JUDGMENT

 The appellant, Nagendra Pal Singh and his two brothers by name, Virendra Pal Singh and Phulendra Pal Singh took their trial on the allegations that on 30-7-1974 at about 6.00 p.m. in furtherance of their common intention the appellant, Nagendra Pal Singh fired 7 or 8 rounds with his licensed gun killing the deceased, Devi Singh and injuring six other witnesses. On the above allegations, the appellant was charged for the offences punishable under Ss. 302, 307, 324 and 323 read with S. 34, I.P.C. and his two other brothers (since acquitted) were charged for offences punishable under S. 302 read with S. 34, I.P.C. and S. 323 read with S. 34 , I. P.C. The facts of the case can be summarised as follows:

Both the parties reside in the same village. They had a dispute over the enjoyment of a common passage. On the day prior to the occurrence i.e. on 29-4-1974 at 9.00 a.m. Virendra Pal Singh and Phulendra Pal Singh beat Brij Pal Singh uncle of Brij Raj Singh for the latter obstructing the construction of the house of the accused on the ground that they have encroached upon the common passage. In respect of this incident, a first information report was lodged by the victim Brij Pal Singh at the police station. On the following day i.e. 30-7-74 at about 6.00 p.m. the appellant and his two brothers standing at the door started abusing and threatened that if the prosecution party proceeded further in pursuance of the first information report lodged on the previous day they all would be killed. When Brij Raj Singh took strong objection to their conduct he was beaten with lathis by the two brothers of the appellant. By that time the prosecution party numbering about 8 reached the scene place wielding their lathis.

2. According to the prosecution, it was at this point of time that the appellant, Nagendra Pal Singh ran to the roof of his house taking his gun and shouted that he was an army . personnel and that he would kill all of them. When the prosecution party said that it was the appellants brothers who started committing illegal acts on the previous day, the appellant without any reasonable cause or provocation opened fire with his gun and fired 7 or 8 rounds resulting in the death of the deceased and the causation of injuries to the witnesses. Brij Raj Singh (P. W. 1) went to the police station, Katghar and lodged the FIR at about 7.35 p.m. which was registered as a case under Ss. 302, 307, 323 and 341, I.P.C. against the appellant and his brothers. P.W. 8, the Sub-Inspector of Police took up the investigation, examined the witnesses, sent the injured witnesses to the hospital for treatment, held inquest over the dead body and sent the same for post-mortem examination.

3. While it was so, Phulendra Pal Singh who was taken to the police station along with his brother lodged a counter FIR Exh. Ka 5 at 2.25 a.m. on 31-7-78. This counter FIR was registered under Ss. 147, 148, 324, 326, I.P.C. against 8 persons including P.W. 1 and some of the injured witnesses. The defence version as mentioned in the counter case is that all the persons named in the counter FIR attacked the appellant and his two brothers at 6.00 p.m. on the date of the occurrence with Tabal (cutting instrument) and lathis and inflicted injuries to all the three brothers and that while they tried to escape only the appellant and his brother Phulendra Pal Singh was able to enter into the house but Virendra Pal Singh who received serious injuries on his person remained motionless lying outside the house. It is further stated that all the accused persons in the counter FIR tried to enter the house of the appellant and his brother by scaling over the wall and they also pelted bricks and stones declaring that they had already killed Virendra Pal Singh and they would not leave the remaining two alive and that only in those circumstances the appellant apprehending danger to his life as well as of his brother and property fired with his gun some shots in the air in order to s