2005 ALL MR (Cri) 2469
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

R.S. MOHITE AND S.B. DESHMUKH, JJ.

Rajkumar Anandilal Vs. State Of Maharashtra

Criminal Appeal No.297 of 1999

1st September, 2005

Petitioner Counsel: Mr. VIJAY SHARMA
Respondent Counsel: Mr. N. H. BORADE,Mr. SATYAJEET S. BORA

(A) Criminal P.C. (1973), S.197(2) - Railway Protection Force Act (1957), S.20(3) - Sanction - Prosecution against member of Armed Forces of Union - However, accused not a person removable from his office "save by or with the sanction of the Government" - Held, S.197 of Criminal P.C. was not attracted to the prosecution of the accused - Sanction u/s.197(2), not necessary. 2005 AIR SCW 2985, 1994 Supp (3) SCC 615, AIR 1990 SC 1976 - Referred to. (Para 10)

(B) Penal Code (1860), Ss.102, 300, Exception 2 - Railway Protection Force Act (1957), S.20(3) - Right of private defence - Exercise of - Once the right of private defence came to end, further acts of aggression cannot be said to be in exercise of the right of private defence of person or property - Exception-2 to S.300 will therefore not apply.

The facts of the present case indicate that even if story of the defence relating to the acts of the accused having commenced in exercise of a right of private defence was accepted, yet, under Section 102 of the Indian Penal Code the said right would cease to exist as soon as the apprehension ended and such apprehension must be said to have ended after the first shot was fired through the body of the deceased. Firing a second and third shot by rifle after the first shot penetrating a vital part of the body, damaging the internal organs of the body cannot be said to be acts in pursuance of any provisions of the Railway Protection Force Act, 1957 or the rules framed thereunder. Pumping of bullet shots one after another cannot also be said to be acts in excess of the private defence because the right of private defence would cease after the deceased was shot through and through his chest. A 303 rifle is not anautomatic weapon. The bolt of this rifle has to be pushed back and again pushed forward and this can only be intentional act with an object of firing the rifle. The facts of the case indicate that the accused in the defence tried to justify his acts. As far as the second shot is concerned, accused contended that he did not know whether his first bullet had hit the deceased. But as far as third bullet is concerned, his story that he shot the third bullet at the body who was running away is clearly falsified by the circumstances of three bullet injuries being found on the deceased. Such an act after cessession of the right of private defence cannot be said to be something done or intended to be done under the powers conferred by or in pursuance of any provision of the Railway Protection Force Act, 1957 or the rules thereunder and therefore, the argument based upon the provision of Section 20(3) of the Railway Protection Force Act, 1957 must fail. [Para 11]

Cases Cited:
K. Ch. Prasad Vs. Smt. J. Vanalatha Devi, AIR 1987 SC 722 [Para 8,10]
Director of Inspection and Audit Vs. C. L. Subramaniam, 1994 Supp(3) SCC 615 [Para 8]
Dr. Lakshmansingh Himatsing Vaghela Vs. Naresh Kumar Chandrashankar Jha, AIR 1990 SC 1976 [Para 8]
M./s. Zee Tele Films Ltd. Vs. Union of India, 2005 AIR SCW 2985 [Para 8]


JUDGMENT

R. S. MOHITE, J. :- The appellant Rajkumar Anandilal (hereinafter referred to as accused) has filed this appeal impugning a judgment and order dated 17-7-1999 passed by the IV Additional Sessions Judge, Jalgaon in Sessions Case No.293 of 1995, holding the accused guilty of committing an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.500/-, in default to suffer further R.I. for a period of six months.

2. The brief facts of the prosecution case were as follows :

(a) That, on 23-7-1989, at about 12.30 p.m., P.W. No.4 Aslam Khan Hussain who was a crane operator in the railways, was on only duty on the crane at the railways steam loco shed at Bhusaval. He was loading coal in the railway engine by crane. At about 12.30 to 12.45 p.m. he got down from his crane and saw the accused Rajkumar passing by. Rajkumar told P.W. No.4 Aslam that he was going to have a cup of tea. They both walked for some distance talking with each other. While they were so walking they saw a boy putting coal into a gunny bag. They went towards that boy and the accused accosted the boy. On being questioned by the accused that boy told him that he was taking coal for the deceased Jainuddin Mohd. The accused allowed him to continue to load the coal. At that time the deceased Jainuddin arrived at the spot. The accused Rajkumar told Jainuddin that he should not be afraid and should continue with his work. Jainuddin then tied the gunny bag containing coal and put the bag on his bicycle and asked the accused to have a cup of tea in his canteen. Accused then walked 8 to 10 ft. away from Jainuddin, pointed his rifle towards the Jainuddin and fired a shot from his 303 rifle at Jainuddin. The bullet hit Jainuddin on the right side of his chest. The accused then fired a second shot which hit the deceased and Jainuddin fell down. A third bullet was fired by the accused in the direction of the boy but the boy ran away but that bullet hit a railway wagon. The accused then tore off his clothes, scratched his left hand, took out knife from his person and placed it near the body of Jainuddin. All this was witnessed by P.W. No.4-Aslam Khan from a distance of about 10 to 12 ft. The incident in question took place below a electric pole and the bulb on this pole was on. P.W. No.4 Aslam Khan then boarded an engine and narrated the said incident to the Engine driver Anand. He then went towards the crane and narrated the incident to one Mangalsingh. After the incident, he had seen that the accused was searching something on the ground and was dancing. Mangalsingh told him to over look the matter. P.W. No.4 then restarted his work in the crane and later on saw that some R.P.F. men had gathered on the spot.

(b) The boy who was along with deceased Jainuddin was P.W. No.5 Rajesh Atrawalkar. After running away from the spot Rajesh went to the house of the deceased and informed about the incident which he had witnessed at the loco shed. On learning about the incident from Rajesh, the brother of the deceased Jainuddin by name Mohammed Maikan proceeded to file a complaint in the office of the railway police at Bhusaval. Initially the police refused to register his complaint but ultimately on 24-7-1989, the railway police recorded the complaint and recorded a spot panchanama and seized the gun of the accused. However, they did not take any further action on the said complaint. In the circumstances, the complainant Mohammed Habib lodged a private complaint on 1-8-1990 in the Court of Judicial Magistrate First Class (Railways) at Bhusaval. The Magistrate found that there was a prima facie case made out against the accused under Section-302 of the Indian Penal Code, he issued process against the accused. As the offence made out was exclusively triable by the Court of Sessions, the J.M.F.C. ultimately committed the matter to the court of Sessions.

(c) After committal, the Sessions Court framed the charge and the trial against the accused commenced. To prove its case, the prosecution examined in all five witnesses. Out of these, P.W. No.4 Aslam Khan and P.W. No.5 Rajesh were the eye-witnesses. P.W. No.3 Dr. Vishnu Zope was the Medical Officer who has conducted the post-mortem, prepared the post-mortem notes (Exh.30) and proved the same. P.W. No.1 Mohammed Habib, the brother of the deceased and the complainant was examined by the prosecution as a corroborating witness. P.W. No.2 Mohammed Gulam Ali was examined as a witness on the question of motive for the commission of the crime. On behalf of the defence, two defence witnesses were examined. The accused stepped into the witnesses box as defence witness No.1. The defence version was brought on record through the evidence of this witness and was that at about 00.45 hours on 23-7-1989, the accused who was a constable with the railway police force, was on patrolling duty with a colleague by name Ruprao Pethe. (Defence Witness No.2). At about 00.45 hours on 23-7-1989 while they were patrolling the loco shed they saw two persons stealing coal from the shed. Both the constables ran towards them. The accused Rajkumar caught hold of one of these two persons who was a tall man. A scuffle commenced between Rajkumar and this tall man. This person took out a knife and raised the same towards accused Rajkumar. Rajkumar tried to protect himself by holding out his rifle. However, the person continued to assault and due to the said assault the accused Rajkumar fell backward on his back. He pointed his gun towards the person and fired two bullets one after another to protect himself. That, the other thief was running away and hence, accused Rajkumar fired a bullet in his direction. D.W. No.2 Constable Pethe who was also attached to the railway protection force chased the other thief but he fled away. The person on whom the accused Rajkumar had fired had fallen on the ground. Accused Rajkumar asked Pethe to inform about the incident to the office. Accused Rajkumar also went to his office and the rifle was seized from him and the panchanama of the scene of offence was made. That the accused did not know the person upon whom he had fired his rifle. In support of the defence version, the second constable Ruprao Pethe was examined as D.W. No.2 and he supported the version given by the accused in his evidence.

(d) Based upon such material on record the Sessions Court passed the impugned judgment and order convicting and sentencing the accused as aforesaid and hence, this appeal is preferred before us.

3. On behalf of the accused a contention raised were that the accused was a member of the Armed Forces of the Union and that therefore, in view of the provisions of Section 197(2) of the Code of Criminal Procedure, 1973 the court could not have taken cognizance of the offence particularly since the offence was committed while acting or purporting to act in the discharge of his official duty, without the previous sanction of the Central Government and which in fact had admittedly not been taken. He contended that the accused had acted initially to protect the railway property and later when the accused was attacked with a knife, then in self defence. These actions were part of the same transaction. That, the trial court disbelieved the two eye-witnesses but convicted the accused on the basis of circumstances and the evidence of the defence witnesses. That, the material on record indicated that a knife was found on the spot of the scene of offence. This fact was corroborative of the defence version. That injuries had been caused to the accused during the scuffle which was another factor supporting the defence version. That the attack by the deceased on the accused with a knife would clearly raise an apprehension of grievous injury or death in the mind of the accused and therefore, would give rise to a right of private defence which would extend to the causing of the death of the deceased. It was further contended that, even if the accused exceeded his right of private defence, such act in excess would also remain within the parameter of an act committed in the discharge of the official duty. He contended that the service of the accused was governed by the Railway Protection Force Act, 1957. That, the procedure required to be followed for bringing any criminal action against the member of the railway protection force as prescribed by 20(3) of the said Act, had not been followed and this was another factor that would vitiate the conviction against the accused. It was contended that the acts of the accused in retaliation after being attacked by knife could not be weighed in golden scales and could not be said to be act in excess of the right of private defence. In short, on merits, it was argued that the accused was acting in good faith in order to defend his life and had fired two bullets in pursuance of his right to defend his body and avoid grievous injury or death.

4. On behalf of the prosecution, the prosecutor supported the reasoning of the trial Court. He argued that the accused was correctly convicted in an offence under section 302 of the Indian Penal Code. He pointed out that the medical evidence was not corroborative of the version given by the accused on oath. That the medical evidence clearly indicated that three bullets had passed through the body of the deceased. That, a 303 rifle was admittedly a rifle with a bolt action and the firing of every bullet would only be a deliberate act with an intention of killing the assailant. It was argued that even if the right of private defence accrued to the accused, under Section 102 of the Indian Penal Code, such right of private defence would cease to exist after the first fatal wound was inflicted. As the deceased had been shot through his chest with the bullet exiting from the body, there could be no further apprehension of danger from the deceased. That, even assuming that the second bullet through the body of the deceased had been fired, as some apprehension had remained, after firing such second shot through the body of the deceased, no further apprehension about any danger from the deceased could possibly remain and the right of private defence must be held to have ceased under Section 102. There was no justification for any further firing on the deceased. That the defence witnesses had attempted to mislead the court by raising a false defence that the third bullet was fired at the boy who was running away. That, admittedly only three bullets were fired as three empties were found near the body and three bullets were found missing from the magazine of the accused. The defence version of firing at the boy hitting a wagon was obviously not correct as all three bullets had entered into the body of the deceased. As regards Section 197 of the Criminal Procedure Code, it was contended that no sanction was required as the Apex Court had in several judgments held that Section 197 was only applicable to public servants of the specified categories i.e. those public servants who are not removable from their office save and except with the sanction of State Government or the Central Government. It was contended that the accused was a mere R.P.F. constable and that it was nobody's case that he was removable only with the sanction of the Central Government. As regards Section 20(3), it was contended that the acts of the accused in pumping three bullets one after another into the body of the deceased could not be said to be in exercise of the right of private defence. Even assuming that such right extended to the causing of death, the same would come to an end after the first bullet was fired and in any case after the second bullet was fired and the firing of a third bullet could not be said to be self defence at all. It was lastly contended that the procedure under Section 20(3) of the Railway Protection Force Act, 1957 was not required to be followed in this case because the acts of the accused could not be said to be in pursuance of any provisions of the said Act or the rules there under. That the bar against any legal proceeding whether civil or criminal was against the very bringing of such proceeding. In other words, it should be inferable from the complaint that the acts of the accused were in pursuance of any provisions of the Railways Protection Force Act, 1957 or the rules there under. That, in the present case, it was not the defence that firing was effected for the protection of the railway property. On the contrary, it was the defence case that the firing was done in pursuance of the right of private defence. That the right of private defence was not conferred upon the accused under Railway Protection Force Act, 1957. Reliance was placed on duties of the members of railway protection force was contained in Section 11 of the said Act and that one of the duties of such member was to protect and safe ground railway property. Protecting oneself from an attack would be permissible not in pursuance of any provisions of the Railway Protection Force Act or the rules there under but in exercise of the right of private defence as conferred by the Indian Penal Code. It was submitted that the appeal had no merit and deserved to be dismissed.

5. We have heard both the sides and considered the material on record. Before we deal with the two legal objections relating to the taking of cognizance without obtaining sanction required under Section 197(2) of the Code of Criminal Procedure Code, 1973 and because of the non following of the procedure contained in Section 20(3) of the Railway Protection Force Act, 1957, we would first like to analyse and determine the nature of the acts attributed to the accused and to further determine if these acts can be said to constitute any offence under the Indian Penal Code. The evidence of the two eye-witnesses examined by the prosecution were disbelieved by the trial court. The learned prosecutor did not advance any argument to the effect that their story ought to have been accepted. We find cogent reasons have been given for not accepting the evidence of the two eye-witnesses particularly in view of the several contradictions contained in their evidence. The matter, however did not rest there. The defence examined two defence witnesses in order to establish their case of self defence. From the defence evidence, the scene of offence panchanama medical evidence on record and the panchanama pertaining to the seizure of the gun, it is crystal clear that the accused fired three bullets from his rifle. From the spot panchanama, it is evident that three empties of a 303 rifle were found around the dead body. One empty was found within 42 inches of the dead body, the second 5ft. from the dead body and the third at the distance of 8ft. from the legs of the body. It is nobody's case that the body of the deceased was dragged and the finding of such empties near the dead body of the deceased would indicate firing at close range. The scene of offence panchanama has been exhibited by consent. The seizure of the rifle under panchanama was evidenced by the panchanama which was also admitted by consent (Exh.45). The same indicated that in the two magazines which ought to have five bullets each i.e. 10 bullets, one of the magazine had five bullets and another magazine had only two bullets. This clearly established that three bullets were fired by the accused from his 303 rifle. Both the defence witnesses also admitted in their evidence that three bullets were fired from the 303 rifle. The evidence of P.W. No.2 Dr. Vishnu Zope indicated that there were four entry wounds and three exit wounds. He admitted that there was no corresponding exit wound to entry wound No.3. The heart was ruptured irregularly. The lower lobe of right lung was ruptured. The liver and spleen were also ruptured. Pieces of bullets were removed from the dead body and handed over to the police after post-mortem. We find from his evidence that though there are four entry wounds and three exit wounds, in our view they are possible by firing of three bullets specially as one of the entry wounds is on the forearm. This entry wound could be caused by a bullet exiting after passing through the body. Though Doctor has stated in his examination-in-chief that four bullets were fired by the accused, he admitted in the cross-examination that there was no corresponding exit would to entry would No.4 and the bullet might have passed away after touching the forearm. The medical evidence is also consistent with three bullets having passed through the body of the deceased.

6. In our view, even if the defence version that on being accosted the deceased attacked the accused with a knife and that accused had fired in his self defence is accepted, yet, the right of self defence even if had accrued to the extent to causing death would come to an end by operation of Section 102 of the Indian Penal Code once the deceased had been shot through the chest by the deceased, with the bullet, entering the body and exiting from the other side after causing heavy damage to the internal organs. It is fairly conceded that all entry wounds were on vital part of the body. In our view, once the deceased had been shot through and through, by the accused on vital part of the body with a 303 rifle, there was no cause for any apprehension of danger remaining in the mind of the accused. For a moment, even assuming that any such apprehension remained in the mind of the accused and he thought it proper to rebolt his rifle and fire a second shot at the deceased, again hitting a vital part, to our mind there would be no further right of self defence. The rebolting of his rifle for a third time and firing the same upon the accused after the right of self defence ceased to exist cannot be said to be an act in exercise of self defence.

7. As to what offence the accused can be said to have been committed by the firing of his rifle for the second and third time upon the deceased is a point which we shall separately deal with hereinafter.

8. With this preliminary discussion relating to the nature of the act committed by the accused we now come to the legal objection based upon Section 197(2) of the Criminal Procedure Code, 1973. It is as admitted fact that no sanction was taken under Section 197(2) of the Criminal Procedure Code, 1973. There was also no dispute raised before us and it was the admitted position that the Railway Protection Force would be an armed force of the Union of India within the meaning of Section 197(2) of the Code of Criminal Procedure. It was contended that whereas under Section 197(1) sanction was required to be taken from the Government only in respect of "public servant not removable from his office save by or with the sanction of the Government". There was no such requirement in Section 197(2). That Section 197(2) applied to any member of the Armed Forces of the Union. The limitation contained in Section 197(1) was not restated in Section 197(2) of the said Act and could not be read into the said sub-section. We have heard both the sides at exhaustively on this aspect of the matter. We find that the matter is not re-integra and is covered by three judgments of the Apex Court. In the case of K. Ch. Prasad Vs. Smt. J. Vanalatha Devi and others reported in A.I.R. 1987 S.C. 722, the question before the Apex Court was whether sanction was required for prosecuting an employee of a nationalised bank who held on post which did not require sanction of the Government for removal. In Paragraph 5 of the said judgment the Apex Court reproduced the text of entire Section 197 of the Criminal Procedure Code (inclusive of sub-section 2) and thereafter, observed in Paragraph 6 as under :

"It is very clear from this provision that this section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all."

A subsequent judgment of the Apex Court in the case of Dr. Lakshmansingh Himatsing Vaghela Vs. Naresh Kumar Chandrashankar Jha and others reported in A.I.R. 1990 S.C. 1976, the question before the Apex Court was as to whether an employee of the Municipal Corporation of Ahmedabad holding the post of Public Analyst under the Food Adulteration Act, can be prosecuted without sanction under Section 197 of the Criminal Procedure Code, 1973. The Apex Court came to a finding that the appellant before the Apex Court was an employee of the Municipal Corporation of Ahmedabad and the fact that he was appointed as a Public Analyst did not confer on him the status of an officer of the Government or Public servant. In paragraph 5 of the said judgment the Apex Court observed as under :

"Section 197, Cr.P.C., clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Government to their prosecution be necessary".

In the case of Director of Inspection and Audit and others Vs. C. L. Subramaniam reported in 1994 Supp (3) SCC Page 615 the accused were custom officers and the question was whether they could be prosecuted without sanction under Section 197 of the Criminal Procedure Code. In Paragraph 6 of the said Judgment the Apex Court analysed Section 197 of the Criminal Procedure Code and the object of the said section and observed as under :

"6. If the provisions of Section 197, Cri.P.C. are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the section is to provide guard against vexatious proceedings against judges, magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution".

It was sought to be argued before us by relying upon the several authorities that under the doctrine of precedents the ratio laid down in the judgments could not be read dehors the facts of the case. The argument was that in the aforesaid three cases the persons who were prosecuted were either not public servants or were public servants not working in an Armed Forces of the Union. Though several judgments were cited in this regard, we intend to cite only one as there is no dispute about the proposition which is being propounded. The latest judgment which comprehensively covers the issue raised is the judgment of the Apex Court in the case of M/s.Zee Tele Films Ltd. and another Vs. Union of India and others reported in 2005 A.I.R. SCW 2985. In Para Nos.275, 276, 277, 278, 279 Apex Court laid down as under :

"275. Are we bound hands and feet by Pradeep Kumar Biswas (supra). The answer to the question must be found in the law of precedent. A decision, it is trite, should not be read as a statute. A decision is an authority for the question of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known, must be read in its entireity and the observations made therein should receive consideration in the light of the questions raised before it. (See Punjab National Bank Vs. R. L. Vaid and others).

276. Although, decisions are galore on this point, we may refer to a recent one in State of Gurajat and others Vs. Mahamandal and Others (A.I.R. 2004 SC 3894) wherein this Court held;

It is trite that any observations made during the course of reasoning in a judgment should not be read divorced from the context in which they were used."

277. It is further well settled that decision is not an authority for the proposition which did not fall for its consideration.

278. It is also as trite law that a point not raised before a court would not be an authority on the said question.

279. In A-One Granites Vs. State of U.P. and others, (2001)3 SCC 537, it is stated as follows :-

"11. This question was considered by the Court of Appeal; in Lancaser Motor Co. (London) Ltd. Vs. Bremth Ltd. (1947)1 KB 675, and it was laid down that when no consideration was given to the questions, the decision cannot be said to be binding and precedents sub-silentio and without arguments are of no moment.

(See also State of U.P. and another Vs. Synthetics and Chemicals Ltd. and another, (1991)4 SCC 139, Arnit Das Vs. State of Bihar, (2000)5 SCC 488 (Para 20), Bhavnagar University Vs. Palitana Sugar Mills (P) Ltd. and others, (2003)2 SCC 111, Cement Corporation of India Ltd. Vs. Purya and others, (2004)8 SCC 270, Bharat Forge Co. Ltd. Vs. Uttam Monohar Nakate, JT. 2005(1) SC 303, and Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and anr. Para 42, (2003)1 SCALE 385)."

10. In the present case however, we find that in the case of K. Ch. Prasad (supra) the Apex Court has interpreted Section 197 as a whole after reproducing the body of the section. It was fairly admitted before us that the present appellant though a member of the Armed Forces of the Union would clearly be a public servant within the meaning of clauses 8 and 12 of Section 21 of the Indian Penal Code. He would therefore, be a person would fall squarely within the meaning of a public servant within the meaning of Section 197(1) of the Criminal Procedure Code and would be subject to the same restrictions under Section 197(1). It appears that Clauses 2 and 3 were of Section 197 introduced for the first time when the new Criminal Procedure Code was promulgated in 1973. The changes to Section 197 were suggested by the 41st Report of the Law Commission of India, published by the Government of India in September, 1969. On reading this report, it appears that there was no specific recommendation for adding sub-sections 2 and 3 to Section 197 in the new Code. Since, it is admitted before us that a member of Armed Forces of the Union would be public servant within the meaning of Clauses 8 and 12 of Section 21 of the Indian Penal Code, it appears to us that Clauses 2 and 3 were clarificatory in nature. Since only commissioned Officers in the Military, Naval or Air Forces of India were specified as public servants, perhaps the need was felt to clarify that all members of the Armed Forces of the Union would also be public servants requiring sanction for prosecution. On the interpretation put by the Apex Court on Section 197 as a whole, it follows that the limitations regarding to the classes of public servants covered by Section 197(1) would govern all categories of public servants including those covered by Section 197(2) and 197(3). In our view, therefore, Section 197 of the Criminal Procedure Code was not attracted to the prosecution of the accused in the present case because the accused was not a person who was removable from his office "save by or with the sanction of the Government". This contention on behalf of the accused must therefore, fail.

11. The second technical contention related to non following of the procedure laid down in Section 20(3) of the Railway Protection Force Act, 1957. The said Section 20(3) is in the following terms :

"Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise, and notice in writing of such proceeding, and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding."

There is no force in this argument. The facts of the case indicates that even if story of the defence relating to the acts of the accused having commenced in exercise of a right of private defence was accepted, yet, in our view, under Section 102 of the Indian Penal Code the said right would cease to exist as soon as the apprehension ended and such apprehension must be said to have ended after the first shot was fired through the body of the deceased. Firing a second and third shot by rifle after the first shot penetrating a vital part of the body, damaging the internal organs of the body cannot be said to be acts in pursuance of any provisions of the Railway Protection Force Act, 1957 or the rules framed thereunder. Pumping of bullet shots one after another cannot also be said to be acts in excess of the private defence because the right of private defence would cease after the deceased was shot through and through his chest. We have in mind the fact that a 303 rifle is not anautomatic weapon. The bolt of this rifle has to be pushed back and again pushed forward and this can only be intentional act with an object of firing the rifle. The facts of the case indicate that the accused in the defence tried to justify his acts. As far as the second shot is concerned, accused contended that he did not know whether his first bullet had hit the deceased. But as far as third bullet is concerned, his story that he shot the third bullet at the boy who was running away is clearly falsified by the circumstances of three bullet injuries being found on the deceased. In our view, such an act after cessession of the right of private defence cannot be said to be something done or intended to be done under the powers conferred by or in pursuance of any provision of the Railway Protection Force Act, 1957 or the rules thereunder and therefore, the argument based upon the provision of Section 20(3) of the Railway Protection Force Act, 1957 must fail.

12. That brings us to the last question as to what offence can be said to have been committed by the accused. We have already observed above that the right of private defence which accrued came to an end after the firing of the first bullet through the vital part of the deceased and in any case after firing of the second bullet through the deceased. Once the right of private defence came to an end, in our view, further acts of aggression cannot be said to be in exercise of the right of private defence of person or property. Exception-2 to Section 300 will therefore, not apply. We however, see some force in the argument that Exception-3 to Section 300 may apply to the facts of the case. Admittedly, accused is a public servant. It appears from the record that the deceased and another boy were stealing coal which was railway property. Accused was under a statutory duty to protect such railway property. There is also nothing on record to substantiate the existence of any ill-will being harboured by the accused towards the deceased. In his evidence, the complainant has stated that the accused had demanded Rs.2000/- from him. This is not however, relating to any transaction between the accused and the deceased. Moreover, it is quite possible that in a warped frame of mind the accused may have thought that in exercise of his duty he was within his right to fire continuously on the deceased once the deceased had pulled out his knife. It is possible that the accused might not be aware as to when his right to self defence under the law ceased.

13. Taking into account this fact, we are inclined to give benefit of Exception-3 to the accused. The accused will therefore, have to be held guilty under of an offence punishable under Section 304, Part-I of the Indian Penal Code and we hold accordingly.

14. In the circumstances, the appeal is partly allowed as under :

. The conviction and sentence of the accused under Section 302 of the Indian Penal Code is set aside and accused is convicted for committing an offence punishable under Section 304 (Part-I) of the Indian Penal Code and is sentenced to suffer R.I. for a period of seven years and to pay a fine of Rs.500/-, in default to suffer further R.I. for a period of six months.

. The accused is entitled for set off for the period undergone by him during the trial or during the pendency of the appeal.

. The accused to surrender his bail forthwith to undergo the aforesaid sentence. The bail bond of the accused to stand cancelled.

. Appeal stands disposed of.

Appeal partly allowed.