JUDGMENT Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment and order dated 30th of January, 1997 passed in Sessions Trial No. 14/96 by the Fourth Additional Sessions Judge, Durg. By the impugned judgment, the appellants have been convicted and sentenced in following manner with a direction to run the sentences concurrently:- Conviction Sentence Appellants - Arun Rampal (A-3) u/Ss.302/109 IPC R.I. for life and fine of Rs. 5,000/- in default imprisonment for 6 months u/Ss.307/109 IPC R.I. for 10 years and fine of Rs. 5,000/- (in 15 counts), in default imprisonment for 6 months Appellants- Ram Singh & Sahib Singh (A-1 & A-2) u/Ss.302/34 IPC R.I. For life and fine of Rs. 5,000/- in default imprisonment for 6 monts u/Ss.307/34 IPC R.I. for 10 years and fine of Rs. 5,000/- (in 15 counts), in default imprisonment for 6 months The Facts: The facts, briefly stated, are as under:- 1.1 Kedia Distillery is situated in village Kumhari. A Security Agency namely Top Detective and Security Services Limited was engaged for security of the said Distillery at the relevant time. The office of the Security Agency was situated at the main gate. Arun Rampal (A-3) was Area Manager in the Security Agency and the two other appellants-Ram Singh and Sahib Singh (A-1 & A-2) were Security Guards. The Security Guards (A-1 & A-2) used to carry 12 Bore Guns with ammunitions. D.N. Singh (PW-1) was also a Security Officer employed by Kedia Distillery. He was on duty on the main gate at the relevant time. 2-3 other Security Guards of the Security Agency including Prabhunath Pandey (PW-3) & Mohd. Ali (PW-30), Dhananjoy Singh, Dadan Yadav, Amarnath Singh, were also present there. Rajendra (PW-2) was also present on the main gate. The salary of the Security Guards of the Top Security Services was not paid to them since last few months, therefore, they were unhappy and were demanding their salary and tense situation was created on the gate on 11.11.1995. Arun Rampal (A-3) came to the gate on a Jeep at about 1.35 p.m. He was accompanied by Ram Singh (A-1) and Sahib Singh (A-2) and an other Security Officer namely-B.P. Tiwari (A-4 - acquitted accused). Arun Rampal (A-3) was talking to the employees about their payment. 1.2 The case of the prosecution is that in the said discussion, a dispute arose between them. Arun Rampal (A-3) was talking to the employees about their payment. 1.2 The case of the prosecution is that in the said discussion, a dispute arose between them. The allegations are that the 2 Security Guards (A-1 & A-2) had abused the workers and a situation of scuffling occurred between them. Seeing all this, appellant-Arun Rampal (A-3) ordered the Security Guards to take position, on which the 2 Security Guards fired from their gun. Hearing the noise of gun-shot, the labour working in the Distillery came out on the gate and a big mob gathered there in support of the employees of the Security Company. Further allegations are that seeing this Arun Rampal (A-3) said the 2 Security Guards (A-1 & A-2) to load their guns. However, these 2 Security Guards opened fire on the mob. Arun Rampal (A-3) thereafter ran away towards the office and the 2 Security Guards (A-1 & A-2) ran towards the opposite direction from the gate of the Distillery. 2-3 persons received gun-shot injuries at that place. Further the case of the prosecution is that thereafter the 2 appellants-Ram Singh & Sahib Singh (A-1 & A-2) ran away towards village Atari. They were chased by the workers of the Security Company, Kedia Distillery and the villagers of the nearby villages. These 2 appellants (A-1 & A-2) then again fired at a place which was at a distance of 11/2 furlong. This time deceased-Sanjay Choudhary received gunshot injury. Other villagers had also received gun-shot injuries. The mob chased them to the distance of 3-4 Km. where they were surrounded by the mob on a culvert. There also they had fired upon the mob. By that time the information was received by the police party which ultimately reached to village Atari and arrested the 2 appellants (A-1 & A-2). 1.3 Sanjay Choudhary (deceased) lost his life and 15 other persons received gun-shot injuries in the said incident. 1.4 Dehatinalishi (Ex.-P/1) was lodged by D.N. Singh (PW-1). 1.5 Dr. S.K. Sinha (PW-23) conducted autopsy on the dead body of deceased-Sanjay Choudhary, however, for expert opinion the dead body was sent to Medical College, Raipur, where it was examined by Dr. D.C. Jain (PW-35), Professor of Forensic Science and Medicine. Deceased-Sanjay Choudhary had received 22 pellet injuries spread over his right shoulder and left portion of the chest. They were gun-shot injuries. D.C. Jain (PW-35), Professor of Forensic Science and Medicine. Deceased-Sanjay Choudhary had received 22 pellet injuries spread over his right shoulder and left portion of the chest. They were gun-shot injuries. The Autopsy Surgeon opined that the cause of death was syncope due to gun-shot injuries and it was homicidal in nature. The postmortem report is Ex.-P/22. 1.6 Prabhunath (PW-3), Sheelwant Choudhary (PW-10), Jitendra Yadav (PW-7), Surendra Singh, Vinod Kumar, Naveen Kumar (PW-13), Rajesh Kumar (PW-14), Sidheshwar Das (PW-15), Pawan Kumar (PW-12) had also received gunshot injuries. They were examined by Dr. S.R. Banjare (PW-39). Their MLC reports are Ex.-P/50 to P/58. Pardeshi Ram (PW-8) had also sustained gun-shot injury. He was examined by Dr. Pradeep Kumar (PW-36). His injuries were grievous. His MLC report is Ex.-P/41. 1.7 Ramji Nishad (PW-34), Jogaram (PW-33), Jagat (PW-9), Raju Singh (PW-11), Mohd. Ali (PW-30), Arun Kumar (PW-4), and Sunil Singh (PW-37) had also sustained simple injuries like abrasion etc. These persons were examined by Dr. Snehelata Singh (PW-38). Their MLC reports are Ex.-P/43 to P/49. 1.8 Three (03) empty cartridges were seized from a place near the Distillery vide seizure memo Ex.-P/9. One single barrel 12 bore gun having rexine cartridge cover on the butt with live cartridge and license of the gun were seized from the possession of Sahib Singh (A-2) vide seizure memo Ex.-P/11. One single barrel 12 bore gun (loaded with live cartridge), 5 live cartridges of 12 bore fitted in a belt and license of the said gun were seized from the possession of Ram Singh (A-1) vide seizure memo Ex.-P/12. 1.9 After completion of other formalities a charge-sheet was filed against 4 accused persons namely-Ram Singh (A-1), Sahib Singh (A-2), Arun Rampal (A-3) and Basant Pratap (A-4). The prosecution came with the case that all the 4 accused persons came on a Jeep to the gate of Kedia Distillery, a quarrel took place between the employees of the Security Agency and the accused persons as the employees were demanding their salary and Arun Rampal (A-3) was talking to them in this regard. During the quarrel, Arun Rampal (A-3) had ordered/exhorted the Security Guards Ram Singh and Sahib Singh (A-1 & A-2), who were armed with 12 bore guns, to load their guns and fire. On this, the 2 Security Guards (A-1 & A-2) opened fire and some employees of the Security Agency got injured. During the quarrel, Arun Rampal (A-3) had ordered/exhorted the Security Guards Ram Singh and Sahib Singh (A-1 & A-2), who were armed with 12 bore guns, to load their guns and fire. On this, the 2 Security Guards (A-1 & A-2) opened fire and some employees of the Security Agency got injured. Thereafter the workers of Kedia Distillery also came out from the factory and a big mob gathered there. Seeing this the 2 Security Guards (A-1 & A-2) ran towards village Atari. They were chased by mob. On the way, at about 11/2 furlong from the Distillery, they again fired, in which the deceased had died and other persons got injured. They were again chased by mob and were surrounded at a distance of 3-4 Km. on a culvert in village Atari, where the police party arrested them. 1.10 The learned Sessions Judge relied on the testimonies of the injured witnesses and held that Arun Rampal (A-3) was liable for punishment u/Ss. 302/109 & 307/109 IPC and other 2 accused persons (A-1 & A-2) were liable for punishment u/Ss. 302/34 & 307/34 IPC. The appellants/accused (A-1 to A3), thus were convicted and sentenced as above. Hence these appeals. Submissions made by the Counsel: 2. Mr. Ravi Bhagat, learned counsel appearing on behalf of the appellants submitted that there is no evidence to show that Arun Rampal (A-3) had exhorted or ordered the 2 other appellants (A-1 & A-2) to open the fire. Dehatinalishi (Ex.-P/1) was lodged by D.N. Singh (PW-1), in which nothing has been mentioned about exhortation made by him. He took us to the evidence of other witnesses. About other 2 appellants (A-1 & A-2), he submitted that they opened fire exercising their right of private defence as they were apprehending that they would be killed by the attack of the mob of 300-400 people. 3. On the other hand, Ms. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and submitted that there is sufficient evidence of exhortation by Arun Rampal (A-3) and the acts proved against Ram Singh and Sahib Singh (A-1 & A-2) would show that there was no situation for them to exercise the right of private defence. 4. We have heard counsel for the parties. Discussion on the case of Arun Rampal (A-3): 5. 4. We have heard counsel for the parties. Discussion on the case of Arun Rampal (A-3): 5. 4 witnesses have been examined to prove the first incident which took place on the gate of Kedia Distillery (wine factory). They are D.N. Singh (PW-1), Rajendra Dwivedi (PW-2), Prabhunath Pandey (PW-3) and Mohd. Ali (PW-30). 6. D.N. Singh (PW-1) was a Security Officer of Kedia Distillery, whereas the 3 others were Security Guards. All above witnesses were on duty at the gate of the Distillery. D.N. Singh (PW-1) deposed that on the fateful day at about 5.30 p.m., when they were on duty at the gate of the Distillery, 25-26 Security Guards of Top Company were also present there. Some of them were inside the gate, somewhere outside the gate. Small gate of the factory was opened. The Security Guards of Top Company were not paid their salary since many days. The officers of the Company were saying them that their salary would be paid, but on account of nonpayment since long there was dissatisfaction. Arun Rampal (A-3) was the main officer of the Top Company. On the date of incident Arun Rampal (A-3) at about 2.00 p.m. came to the gate of Distillery on a Jeep. He was accompanied by 3 Security Guards (A-1, A-2 & A-4). The Jeep was taken inside the factory premises. The accused persons got down from the Jeep and came to the gate where 20-25 Guards of the Top Company were present. The Guards made complaint to Arun Rampal (A-3) that they were being harassed as their salary was not paid to them since many days. They were demanding salary. Arun Rampal (A-3) stated to them that today they would not be able to make payment, however the payment would be made later on. Thereafter hot exchanges begun between Arun Rampal (A-3) and Guards of the Security Company, Arun Rampal (A-3) said that the security guards would not listen to him, they should be kept out from the gate. On this, the Guards said that they will not go out and they should be paid their salary. On this Arun Rampal (A-3) said the 2 Security Guards (A-1 & A-2) to take their position and fire. Hearing this, the Security Guards (A-1 & A-2) started firing. Hearing the noise of firing, the workers of the factory, came out from the factory to the main gate. On this Arun Rampal (A-3) said the 2 Security Guards (A-1 & A-2) to take their position and fire. Hearing this, the Security Guards (A-1 & A-2) started firing. Hearing the noise of firing, the workers of the factory, came out from the factory to the main gate. Prabhunath (PW-3), Mohd. Ali (PW-30), Dhananjoy Singh and Sanjay Choudhary got gun-shot injuries. The accused Guards (A-1 & A-2) looking to this situation started running away. Sanjay Choudhary (deceased) in fact had come out along with the workers of the factory. The workers of the factory started chasing these 2 accused (A-1 & A-2). Sanjay Choudhary had received gun-shot injuries at a distance of 11/2 furlong from the main gate of the factory and had died. Arun Rampal (A-3) was caught in the premises of the factory. He further deposed that he was also chasing the 2 accused persons (A-1 & A-2) for catching them. There was a village towards the temple site. These 2 accused (A-1 & A-2) were firing while running away towards the village. The villagers had also gathered to catch them. They had also received gun-shot injuries. While running away and chased by the villagers and Security Guards of the Top Company, the 2 accused (A-1 & A-2) came on a culvert. They were surrounded there by the villagers. By that time the officers of Kumhari Police Outpost also came there and the 2 accused (A-1 & A-2) were arrested by them. He had immediately lodged Dehatinalishi (Ex.-P/1) which was recorded at that place. 7. Rajendra Dwivedi (PW-2) was working as Assistant Security Officer in liquor factory. He also deposed in similar fashion. According to him, after the hot exchanges between Arun Rampal (A-3) and the guards of the Top Security Company, Arun Rampal (A-3) said his Security Guards (A-1 & A-2) that they should open fire. Thereafter they had fired on the Security Guards who were indulged in hot exchanges with Arun Rampal (A-3). 8. Prabhunath Pandey (PW-3) is an injured witness. He was a Security Guard of the Top Security Company. He deposed that the security guards of the Company were demanding their arrears. When hot exchanges took place, Arun Rampal (A-3) ordered his Security Guards (A-1 & A-2) to fire. Thereafter the guards (A-1 & A-2) fired. He had received gun-shot injury on his right leg. Mohd. Ali (PW-30) had also sustained gun-shot injury. 9. He deposed that the security guards of the Company were demanding their arrears. When hot exchanges took place, Arun Rampal (A-3) ordered his Security Guards (A-1 & A-2) to fire. Thereafter the guards (A-1 & A-2) fired. He had received gun-shot injury on his right leg. Mohd. Ali (PW-30) had also sustained gun-shot injury. 9. Mohd. Ali (PW-30) was also a Security Guard of Top Security Company. According to him, on the fateful day, he was on duty on the gate of the factory. Prabhunath Pandey (PW-3) and Baldau Verma were also on duty. Arun Rampal (A-3) came there on a Jeep. Ram Singh, Sahib Singh and Tiwari (A-1, A-2 & A-4) were also with him. They were talking to the Area Manager (A-3) about their arrears of salary. D.N. Singh (PW-1) was also present there. Area Manager (A-3) had agreed to make part payments. At that time, 8.00 a.m. to 5.00 p.m. shift of the factory was over and the workers came out from the factory. They gathered at the place where the talk was going on. Then hot exchanges begun between the workers and Arun Rampal (A-3). Thereafter Arun Rampal (A-3) went towards the office and both the gunmen (A-1 & A-2) came out from the gate. The workers, seeing guns in the hands of gunmen (A-1 & A-2), started shouting like pakdo-pakdo. Thereafter both gunmen (A-1 & A-2) fired in the air. The workers then became angry and they started going towards gunmen. Thereafter, the 2 gunmen (A-1 & A-2) opened fire. Firstly they had fired aiming towards the earth. He had received pellet injuries. Both the gunmen (A-1 & A-2) started running away from the gate of the factory. He was taken to the hospital in ambulance. Later on he came to know that Sanjay Choudhary had died. 10. In appreciation of evidence of these witnesses, we find that Mohd. Ali (PW-30) did not depose about the alleged exhortation made by Arun Rampal (A-3) to the 2 gunmen (A-1 & A-2) to open fire on the mob. According to his evidence, after a long discussion between Arun Rampal (A-3) and the workers, Arun Rampal (A-3) simply went towards the office. Dehatinalishi (Ex.-P/1) which was recorded by D.N. Singh (PW-1) was first hand information given to the police. According to his evidence, after a long discussion between Arun Rampal (A-3) and the workers, Arun Rampal (A-3) simply went towards the office. Dehatinalishi (Ex.-P/1) which was recorded by D.N. Singh (PW-1) was first hand information given to the police. In Dehatinalishi (Ex.-P/1) facts relating to demand of salary and hot exchanges between Arun Rampal (A-3) and the Security Guards of the Top Security Company are mentioned, but it is not mentioned that Arun Rampal (A-3) had ordered or exhorted the 2 gunmen (A-1 & A-2) to open fire on the mob. This was an important omission in the nalishi (Ex.-P/1) recorded by D.N. Singh (PW-1). He simply said in the nalishi that Arun Rampal (A-3) said the gunmen (A-1 & A-2) to take their position and nothing more, but gunmen opened fire. 11. That apart, there are many omissions and contradictions in the evidence of 3 other eye-witnesses namely D.N. Singh (PW-1), Rajendra Dwivedi (PW-2) and Prabhunath Pandey (PW-3). The learned Sessions Judge has taken the above omissions into consideration, but he has not given much importance to them. In Para-66 of the impugned judgment, the Sessions Judge has observed that there are omissions in the diary statements of Rajendra Dwivedi and Prabhunath Pandey (PW-2 & PW-3) that Arun Rampal (A-3) had ordered/exhorted the 2 gunmen (A-1 & A-2) to open fire. However, vide Para-79 of the judgment it was held that presence of Arun Rampal (A-3) as a superior officer itself was sufficient to hold that he has abetted the 2 other appellants (A-1 & A-2) for opening the fire which resulted into death of Sanjay Choudhary. His presence as a superior officer on duty while commission of such an offence by subordinate officers (security guards) was sufficient to hold that he had abetted the commission of above acts. 12. In Jainul Haque Vs. State of Bihar, AIR 1974 SC 45 , the Supreme Court held that "The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The Supreme Court further held that the evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convincing and on that the conviction of the appellant was set-aside and he was acquitted." 13. If we look on the entire evidence regarding abetment, it would be clear that the fact relating to abetment by Arun Rampal (A-3) was an omission in the nalishi (Ex.-P/1) recorded by D.N. Singh (PW-1). It was also omission in the diary statements of Rajendra Dwivedi and Prabhunath Pandey (PW-2 & PW-3) and further Mohd. Ali (PW-30) did not depose that Arun Rampal (A-3) even said the gunmen to take position which was said by other witnesses, as according to him, after the hot exchanges, Arun Rampal (A-3) simply went inside the office and the 2 gunmen (A-1 & A-2) started running away towards the village during which they had fired and the deceased and other injured persons had sustained injuries. We are of the view that the finding recorded by the learned Sessions Judge that Arun Rampal (A-3) had abetted the 2 other appellants (A-1 & A-2) to open fire or he abetted the commission of above offences by the 2 gunmen was not correct and the same deserves to be set-aside. Discussion on the cases of Ram Singh & Sahib Singh (A-1 & A-2): 14. About these appellants (A-1 & A-2), it was vehemently argued that they had fired while exercising their right of private defence as they were apprehending that they would be killed by the attack of the mob of 300-400 people. 15. In Bishna alias Bhiswadeb Mahato and others Vs. State of W.B., (2005) 12 SCC 657 , it was observed vide Paras- 74 to 78 as follows: 74. "Right of private defence" is not defined. Nothing is an offence in terms of Section 96 of the Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject-matter of private defence. State of W.B., (2005) 12 SCC 657 , it was observed vide Paras- 74 to 78 as follows: 74. "Right of private defence" is not defined. Nothing is an offence in terms of Section 96 of the Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject-matter of private defence. The plea of right of private defence comprises the body or property. It, however, extends not only to the person exercising the right; but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limit therefor. The right conferred upon a person in terms of Section 96 to 98 and 100 to 106 is controlled by Section 99. In terms of Section 99 of the Penal Code, the right of private defence, in no case, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, "First - Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault". To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. 75. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body as well as property. The burden in this behalf is on the accused. 75. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body as well as property. It commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right lasts so long as the reasonable apprehension of the danger to the body continues. 76. So far as exercise of the right of private defence of property extended to causing death is concerned, the same is covered by Section 103 of the Penal Code. Such a right is available if the offence, the commission of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions enumerated viz. robbery, housebreaking by night, mischief by fire committed on any building, theft, mischief or house-trespass. The said provision, therefore, has no application. 77. Section 104 provides that in relation to the offences as enumerated in Section 103, the right of private defence can be exercised to the voluntary causing to the wrongdoer of any harm other than death. Section 105 provides for commencement and continuance of the right of private defence of property which reads as under: 105. Commencement and continuance of the right of private defence of property.- The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear or instant death or of instant hurt or of instant personal restraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against housebreaking by night continues as long as the house-trespass which has been begun by such housebreaking continues. 78. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against housebreaking by night continues as long as the house-trespass which has been begun by such housebreaking continues. 78. Section 105 of the Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence of proof, it may not be possible for the court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove the said fact by eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself. 16. In Salim Zia Vs. State of Uttar Pradesh, AIR 1979 SC 391 , it was held that it is true that the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. 17. In the instant case, firing took place at three places. First, on the gate of the liquor factory; second, on a place at a distance of 11/2 furlong from the gate of the factory; and third, on the culvert near village Atari. 18. The incident at the gate took place at about 5.30 p.m. It comes in the evidence of D.N. Singh (PW-1) that about 25-26 guards of the Top Security Company were present on the main gate. They were demanding their salary as their salary was not paid since so many days. There was dissatisfaction among those security guards as the high officers of the Company though were promising to pay their salary, but in fact, it was never paid to them. They were demanding their salary as their salary was not paid since so many days. There was dissatisfaction among those security guards as the high officers of the Company though were promising to pay their salary, but in fact, it was never paid to them. The case of the prosecution is that the appellants (A-1 to A-3) and acquitted accused (A-4) came on a Jeep at about 2.00 p.m. on the gate of the factory and they came to the security guards. Thereafter the security guards started demanding their salary. Arun Rampal (A-3) had stated them that payments shall be made later on. It is on this statement, hot exchanges begun between Arun Rampal (A-3) and the security guards who were demanding their salary. The hot exchanges also took place between Arun Rampal (A-3) and Prabhunath Pandey (PW-3). Thereafter Arun Rampal (A-3) said that the guards will not understand and they should be kept out of the gate. It is after all this, as per the prosecution, on the exhortation of Arun Rampal (A3), the 2 gunmen (A-1 & A-2) opened fire and Mohd. Ali (PW-30) and 2 more persons received gun-shot injuries. According to the Dehatinalishi (Ex.-P/1), the incident took place at about 16.30 hours. This shows that a long discussion from 2.00 p.m. to 4.30 p.m. had taken place in which Arun Rampal (A-3) was trying to convince the agitating guards, and thereafter the incident of firing took place. This shows that there was no intention of either of the appellants to commit murder of the deceased or to cause injuries to the injured persons. 19. Mohd. Ali (PW-30), who received gun-shot injury on the gate of the factory, deposed that after the discussion, the Area Manager, Arun Rampal (A-3), had agreed to make part payments to the security guards. At that time the shift of the factory (8.00 a.m. to 5.00 p.m.) was over and the workers of the factory had come out from the factory to the main gate where the hot talks were going on. Arun Rampal (A-3) thereafter went inside the factory and the 2 gunmen (A-1 & A-2) came out from the main gate. When the workers saw guns in the hands of gunmen, they started shouting like pakdo-pakdo, thereafter the gunmen fired in the air. Arun Rampal (A-3) thereafter went inside the factory and the 2 gunmen (A-1 & A-2) came out from the main gate. When the workers saw guns in the hands of gunmen, they started shouting like pakdo-pakdo, thereafter the gunmen fired in the air. It is on this action of the 2 gunmen, the workers became hot and angry and the mob started moving towards the gunmen and on this only, the gunmen fired. He added in clear words in Para-2 of his evidence that firstly the gunmen had fired towards the earth and he was hit by a pellet. The gunmen then ran away from the gate of the factory. 20. In light of the above evidence, it appears that when after a long discussion of 21/2 hours when nothing was settled and hot exchanges took place between the Security Officer (A-3) and security guards and when the workers of the factory came out after their shift was over, an atmosphere of terror was created as they started shouting to catch the gunmen, who were holding the guns and when the mob tried to chase them, the gunmen (A-1 & A-2) had fired in the air and then they fired aiming towards earth, which they did in exercising their right of private defence. 21. The gunmen had ran away towards a temple and they were chased by the workers who were also joined by many villagers of village Atari and nearby area. It comes in the evidence of D.N. Singh (PW-1), who was also chasing the gunmen, that Sanjay Choudhary (deceased) had received gun-shot injury at a distance of 11/2 furlong from the gate of the factory. This shows that the gunmen had not fired upon Sanjay Choudhary at once with an intention to commit his murder, but when they were chased by mob, in which Sanjay Choudhary (deceased) was also there, to a distance of 11/2 furlong, then only they had fired towards the mob and unfortunately Sanjay Choudhary received serious pellet injuries and succumbed to those injuries and many other persons also received pellet injuries. The above facts and circumstances would show that after the first incident when the mob chased them, then only the 2 gunmen had fired which was also an act of right of private defence. 22. The above facts and circumstances would show that after the first incident when the mob chased them, then only the 2 gunmen had fired which was also an act of right of private defence. 22. The 2 gunmen (A-1 & A-2) then were chased by the mob to a distance of about 3-4 Kms and they were surrounded by the mob on the culvert. Here also on account of the above long chasing by a mob of 300-400 people, they had to fire for their own protection. We also note that among injured persons all had not received gun-shot injuries and they had received simple injuries like abrasion etc. Thus it is clear that in the above facts and circumstances, the 2 gunmen (A-1 & A-2) had fired in right of their private defence when they were tried to catch by mob and were chased for a distance of about 3-4 Kms and their lives were saved only when the police party came to the culvert where they were surrounded by the persons of the mob. 23. The right of private defence, as stated above, is made subject to certain restrictions. In the first instance, the right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. If, therefore, a person exercising the right of private defence, causes death where it is not necessary to do so for the purposes of such defence, he exceeds the power so given to him by law under Exception 2 of Section 300 IPC. The question of the operation of Exception 2 arises only if the alleged offender exceeds the right of private defence subject to limitations that he caused death of a person without premeditation and that the death of the deceased was without any intention of doing more harm than what was necessary for the purposes of defence. 24. In the instant case, these 2 appellants (A-1 & A-2) had fired 3-4 rounds. 3 empty cartridges were seized from a place near the Distillery. The appellants had firstly fired on the gate of the Distillery, where Mohd. Ali (PW-30) and some other persons received injuries. 24. In the instant case, these 2 appellants (A-1 & A-2) had fired 3-4 rounds. 3 empty cartridges were seized from a place near the Distillery. The appellants had firstly fired on the gate of the Distillery, where Mohd. Ali (PW-30) and some other persons received injuries. Then they ran away towards village Atari and when they reached at a distance of 11/2 furlong from the main gate of the Distillery, they again fired in which the deceased died and some persons were injured. It comes in the evidence that on the gate of Distillery, the appellants had fired in the air and then looking to the situation, they had fired aiming towards earth. This appears to be on account of reasonable apprehension of danger to their lives and it may be said to be justified for saving their lives. However when they were chased by the mob and when they reached at a distance of 11/2 furlong from the gate of the Distillery, it does not come that they had fired in the air or they had fired aiming towards the earth. This time, they had fired towards mob in which the deceased lost his life. Though it was without premeditation and without any intention of doing more harm then what was necessary for the purpose of defence, but by doing so they had certainly exceeded the power given to them under the law as they could have avoided to fire towards the mob and this time also they could have fired in the air without aiming towards the mob. We are of the opinion that in the above facts and circumstances, it was a case of exceeding the right of private defence by these 2 appellants making them liable for commission of culpable homicide not amounting to murder. Conclusion: For the foregoing reasons:- (i) Cr.A. No. 475/1997 filed by appellant-Arun Rampal (A-3) is allowed. The conviction and sentences awarded to him u/Ss. 302/109 & 307/109 IPC are set-aside. The appellant is acquitted of the charges framed against him & (ii) Cr.A. No. 814/1997 filed by the appellants-Ram Singh and Sahib Singh (A-1 & A-2) are partly allowed. The conviction and sentences awarded to them u/Ss. 302/34 & 307/34 IPC are set-aside. Instead thereof, they are convicted for culpable homicide not amounting to murder and sentenced to undergo R.I. for 10 years u/Ss. 304 Part-II/34 IPC.