JUDGMENT 1. - D. B. Criminal Revision No. 406 of 1971 filed by Nichhatar Singh and Gurmeetsingh alias Meetsingh and D. B. Criminal Revision No. 238 of 1971 filed by Jugraj Singh injured and D. B. Criminal Appeal No. 264 of 1972 preferred by the State of Rajasthan arise out of one and the same judgment of the learned Sessions Judge, Shri Ganganagar dated 17.7.1971 by which Jarnail Singh, Bedasingh and Avtarsingh accused were acquitted of the offences punishable under Sections 307, 148 and 447 I.P.C. on appeal filed by them and the convictions and sentences of Nichattar Singh and Gurmeet singh alias Meetasingh under sections 307 and 447 I.P.C. were confirmed while acquitting them of the charges under section 148 I. P. C. It will not be out of place to mention that Jarnailsingh, Avtarsingh, Ajayabsingh alias Bedasingh, Nichattarsingh and Gurmeeta singh alias Meeta singh were tried by the Assistant Sessions Judge, Shri Ganganagar for the offences punishable under sections 148, 147, and 447. I P. C. and were found guilty thereof. The Assistant Sessions Judge upon conviction of the aforesaid accused persons sentenced each of them to undergo rigorous imprisonment for four years and to pay a fine of Rs. 100/- in default of payment of fine to further suffer rigorous imprisonment for one month under section 307 I. P. C. Each of them was further sentenced to undergo rigorous imprisonment for one year under Section 148 I.P.C. and to suffer rigorous imprisonment for three months under section 447 I.P.C. No separate sentence was awarded to each of them under section 147 I.P.C. All the substantive sentences on each count were, however, ordered to run concurrently, Aggrieved by their convictions and sentences the above mentioned accused persons preferred an appeal in the court of Sessions Judge, Shri Ganganagar who heard the appeal and acquitted Jarnailsingh, Avatarsingh and Ajayabsingh alias Bedasingh of the charges under sections 307, 148 and 447 I.P.C. but confirmed the convictions and sentences of Nichattar singh and Gurdeosingh alias Meetasingh under sections 307 and 447 I.P.C. while acquitting both of them of the offence punishable under section 148 I.P.C. As against this judgment of the Sessions Judge Nichattar Singh and Gurmeetsingh alias Meetasingh have come up in revision to this Court. The State of Rajasthan also filed an appeal against the acquittal of Jarnailsingh, Avtar Singh and Ajayabsingh alias Bedasingh under Sections 307. The State of Rajasthan also filed an appeal against the acquittal of Jarnailsingh, Avtar Singh and Ajayabsingh alias Bedasingh under Sections 307. 148 and 447 I. P. C. and against the acquittal of Nichattarsingh and Gurmeet Singh alias Meetasingh under section 148 I. P. C. Jugraj Singh injured also filed a revision against the acquittal of the aforesaid persons. 2. The prosecution case against all the accused persons was as follows:- 3. Jugrajsingh one of the injured persons had been in possession of some agricultural land situated in 'chak' No. 21 LNP. He had cultivated his land and sown crops of Gwar in it. There was litigation going on between him and the aforesaid accused persons in the court of Assistant Collector Ganganagar for divisions of Khatauni ('khata'). On 27.4.1969, Jugrajsingh went to his land before day dawn. He had a gun and a bag of cartridges with him at that time. After going into the field he began to set his water channel in working order. At about 9 or 10 A. M. his wife Bachankaur and his daughter Mst. Amari brought meal for him from his house. Jugrajsingh, his wife and daughter took their meal in a 'kotha' that had been constructed on his land. Thereafter Jugrajsingh again started the work of repairing his water channel. He was assisted in his work by his wife Bachankaur while his daughter was moving to and fro in his field. After a short while Gurmeetsingh alias Meetasingh and Major came there along with ploughs and bullocks and began to cultivate some portion of his land. Jugrajsingh protested against their high-handed action and asked them to go away from there as he would not allow them to uproot or destroy his Gwar Crops. Meetasingh and Major thereupon went out of the field and Jugraj singh began to repair ihe water channel. Then at about 11 A. VI. or 12 in the noon he saw Jarnailsingh, Ajaybsingh alias Beda, Nichattar singh, Gurmeet singh alias Meeta singh and Avtar accused getting down from a jeep car which was brought to halt near his field. All the accused persons except Gurmeetsingh alias Meetasingh were armed with guns while Meeta singh had a gandasa' in his hand. or 12 in the noon he saw Jarnailsingh, Ajaybsingh alias Beda, Nichattar singh, Gurmeet singh alias Meeta singh and Avtar accused getting down from a jeep car which was brought to halt near his field. All the accused persons except Gurmeetsingh alias Meetasingh were armed with guns while Meeta singh had a gandasa' in his hand. The accused persons trespassed into the field of Jugrajsingh and hurled abuses upon him and openly declared that he would not be spared that day Jugrajsingh asked the accused persons to go out of his field. Thereupon Jarnailsingh fired a shot from his gun at Jugrajsingh which hit the latter in his stomach, Ajaybsingh alias Beda also fired a shot at him which hit his right arm. Bachan Kaur rushed to rescue her husband but Nichattarsingh and Avtarsingh fired shots from their guns at her which injured her right leg and right mid-axillary lines. As a result of the shots both husband and wife fell down. Then Gurmeeetsingh alias Meetasingh struck a blow on the head of Jugrajsingh with his 'gandasa' and Nichattarsingh picked up the latter's gun and disappeared from there along with other accused persons. While going from the place of occurrence, the accused persons fired two more shots. This occurrence was eye-witnessed by Mst. Amra daughter of Jugraj Singh and his Brother Shivrajsingh who was standing at some distance from the field when the accused persons were making assault. Shivrajsingh met his brother Gurcharansingh and related to him the whole of the incident. Then both the brothers came to the place of occurrence and removed the injured later on in a car to Ganganagar hospital wherein they were admitted for treatment of their injuries. Shivrajsingh then went out of the hospital for search of his brother Milkayatsingh. He found Milkayatsingh at bus stand and informed him about the incident. Milkayatsingh rushed to police station Chunavat and lodged a first information report with the police the very day at about 6 P.M. Dharamsingh S.H.O. Chunavat reduced the oral report to writing and registered a criminal case on its basis under sections 148. 307 read with section 149 I.P C. The S. H. O then took up usual investigation into the matter and went to the spot on the next day. He prepared a site plan and a site inspection memo and took blood stained earth, the bag of cartridges etc. 307 read with section 149 I.P C. The S. H. O then took up usual investigation into the matter and went to the spot on the next day. He prepared a site plan and a site inspection memo and took blood stained earth, the bag of cartridges etc. belonging to Jugrajsingh and two empty cartridges and one wad from the spot. Then he arrested the accused persons on 4.5.1969 and recovered one gun each from the possession of Jarnailsingh, Nichattarsingh and Avtarsingh vide memos and recovery marked Exs. 18, 19 and 20. After his arrest Nichattarsingh gave the S.H.O. an information on 7.5.1969 which led to the recovery of a 12 bore gun from the 'kotha' of Jugrajsingh injured which was situated in his field in Chak No. 21 LNP. The gun belonged to Jugrajsingh. The S.H.O. then sent the guns, empty cartridge-cases and the wad to Central Forensic Laboratory, Government of India, Calcutta for examination. The Assistant Director, Central Forensic cum Assistant Chemical Examiner examined the articles and sent his report Ex. P. 8. Upon examination, he came to a conclusion that the firing-pin-impressions of the test cartridge cases fired through the gun Ex. No. D. and the empty fired cartridge cases marked Exs. Nos. El and E2 were found to match and, therefore, he opined that the empty fired cartridge cases of 12 Bore 2,1/2" KF special cartridges Exs. Nos. El and E2 were fired through the 12 Bore SBBL shot gun S. No 1182 marked Exs. No D (which belonged to Jugrajsingh) and which was alleged to have been recovered from his 'kotha' in pursuance of the information given by Nichattarsingh while in the police custody. The S. H. O. then obtained the injury reports of Jugrajsingh and his wife Bachankaur who were medically examined by Dr. S.D. Godara were found as many as 7 injuries on the body of Jugrajsingh which are noted below:- 1. Two lacerated wounds with inverted margins each 1, 1/2" diameter into abdominal cavity deep directing medially and downwards on the left Iliac fossa each 2" apart. 2. Lacerated wound ⅛" in diameter with inverted margins directing medially and downwards in the left glutial region 3" below the illiac crest. 3. Lacerated wound ⅛" in diameter on the posterior aspect of the middle of right arm with inverted margins directing medially and muscle deep. 4. 2. Lacerated wound ⅛" in diameter with inverted margins directing medially and downwards in the left glutial region 3" below the illiac crest. 3. Lacerated wound ⅛" in diameter on the posterior aspect of the middle of right arm with inverted margins directing medially and muscle deep. 4. Lacerated wound with everted margins ⅓" in diameter on the medial aspect of right arm. 5. A contusion 4" x 1/2" on the right buttock. 6. A contusion 3" x 1/2" on the right buttock 2" below the injury No. 5. 7. Incised wound 3" x 1/4" pericraneum deep on the left parietal sregion. Out of these injuries injury No, 1 and 2 were grievous in nature and the rest were simple. Injuries Nos. 1 to 4 were caused by gun shot while injuries Nos. 5 and 6 were inflicted with hard blunt object and injury No. 7 was caused by sharp-edged weapon. The duration of the injuries was about 4 to 6 hours at the time of medical examination. Dr. S. D. Godara advised X-Ray examination of the injuries found on the body of Jugrajsingh. Upon X-ray examination three radio opaque shots were detected in the abdominal pelvis. 4. Mst. Bachankaur also was medically examined by Dr. S. D. Godara who found as many as 19 injuries on her body:- "1. Lacerated wound with inverted margins 1/42 in diameter muscles deep on the posterior aspect of the left shoulder. 2. Lacerated wound with averted margins 1/2" x 1/2" x muscle deep on the left sub-clevicular region 2" below the mid-levicular points. 3. A lacerated wound with inverted margins 1/4" in diameter x muscle deep on the posterior aspect of middle of the left thigh. 4. Lacerated wound with inverted margins 1/4" in diameter x muscle deep on the lateral aspect of middle of left thigh. 5. I. acerbated wound with averted margins 8" in diameter x muscle deep in the lateral aspect of lower fourth of right thigh at the level of upper border of right patilla. 6. Lacerated wound with averted margins 8" in diameter muscle deep on the medial aspect of left thigh at its middle. 7. Lacerated wound with inverted margins 1/4" in diameter x middle deep on the lateral aspect of the left thigh 2" above injury No. 4 8. 6. Lacerated wound with averted margins 8" in diameter muscle deep on the medial aspect of left thigh at its middle. 7. Lacerated wound with inverted margins 1/4" in diameter x middle deep on the lateral aspect of the left thigh 2" above injury No. 4 8. A lacerated wound with everted margins X muscle deep 1/2" in diameter on the middle aspect of the left thigh 2,1/2" above injury No. 6. 9. Lacerated wound 1,1/2" x 1/4" x muscle deep on the anterolateral aspect of the right knee at the level of lower border of right petilla. 10. Lacerated wound 1,1/2" x 1/2" x muscle deep 1" below injury No. 9 11. Lacerated wound 3" x 1" x bone deep on the medial region of upper fourth of right tibia. 12. Lacerated wound 1" x 1/2" x bone deep on the medial aspect of lower part of the right thigh. 13. Lacerated wound 1/2" x 1,1/2" x muscle deep on the posterior lateral aspect of right at the level of upper two third and lower one third. 14. Lacerated wound 2" x 1" muscle deep on postero-medial aspect of upper fourth of right leg. 15. Three lacerated wounds each 2" x 1" muscle deep on the posterior aspect of right knee each half an inch apart. 16. Lacerated wound with everted margins 1/2" in diameter X muscle deep in right mid axillary lines 6" lateral to right nipple at its level. 17. Lacerated wound with inverted margins with surgical emphyzeme 1/2" in diamter x muscle deep 6" behind injury No. 16 on the back of the chest at the level of nipple of right breast. 18. A lacerated wound with inverted margins 1/4" in diameter soft tissue deep on the antero-lateral aspect of middle of left leg. 19. Lacerated wound with averted margins 1/2" in diameter soft tissue deep on the antero medial aspect middle of left leg. Out of these injuries injuries Nos. 11 and 12 were grievous in nature and the rest were simple. Injuries Nos. 9 to 15 were caused by hard blunt object while the rest were gun shot injuries and their duration was 4 to 6 hours. The injuries were X-rayed and upon X-ray examination fractures of lower end of femur and upper end of tibia fibula right side were detected. Injuries Nos. 9 to 15 were caused by hard blunt object while the rest were gun shot injuries and their duration was 4 to 6 hours. The injuries were X-rayed and upon X-ray examination fractures of lower end of femur and upper end of tibia fibula right side were detected. The S.H.O. then collected other necessary evidence in the case and eventually filed a charge-sheet against all the accused persons in the court of Munsif Magistrate First Class Ganganagar under sections 307, 148, 149, 379, 324 and 323 I.P.C. The learned Magistrate held an inquiry preparatory to commitment and upon finding a prima facie case exclusively triable by the court of Sessions committed all the accused persons to the court of Sessions Judge Shri Ganganagar for trial under section 147, 148, 448, 447 and 307 read with section 149 I.P.C. it appears from the record that the Sessions Judge transferred the case to the court of Assistant Sessions Judge Shri Ganganagar for trial according to law. As stated earlier the Assistant Sessions Judge tried the accused persons and found them guilty in the manner stated above. On appeal Jarnailsingh, Avatarsingh and Ajayabsingh alias Beda Singh were acquitted of the charges framed against them while convictions and sentence of Nichattarsingh, Gurmeetsingh alias Meetasingh under sections 307 and 447 I.P.C. were confirmed but their convictions and sentences under section 148 I.P.C. were set aside. Hence the State appeal and these two revisions have been filed before us, against the judgment of the Sessions Judge Ganganagar. As the appeal filed by the State and the two revisions are directed against one and the same appellate judgment of the Sessions Judge and as common questions of law and fact do arise in all of them we feel inclined to dispose them of by our one judgment. 5. We have carefully gone through the records of the cases and heard Mr. B. K. Chauhan learned counsel for the petitioner, Mr. B. R. Arora learned counsel for the non-petitioners Nos. 1 to 3 and Mr. N. S. Acharya Public Prosecutor for the State. 6. We first take up for decision D. B. Criminal Appeal No. 264 of 1972 preferred by the State of Rajasthan against the acquittal of Jarnailsingh, Avtarsingh, and Ajayabsingh alias Bedasingh respondents and D. B. Criminal Revision No. 238 of 1971 filed by Jugrajsingh injured against the acquittal of the aforesaid three persons. 6. We first take up for decision D. B. Criminal Appeal No. 264 of 1972 preferred by the State of Rajasthan against the acquittal of Jarnailsingh, Avtarsingh, and Ajayabsingh alias Bedasingh respondents and D. B. Criminal Revision No. 238 of 1971 filed by Jugrajsingh injured against the acquittal of the aforesaid three persons. At the out set we may observe that in a Sessions case which is statutorily in charge of Public Prosecutor the State could file an appeal under section 417 old Cr. P. C. against the acquittal of the accused and in fact the State has preferred an appeal against the acquittal of Jarnailsingh, Avtarsingh, Ajayabsingh alias Bedasingh and so it is not necessary to separately deal with the revision petition filed by Jugraj Singh against the acquittal of the same aforesaid respondents. 7. It has been contended before us by Mr. N.S. Acharya, Public Prosecutor for the State that the Sessions Judge Shri Gangangar committed an error in relying upon the defence version and in ignoring the prosecution evidence which clearly implicated the above mentioned three respondents also in the commission of the crime. It was further urged that the injuries caused to the bodies of Jugrajsingh and Mst. Bachankaur were inflicted by these respondents into the field of Jugrajsingh in order to oust him from peaceful possession thereof. According to the learned Public Prosecutor the Sessions Judge on appeal gave unnecessary importance to minor discrepancies appearing in the statements of the eyewitnesses and wrongly rejected their testimonies on conjectural grounds so far as they related to the complicity of the aforesaid three respondents in the crime. 8. The learned counsel for the respondents on the other hand urged that the prosecution could not adduce satisfactory evidence that all the accused persons including the three aforesaid respondents had trespassed upon the land of Jugrajsingh and fired shots at him and his wife Mst. Bachankaur as aggressors. According to him Jugrajsingh was an aggressor as he prevented Nichatter Singh and his brother Mejasingh from ploughing their land and fired two shots at them from his gun in the first instance and so the act of Nichattarsingh in defending his possession would be one in exercise of the right of self defence. Bachankaur as aggressors. According to him Jugrajsingh was an aggressor as he prevented Nichatter Singh and his brother Mejasingh from ploughing their land and fired two shots at them from his gun in the first instance and so the act of Nichattarsingh in defending his possession would be one in exercise of the right of self defence. It was further urged by the learned counsel for the respondents that the evidence led by the prosecution to implicate the three respondents in the commission of the crime was highly discrepant and unworthy of credence and so the learned Sessions Judge was justified in acquitting them of 11 the charges. 9. We have given our earnest consideration to the rival contentions. 10. At the out set we may observe that the right of private defence of property can only exist in favour of a person who is in actual possession of the property which has to be defended. Hence it has to be ascertained in the instant case as to who was in actual possession of the land upon which an attack had been made. The prosecution case is that Jugrajsingh was in peaceful possession of agricultural land comprised in Killa No. 34 of Chak 21 LNP at the relevant time and Mitasingh and Major committed trespass upon it and started ploughing it, but they were prevented by Jugrajsingh from doing so. Thereupon Mitasingh and Major went away from the land and after one and a half hour Mitasingh reappeared there along with Jarnailsingh, Bedasingh, Avatarsingh and Nichattarsingh. Mitasingh at that time was armed with a 'gandasa' and the other accused had guns in their hands. After trespass on the land of Jugrajsingh all of them abused the latter and told him that they would not spare his life. Jugrajsingh asked them to go out of his field as he would not allow them to do anything on his land. Thereupon Jarnail Singh fired a shot from his gun at Jugrajsingh which hit him on his stomach. Bedasingh also fired a shot from his gun which hit Jugrajsingh on his right arm. When Jugrajsingh was about to fall on the ground, Nichattarsingh and Avatarsingh fired shots from their guns at Smt. Bachan Kaur wife of Jugarjsingh which injured her right mid-axillary lines and leg. Bedasingh also fired a shot from his gun which hit Jugrajsingh on his right arm. When Jugrajsingh was about to fall on the ground, Nichattarsingh and Avatarsingh fired shots from their guns at Smt. Bachan Kaur wife of Jugarjsingh which injured her right mid-axillary lines and leg. Thereafter Mitasingh struck a blow on head of Jugraj Singh will his 'gandasa' while the the latter was lying on the ground. Then Nichattarsingh picked up the gun of Jugrajsingh and ran away from there along with his companions. 11. The plea of Nichattarsingh at the trial on the other hand was that he and his brother Mejasingh were ploughing their land. Jugrajsingh came to their field and abused them in a foul manner. He asked them to leave the ploughs and go away from there. Nichattar Singh and Mejasingh did not stop ploughing. Thereupon Jugrajsingh while hurling abuses upon them went to his water course, picked up his gun which was lying there and fired two shots at them. Nichattarsingh also had a gun with him from which he fired one shot at Jugraj Singh in self defence. The shot hit Jugrajsingh and his wife. The other accused persons, namely, Avatar Singh, Bedasingh, Jarnailsingh and Mitasingh pleaded alibi and further stated that they have been falsely implicated in this case by Jugrajsingh and his family out of enmity. In support of their above pleas, the accused persons led evidence in their defence and examined Bantasingh D.W.l, Rau Rai D.W. 2, Bhagirath Patwari D.W. 3, Ramesh Chand Gupta D W. 4 and Sahiram D.W. 5. 12. Where a plea of private defence is set up by the accused it is the duty of the court to examine the same in the light of the evidence brought on the record with a view to finding out the circumstances under which the accused acted. Hence we proceed to sift and scan the evidence with care and caution in order to ascertain whether Nichattarsingh could have reasonably apprehended such injury as justified him in firing shots at Jugrajsingh and his wife. Hence we proceed to sift and scan the evidence with care and caution in order to ascertain whether Nichattarsingh could have reasonably apprehended such injury as justified him in firing shots at Jugrajsingh and his wife. In support of his contention that Jugrajsingh at first committed trespass upon the land of Nichattarsingh and his brother and prevented them from ploughing it and fired a shot from his gun at them while they refused to stop ploughing and go out of their land, the learned counsel for the respondents drew our attention to the failure of the prosecution to adduce cogent and reliable evidence that the occurrence took place in the field of Jugrajsingh in the manner stated by him. According to the submission of the learned counsel for the respondents, the prosecution did not even prove the map of the scene of the offence which was alleged to have been prepared at the spot by Dharam Singh S.H.O. in the course of investigation. The above submission is not devoid of force. Dharamsingh, P. W. 10 no doubt appeared in the witness box from the side of the prosecution and stated in his deposition at the trial that he had prepared a site plan, but curiously S enough the site plan was not proved and exhibited by him. In the absence of a map of the scene of the offence and the surroundings showing relevant and material details it is very difficult for us to locate the place where the incident took place. Dharam Singh nodought stated in his cross-examination that the bag containing cartridges. empty cartridge-cases, blood and wad were recovered by him from Killa No. 13 of f Murba No. 34 but recovery of these articles from Killa No, 13 probabiles the defence story set up by Nichattarsingh. There is another factor which is capable of showing a preponderance of probabilities in favour of the plea of private defence taken by Nichhatarsingh in his statement at the trial. The factor is that test cartridges were fired through the gun of Jugrajsingh injured and compared with the empty fired cartridge-cases found lying in Killa No. 13 of Murba No. 34 belonging to the said injury by the Assistant Director Central Forensic Laboratory-cum-Assistant Chemical Examiner to the Government of India Calcutta with the aid of Comparison Microscopic. The factor is that test cartridges were fired through the gun of Jugrajsingh injured and compared with the empty fired cartridge-cases found lying in Killa No. 13 of Murba No. 34 belonging to the said injury by the Assistant Director Central Forensic Laboratory-cum-Assistant Chemical Examiner to the Government of India Calcutta with the aid of Comparison Microscopic. He definitely opined that the test cartridge-cases fired through the gun of Jugrajsingh and the empty fired cartridge-cases (which were found lying in his Killa No. 13 of Murba No. 34) were found to match. The Assistant Director, therefore, concluded that the empty fire cartridge cases have been fired through 12 Bore SBBL shot gun S. No. 1182 which admittedly belonged to Jugrajsingh injured. This fact is proved by the report of the Assistant Director, Forensic Science Laboratory which is Ex P. 8 on the record. Hence the plea of Nichattarsingh that two shots were fired by Jugrajsingh at him and his brother from his gun cannot be regarded untrue and an afterthought. The Public Prosecutor made an attempt to convince us that the gun of Jugrajsingh was picked up by Nichartarsingh and shots were fired by him later on through it but his above contention is devoid of substance because there is no evidence on the record from the side of the prosecution that Nichattarsingh fired shots after picking up the gun of Jugrajsingh. The evidence of Bachankaur P. W. 3 and Shivrajsingh P.W. 9 is that Nichattarsingh picked up the gun of Jugrajsingh from his field, but they did not say that two shots were fired through that gun by Nichattarsingh. Shivrajsingh and Amro merely stated that when they were running from the place of occurrence they twice heard report of gun fire. Their above statements do not establish that the two shots were fired by Nichattarsingh from the gun of Jugrajsingh at about the place where the empty cartridge-cases were found lying. 13. Shivrajsingh and Amro merely stated that when they were running from the place of occurrence they twice heard report of gun fire. Their above statements do not establish that the two shots were fired by Nichattarsingh from the gun of Jugrajsingh at about the place where the empty cartridge-cases were found lying. 13. The Public Prosecutor further contened that the gun of Jugraj Singh was recovered later on by Dharam Singh from the roof of the Kotha of Jugraj Singh at the instance of Nichattar Singh and in consequence of his information which he had furnished to the S. H. O. on 7.5.1969 while in the Police custody and therefore, it may safely be presumed that the gun was taken away by Nichattar Singh and two shots were fired through it by him. The above contention also has no force because Kesraram P. W. 4. in whose presence the gun was recovered definitely stated in his deposition that a Constable had gone on the roof of the Kotha of Jugraj Singh and brought the gun and that Nichhattar Singh did not go on the roof and bring the gun. Dharam Singh S. H. O. on the other hand denied that a constable had brought the gun from the roof of the Kotha of Jugraj Singh. The prosecution did not produce Bhadarram, another 'raotbir', in whose presence also the recovery of the gun of Jugraj Singh was made. Even Kesaram was not declared hostile and cross-examined by the Public Prosecutor at the trial. Hence the recovery of the gun of Jugraj Singh from the roof of his Kotha cannot be safely held to have been made at the instance of Nichhattar Singh and in consequence of his information recorded under section 27 of the Evidence Act. Apart from this, the gun was recovered on 7.5.1969 i.e. after 10 days of the occurrence from the roof of the Kotha of the injured. The possibility of its having been kept their by any member of the family of Jugraj Singh cannot be ruled out altogether. The Kotha is situated in the field of Jugraj Singh itself. The Police could easily discover the gun at the time of site inspection as it was lying in open on the roof. The possibility of its having been kept their by any member of the family of Jugraj Singh cannot be ruled out altogether. The Kotha is situated in the field of Jugraj Singh itself. The Police could easily discover the gun at the time of site inspection as it was lying in open on the roof. Consequently, we have no hesitation in holding that the preponderance of probabilities on the basis of the above material is in favour of the plea of private defence set up by Nichhattar Singh in his statement at the trial. 14. Apart from this, failure of the prosecution to prove the map of the scene of the offence showing the location of the place at which the incident took place in the field of Jugraj Singh as alleged by the prosecution and the benefit of doubt must go to the respondents, specially when it is proved by the notice of Irrigation Department Ex. D 6 that Nichhattar Singh was in possession of agricultural land comprising in Murbas Nos. 33 and 35 of Chak No. 21 LNP in Kharif Samvat 2025 which are contiguous to Murba No. 34 belonging to Jugraj Singh. Ex. D 6 is proved by the evidence of Bhagirath Patwari D. W. 3 who had issued this Parcha to the accused. 15. The Sessions Judge Shri Ganganagar on appeal by accused persons held after careful scrutiny of the entire evidence on the record that the prosecution could not prove its case beyond reasonable doubt against Jarnail Singh, Avatar Singh and Ajayab Singh alias Beda Singh respondents. On careful review of the evidence we are also of the same view for reasons mentioned below:- 16. Jugraj Singh injured stated at the trial that Meetasingh and Major came to his land with ploughs and started ploughing it. He asked them not to plough his land and to go out of his field. Then both of them went away from there. After about one and a half hour, Meeta Singh again came to his field along with Jarnail Singh, Beda Singh, Avatar Singh and Nichattar Singh. This part of his story does not find place in his earlier statement Ex. D. 1 which he gave before the Magistrate First Class Shri Ganganagar, on 27.4.1969 and wherein he stated that all the accused persons had come to his field in a jeep car along with ploughs. 17. This part of his story does not find place in his earlier statement Ex. D. 1 which he gave before the Magistrate First Class Shri Ganganagar, on 27.4.1969 and wherein he stated that all the accused persons had come to his field in a jeep car along with ploughs. 17. Jugraj Singh was confronted with one contradiction by his former statement Ex. D. 1 which he gave before Shri Ramesh Chandra Gupta, Magistrate First Class Shri Ganganagar on 27-4-1969 and where in he did not state that Mita Singh and Major had trespassed upon his land in the first instance and started ploughing it. When confronted with that above statement Ex. D. 1 Jugaraj Singh could not explain the apparent material discrepancy. He gave an evasive reply by stating that he could not say whether he stated the above fact before the Magistrate. Likewise he was further contradicted by his previous statement Ex. D. 2 which he gave before the Po[ice and wherein he omitted to state that Avatar Singh respondent had fired a shot from his gun at his wife Mst. Bachan Kaur and injured her and that his brother Shivraj Singh had come there and eye-witnessed the occurrence. When his attention was called to the aforesaid omission of material facts he could not explain them but merely stated that he might not have mentioned the presence of Shivraj Singh in his statement before the Police. As for the omission to state that Avatar Singh fired a shot at his wife which hit her right Baggi or Bakhi viz. mid axillary lines 6" lateral to right nipple at its level, Jugraj Singh claimed to have disclosed this faetto the police. Hence from his evidence it is highly doubtful that the Incident took place in the manner stated by him at the trial and that Meeta Singh brought Avatar Singh, Jarnail Singh and Beda Singh respondents with him to the place of occurrence after he and Major were prevented by Jugaraj Singh from ploughing the land. The possibility of their false implication in the commission of the crime by Jugraj Singh could not be eliminated altogether because admittedly litigation was going on between Jugraj Singh on the one side and Jarnail Singh and his sons on the other in respect of division of land, and the relations between them were strained prior to the occurrence. 18. The possibility of their false implication in the commission of the crime by Jugraj Singh could not be eliminated altogether because admittedly litigation was going on between Jugraj Singh on the one side and Jarnail Singh and his sons on the other in respect of division of land, and the relations between them were strained prior to the occurrence. 18. Another eye witness examined by the prosecution is Amro P.W.7. She is the daughter of Jugrajsingh. Her presence on the scene of the offence was not free from reasonable doubt. She stated in her deposition at the trial that her uncle Shivrajsingh P. W. 9 had come near her in the field where occurrence took place when Jairnailsingh , and Beda singh fired shots one each at her father Jugrajsingh and Nichattarsingh and Avtar singh had injured her mother Mst. Bachankaur by firing shots from their guns. Her above statement stands contradicted by the testimony of Jugrajsingh who admitted in his cross-examination that when abuses were being hurled upon him by the Respondents, he saw shivrajsingh coming at a distance of 80 or 90 paces from the place of occurrence. As stated earlier Jugrajsingh did not mention the presence of Shivraj singh P. W. 9 on or about the scene of offence in his statement Ex. D. 2 which he gave before the Police and with which he was confronted in cross-examination. Milkayatsingh stated in his first information report that Shivrajsingh informed him that at the time of commission of the crime he was working with his brother Jugrajsingh in the letter's field. In his statement at the trial Milkayatsingh, however, denied that Shivrajsingh had informed him that he was working in the field along with Jugrajsingh at the time of occurrence. When confronted with his first information report Milkyatsingh gave an unconvincing reply that he of his own accord got this fact recovered in the report because he though that Shivrajsingh might have been working in the field along with Jugrajsingh. When further cross-examination, Milkayatsingh stated that he did not remember which of the fact he got recorded in his first information report of his own accord and which of them he got written at the instance of Shivrajsingh. When further cross-examination, Milkayatsingh stated that he did not remember which of the fact he got recorded in his first information report of his own accord and which of them he got written at the instance of Shivrajsingh. Apart from this if Shivrajsingh had been present at the time and place of occurrence he being the real brother of Jugrajsingh would have taken care of the latter and his wife Mst. Bachankaur injured, at least after the assailants had disappeared from there. The evidence of Shivrajsingh on the other hand is that he did not : approach the injured after the assailants had run away from the field. Apart from this Mst. Bachankanwar P. W. 3 definitely stated in her cross-examination that Shivrajsingh did not come near her and her husband after the occurrence. Hence we are of the view that the presence of Mst. Amro and Shivrajsingh at the time and place of occurrence was not established by the prosecution beyond reasonable doubt. The result of the above discussion is that the prosecution could not succeed in establishing the guilt of Jairnailsingh, Bedasingh and Avtarsingh beyond reasonable doubt and in our opinion these respondents were rightly acquitted of all the charges by the Sessions Judge, Shri Ganganagar on appeal filed by them against their conviction and sentenced. 19. Now we take up for decision the revision petition filed by Nichattarsingh and Meetasingh. As regards conviction of Meetasingh under sections 307 and 447 I.P.C. it was argued by his learned counsel that there was no reliable proof on the record that he committed criminal trespass on the land of Jugrajsingh and made an attempt to kill him by inflicting a blow on his head with a sharp edged 'gandasa' and so he could not be safely held to have been guilty of these charges. The above contention is not devoid of force. Jugrajsingh did not say in his deposition at the trial that Meetasingh had struck a blow on his head with his 'gandasa' as according to him he became unconscious soon after shots were fired at him and his wife Mst. Bachankaur In bis former police statement Ex. D. 2 also, this fact was not mentioned by him. When confronted with his former statement Ex. Bachankaur In bis former police statement Ex. D. 2 also, this fact was not mentioned by him. When confronted with his former statement Ex. D. 2, he replied that he did not remember whether he stated this fact before the police, although according to him he had later on come to know about this fact on the third day after the occurrence. Mst. Bachan Kaur no doubt stated at the trial that Meetasingh had inflicted a blow on the head of her husband when the latter fell on the ground, but when cross-examined on this fact she could not say whether she had disclosed to Shivrajsingh and Gurbachan Singh soon after the occurrence that a blow was struck by Meetasingh on the head of her husband Jugrajsingh, although she claimed to have a talked to them about the incident after an hour and a half the very day. If Mst. Bachankaur had seen Meeta Singh striking a blow on the head of Jugrajsingh she would have surely disclosed this fact to Shivrajsingh and Shivrajsingh in his turn would have asked Milkiat Singh to state this fact also in his first information report. Shivrajsingh admitted in his cross examination that he did not tell Milkayatsingh that Bedasingh had a 'gandasa' with him at the time of occurrence. Hence there is no mention in the F.I.R. that a blow was dealt on the head of Jugrajsingh by Meetasingh with a 'gandasa'. Apart from this it will not be out of place to mention that we have already held above that the presence of Amro and Shivrajsingh on the scene of offence was not free from reasonable doubt. Consequently, there is no cogent and convincing evidence on the record that Meetasingh was responsible for causing a blow on the head of Jugrajsingh with a sharp edged 'gandasa'. 20. As for his conviction under section 447 I.P.C. suffice it to say that the prosecution could not establish reasonable certainty that the occurrence took place in the field of Jugrajsingh and Meetasingh and other respondents committed criminal trespass upon the land of the injured persons with one of the intentions specified in section 141 I.P.C. Hence Meetasingh could not be held liable for this offence under section 447 I.P.C. also. 21. As regards the conviction of Nichattarsingh under section 307 I.P.C. it may be observed that Jugrajsingh and Mst. 21. As regards the conviction of Nichattarsingh under section 307 I.P.C. it may be observed that Jugrajsingh and Mst. Bachankaur stated in their depositions that he fired a shot at Mst. Bachankaur which hit her right mid axillary line i.e. Baggi or Bakhi. Nichattarsingh also admitted in his statement before the committing court that he fired shots from his gun in self defence after Jugrajsingh had fired two shots at him and Major upon their refusal to discontinue ploughing of their land. In his statement at the trial also, Nichattarsingh set up the same plea of the right of private defence, but admitted to have fired one shot only which according to him had hit Jugrajsingh and his wife Mst. Bachankaur. We have already held above on the basis of material on the record that the preponderance of probabilities in this case is that Nichattarsingh acted in self defence when he fired shot from his gun at Jugraj Singh and thereby caused injuries to his person but no such right could legitimately accrue to him when he inflicted gun shot injuries on the body of Mst. Bachankaur who had neither committed trespass over his land nor had made an attack on him. If on seeing her husband having received gun shot injuries, she rushed to shield his body Nichattarsingh was not justified in shooting at and injuring her person. The act of Mst. Bachankaur in shielding the body of her husband might not be to the liking of Nichattarsingh. but certainly it could not give him a right of private defence against her as her aforesaid act did not amount to an offence. Hence we are of the view that Nichattarsingh fired a shot from his gun at Mst. Bachankaur and thereby caused injuries to his body without any lawful excuse. 22. The next question that arises for determination is as to what offence was committed by Nichattar Singh. Mst. Bachankaur had as many as 19 injuries on her body when she was medically examined by Dr. A. S. Gehlot P.W. 1 on 27.4.1969. Out of these injuries, injuries Nos. 9 to 15 were caused by blunt object and the rest were gun shot injuries as opined by the doctor. Injuries Nos. 11 and 12 were of grievous nature. Mst. Bachankaur had as many as 19 injuries on her body when she was medically examined by Dr. A. S. Gehlot P.W. 1 on 27.4.1969. Out of these injuries, injuries Nos. 9 to 15 were caused by blunt object and the rest were gun shot injuries as opined by the doctor. Injuries Nos. 11 and 12 were of grievous nature. Upon X-ray examination it was further detected that there were fractures of lower and of farmer and upper end of tibia and fibula right side. There is no positive evidence on the record that injuries Nos. 9 to 15 found on the person of Mst. Bachankaur were caused by Nichattarsingh with some bard blunt object. Hence authorship of these injuries could not be attributed to him. Likewise he could not be held responsible for causing gun shot injuries Nos. 3 to 8 on her left thigh and injuries Nos. 18 and 19 on her left leg, as it was not stated by Jugraj Singh and Mst. Bachankaur in their deposition that Nichattarsingh had fired another shot from his gun which caused injuries to her left leg and thigh. Dr. A.S. Gehlot did not say in his deposition that all the gun shot injuries found on the body of Mst. Bachankaur could possibly be caused by one shot only. Apart from this, the prosecution case was that besides Nichattarsingh, Avatarsingh Respondent also fired a shot from his gun which had hit Mst. Bachankaur's leg. As stated earlier the prosecution failed to prove that Avatarsingh took part in shooting at and injurying Mst. Bachankaur Hence injuries Nos. 1, 2, 16 & 17 only could be attributed to Nichattarsingh as they appeared to have been caused by his shot. These injuries were simple in nature and so in the absence of any evidence showing that Nichattarsingh fired the shot at Mst. Bachankaur with such intention and knowledge or under such circumstances that if by that act he had caused her death he would have been guilty of murder, we do not feel persuaded to hold that his act fell within the purview of section 407 I.P.C. He no doubt could be safely held guilty of an offence under section 324 I.P.C. 23. As for his conviction under section 447 I. P. C. suffice it would be to say that the prosecution could not adduce cogent and reliable evidence to show that he committed criminal trespass on the land of Jugrajsingh and fired shots at him and his wife in his field. We have already held above that it is highly doubtful whether the occurrence took place in the field of Jugrajsingh and so in the absence of any reliable evidence regarding criminal trespass committed by Nichattarsingh, his conviction and .sentence under section 447 I. P. C. cannot be sustained. 24. As regards sentence that may be awarded to Nichattarsingh under section 324 I. P. C. it may be observed that his appeal was dismissed by the Sessions Judge Shri Ganganagr on 17th July, 1971 and his sentence was suspended by this Court on 13.9.1971 and he was released on bail on 18.9.1971 upon furnishing bail bonds. In this manner he served out sentence of rigorous imprisonment for about two months. Apart from this Nichattarsingh was arrested in the course of investigation of this case on 4.5.1969 and was real eased on bail by an order of the Hight Court dated 24 10. 1969 and upon calculation he has undergone detention for a period of about 5 months and 20 days during the investigation, inquiry and trial of this case for which period he is entitled to set off under section 428 Cr. P. C. Hence we are of the view that the ends of justice would be met if the conviction of Nicharttarsingh under section 3071. P. C. is altered to one under section 324 I P. C. and his substantive sentence of four years', rigorous imprisonment awarded to him under section 307 I. P. C. is reduced to a term already undergone by him while maintaining the sentence of fine of Rs. 100/- and in default of payments of fine to suffer rigorous imprisonment for one month. 25. The result of the above discussion is that D. B. Criminal Appeal No. 264 of 1972 filed by the State of Rajasthan and D. B. Criminal Revision No. 238 of 1971 filed by Jugrajsingh injured have no force and are hereby dismissed. 100/- and in default of payments of fine to suffer rigorous imprisonment for one month. 25. The result of the above discussion is that D. B. Criminal Appeal No. 264 of 1972 filed by the State of Rajasthan and D. B. Criminal Revision No. 238 of 1971 filed by Jugrajsingh injured have no force and are hereby dismissed. D. B. Criminal Revision No. 406 of 1971 filed by Nichattarsingh and Gurmeetsingh alias Meetasingh is partly accepted to the extant that his convictions and sentences of Gurmeetsingh alias Meetasingh petitioner under section 307 and 447 I. P. C. are set aside and he is acquitted of the said offences. Likewise the conviction and sentence of Nichattarsingh under section 447 I. P. C. are set aside and he is acquitted of the said charge, but his conviction under section 307 I. P. C. is altered to one under section 324 I. P. C. and his substantive sentence of rigorous imprisonment for 4 years is reduced to a term already undergone by him while maintaining the sentences of fine of Rs. 100/-, in default of payment of fine to suffer rigorous imprisonment for one month. 26. Both Nichattarsingh are on bail. They need not surrender to their bail bonds which are hereby discharged. Two months' time is given to Nichattarsingh to deposit the amount of fine in the court of Session Judge Shri Ganganagar failing which necessary action shall be taken against him according to law.State Appeal Dismissed/Revision Partly Allowed. *******