IMPORTANT POINT
Firing of gun shot by the son in defence of his father when the father was being given lathi blows by the complainant party, is justified, considering the fact that a lathi is capable of causing a simple as well as a fatal injury.

JUDGMENT

Kuldip Singh, J.- Bhagwan Swaroop was charged under Section 302, I.P.C. for the murder of Man Singh and under Section 307, I.P.C. for an attempt to murder Shahid. He was further charged under Section 451, I.P.C. for committing trespass and also under section 25-A of Arms Act. Ram Swaroop, father of Bhagwan Swaroop, was charged under sections 109/302, 451, I.P.C. and 29 of the Arms Act. Ram Swaroop was acquitted of all the charges by the trial court. Bhagwan Swaroop was, however, convicted under section 302, I.P.C. and was sentenced to imprisonment for life. He was acquitted of the other two charges. The appeal filed by Bhagwan Swaroop was dismissed by the High Court. The High Court allowed the State appeal and further convicted Bhagwan Swaroop under section 307, I.P.C. and section 25-A Arms Act. He was sentenced to five years and one year rigorous imprisonment respectively for the said offences. This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three count".

2. Deceased Man Singh was the son of Shahjor Singh and brother of Babu Singh. They were living in the house owned by Ram Swaroop and his sons. There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying. A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment. According to the prosecution on May 11, 1969 at about 2.4 5 p.m. accused Ram Swaroop had an altercation with Babu Singh at a place called Gauri and thereafter he rushed towards the house of Shahjor Singh and on reaching there, abused the complainant party and started dismantling the tinshed on the disputed land.

Shahjor Singh sent his son Babu Singh to the police station to lodge a report. Meanwhile Man Singh deceased came at the spot and gave a push to Ram Swaroop who as a result fell down. He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party. Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh. Bhagwan Swaroop fired the second shot which hit Shahid. Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave beating to Ram Swaroop. Man Singh succumbed to the gun-shot injury.

3. Both the accused denied the commission of the crime. Accused Ram Swaroop stated in his examination as under:

"I found Babusingh gambling in my garden. I asked him as to why he is doing so in the garden, he started abusing me. I slapped him. His father came there-, both of them abused me and then left the place. I told him that I will make the report of the incident to the police station. When I reached near the house of Shahjor Singh on my way to the Police Station he along with his sons caught me and started beating me with lathies. Shajorsingh brought an axe. When he was about to use his axe on me there was gun tire."

Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the court below. We are of the view that the said plea was rightly rejected.

4. The trial court did not believe the prosecution version in toto. The trial court found that the "prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning". The trial court further concluded as under:

'The defence version that Babusingh was gambling along with others in the garden of the accused Ramswaroop appears correct. Ramswaroop went there and questioned Babusingh. There was altercation and use of hot words. Admittedly Shahjorsingh P.W. 1 came there and Babusingh accompanied him back to his house. Ramswaroop further stated in his examination that he gave one slap to Babusingh. Babusingh as P.W. 9 stated that he was given three or four slaps by Ramswaroop. Thus the fact that Babusingh was slapped, stand established in the case".

The part of the prosecution story, that the accused Ramswaroop r