JUDGMENT G.P. Mathur, J. - Bhoo Dev and Lalta Prasad have filed this appeal against the judgment and order dated 24-I-1979 of Sessions Judge, Moradabad in S. T. No. 498 of 1978 whereby, he convicted Bhoo Dev under Section 302, I.P.C. and Lalta Prasad under Section 323, I.P.C. and sentenced the former to imprisonment for life and later to one year's R.I. one Mahesh was also tried alongwith the appellants, but he was acquitted. 2. The case of prosecution, in brief, is that Bhoo Dev and Mahesh are real brothers being sons of Latta Prasad. The house of Lala Prasad is just adjacent to the house of Parmanand. The house of Lalta Prasad is towards east and house of Parmanand is towards west and little north. There is a Chabutra of Parmanand towards the east of his house and the said Chabutra is also adjoining to the house of Lalta Prasad towards its western corner. There was enmity between the informant Parmanand and the accused Lalta Prasad on account of litigation over land and grove which had been decided in favour of Parmanand. At about 7.30 p. m. On 19-6-1978 Lalta Prasad armed with Lathi, Bhoo Dev armed with licensed gun of his father and Mahesh with spade came to the roof. They started fixing a spout (PARNALA) on their roof from which, water would have fallen on the land of informant Parmanand. This was objected to by Bhagwat Dutt who was brother of the informant and he said that he would not allow the spout to be affixed over his land. Some exchange of words took place between them, hearing which, Parmanand, Som. Dutt, Ghanshyam and others arrived there, Lalta Prasad then said that spout would be fixed on that day on the strength of gun. Mahesh then started fixing spout in the wall. Bhagwat Dutt then proceeded to stop him on which, Bhoo Dev forbade him from moving ahead and immediately ired from his gun. Bhagwat Dutt received, gun shot injury and fell down. Som Dutt tried to save his father, but Latta Prasad assaulted him with Lathi. Bhoo Dev then held out that in case any one came nearby, he would shoot him. Thereafter, all the accused came down from the roof and left the place on a Tractor. Bhagwat Dutt died shortly thereafter. Bhagwat Dutt received, gun shot injury and fell down. Som Dutt tried to save his father, but Latta Prasad assaulted him with Lathi. Bhoo Dev then held out that in case any one came nearby, he would shoot him. Thereafter, all the accused came down from the roof and left the place on a Tractor. Bhagwat Dutt died shortly thereafter. Parmanand then got written F. I. R. lodged at P. S. Bachhrayun at 6.30 A. M. on 20-6-1978 which is 12 Kms. from the place of occurrence. A case was registered in the general diary. P. W. 10 Satya Pal Singh, S.0. P. S. Bachhrayun recorded the statements of Parmanand under Section 161, Cr. P.C. and thereafter proceeded to the spot. He prepared Inquest report on the dead body of Bhagwat Dutt and took other necessary steps towards the investigation of the case. After completing the investigation, he submitted charge sheet against Bhoo Dev, Lalta Prasad and Mahesh. 3. After usual enquiry, case was committed to the Court of Sessions Learned Sessions Judge framed charge under Section 323/34 and 302, I.P.C. against Bhoo Dev, Section 323, I. P C., and Section 302/34, I.P.C., against Lalta Prasad and Section 302/34, I.P.C. against Mahesh accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. The prosecution in support of its case examined in all 10 witnesses out of whom, PW 1, Ghanshyam, PW 3, Som Dutt and PW 5 Parmanand are eye- witnesses of the incident. PW 2 Dr. H. K. Badal conducted medical examination of Sorn Dutt and PW 4, Dr. S. K. D. Parikh conducted post- mortem examination on the body of the deceased. PW 6, PW 8 and PW 10 are the police witnesses while PW 7 and PW 9 are the witnesses of the Inquest and taking into possession of blood stained earth. Their testimony will be discussed later on. 5. Before examining the statements of eye-witnesses, it will be appropriate to first notice the medical evidence on record. PW 2 Dr. H. K. Badal, Medical officer, P.H.C., Dhanaura stated that he examined P.W. 3 Som Dutt at 1.30 P. M. on 20-6-78 who was brought by Constable Rajendra Singh. He found the following injuries on his person : 1. "One contusion on left side of left leg. 6 cm. x 2 cm., 3 cm. below and lateral to left knee joint. H. K. Badal, Medical officer, P.H.C., Dhanaura stated that he examined P.W. 3 Som Dutt at 1.30 P. M. on 20-6-78 who was brought by Constable Rajendra Singh. He found the following injuries on his person : 1. "One contusion on left side of left leg. 6 cm. x 2 cm., 3 cm. below and lateral to left knee joint. Injury is simple and caused by hard and blunt object. Duration. About one day." In the opinion of the doctor, the injury could have been caused by a Lathi at about 7.30 P. M. on 19-6-1978. 6. PW 4, Dr. H. K. D. Parikh, Supdt. District Hospital, conducted the post mortem examination on the body of Bhagwat Dutt at 11.30 A. M. on 21-6-1978 and found the following ante mortem injuries on his body : 1. Gun shot wound of entry 5 cm. x 5 cm. x bone deep on the medical surface 12 cm. above the right knee joint with multiple gun shot wounds each ? cm. x ? cm. subcutaeneous to bone deep in an area of 10 cm. x 10 cm. round the central aperture described above, margins of wound are inverted and all the underlying vessels, nerves, muscles are extensively torn and lacerated and there is blackening and tattoing round about the gun shot wounds. 2. Contusion 8 cm. x 8 cm. on the right side of the head just above the right car extending upto right fore-head. On internal examination, he found Scalp, Skull bones, lungs, heart, pleura and intestine as NAD. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of injury No. 1. In his statement, doctor stated that he found all internal organs as normal. He took out 9 pellets from the injury. 1n the opinion of the doctor, injury No. 1 had been caused from a distance of 4 feet and the deceased could have died at about 7.30 P.M. on 19-6-1978. He further opined that injury No. 1 was sufficient in the ordinary course of nature to cause death and deceased could have immediately died after receiving injuries. He stated in his cross-examination that injury No. 1 was on a non-vital part. He further stated that immediate death was not possible from injury No. 1 and if medical aid had been rendered to the deceased immediately, his life could have been saved. He stated in his cross-examination that injury No. 1 was on a non-vital part. He further stated that immediate death was not possible from injury No. 1 and if medical aid had been rendered to the deceased immediately, his life could have been saved. 7. P. W. 5 Parmanand stated that his house was towards west of the house of the accused and the door opened towards eastern side on Chabutra which belonged to him. The accused had no concern with the said Chabutra. The house of Ghanshyam witness was towards east and adjoining to the house of Latta Prasad. There was litigation between him and Lalta Prasad over some land which was ultimately decided in his favour. Some dispute had occurred between him and his brother on one hand and the accused on the other hand, one day before the incident. At about 7.00 -7.30 P. M. on the date of occurrence, Lalta Prasad armed with Lathi, Bhoo Dev armed with gun and Mahesh armed with spade came to the roof. The accused wanted to fix a spout on the roof of their house towards his Chabutra. The deceased Bhagwat Dutt went to the roof and asked the accused not fix the spout on which some exchange of words took place. Lalta Prasad then said that the spout would be fixed at the point of gun. Bhoo Dev then fired from his gun upon Bhagwat Dutt and Lalta Prasad also gave a Lathi blow on his head and another blow to Som Dutt who was trying to save his father. Thereafter, Bhoo Dev, held out a threat that in case, any body came forward, he would be shot dead and after firing from gun, came down and all of them left on a tractor. He got the F.I.R. scribed from Ganga Saran and thereafter, went to the police station to lodge the same alongwith Som Dutt, where he reached at 6.00 A. M. The investigating officer (I. O) came to the village in the morning and took in his possession, an empty cartridge and spade. In his cross-examination, he stated that the accused had opened a hole and were trying to fix a Tins pout in the said hole. Another spout in the accused house was already in existence since before. In his cross-examination, he stated that the accused had opened a hole and were trying to fix a Tins pout in the said hole. Another spout in the accused house was already in existence since before. The deceased Bhagwat Dutt was one yard west of the wall which is in between his house and the house of the accused and Bhoo Dev was one yard east of the said wall. The witness, Som Dutt and the deceased Bhagwat Dust were empty handed at that time. The witness denied the defence suggestion that he or Som Dutt had not seen the occurrence or that Som Dutt had himself manufactured the injury on his body. 8. P. W. 3, Som Dutt is son of the deceased Bhagwat Dutt and is an injured witness. He has corroborated the version given by informant PW 5 Parmanand. He stated that there was enmity between his father and Lalta Prasad accused due to litigation over land which had been decided in his favour. At about 7.00-7.30 P. M. on the date of incident, he was in his house, in the ground floor. He heard some alarm and saw that Bhoo Dev armed with gun, Lalta Prasad armed with Lathi and Mahesh with spade were present on the roof of their house. The deceased Bhagwat Dutt was present on the roof of his own house and exchange of hot words were taking place between them. Latta Prasad stated that spout would be fixed at the point of gun. Mahesh started snaking hole in the wall and at that time, he rushed and reached on the roof of his own house. The moment, Bhagwat Dutt proceeded forward to stop the accused, Bhoo Dev fired upon him from his gun. When he tried to save his father, Lalta Prasad assaulted him and his father with Lathi. Thereafter, the accused came down firing from gun and left the place on a tractor. He went to the police station in the morning from where he was sent to hospital for medical examination alongwith a constable. In his cross-examination, he has stated that he had heard his father saying that spout should not be fixed over his land, but Lalta Prasad was saying that the same would be done at the point of gun. The deceased was 2-3 steps from the dividing wall over his own roof. In his cross-examination, he has stated that he had heard his father saying that spout should not be fixed over his land, but Lalta Prasad was saying that the same would be done at the point of gun. The deceased was 2-3 steps from the dividing wall over his own roof. He further stated that his father and uncle had gone empty handed to stop the accused and that they had gone to verbally ask the accused not to fix the spout. He has categorically stated that he, his father and uncle, had not gone to the roof of the accused, but they had gone on the roof of their own house. He denied that the accused had received any injury. He further denied the defence suggestion that he had got injuries manufactured over his body to become an eye witness. 9. P.W. 1 Ghan Shyam has corroborated the version given by PW 5 Parmanand and stated that at about 7.00 P. M. he came to the Chabutra of Parmanand ofter hearing shouts. Lalta Prasad armed with Lathi, Bhoo Dev armed with gun and Mahesh armed with spade were present on their roof. The accused wanted to fix the spout on the roof of their house from which water would have dropped on the Chabutra of Parmanand. The deceased Bhagwat Dutt was present on the roof of his house and was asking the accused not to fix the spout at that place. Lalta Prasad said that in case, he moved ahead, he would be shot and Mahesh accused tried to open the hole. The moment deceased Bhagwat Dutt moved forward to stop him, Bhoo Dev fired from his gun. When Som Dutt tried to save his father, Lalta Prasad assaulted him with Lathi. At the time of assault, both the deceased Bhagwat Dutt and Som Dutt were on the roof of their house and thereafter, the accused came down firing from gun and left on a tractor. In his cross-examination, he gas stated that his house is at a distance of 10 steps from the house of accused Lalta Prasad. He also slated that he had heard Bhagwat Dutt saying not to fix spout, but the accused were saying that they would fix the spout at the point of gun At the time of incident, Bhagwat Dutt was empty handed. He also slated that he had heard Bhagwat Dutt saying not to fix spout, but the accused were saying that they would fix the spout at the point of gun At the time of incident, Bhagwat Dutt was empty handed. He denied the defence suggestion that he did not see the incident or that he was giving false evidence. 10. P. W. 7 Ganga Ram stated that I. O. had prepared Inquest report of the body of Bhagwat Dutt which was lying on his roof and after the same had been read over to him, he put his signature thereon. Thereafter, body was sealed. In his cross-examination. He has stated that after the body had been sent, he came back PW 6 Akhtar has stated that I. O. had taken in his possession, blood stained Tahmat and earth as well as plain earth from the place where the dead body was lying. The I. O. also took in his possession, a spade and an empty cartridge from the adjoining roof of Lalta Prasad. He had put his thumb impression on the Fard of all the items which had been taken into possession by the I. O. In his cross-examination, he denied the defence suggestion that any blood was found on the roof of Lalta Prasad. 11. P. W. 6 Chandra Pal, Constable, has stated that he had gone to the village alongwith the I. O., and after the dead body had been sealed, he brought the same to the Police Line next day morning and produced the papers before the doctor. He also identified the dead body at the time of post-mortem examination. He thereafter deposited the clothes of the deceased at the police station. PW 8, Yashpal stated that he was Head Constable at P. S Bachhrayun on 20-6-1978. Parmanand lodged a written report of the incident, on the basis of which he prepared chik report and registered a case in the General Diary. He also inspected the injuries of Som Dutt which were noted in the G. D. and thereafter, sent him for medical examination to Dhanaura Hospital. PW 10, Satya Pal Singh stated that he was Station Officer of P. S. Bachhrayun on 20-6-1978. The informant lodged a F.I.R. at 6.30 A. M. in his presence. After recording the statement of witness, he proceeded to the spot. PW 10, Satya Pal Singh stated that he was Station Officer of P. S. Bachhrayun on 20-6-1978. The informant lodged a F.I.R. at 6.30 A. M. in his presence. After recording the statement of witness, he proceeded to the spot. He found the dead body of Bhagwat Dutt on the roof. He held Inquest on the body and thereafter got the same sealed. He also found blood near the body and took in his possession blood stained earth and plain earth as well as blood stained Tahmat of the deceased. The roof of the accused Lalta Prasad is adjoining to the roof of deceased and in between there was a small wall. He also found one empty cartridge and a spade on the roof of Lalta Prasad which were taken into possession. He prepared Site Plan of the spot. After completing investigation, he submitted charge sheet against the accused. In his cross-examination, he has stated that he found body of Bhagwat Dutt on his roof in the open. 12. Now it may be examined whether the witnesses were present on the spot and were in a position to witness the occurrence. PW 1 Ghan Shyam has stated in Para 4 of his statement that his house is at a distance of 10 steps towards east of the house of accused Lalta Prasad. The incident took place on fixing of spout on the roof of the house of Lalta Prasad. He stated in Para-l of his statement that if one stood at the north and eastern corner of Chabutra of informant Parmanand, the roof of the house of informant and the accused would be visible. He has further stated in para-2, that he was present in his house and after hearing alarm, he came to the aforesaid Chabutra from where he saw the occurrence. It is, therefore, clear that his house is in the immediate vicinity and he could have heard the exchange of words which were going on between the informant and the deceased on one side and the accused on the other side. He appears to be most natural witness of the occurrence. The accused have not suggested any enmity with this witness. We are, therefore, of the opinion that PW 1, Ghan Shyam is a reliable witness and there is no reason, not to place reliance upon his testimony. He appears to be most natural witness of the occurrence. The accused have not suggested any enmity with this witness. We are, therefore, of the opinion that PW 1, Ghan Shyam is a reliable witness and there is no reason, not to place reliance upon his testimony. PW 3, Som Dutt is the son of deceased Bhagwat Dutt. His father was shot dead over the roof of house in which he resides. He also received injury in the incident which is established from his medical Examination report (Ex. Ka-1) PW 2 Dr. H. K. Badal who examined this witness has stated that injury found on the body of this witness could have been caused at 7.00-7.30 P. M. on 19-6-1978. The presence of this witness at the time of occurrence, is, therefore, fully established. We have carefully examined his statement and we are of the opinion that the same is reliable and trustworthy. PW 5 Parmanand is the real brother of the deceased Bhagwat Dutt and resides in the same house on the roof of which the deceased was shot dead. His presence on the spot is, therefore, most natural. Nothing has come out in his cross-examination which may cast any doubt on his presence on the spot. We have also examined his statement carefully and are of the opinion that it is most reliable and trustworthy. 13. It may now be examined whether the eye-witness account finds corroboration from the medical evidence or not. PW 1, Ghanshyam has stated that Lalta Prasad had assaulted the deceased Bhagwat Dutt and Som Dutt with Lathi. PW 3, Som Dutt has also stated that Lalta Prasad had assaulted him with Lathi and he had also given one blow by Lathi to deceased Bhagwat Dutt. PW 5 Parma Nand has also stated that Lalta Prasad had given one blow to the deceased by Lathi and one blow to Som Dutt. When cross-examined regarding distance, he stated in Para 14 of the statement that deceased Bhagwat Dutt was at a distance of one yard towards west from the Munder (wall dividing roof of two houses) and accused Bhoo Dev was one yard towards east of the Munder at the time when he fired. Thus, the distance between the accused Bhoo Dev and the deceased, according to this witness, was two yards i. e. 6 feet. The firing was done from a licensed gun. Thus, the distance between the accused Bhoo Dev and the deceased, according to this witness, was two yards i. e. 6 feet. The firing was done from a licensed gun. Taking into consideration, the length of the barrel and butt of the gun, it is obvious that firing was done from a very close range. The post mortem report shows that there was blackening and tattooing round about the gun shot wounds. Som Dutt and deceased, both sustained contusion. Thus, the eye-witnesses account of the incident is fully corroborated by the medical evidence. 14. PW 1 Ghan Shyam has stated in Para 6 of his statement that the accused had dropped one empty cartridge on the roof and had re-loaded the gun. PW 5 Parmanand has also stated in para 4 of his statement that an empty cartridge was lying on the roof of the accused. PW 10 Satya Pal Singh, I. O. has stated that when he visited the spot, he found body of the deceased Bhagwat Dutt on the roof of his house. He also took in possession plain and blood stained earth from near the body. He has further stated that he found an empty cartridge and spade on the roof of the house of the accused which was taken in possession by him. He prepared the Fard regarding recovery of spade and empty cartridge which is Ex. Ka 7. The statement of PW 10 Satya Pal Singh, is corroborated by the statement of PW 9 Akhtar. Thus, it is established from the evidence on record, that empty cartridge and spade were found on the roof of the house of the accused and that the body of deceased was found on the roof of his house. These facts lead further corroboration to the prosecution case. 15. Having examined the entire evidence on record carefully, we are of the opinion that prosecution has been able to establish beyond reasonable doubt that Latta Prasad accused assaulted Som Dutt and deceased Bhagwat Dutt by Lathi and that Bhoo Dev accused fired from his gun causing fatal injuries to deceased Bhagwat Dutt. The prosecution has thus succeeded in proving its case against Latta Prasad and Bhoo Deo accused. 16. Learned counsel for the appellant has contended that the accused had assaulted the deceased in exercise of right of self defence. The prosecution has thus succeeded in proving its case against Latta Prasad and Bhoo Deo accused. 16. Learned counsel for the appellant has contended that the accused had assaulted the deceased in exercise of right of self defence. The submission of learned counsel is that co-accused Mahesh was fixing spout on the roof of his own house and the act of deceased Bhagwat Dutt in physically preventing him, amounted to an offence of criminal trespass and, therefore, Bhoo Dev was within his right to prevent the said trespass by causing injuries to him. We may mention here that accused have not set up such a case in their statements under Section 313, Cr. P. C. On the contrary, all the accused have completely denied the prosecution case. Similarly, no such suggestion was given to any one of the prosecution witnesses in their statements. It was suggested to the witnesses that they were giving false statements. Even on merits, the evidence on record does not show that deceased Bhagwat Dutt or the injured Som Dutt had trespassed over the roof of the accused. PW 1 Ghan Shyam has stated in para 2 of his statement that both deceased Bhagwat Dutt and injured Som Dutt were on the roof of their house when they were assaulted. PW 3 Som Dutt has stated in para 9 of his statement that he or his father has not crossed over to the roof of the accused, but were on their own roof. Similar statement has been given by PW 5 Parmanand. The body of deceased as well as blood was found on the roof of his own house. Thus, it is fully established that the deceased or the injured had not trespassed over the roof of the accused. It is not the case of the accused that they had received any injury or there was any apprehension of receiving injuries by them. In these circumstances, it cannot be said that Bhoo Dev accused had fired on the deceased Bhagwat Dutt in exercise of right of self defence. The contention raised by the learned counsel for the appellant is liable to be rejected. In these circumstances, it cannot be said that Bhoo Dev accused had fired on the deceased Bhagwat Dutt in exercise of right of self defence. The contention raised by the learned counsel for the appellant is liable to be rejected. Shri G. S. Chaturvedi, learned counsel for the appellant next contended that the offence committed by Bhoo Dev accused was one under Section 304, Part II, I.P.C. and not under Section 302, I.P.C. In support of his contention, he placed reliance on Harjendra Singh v. Delhi Administration, AIR 1968 SC 867 ; Laxman Kalu v. State of Maharashtra, AIR 1968 SC 1390 ; Gokur Parashram v. State of Maharashtra, AIR 1981 SC 1441 and Sital Singh v. State of Punjab, 1983 Crimes 1011. The evidence on record shows that occurrence took place all of a sudden on a petty incident. The accused wanted to fix a spout on the roof of their own house on 19th June, 1973. The rainy season had commenced and probably accused wanted that water should not accumulate on the roof, but should clear of immediately after rains. The statement of P.W. 5 Parmanand in para 14 shows that there were clouds in the evening and it had rained in the night. No doubt, water from spout would have fallen on the Chabutra of the house of the deceased but the fact remains that the accused had not trespassed over the property of the deceased nor were doing any thing on the Chabura of House of the deceased. They were making hole in the roof of their own house. There was no pre-meditation. The deceased has sustained gun shot injury on medical surface 12 cm. above the right knee joint i. e. on the thigh. The evidence on record further shows that firing was done from a close range. It is, therefore, obvious that the shot was deliberately aimed on the thigh of the deceased and Bhoo Dev did not intend to cause injury to any vital part of the body of deceased. The post mortem report as well as the statement of doctor discloses that no internal organ of the deceased had suffered any damage. No doubt, the underlying vessels; nerves and muscles were extensively torn and lacerated, but the thigh- bone does not appear to have been fractured. The death took place on account of shock and haemorrhage. PW 4 Dr. The post mortem report as well as the statement of doctor discloses that no internal organ of the deceased had suffered any damage. No doubt, the underlying vessels; nerves and muscles were extensively torn and lacerated, but the thigh- bone does not appear to have been fractured. The death took place on account of shock and haemorrhage. PW 4 Dr. H. K. D. Parikh has stated that in case, prompt medical aid was given, the deceased might have survived. The facts of the case in hand appear to be similar to the facts of the case of Sital Singh v. State of Punjab (supra). In this case also, deceased had sustained gun shot injury on the upper right thigh and finding of the High Court was that there was no pre-meditation. The Hon'ble Supreme Court set aside conviction of the accused under Section 302, I.P.C. and instead convicted him under Section 304, Part I, I.P.C. and sentenced him to 7 years R. I. and a fine of Rs. 2,000. Following the view taken by Hon'ble Supreme Court in the case of Sital Singh (supra), we set aside the conviction of Bhoo Dev accused under Section 302, I.P.C. and instead convict him under Section 304, Part I, I P.C. and impose a sentence of 7 years' R. 1. So far as accused Lalta Prasad is concerned, he has been sentenced to one year R. I. under Section 323, I.P.C. The incident had taken place on 19-6-1978 i. e. about 13 years back. Learned counsel for the accused has made a statement that Lalta Prasad has undergone about 10 days' R. I. after he was convicted by learned Sessions Judge. In view of long period which has elapsed since the happening of the incident, we do not consider it proper to send him back to jail for undergoing the sentence. Accordingly, we reduce the sentence of Lalta Prasad under Section 323, I.P.C. to period already undergone. 17. In the result, the appeal is partly allowed. The conviction of the appellant Bhoo Dev under Section 302, I.P.C. and sentence of imprisonment for life imposed upon him by the learned Sessions Judge is set aside. He is instead convicted under Section 304, Part I, I.P.C. and sentenced to 7 years' R. I. He is on bail. He shall surrender forthwith to undergo the sentence imposed upon him. The conviction of the appellant Bhoo Dev under Section 302, I.P.C. and sentence of imprisonment for life imposed upon him by the learned Sessions Judge is set aside. He is instead convicted under Section 304, Part I, I.P.C. and sentenced to 7 years' R. I. He is on bail. He shall surrender forthwith to undergo the sentence imposed upon him. His bail bonds and surety bonds are cancelled. The appeal of appellant No. 2 Lalta Prasad is dismissed with the modification that his sentence of one year R. I. is substituted for the period already undergone. He is on bail. He need not surrender. His personal and surety bonds are discharged.