JUDGMENT M.K. Mukherjee, C.J. - Murdhwaj and his son Prem Singh of village Bairi, under the Police Station of Khakhreru in the district of Fatehpur, were laced on trial before the Sessions Judge, Fatehpur, for the murder of Vidyanand, a resident of their village, and attempted Murder of his brother Dev Sharan on 5.7.76. On conclusion of the trial, the learned Judge found both the appellants guilty of the above two charges and convicted them thereunder. For the former conviction each of them was sentence to suffer imprisonment for life and for the latter to rigorous imprisonment for one year, with a direction that the sentences would run concurrently. The above order of conviction and sentence is under challenge in the instant appeal by the above two convicts. 2. The case for the prosecution is as under: On 5.7.76, at or about 5 p.m. Vidyanand, accompanied by his brother Dev Sharan, had been to village Bijarehar to irrigate their field, known as 'Jamunihawala Khet', from the Khakhreru Rajbaha (Government Canal). At the sight of Dev Sharan and his brother, the appellant Muradhwaj gave out that he would not let them take water to their field. Vidyanand did not pay any heed to his utterances and made a drain for flow of water from the canal towards his field. Over this issue, there was an exchange of hot words between the brothers, on the one hand and the father and son on the other. In the course of the quarrel, Muradhwaj fired at Vidyanand with a gun, as a result of which he fell down dead. His son Prem Singh then whipped out a pistol and fired at Dev Sharan. The shot, however, did not hit him as he sat down. In the meantime, Chandrabhan (P.W. 4), who was working in his own field nearby, and Gulab Chandra (P.W. 2) and Nanhu (P.W. 3), who were returning from Pauli market, arrived at the scene and challenged the appellants. The appellants then ran away to their village. 3. After entrusting the dead body of Vidyanand to his uncle Lakshmi Narain, Dev Sharan went to the Police Station and lodged an information about the incident On that information, 3 case was registered and Sri Jgannath Tewari (P.W. 5), Station Officer, took up investigation of the case. He went to village Bairi and held inquest upon the dead body of Vidyanand. He went to village Bairi and held inquest upon the dead body of Vidyanand. He then sent to the dead body for post mortem examination. On completion of investigation, he submitted charge-sheet and in due course, the case was committed to the Court of Session. 4. The appellants pleaded not guilty to the charge levelled against them. Their defence was that they had been falsely implicated in the case due to enmity and they did not know anything about the occurrence. They further contended that there was no water p the Rajbaha and as such there was no scope of the incident, happening in, the manner alleged by the prosecution. 5. In support of its case, the prosecution examined seven witnesses and exhibited certain documents. One witness was also examined on behalf of the defence. 6. Dev Sharan (P.W. 1), the brother of the deceased, narrated the entire prosecution case. He further stated that there were earlier proceedings under Section 107/117 of the Code of Criminal Procedure between his maternal uncle Laxmi Narain and the appellants and, according to him, this was a motive for the crime. 7. Gulab Chandra (P.W. 2), who belongs to village Kharserhava, testified that he had gone to Pauli market to purchase a bullock. After purchasing the bullock when he was returning from the market, accompanied by Nanhu (P.W. 3), and had reached a place near the field of Dharam Raj at or about 5.00 p.m., he saw Vidyanand and Dev Sharan having an exchange of abuses with the appellants over taking of water. He next stated that after the discussion when Vidyanand demolished the Bandha put up by the appellants in the Rajbaha, the appellant Muradhwaj again abused him. Then the appellants Muradhwaj fired at Vidyanand with his gun and he immediately fell down on the ground as a result of the gun shot injuries. He next stated that the appellant Prem Singh took out a pistol from his waist band and then fired at Dev Sharan. Dev Sharan, however, did not sustain any injury as he sat down. He lastly stated that the witnesses raised an alarm, whereupon the appellants ran away towards their village. 8. Nanhu (P.W. 3) stated that he had gone to Pauli market and on his way back, he met Gulab Chandra (P.W. 2) near a Chaudagra. From there, both of them proceeded together to their respective villages. He lastly stated that the witnesses raised an alarm, whereupon the appellants ran away towards their village. 8. Nanhu (P.W. 3) stated that he had gone to Pauli market and on his way back, he met Gulab Chandra (P.W. 2) near a Chaudagra. From there, both of them proceeded together to their respective villages. He next stated that as they reached near the field of Dharamraj, he heard the appellant Muradhwaj and Vidyanand (deceased) exchanging abuses. According to this witness, in the course of this quarrel, the appellant Muradhwaj fired from his gun, as a result of which Vidyanand fell down dead, and the appellant Prem Singh also fired from a pistol, bringing the same out of his waist-band, but Dev Sharan escaped the shot as he sat down. 9. The last witness, who gave an ocular version of the incident, is Chandra Bhan (P.W. 4). He stated that his field was to the west of the field of Dharamaraj. He testified that at or about 5 p.m. or, the day of occurrence while he was in his field, he noticed therefrom a quarrel going on between the appellants and the deceased. He immediately went on the Patri of the Rajbaha. From there, he saw that the appellants were irrigating their field from the Rajbaha by putting up a Bandha therein. Vidyanand (deceasedi demolished the Bandha and proceeded towards his field. On the way, the appellant Muradhwaj abused Vidyanand, who, in his turn, abused the former. In course of the exchange of abuses, Muradhwaj fired at Vidyanand with his gun, as a result of which he fell down dead. The appellant Prem Singh took out a pistol from his waist-band and fired at Dev Sharan. He, however, did not sustain any injury as he has sat down. 10. All these witnesses, namely P.Ws 1, 2, 3 and 4 were cross-examined at length. On perusal of their cross-examination, we do not find any discrepancy or improbability in their statements, from which it can be inferred that they were deposing falsely. In our considered view, considering the place where the incident took place, P.Ws 2, 3 and 4 were most probable witnesses and that is another circumstance, for which we find no reason to discard their evidence. 11. Then again, we find that the evidence of the eye witnesses stands amply corroborated by that of Dr. In our considered view, considering the place where the incident took place, P.Ws 2, 3 and 4 were most probable witnesses and that is another circumstance, for which we find no reason to discard their evidence. 11. Then again, we find that the evidence of the eye witnesses stands amply corroborated by that of Dr. A.C. Srivastava (P.W. 6), who held the post mortem examination on the dead body of Vidyanand. The doctor testified that he found one gun shot wound of entry " x " on the right side of nose with margins inverted and lacerated and small blackening present around the wound. The doctor recovered from the dead body a pellet, which he sent to the Police. He opined that the death was due to shock and haemorrhage as a result of the fire arm injuries. In support of their case that there was no water in the Rajbaha and, therefore, the whole prosecution case was baseless, the appellants examined one Ram Narayan (D.W. 1) who maintained the record in respect of the flow of water in the Rajbaha in question. On the basis of the register produced by him, he testified that in the Rajbaha in question, no water flowed during the period 1.7.76 to 5.7.76. His evidence, for what it is worth, does not falsify the prosecution case, firstly because the entries by themselves cannot override the assertion of the eye-witnesses, secondly because he had no personal knowledge about the flow of water in the Rajbaha and lastly because the Investigating Officer found 1 or 2 feet deep water flowing in the Rajbaha when he went to investigate into the case on 6.7.76. 12. On a conspectus of the evidence adduced during the trial, we are fully satisfied that the prosecution has been able to conclusively prove that owing to firing of gun by the appellant Muradhwaj, Vidyanand died and that the appellant Prem Singh attempted to kill Dev Sharan by firing from his pistol but he failed in his attempt. 13. 12. On a conspectus of the evidence adduced during the trial, we are fully satisfied that the prosecution has been able to conclusively prove that owing to firing of gun by the appellant Muradhwaj, Vidyanand died and that the appellant Prem Singh attempted to kill Dev Sharan by firing from his pistol but he failed in his attempt. 13. It was, however, submitted on behalf of the appellants that even if the entire prosecution case was believed, it could not be said that the appellant Muradhwaj was guilty of an offence under Section 302 of the Indian Penal Code, having regard to the fact that he had a right of private defence against the mischief that was being committed by Vidyanand and Dev Sharan. Elaborating his contention, Mr. Chaturvedi appearing on behalf of the appellants submitted that they had a right to take water to their land for irrigation from the Government Channel and as admittedly Vidyanand and Dev Sharan demolished the embankment (Bandha) that the appellant had put for drainage of water, they were guilty of the offence of mischief. Consequently, Mr Tewari argued, the appellants could legitimately claim a right of private defence within the meaning of Section 97 of the Indian Penal Code. The learned Advocate appearing for the State joined issue and submitted that as the property in question, namely, the water channel, did not belong to the appellants, the demolition of the Bandha by Vidyanand did not amount to mischief so as to entitle the appellants to claim a right of private defence. 14. This question need not detain us in view of the provisions of Section 105 of the Indian Penal Code. Under the said section, the right of private defence of property against mischief continues as long as the offender continues with the commission of the mischief and in the instant case evidence clearly establishes that Muradhwaj caused the death of Vidyanand not during the demolition of the Bandha but after it. 15. It was next contended on behalf of the appellants that even if the protection of Section 105 of the Indian Penal Code was not available to the appellants, still then it should be held that Muradhwaj resorted to firing under a grave and sudden provocation inasmuch as it was the complainant's party who started the quarrel and abused the appellants in filthy languages. Having carefully considered the evidence adduced on behalf of the prosecution, we find much substance in this contention. 16. The evidence on record clearly shows that it was the complainant's party who first took up cudgel against the appellant and started abusing them in fifty languages and in the heat of the abusive exchange that followed, the firing was done by the appellant Muradhwaj. We are, therefore, of the opinion that the offence committed by Muradhwaj is one under Section 304, Part I, of the Indian Penal Code, and not under Section 302 of the Code. 17. So far as the appellant Prem Singh is concerned, we find that there is nothing in the evidence on record to show that he shared the common intention of his father to cause the death of Vidyanand. In fact, there is not an iota of material on record, from which it can be inferred that he had any knowledge that his father would fire from his gun and thereby kill Vidyanand. The conviction of Prem Singh under Section 302/34 of the Indian Penal Code cannot. therefore, he sustained. 18. For the self same reason, the conviction of Muradhwaj under Section 307/34 of the Indian Penal Code cannot be sustained. 19. For the afore going discussions, we set aside the conviction of Prem Singh under Section 302/34 of the Indian Penal Code and that of Muradhwaj under Section 307/34 of the Indian Penal Code and acquit them of those charges and after the conviction of Muradhwaj under Section 302 to one under Section 304 (Part I) of the Indian Penal Code. We also affirm the conviction of Prem Singh under Section 307 of the Indian Penal Code. 20. Coming now to the question of sentence, we feel that ends of justice will be sufficiently met if the appellant Muradhwaj is sentenced to suffer imprisonment for seven years and a fine of Rs. 2,500/- and we order accordingly. In default of payment of fine, he shall suffer rigorous imprisonment for two years more. Half of the fine, if realised, shall be paid to the heirs of Vidyanand as compensation. The appellant Muradhwaj, who is on bail, will now surrender to his bail bonds to serve out the sentence imposed upon him. 21. 2,500/- and we order accordingly. In default of payment of fine, he shall suffer rigorous imprisonment for two years more. Half of the fine, if realised, shall be paid to the heirs of Vidyanand as compensation. The appellant Muradhwaj, who is on bail, will now surrender to his bail bonds to serve out the sentence imposed upon him. 21. So far as the appellant Prem Singh is concerned, we do not feel inclined to send him to prison for serving out the sentence of imprisonment of one year imposed upon him for the conviction under Section 307 of the Indian Penal Code, having regard to the fact that since the offence was committed, more than 15 years have elapsed. We, therefore, reduce the substantive sentence imposed upon him to the period already undergone and in lieu thereof impose upon him a fine of Rs. 1,000/-. In default of payment of fine, he shall suffer rigorous imprisonment for six months. 22. The appeal is thus allowed in part.