U. K. VERMA, J. 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 Chaud Mandal and the co-accused Hari Pd. Mandal who was acquitted by the Sessions Judge checked Barun Dungi at 8. 30 a. m. on 13-10-1978 from interfering with the demarcation stone and ihe piled earch which, according to them, indicated the extent of Baruns field. This annoyed Barun Dungi and a marpeet stated between them. Charu Chandra Kaviraj, Narain Tapali, Praphull Tapali and Sunil Kaviraj intervened to pacify them. Mukul Chand Mandal appellant, however, paid no head to them. He thought his licensed gun from his house and shot at Barun Dungi who was in jured in his left thigh. The younger brother of Barun Dungi named Sheo Pad snatched the gun from Mukul Chand. The father of Barun 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 Barua Dungi were examined by Dr. N. M. Agarwal PW-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. Fourty gun shot wounds varying in size from Cm. X 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 Cm. X Cm. X muscle deep to Cm. X Cm. X muscle deep on front of left side from scrotem and root of penis. 4. Lacerated wound 2 Cm. X Cm. X muscle deep on front of rt. side abdomen lower part. 5. Lacerated wound 1 Cm. X Cm. X muscle deep on front of rt. frontal middle part. 6. Gunshot wound 1/6 Cm. X Cm. X muscle deep on palmer aspect of rt. hand 6 Cm. above rt. little finger. 5. 4. Lacerated wound 2 Cm. X Cm. X muscle deep on front of rt. side abdomen lower part. 5. Lacerated wound 1 Cm. X Cm. X muscle deep on front of rt. frontal middle part. 6. Gunshot wound 1/6 Cm. X Cm. X muscle deep on palmer aspect of rt. hand 6 Cm. above rt. little finger. 5. Barun Dungi succumbed to his injuries and his post-mortem report is Ex. Ka-10. The post-mortem examinations were conducted by Dr. B. K. Endley. who found the following ante-mortem injuries on the person of Barun 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 joint. No scorching present. Adverage 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. X 0. 8 Cm. X 0. 6 Cm. on the inner side of left thigh 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 found perforated. 7. The prosecution had examined the informant Jogesh Dungi, PW-3 Sheo Pad PW-2 Charu Chand Kaviraj PW-4, Sunil Kaviraj PW 5 and Golakh PW-6 as the witnesses of the occurrence. The prosecution witness Sheo Pad gave out that he, Anil and deceased Barun and his father Jogesh Dungi had been scrapping the grass. Mukul Chand Mandal told them that the place where they were scraping the grass 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 Mandal arrived and took Mukuls side. In the scuffle that followed, she got injured. Mukul Chand thereupon brought his gun and Hari 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. In the scuffle that followed, she got injured. Mukul Chand thereupon brought his gun and Hari 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. Barun Dungi was taken from the Government Nehru Hospital, Rudrapur to Bareilly for treatment where he 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. Libbe 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 Dung was armed with lathi ; Barun 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 Barun Dungi had been seriously injured. The same sugges tions 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, Cr. P. C. 10. Sunil Kaviraj PW-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 up to 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. 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 Hari Pad who was a co- accused arrived. The mother of Mukul was injured but the 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 Barun who on sustaining the fire-arm injuries on his thigh, fell down. Sheo Pad rushed and seized the gun from Mukul. He and others alongwith 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 PW-6 pointed that the quarrel started when Mukul asked Barun Dungi, Jogesh, Anil and Sheo Pad not to dig grass. He too expressed inability to explain as to how the mother of Mufcul sustained injury. Mukul was stated to have brought his gun after his mother had been injured and fired at Barun from 10 to 12 steps. Mukul did not fire the second shot. In the 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 with him his gun. He denied that the deceased and his brother and father had any weapon in their hands. 12. The prosecution witness Khajendra 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, Barun, Sheo Pad and Anil started digging the passage. Mukul objected whereupon the quarrel began. Smt. Libbe Dasi sustained severe injury. Barun alone was carrying a phawara whereas three others of his side were empty handed. Smt. Libbe Dasi fell down. At that time Mukul had nothing in his hand. Jogesh, Barun, Sheo Pad and Anil started digging the passage. Mukul objected whereupon the quarrel began. Smt. Libbe Dasi sustained severe injury. Barun alone was carrying a phawara whereas three others of his side were empty handed. Smt. Libbe Dasi fell down. At that time Mukul had nothing in his hand. Sheo Pad enacted the gun atonce after Mukul had fired. Charu Chand Kaviraj PW 4 who had been declared hostile, was not present at the time when Mukul fired. Barun 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 Barun, 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 phawara. She fell unconscious. Barun, 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 Barun in his thigh. Hari 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 PW-7. The injury report of Smt. Libbo Dasi Ex. Ka-1 shows that she had sustained the following injury : 1. Confused wound 9 Cm. X 1/2 Cm. X 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 2 1/2 Cm. X 1/4 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 1/2 Cm. on front of left side face near the middle of nose. 16. Abrasion 2 1/2 Cm. X 1/4 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 1/2 Cm. on front of left side face near the middle of nose. 16. The learned counsel for the appellant argued that Sessions Judge did not appreciate that the appellant had merely exercissd his right of private defence in respect of his passage which was being encroched and in respect of the person of his mother and hid 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 pro secution witnesses denied that these person 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 hid 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 brought it could be inferred that if the informants party had inlended to cause grievous injury to her, they would not have inflicted just one lathi blow when they were easily in a position to inflict many more. The conduct of Anil in not using the phawara (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 any one of the four to cause grievous injuries much loss the death of the appellants mother or the appellant himself. The learned counsel for the State justifiably argued that the deceased Barun and Sheo Pad would not be presumed to have been armed with ballam or gandara for had they been carrying these weapons, they would have atleast used them when the appellant had fired on Barun. The learned counsel for the State justifiably argued that the deceased Barun and Sheo Pad would not be presumed to have been armed with ballam or gandara for had they been carrying these weapons, they would have atleast used them when the appellant had fired on Barun. The fact that the appellant was well within the roach of Sheo Pad and Jogesh, is not to be doubted tor 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 indicate that he was empty handed as was given but by the prosecution witnesses. 17. Sunil Kaviraj PW-5 and Golakh PW-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 PW-5 and Golakh PW-6 could not understand as to how it wad caused. The omission on the part of the prosecution to alleged about the injury of Smt. Libbo Dasi in the F. 1. R. and failure of some of the prosecu tion 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 mystry as to how the quarrel started. The prosecution and the appellant both have the common case on this point that 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 bet ween the parties, had intervened when the quarrel had begun. On the question of the injury of Smt. Libbo Dasi, Khagendra Nath PW-1 pointed that after sustaining considerable injury on her head she had fallen on the ground. Smt. Libbo Dasi, it is also admitted bet ween the parties, had intervened when the quarrel had begun. On the question of the injury of Smt. Libbo Dasi, Khagendra Nath PW-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 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 grave. y provoked more so when Barun Dungi and three others were encroaching upon the passage beyond the demar cating stone and the heaped earth which indicated the limit of their land. Had it not been so, Sheo Pad PW-2 would not have told Mukul to share it half and half. Khagendra Nath PW-1 had clearly stated that Mukul had quarrelled with the deceased and the three others when they started shortening the passage which led to Mukuls 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 had his mother on good grounds tried to resist Barun Dungi deceased and three other 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 repro duced the Sections 96,97,99 and 100 of the Indian Penal Code and referred to the decision in Biran Singh v. State of Bihar, reported in AIR 1985 Supreme Court at page 87 for holding that it was not justified. The learned Sessions Judge in his judgment has repro duced the Sections 96,97,99 and 100 of the Indian Penal Code and referred to the decision in Biran Singh v. State of Bihar, reported in AIR 1985 Supreme Court at page 87 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 - First - 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 asrault 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 Barun Dungi and the three others could not be presummed to have intended to cause the death or grievous hurt either to Smt. Libbo Dasi or to the appellant. The remaining condition 3rd to 6th at the Section 100 were not attracted in this case. The appellant thus could not be said to be justified in causing the death of Barun 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 puni tive or retributive. The circumstances of this case are similar to the case of Biran Singh. In that case also the accused had gun to his house, fetched a sword and assaulted the deceased where upon 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. In that case also the accused had gun to his house, fetched a sword and assaulted the deceased where upon 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 guide line 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 tor the appellant in the perspective 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 maximum amount of force is necessary to keep him within the proper limit, has no application. The appel lant 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 circumstances that the appellant in that heat of passion upon a sudden quarrel fired on the thigh of Barun. 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 Barun Dungi. The quarrel too was not in respect of such a matter which could have provoked Mukul Chand Mandal to cause death or such injury as was likely to cause death. On the other hand I am satisfied that he had fired at Barun Dungi when there was a temporary loss or 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. 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 the Second Part of Section 304 of the Indian Penal Code. 22. The appellant has been sentenced by the Sessions Judge to seven years 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 of Sec 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. .