U. K. VERMA, J. ( 1 ) THIS is an appeal against the judgment of Sri. R. N. Sharma, Sessions Judge, Nainital convicting Mukul Chand Mandal under Section 304 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for seven years. ( 2 ) THE prosecution case as contained in the First Information Report Ex. Ka-5 is that the appellant Mukul Chand Mandal and the co-accused Han Pad Mandal who was acquitted by the Sessions Judge checked Baron Dungi at 8. 30 a. m. on 13/10/1978 from interfering with the demarcation stone and the piled earth which, according to them, indicated the extent of Barons field. This annoyed Baron Dungi and a Marpeet started between them. Charu Chandra Kaviraj, Narain Tapali, Praphull Tapali and Sunil Kaviraj intervened to pacify them. Mukul Chand Mandal appellant, however, paid no heed to them. He brought his licensed gun from his house and shot at Barun Dungi who was injured in his left thigh. The younger brother of Barun Dungi named Sheo Pad snatched the gun from Mukul Chand The father of Baron named Jogesh Dungi went with it to the police station Rudrapur and lodged this report Ex. Ka-5. ( 3 ) THE constable Moharrir Noniram prepared the recovery memo Ex. Ka-3 in respect of the S. B. B. L. Gun No 28161 which had been deposited by Jogesh Dungi. ( 4 ) THE injuries of Baron Dungi were examined by Dr. N. M. Agarwal P. W. 7 at 10. 30 a. m. on 13/10/ 1978. He found the following injuries on his person and noted their condition as indicated below: 1. Forty gun-shot wounds varying in size from 1/4 cm. x 1/4 cm. x muscle deep to 1 cm. x 1 cm. x muscle deep on lateral and front aspect of left thigh upper part. 2. Abrasion 2 cm. x 1 cm. on left thigh lateral aspect middle part. 3. Ten gun-shot wounds 1/4 cm. x 1/4 cm x muscle deep to 3/4 cm. x 1/4 cm. x muscle deep on front of left side from scrotem and root of penis. 4. Lacerated wound 2 cm. x 1/2 cm. x muscle deep on front of rt. side abdomen lower part. ( 5 ) LACERATED wound 11/2 cm. x 1/2 cm. x muscle deep on front of rt. Frontal middle part. x 1/4 cm. x muscle deep on front of left side from scrotem and root of penis. 4. Lacerated wound 2 cm. x 1/2 cm. x muscle deep on front of rt. side abdomen lower part. ( 5 ) LACERATED wound 11/2 cm. x 1/2 cm. x muscle deep on front of rt. Frontal middle part. ( 6 ) GUNSHOT wound 1/6 cm x 1/4 cm. x muscle deep on palmer aspect of rt. hand 6 cm. above rt. little finger. 5. Baron Dungi succumbed to his injuries and this post-mortem report is Ex. Ka-lo. The postmortem examinations were conducted by Dr. B. K. Endley who found the following ante-mortem injuries on the person of Baron Dungi: 1. Multiple gun-shot wounds of entry in an area 24 cm. x 20 cm. on the front and outer side of the left thigh and left side hip join. No scorching present. Average size 1 cm. x 1 cm. and 0. 4 cm. x 0. 4 cm. 2. Three incised wounds in an area 6 cm. x 5 cm. 0. 8 cm. x 0. 6 cm. on the inner side of left thigh 1/2 cm. apart 4 cm. adjoining left scrotem. 3. Two incised wounds 1 cm. x 0. 4 cm. x muscle deep on the front and right thigh upper part 3 cm. below right side hip joint. 6. Dr. Endley had recovered three shots from the bladder which he found to be punctured. The lower part of the large intestine had also been found perforated. ( 7 ) THE prosecution had examined the informant Jogesh Dungi P. W. 3, Sheo Pad P. W. 2 Charu Chandra Kaviraj P. W. 4, Sunil Kaviraj P. W. 5 and Golakh P. W. 6 as the witnesses of the occurrence. The prosecution witness Sheo Pad gave out that he, Anil and the deceased Baron and his father Jogesh Dungi had been scraping the grass. Mukul Chand Mandai told them that the place where they were scraping the gross was his. Sheo Pad asked him to divide the land half and half but he did not agree. He threatened to take the land beyond the straight line and clarified the position at the spot. The mother of Mukul Chand Mandai arrived and took Mukults side. In the scuffle that followed, she got injured Mukul Chand thereupon brought his gun and Han Pad his Ballam. He threatened to take the land beyond the straight line and clarified the position at the spot. The mother of Mukul Chand Mandai arrived and took Mukults side. In the scuffle that followed, she got injured Mukul Chand thereupon brought his gun and Han Pad his Ballam. Mukul Chand fired with his gun at Barun Dungi and he fell down. Sheo Pad seized the gun from Mukul Chand and went along with his father Jogesh, Anil, Niranjan and others and lodged the report. Baron Dungi was taken from the Government Nehru Hospital, Rudrapur to Barily for treatment where he had died It was suggested in the cross-examination to this witness that the deceased and also he and his father and Anil were trying to include the passage in their field and when they were checked, they hit hard on the head of Smt. Libbo Dasi, the mother of Mukul Chand and as a result thereof blood started coming out from her lacerated wound It was further pointed to him that Jogesh Dungi was armed with Lathi Baron with Ballam he with Gandasa and Anil with Phawara and that they had surrounded Smt. Libbe Dasi and Mukul Chand fired at them only when they all with their weapons attacked him and prevented him from rescuing his mother. ( 8 ) JOGESH Dungi corroborated the statement of Sheo Pad. In the cross-examination, he was questioned as to why he had concealed the injuries caused to the mother of Mukul Chand He gave out that he did not mention about the same as his son Baron Dungi had been seriously injured The same suggestions as were given to Sheo Pad, were also given to him. ( 9 ) THE witness Charu Chand Kaviraj denied to have gone to the place of occurrence at the time of the incident. He was declared hostile and cross-examined. He disowned his alleged statement under Section 161 of the Criminal Procedure Code. ( 10 ) SUNIL Kaviraj P. W. 6 deposed that at about 8. 30 a. m. when Jogesh, Anil, Barun and Sheo Pad were scraping the grass on the Mend of their field Mukul arrived and told them that his passage extended upto the old boundary of their field and they should not interfere with it and allow it to remain straight. 30 a. m. when Jogesh, Anil, Barun and Sheo Pad were scraping the grass on the Mend of their field Mukul arrived and told them that his passage extended upto the old boundary of their field and they should not interfere with it and allow it to remain straight. The assertion of Mukul was not liked by the deceased and his family members and there started a Marpeet between Mukul on the one hand and the deceased and his relations on the other hand. It was at this time that persons of the village and the mother of Mukul and his brother Han Pad who was a co-accused arrived. The mother of Mukul was injured but he could not see as to how she sustained the injury. Mukul thereafter went to his house. He brought his gun and from 15 to 16 steps fired at Baron who on sustaining the fire-arm injuries on his thigh, fell down. Sheo Pad rushed and seized the gun from Mukul. He and others along with the gun went away. In the cross-examination he gave out that at first Mukul was, bare handed. Jogesh, Sheo Pad and the two others had no arm in their hands. He denied that the mother of Mukul had fallen down. ( 11 ) GOLAKH P. W. 6 pointed that the quarrel started when Mukul asked Baron Dungi, Jogesh, Anil and Sheo Pad not to dig grass. He too expressed inability to explain as to how the mother of Mukul sustained injury. Mukul was stated to have brought his gun after his mother had been injured and fired at Baron from 10 to 12 steps. Mukul did not fire the second shot. In lite cross examination he deposed that he first saw the quarrel In between Mukul and the others. He also did not deny that he witnessed blood coming out from the wound of Smt. Libbo Dasi, the mother of Mukul but pointed that it was not much. The people of the village who had gathered fled away on seeing Mukul bringing his gun. He denied that the deceased and his brother and father had any weapon in their hands. ( 12 ) THE prosecution witness Khagendra Nath who was examined to prove the First Information Report Ex. Ka-1 gave out in the cross-examination that he too was present at the time of the incident. He denied that the deceased and his brother and father had any weapon in their hands. ( 12 ) THE prosecution witness Khagendra Nath who was examined to prove the First Information Report Ex. Ka-1 gave out in the cross-examination that he too was present at the time of the incident. Jogesh, Baron, Sheo Pad and Anil started digging the passage. Mukul objected whereupon the quarrel began. Smt. Libbo Dasi sustained severe injury. Baron alone was carrying a Phawara whereas three others of his side were empty handed. Smt. Libbo Dasi fell down. At that time Mukul had nothing in his hand. Sheo Pad snatched the gun at once after Mukul had fired. Charu Chandra Kaviraj P. W. 4 who had been declared hostile was not present at the time when Mukul fired. Baron Dungi had fallen. The gun of Mukul had been taken to the police station. He admitted the suggestion that Mukul fired when he was surrounded by Baron, Sheo Pad Anil and Jogesh. ( 13 ) THE accused Mukul Chand in his statement pointed that the quarrel started when the passage to his house was dug. Anil struck his mother from the other side of Phawaras. She fell unconscious. Baron, Sheo Pad, Jogesh and Anil surrounded her and started shouting Maro Maro. He brought the gun to save his mother who had been surrounded. The fire from his gun injured Baron in his thigh. Han Pad was not present. The witnesses deposed against him on account of enmity. ( 14 ) THE appellant had not examined any witness in defence. The injuries sustained by Smt. Libbo Dasi and Mukul had been proved by Dr. N. M. Agarwal P. W. 7. The injury report of Smt. Libbo Dasi Ex. Kha. 1 shows that she had sustained the following injury: 1. Contused wound 9 cm. x 11/2 cm. bone deep on the left side scalp 10 cm. above left ear. The injury was pointed to have been caused by blunt weapon and its duration was noted to be fresh at the time of examination which had been done at 12. 30 p. m. on 13-10-1978. ( 15 ) THE injury report of Mukul Chand shows him to have sustained the following wounds: 1. Abrasion 21/2 cm. x cm on the front of right thigh middle part. 2. Abrasion 3 cm. 30 p. m. on 13-10-1978. ( 15 ) THE injury report of Mukul Chand shows him to have sustained the following wounds: 1. Abrasion 21/2 cm. x cm on the front of right thigh middle part. 2. Abrasion 3 cm. x 1/2 cm on the front of left thigh middle part. 3. Abrasion 3 cm. x cm. on front of left side face near the middle of nose. ( 16 ) THE learned Counsel for the appellant argued that the Sessions Judge did not appreciate that the appellant had merely exercised his right of private defence in respect of his passage which was being encroached and in respect of the person of his mother and his own when he had been surrounded by Barun Dungi, Sheo Pad, Jogesh and Anil who were all armed with weapons. The appellant to prove that they were carrying weapons at the time of the incident, did not examine any witness. I have already pointed out above that the prosecution witnesses denied that these persons were carrying the weapons as suggested by the appellant. If they had been doing so and had intended to cause grievous injuries either to the appellant or to his mother, they could do so before the appellant brought his gun. The appellant himself had stated that Anil had caused injury to his mother from the other side of Phawara. No doubt the injury to Smt. Libbo Dasi had been caused on the head and was by no means minor being 9 cm. long and bone deep with blood oozing out from it but without much thought it could be inferred that if the informants party had intended to cause grievous injury to her, they would not have inflicted just one Tlathi blow when they were easily in a position to inflict many more. The conduct of Anil in not using the TPhawara (spade) in a normal manner but using it in such a manner that no one was struck by its heavy sharp metal side clearly establishes that there was no intention of anyone of the four to cause grievous injuries much less the death of the appellants mother or the appellant himself. The conduct of Anil in not using the TPhawara (spade) in a normal manner but using it in such a manner that no one was struck by its heavy sharp metal side clearly establishes that there was no intention of anyone of the four to cause grievous injuries much less the death of the appellants mother or the appellant himself. The learned Counsel for the States justifiably argued that the deceased Barun and Sheo Pad would not be presumed to have been armed with Ballam or Gandasa for had they been carrying those weapons, they would have atleast used them when the appellant had fired on Barun. The fact that the appellant was well within the reach of Sheo Pad and Jogesh, is not to be doubted for Sheo Pad on the admission of the appellant himself, had seized the gun from him. If he could seize the gun, he could as well assault him and his conduct in not doing so only indicates that he was empty handed as was given out by the prosecution witnesses. ( 17 ) SUNIL Kaviraj P. W. 5 and Golakh P. W. 6 deposed that they could not say how Smt. Libbo Dasi sustained injury on her head Jogesh stated that he did not allege in the F. I. R. about it as he had got stunned on account of the death of Barun. The Marpeet initially had started between the appellant on the one side and the deceased and the three on the other. The mother of the appellant had intervened in the midst of the quarrel. It is quite probable that she got hit by the blow which was aimed at the appellant and for this reason Sunil Kaviraj P. W. 5 and Golakh P. W. 6 could not understand as to how it was caused The omission on the part of the prosecution to allege about the injury of Smt. Libbo Dasi in the F. I. R. and failure of some of the prosecution witnesses to state as to how they were inflicted by themselves were not sufficient circumstances for jumping at the conclusion that the prosecution version was unworthy and liable to be rejected. ( 18 ) IN the instant case, it is not shrouded in mystery as to how the quarrel started. ( 18 ) IN the instant case, it is not shrouded in mystery as to how the quarrel started. The prosecution and the appellant both have the common case on this point that the Marpeet began when Mukul objected to the digging of the land which he asserted to be his passage. Smt. Libbo Dasi, it is also admitted between the parties, had intervened when the quarrel had begun. On the question of the injury of Smt. Libbo Dasi, Khagendra Nath P. W. 1 pointed that after sustaining considerable injury on her head she had fallen on the ground. The prosecution witnesses Jogesh and Charu Chand Kaviraj too stated that Smt. Libbo Dasi had fallen on the ground as a result of the injury. The witnesses Sheo Pad and Golakh pointed that Smt. Libbo Dasi had not fallen. I am not inclined to believe that Smt. Libbo Dasi inspite of the injury on her head would have remained standing as given out by Sheo Pad and Golakh and there was no cause for Mukul to get excited and gravely provoked more so when Baron Dungi and three others were encroaching upon the passage beyond the demarcating stone and the heaped earth which indicated the limit of their land. Had it not been so, Sheo Pad P. W. 2 would not have told Mukul to share it half and half. Khagendra Nath P. W. 1 had clearly stated that Mukul had quarrelled with the deceased and the three others when they started shortening the passage which led to Mukults house at a distance of ten to twelve steps. Golakh too stated that Mukul asked the four not to dig the land. If they had merely been scraping the grass there would not have been digging. ( 19 ) IT, therefore, is to be seen whether the appellant could be said to have justifiably fired when both he and his mother on good grounds tried to resist Baron Dungi deceased and three others from digging their passage which connected the Pukka road between Jafarpur and Dineshpur from their house but had been assaulted The learned Sessions Judge in his judgment has reproduced the Sections 96, 97, 99 and 100 of the Indian Penal Code and referred to the decision in Biran Singh v. State of Bihar for holding that it was not justified. The Sections 96 and 100 of the Indian Penal Code read together go to show that a person may have the right of private defence but he can in exercise of it voluntarily cause death or any other harm to the appellant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated: Firstly : Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault ; Secondly : Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly : An assault with the intention of committing rape; Fourthly : An assault with the intention of gratifying unnatural lust; Fifthly : An assault with the intention of kidnapping or abducting; Sixthly : An assault with the intention of wrongfully confining a person , under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. ( 20 ) I have already discussed above that the facts and circumstances of the case do not show that Baron Dungi and the three others could not be presume to have intended to cause the death or grievous hurt either to Smt. Libbo Dasi or to the appellant. The remaining conditions 3rd to 6th of the Section 100 were not attracted in this case. The appellant thus could not be said to be justified in causing the death of Baron Dungi. ( 21 ) IT will next need to be examined whether the firing by the appellant was to ward off a danger imminent, present and real or its character was punitive or retributive. The circumstances of this case are similar to the case of Biran Singh. In that case also the accused bad gone to his house, fetched a sword and assaulted the deceased whereupon it was inferred that the acts of the accused Biran bore the stamp of a design and were not within the strict bound of the right of private defence. The Supreme Court has. In that case also the accused bad gone to his house, fetched a sword and assaulted the deceased whereupon it was inferred that the acts of the accused Biran bore the stamp of a design and were not within the strict bound of the right of private defence. The Supreme Court has. given the guideline that in order to find whether a right of private defence is available to an accused, the entire incident has to be examined with care and viewed in its proper setting and such an approach that the severity of the injuries is often a matter of chance without carefully examining the entire setting is not proper. The plea of the learned Counsel for the appellant in the prespective of the facts of this case that a person exercising the right of private defence in good faith, is not expected to weigh with golden scale, what maxium amount of force is necessary to keep him within the proper limit, has no application. The appellant thus, as the facts are, has rightly been convicted under Section 304 of the Indian Penal Code. The Sessions Judge, however, has not clarified whether he had convicted the appellant under the first part or the second part of Section 304 of the Indian Penal Code. He merely has mentioned this circumstance that the appellant in that heat of passion upon a sudden quarrel fired the thigh of Baron. The appellant as also appears to be the view of the Sessions Judge could not be presumed to have intended to cause the death of Baron Dungi. The quarrel too was not in respect of such a matter which could have provoked Mukul Chand Mandai to cause death or such injury as was likely to cause death. On the other hand I am satisfied that he had fired at Baron Dungi when there was a temporary loss of his self control and there was not sufficient time for his passion to cool down and for reason to get the better of him. He also could only be said to have fired with the knowledge that he was likely to cause his death, but without the intention to cause his death or to cause such bodily. injuries as were likely to cause death. The offence caused by the appellant is covered by second part of Section 304 of the Indian Penal Code. He also could only be said to have fired with the knowledge that he was likely to cause his death, but without the intention to cause his death or to cause such bodily. injuries as were likely to cause death. The offence caused by the appellant is covered by second part of Section 304 of the Indian Penal Code. ( 22 ) THE appellant bas been sentenced by the Sessions Judge to seven years a Rigorous Imprisonment Taking into consideration all the circumstances including the fact that more than ten years has elapsed since the incident, I think, it would meet the ends of justice if the appellant is sentenced merely to four years rigorous imprisonment instead of seven years as ordered by the Sessions Judge. ( 23 ) THE appeal is allowed to this limited extent only that the appellant is convicted under part two Section, 304 of the Indian Penal Code and sentenced to four years rigorous imprisonment. The appellant is on bail. His bail bonds are cancelled. Let him be taken into custody to serve the sentence awarded to him. Appeal partly allowed.