JUDGMENT : I.P. Mukerji, J. 1. A most horrifying and macabre incident occurred in the late afternoon of 11th August, 1995. The exact time is not known. According to the prosecution witness No.1 Jay Raj Swamy, the incidents leading to the main incident started at around 4.30 or 5 p.m, whereas according to the prosecution witness No.3, Moti Ram it all began between 3.30 p.m. and 4.00 p.m. 2. Nagesh Ram the appellant in Criminal Appeal No. 020 of 2015 Shri Nagesh Ram –vs- The State, took out a 12 bore double barrel breech loading gun, popularly known as a shotgun. The field of action of this device seems to be semicircular and its action devastating. This fire arm has two triggers. If the first trigger is pulled, the cartridge in the left barrel of the gun bursts open, discharging the pellets like a spray. When the second trigger is pulled the cartridge in the right barrel bursts open, spraying the pellets. Each cartridge has 25 to 30 pellets. 3. Now, from this shotgun Nagesh Ram fired at point blank range at the victim Inder Nath. It is not at all clear when this shooting took place, but he was taken to G.B.Pant Hospital and admitted there at 5.55 p.m. on that day, according to the medical report of injury prepared by the G.B. Pant Hospital, which is Exhibit No.17. This report says that there were “multiple pellet injuries spread all over the chest region. X-ray examination of the chest, abdomen and right forearm was made.” Dr. (Mrs.) S.Pal wrote an advice in the report that Inder Nath be referred to a surgeon. Thereafter what medical treatment was rendered to him is unknown. He died in the surgical ward of the hospital within a period of one and a half hours of his admission into the hospital, precisely at 7.20 p.m. 4. About half an hour before his death at 6.50 p.m., Inder Nath is said to have made a dying declaration before one V.K. Balan the Tehsildar which is Exhibit 31. Mr. Balan certified that the patient was fully conscious at the time of the recording of the statement. The left thumb impression of Inder Nath was taken under the recorded version of the statement. Balan was dead at the time of examination of the witnesses as submitted to us at the time of hearing of this appeal. Mr. Balan certified that the patient was fully conscious at the time of the recording of the statement. The left thumb impression of Inder Nath was taken under the recorded version of the statement. Balan was dead at the time of examination of the witnesses as submitted to us at the time of hearing of this appeal. According to the dying declaration Nagesh Ram and his family members assaulted Inder Nath when he rode in, in a scooter. Thereafter, Nagesh Ram sprayed bullets into him from a shotgun. 5. A post-mortem was carried out on 12th August, 1995 between 9 a.m. and 11 a.m. 14 pellets were removed from the body of Inder Nath and handed over by the Medical Officer to the Police as per the post-mortem examination report which is Exhibit No. 27. 6. This shooting was part of a sequence of events that took place that fateful afternoon. The setting for these acts was an alley, 2.80 meters wide, in Garacharma Basthi about 7 Km. from Port Blair. It has a row of small houses. A map of the locale was exhibited as exhibit No.32. Nagesh occupied house No. 1, Balram house No.2 and Inder Nath house No.5. There is evidence on record to suggest that it took five minutes for Inder Nath to walk from his house to Nagesh’s house. The incidents occurred in an area outside Balwant’s house. It is very difficult to come to a conclusion about the details of the incidents that took place, because the evidence on record is unsatisfactory, unreliable and contradictory. But it does appear from the injury report certified by Dr. (Mrs.) S.Pal on 11th August, 1995 at 6.20 p.m. which is Exhibit No. 18 that Pramod Ram was found by her with a lacerated wound on the front scalp measuring 10 cm x 3 cm and another lacerated wound 3 cm x 1 cm on the left side of the parietal region. She described the injury as ‘skin deep’ and ‘simple’. Hardeep Ram also had similar injuries, although the dimensions may have been shorter as per Exhibit No. 19. Surender Nath, the son of Inder Nath also had a lacerated wound on the left side of the forehead (Exhibit No. 21). Pramod Ram and Hardeep Ram were discharged from the hospital on 21st August 1995 whereas Surender Nath was discharged on 23rd august 1995. Surender Nath, the son of Inder Nath also had a lacerated wound on the left side of the forehead (Exhibit No. 21). Pramod Ram and Hardeep Ram were discharged from the hospital on 21st August 1995 whereas Surender Nath was discharged on 23rd august 1995. Ravinder Nath the other son of Inder Nath also sustained similar injury although the dimensions of the cuts may not have been the same. The date of his discharge is not mentioned in the report (Exhibit No.20). 7. The case sought to be run by Nagesh Ram and his family members is that Inder Nath with his sons Ravinder, and Surender with lathis, ballies and daw came out of their house and stood in the courtyard of Balram’s house. They caught hold of Pramod Ram and Hardeep Ram and struck them with daw and ballies. Then Nagesh was asked by family members to bring his gun to protect his family. Nagesh took out his 12 bore double barrel breech loading gun and shot dead Inder Nath. This evidence comes from the hostile witness of the prosecution Jay Raj Swamy, PW 1. As many as 16 witnesses gave evidence for prosecution including doctors and police officials. Excluding doctors and police officials who could not be and were not on the site, the other witnesses for the prosecution have narrated a complete different story. Their version is as Inder Nath reached the alley in front of Balwant’s house on a scooter from the Port Blair side, he was attacked by Nagesh and the members of his family with lathis, ballies, daw etc. The scooter over turned. He fell on the ground. Then also he was being beaten up. Then Nagesh came and fired from his gun. It killed him. Thereafter a fight ensued between Nagesh’s aides like Pramod Ram and the sons of Inder Nath when the injuries on the scalp and forehead were suffered by them. 8. Nagesh Ram and his family members were charged under Section 307/114/147/148/149 of the Indian Penal Code. Additionally Nagesh Ram was charged with murder under section 302 and under Section 3 and 25 of the Arms Act, 1959. Balwant was charged under section 30 of the Arms Act for allowing use of his licensed gun to somebody else (Sessions Case No.7 of 1997, Sessions Trial No. 31 of December 2004). 9. Additionally Nagesh Ram was charged with murder under section 302 and under Section 3 and 25 of the Arms Act, 1959. Balwant was charged under section 30 of the Arms Act for allowing use of his licensed gun to somebody else (Sessions Case No.7 of 1997, Sessions Trial No. 31 of December 2004). 9. The Police did not start any case against the family members of Inder Nath. However, Nagesh Ram’s family filed a complaint petition against the family members of Inder Nath which was taken cognizance of by the Court and charges were framed under Section 323/452/307 of the Code against Surender Nath and Ravinder Nath. This was numbered as Sessions Case No. 43 of 2001, Sessions Trial No. 10 of September 2008, State –vs- Surender Nath and Ravinder Nath. In these two cases the alleged facts constituting the offences involved were the same or had arisen from the same set of facts. 10. There ought to have been a single case and trial and a single judgment and order. 11. The defence of the accused Nagesh Ram and his family members invoking the right of private defence or self defence was rejected by the learned Trial Judge. On 18th August, 2001, the learned Sessions Judge acquitted the accused of Inder Nath’s family in Sessions Case No. 43 of 2001, Sessions Trial No. 10 of September, 2008. On 14th October, 2015 Nagesh Ram was convicted under section 302 and other members of his family convicted under section 147/148/307 of the Code. Nagesh Ram and Balwant Singh were also convicted under the Arms Act, 1959 in Sessions Case No.7 of 1997, Session Trial No. 31 of 2004. 12. Hence, these appeals by Nagesh and his family members against both the judgements and orders. 13. I have every reason not to believe the oral evidence of the witnesses other than the doctors and the police officials. The defence did not tender any witness. The first witness for the prosecution Jay Raj Swamy gave evidence in their favour. I do not believe Jay Raj Swamy’s evidence because it seems to me that it was given in a copy book manner to establish the case of self defence or private defence of Nagesh and his family members that the attack was initiated by Inder Nath and his family members and that Nagesh shot Inder Nath dead in an act of self defence. The other said witnesses are equally unreliable. They tried to establish an opposite case that without any provocation and in cold blood Nagesh shot dead Inder Nath again in a mechanical way, to prove murder. 14. The dying declaration is in my opinion is not a dying declaration at all. It is more of a prepared evidence, purported to be adduced by a dying man. 15. It is a very old and proven principle that a dying person does not lie, as the compulsion to state the truth is paramount. He must believe that death is imminent and that there is no chance of avoiding it. 16. A person who would die in 30 minutes out of severe injuries would not be in a position to narrate in so many details the incident that occurred leading to his death (see Sabbita Satyavathi –vs- Bandala Srinivasarao and others reported in (2004) 10 SCC 620 ). He is usually in a position to speak one or two words only. It is the duty of the Court to convince itself that a person making the dying declaration was conscious and had a clear mind at the time of making the declaration (See Nallapati Sivaiah –Vs- Sub-Divisional Officer, Guntur, A.P. reported in (2007) 15 SCC 465 ). 17. Hence, the dying declaration is like a written statement of a witness which all other witnesses except the hostile witness and the doctor and the police witnesses have repeated. Secondly if you examine the evidence of these witnesses, you will find that all of them speak in identical words. There is not even a little difference or aberration. 18. To arrive at a concrete finding in this case one has to look elsewhere. I did look elsewhere. First of all, the seizure memo (Exhibit 2/1, 2/2) is very important. One daw made of iron having a blade of 11 inches and a wooden handle of eight and a half inches and another iron daw having a blade of 13 inches with a wooden handle of eight and a half inches were recovered from the site. Six lathies of various seizes also recovered along with broken fibre glass, broken helmet etc. The evidence of two police officials H.L.Tiwari, prosecution witness No.10 and S.B.Yadav, prosecution witness No.12 corroborate the above to the extent of saying that they found a broken helmet and pieces of ballies at the site. Six lathies of various seizes also recovered along with broken fibre glass, broken helmet etc. The evidence of two police officials H.L.Tiwari, prosecution witness No.10 and S.B.Yadav, prosecution witness No.12 corroborate the above to the extent of saying that they found a broken helmet and pieces of ballies at the site. The prosecution witness 16, Anoop Singh a police official has given very valuable evidence by saying that he saw blood stained coaltar, two daws and six wooden lathis at the site. 19. Now let us come to the medical examination report (Exhibit No. 17) of Inder Nath made on 11th August, 1995. The attending doctor found multiple pellets spread all over the chest region. His post-mortem report (Exhibit No. 27) said that 14 pellets were recovered. As I have discussed earlier the medical examination reports of Pramod and of the sons of Inder Nath reveal similar injury namely lacerated cuts on the forehead. To my mind this was as a result of daw injury. 20. It is very difficult to say who started the sequence of events, but to my mind it is highly likely that in those moments of the late afternoon on 11th August, 1995 the situation in that alley outside Balwant’s house was extremely volatile with violent speech and very aggressive behaviour on both sides, presence of lathies, ballies, two daws and a gun. There were violent strikes at one another by lathis and ballies brandishing of the daws, strike by the two daws and that fatal gunshot in the midst of all this. 21. The principles relating to the right of self or private defence are formulated in Sections 96, 97, 99, 100 and 102 of the Indian Penal Code and are inserted below:- “96. Things done in private defence.- Nothing is an offence which is done in the exercise of the right of private defence. 97. Right of private defence of the body and of property.- Every person has a right, subject to the restrictions contained in section 99, to defend- First. – His own body, and the body of any other person, against any offence affecting the human body; Secondly. 97. Right of private defence of the body and of property.- Every person has a right, subject to the restrictions contained in section 99, to defend- First. – His own body, and the body of any other person, against any offence affecting the human body; Secondly. – The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 99. Acts against which there is no right of private defence.- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, my not be strictly justifiable by law. 22. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. 23. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 24. Extent to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 100. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 24. Extent to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 100. When the right of private defence of the body extends to causing death.- 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 hereinafter enumerated, 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; Thirdly.- An assault with the intention of committing rape; Fourthly.-An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. 102. Commencement and continuance of the right of private defence of the body.- The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.” Exception 2 of Section 300 of the Indian Penal Code is also important and is inserted below: “Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith or the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.” In the case of Wasan Singh –vs- State of Punjab report in 1996 (1) SCC 458 the Supreme Court said:- “Now it becomes at once clear that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury No.1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defence it could not be said that he had exceeded the right of private defence as the nature of assault by the complainant party which left him with the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the consequence of such an assault.” “9. While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situations have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny.” In Buta Singh –vs- The State of Punjab reported in AIR 1991 SC 1316 the Supreme Court has remarked the following:- “10... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Besides, even if it were so, having regard to the nature of the incident, it is difficult to say that he exceeded the right to private defence for the obvious reason that he could not have weighed in golden scales in the heat of the moment the number of injuries required to disarm his assailants who were armed with lethal weapons. We are, therefore, of the opinion that the submission of the learned Counsel for the State cannot be accepted in the facts and circumstances of this case.” 25. Therefore, to my mind, no matter how forcefully Mr. Tulsi Lall submits that there was no right of private defence available, following the ratio of these two cases, we can say there was reasonable cause for Nagesh and his family members to apprehend that Inder Nath and his family members might cause death or grievous bodily harm to each of them. So Nagesh Ram and each of his family members had the right to fatally shoot Inder Nath or any of his family members. 26. But then there is a slight difference in this case. The gun was not in the possession of Nagesh when all these violent acts were being committed or threatened. He was asked by one of the family members to get the gun. He got the gun and fired the fatal shot at Inder Nath. When he had time to get the gun he could have first made a blank fire before shooting him down. He could have fired towards his legs, but Inder Nath’s medical report suggests that all the 14 pellets were recovered from the chest area. In the 12 bore double barrel breech loading gun that was used by Nagesh Ram where 25 to 30 bullets are discharged on the pull of the trigger, in my opinion the gun had to be brought very close to the victim’s body, to discharge the pellets into the said small area. 27. In my opinion Nagesh Ram had to some extent exceeded the power given to him by law for his private or self defence while causing death to Inder Nath. In those circumstances, in my view he is guilty of culpable homicide not amounting to murder. 27. In my opinion Nagesh Ram had to some extent exceeded the power given to him by law for his private or self defence while causing death to Inder Nath. In those circumstances, in my view he is guilty of culpable homicide not amounting to murder. However considering all the above factors, Nagesh Ram is hereby sentenced to three years simple imprisonment. The conviction under section 307 is set aside against all the accused. The rest of the sentence of the Court below will remain intact, except that the sentences will run concurrently against the convicts and the right under Section 428 Cr.P.C is available to all the convicts. 28. Criminal Appeal No.018 of 2015, Criminal Appeal No. 019 of 2015 and Criminal No. 020 of 2015 are hereby disposed of. 29. Mr. Kabir on instruction has not pressed Criminal Appeal No. 021 of 2015 which is dismissed as not pressed. Samapti Chatterjee, J. I agree.