H. C. MITAL AND U. K. VARMA, JJ. Babu Ram, Ram Autar and Chandra Bhan appellants have preferred this appeal against the judgment and order dated 6/9. 1. 79, passed by Sri P. K. Jain, VII Additional Sessions Judge, Farrukhabad, in Sessions Trial No. 59 of 1978. The appellant Babu Ram has been convicted and sentenced under Section 302, I. P. C. to life imprisonment. Ram Autar has been convicted and sentenced under Sec. 307, I. P. C. to five years rigorous imprisonment and appellant Chandra Bhan has been con victed and sentenced under Sec. 323, I. P. C. to six months rigorous imprisonment. 2. The facts of the case, in brief, are that on 22. 11. 77 at about 10. 00 a. m. accused Babu Ram alias Lalley and Chandra Bhan, both sons of Shiv Dayal, were taking water to their field from the tube-well of appellant Ram Autar through in front of the door of the complainant Babu Ram son of Pearey Lal. Smt. Swet Kumari, aunt of the complainant Babu Ram P. W. 1 objected to it, thereupon appellant Chandra Bhan gave a Danda blow on her head. Thereafter a quarrel ensued and the parties quarreling reached in front of the house of Sia Ram and Mewa Ram Kachi where appellant Babu Ram brought a gun of his brother from his house and Ram Autar brought a pistol and then challenged the prosecu tion witnesses and said that they would shoot if any one objected to the flow of water. Even the Ramendra Prasad, brother of Babu Ram objected that they would not permit the flow of water. P. W. 1 Babu Ram, the complainant, and Om Prakash also brought out lathis and challenged the appellants. Thereupon appellant Ram Autar fired a shot from his pistol causing pellet injuries to Ramendra Prasad, Om Prakash, Jai Prakash, Smt. Shanti Devi, Ved Prakash, Smt. Ram Beti and Smt. Long Sari. They all then started running and then Babu Ram appellant fired a shot from his gun which caused fatal injuries on the back of Ramendra Prasad, who fell down dead on the platform infront of the house of Mewa Ram. 3. Ext. Ka 1, the first information report, was lodged at police station Kamal Ganjon the same day at 11. 30 a. m. at a distance of 2 miles. Thereafter investigation started. 3. Ext. Ka 1, the first information report, was lodged at police station Kamal Ganjon the same day at 11. 30 a. m. at a distance of 2 miles. Thereafter investigation started. The dead body of Ramendra Prasad after preparation of inquest report was sent for post-mor tem and the injured were sent for their medical examination. 4. After completion of the investigation the appellants were prosecuted and to prove its case the prosecution examined in all 8 witnesses of whom P. W. 1 Babu Ram, P. W. 2 Shiam Baboo and P. W. 3 Om Prakash are the eye-witnesses of the occurrence and they corroborated the prosecution case. P. W. 4 Dr. H. B. Singh had examined the injured on 22. 11. 77 from 2. 25 p. m. to 3. 40 p. m. and noted the following injuries on their persons: Injury of Mahesh Chand (Vide Ext. Ka 2) An abraded contusion 1 cm x o. 5 cm on the top of right shoulder. Injury of Ved Prakash (Vide injury report Ex. Ka 3) Gun shot wound of entry on medial side on forearm, 18 cm below the elbow joint round in shape 0. 2 cm in diameter, 1 cm deep, margains inverted. No blackening or tattooing or scorching. Injury of Om Prakash (Vide injury report Ext. Ka 4) Gum shot wound of entry on upper part right side abdomen 1 cm from mide line, 16 cm above the mid line, round in shape, 0. 1 cm in diameter, probing could not be done, margins inverted. No blackening, tattooing or scorching. Injury of Jai Prakash (Vide injury report Ext. Ka 5) 1. Gun shot wound of entry on right back of head 4 cm above the pinna or right ear, 0. 1 cm in diameter, 0. 5 cm deep. No blackening, tattooing or scorching present. 2. Gun shot wound of entry on right side of head 6 cm above injury No. 1, round in shape, 0. l cm in diameter, 0. 5 cm deep. No blackening, tattooing or scorching present. 3. Gun shot wound of entry on left side of head 9. 5 cm above the pinna or left ear, round in shape, 0. 1 cm in diameter. No blackening, tattooing or scorching. Injury of Smt. Ram Beti (Vide injury report Ext. Ka 6) Abrasion 1 cm x 1 cm on middle 3rd part of front of thigh. 3. Gun shot wound of entry on left side of head 9. 5 cm above the pinna or left ear, round in shape, 0. 1 cm in diameter. No blackening, tattooing or scorching. Injury of Smt. Ram Beti (Vide injury report Ext. Ka 6) Abrasion 1 cm x 1 cm on middle 3rd part of front of thigh. Injury of Smt. Shanti Devi (Vide injury report Ext. Ka 7) Gun shot wound of entry on lower part right side back, round in shape, 0. 2 cm in diameter, 0. 5 cm deep, margins inverted. No blackening, tattooing or scorching present. Injury of Smt. Swet Kumari (Vide injury report Ext. Ka 8) Lacerated wound 6 cm x 1 cm x up to bone on right side of head, 8. 5 cm above right eye brow. 5. In the opinion of Dr. Singh all the injuries were fresh. They were caused the same day at about 10. 00 a. m. 6. P. W. 5 Dr. V. K. vatsal had done the autopsy on the dead body of Ramendra Prasad on 23. 11. 77 at 12. 30 p. m. and prepared the post-mortem report Ext. Ka 9 and noted as follows: 7. The deceased was average built. Rigor mortis was present all over body. No sign of decomposition. ANTE MORTEM INJURIEs (1) A gun shot wound of entry 1/4" x 1/4" x brain cavity deep on left side back of head 4" away from left ear. No blackening or charring present. Margins inverted. (2)Two gun shot wounds of entry 1/4" x 1/4" x muscle deep on the back left side of neck 1-1/2" below injury No. 1. Margins were inverted and there was no blackening or charring. (3) Two slip shots on the right supra clavicle region measuring 1" x 1/4". (4) Abrasion 1-1/4" x 1/4" over left side abdomen joint below 12th rib. (5) Multiple gun shot wound of entry (12 in number on the left side of back of chest each measuring 1/4" x 1/4" x chest cavity deep in an area of 14" x 8". No blackening or charring present. Margins inverted. (6) Four gun shot wounds of entry in an area 9" x 4" on the back of right side chest each measuring 1/4" x 1/4" x muscle deep. INTERNAL EXAMINATIOn 8. There was fracture of left occipital bone. Membrance and brain were lacerated. No blackening or charring present. Margins inverted. (6) Four gun shot wounds of entry in an area 9" x 4" on the back of right side chest each measuring 1/4" x 1/4" x muscle deep. INTERNAL EXAMINATIOn 8. There was fracture of left occipital bone. Membrance and brain were lacerated. Fifth, sixth and seventh ribs on left side were fractured. Left pleura, lung, paricardium and heart were lacerated. Stomach contained 4 Onz. semi digested food. In the opinion of the Doctor the death was caused to the aforesaid gun shot injuries which were sufficient in the ordinary course of nature to cause death. 9. P. W. 6 Constable Ganga Charan had taken the dead body for post-mortem and P. W. 7 Head Constable Tehsildar Singh had prepared the chick report on the basis of the written F. I. R. Ext. Ka 1 and registered the case. 10. Lastly, P. W. 8 Sub-Inspector, Mahavir Singh, Investigating Officer, deposed about the various steps taken by him during the course of investigation. 11. Constable Lakhan Singh was also examined as a formal witness and he had brought some Registers. 12. Appellants Ram Autar and Chandra Bhan denied their participation and presence on the scene of occurrence and alleged to have been falsely implicated. Appellant Babu Ram. however, admitted that he was taking water to his field and had been taking the water through that Gali for the last 25 years and that infact Om Prakash fired the shots which caused injuries to the injured and the deceased. He denied to have fired any shot at Ramendra Prasad. 13. In defence four witnesses were examined D. W. 1 is Har Prasad. D. W. 2 is Head Constable Bhoo Deo Singh. D. W. 3 is Raghunandan Misra, clerk in the office of the District Magistrate, Farrukhabad, D. W. 4 is Radha Krishna. However, none of them made any statement regarding the occurrence. 14. The learned Sessions Judge believed the prosecution evidence and disbelieved that of the defence, hence he convicted and sentenced the appellant as stated above. On being aggrieved, this appeal has been preferred. 15. On behalf of the appellants their learned counsel did not dispute the prosecution case that the occurrence had taken place on 22. 11. 77 at about 10. 00 a. m. and also the fact that various injuries were caused to the injured and the deceased at that time. On being aggrieved, this appeal has been preferred. 15. On behalf of the appellants their learned counsel did not dispute the prosecution case that the occurrence had taken place on 22. 11. 77 at about 10. 00 a. m. and also the fact that various injuries were caused to the injured and the deceased at that time. Thus the factum of occurrence has not been challenged. The same also stands proved from the prosecution evidence mentioned above. The learned counsel also did not make any argu ment regarding the plea taken by appellant Babu Ram before the trial court that Om Prakash P. W. 3 had fired shots with his gun as a result of which so many persons were injured and Ramendra Prasad was killed. The learned counsel, however, contended that from the facts and circumstances of the case the offence under Sec. 302, I. P. C. was not made out against Babu Ram appellant nor under Sec. 307, I. P. C. against Ram Autar as the intention to cause death on their part could not be borne out from the evidence on record. He, however, contended that at the most the offence amounted to culpable homicide not amounting to murder punishable under Section 304, I. P. C. 16. According to the learned counsel, admittedly a wrangle had ensured in between the parties when the appellants were taking water to their field through the Gali from which they had been taking water for the last 25 years and, therefore, the prosecution witnesses had no right to stop or put any obstruction in the passage of the water. That from the record it was clear that obstruction was placed by the prosecution witnesses and thus the right to take water to their field was illegally interfered with by them whereupon a quarrel had ensued and during that sudden quarrel when admittedly two of the prosecu tion witnesses namely, P. W. 1 Babu Ram and P. W. 3 Om Prakash had taken out lathis and made assault, then the two shots were fired. 17. We find that there is force in the above contention of the learned counsel for the appellants. 17. We find that there is force in the above contention of the learned counsel for the appellants. From the testimony of P. W. 1 Babu Ram, who had lodged the first information report, as admitted by him in his cross-examination, it is clear that he had dropped bricks, stones and earth in the passage up to the height of 6 inches to stop the flow of water towards his side and when the accused were bringing water even at that time they were putting obstruction by dropping earth there and that the earth was dropped by Babu Ram himself, his Bhabhi and Mahesh. He has also admitted that if the accused had not taken water their potato crop would have withered. He admitted that the accused had given an application against him for not permitting him to take water through the passage. He has also admitted that after the dispute the tube-well was got stopped. He has further admitted that after the Skirmish with Smt. Satyawati and Mahesh earlier they received Danda blows, they had followed the accused and he had also followed them and Smt. Satyawati and he himself and Mahesh were abusing them and that a wrangle was going on till they received the gun shot injuries. He further admitted that he and Ramendra and Om Prakash also picked up lathis. He further admitted that in his report he has stated that he himself and Om Prakash had come with lathis and Ramendra had said that they would not permit the accused to carry water. He has also admitted that he himself and Om Prakash and Ramendra were saying even at the cost of their lives they would not permit the accused to take water and that the accused had fired after he himself and Om Prakash brandished lathis in his own words - "fire mere va Om Prakash ke lathi uthane ke bad huwe. . . . . . . . . . . Jab ham logo par pahila fire huva us samey ham Uttar Ki taraf muh kiye huve khare the. Us samaya Ramendra Ka muh bhee Uttar Ki taraf tha. . . . . . . . . Jese he Ramendra ghoomey vese hee unke doosara fire laga. . . . . . . . . . . Jab ham logo par pahila fire huva us samey ham Uttar Ki taraf muh kiye huve khare the. Us samaya Ramendra Ka muh bhee Uttar Ki taraf tha. . . . . . . . . Jese he Ramendra ghoomey vese hee unke doosara fire laga. " From the above it is clear that the prosecution witnesses were facing and threatening the accused with lathis that they would not permit them to take water and admittedly they were also abusing them. 18. P. W. 2 Shyam Babu has also admitted that before the firing exchange of abuses had taken place for 2-3 minutes and at that time Om Prakash and Babu Ram were also armed with lathis and that the accused had fired both the shots from a distance of 18-20 paces. P. W. 3 Om Prakash has also admitted in his cross-examination that the accused were at a distance of 20 paces when they fired the shots. He has further stated "jab Muljiman Tamancha va Bandook le aaye tab Ramendra ne kaha pain nahi nikalne devenge marange aur marjayenge. " 19. From the above it is clear that indeed a wrangle had ensued before the shooting took place. The complainant and injured were hurling abuses at the accused and they were also trying to stop the flow of water to their field; that the prosecution witnesses were also armed with lathis and were threatening that they will not permit them to carry water even at the risk of their lives. 20. The facts of the case "sunder Singh v. State of Rajasthan, AIR 1968 SC 2136 were also somewhat similar. In that case there was a bitter quarrel between the complainant and accused as to the right to draw water. The complaint was asserting that it was his turn whereas the appellant and his sons were asserting that it was their turn. It was alleged further by the prosecution that the accused came there in the early part of the day and switched off the motor telling the complainant that they would be operating the tube-well in that night to irrigate their land. The complainant, however, did not agree. When that dispute was going on, appellant with his gun fired at Shiv Narain deceased, who suc cumbed to the injuries sustained. The complainant, however, did not agree. When that dispute was going on, appellant with his gun fired at Shiv Narain deceased, who suc cumbed to the injuries sustained. In the view of their Lordships of the Supreme Court it was not a pre-mediated or preplanned fire. Each of the party was asserting their turn and not of the other. Their Lordships under those circumstances assumed that the appellants in exercise of their right got engaged and tried to prevent the mischief by the deceased and, therefore, they were liable only under Sec. 304 Part I, I. P. C. In the present case also the circumstances are almost similar. The appellants were asserting their right to carry water and admittedly the complainant and the prosecution witnesses put all possible obstruc tions by placing bricks-stones and earth and even thereafter the appellants succeeded in carrying water. They came out with lathis while the appellants came with fire arms and when exchange of abuses took place in the heat of the moment to assert their right, two of the appellants fired. Ram Autar appellant had fired with a country made pistol as a result of which only simple gun shot injuries were received by Ved Prakash, Om Prakash, Jai Prakash, Smt. Shanti Devi and Bhajan Lal, while gun shots of Babu Ram Appellant caused injures to Ramendra which proved fatal even though the same were fired from a distance of 20 paces as a result of which he died. It is thus clear that prima face there was no intention to cause death though knowledge that the injuries were likely to cause death can be safely imputed to the appellant Babu Ram. The intention of a person has to be judged not in the light of the actual circumstances but in the light of what he supposed to be the circumstances, while knowledge has reference to the particular circumstances in which a person is placed. Thus there may be knowledge about intention as the knowledge of the consequence which may result in the doing of an act is not the same thing as the contention that such consequence should ensue. Under the circumstances of the case, therefore, Babu Ram appellants conviction is liable to be altered from Sec. 302 to Sec. 304 Part I, I. P. C. 21. Under the circumstances of the case, therefore, Babu Ram appellants conviction is liable to be altered from Sec. 302 to Sec. 304 Part I, I. P. C. 21. As regards Ram Autar, he had fired with a country made pistol and caused only simple pellet injuries from a distance of about 20 paces and as it has already been held above that the appellant had not fired with the intention to kill, his conviction is to be altered from Sec. 307 I. P. C. to one under Sec. 324, I. P. C. 22. The appellant Chandra Bhan has been convicted under Sec. 323, I. P. C. for causing simple Danda injuries to Smt. Satya wati and Mahesh and the same has to be maintained. 23. As regards the sentence, considering that the occurrence had taken place on 22. 11. 77, i. e. more than 13 years back, the ends of justice would amply meet if Babu Ram is convicted under Sec. 304 Part I, I. P. C. and is sentenced to 4 years rigorous imprisonment, Ram Autar under Section 324, I. P. C. and is sentenced to the period already undergone and Chandra Bhan under Section 323, I. P. C. to the period already undergone instead of six months rigorous imprisonment. 24. In the result, we allow this appeal in part. The conviction of appellant Babu Ram under Sec. 302, I. P. C. is altered to one under Section 304 Part I I. P. C. and is sentenced to 4 years rigorous imprisonment. Ram Autars conviction is altered from Sec. 307 to 323 I. P. C. and is sentenced to the period already undergone. The conviction of a appellant Chandra Bhan is maintained under Section 323, I. P. C. and his sentence is reduced to the period already undergone. 25. Appellant Babu Ram is on bail. He shall surrender forthwith and be taken into custody to serve out his sentence. The Court below shall immediately issue non-bailable warrants against him. Bail bonds of appellants Ram Autar and Chandra Bhan are can celled and their sureties are discharging They need not surrender. Appeal allowed partly. .