R. N. RAY, J. ( 1 ) THIS appeal has been directed against the judgement and order of sentence passed by Sri K. K. Sharma learned Additional Sessions Judge, IV Court at Mathura in Session Trial No. 373 of 1979 u/s. 302, I. P. C. police station Sahpau, Mathura which arose out of Crime No. 48 dated 9-4-73 of the said police station. The learned Court below found the accused Bhudeo guilty for the offence and after hearing him on the ground of sentence convicted him to suffer R. I. for life for the said offence and he was pleased to acquit his wife Smt. Harkesha for the charge u/s. 302/114 I. P. C. ( 2 ) THE prosecution case is that a FIR was lodged at the said police station Sahpau at 10. 15 a. m. on 5. 8. 79 by one Mahendra Singh alleging that Smt. Harkesha wife of the accused Bhudeo supplied the licensed gun to Bhudeo who killed Madho Singh with a gun shot fired from the said gun. After the FIR was lodged the police took investigation which was completed by submission of charge-sheet on 19-9-79 against the accused persons Bhudeo and his wife Smt. Harkesha. The learned Chief Judicial Magistrate, Mathura took cognizance and after complying the provisions of Sections 207/209 Cr. P. C. committed the case to the Court of learned Sessions Judge on 10-12-79. The case was transferred to the learned trial Court below who upon hearing the learned counsel for the parties framed charges and explained the same to the accused persons who pleaded not guilty and claimed to be tried. ( 3 ) AS per prosecution story the accused persons were living at a short distance from the house of the deceased at village Persora P. S. Sahpau district Mathura. The house of the accused was facing north and he had constructed a Chabutara infront of his house extending up to the common path way of the village. Across this path way the residential house of the deceased Madho Singh is situated. A small piece of land was acquired by deceased Madho Singh which was adjacent to the Chabutara of the accused. The deceased was to use that open piece of land for tethering his cattle and other alike purposes. The land belonging to the deceased was at a lower level than the level of the Chabutara of the accused. A small piece of land was acquired by deceased Madho Singh which was adjacent to the Chabutara of the accused. The deceased was to use that open piece of land for tethering his cattle and other alike purposes. The land belonging to the deceased was at a lower level than the level of the Chabutara of the accused. About a month earlier to the fateful incident accused had installed a hand-pump in their house and allowed refuse/excess water to flow towards the north after getting out from his doorsill towards that Chabutara. The water discharged from the hand pipe was to fall on the land of the deceased. The deceased resented to that action and wanted the accused to stop the water flowing over his land which he had acquired for keeping the cattle. Since about one month of the installation of the hand-pump exchange of heated words took place several times between Madho Singh (deceased) and the accused. On 5-8-79 at about 9. 00 a. m. Madho Singh was levelling his land as the same used to get wet by the fall of water discharged from the hand-pump of the accused. Accused appellant wanted that the deceased to stop spreading earth on that vacant land of the decased as accused wanted to take his drain through that land. Altercation took place between them over that matter. Madho Singh deceased had given out that he would not allow the drain to pass over his land and he would not stop from levelling his own land which irritated the accused persons and then the accused appellant was supplied a gun his instance, by his wife. After getting the gun which was handed over to the appellant by his wife, the accused-appellant fired a shot from his licensed gun hitting Madho Singh near his neck as a result Madho Singh fell down and breathed his last. Thereafter the appellant and his wife ran away towards the south through their residential enclosure and bolted the door from inside and thereafter fled away from their house. A FIR was lodged at the police station by P. W. Mahendra Singh. The Investigating Officer came and conducted the investigation. He held the inquest and prepared inquest report and sent the dead body of Madho Singh for post mortem examination through a police guard. A FIR was lodged at the police station by P. W. Mahendra Singh. The Investigating Officer came and conducted the investigation. He held the inquest and prepared inquest report and sent the dead body of Madho Singh for post mortem examination through a police guard. He collected materials as well as ocular evidence and took signatures of the witnesses on the seizure lists. The accused Bhudeo surrendered himself in Court along with his licensed gun and its licence. The I. O. with the leave of the Court took the gun and the spent up cartridge and sent those to the ballistics expert for comparison. Be it noted those spent up cartridge was found near the place of occurrence and was seized by I. O. against a proper seizure list. The post-mortem was conducted by Dr. Dinesh Kumar of district hospital at Mathura on 6-8-79 at 11. 00 a. m. Dead-body of the deceased was dully identified by the police constable to that doctor. ( 4 ) IT is the case of the appellant that he fired at the deceased which resulted in his death but he had to do so in exercise of his right of private defence as deceased Madho Singh hit his wife by spade resulting in bleeding injury and was going to hit the appellant Bhudeo also by spade. He had no other alternative but to fire at him to save his wife and stop aggression to their land by the deceased. Since the accused had claimed right of private defence so the death caused by the gun shot made by the accused appellant stood admitted. It is to be examined whether he was justified in firing at deceased Madho Singh in exercise of his right of private defence. ( 5 ) IT has been contended by the learned counsel for the appellant that the appellants wife injured by the blow of spade made by Madho Singh and Madho Singh was going to hit him also by that spade and as such there was absolute necessity to use fire-arm for saving lives of his wife and of himself and also for protection of their property. It has been submitted that there was only one gun shot and parties were having strained relations from before the incident and as such it was naturally apprehended that Madho Singh would not stop from hitting the accused appellant because he had already inflicted injury on the leg of his wife causing bleeding injury. ( 6 ) THE prosecution examined PW-1 head constable Omkar Singh, who prepared the chik report on the basis of the written report received by him and proved the other entries in other various police papers. PW-2 Mahendra Singh was the brother of the deceased who claimed to be the eye-witnesses of the occurrence and as per his versions he was attracted to the place of occurrence on hearing of noise coming from their house and actually saw the incident and he lodged FIR PW-3 Virendra Singh also claimed to have witnessed the occurrence. PW-4 Km. Usha the daughter of the deceased claimed to be an eye-witness of the occurrence. PW-5 Dr. Dinesh Kumar conducted the post mortem examination on the dead body of Madho Singh and prepared report. PW-6 S. I. Maharaj conducted the earlier part of the investigation. PW-7 constable Bhika Ram took the dead body from the spot to the mortuary and identified the dead-body to PW-5. PW-8 was the pharmacist Brij Mohan Khandelwal who sent the blood stained earth and the clothes of the deceased for Chemical and Serological examination at the instance of police. PW-9 constable Ram Narain Singh, took the case property to Agra for chemical examination in a sealed state. PW-10 S. I. Ram Kumar Singh conducted some later part of the investigation. PW-11 S. I. O. P. Kulshreshta, kept the property in a sealed state in the Sadar Malkhana and had also sent the property to the ballistics expert for comparison. The Sub Inspector who investigated at the end of the investigation submitted charge sheet was not formally examined. The filing of charge sheet was duly proved through secondary evidence of PW-6 S. I. Maharaj Singh. ( 7 ) IT has been submitted by the learned counsel for the appellant that PW-2 Mahendra Singh was in his land and was busy in agricultural works and he came to the place of occurrence atleast 3-4 minutes after raising of alarm by PW-3 and 4. ( 7 ) IT has been submitted by the learned counsel for the appellant that PW-2 Mahendra Singh was in his land and was busy in agricultural works and he came to the place of occurrence atleast 3-4 minutes after raising of alarm by PW-3 and 4. PW-3 is the nephew and PW-4 is the daughter of deceased and both of them claimed to be eye-witnesses. They had stated on oath contrary to the facts claiming themselves as eye witnesses. In reality they were not present at the spot at the time of occurrence. They came there on hearing of the sound of gun shot. It was the case of the accused person that in the morning hours Madho Singh was cutting their Chabutara when his wife, who was going for morning call and asked the deceased not to do so. There was some scuffle between the deceased and the wife of Bhudeo. Madho Singh caused injury to the wife of Bhudeo by spade. Hue and cry was made by Smt. Harkesha and then the accused Bhudeo came out of his house armed with his licensed loaded gun. He asked the deceased not to do the offensive act but the deceased did not pay any heed and moved towards him with his spade. The accused apprehended danger and for safety of his wife and property he fired from his gun which hit Madho Singh and Madho Singh fell down and died. This accused admitted that the empty cartridge belonged to him and that was the cartridge which was used for firing upon the deceased. ( 8 ) TO support the defence case DW-1, Daryab Singh was examined who deposed that the incident took place as stated by accused Bhudeo and his wife Smt. Harkesha while they were being examined u/s. 313 Cr. P. C. According to this witness DW-1, Daryab Singh, the deceased Madho Singh, advanced towards the accused holding his spade head-high and reached at a distance of two feet from the accused Bhudeo who then fired a shot from his gun in self defence. This witness said that he found bleeding injury on the foot of Smt. Harkesha wife of appellant which was caused by the deceased by the spade. This witness said that he found bleeding injury on the foot of Smt. Harkesha wife of appellant which was caused by the deceased by the spade. According to this witness the daughter of the deceased came at the spot after 4-5 minutes and Virendra Singh PW-3 and Mahendra Singh PW-2 also came there after 3-4 minutes of the incident and none of them were eye-witnesses barring of DW-1. Mahendra Singh had deposed that his house was situated at a short distance from the house of the deceased. According to this witness, to the west of this land, was the Chabutara of accused Bhudeo and to the south of that Chabutara was the residential house of the accused and one pit was made by the accused for collection of the refuse water. That pit was towards south-east of that Chabutara. This witness deposed that he was sowing crop in his fields. He heard the sound of the gun shot and also some noise. He came to his house and found that the dead body of Madho Singh was placed on a cot. He also found the wife and daughter of Madho Singh, Vijendra Singh, Virendra Singh and may other persons of the village near the dead body. He heard the incident from them and he accordingly prepared a written report and lodged the FIR. This witness was cross-examined at length but nothing revealed to brand him as eye-witness. ( 9 ) PW-3 Virendra Singh corroborated the prosecution version. According to him he came out from his house at about 9. 00 a. m. and saw exchange of abusing words between accused Bhudeo and his wife on the one side and deceased Madho Singh on the other side. Wife and daughter of Madho Singh were also standing by his side and villager named Bijendra Singh was also present there. That witness had seen that Madho Singh was levelling his vacant land where he used to tether his cattle and he was placing earth on it. Accused Bhudeo asked him to stop putting the earth there as he would take his water drained through that land. There was hot exchange of words between the two. Madho Singh gave out that he would not allow water to drain out through his land till he was alive. Accused Bhudeo asked him to stop putting the earth there as he would take his water drained through that land. There was hot exchange of words between the two. Madho Singh gave out that he would not allow water to drain out through his land till he was alive. On this challenge accused made a gesture to his wife who went inside the house and brought a loaded double barrel gun and handed over the same to her husband Bhudeo who immediately pointing out the gun towards the deceased and uttered the words that Madho Singh should be ready to meet his death and then he fired a shot from his gun which hit Madho Singh and Madho Singh fell down and died. Immediately the accused Bhudeo and his wife ran inside their house, locked it from inside and ran away towards the south. The dead body of Madho Singh was lifted from the ground and placed on a cot as they thought that Madho Singh might be alive. The brother of Madho Singh appeared on the scene and enquired about the incident from the persons present at the spot who described the incident to him. This witness indentified the wearing clothes and the shoes of thedeceased Exts. 1 to 4. The police officer collected blood stained sample earth from the place beneath the dead-body and also recovered an empty cartridge found near the pit of the accused, seized those materials against proper seizure lists prepared in presence of the witnesses who subscribed their respective signatures on the same. ( 10 ) SINCE there was no challenge on this point regarding the part of the investigation after the alleged incident we do not think that we should discuss the matter at all. We carefully examined the evidence given by the PWs-2, 3 and 4 and found consistency in the statements on oath and they practically remained unshaken throughout. PW-3 and 4 corroborated each other in material particulars relating to the alleged incident. From the evidence of PWs-2, 3 and 4 and the sketch map prepared by the I. O. , it can be well gathered that the deceased Madho Singh was on his land when he was shot at his neck by the accused appellant. It is true that hot exchange of abuse was going on. From the evidence of PWs-2, 3 and 4 and the sketch map prepared by the I. O. , it can be well gathered that the deceased Madho Singh was on his land when he was shot at his neck by the accused appellant. It is true that hot exchange of abuse was going on. On hearing noise PWs-3 and 4 came there but it was not known who started first abusing the other side. From the evidences of PWs-3 and 4 it is crystal clear that when the accused appellant and his wife on one side and deceased Madho Singh on the other side were exchanging hot-words at that time the accused appellant had no gun. At his instance the gun was supplied by his wife who then fired at the deceased. It is not the case of the accused appellant that when Madho Singh was hardly two feet off from him and held the spade head-high then he jumped back and fired at him to save his life. The version of DW-1 is also not to that effect. Moreover, there was no schorching mark on the neck of the deceased but there was only blackening near the entry shot at the neck of the deceased which pointed out that the gun fire was made from a close distance but it was definitely from a distance of 5 or 6 feet otherwise that would have been schorching mark near the entry of the gun shot injury. ( 11 ) WE do not think it is a fit case for exercise of private defence as asserted by the defence. Even assuming for arguments sake that there was any scope of exercise of private defence then it was clear that accused appellant exceeded his limit which resulted in the death of Madho Singh who was on his land and had not entered upon the land of the accused appellant. We are not sure who started first hurling abusive languages, but it transpired from evidences that hot exchanges of abusive languages took place prior to the gun shot injury made upon the deceased. As it was a single shot which hit the vital part of the body of the deceased we think it was done on the spur of the moment by the accused appellant. It was not a pre-planned murder to satisfy revenge. As it was a single shot which hit the vital part of the body of the deceased we think it was done on the spur of the moment by the accused appellant. It was not a pre-planned murder to satisfy revenge. ( 12 ) SO, in considering, of all aspects of the matter before us we are inclined to hold that the accused appellant was guilty of the offence u/s. 304 Part I, I. P. C. and not u/s. 302 I. P. C. Accordingly order of sentence stands modified hereunder : ( 13 ) THE accused appellant Bhudeo is to suffer R. I. for 10 years and the period of detention as under trial prisoner shall be set off against the terms of the sentence u/s. 428 Cr. P. C. The seized articles be disposed of as per Rules. Thus appeal stands partly allowed. In view of our discussions made above we do not find anything to interfere with the judgement and order of acquittal passed in favour of the accused appellants wife Smt. Karkesha as there was no perverse findings so the revision fails and is dismissed. The accused appellants bail bonds stand cancelled and sureties be discharged if they produce accused appellant in Court below. Accused appellant be taken into custody and be sent to jail to serve out the balance period of sentence. Appeal partly allowed. .