JUDGMENT 1. - This appeal is directed against the judgment dated 9.3.1992 passed by the learned Addl. Sessions Judge, Raisinghnagar whereby accused-appellant Nihal Chand has been held guilty of the offence under S. 302 IPC and accused-appellants Sens Karan, Ramlal, Rajaram and Mohanlal have been held guilty of the offence under S. 302 read with S. 149 IPC. All the accused-appellants have been sentenced to imprisonment for life together with a fine of Rs. 200/-, in default of payment of fine to undergo rigorous imprisonment for two months. 2. The prosecution case briefly stated is that on 24.4.1987 at about 10.30 AM, one Manoharlal, who happens to be the real brother of deceased Prithvi lodged the FIR Ex.P 6 at Police Station Gharsana with regard to the occurrence that took place on that day at about 8.00 AM. In that FIR, it was stated by Manoharlal that his father Ramlal performed two marriages. His first wife happens to be his mother Mst. Sheopari and his second wife is Mst. Sugana. He has further stated that he, Prithvi, Krishna and Rajpal are the sons of Mst. Sheopari and Ramlal whereas Om Prakash; Sens Karan, Nihalchand and Indira are the other four sons of Ramlal from his second wife Mst. Sugana. According to him, Mst. Sheopari and Ramlal lived amicably for some years but before about 15 years from the date of the occurrence, Ramlal abondoned his first wife Mst. Sheopari, whereupon Mst. Sheopari went to Chak Gujari, her home town and started to live with her brother Hetram. 3. After living for two years with her brothers Hetram and Ramswaroop in Chak Gujari, she alongwith her sons shifted at her own Dhani, which has been built on the agricultural land out of 15 bighas of land given by Ramlal to them. It is alleged that Mst. Sheopari and her sons were demanding 5 bighas of more land from Ramlal but Ramlal was not ready to part with another 5 bighas of land. It is further to alleged that Ramlal eventually agreed to allow Mst. Sheopari and her sons to cultivate another 2 bighas of land but when Prithvi went to irrigate the said 2 bighas of land, accused-appellants Ramlal and Senkaran did not allow to him to do so. 4. It is further to alleged that Ramlal eventually agreed to allow Mst. Sheopari and her sons to cultivate another 2 bighas of land but when Prithvi went to irrigate the said 2 bighas of land, accused-appellants Ramlal and Senkaran did not allow to him to do so. 4. It is alleged that on the day of the occurrence, at about 8.00 AM, Prithvi left his Dhani armed with his rifle to look after the land of one Rameshwari Pandey. It is alleged that the land of Rameshwar Pandey was taken on lease by Mst. Sheopari and her sons. It is further alleged that as soon as Prithvi reached a little farther from the Dhani of Nanakram, accused-appellants Ramlal, Rajaram, Nihalchand, Senkaran and Mohanlal cried that the enemy had come and they ran behind Prithvi. On seeing these accused-persons, Prithvi also cried for help. Mst. Sheopari (PW 2) and Mst. Sharbati (PW 3) wife of Prithvi heard the cries and therefore, they started from their Dhani towards Prithvi. When they reached near Prithvi, they say that all these five accused-persons were giving lathi blows on the body of Prithvi. As a result of sustaining lathi blows, Prithvi fell down on the ground. It is alleged that accused Rajaram was also armed with a rifle. In order to save her son Prithvi, P.W. 2 Mst. Sheopari fell down over the body of her son Prithvi but her husband inflicted two lathi blows on her person and threw her away. P.W. 3 Sharbati also made an attempt to provide cover to her husband Prithvi but accused Mohanlal assaulted her with his hands and removed her from there. Thereafter, accused Rajaram loaded his rifle and handed it over to accused Nihalchand and asked the latter to fire the bullets in the chest of Prithvi. Accused Nihalchand, accordingly, took the gun in his hands and fired three shots, which hit Prithvi in the chest and as a result of that Prithvi succumbed to the injuries. Thereafter, accused-appellants ran away towards their Dhani. 5. Thereafter, P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharbati also came to their Dhani and sent for their servant Chhindaram. It is alleged that the first informant Manoharlal, brother of deceased Prithvi had left for Rawala to attend his business work. P.W. 2 Mst. Sheopari and P.W. 3 Mst. Thereafter, accused-appellants ran away towards their Dhani. 5. Thereafter, P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharbati also came to their Dhani and sent for their servant Chhindaram. It is alleged that the first informant Manoharlal, brother of deceased Prithvi had left for Rawala to attend his business work. P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharbati deputed Chhindaram to go to Rawala to inform Manoharlal about this incident and the latter went and informed Manoharlal about this incident. 6. The first informant Manohar Lal immediately contacted Dr. K.G. Aggarwal and asked the latter to go and see Prithvi at the spot and he proceeded to contact his maternal unde P.W. 9 Ramswroop. He and P.W. 9 Ramswaroop then came to their Dhani, where P.W. 2 Mst. Sheopari apprised them of the incident. On the basis of the above information furnished to them by P.W. 2 Mst. Sheopari, the FIR Ex.P. 6 was lodged. The Police immediately registered a case under Sections 302,147,148,149 and 404 IPC and started investigation. 7. The site was inspected by the Police and site plan Ex.P. 7 and site inspection memo Ex.P. 7A were prepared. Here, we would like to make a brief reference to the site plan Ex.P. 7, which would facilitate us to appreciate the prosecution evidence as also the defence plea of the accused-persons. 8. In the site plan Ex.P. 7, the land of Bhoopram Manda has been shown in a square comprising of 25 killas. At place 3', Dhani of Prithvi has been shown. The Dhani of Ramlal has been denoted by number 4' and the Dhani of Birbal and Hanumanram have been shown at Numbers 5' and 6' respectively. At place No. 7, there is a house of Hanumanram on the eastern side of the land of Bhoopram and hereby the canal flows and it has been shown by number 8'. At number 9' there is a temple of Mataji and the agricultural land of one Nanakram has been shown at number 10'. The Dhani of Nanakram has been shown at number 2'. The Investigating Officer found the dead body of Om Prakash lying at Killa No. 12, which place has been marked by letter 'E'. The dead body of Prithvi, was found at place 'X'. The blood stained shoes of Prithvi were found lying at place 'A', which was at a distance of 10 ft. The Investigating Officer found the dead body of Om Prakash lying at Killa No. 12, which place has been marked by letter 'E'. The dead body of Prithvi, was found at place 'X'. The blood stained shoes of Prithvi were found lying at place 'A', which was at a distance of 10 ft. from the place 'X'. The Investigating Officer also found two empty cartridges : one lying at place 'B' and the other lying at place 'C'. The distance between place 'X' and place 'E' is about 70 steps. The Dhani of Nanakram is at a distance of 40 steps from place 'X'. 9. The Investigating Officer also got conducted the post mortem examination of the dead body of Prithvi by P.W. 6 Dr. K.C. Sharma. The Medical Officer found three injuries caused by bullets on the body of deceased Prithvi. He also found as many as 35 injuries caused by blunt weapon. The Medical Officer also examined the injuries on the person of P.W. 2 Mst. Sheopari and according to him, she was found to have sustained two abrasions : one on the anterior aspect of 'left ear in the middle and the other in the middle between interscapular region. Both these injuries were found to be simple and were caused by blunt weapon. 10. The Investigating Officer also collected the blood stained soil as well as controlled soil and sealed the same. The blood stained shoes of deceased Prithvi were also seized vide Memo Ex.P. 11. The two empty cartridges which were found at the place of the occurrence were also seized vide Memo Ex.P. 12. It is alleged that while in custody, the accused-appellant Nihalchand gave information regarding recovery of a rifle, empty cartridges and a bag containing licence of the gun and in pursuance of that information, the aforesaid articles were got recovered by the accused-appellant Nihalchand from an iron box lying in his own house vide Memo Ex.P. 13. The Investigating Officer also recovered lathies at the instance of the accused-persons in pursuance of the information furnished by them under S. 27 of the Evidence Act. 11. After usual investigation, the police filed a challan against the accused-appellants in the court of the learned Munsif & Judicial Magistrate, Anoopgarh from where this case was committed for trial to the court of the learned Addl. Sessions Judge, Anoopgarh. The learned Addl. 11. After usual investigation, the police filed a challan against the accused-appellants in the court of the learned Munsif & Judicial Magistrate, Anoopgarh from where this case was committed for trial to the court of the learned Addl. Sessions Judge, Anoopgarh. The learned Addl. Sessions Judge framed the charges against the accused-persons and they pleaded not guilty to the charges and claimed trial. 12. During trial, the prosecution examined as many as 12 witnesses in support of its case. The statements of the accused-persons were also recorded under S. 313. Cr.P.C. In his statement recorded under S. 313 Cr.P.C., the accused-appellant Senskaran pleaded alibi and stated that at the time of the occurrence, he had gone to Bikaner. The accused-appellants Ramlal and Nihalchand have denied the prosecution case and alleged that at the time of the alleged occurrence, accused Nihalchand and his brother Om Prakash were grazing their cattles in the field. At the time, Prithvi came there armed with a rifle and initially he fired a shot at Nihalchand but the latter saved himself. When Om Prakash proceeded towards accused Nihalchand empty handed to relieve him of the weapon, Prithvi fired a shot which hit Om Prakash in the chest and as a result of that, Om Prakash fell down on the ground and died. Apprehending imminent danger to his person, accused Nihalchand proceeded towards Prithvi and grappled with him in order to wrest the weapon from him. Nihalchand caught the rifle from its butt side whereas Prithvi caught hold of the barrel of the rifle. Prithvi continued to threat Nihalchand to kill him with the gun and in order to ward off the imminent danger to his person, Nihalchand fired a shot which hit Prithvi and he fell down on the ground. Thereafter in order to ascertain whether Prithvi was alive or not, accused Nihalchand inflicted several lathi blows on the body of Prithvi and when he was satisfied that Prithvi and, died, he left the place of the occurrence leaving behind the rifle and a bag containing the cartridges. According to accused Ramlal and Nihalchand, Om Prakash did not cause any injury to Prithvi. In their defence, the accused-appellant have not produced any evidence. 13. After trial, the learned Addl. Sessions Judge held the accused-persons guilty of offences and sentenced them as stated above. The learned Addl. According to accused Ramlal and Nihalchand, Om Prakash did not cause any injury to Prithvi. In their defence, the accused-appellant have not produced any evidence. 13. After trial, the learned Addl. Sessions Judge held the accused-persons guilty of offences and sentenced them as stated above. The learned Addl. Sessions Judge discussed the prosecution evidence in detail and totally disbelieved the evidence of P.W. 1 Devilal. The leamed Addl. Sessions Judge has held that P.W. 8 Saraswati has also named Om Prakash as one of the assailants of Prithvi. He disbelieved the evidence of P.W. 1 Devilal on the ground that his name was not stated in the FIR and secondly it was not probable for him to witness the incident from a distance of about 800 to 1000 feet particularly when the weather was very rough and the visibility was very poor. Accordingly to the learned Addl. Sessions Judge, the statement of Devilal Ex JP. 1 was recorded by the Police on 28.4.1987 whereas the occurrence took place on 24.4.1987. The teamed Addl. Sessions Judge, however, believed the evidence of P.W. 2 Sheopari and P.W. 3 Sharbati. The defence version of the accused-appellants was also considered by the leaned trial Judge after taking into consideration all the circumstances and the ocular evidence of P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharabti and he found the same to be baseless. 14. We have heard Mr. M.L. Garg, the leamed counsel appearing for the accused-appellants, Mrs. Chandralekha, the learned public prosecutor for the State; and Mr. Bhagwati Pd., the learned counsel for the complainant party and have carefully gone through the record of the case. 15. Mr. M.L. Garg, the learned counsel for the accused-appellants has referred to the prosecution evidence exhaustively and submitted that even after the investigation, the Investigating Officer did not find implication of accused Senskaran and so he was not arrayed as an accused in the Challan that was submitted for the committing Magistrate. He has submitted that however, the learned committing Magistrate took cognizance against accused Senskaran also and committed him also for trial. It has been contended by Mr. Garg that except P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharbati, no other witness has named accused Senskaran taking part in the occurence. P.W.8 Mst. Saraswati and P.W. 9 Ramswaroop have also omitted the name of accused Senskaran. 16. It has been contended by Mr. Garg that except P.W. 2 Mst. Sheopari and P.W. 3 Mst. Sharbati, no other witness has named accused Senskaran taking part in the occurence. P.W.8 Mst. Saraswati and P.W. 9 Ramswaroop have also omitted the name of accused Senskaran. 16. He has further contended that it was humanly improbable that P.W.2 Mst. Sheopari and P.W.3 Mst. Sarbati could have witnessed the occurrence from their Dhani. According to him, in her statement before the Court, P.W.2 Mst. Sheopari admitted that at the time of the occurrence the weather was very rough and the visibility was very very poor. He has, therefore, argued that these two witnesses viz., P.W.2 Mst. Sheopari and P.W.3 Mst. Saraswati could not have witnessed the occurrence from such a long distance. 17. Mr. Garg also pointed out that the statements of P.W.2 Mst. Sheopari and P.W. 3 Mst. Sharbati are full of contradictions, omissions and improvements. He has contended that when Prithvi fired a shot at Om Parakash and as a result of which, the latter fell down and died, accused Nihalchand who was also with Om Prakash became apprehensive and thought it necessary to snatch the rifle from the hands of Pritvi and in that process, he grapled with Prithvi. Prithvi caught hold of the rifle from its barrel side whereas accused Nihalchand caught it from its butt side. Even then, Prithvi was not subdued and continued to exclaim that he will kill Nihalchand and so the danger to the personal safety of accused Nihalchand was very imminent, real and potent. According to him, in such circumstances, the law recognises the right of private defence and permits such person to ward off such danger and even to kill the assailant. He has, therefore, argued that in order to save his person from the imminent danger created by Prithvi, accused Nihalchand fired the rifle, as a result of which, Prithvi was hit and fell down on the ground and succumbed to the injuries. 18. The learned Public Prosecutor has fully supported the judgment of the learned trial Judge and submitted that the conviction and sentences recorded by the leamed Addl. Sessions Judge against the accused-appellants do not deserve any interference. 19. We have considered the rival submissions made at the bar and have also perused the evidence on record. 20. 18. The learned Public Prosecutor has fully supported the judgment of the learned trial Judge and submitted that the conviction and sentences recorded by the leamed Addl. Sessions Judge against the accused-appellants do not deserve any interference. 19. We have considered the rival submissions made at the bar and have also perused the evidence on record. 20. At the very outset, we may state that the factum of death of Prithvi by fire-arm has not been disputed by the accused-appellants. On the contrary, accused-appellant Nihalchand has taken the plea that in order to save his person from the imminent, real and potent danger created by Prithvi he wanted to snatch the gun from the hands of Prithvi and in that process, they grappled with each other and sensing the imminent danger, he fired the rifle which hit Prithvi. Hence we hold that the death of Prithvi was homicidal in nature. 21. Admittedly, the prosecution has produced four alleged eye witnesses Viz., P.W.l Devilal and P.W.2 Mst. Sheopari,P.W.S Mst. Sharbati and P.W.8 Mst. Saraswati. P.W.l Devilal has stated that he was sitting at the shop of Deenaram at the time of the occurrence and when he heard some noise, he stood up and saw from the shop of Deenaram that Prithvi was firing his rifle at accused Nihalchand. He has further stated that Prithvi fired in the air and in the meantime, Om Prakash armed with lathi came and struck a lathi blow on the head of Prithvi. Thereupon, Prithvi fired the bullet from his rifle which hit Om Prakash and he fell down on the ground. After inflicting the above injuries, it is alleged that Prithvi tried to rim away but the accused-appellants Rajaram, Ramlal, Mohanlal and Nihalchand armed with lathies chased him. He has further stated that accused Nihalchand struck a lathi blow on the hand of Prithvi, as a result of which, the rifle fell down from his hands. Accused Rajaram picked up that rifle. He has also stated that Prithvi fell down on the ground after running for about one and half bigha and then all the four accused-appellants started inflicting lathi blows on Prithvi. 22. According to P.W.l Devilal, P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati came to save Prithvi but accused-appellants Ramlal and Mohanlal pushed them aside. Accused Ramlal also dealt two lathi blows to Mst. Sheopari. 22. According to P.W.l Devilal, P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati came to save Prithvi but accused-appellants Ramlal and Mohanlal pushed them aside. Accused Ramlal also dealt two lathi blows to Mst. Sheopari. Thereafter, accused Rajaram loaded the rifle and handed over the same to accused Nihalchand and exhorted him to fire at Prithvi. Accused Nihalchand accordingly fired the rifle at Prithvi but he does not remember which part of his body was hit. The accused-appellants then left the place of the occurrence. 23. It may be noted here that P.W.l Devilal has not name accused Senskaran. In his cross examination, he has admitted that the distance between the place of the occurrence and the shop of Deenaram was about one and half Murabba. He stated that Jogansingh and the wife of Bheraram were not there, though in his statement under S. 161 Cr.PC, he has stated about the presence of Jogansingh and the wife of Bheraram at the place of the occurrence. 24. P.W.2 Mst. Sheopari is the mother of Prithvi. She has stated that on the date of the occurrence, her son Prithvi left the Dhani at about 8.00 A.M. in order to look after the field of Rameshwar Pandey, which they had taken on lease. Prithvi was armed with a rifle and a belt of cartridges. After some time, they heard the cries 'MAR LO MAR LO' from the side of the Dhani of accused Ramlal. Thereupon she alongwith her daughter-in-law P.W. Mst. Sharbati went towards the place where accused-persons were beating her son Prithvi. P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati both have named all the five accused-appellants viz., Ramlal, Mohanlal, Rajaram, Nihalchand and Sens Karan, who participated in the above incident. According to P.W.2 Mst. Sheopari, as soon as she reached the place of the occurrence, she saw that accused-persons were inflicting lathi blows to Prithvi. She has further stated that accused Rajaram was having a rifle and a lathi in his hands. When she and Mst. Sharbati tried to intervene, they were pushed aside and accused Ramlal also inflicted two lathi blows to her. She has further stated that Rajaram handed over the rifle to accused Nihalchand and asked the latter to fire the same at Prithvi. Nihalchand, accordingly fired three shots which hit Prithvi on the chest. When she and Mst. Sharbati tried to intervene, they were pushed aside and accused Ramlal also inflicted two lathi blows to her. She has further stated that Rajaram handed over the rifle to accused Nihalchand and asked the latter to fire the same at Prithvi. Nihalchand, accordingly fired three shots which hit Prithvi on the chest. Thereafter, the accused-persons left the place of the occurrence and went to their Dhani and she also came to her Dhani and called her servant Chhindaram and asked him to call Manohar. When Manohar came she narrated the entire incident to him. 25. P.W.3 Mst. Sharbati has given more or less a similar statement as has been given by P.W.2 Mst. Sheopari. In her statement recorded under S. 161 Cr.PC, P.W.3 Mst. Sharbati has not stated that she heard the cries 'MAR LO MAR LO' etc. Not only P.W.2 Mst. Sheopari but also P.W.3 Mst. Sharbati has also pleaded ignorance as to what happened to Om Prakash, though P.W.3 Mst. Sharbati admitted that Om Prakash has died but she does not know how Om Prakash died. 26. P.W.8 Mst. Saraswati has stated that she saw the occurrence at 4.00 A.M. on the date of the occurrence. Accused-appellants Ramlal, Nihalchand, Rajaram, Om Prakash and Mohanlal were beating Prithvi. In her cross-examination, she admitted that she was brought to the court by P.W.9 Ramswaroop, the brother of P.W.2 Mst. Sheopari for the purpose of evidence and she gave her evidence as directed by Ramswaroop. She has categorically stated that accused Senskaran was not there at the time of the occurrence. She also stated that accused Nihalchand and Prithvi were grappling with each other and accused Nihalchand was trying to snatch the rifle from Prithvi. 27. There is one very important fact stated by P.W. 2 Mst. Sheopari. In her cross-examination, she has stated that she did not hear any sound of shots being fired from the rifle because the sand-storm was blowing and the visibility was very poor. If this fact is taken into consideration, it becomes very clear that on the date of the occurrence on account of the sand-storm, the visibility was very poor and it was humanly not possible for any witness to have witnessed the occurrence even from a short distance. 28. From the statement of P.W.2 Mst. Sheopari and P.W.3 Mst. If this fact is taken into consideration, it becomes very clear that on the date of the occurrence on account of the sand-storm, the visibility was very poor and it was humanly not possible for any witness to have witnessed the occurrence even from a short distance. 28. From the statement of P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati, it is crystal clear that they reached the place of the occurrence and saw the entire incident after reaching there. The presence of P.W.2 Mst. Sheopari at the place of the occurrence is corroborated by the fact that when she wanted to provide a cover to her son Prithvi at the time when accused persons were giving beating to him, her husband assaulted her with lathi and in that process, she sustained injuries on her left ear and scapular region. This is corroborated by her Injury Report Ex.P.54 which has been proved by P.W.6 Dr. K.C. Sharma. The presence of P.W.3 Mst. Sharbati at the place of the occurrence is also natural because P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati were living together. We are, therefore, convicted that these two witnesses viz., P.W.2 Mst. Sheopari and P.W.3 mst. Sharbati must have witnessed the occurrence after reaching the place of the occurrence. They have stated that all the five accused-persons were assaulting Prithvi with lathies and several lathi blows were inflicted on him. 29. There is a doubt about the presence of accused Senskaran at the place of the occurrence. P.W.8 Mst. Saraswati and P.W.9 Ramswaroop both have categorically stated that accused Senskaran was not there. P.W.l Devilal also made a similar statement. Even the Investigating officer also stated that after investigation he found no case against accused Senskaran because it was proved that at the time of the occurrence, he had gone to Bikaner. 30. We may also state that P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati are not telling the whole truth. They have not admitted that Om Prakash also died. In fact P.W.2 Mst. Sheopari does not remember whether Om Prakash died. The dead bodies of Prithvi and Om Prakash were lying at a distance of about 100 feet from each other. Thus it is clear that these witnesses are not telling the whole truth about this incident. They have not admitted that Om Prakash also died. In fact P.W.2 Mst. Sheopari does not remember whether Om Prakash died. The dead bodies of Prithvi and Om Prakash were lying at a distance of about 100 feet from each other. Thus it is clear that these witnesses are not telling the whole truth about this incident. However it is well settled that it is the duty of the Court to scrutinise the evidence carefully and in terms of the felicitous methaphor separate the grain from chaff but it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. In this respect, we may place reliance on Ugar Ahir v. State of Bihar (AIR 1965 SC-277) . 31. We may state here that P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati are not speaking truth regarding presence of accused Senskaran at the time of the occurrence. They have also stated that accused Rajaram loaded the rifle, handed it over to accused Nihalchand and exhorted him to fire at Prithvi and that also does not appear to be correct for the simple reason that in their statements recorded by the police under S. 161 Cr.PC they have not stated this very material fact. Hence it appears to be an improvement. 32. Moreover, P.W.6 Dr. K.C. Sharma has stated that he conducted the postmortem examination of the dead body of deceased Prithvi and he found as many as 35 injuries inflicted by blunt weapon on his person. This is suggestive of the fact that Prithvi was assaulted mercilessly by the accused-persons. The version of P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati that it was accused Nihalchand who fired the rifle at Prithvi and the bullets fired from that rifle hit Prithvi and as a result of that, Prithvi died instantaneously in the field also appears to be correct. 33. Now we may examine the defence plea raised by accused-appellants Rajaram and Nihalchand in their statements under S. 313 Cr.PC. The crux of the plea is that when Prithvi fired the rifle at Nihal, it missed the target and then Prithvi fired the rifle at Om Prakash, as a result of which he sustained bullet injuries and died on the spot. The crux of the plea is that when Prithvi fired the rifle at Nihal, it missed the target and then Prithvi fired the rifle at Om Prakash, as a result of which he sustained bullet injuries and died on the spot. In his statement under S. 313 Cr.PC, accused Nihalchand has stated that he apprehended that Prithvi might commit his murder as well and he, therefore, grappled with him empty handed in order to relieve him of the rifle so that his contemplated move to assault him may be frustrated. He has stated that he caught hold of the rifle from its butt side whereas Prithvi was holding the rifle from barrel side. Apprehending imminent danger to his life, he fired the rifle at Prithvi, which hit in his chest and he fell down. The accused-appellant Nihalchand has further stated that thereafter, in order to ensure himself that Prithvi had died and was not in a position to put any danger to them, he assaulted him with lathi also. If we examine the pleas of accused Nihalchand with reference to his right of private defence of person, we find that accused Nihalchand has not been able to prove that he fired at Prithvi in exercise of his right of private defence of person. The right of private defence is purely defensive and not punitive or retributive. The right of self defence is not a right to take revenge nor is it a right for reprisal. It is a right which in fact is meant to. ward off the danger of being attacked but the danger must be so imminent, potent and red that it cannot be averted otherwise than by a counter attack. The right of private defence is available in the face of peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be caused as a shield to justify an act of aggression. 34. If we analyse the sequence of events, we find that the defence plea asserted by accused-appellants is not at all probable. 34. If we analyse the sequence of events, we find that the defence plea asserted by accused-appellants is not at all probable. When Prithvi committed the murder of Om Prakash by firing bullets from his rifle, it was not at all possible or probable that accused Nihalchand could have mustered up his courage to make an attempt to west the rifle from Prithvi, who had just before taken away the life of his brother Om Prakash. Such a dare devil act cannot be expected from a person who is empty handed and who has seen his own brother being murdered by the assailant. The most important fact which needs to be noted is that after firing the bullet which hit Om Prakash, Prithvi did not make any attempt to fire his rifle at accused Nihalchand. Nor any attempt was made even to point out the rifle at Nihal. Hence when accused Nihalchand proceeded to wrest the rifle from Prithvi, there was no apprehension or danger to his life either real or proximate. It is, therefore, not correct that Prithvi started threatening as soon as accused Nihalchand grappled with him in order to snatch the rifle from him. Then what was the necessity of firing three bullets from the rifle because even the first bullet had hit Prithvi in the chest and he fell down and after that even the remote possibility of Prithvi attacking the accused Nihalchand was totally finished. The accused Nihalchand even after firing three bullets in the chest of Prithvi assaulted continuously and mercilessly a hapless victim with his lathi. In these circumstances, we hold that accused Nihalchand did not fire the rifle at Prithvi in exercise of his right of private defence of person. 35. We have already held that accused Nihalchand was responsible for the murder of Prithvi by firing three shots from his rifle which killed Prithvi instantaneously. Now, the other important question that survives for determination is whether accused-appellants Rajaram, Mohanlal and Ramlal had any common object with accused Nihalchand to commit the murder of Prithvi. We have already held that accused Senskaran was not present at the time of the occurrence and he did not participate in the occurrence and, therefore, he deserves to be acquitted of the offences with which he has been charged. 36. It has come in the evidence that initially the accused persons were beating Prithvi with lathis. We have already held that accused Senskaran was not present at the time of the occurrence and he did not participate in the occurrence and, therefore, he deserves to be acquitted of the offences with which he has been charged. 36. It has come in the evidence that initially the accused persons were beating Prithvi with lathis. Accused-appellants Rajaram and Nihal Chand had no rifle with them. The rifle was picked up when accused Rajaram dealt a lathi blow on the hand of Prithvi. Thereafter, according to P.W.2 Mst. Sheopari and P.W.3 Mst. Sharbati, accused Rajaram loaded the rifle and handed it over to accused Nihalchand and exhorted him to fire the same at Prithvi. This part of the prosecution story has not been believed. Our conclusion, therefore, is that it was accused Nihalchand alone who fired the rifle, as a result of which Prithvi died. 37. Since accused Nihalchand was not having a rifle with him in the beginning and all the accused-persons started assaulting Prithvi with lathies, it cannot be said that all the accused-persons shared a common object or intention to kill Prithvi with the rifle. It is accused Nihalchand who committed the murder and other accused-persons did not share that action as there was no time for meeting of the mind and deliberations. 38. In view of what has been discussed hereinabove, we are firmly of the opinion that accused-appellant Senskaran deserves to be acquitted of the offences with which he has been charged. The conviction of accused-appellants Mohanlal, Rajaram and Ramlal for the offence under S. 302/149 IPC cannot be sustained. However, they are held guilty of the offence under S. 323 IPC. The conviction of accused-appellant Nihalchand deserves to be sustained. 39. In the result, this appeal is allowed in part. The conviction and sentence recorded against accused-appellants Senskaran, Rajaram, Mohanlal and Ramlal for the offence under section 302/149 IPC are set aside and they are acquitted of the said offence. However, the accused-appellants Rajaram, Mohanlal and Ramlal are convicted of the offence under section 323 IPC and each of them is sentenced to rigorous imprisonment for 9 months. The conviction and sentence recorded against accused-appellants Senskaran, Rajaram, Mohanlal and Ramlal for the offence under section 302/149 IPC are set aside and they are acquitted of the said offence. However, the accused-appellants Rajaram, Mohanlal and Ramlal are convicted of the offence under section 323 IPC and each of them is sentenced to rigorous imprisonment for 9 months. The period of sentence already undergone by them shall be set off against this sentence of imprisonment under section 428 Cr.PC and if these accused-appellants viz., Rajaram, Mohanlal and Ramlal have already served out the above sentence, they be released forthwith if their detention is not required in any other case. The accused-appellant Senskaran is already on bail and he need not surrender. His bail bonds are discharged.The conviction and sentence recorded against accused-appellant Nihalchand by the learned Addl. Sessions Judge, Raisinghangar for the offence under section 302 IPC is maintained.Let the record of this case be sent forthwith to the learned lower court for necessary compliance. *******