JUDGMENT The appellant has preferred this Appeal against his conviction under Section 307 of the Indian Penal Code and the sentence of 3 years' rigorous imprisonment awarded to him by the Judgment dated 27.01.1992 of the learned Additional Sessions Judge Manendragarh in Sessions Trial No. 330/1989. 2. The accused was tried for the said offence for having intentionally caused injuries to Santu @ Surendra Singh on 4.09.1998 by firing a shot at him from a revolver in circumstances that if Santu had died, he would have been guilty of murder. The prosecution case, in brief, was that on the said date at about 9.45 p.m. the complainant Santu @ Surendra Singh was in the company of his friend Narad (PW 1) where they were joined by Subhash Chandra Khanna (PW 5). It is alleged that while Santu was sawing the leg of the 'PAN THELA' of the accused with a hand saw the accused saw him from the roof of his house and started abusing him. Complainant Santu along with Narad and Subhash Khanna then came near the house of the accused and asked the accused not to abuse and if he wanted to fight with them he should come down. It is alleged that just then the accused fired a shot from country made weapon causing injury near the neck of Santu. Santu started profusely bleeding and all of them then started running away but near Aruna Talkies, Santu fell down and he was then taken by Narad and Subhash to the police station Chirimiri where Narad lodged report Ex. P/1. Santu was immediately sent to the hospital for medical treatment. His injuries were examined by Dr. RR. Gajbhiye (PW 4) who gave his report Ex. P/5-A According to PW 4 Dr. Gajbhiye there was a punctured wound 1/2" x 1/2" x 3/4" having dark contours over middle point of the neck between both clavicles just above the sternum with profuse bleeding. 3. On receipt of the Report Ex. P/1, PW 3 K.K. Sharma, ASI, after sending the injured to the hospital for treatment proceeded to the house of the accused where he took the accused into custody. On interrogation the accused gave information that he had concealed the revolver and the cartridges by burying them behind his house. This information was recorded in memo Ex. P/1, PW 3 K.K. Sharma, ASI, after sending the injured to the hospital for treatment proceeded to the house of the accused where he took the accused into custody. On interrogation the accused gave information that he had concealed the revolver and the cartridges by burying them behind his house. This information was recorded in memo Ex. P/3 at 11.30 p.m. and in pursuance thereof a country revolver with cartridges in the chamber and two rounds separately wrapped in a plastic packet along with the cover of the revolver were recovered at the instance of the accused on the same day at 11.45 p.m. and seized vide memo Ex P/4. In view of the critical condition of Santu memo Ex. P/6 was sent to the Doctor for recording his dying declaration which was recorded at 10.15 p.m. by the Doctor vide Ex. P/6-A. Further investigation was taken up by N.R. Lahane ASI who on receipt of the case diary on 5.09.1988, proceeded to the spot and took samples of the blood stained and plain earth vide memo Ex. P/7. He also seized the blood stained Baniyan and shirt of the complainant vide Ex. P/2 and sent all the seized articles to the Forensic Science Laboratory through the Superintendent of Police vide memo Ex. P/8. The Reports Ex. P/9 and P/10 were received from the Forensic Science Laboratory to the effect that the revolver sent for examination was in working order and the empty round in the chamber of the revolver had been fired through the same revolver. The Report also confirmed that the presence of nitrite in the barrel of the revolver indicated that the weapon had been recently fired. After obtaining the Report of the Radiologist (Ex P/12-A) and taking other necessary steps the accused was prosecuted. 4. The accused pleaded not guilty to the charge under section 307. The learned Additional Sessions Judge on the basis of the evidence of the eye-witnesses the medical evidence and the other circumstances such as the recovery of the weapon from the accused found the accused guilty and convicted and sentenced him as stated above. 5. 4. The accused pleaded not guilty to the charge under section 307. The learned Additional Sessions Judge on the basis of the evidence of the eye-witnesses the medical evidence and the other circumstances such as the recovery of the weapon from the accused found the accused guilty and convicted and sentenced him as stated above. 5. The learned counsel for the appellant has submitted that the FIR in the case was a concocted document the story given by the injured and the eye-witnesses was different which rendered their testimony unworthy of credence the complainant side was admittedly committing mischief and had thereafter adopted an aggressive stance with the result even assuming that the accused had fired the pistol and caused injury his act was fully justified in law and that the prosecution having not produced the report with regard to the surgical treatment given to the complainant and having not examined the independent eye-witnesses the conviction of the appellant was unsustainable. 6. In the present case the prosecution in addition to the examination of the complainant Santu @ Surendra as PW 2, has examined PW 1 Narad and PW 5 Subhash Chandra Khanna as eye-witnesses to the incident PW 1 Narad has deposed that he had gone with Santu to Digambar Lodge to have meals and while they were returning and had reached near a culvert where the accused had a ‘THELA, they met Khanna. While they were chatting near the 'THELA' of the accused the accused started abusing them from the roof of his house and therefore, they went to the house of the accused and enquired from him as to why he was abusing and that he should come down. The accused then said that he would not come down and show them what he wanted and fired a country pistol of which the bullet struck Santu. They ran towards the police station but Santu fell down on way. He, therefore, left Khanna with Santu and proceeded to the police station where he lodged report Ex. P/1. The Sub Inspector from the police station then came to the place were Santu had fallen down and sent him to the hospital. They ran towards the police station but Santu fell down on way. He, therefore, left Khanna with Santu and proceeded to the police station where he lodged report Ex. P/1. The Sub Inspector from the police station then came to the place were Santu had fallen down and sent him to the hospital. PW 2 Santu @ Surendra Singh has stated that at about 9.35 p.m. while he was returning with Narad from Digambar Lodge they met Subhash Khanna a short distance before the house of the accused who informed them that accused was abusing him and that they should intercede. He has deposed that they saw that the accused was abusing from the roof of his house and, therefore they proceeded towards his house and asked him as to why he was quarrelling and that if he wanted to compromise the matter he should come down and shake hands. He has deposed that the accused then brought a revolver from his house and came back on the roof of his house and fired a shot at him of which bullet struck him above his chest and he started bleeding. While he was rushing to the police station, he tripped and fell down near Aruna Talkies and after a short while the police Sub Inspector and people from the vicinity came there and took him to the hospital where he was treated. He has confirmed that his clothes had been seized by the police. PW 5 Subhash Chandra Khanna has deposed that while he was closing his shop to return to his house, he saw Santu and Narad. Santu started sawing the 'THELA' of the accused and he therefore went to Santu and Narad and told them not to do so. The accused saw them from the roof of his house at a distance of about 150 feet and thinking that he was doing the said mischief, started abusing him. He therefore went near the house of the accused and enquired from him as to why he was abusing and the accused asked as to why he was cutting his 'THELA' with a saw. He, therefore, clarified to the accused that he was not doing any such thing but Santu and Narad were sawing his 'THELA' and that he was unnecessarily abusing him. He, therefore, clarified to the accused that he was not doing any such thing but Santu and Narad were sawing his 'THELA' and that he was unnecessarily abusing him. The accused then started abusing Santu and Narad who came running to the house of the accused and told him that they had been asked by Digambar that he should remove his 'THELA' from that place. The accused then fired a shot from the roof of his house which struck Santu below his neck. He therefore ran away to save himself and Santu was taken by some people to the Government hospital. He claims that he had lodged the report of the incident at the police station and later the police had taken samples of blood stained and plain earth from the spot vide memo Ex. P/7 on which his signatures were obtained. 7. Learned counsel for the appellant has submitted that both PW 1 Narad and PW 5 Subhash Chandra Khanna claim to have made a report of the incident but the police has produced only Ex. P/1 FIR said to have been lodged by PW 1 Narad which shows that the FIR Ex. P/1 is not the first information of the incident but is a document which has been subsequently created to bring it in line with the story developed by the prosecution while the real report has been with-held. While it is true that PW 5 Subhash Chandra Khanna has stated that he immediately rushed to the police station and reported the matter and that his signatures were also obtained it appears that since this witness was a witness to the memo of seizure Ex. P/7 may be in some confusion he has stated that his report had been recorded by the police. The defence has not put any question to PW 3 K.K. Sharma who has recorded the FIR Ex. P/1 to the effect that the report of the incident had been lodged by Khanna (PW 5) and on the contrary has disputed that Khanna made any report of the incident by confronting him with his statement to the police (Ex. D/2) to the portion where he has stated that Narad lodged the report. Learned counsel for the appellant has submitted that before PW 5 Subhash Khanna was examined. D/2) to the portion where he has stated that Narad lodged the report. Learned counsel for the appellant has submitted that before PW 5 Subhash Khanna was examined. PW 3 K.K. Sharma had already been examined with the result this fact could not be put to K.K. Sharma. The argument appears fallacious. Nothing prevented the accused from seeking recall of the said witness for this purpose and in any case the question could have been suggested to the Investigating Officer PW 6 Lahane. 8. To impeach the sanctity of the FIR Ex. P/1, learned counsel has also pointed out that the FIR bears recital to the effect that Narad and Subhash had brought Santu to the police station while the story developed at the trial was that Santu had fallen down while they were proceeding towards the police station and was taken from that place directly to the hospital. The learned counsel has also referred to the testimony of PW 4 Dr. Ghajbhiye to the effect that some persons had brought the complainant to the hospital who was profusely bleeding. Learned counsel submits that the recital in the FIR that Santu had been brought to the police station is therefore apparently false which shows that the FIR Ex. P/1 has been brought into being subsequently. The report Ex. P/1 was lodged by PW 1 Narad and he has not been confronted with the portion bearing this recital. It has also not been suggested to PW 3 K.K. Sharma who recorded this report that this report had been written later on to bring it in line with the story developed by the prosecution. The facts which clearly emerge from the prosecution case are that on Santu having received the injury, the complainant and the witnesses had rushed towards the police station to lodge the report and the injuries received by the complainant clearly confirms that he could not have travelled a long distance from the place of the incident. The statement of the witnesses that Santu had fallen down on way to the police station, therefore, appears to be natural and true. There are no circumstances therefore, to infer that the report has been recorded subsequently and not at the time mentioned therein. Learned counsel has also suggested that nothing has been shown to show that the information about the report was promptly given to the Magistrate having jurisdiction. There are no circumstances therefore, to infer that the report has been recorded subsequently and not at the time mentioned therein. Learned counsel has also suggested that nothing has been shown to show that the information about the report was promptly given to the Magistrate having jurisdiction. No such suggestion has been made by the defence to the Investigating Officer. The record contains the document indicating that the carbon counterfoil of the report was received in the Court of J.M.F.C. on 6.09.1992. I have, therefore, no hesitation in holding that FIR Ex. P/1 was promptly lodged; within 15 minutes of the Incident. 9. The learned counsel for the appellant has assailed the conviction also on the ground that evidence of PW 2 Santu and eye-witnesses PW 1 Narad and PW 5 Khanna cannot be believed as they ascribe different reasons for their chance meeting at the 'THELA' of the accused near his house. According to the learned counsel, while the complainant has stated that Subhash Khanna had come to them and told them that the accused was abusing him and that they should intervene to get the matter compromised, PW 1 Narad has stated that while they were chatting holding the 'THELA' of the accused, the accused had started abusing. Learned counsel has submitted that PW 5 Subhash Chandra Khanna has given altogether a different story. According to Subhash Chandra Khanna, while complainant Santu witness Narad were committing the mischief of sawing the 'THELA' that the accused had started abusing thinking that he was the one who was doing it and on position having been clarified by him, the accused had then started abusing Santu and Narad. It does appear that PW 1 Narad and PW 2 Santu have modulated the story to suppress the fact that they were committing mischief by causing damage to the 'PAN THELA' of the accused. It is clear from the contradiction brought on record by the defence by reference to their statements to the police that Santu was sawing the 'THELA' of the accused which had given rise to the said behaviour of the accused. Narad has been duly confronted with his FIR Ex. P/1 in which he has stated that Santu had sawn the 'THELA' of the accused and Santu has also been confronted with his statement Ex. D/1 that he had scratched the 'THELA' with a hand saw. Narad has been duly confronted with his FIR Ex. P/1 in which he has stated that Santu had sawn the 'THELA' of the accused and Santu has also been confronted with his statement Ex. D/1 that he had scratched the 'THELA' with a hand saw. It is, therefore, clear the reason why the accused had started abusing Santu and Narad was that Santu was committing a mischief causing damage to his 'THELA' However this improvement by PW I and PW 2 does not completely demolish or destroy the story of the prosecution. In so far as it alleges that the accused had fired a shot from a revolver causing injuries to Santu. The prosecution has thus fully succeeded in establishing that on seeing that Santu and Narad were engaged in the mischief of causing damage to his 'THELA' by means of a saw the accused had started abusing them and that when Santu, Narad and Subhash Khanna had gone to the house of the accused and had asked him to come down if he wanted to settle the matter the accused had fired a shot. 10. Learned counsel for the appellant has however made a submission that the story of the accused having fired a shot from the roof cannot be believed on account of various infirmities in the prosecution evidence making the same quite improbable. Learned counsel has referred to the seizure memo Ex. P/4 to point out that while the prosecution story is that the accused had fired a country pistol/revolver in the memo Foreign made weapon (made in China) is said to have been recovered from the accused as per the information furnished by him and recorded in memo Ex. P/3. Learned counsel submits that the Report Ex. P/9 received from the Forensic Science Laboratory does not refer to the weapon sent for examination as a foreign made weapon but only as a country made revolver which also shows that the weapon which was seized was not the weapon which was sent to the Ballistic Expert for examination. As Seen from the evidence of PW 3 K.K. Sharma, immediately after recording the report Ex. P/1 and sending the injured to the hospital he had proceeded to the house of the accused and taken the accused into custody. As Seen from the evidence of PW 3 K.K. Sharma, immediately after recording the report Ex. P/1 and sending the injured to the hospital he had proceeded to the house of the accused and taken the accused into custody. He has deposed that the accused had furnished information with regard to the place where he had concealed the revolver and the cartridges which he had recorded in memo Ex. P/3 in the presence of witnesses. He has also identified the revolver and the cartridges in the Court as the one which he has seized. Not only that no question has been put by the defence to this witness to suggest that the weapon in the Court was not the one which had been seized by him vide memo Ex. P/4, no suggestion has also been made that it was not this weapon which was sent to the Forensic Science Laboratory for examination. In this connection, if the contents of Ex. P/4 are examined, while it is true that the word 'VIDESHI (foreign) has been written but the word 'KATTA' immediately following the word 'VIDESHI clearly and unmistakably gives an indication that it was a country weapon as the said expression is used only in relation to the country made weapons. It is, perhaps, for this reason that the counsel did not venture to make any suggestion to the police Officer who made the seizure that any foreign make weapon had been seized from the accused and not a country weapon as alleged. It is true that it is mentioned that the weapon contained on it the inscription "made in China" but merely by that it does not become a foreign weapon and one cannot be oblivious of the fact that persons engaged in manufacturing country weapons may inscribe on it that it was made in a foreign country to have better market for such weapons. It is, therefore, clear that the weapon produced m Court was the very weapon which was seized from the accused and had been sent to the forensic Science Laboratory for examination. 11. Even otherwise, not much significance can be attached to the fact whether the weapon used by the accused was a country weapon or a weapon made in a foreign country. 11. Even otherwise, not much significance can be attached to the fact whether the weapon used by the accused was a country weapon or a weapon made in a foreign country. It is too much to expect from the eye-witnesses to identify from a distance as to whether the weapon fired by the accused was a country weapon or a weapon manufactured by a licensed manufacturer. What the eye-witnesses see is that a weapon was fired at them and the bullet had caused injury. Within no time the accused was taken into custody and as per information given by him the said weapon was recovered from him. The Report Ex. P/9 of the Forensic Science Laboratory has confirmed that the weapon was in working order and the empty found in its chamber had been fired through this weapon only as per comparison of the pin marks and breach marks on the cap of the cartridge. The presence of nitrite also confirmed that the weapon had been recently fired. It is, therefore, clear that the weapon recovered had been fired recently which lends full assurance to the prosecution case and the account rendered by the complainant and the eye-witnesses that the accused had fired a shot at them and the bullet had struck the complainant Santu below his neck. 12. Learned counsel has further contended that failure of the prosecution to bring on record the surgical notes and the evidence with regard to the bullet that may have been recovered from the body of the complainant also renders the prosecution story doubtful. In this connection, it is necessary to refer to the medical evidence and the reports given by the Doctors As per the evidence of PW 4 Dr. Gajbhiye and his Report Ex. P/5-A. the complainant had been examined by him at 10.10 p.m. on 4.09.1988 and he had noticed a punctured wound of the size 1/2" x 1/2" x 3/4" having dark coloured contours over middle point of the neck between both clavicles, just above the sternum. PW 10 Dr. M.K. Jain had examined the X-Ray report and as per his Report Ex. P/12-A, he had found a Radio-opaque shadow at the level of Thoracic vertebra between 5th and 6th Thoracic rib root lying transversely of the size of about 1 cm x 1/2 cm. He also noticed some shadows on the left side of the chest. PW 10 Dr. M.K. Jain had examined the X-Ray report and as per his Report Ex. P/12-A, he had found a Radio-opaque shadow at the level of Thoracic vertebra between 5th and 6th Thoracic rib root lying transversely of the size of about 1 cm x 1/2 cm. He also noticed some shadows on the left side of the chest. The Radio-opaque shadow between 6th and 7th rib clearly gives an indication about the bullet. Thus, from the medical evidence and the report of the Forensic Science Laboratory also it is established that the accused had fired a revolver and caused injury to the complainant on his neck. The question, however, that still remains to be considered is whether the accused, by his said act, can be held guilty under section 307 of the Indian Penal Code. 13. Learned counsel for the appellant has argued that the accused was quite within his right to cause the said injury in the wake of the mischief that was being committed by Santu (PW 2) and Narad (PW 1) in causing damage to his 'THELA' by sawing it with a view to remove the same and he has referred to the testimony of PW 5 Subhash Khanna, that the accused had started abusing them while he was standing on the roof of his house on seeing them causing damage to his 'THELA'. He has further submitted that as admitted by the complainant PW 2 Santu, he was facing a trial for an offence under section 307 of the IPC along with others and that he had also been arrested under section 151 Cr.P.C. and in pursuance thereof, proceedings were pending against him. Learned counsel submits that in view of this criminal record it was clear that the complainant was a bad character and on being asked to desist from the said mischief, the complainant and the other witnesses had themselves gone to his house in an aggressive stance and had told him that one Digambar had asked them that they should remove his 'THELA' from the place. According to the learned counsel the accused therefore had a real apprehension from the complainant and these witnesses as they were committing mischief by causing damage to his 'THELA' and on being noticed doing so instead of running may they had challenged him to come down. 14. According to the learned counsel the accused therefore had a real apprehension from the complainant and these witnesses as they were committing mischief by causing damage to his 'THELA' and on being noticed doing so instead of running may they had challenged him to come down. 14. Section 104 of the Indian Penal Code enumerates the circumstances in which the right of private defence of property permits causing any harm other than death. It lays down that if the offence the committing of which or the attempting to commit which occasions the exercise of the right of private defence be theft mischief or criminal trespass not of any of the descriptions enumerated in section 103 the right does not extend to the voluntary causing of death but does extend subject to the restrictions mentioned in section 99 to the voluntary causing to the wrong doer of any harm other than death. According to the learned counsel the act of the complainant in causing damage to the 'THELA' clearly fell within the description of mischief under section 425 of the IPC as by sawing the 'THELA' of the accused, the complainant party was causing damage to the property and diminishing its value and utility. 15. The right available in section 104 of the Indian Penal Code apart from being subject to the restrictions mentioned in section 99 thereof is further subject to the limitations contained in section 105. The right in case of mischief subsists only as long as the offender continues in the commission of mischief. In the present case, Narad and Santu were though engaged in causing damage to the 'THELA' of the accused but on the accused abusing them, they had come to the house of the accused a distance of about 150 paces from the THELA with the result the mischief stood already committed. It cannot therefore, be said that at the time the complainant and witnesses had come to the house of the accused they were engaged in the commission of mischief. Under these circumstances, the right of private defence of property did not subsist in favour of the accused. It cannot therefore, be said that at the time the complainant and witnesses had come to the house of the accused they were engaged in the commission of mischief. Under these circumstances, the right of private defence of property did not subsist in favour of the accused. With regard to the apprehension of the accused of any bodily harm in view of the criminal antecedents of the complainant it is to be borne in mind that none of them had entered the house and they had merely from outside the house challenged the accused to come down if he wanted to settle the score. It was therefore not a situation where any bodily harm to the accused was imminent and to avert the same. It was necessary to disable them from committing any such harm. The accused was safe and secure on the roof of his house and in fact there was no threat except for the challenge of the complainant in asking him to come down if he wanted to settle the matter with them. This act of the complainant party was, however, capable of depriving the accused of his self control as it constituted grave and sudden provocation which led to the accused firing of the weapon at them and causing injury to Santu. On the facts admitted by the prosecution witnesses, it was clear that Santu (PW 2) and PW 1 Narad had committed mischief of causing damage to the 'THELA' of the accused and when the accused on seeing them committing the said mischief had abused them they had come to his house and had challenged him to come down. This situation had suddenly developed on account of the act and conduct of the complainant and the eye-witnesses and did constitute grave and sudden provocation sufficient to deprive the accused of the power of self control and to act in the manner in which the accused had acted. Under these circumstances, if by the said act, the accused had caused the death of Santu, he would have been guilty of the offence of culpable homicide not amounting to murder as his act would have been covered under Exception 1 to section 300 of the IPC. The act of the accused would, thus, constitute an offence under section 308 of the IPC, being only an attempt to commit Culpable homicide. The act of the accused would, thus, constitute an offence under section 308 of the IPC, being only an attempt to commit Culpable homicide. The accused is, thus, guilty of an offence under Section 308 of the IPC and not under section 307 thereof. 16. Learned counsel for the appellant also pointed out that the accused was in custody as an under trial prisoner from 4.09.1988 to 31.12.1988 as recorded by the trial Court and, therefore, the accused should not be sent back to jail at this distance of time. According to the learned counsel, the accused has no bad antecedents and except for this solitary incident, has never been involved in any matter and, therefore, the imprisonment of about four months undergone by him should be considered as adequate punishment and in addition, some fine may be imposed. I find substance in the argument of the learned counsel. As observed above, the accused had fired the pistol only when the complainant Santu and his companion had committed mischief and on being asked to desist, had adopted a hostile and aggressive stance in challenging the accused to come down. The incident dates back to 4.09.1988 and a period of more than eleven years has elapsed since. It would, therefore, not be proper to sent back the appellant to jail as he has already undergone imprisonment of about four months. Considering all facts and circumstances, the appellant is sentenced to the imprisonment already undergone and a fine of Rs. 1000/- (Rupees: One thousand only) for offence under section 308 of the IPC. 17. In the result, this appeal is partly allowed. The conviction of the appellant for offence under section 307 of the IPC and the sentence awarded to him by the trial Court is set aside and he is, instead, convicted for offence under section 308 of the IPC and sentenced to the period of imprisonment already undergone and fine of Rs. 1,000/- (Rupees: One thousand only). In default of payment of fine the appellant shall undergo rigorous imprisonment for three months the appellant is granted two months time to deposit the fine failing which the appellant shall surrender to his bail-bonds to serve out the sentence in default of payment of fine.