GARG, J. - (1.) THIS appeal has been preferred by the accused appellant against the judgment and order dated 13. 2. 87 passed by learned Additional Sessions Judge No. 2, Hanumangarh, in Sessions Case No. 41/85 whereby the learned Additional Sessions Judge No. 2, Hanumangarh while acquitting the accused Mehar Singh for offence under Section 307 read with Section 34 and Section 353 read with Section 34 IPC convicted present accused appellant for offence under Section 307 and 353 IPC and sentenced him as under:- Offences Sentence awarded U/sec. 307 IPC 2 years & 6 months' RI and a fine of Rs. 200/- in default to further undergo 1 month's RI U/sec. 353 IPC 4 months' RI Both the substantive sentences were ordered to run concurrently.
(2.) THIS appeal arises in the following circumstances : (i) On 19. 5. 82 at about 2 p. m. P. W. 2 Najar Singh gave an oral information to P. W. 4 Richhpal Singh, SHO, Police Station Hanumangarh Junction stating that he purchased the disputed land from the accused appellant and his wife Surendra Kaur and "likhatam" of purchasing that land was with him. It was further stated by him that from the court of Munsif Hanumangarh, stay order against the accused appellant was also issued and when he went to his field to irrigate the water, the accused appellant and his father Mehar Singh rushed towards him with a gun and, therefore, he had come to lodge the report. P. W. 4 Richhpal Singh reduced that information into writing in Rojnamcha and the same is Ex. P/5 and after that he proceeded on spot. Further the case of the prosecution is that thereafter P. W. 4 Richhpal Singh along with other police party and along with P. W. 2 Najar Singh and his brother P. W. 1 Guljar Singh reached the disputed field and seeing the police party, the accused appellant fired two shorts towards P. W. 4 Richhpal Singh, but they did not hit him and anybody and thereafter P. W. 4 Richhpal Singh made his identity disclosed to him and also warned him, but he further fired and thereafter since there was no alternative but to defend himself, in defence P. W. 4 Richhpal Singh also fired shots on accused appellant and his father and he also ordered Bhoop Singh to fire and accused appellant filed 16 rounds and when the stock of his cartridge became nil, he was got arrested along with 12 bore gun. P. W. 4 Richhpal Singh chalked out regular FIR Ex. P/7 in the Police Station, Hanumangarh for offence under Sections 307 and 353/34 IPC against the accused appellant and his father Mehar Singh. After usual investigation, a challan for said offences was presented against the accused appellant and one Mehar Singh in the Court of Magistrate from where the case was committed to the Court of Additional Sessions Judge, Hanumangarh. That on 26. 8. 82, the learned Additional Sessions Judge framed charges for said offences against the accused appellant and one Mehar Singh who pleaded not guilty and claimed trial. During trial, 5 witnesses have been produced by the prosecution and thereafter statement of accused under Section 313 Cr. P. C. was recorded and examined one witness in defence.
(3.) AFTER the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 13. 2. 87 while acquitting another accused Mehar Singh,convicted and sentenced the accused appellant as stated above. Aggrieved from the said judgment, this appeal has been filed by the accused appellant. In this appeal, following submissions have been made on behalf of the accused appellant: (i) The question of possession which was very much material in this case has not been considered by the learned trial Judge and thus, since the land in question was in actual possession of the appellant, therefore, whatever has been done was done in exercise of right of private defence. (ii) Apart from that, since fires were shot by both the party and did not hit anybody, therefore, in these circumstances, no case for offence under Section 307 IPC can be found to be proved against the accused appellant and hence, it has been prayed that the accused appellant be acquitted of the said charges. ;