1. The evidence leaves no doubt that the accused fired at the deceased, who was one of his own watchmen, mistaking him for a thief and inflicted a fatal wound in the chest, from which deceased died almost immediately. The real question is, whether the accused may be given the benefit of exception 2 to Section 300, Indian Penal Code; and, after careful consideration, we must agree with the Sessions Judge in holding that he cannot.
2. From the evidence of prosecution 2nd witness, it is clear that the accused had no reason to apprehend any thing more serious than the advent of thief or thieves intending to steal his cocoanuts or jack fruit; and it cannot be contended that it was necessary to shoot such a thief in order to defend his property, especially as accused had assembled no less than five men to help him in guarding his tope. That accused in firing at deceased must have known himself to be likely to cause the man's death, admits of no doubt; the gun is a handy, serviceable weapon, and it was loaded not with a small shot, but with a slug, an inch long. There was moonlight and deceased was struck full in the chest from a distance of about 25 yards. It is possible that the learned Sessions Judge puts it somewhat too strongly in saying that the object of the shot was expressly to kill the thief, but it seems clear that accused fired, knowing that he was likely to cause a fatal wound and not caring whether he did so or not.
3. The concluding words of exception 2 to Section 300, Indian Penal Code, prevent his being given the benefit of that provision of law.
4. We must, therefore, confirm the conviction and sentence and dismiss the appeal.