JUDGMENT 1. - This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment dated 12.8.1983 passed by learned Additional Sessions Judge, Raisingh Nagar (hereinafter referred to as 'the trial court') in Sessions Case No. 24/1982 whereby the learned trial court has convicted and sentenced the accused-appellants in the following manner:- Accused-appellant Nanu Ram:- Under Section 302 I.P.C: Life Imprisonment and a fine of Rs. 500/-, in default of payment of fine, further to undergo six months rigorous imprisonment. Under Section 27 of Arms Act: Six months' rigorous imprisonment. Accused-appellants Bal Ram, Kashi Ram, Bhagirath (Now dead): Under Section 302/34 I.P.C: Life Imprisonment and a fine of Rs. 500/-, in default of payment of fine, further to undergo six months rigorous imprisonment. 2. During the pendency of this appeal, accused-appellant Bhagirath died and consequently the appeal filed by him abated. 3. Brief facts of the case are that on the basis of the statement of Heera Ram (PW 3), recorded by Jagdish Prasad (PW 10) Assistant Sub-Inspector, an FIR (Exhibit 9/A) was lodged on 27.1.1982 at Police Station, Muklawa, District Sri Ganganagar alleging therein that today at about 03:00 P.M. in village Ramawali when Prem Kumar son of Heera Ram was passing through the way in front of the house of accused-appellant Bhagirath, at that time, all the four accused-appellants suddenly came out of that house and after reaching near Prem Kumar, accused-appellant - Nanu Ram fired from a pistol in his stomach and due to which Prem Kumar died. 4. The police after investigation, filed charge sheet against the accused-appellants for the offences punishable under Section 302/34 I.P.C. and Sections 25 & 27 of the Arms Act. After framing of the charges against the accused Nanu Ram for the offence punishable under Section 302 I.P.C. and sections 25 & 27 of the Arms Act, and against the accused appellant Bhagirath, Balwant and Kashi Ram for the offence punishable under Section 302/34 I.P.C., the trial commenced and during trial, the prosecution, in support of its case, examined 12 witnesses and exhibited about 25 documents. The statements of accused-appellants were recorded under Section 313 CrPC and two witnesses were examined in defence and several documents were also exhibited. The statements of accused-appellants were recorded under Section 313 CrPC and two witnesses were examined in defence and several documents were also exhibited. After conclusion of the trial, the trial court convicted the accused-appellant Nanu Ram for the offence punishable under Section 302 I.P.C. and Section 27 of the Arms Act and sentenced him as aforementioned. 5. The learned trial court also convicted the accused-appellants Bhagirath, Kashi Ram and Bal Ram for the offence punishable under Section 302/34 I.P.C. and sentenced them as aforementioned. The learned trial court, on appreciation of the entire evidence adduced before it, came to the conclusion that two counter versions of the case have been presented and in view of the trial court, the prosecution version is more probable and nearer to the truth for the following reasons:- (i) From the evidence of the eye witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4), it was proved that on 27.1.1982 at 3.00 P.M. when the deceased Prem Kumar was passing near the house of Bhagirath, the accused-appellants suddenly came out of that house and after reaching near him, Nanu Ram fired a shot from his pistol in the stomach of Prem Kumar and on account of that he died. (ii) Before his death, the deceased Prem Kumar, in his dying declaration, made before Heera Ram (PW 3) and Raja Ram (PW 6), had stated that when he was passing through the house of Bhagirath, all the four accused-appellants came there and Nanu Ram fired in his stomach. The learned trial court has held that the dying declaration made by the deceased Prem Kumar just before his death, was proved from the evidence of Heera Ram (PW 3) and Raja Ram (PW 6). (iii) The learned trial court has held that there was no evidence to the effect that Prem Kumar and his companions were aggressors and, therefore, the theory of self defence put forth by the accused-appellants cannot be relied upon as there was no evidence available on record to conclude that the deceased and his companions attacked the house of Bhagirath with intention to kill him and on account of firing by Bhagirath in his self defence, Prem Kumar died. (iv) The learned trial court has found that the recovery of pistol, at the instance of Nanu Ram, was proved by the prosecution and from the chemical examination report, it was also proved that the fire was made from the said pistol recently. (v) The learned trial court rejected the plea of alibi taken by accused Nanu Ram and Balram while holding that both the accused have failed to prove their presence at other places at the time of incident. 6. The learned trial court, on appreciation of the evidence of eye-witnesses, dying declaration of deceased Prem Kumar and other evidence, found all the accused-persons guilty of the aforesaid offences. 7. Learned counsel for the appellants has assailed the judgment dated 12.8.1983 on several grounds. It is argued that the learned trial court was wrong in placing reliance on the statements of Heera Ram (PW 3) and Raja Ram (PW 6) to hold that just before his death, Prem Kumar made dying declaration in their presence accusing the accused-appellants of firing on him. It is contended by the learned counsel for the appellants that looking to the injury sustained by the deceased Prem Kumar, it was not possible for him to make any statement before his death. Learned counsel for the appellants has invited the attention of this Court towards the statement of Dr. Surendra Mohan Sharma ( PW 11), and contended that in his statement, PW 11 clearly stated that the injury on abdominal aorta could have caused the instantaneous death and, therefore, it was not at all possible for the deceased Prem Kumar to make any statement just before his death and the evidence of Heera Ram (PW 3) and Raja Ram (PW 6) was not reliable; and the trial court has grossly erred in relying upon the same. The learned counsel for the appellants has further stated that the evidence of Heera Ram (PW 3) was also not reliable for the reason that his conduct of returning to his house leaving the deceased Prem Kumar on the spot was not natural. 8. It is further argued by the learned counsel for the appellants that the learned trial court has erred in not relying upon the theory of self defence put forth by the accused persons. 8. It is further argued by the learned counsel for the appellants that the learned trial court has erred in not relying upon the theory of self defence put forth by the accused persons. It is stated by the learned counsel for the accused-appellants that Bhagirath had lodged an FIR (Exhibit D/4A) immediately on the day of incident wherein he had stated that the deceased Prem Kumar and other persons came to his field to attack him but he ran away from there; they chased him; and when he entered into his house, they indiscriminately fired at his house. The learned counsel for the accused appellants has invited the attention of this Court towards 'Naksha Mauka' (Exhibit D/5A) prepared by the police in connection with FIR No. 6/82 (Exhibit D/4A) lodged by the accused Bhagirath; and 'Halat Mauka' (Exhibit D/6A) prepared by the police in connection with FIR lodged by Heera Ram (PW 3). The learned counsel for the accused-appellants has argued that from these documents, it is revealed that the police had recovered darts inside the house and pellets from the inner and outer walls of the house of Bhagirath and this fact itself is sufficient to prove that Prem Kumar and his companions attacked the house of accused appellant Bhagirath to kill him and when he fired in self defence, Prem Kumar died. It is stated that as per Section 96 of the Indian Penal Code, the action of the accused-appellant Bhagirath of firing at deceased Prem Kumar was not an offence as he had fired in self defence when Prem Kumar and his companions were attempting to kill the accused-appellant Bhagirath. 9. The learned counsel for the appellants has further argued that the fact that deceased Prem Kumar and others were aggressors is proved from the another fact that for approaching to the house of the deceased from his agriculture field, there exists an alternative shorter way passing near the house of Shera Ram and the complainant party always used that way to approach their agriculture fields. It is argued that the prosecution witness Ram Narayan (PW 2) stated that he went to the field from the house of Heera Ram to call Daulat Ram from the way existing near the house of Shera Ram, and Daulat Ram (PW 5) also stated that he reached the house from the same way. It is argued that the prosecution witness Ram Narayan (PW 2) stated that he went to the field from the house of Heera Ram to call Daulat Ram from the way existing near the house of Shera Ram, and Daulat Ram (PW 5) also stated that he reached the house from the same way. Therefore, in such circumstances, according to the learned counsel, it is clear that the way passing in front of the house of accused-appellant Bhagirath was not the usual way of the complainant party to approach their fields from their house and there was no occasion for deceased Prem Kumar to come in front of house of accused appellant Bhagirath except to kill him. It is further argued by the learned counsel for the appellant that the complainant party was aggressor which has also been proved from the fact that a live cartridge was recovered by the police from the pocket of the deceased Prem Kumar, and three cartridges were also recovered from the place, where the body of Prem Kumar was lying. All these circumstances indicate that the complainant party was aggressor and when they were attempting to kill the accused-appellant Bhagirath, then Bhagirath in self defence fired at Prem Kumar. 10. The learned counsel for the appellants has invited the attention of this Court towards the statements of the accused-appellant Bhagirath recorded under Sections 313 and 315 Cr.P.C. and has argued that the accused-appellant Bhagirath has confessed that he fired at the deceased Prem Kumar in his private defence and in view of this confession, there was no occasion for the learned trial Court to convict the accused-appellants i.e., Nanu Ram, Kashi Ram and Bal Ram for the offences punishable under Section 302 I.P.C., 27 of the Arms Act and Section 302/34 I.P.C. respectively. 11. The learned counsel for the accused-appellants has further argued that FIR No. 5/82 (Exhibit P/9A) was lodged after due deliberation with intention to implicate the accused-appellants in a false case. It is submitted that the story of the prosecution that Assistant Sub-Inspector of the Police Station, Muklawa met Heera Ram at Police Station Raisingh, Nagar is not believable as there was no reason for the Assistant Sub-Inspector, Muklawa to be present at Raisingh Nagar when Heera Ram (PW 3) reached Raisingh Nagar. It is submitted that the story of the prosecution that Assistant Sub-Inspector of the Police Station, Muklawa met Heera Ram at Police Station Raisingh, Nagar is not believable as there was no reason for the Assistant Sub-Inspector, Muklawa to be present at Raisingh Nagar when Heera Ram (PW 3) reached Raisingh Nagar. It is also argued by the learned counsel for the appellants that the FIR was not lodged immediately after the incident and the same reached the concerned Court at 5:50 P.M. on the next day of the incident and, therefore, the prosecution story narrated in the FIR cannot be relied upon. The learned counsel for the appellants has argued that though the police recovered pistols from other accused-appellants but only one pistol, alleged to have been recovered from Nanu Ram, was sent to FSL examination and, therefore, the evidence adduced by the prosecution to connect the accused-appellants with the offence is not convincing and the conviction of the accused-appellants on the said evidence is not sustainable. As such the learned counsel for the appellants has prayed for setting aside the judgment impugned dated 12.8.1983 and for acquittal of the accused-appellants from the offences punishable under Sections 302 and 302/34 I.P.C. and Section 27 of the Arms Act. 12. The learned counsel for the appellants has placed reliance on the following decisions of the Hon'ble Supreme Court:- (i) AIR 1973 SC 473 - Deo Narain v. State of U.P. (2010) 2 SCC 333 - Darshan Singh v. State of Punjab & Another . (ii) JT 2009 (5) SC 613 - State of Kerla v. Anilchandran @ Madhu & Ors. (iii) AIR 1988 SC 1158 - Awadesh and Anr. v. State of Madhya Pradesh . (iv) 1990 Cr.L.R. (Raj.) 393 - Inder Singh Thunig Singh v. State of Rajasthan. (v) 2005 R.Cr.D.44 (SC) - State of Orissa v. Sitansu Sekhar Kanungo. (vi) 1996 Cri.L.R. (Raj) 228 page 230 - Satpal v. State of Rajasthan. 13. Per contra, Mr. A.R. Nikub, learned Public Prosecutor and Mr. v. State of Madhya Pradesh . (iv) 1990 Cr.L.R. (Raj.) 393 - Inder Singh Thunig Singh v. State of Rajasthan. (v) 2005 R.Cr.D.44 (SC) - State of Orissa v. Sitansu Sekhar Kanungo. (vi) 1996 Cri.L.R. (Raj) 228 page 230 - Satpal v. State of Rajasthan. 13. Per contra, Mr. A.R. Nikub, learned Public Prosecutor and Mr. Ashok Upadhyay, learned counsel for the complainant have supported the judgment impugned passed by the learned trial court and argued that there was no delay in filing the FIR as the incident took place at 3:00 PM at village Ramawali and Heera Ram (PW 3) informed about the incident to Jagdish Prasad (PW 10), the Assistant Sub-Inspector, Police Station, Muklawa immediately at 4:00 - 4:30 PM at Raisinghnagar and, therefore, it cannot be said that there was any delay in filing the FIR or any manipulation was made on the part of the complainant in filing the FIR. 14. It is contended on behalf of the respondent that theory of private defence put forth by the accused-appellants was not at all reliable looking to the fact that for the first time, the accused-appellants had taken this plea at the time of recording of their statements under Section 313 Cr.P.C. and before that no such plea was put forth despite having opportunity. It is also contended that even in FIR (Exhibit D/4), filed by appellant Bhagirath, it is not stated that he fired at Prem Kumar in his self defence when Prem Kumar and his companions were attempting to kill him. It is also argued that from the statement of accused-appellant Bhagirath, it was proved that the deceased Prem Kumar never entered into his house and he only fired from outside the house then there was no question of pellets having been found on the inside wall of the house of the accused-appellant Bhagirath. The fact of recovery of cartridge from the pocket of the deceased Prem Kumar was of no help to the accused-appellants because it could have been planted by the accused-appellants after killing him. It is further argued that there was no reason for the complainant to implicate Nanu Ram only in place of Bhagirath and, therefore, the evidence of accused-appellant Bhagirath of this nature was not believable. It is further argued that there was no reason for the complainant to implicate Nanu Ram only in place of Bhagirath and, therefore, the evidence of accused-appellant Bhagirath of this nature was not believable. Therefore, the learned Public Prosecutor and the learned counsel for the complainant have argued that the theory of private defence put forth by the appellant Bhagirath was an after thought and has rightly not been relied upon by the learned trial court. 15. The learned counsel have further argued that even if it is assumed that looking to the injury sustained by the deceased Prem Kumar, it was not possible for him to make any dying declaration before Heera Ram (PW 3) and Raja Ram (PW 6), the evidence of eye witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4) cannot be brushed aside wherein they stated that when Prem Kumar was passing through the way in front of the house of Bhagirath, at that time, the accused-appellants suddenly came out and after reaching near Prem Kumar, Nanu Ram fired at him and on account of that, Prem Kumar fell down and later on died. It is contended that the evidence of the eye-witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4) was sufficient to prove that the accused-appellants have committed murder of Prem Kumar on 27.1.1982 at village Ramawali, and, therefore, the learned trial court has not committed any illegality in holding the accused-appellants guilty of the offences punishable under Section 302/34 I.P.C. and Section 27 of the Arms Act. 16. This Court has considered the rival submissions made by the learned counsel for the parties and also meticulously scrutinised the material available on record. 17. The homicidal death of Prem Kumar on 27.1.1982, due to gunshot injury was proved by the Post Mortem Report (Exhibit 9) and from the evidence of Dr. Surendra Mohan Sharma (PW 11). The Post Mortem Report and the testimony of Dr. Surendra Mohan Sharma (PW 11) have not been challenged. The enmity between the accused appellants and complainant party is also not in dispute. 18. Surendra Mohan Sharma (PW 11). The Post Mortem Report and the testimony of Dr. Surendra Mohan Sharma (PW 11) have not been challenged. The enmity between the accused appellants and complainant party is also not in dispute. 18. Now the question comes for consideration by this Court whether the trial court was wrong in discarding the theory of private defence put forth by the accused appellant Bhagirath and whether the prosecution has proved that on 27.01.1982 at 3:00 P.M., when Prem Kumar was returning from the agriculture field and reached in front of house of accused appellant Bhagirath, then suddenly the accused appellants came out of the house and after reaching near Prem Kumar, accused appellant Nanu Ram fired from 303 bore pistol in his stomach, resulting in death of Prem Kumar. 19. It is settled position of law that to claim the right of private defence, it has to be established that the accused persons were under such grave apprehension about the safety of their lives and property that retaliation to the extent done, was absolutely necessary. 20. The defence version that, when deceased Prem Kumar armed with the pistol forcibly tried to enter the house of accused appellant Bhagirath with intention to kill him, Bhagirath, in his self defence, opened the fire at Prem Kumar, resulted in his death, was introduced by the defence for the first time when the statements of accused appellants Bhagirath and Kashi Ram were recorded under Sections 313 & 315 Cr.P.C. It is noted that in the FIR (Exhibit D/4), the accused appellant Bhagirath has not stated that Prem Kumar entered into his house and then he fired at him, due to which Prem Kumar died. 21. The recovery of pellets from inside and outside walls of the house of the accused-appellant Bhagirath is not sufficient to conclude that the complainant party was aggressor and attacked the house of the accused-appellant Bhagirath with intention to kill him. As per Bhagirath, in Exhibit D/4, the deceased Prem Kumar and other persons had not entered into his house and they fired from outside of the house, then in such circumstances, the recovery of the pellets from the inside walls of the house of Bhagirath falsifies his claim. As per Bhagirath, in Exhibit D/4, the deceased Prem Kumar and other persons had not entered into his house and they fired from outside of the house, then in such circumstances, the recovery of the pellets from the inside walls of the house of Bhagirath falsifies his claim. When the deceased and other persons had not entered into the house of Bhagirath, there was no question of any firing by the complainant party in the house of the Bhagirath and as such, the story of the prosecution is more probable that the accused persons had fired on inside walls of the house of Bhagirath to create an evidence regarding their claim that the complainant party had fired on them. The recovery of the cartridge from the pocket of the deceased Prem Kumar and the recovery of three cartridges from the place, where the dead body of the deceased was lying, itself was not sufficient to prove the fact that the complainant party was aggressor because the cartridges could be planted later on by the accused-appellants for creating evidence against the complainant party and particularly when there was no recovery of any firearm near the dead body of Prem Kumar. 22. The contention of the learned counsel for the accused-appellants that an alternative shorter way was available to the complainant party to reach their house from their fields and, therefore, there was no occasion for the deceased Prem Kumar to come in front of the house of Bhagirath except to kill him is also not tenable. Though some of the prosecution witnesses have stated that another way passing near the house of Shera Ram is available for approaching the fields of complainant party but no prosecution witnesses made any statement that the way passing in front of the house of Bhagirath is not leading towards the house of deceased Prem Kumar while returning from his fields. Therefore, the availability of an alternative way itself cannot be a sufficient reason to believe that the deceased Prem Kumar was aggressor and reached in front of the house of the accused-appellant Bhagirath only to kill him. None of the witnesses suggested that for reaching the house while returning from the fields of the complainant party, the way passing in front of the accused-appellant Bhagirath's house was not available. 23. None of the witnesses suggested that for reaching the house while returning from the fields of the complainant party, the way passing in front of the accused-appellant Bhagirath's house was not available. 23. Apart from these suggestive arguments, the learned counsel for the appellants has failed to point out any cogent and credible evidence to prove the fact that the accused appellants were under the grave apprehension about the safety of their life and it was absolutely necessary for them to fire at Prem Kumar in their self defence. In the above mentioned circumstances, the trial court has rightly discarded the plea of private defence put forth by the accused-appellants at a later stage. 24. The contention of the learned counsel for the appellants regarding the delay in lodging the FIR is also not tenable as Jagdish Prasad (PW 10) Assistant Sub-Inspector had stated that on 27.01.1982, he came Raisingh Nagar from the Police Sation Muklawa for some official work then at about 4:30 P.M., Heera Ram (PW 3) came to the Police Station, Raisingh Nagar and informed him about the incident then he immediately noted down his statement (Exhibit P/8) and sent Sawai Singh, Constable for lodging an FIR at Police Station Muklawa and thereafter proceeded to the hospital along with Heera Ram (PW 3). When the incident took place at about 3:00 P.M. at village Ramawali and Heera Ram (PW 3) after reaching at Raisingh Nagar immediately informed about the incident to Jagdish Prasad (PW 10) then it cannot be said that there was any delay in lodging the FIR on the part of the complainant. 25. Even if it is assumed that looking to the injuries sustained by the deceased Prem Kumar and in view of the statements made by Dr. Surendra Mohan Sharma (PW 11), it was not possible for the deceased Prem Kumar to make any dying declaration in front of Heera Ram (PW 3) and Raja Ram (PW 6) yet, the evidence of the eye-witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4) cannot be brushed aside. Thus, even if the evidence of Heera Ram (PW 3) and Raja Ram (PW 6) is excluded, then too, from the evidence of the eye witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4), it was proved that the accused-appellants killed the deceased Prem Kumar. Thus, even if the evidence of Heera Ram (PW 3) and Raja Ram (PW 6) is excluded, then too, from the evidence of the eye witnesses Ram Narayan (PW 2) and Dayala Ram (PW 4), it was proved that the accused-appellants killed the deceased Prem Kumar. Lengthy cross-examinations were made by the defence from two eye-witnesses i.e. Ram Narayan (PW 2) and Dayala Ram (PW 4) but their testimony was not shaken and from the said evidence, the guilt of the accused-appellants was proved; and the learned trial court has, therefore, not committed any illegality in convicting the accused-appellants for the offences punishable under Section 302, 302/34 I.P.C. and Section 27 of the Arms Act. 26. The action of the prosecution in not sending the pistols recovered from the accused-appellant Bhagirath, Bal Ram and Kashi Ram for forensic examination does not help the accused-appellants as the allegation of firing on deceased Prem Kumar was against the accused appellant Nanu Ram only. The prosecution has proved the recovery of pistol at the instance of accused-appellant Nanu Ram vide recovery memos Ex.20, Ex.8A and Ex.21. and there was evidence available on record to prove that the pistol recovered from Nanu Ram reached the State Forensic Science Laboratory for examination with seal intact. Gunshot was proved from the pistol recovered at the instance of accused-appellant Nanu Ram in the State Forensic Science Laboratory Report (Ex.P/24). 27. In view of the above discussions, we find that the learned trial court has not committed any illegality in convicting the accused appellants for the offences punishable under Sections 302, 302/34 I.P.C. and 27 of the Arms Act. 28. Consequently, the appeal preferred by the accused-appellants Bal Ram, Nanu Ram and Kashi Ram fails and is hereby dismissed. The accused-appellants are on bail, their bail bonds are cancelled and they are directed to surrender forthwith to serve out the remaining part of their sentences.Appeal dismissed. *******