked him. The appellant, in his statement under Section 313 Criminal Procedure Code, denied the firing of the shot and causing injury to Nana. He stated that the witnesses were committing theft of forest wood. He also stated that on 29-11-1977 he had gone for patrolling in village Senya, where certain persons were cutting wood. When he called them, they attacked him. They had axes with them and snatched his gun. One defence witness was examined who stated that on 29-11-1977 he had seen two hunters going to the forest and on the next morning he met the appellant at the gate, he was informed by him that in the night certain Bhils had tried to attack him and snatched his gun and went away from there. The learned Sessions Judge placed reliance on the prosecution evidence. He, however, was of the opinion that it was not a case of murder and, therefore, convicted the appellant of the offence under Section 304(2), Part-II, Indian Penal Code and passed the sentence, as stated earlier. 3. I have heard D.S. Champawat, learned Counsel for the appellant and Mr. G.K. Bhandari, learned Public Prosecutor. 4. The counsel for the appellant strenously contended that there is no convincing evidence to establish the guilt of the appellant. The three eye witnesses Dola, Bhera and Chanda were habitual thieves and used to cut forest wood and were therefore annoyed with the appellant and have therefore falsely stated against him. According to the learned Counsel for the appellant, the very fact of the gun being produced by Jodha shows that the appellant was not having the gun with him. 5. Mr. Bhandari referred to the eye witnesses and submitted that their statements duly establish that it was the appellant who had fired the gun. 6. Upon perusal of the statement of the aforesaid three eye witnesses, it is evident that Nana (deceased) had sustained gun shot injuries. Dr. Ravi Bhargava (P.W. 1) and Girdharilal (P.W. 13) have duly substantiated the prosecution case that the cause of death of Nana was the gun shot injuries sustained by him. Jodha has stated that Rameshwarlal had brought money by giving his gun to Lalu and he had produced the gun before the police thereafter. The appellant has also not denied the ownership of the gun. Jodha has stated that Rameshwarlal had brought money by giving his gun to Lalu and he had produced the gun before the police thereafter. The appellant has also not denied the ownership of the gun. Gokal (PW 7) and Ramlal (PW 8) have stated about the extra judicial confession of Rameshwarlal made before them that the deceased had sustained injuries at his hands. There is also dying declaration of Nana when he was brought to the village about Rameshwarlal firing the short at him. In view of the circumstances the evidence discussed above, I do not find any force in the arguments of the learned Counsel for the appellant that it is not established that the assailant was Rameshwarlal. 7. The learned Counsel for the appellant in the alternative argued that if the prosecution case about the appellant being the assailant is taken to be proved, still the case of the appellant falls within the ambit of exercise of right of private defence. The argument is that the deceased was a habitual thief of forest wood and the appellant was duty bound to check up such thefts. That, in the face of circumstance when four persons armed with axes were there, the appellant could not have saved his life if he would not have fired the shot. 8. The learned Public Prosecutor submitted that the plea of the appellant that the gun was snatched from him is not believable as there was no injury on his person and as such there was no apprehension to his life. 9. True it is that the right of private defence to person is not pleaded. However, if the circumstances so establish then without such a plea, the Court can give him benefit. In the present case apprehension to life to the appellant could have been there because for persons with axes were cutting the wood. However, the fact of the fatal injury of Nana being in the back portion of his body shows that Nana was not facing the appellant. The gun according to the eye witness Bhera was fired from a distance of one Redi i.e. 5 hands, which approximately comes to 15 feet. There is not a single injury on the person of the appellant to substantiate his version that he was attacked. 10. The gun according to the eye witness Bhera was fired from a distance of one Redi i.e. 5 hands, which approximately comes to 15 feet. There is not a single injury on the person of the appellant to substantiate his version that he was attacked. 10. There is substance in the submission that the appellant in discharging his duty was justified in checking up the theft of cutting the forest wood. However, that would not give him right of taking the life of a person. He could have fired in the air to threaten these persons. In such circumstances it cannot be said to be a case in which the appellant can claim right of private defence. The learned Sessions Judge has taken into consideration, the conduct of the appellant in taking injured Nana to the village next morning and giving Rs. 140/- for his treatment. For that reason a lenient view has rightly been taken in the matter. 11. The case relate to the year 1977. The appellant has already remained in custody for a period of about 101/2 months. In these circumstances it would not be proper to send him behind the bars again. The appeal is therefore, partly allowed. The sentence of one year's rigorous imprisonment awarded to the appellant is reduced to the period he had remained in custody so far. The sentence of fine of Rs. 300/-, in default, to undergo one month's rigorous imprisonment, is maintained. 12. At the request of the learned Counsel for the appellant he is granted two months' time to deposit the amount of fine in the trial Court.Appeal partly allowed. *******