JUDGMENT M.A. Siddiqui, J. 1. By feeling aggrieved from the judgment and conviction dated 17.4.1996 passed by Shri O.P. Dubey, First Additional Sessions, Judge, Sagar in Sessions Trial No. 31/95 in which Appellant No. 1 Ram Singh has been convicted Under Section 324 of Indian Penal Code and sentenced to imprisonment till rising the Court (TRC) and fine of Rs. 1,500/-in default 3 months S.I., Appellant No. 4 Prem has been convicted Under Section 325 of Indian Penal Code and sentenced to imprisonment till rising the Court (TRC) and fine of Rs. 1,500/-, in default 3 months S.I. Appellants No. 2 Dhanprasad and Appellant No. 4 Sukh Sab have been convicted Under Section of Indian Penal Code and sentenced to imprisonment till rising the Court (TRC) each, and fine of Rs. 1,000/-each, in default 1 months S.I each. 2. Undisputedly there were two counter-cases. In both the cases the accused persons have been punished. 3. In nutshell the facts of the prosecution case are that Mahendra Singh, brother of complainant Karan Singh (PW 5), had gone in relationship out of village keeping his gun in the room of brother Karan Singh (PW 5) . On 2.11.1991 at about 10-11 p.m. in the night, under mistaken belief that the gun belonging to him took the gun and went in his field to lookafter the crops. Appellants Ram Singh, Dhanprasad, Sukh Sab, and Prem came there and they asked why he had stopped the water for irrigation from canal. They started altercation with him. Appellant Ram Singh gave blow of ballam and remaining Appellants started beating by sticks, as a result of which, Karan Singh was injured. In the meanwhile when Appellant Dhanprasad gave blow of lathi it hit on the gun then gun fired. Appellant Sukh Sab cut body of Karansingh by teeth. All Appellants alongwith gun flew from the spot. Karansingh started to his home, at some distance he failed down and remained unconscious in the night. In the morning i.e. 3.10.1991 at 1030 a.m. he lodged report at Police Station Shahgarh vide Ex.P/4 against the Appellants/accused. 4. As complainant, Karan Singh was injured he was sent to P.H.C. Shahgarh, vide Ex.P/5 he was examined and x-ray was also done and it was found that there is fracture of his radius bone in his right hand. 5. Dr. 4. As complainant, Karan Singh was injured he was sent to P.H.C. Shahgarh, vide Ex.P/5 he was examined and x-ray was also done and it was found that there is fracture of his radius bone in his right hand. 5. Dr. U.S. Pandey (PW 8) found incised wound on the posterior part of the left parietal region of the skull, measuring 6x2x2 c.m., one incised wound on the lower 1/3rd part of the left leg on the anterior aspect, measuring 5x2x2 c.m. One lacerated wound in left hand measuring 3x1x1 c.m and 4 contusions. He Suspected fracture on the right forearm as there was swelling . Fracture of radious was found. According to this Doctor, the injuries on parietal and right foot were caused by hard and sharp object. 6. After usual investigation the Appellants were charged sheeted. As there was a counter case, this case was committed to the Sessions Court. The First Additional Sessions Judge, Sagar tried the Appellants, framed usual charges against them. The Appellants abjured the guilt. Their defence was of the right of private defence. 7. In order to prove the charges, the prosecution examined as many as 10 witnesses and placed Ex.P/1 to Ex.P/12, the documents on record. The accused/Appellants examined four witnesses in exercise of their right of private defence and placed Ex.D/1 to Ex.D/6, the documents on record. 8. Learned Trial Judge after perusing and marshalling the evidence came to the conclusion that Appellants did commit the offence for which they were charged, they were convicted and sentenced in accordance with law as mentioned hereinabove. Hence, this appeal. 9. This appeal is being filed mainly on the grounds that the sentence is bad, improper and incorrect as no proper appreciation of evidence has been done by the trial Court. Trial Court has not appreciated the fact that the complainant party assaulted the Appellants by gun shot and to defend themselves if some injuries were caused to the complainant then no offence is made out as was done by defence witnesses as four persons were examined in the defence including accused Appellant Dhanprasad but their evidence is wrongly discarded. 10. Per contra, Shri Prakash Gupta, Learned Panel Lawyer appearing for the Respondent/State argued in support of the impugned judgment. 11. I have heard both the sides and perused the record. 12. 10. Per contra, Shri Prakash Gupta, Learned Panel Lawyer appearing for the Respondent/State argued in support of the impugned judgment. 11. I have heard both the sides and perused the record. 12. Karan Singh (P.W. 5 ), first informant, in his evidence stated that on the date of incident, prior to about four years, at about 11 O'clock in the night he was in the field to lookafter the crops and pump. At that time Dhanprasad, Prem, Ramsingh and Sukhsab met him. They said that day after tomorrow (Parson) why he (Karan Singh) had stopped the water for irrigation from canal; but he(Karan Singh) denied. Sukhsab abused Karan Singh by naming his daughter. Ramsingh assaulted Karan Singh by means of Ballam which hit on the head of Karan Singh. Ramsingh assaulted second blow which landed on right leg of Karan Singh. Sukhsab assaulted by lathi on his head. Prem has also assaulted by means of lathi which landed on his right shoulder. Dhanprasad also assaulted by lathi on his hand by which the gun gone off. Karan Singh ran away from the spot. There was no one. Karan Singh fall down in another field. He remained there in whole night. In next Morning, Bhaggi, Radhe and Bharat son of Karan Singh lifted him and brought at home and taken him to the hospital. He reported the matter at Shahgarh Police Station vide Ex.P/4. Report Ex.P/4 was read over to him in Court and he accepted that this was his report in which his thumb impression was also affixed. Sukhsab cut in his hand by teeth. Karan Singh had gun. Dhanprasad whielded lathi which hit on the gun and gun fired. Police sent Karan Singh for medical examination. He was also sent to Sagar hospital. He remained admitted at Sagar for about one and half month. Prior to that he was examined at Shahgarh hospital. There was fracture of his right hand in which an iron rod was inserted. Police seized blood stained shirt of Karan Singh vide Panchanama Ex.P/5 in which signature of Karan Singh was obtained vide Ex.P/6. 13. Bhagirath (PW 6) and Radhelal (PW 7) have supported the version of Karan Singh (PW 5) by saying that they saw Karan Singh in injured condition and who narrated to them that accused persons have beaten him. 14. Police seized blood stained shirt of Karan Singh vide Panchanama Ex.P/5 in which signature of Karan Singh was obtained vide Ex.P/6. 13. Bhagirath (PW 6) and Radhelal (PW 7) have supported the version of Karan Singh (PW 5) by saying that they saw Karan Singh in injured condition and who narrated to them that accused persons have beaten him. 14. Laxminarayan Yadav (PW 4) has supported the version of Karan Singh by saying that on 3.10.1991 when he was posted as Sub-Inspector at Shahgarh Police Station Karan Singh son of Durag Singh resident of Kharo village came at Police Station and lodged report vide Ex.P/4 on which he registered an F.I.R. As Karansingh was injured he was sent for medical examination and treatment vide Ex.P/5 request letter . 15. Shiv Mangal (PW 1) supported the version of Karan Singh by saying that on 3.10.1991 when he was posted as constable in Police Station Shahgarh he took Karansingh for medical examination at Sagar Hospital. 16. Dr. U. S. Pandey (PW 8) says that on 3.10.1991 he was posted as Assistant Surgeon at Primari Health Centre, Shahgarh. At about 11.45 a.m. Karan Singh Thakur aged 53 years son of Durag Singh resident of Kharo was brought by constable Shiv Mangal with request letter of Ex.P/5. When he examined him he found that Karan Singh was injured and there was an incised wound on the posterior part of the left parietal region of the skull measuring 6x2x2 cms in size, one incised wound on the lower 1/3rd part of the left leg on the anterior aspect measuring 5x2x2 c.m. One lacerated wound in left hand of palm's bone, measuring 3x1x1 c.m and 4 contusions. He Suspected fracture on the right forearm as there was swelling on his right hand . He advised x-ray, It was found by x-ray that radious bone of hand was fractured. 17. Dr. V. K. Mishra (PW 3) has supported the prosecution story by saying that he examined Karan Sngh by doing x-ray examination and found fracture of meddle third radius bone vide Ex.P/2 and his x-ray report is Ex.P/3. 18. He advised x-ray, It was found by x-ray that radious bone of hand was fractured. 17. Dr. V. K. Mishra (PW 3) has supported the prosecution story by saying that he examined Karan Sngh by doing x-ray examination and found fracture of meddle third radius bone vide Ex.P/2 and his x-ray report is Ex.P/3. 18. J.P. Singh (PW 10) Sub-Inspector of Police stated that he arrested accused persons vide Ex.P/11 and he seized one lathi from accused Sukh Sab, he also seized one lathi from accused Dhanprasad, he also seized one lathi from accused Prem and he also seized a Ballam from accused Ramsingh. He also seized blood clotted shirt of Karan Singh vide Ex.P/6. 19. Learned Trial Judge after appreciating the evidence came to the conclusion that Appellants did commit the offence for which they were charged and they were convicted and sentenced as mentioned hereinabove. 20. Learned Counsel for the Appellant has contended that the conviction of the Appellant is bad in law and trial Court has not appreciated the evidence in proper perspective. It is a clear cut case of self defence but trial Court did not give benefit . There was clear admission of gun shot by Karan Singh. Karan Singh was tried and it was admitted by him in his deposition of paragraph 8 in his cross-examination. It was further contended on behalf of the Appellant that Karansingh was not only having gun but he also fired so right of private defence is available to the accused persons for which they have examined not only three independent witnesses but also examined accused Appellant Danprasad in defence. 21. The version of Dhanprasad as (DW 4) was that it was Karan Singh who had fired on him and he got injured. His left armpit was injured by gun shot for which he has examined Dr. V.K. Jain (D.W.3) who says that there was gun shot injury of multiple small burn of range 1/6 c.m. , 1/6 c.m. to 1/8 c.m., 1/8 c.m. over left armpit. Vishnu Prasad (DW 1) says that Dhanprasad informed him that Karan Singh has fired upon him and Phulla (DW 2) says that Ramsingh was in temple of Durgaji up to 9 O'clock where he was treating (whichcrapting) his wife. But that day of the incident is not very much proved so plea of alibi is not accepted. 22. Vishnu Prasad (DW 1) says that Dhanprasad informed him that Karan Singh has fired upon him and Phulla (DW 2) says that Ramsingh was in temple of Durgaji up to 9 O'clock where he was treating (whichcrapting) his wife. But that day of the incident is not very much proved so plea of alibi is not accepted. 22. Learned Counsel for the Appellants has placed reliance on Lakshmi Singh and Ors. v. State of Bihar AIR 1996 SC 2263 in which it has been held that in case of non-explanation of the injuries sustained by accused adverse inferences should be drawn against prosecution and here in this case Appellant Dhanprasad has been injured by gun fire and his injuries have not been explained so adverse inferences should be drawn against prosecution and benefit of right of private defence be given to the Appellants. Against this learned Panel Lawyer has submitted that Karan Singh (PW 5) has specifically mentioned that in the scuffle lathi was dealt on the gun and gun fired by which Dhanprasad could have been injured. 23. I am convinced with the arguments advanced by learned Panel Lawyer and I have come to the conclusion that injuries on Dhanprasad have been properly explained by prosecution so this citation is not fully applied in the facts and circumstances of the case. 24. Learned Counsel for the State has contended that as gun was manual loading (self loading by process inserting gun powder etc by user and the process takes about 5 to 10 minutes to load the gun and it can not be used without refilling ) . 25. According to the defence, if the gun was used it was empty and it was snatched then the apprehension and danger to life will not remain. 26. The crux of the right of private defence is that reasonable apprehension for life and grievous hurt should be there only then the right of private defence may be exercised. When the gun was empty and was snatched then right of private defence remains no where. So I am not inclined to accept the contention of the learned Counsel for the Appellants that right of private defence was there and Karan Singh was beaten under colour of right to private defence as envisaged under Chapter IV from Section 96 to of I.P.C. 27. So I am not inclined to accept the contention of the learned Counsel for the Appellants that right of private defence was there and Karan Singh was beaten under colour of right to private defence as envisaged under Chapter IV from Section 96 to of I.P.C. 27. Learned Counsel for the Appellants has in alternatively contended that sentence till rising of the Court (TRC) has no meaning as more than 14 years have passed and learned trial Court has imposed fine which has been already deposited by the Appellants. 28. There is no justification in upholding the conviction awarded till rising of the Court (TRC) after so many years. The sentence awarded till rising of the Court (TRC) of each accused Appellant is hereby set aside and so far as imposition of fine is concerned, the same is hereby upheld and maintained. 29. Resultantly, this appeal is partly allowed.