J. Sangma, J. — The accused appellant, N. Budha Singh, brought this appeal from the judgment dated 8.2.84 of Y. Ibotombi Singh, Sessions Judge, Imphal, in Sessions Trial Case No. 46/80 convicting and sentencing him under section 302 IPC to RI for life. He had been released on bail by this Court till disposal of this appeal. 2. The case for the prosecution was this. At 6.30 AM on 8.5.79 the OC of Chandel PS recorded the following : "Received an information that on 7.5.79 at about 6,10 PM No. 5694 Hav N. Budha Singh of A/Coy 5th MR Camp Womku (Post) shot down No. 5042/L/N O. Naba Chandra Singh of A/Coy 5th MR the same Coy and Post with a rifle inside the campus of Womku 5th MR Post and as a result of which L/MR No.5042 O. Naba Chandra Singh got serious injury on his person and after about 15th minutes he succumbed to the injury. As considered necessary a regular case under FIR Case No. 9 (5)/79 CDL PS under section 302 IPC and 27 Arms Act have been registered against Hav. No. .'694 N. Budha Singh for investigation." 3. The appellant was a havildar of Manipur Rifles and the occurrence took place at their Wangpu Camp of 20 Riflemen. The OC handed over the case to Shri A. Rajendra Singh (PW 12) for investigation. The IO arrived Wangpu Camp at 2.30 PM of 8.5.79 and started investigation. There he seized blood stained earth and other articles including 303 rifle by seizure name Ext. PI and Ext. P7. He also drew a sketch map of the place of occurrence, prepared inquest report and sent the dead body to a doctor for post mortem. He arrested the appellant on the date and produced him with report that he was confessing the guile. On that he was remanded to judicial custody. Thereafter, on 15.5.79 the appellant made confessional statement before a Magistrate of Imphal (PW 13). After recording the statement of witnesses and receiving the expert's reports he submitted charge sheet under section 302 IPC against the appellant to Chief Judicial Magistrate who committed the case to Sessions Court for trial. 4. On 1 .9.80 the learned Sessions Judge framed charge under sections 302 IPC against the appellant who pleaded not guilty to it and retracted the confession. The prosecution examined 13 PWs and closed the case. 4. On 1 .9.80 the learned Sessions Judge framed charge under sections 302 IPC against the appellant who pleaded not guilty to it and retracted the confession. The prosecution examined 13 PWs and closed the case. During the trial the defence plea was a simple denial. In the statement of defence under section 313 CrPC also the appellant only denied the questions put to him without explaining to the evidence appearing against him. He did sot also examine witness for defence. 5. The learned Sessions Judge on full discussion of the evidence on record found that the appellant fired a shot by a rifle on the thigh of Naba Chandia Singh, and the victim died of the injury from the gun shot. On this finding he held that the appellant was liable for committing murder of the deceased, and convicted and sentenced him as aforesaid. 6. There was no eye witness of the occurrence and though the victim did not instantaneously die, he could not tell anything, may be because of pain. So,Mr.N.Kumarjit Singh, learned counsel, first made an attempt to argue that the appellant was innocent. As afoiesaid, the occurrence took place at Wangpu Camp of Manipur Rifle where there were 20 rifle personnel, at 6.10 PM, just after the roll call. PW 2, Amajam Joykumar Singh, who was a sepoy m the camp, was in a cooking room. Immediately after hearing gun shot he heard someone's shout that appellant had fired and, rushing out, found the appellant at verandah of his room with a 303 rifle in hand. He then ran and caught the appellant from behind and at the time felt powder smell from that rifle's barrel. This witness stated that Jamadar Quite then snatched the rifle from appellant's hands and ordered to bring rope to tie him. Some jawans then came; thus appellants hands and feet were tied with rope. He stated that appellant then told that he somehow fired and asked for forgiveness. PW 1, Lianpung Quite, was the In-charge of the camp. He stated that while he wanted to take meal in his room he heard a single firing sound and, going out saw a person on the ground in front of building and the appellant being overpowered and caught by Joy Kumar (PW 2) by embracing. PW 1, Lianpung Quite, was the In-charge of the camp. He stated that while he wanted to take meal in his room he heard a single firing sound and, going out saw a person on the ground in front of building and the appellant being overpowered and caught by Joy Kumar (PW 2) by embracing. He immediately snatched the rifle from appellant and ordered other person to tie his hands and feet on the spot. In cross-examination he told that the injured died within 30 minutes. PW 4, Ningthoujam Chaoba "Singh, was a Naik who occupied the same room with the appellant. He kept his rifle in the room. At the time of occurrence he was in other room. On hearing the fire sound he came and saw Joy Kumar catching the appellant and Lianpung Guite (PW 1) snatching the rifle from him. Entering the room he found his rifle and one ammunition missing. The appellant in his confession admitted his firing. So, on realising that the circumstantial evidence is sufficiently tight, the learned counsel did not seriously press this point. 7. The second point which Mr. Kumarjit has strongly argued is that the appellant acted in exercise of right of private defence. For this purposeh. made use of the retracted confession and submitted that the deceased threatened to shoot the appellant with his sten gun. In short the confession was as follows : "While all jawans of Womku Post were standing in line for roll call, Nabachandra Singh (deceased) came out of the line and started to scold me before other Army men in Manipur language saying ''Bimt Gadha Lawaimacha Chudatnaba Kaphutmacha". After roll call when I reached near the room of Nabachandra, he came out holding a sten gun after fiuiug. At that time 1/2 persons caught hold of him and I took out bullet from inside magazine of the stengun and handed over to Nabachandia warning him not to repeat it. Then I came to my room; but he came after me. I requested him by holding his feet not to be angry with me and to excuse me if I did anything wrong to him. When I reached my room I took out my pant and shirt and wearing underpant lay down on my bed. Then I came to my room; but he came after me. I requested him by holding his feet not to be angry with me and to excuse me if I did anything wrong to him. When I reached my room I took out my pant and shirt and wearing underpant lay down on my bed. At that time Nabachandra came to my room and by showing sten gun he threat­ened me from the door by saying "Shongadaba Lal Shollo, Ningadaba Lai Ninglo, Nahak Ngasi Shiragadabam You pray to God in whom you believe, you are going to die today". From the bed I said to him to go. As he didnot go I took the rifle and bullet from next bed and ran towards the door. At that time Nabachandra seemed to go a little backward. Then after fitting bullet I fired on the wooden floor to threaten him and threw down the rifle and ran towards other door of the room. I was caught by other men." 8. We find that this confession was not a pure and simple confession; rather it was an explanation to show that he did not intentionally did it but it was done with care as a measure to chase him away. We think that if the appellant had taken this line of defence without retracting the confession and obtained some materials to that effect in cross-examining the PWs of Wangpu, camp, the case would be a good one for right of private defence. But as he retracted and put up a simple and total denial in the trial, the relevant fact that the deceased came with his stengun and wanted to shoot him to death did not come out in evidence. However, to support this submission he relied on Md. Yad Ali vs. State of Assam. (1986) 1 GLR 429 wherein it was held that all reasonable allowance must be given to a bonafide defender of a person when he acts with the instinct of self preservation but pursues his defence a little further than may be strictly necessary to avert the attack. The other case which he placed is State of UP vs. Ram Swamp, (1974) 4 SCC 764 . There it was held that Court can find a plea in favour of the accused without the accused having taken that plea. Mr. The other case which he placed is State of UP vs. Ram Swamp, (1974) 4 SCC 764 . There it was held that Court can find a plea in favour of the accused without the accused having taken that plea. Mr. Jagat Chandra, learned PP, answered that there is no evidence to show that the deceased had held out threat to appe­llant's life with a stengun and that as such the appellant could not have the right of private defence. For the reasons we have said, we are inclined to accept the submission of the learned PP and accordingly we hold that on the facts of the case the appellant is not entitled to have the right of private defence. 9. The next point which also the learned counsel has emphatically sub­mitted is that some facts which came out in the evidence go to show that the deceased provoke the appellant by coming to his room with sten gun and telling that he would die that day. He stated that the appellant, who did not have rifle, took other's rifle and he actually fired it to the ground which some how hit on the thigh of the deceased. He submits that in that view of the matter conviction under section J02 would not be proper and the appellant at best could be convicted only under section 304 Part II IPC. To appreciate this submission we now examine the evidence of the witnesses. The occurrence took place in front of the room which the appellant and PW 4 occupied. PW 4, N. Chaoba Singh, who lived in the same room with appellant stated that he did not know any strange relation between the deceased and the appellant prior to the said occurrence while staying in the said camp. PW 5, Thangompao Vaiphei, is a Sepoy in the Wangpu Camp. He stated that there was a short altercation between Nabachandra (deceased) and accused wherein Nabachandra complained that his report was not accepted by the appellant. In cross-examination this witness (PW-5) told that it might be after 10 minutes of gathering for roll call the altercation between deceased Nabachandra and accused Budha Singh took place for 3 or 4 minutes. He stated that there was a short altercation between Nabachandra (deceased) and accused wherein Nabachandra complained that his report was not accepted by the appellant. In cross-examination this witness (PW-5) told that it might be after 10 minutes of gathering for roll call the altercation between deceased Nabachandra and accused Budha Singh took place for 3 or 4 minutes. The doctor (PW 8) who performed the post mortem on 9.5.75 found a small oval shape hole wound on the left upper and lateral part of thigh 4” below the ilian crase and 1” in front to the mis auxiliary line. He noted the position in front of the upper part of right thigh about 4 centimeters from illiac erase (hip bone) and gave the opinion that the deceased died due to profuse bleeding leading to the hycovolumic shock. PW 12 (Rajendra Singh) SDPO, is the officer who investigated the case and submitted the charge sheet. In cross-examination he stated that there were two sten guns at the Wangpu camp 'at the relevant time and that one sten gun was issued in favour of the deceased Nabachandra Singh. 10. On consideration of the evidence of these witnesses we find that some relevant facts have come out in favour of the appellant even though the appellant retracted the confession and took the plea of total denial. According to the evidence of the doctor. The deceased died due to profuse bleeding. Section 304 Part II is as follows : "304. Punishment for culpable homicide not amounting to murder : Whoever commits culpable homicide not amounting to murder, shall be punished... with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 11. As we said above, some facts which came out in the evidence of PWs that the deceased annoyed the appellant by coming to hi? room. The state­ment of the appellant in the confession that he fired to the ground appears to be correct because it hit on the thigh which was not vital part and this would show that he did not intent to cause death. room. The state­ment of the appellant in the confession that he fired to the ground appears to be correct because it hit on the thigh which was not vital part and this would show that he did not intent to cause death. We are, therefore, of the view that section 304, Part II would be the appropriate section to apply, and not section 302. 12. In the instant case the occurrence took place on 7.5.79. The appellant was arrested on 8.5.79 and was released on bail on 30 7.79. So, the number of days he was in judicial custody before trial was 84 days. After trial the trial Court convicted and sent him to jail on 8.2.84 and in this appeal the Court grated bail to him on 29.3.84 and he was released on bail from jail on 2.4.84. Thus the number of days he was in jail was 55. Taking both into account, the total number of days he was in custody was 139 days. It was held in State vs. Maksudan Singh, AIR 1986 Patoa 38 (FB) that right to speedy and public trial is a constitutional guarantee under Article 21. The delay of more than 8 years has taken place in this appeal and the appellant suffered worries for more than 14 years. Therefore, on consideration if this aspect of the matter the entire facts and circumstances of the case, we are of the view that giving the sentence of RI to the period undergone would meet the ends of justice in this case. 13. In the result, we alter the conviction from section 302 to 304 Part II IPC and sentence him only to the period undergone. The appellant need not surrender to his bail. The bail bond is discharged.