Virender Singh, J. 1. If one goes year-wise, the appeal at hand, undoubtedly gives an impression that its disposal is delayed. Therefore, it calls for depicting the main reasons for it. Record reveals that when it was taken up by the Bench for its final disposal on its turn, Mr. M. A. Goni, Sr. Advocate, appearing for the appellant projected his difficulty to defend him as he had joined the office of Advocate General as Sr. Addl. Advocate General. Thereafter, the appellant went unrepresented for some period. It so happened that thereafter he was released by the jail authorities on 26.01.1997 on the strength of the order passed by the Government on the eve of Republic Day vide Government SRO No. 45 dated 25.01.1997. He was, however, directed to execute bail bonds to ensure his appearance till disposal of the appeal. Ultimately, vide order dated 02.09.2002, the main appeal came to be dismissed by a coordinate Bench solely on the ground that the appellant had lost interest in prosecuting the appeal after being released from jail. Confirmation No.25/1990 sent by the learned trial Court under Section 374 Cr.P.C. (State Code) for confirmation of sentence, was, thus, accepted. The appellant after the lapse of eight years moved an application bearing APPCR No.19/2010 seeking recalling of the said order and the same was recalled by the Bench vide detailed order dated 06.07.2010 observing that earlier dismissal of the appeal for non-prosecution, without being appreciated on merits had caused miscarriage of justice. The appellant was a govt. employee in P.H.E. department of J&K State. This is how, this appeal before us, once again for its disposal on merits. 2. Ch. Vidya Sagar, Advocate, appears for the appellant and Mr. R. S. Jamwal, learned Dy. AG represents the State. The trial Court record is also tagged with the main file. Facts of the case, in brief: 3. One Teja Singh R/o village Tanda had married twice. His first wife had died before his death and he married for the second time with Mst. Indro Devi (PW). Daughter from first wife of Teja Singh had married to the appellant. After death of Teja Singh, his daughter claimed exclusive succession, whereas Mst. Indro also claimed her share as widow of Teja Singh. Mst. His first wife had died before his death and he married for the second time with Mst. Indro Devi (PW). Daughter from first wife of Teja Singh had married to the appellant. After death of Teja Singh, his daughter claimed exclusive succession, whereas Mst. Indro also claimed her share as widow of Teja Singh. Mst. Indro lost legal battle as she was held not legally wedded to Teja Singh and ultimately succession was decided in favour of wife of the appellant. However, Mst. Indro was in occupation of the house of Teja Singh and also in possession of four kanals of land where she cultivated wheat crop. Occurrence has taken place in this very land. 4. The prosecution story goes: On 22.04.1988, PWs Prem Chand and Sansar Chand were cutting the wheat from the piece of land said to be in possession of Mst. Indro and when they had cut almost half of the crop, the appellant holding his licensed gun (DBBL Gun) reached there and assaulted the aforesaid two labourers. They left the spot under fear. It is then alleged that the appellant started assaulting PW Mst. Indro, who was also present at the spot. Babu Singh (since deceased) and his brother Bishan Singh (PW) who were also harvesting the wheat crop in their field, which was quite close to the place of occurrence, reached there. Babu Singh asked the appellant as to why he was fighting with the old lady, upon which he got enraged and told Babu Singh (since deceased) that he being her sympathizer would be dealt with. On saying so, he released one shot from his DBBL Gun, which hit Babu Singh causing injury to his left arm and stomach. Resultantly, he fell on the ground and died at the spot. The appellant immediately left the spot and went towards one direction of the village. This all happened at about 5 p.m. Police party headed by SHO was already in the village in connection with an investigation of some other F.I.R. and was camping in a nearby school where Bishan Singh went to report the matter. The appellant immediately left the spot and went towards one direction of the village. This all happened at about 5 p.m. Police party headed by SHO was already in the village in connection with an investigation of some other F.I.R. and was camping in a nearby school where Bishan Singh went to report the matter. His statement was recorded and a Ruka (formal information) was sent to concerned Police Station for lodging the F.I.R. It was recorded on the same day at about 6.45 p.m. Special Report, however, is shown to have reached the Illaqa Magistrate on the next day i.e. 23.04.1988 at 3.50 p.m. The police started investigation, recorded the statement of the witnesses under Section 161 Cr.P.C., inspected the place of occurrence and got certain photographs of the dead body clicked. All other required procedural formalities were also completed. Autopsy on the dead body of Babu Singh was got conducted by Dr. Arun Gupta (PW). Appellant was then arrested. One DBBL Gun and fired cartridge were recovered from him. They were sent to the FSL Jammu with other material, which were examined by J. L. Fotedar Assistant Director FSL Jammu (PW). Material lifted from the spot was also examined by Dr. Mohd. Shafi, Scientific Officer, FSL Jammu (PW). On completion of the investigation, the challan was filed against the appellant who was charged under Section 302 RPC. It needs to be mentioned here that no charge was framed against him for using his licensed gun for unlawful purpose. He was convicted for the said charge vide impugned judgment of learned Sessions Judge, Kathua dated 27.07.1990 and sentenced to imprisonment for life and to pay a fine of Rs.500/-, in default thereof to further undergo simple imprisonment for three months. All the proceedings were submitted to this Court for confirmation of the sentence as required under Section 374 Cr.P.C. (old Code). As such, Cr. Appeal No. 20/1990 by the appellant and Confirmation No.25/1990. 5. The prosecution in order to prove the charge against the appellant has examined as many as 13 witnesses. The main witnesses to the occurrence are PW-7 Bishan Singh, brother of the deceased, and PW-10 Smt. Indro Devi. PW-5 Ram Lal is also shown to be a witness present at the spot, but according to his statement, he saw the appellant leaving the place of occurrence after the incident was over. The main witnesses to the occurrence are PW-7 Bishan Singh, brother of the deceased, and PW-10 Smt. Indro Devi. PW-5 Ram Lal is also shown to be a witness present at the spot, but according to his statement, he saw the appellant leaving the place of occurrence after the incident was over. So he cannot be said to be an eye witness to the occurrence. The prosecution, thus, is primarily banking upon the evidence of Bishan Singh and Mst. Indro. 6. So far as PW-2 Prem Chand and PW-3 Sansar Chand are concerned, their evidence is to the effect that they were engaged by Mst. Indro for the purpose of cutting the wheat crop and that the appellant had reached there, armed with a gun and threatened them. Thereafter, they left the spot. They, in fact, have been produced by the prosecution to show that Mst. Indro was in cultivating possession of 4 kanals of land, where the occurrence had taken place. 7. The appellant has denied all the allegations and produced witnesses in defense mainly with regard to the crops sown on the land by the appellant. 8. We feel the necessity of reproducing the relevant extract from the evidence of Dr. Arun Gupta, who had conducted the autopsy on the dead body of deceased Babu Singh on 23.04.1988 at 10.30 a.m. He found the following internal and external injuries:- "The 7th and 8th ribs were fractured anteriorily in mid clavicular line. There was a wound in this region oval in shape horizontal 3 cm x 2 cm approximately. There were small penetrating wounds around this big wound spreading in a circule of about 6 cm diameter approximately. (Due to spreading of pellets). Intercospal musles were ruptured. Aorata was punctured. Four small circular penetrating wounds present on inferior lobe of left lung. Pellets were removed fromm this area of lung. Peritenium cavity contains clotted blood. Left lobe of liver lacerated transversely infero lateral aspect on left side. Four pellets were removed from it. Multiple stones were seen present in both kidneys. Left border of stomach had three penetrated wounds, circular, small. Three pellets were removed from contents of stomach. 1/- Left fore arm had lacerated wound (penetrating wound). Both radius and ulna were fractured in middle portion. Muscles were badly torn. No pellet has been found in it. Multiple stones were seen present in both kidneys. Left border of stomach had three penetrated wounds, circular, small. Three pellets were removed from contents of stomach. 1/- Left fore arm had lacerated wound (penetrating wound). Both radius and ulna were fractured in middle portion. Muscles were badly torn. No pellet has been found in it. Wound was approximately 3 cm long longitudelly and transversely it had involved whole of fore arm. 2/- Peritoneal cavity was full of clotted blood. 3/- Mediastium was full of clotted blood." 9. In the opinion of the doctor, the death was instantaneous due to injury to vital structures of body viz., lungs, big vessels, liver etc., leading to excessive hemorrhage and also due to injury over left forearm which led to excessive hemorrhage and vaso vagal shock finally leading to cardio respiratory failure. Certain pellets were also removed from the body of the deceased and handed over to the police in a sealed cover. 10. It would also be relevant to refer to statement of Dr. Mohd Shafi, Scientific Officer, FSL Jammu, as the licenced gun of the appellant and a fired cartridge of 12 bore DBBL were examined by him in the laboratory. DBBL gun was marked as F-85/88 and the fired cartridge as F-86/88. His result based on laboratory examination is as under:- "The 12- bore DBBL gun marked as Ex-No: F85/88 has been found in the normal working condition. The 12- Bore DBBL Gun marked as Exhibit No.85/88 had been fired through the right barrel prior to its receipt in the laboratory. The crime K.F fired Cartridge case marked F-86/88 had been fired through the right barrel of the 12 bore DBBL gun marked as Exhibit No: F-85/88. This certificate was typed out in my presence in the office and bears my signature. It is marked as EXPW-MS. The fired cartridge case shown to me is the same which I have examined in the Laboratory because it bears my laboratory marking. D.B.B.L 12 bore gun shown to me is the same which I have examined in my laboratory as it bears my laboratory marking." 11. So far as ocular version is concerned, evidence of PWs Bishan Singh and Mst. Indro is virtually the same. PW Bishan Singh has reiterated what was said by him in his initial statement. D.B.B.L 12 bore gun shown to me is the same which I have examined in my laboratory as it bears my laboratory marking." 11. So far as ocular version is concerned, evidence of PWs Bishan Singh and Mst. Indro is virtually the same. PW Bishan Singh has reiterated what was said by him in his initial statement. In the cross-examination, he, however, has stated that the distance between the appellant and the deceased was about 20-25 feet, whereas Mst. Indro describes the said distance as 15-20 feet. We will be discussing this aspect at the relevant stage. 12. We do not feel the necessity of referring to the investigation conducted in this case as the same is already depicted, in brief, while narrating the prosecution case. 13. Heard learned counsel for both the sides and perused the trial Court record. 14. To start with, Mr. Sagar made an attempt to vitiate the entire trial on a technical ground submitting that in the present case the statement of the appellant is recorded on oath and this is contrary to Section 342(4) Cr.P.C. (corresponding to Section 313(2) of Central Code). He submits that this irregularity committed by the trial Court is not curable and it amounts to illegality which would vitiate the entire proceedings. He then submits that after the lapse of about twenty (20) years, there appears to be no justification in remanding the case back to the trial Court for a fresh trial. Therefore, the appellant deserves to be acquitted on this technical flaw only. 15. We do not agree with Mr. Sagar on this count at all. No doubt, in the present case, the statement of the appellant/accused is recorded on oath. But the issue crops up for consideration is, whether the proceedings have resulted into miscarriage of justice and the accused materially prejudiced. Intention of the legislation in enacting Section 342 Cr.P.C. appears to be that the accused against whom the incriminating evidence is tendered by the prosecution is afforded an opportunity to explain the circumstances appearing in evidence. Such a statement cannot be in the nature of confession or admission. That is the reason, why it has been prohibited in the Section that it shall not be on oath, meaning thereby that it by itself cannot be treated as incriminating evidence to be read against the accused facing the trial. Such a statement cannot be in the nature of confession or admission. That is the reason, why it has been prohibited in the Section that it shall not be on oath, meaning thereby that it by itself cannot be treated as incriminating evidence to be read against the accused facing the trial. Therefore, even if by error or advertence or inadvertence such statement of the accused is recorded on oath, the only embargo placed on the power of the Court is that it shall not be read as substantive evidence. The accused facing the trial has a right of denial to all the questions put to him and if he refuses to offer any explanation, no adverse inference can be raised against him. He, however, has a right to appear as witness during the trial and in that event the situation is legally different and his statement will be read as his substantive statement. 16. We are examining the aforesaid aspect from the present case. Perusal of the entire statement reflects that the appellant is silent while answering all the material questions. The most that can be said about his silence is that he unexplained the circumstances appearing in evidence against him. Will it lighten the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt, the answer would be `No’. It is the settled legal position in criminal jurisprudence that the prosecution has to stand on its own legs. 17. Let us now appreciate it yet from another angle. Mr. Sagar has developed the present case of release of shot accidentally at the hands of the appellant, upon which we will be entering into detailed discussion at subsequent stage. He could also take the plea of self defense even if not pleaded anywhere as it is open to him to put forth this plea on the basis of prosecution evidence on record itself. This is the settled legal position. He could also take the plea of self defense even if not pleaded anywhere as it is open to him to put forth this plea on the basis of prosecution evidence on record itself. This is the settled legal position. Therefore, in one breath, the learned counsel takes a plea in his wisdom finding it available to him from the prosecution evidence itself and in the same breath takes the plea of vitiating the entire trial on account of an irregularity committed while examining accused under Section 342 Cr.P.C. Virtually, the occurrence is admitted by the appellant, may be not in so many terms when he was examined under Section 342 Cr.P.C. The appellant also produced the defense witnesses to strengthen his case with regard to factum of occupation of land where the occurrence had taken place. Therefore, in the present set of circumstances, examination of the appellant on oath cannot be said to be an irregularity of a nature vitiating the entire trial as in our considered view, it has not caused any miscarriage of justice. Mr. Sagar, therefore, cannot derive any benefit for this technical flaw. 18. Mr. Sagar then submits that there is a delay of 23 hours in sending the special report to the Illaqa Magistrate and this goes unexplained. The Magistrate was stationed in District Kathua, which is not far away from Police Station Hiranagar, still the police took 23 hours to supply the special report to the Illaqa Magistrate knowing it well that it was a special report case. This creates doubt about the very case set up by the prosecution and it appears that a story of choice has been coined up. According to Mr. Sagar, most of the investigation was carried out on 22.04.1988, the date of occurrence itself, including recording of statement of the witnesses. Therefore, there was ample time with the police to build up a case against the appellant in connivance with the complainant side. 19. Arguments advanced by Mr. Sagar do not convince us at all. No doubt, delay in sending the special report to the Illaqa Magistrate has its adverse affect and can create doubt about the case set up by the prosecution as chances of colourful version are not ruled out, but this all depends upon the facts of each case. 19. Arguments advanced by Mr. Sagar do not convince us at all. No doubt, delay in sending the special report to the Illaqa Magistrate has its adverse affect and can create doubt about the case set up by the prosecution as chances of colourful version are not ruled out, but this all depends upon the facts of each case. In the case at hand, there appears to be no reason for manufacturing a story so as to falsely implicate the appellant. Bishan Singh, the real brother of the deceased, without wasting any time lodged the report with the SHO who was incidentally present in the village in connection with some other case. We have, however, noticed one fact. On the foot of the statement, the time of recording the statement is not given. This could create some suspicions in our mind about the exact timing of recording the statement, had there been any doubt in our mind about the presence of the main two eye witnesses namely Bishan Singh and Mst. Indro. Place of occurrence is not disputed. Field belong to Mst. Indro or the appellant is not the issue before us. Litigation in this regard is again of no consequence. Presence of Mst. Indro in the field is also very natural. Presence of Bishan Singh alongwith his brother Babu Singh (since deceased) in the nearby field can also not be said to be unnatural. All these factors when taken collectively speak volumes of the fact that Mst. Indro and Bishan Singh were present at the spot alongwith Babu Singh. Beyond this the prosecution could not improve its case. Once that is not the position, the delay in sending the report would not adversely affect the prosecution case. It can at the most be said to be a laxity on the part of the police official for which justice cannot be made a casualty. 20. Mr. Sagar pointed out variation in the eye version account vis-a-vis medical evidence. According to him, both the main witnesses namely Bishan Singh and Mst. Indro have stated that the shot was fired by the appellant from a distance of 15-20 feet and Bishan Singh has rather increased the distance to 25 feet, whereas medical evidence is absolutely otherwise. 20. Mr. Sagar pointed out variation in the eye version account vis-a-vis medical evidence. According to him, both the main witnesses namely Bishan Singh and Mst. Indro have stated that the shot was fired by the appellant from a distance of 15-20 feet and Bishan Singh has rather increased the distance to 25 feet, whereas medical evidence is absolutely otherwise. He submits that had the shot released from such a huge distance, the pellets would have scattered to a larger extent and in that eventuality the damage would have been entirely different as the one now shown in the autopsy. In fact, Mr. Sagar, in his wisdom, has made an attempt to develop a case of the appellant in altogether a different manner. He submits that the deceased, in fact, had a scuffle with the appellant in his field and in the process when the deceased was catching hold of the barrel of the appellant, a shot went off accidentally hitting the left upper side of the body of deceased. He then submits that may be the appellant in his statement recorded under Section 342 Cr.P.C. has denied the occurrence in toto and even in the suggestion put to the witnesses he has not admitted his presence at the spot, still the appellant is within his legal right to make out a case favourable to him from the prosecution evidence itself. 21. We have appreciated this aspect also and do not find any weightage in it. The reason for arriving at that conclusion is borne out from medical evidence only. As per doctor of autopsy, there is no blackening, tattooing or charring around the wound. Few pellets are, however, found in the body. The direction of the shot is downward as it has affected the vital part like lungs, big vessels, liver etc. The pellets are recovered from this area only. So far as upper portion of the left forearm is concerned, there is a lacerated penetrating wound. All what is depicted in the post mortem report reflects that the shot from DBBL gun is not released from a very close range. It is certainly from a reasonable distance, may be, not as suggested by two eye witnesses. They are rustic people and cannot be said to be fully aware of the exact distance. They have given the distance by their estimation and, therefore, cannot be dubbed as liar. It is certainly from a reasonable distance, may be, not as suggested by two eye witnesses. They are rustic people and cannot be said to be fully aware of the exact distance. They have given the distance by their estimation and, therefore, cannot be dubbed as liar. The very case set up by the prosecution is that when the appellant was fighting with Mst. Indro, Babu Singh (since deceased) and Bishan Singh reached the spot. Babu Singh stopped the accused from assaulting Mst. Indro, upon which, he said that he would see Babu Singh as he had come there at Mst. Indro’s help. Thereafter, he released one shot from his licensed gun. It appears that the moment Babu Singh standing at some distance, made an attempt to dissuade the appellant, he reacted and released a shot towards Babu Singh hitting him. Appreciating the case in its right perspective, we do not find any infirmity in the basic substratum of the case and, therefore, do not attach any significance to the variation in distance. It can not possibly be a case of accidental release of shot in a scuffle. We, therefore, repel the argument of Mr. Sagar on this aspect. 22. We have examined the prosecution case from another angle so as to see, whether the appellant had a right of private defense, may be not specifically pleaded, so that at the most, it could be considered to be a case of exceeding of right of private defense. But, in our considered view, the said right was not available to him on the basis of the record. The right of private defense is defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defense when is no apprehension of danger. The case at hand is of that type. 23. Although not argued, yet we have tested the present case on the aspect of diluting the offence so as to attract Exception 4 of Section 300 R.P.C., i.e. culpable homicide not amounting to murder, for which, four conditions as carved out in the Exception 4 itself must be satisfied. We are of the view that the facts as have been given by us hereinabove do not justify the applicability of Exception 4. We are of the view that the facts as have been given by us hereinabove do not justify the applicability of Exception 4. No doubt, in the present case, there was no premediation in the incident, but Exception 4 will not apply even though there was no premediation. The requirement of sudden fight is, however, missing in this case. The facts on record show that it was unilateral act on the part of the appellant, who lost temper and fired a shot from his gun towards the deceased saying that he would deal with him as he wanted to help Mst. Indro. Deceased was unarmed. It is, therefore, a clear case where the appellant has taken undue advantage of his position. Releasing of one shot will not be the determining factor in this case for the purpose of diluting the offence. What has to be primarily seen are the circumstances preceding the incident. We are, therefore, of the considered view that the case of the appellant does not fall within Exception 4 and his conviction already recorded under Section 302 RPC deserves to be upheld. Our view derives strength from a latest judgment handed down by Hon’ble Supreme Court in case `Vijender Kumar @ Vijay v. State of Delhi’ 2010 (4) Recent Apex Judgments page 40. 24. Perhaps no other vital point is left by us untouched. 25. As a sequel to what is discussed hereinabove, the net result is that the criminal appeal No.20/1990 filed by the appellant is dismissed having no merit in it. His conviction, thus, is upheld. 26. Confirmation No.25/1990 sent by the trial Court under Section 374 Cr.P.C. is hereby accepted. The sentence already awarded to the appellant is, accordingly, confirmed.