JUDGMENT
R.S. Verma, J.
1. These two appeals, one filed by the State, and the other filed by appellant Hanuman are directed against the judgment of the learned Addl. Sessions Judge, Sri Ganganagar dated 4.6.1977, whereby appellant Hanuman was acquitted of charge under Section 307, I.P.C. but was convicted of offence under Section 326, I.P.C, The learned Addl. Sessions Judge found appellant Hanuman guilty of offence under Section 326, I.P.C. and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further S.I. for one month.
2. In the State Appeal, the principal contention is that Hanuman had fired a gun voluntarily at Smt. Ram Pyari and had caused grievous hurts to her and this firing had been done with the intention to commit murder of Ram Pyari and, therefore, Hanuman ought to have been convicted for offence under Section 307, I.P.C. and ought to have been sentenced accordingly.
3. In the Appeal filed by Hanuman, the contention is that the learned trial Judge arrived at a firm conclusion that Hanuman was in possession of the disputed land and Smt. Ram Pyari along with other persons came to the field duly armed with ‘gandasis’ and ‘kassis’ and, therefore, Hanuman fired at Smt. Ram Pyari in exercise of right of private defence of property and, therefore, Hanuman was justified in firing a gun shot at her and, therefore, it could not be said that he had committed any offence under Section 326, I.P.C. Since both the appeals pertain to the same incident and arise out of the same judgment, they have been heard together and are being disposed of by a common judgment.
4. Briefly stated the case of the prosecution is that one Kalu Ram owned agricultural land at Chak 64 L.N.P. Kalu Ram did not have a son but had a daughter Smt. Ram Pyari (P.W.I) and a grand son Hanuman (P.W. 3). Kalu Ram adopted aforesaid Hanuman and since then Hanuman and Smt. Ram Pyari were living with Kalu Ram and were cultivating the agricultural land belonging to Kalu Ram. The prosecution story is that on the date of incident Hanuman (P.W.3) had gone to village 29 BB where his father was residing. However, Hanuman’s brother Ramesh and Hanuman’s wife Smt. Tulsi were present at village 64 L.N.P. along with Smt. Ram Pyari at their residential Dhani. Smt. Ram Pyari heard certain gun shots, upon which she shut her son Ramesh in a room of the Dhani and went to the disputed field, where she claims to have sown some ‘Gwar’ some time back. It is alleged that Tulsi (P.W.2) also accompanied her. The prosecution story further is that when Smt. Ram Pyari and Smt. Tulsi were at a distance of about one kila, Hanuman fired a gun shot taking aim towards Smt. Ram Pyari, with the result that Smt. Ram Pyari received a gun shot injury which was found to be grievous. Information regarding this incident was sent to Hanuman at village 29 BB, whereupon he came to his village and lodged a report Ex.P. 1 on 17.9.1973 at Police Station Dhamarwali. In the First Information Report certain other persons were also alleged to have participated in the assault. A case under Section 307, 147, 148, 149, I.P.C. and 27 of the Arms Act was registered and due investigation was made. Smt. Ram Pyari and Smt. Tulsi were examined for their injuries by Dr. R.P. Punia (P.W.6). He found a number of injuries on the persons of the two ladies and prepared reports Ex.P. 2 and Ex.P. 6. The injuries of Smt. Ram Pyari were further subjected to x-ray examination by Dr.S.S. Bhargava (P.W.10). He found a fracture of the neck of fibula of Smt. Ram Pyari. He prepared a report Ex.P. 3 in this regard. The Investigating Officer made due investigation and four persons, namely, Hanuman, Buhadam, Surajaram and Lalu were put up for trial for offences under Section 147, 148, 307, I.P.C. and other sections.
5. The learned Addl. Sessions Judge, Sri Ganganagar upon due commitment tried all the four accused persons for offences under sections 148, 447, 307, I.P.C. All the accused persons were charged for offence under Section 323, I.P.C. Hanuman was further charged for an offence under Section 27, Arms Act. All the accused persons pleaded not guilty and claimed trial. At the trial the prosecution examined Smt. Ram Pyari (P.W.1), Smt. Tulsi (P.W.2), Hanuman (P.W.3), Ram Pratap (P.W.4), Mani Ram (P.W.5), Dr. R.P. Punia (P.W. 6,) Mohan Lal (P.W. 7), Mangan Singh D (P.W.8), Tek Chand (P.W.9) and Dr. S.S. Bhargava (P.W.10).
6. In their statements recorded under Section 313, Cr.P.C, the accused persons denied their complicity in the crime. The case set up by the accused persons was that the land in dispute was sold by Kalu Ram to Chunni Lal and Chunni Lal was in possession of the disputed land for cultivation. On the day of occurrence, Mohan Lal, Hanuman (P.W.3) and one Sardar and mother and wife of Hanuman came to the disputed field. Sardar was armed with a gun, while women folk were carrying kassis. Sardar started firing at these persons, upon which Budh Ram fired gun shots to repel that attack. It was alleged that report of the incident was lodged with the police but the police sided with the party of P.W.3 Hanuman and did not file challan and eventually a complaint was lodged on behalf of appellant Hanuman. In defence Molu Ram (D.W.1) and Duli Chand (D.W.2) were examined. Certain documentary evidence was also filed by both the sides.
7. The learned trial Judge after due consideration of the evidence of the parties, arrived at the conclusion that the prosecution had failed to prove that Smt. Ram Pyari and Hanuman were in possession of the disputed field. He came to the conclusion that the disputed land had been sold by Kalu Ram to Chuni Lal and appellant Hanuman was in possession of the disputed land of behalf of Chunni Lal and had ploughed the land a day before the incident took place. He found that the prosecution had failed to substantiate its case against the other co-accused persons. He arrived at the conclusion that Smt. Ram Pyari and Smt. Tulsi had come duly armed to the disputed field with a view to take possession of the land and at this appellant Hanuman fired gun shot hitting Smt. Ram Pyari and causing grievous hurts to her. He was of the view that this was a case where right of private defence had been exceeded by Hanuman. He was of the opinion that Hanuman appellant did not intend to commit murder of Smt. Ram Pyari and, therefore, Hanuman was not guilty of offence under Section 307, I.P.C. He, accordingly, acquitted Hanuman of offence under Section 307, I.P.C. It may be stated that appellant Hanuman was also acquitted of offence under Section 447, I.P.C. The other co-accused persons were altogether acquitted of all the charges.
8. On behalf of the State it is urged that since appellant Hanuman had fired at Smt. Ram Pyari, it should be inferred that Hanuan intended to cause her death voluntarily and, therefore, he should have been convicted for offence under Section 307, I.P.C. It is urged that the conviction of appellant Hanuman under Section 326, I.P.C. be altered to one under Section 307, I.P.C and he should be suitablly punished.
9. As against this, learned Counsel for the appellant has strenuously urged that Smt. Ram Pyari and her daughter-in-law Smt. Tulsi had gone to the field in dispute with a view to take forcible possession thereof and hence Hanuman was justified in firing one gun shot at them and it cannot be said the he had exceeded right of private defence of property in any manner. It is submitted that appellant Hanuman never intended to case death of Smt. Ram Pyari. It was Smt. Ram Pyari who had invited the trouble and, therefore, Hanuman ought to have been acquitted of offence under Section 326, I.P.C. Alternatively it is submitted that in case this Court arrives at a conclusion that Hanuman exceeded his right of private defence of the property, then he should be let off on confinement already suffered by him. It is submitted that incident pertains to the year 1973 and almost 20 years have elapsed and no useful purpose would be served by sending the appellant to jail.
10. We have heard the rival contentions and have given our earnest consideration to them. We have also carefully perused the record of the learned court-below.
11. It may be stated that the learned trial Judge has given a firm finding that on the day of incident, appellant was in possession of the disputed land on behalf of Chunni Lal to whom the land had been sold. It also arrived at a firm finding that Smt. Ram Pyari and Hanuman (P.W.3) has failed to substantiate their claim that they were in possession of the disputed land. After having gone through the evidence on record, we are of the opinion that the finding recorded by the learned trial Judge on this aspect are based on proper appreciation of evidence and they do not call for any interference. It may be noted that appellant Hanuman had already been acquitted for offence under Section 147, I.P.C. and the State has not chosen to file any appeal against this acquittal and the said acquittal has become final.
12. The finding of the learned trial Judge that Smt. Ram Pyari (P.W.I) and Smt. Tulsi (P.W.2) had gone armed to the disputed field on the day of incident is also based on proper appreciation of evidence. The finding that they wanted to take possession of the land also appears to be correct and the learned publics prosecutor could not advance any reason to discard this finding of the learned trial Judge. It appears that Smt. Ram Pyari, Hanuman and Tulsi were aggrieved by the fact that Kalu Ram had sold the land to Chuni Lal and Chunni Lal had let out it to Hanuman appellant for cultivation. It does appear that on the day of incident. Smt. Ram Pyari and Smt. Tulsi went to the field in dispute duly armed as held by the learned trial Judge.
13. However, it cannot be said that they had approached the appellant and they tried to as shalt him in any manner or to cause any injury to him in any manner. There was no crop standing on the field because the field was ploughed only a day before the incident took place. In these circumstances, appellant Hanuman could have gone to the police and report the matter. He was not justified in firing at Smt. Tulsi from a distance. It is not in prosecution evidence that Smt. Tulsi and Smt. Ram Pyari had advanced towards appellant Hanuman in any menacing manner or had come very near to him so as to cause a reasonable apprehension in his mind that they would inflict injuries upon his person. In these circumstances, we agree with the learned trial Judge that the right of private defence of the property had been exceeded by appellant Hanuman and he was not justified in firing a gun shot at Smt. Ram Pyari and cause grievous hurts to her.
14. In the aforesaid premises the conviction under Section 326, I.P.C. recorded by the learned trial Judge does not call for any interference.
15. In view of what we have stated above we reject D.B. Criminal Appeal No. 407/1977 of the State and partly accept D.B. Criminal Appeal No. 268/1977 of appellant Hanuman and uphold his conviction for offence under Section 326, I.P.C. but reduce the sentence to the confinement already suffered by him during the course of investigation, enquiry and trial. The appellant Hanuman is on bail and he need not surrender to his bail bonds.