M. D. BHATT, J. ( 1 ) JUDGMENT in this appeal preferred by the accused Nasir Khan would equally dispose of the connected appeal jointly preferred by the co-accused Awadhsehari and Prabhat Kumar against their respective convictions and sentences. Nasir Khan has been convicted under Section 308 of the Indian Penal Code and the two other accused persons, under Sections 308/34 of the Indian Penal Code and all have been sentenced to rigorous imprisonment for one year. ( 2 ) CONVICTIONS of the three appellants accused are found to be based by the trial Court, on these proved facts: Before the date 17-10-1977, which was the date of incident, Nasir Khan or even the rival claimantp. W. 6 Hariram Vaidya, was not in actual possession of the disputed land, regarding which proceedings under Section 145 of the Code of Criminal Procedure 1973 had been continuing against them since some time past. Both Nasir Khan and Hariram Vaidya had got executed certain agreements and the registered sale deeds with respect to the very disputed land and on the strength of such deeds, both under the rival claims, had been all along making unsuccessful bids to get the actual possession of the disputed land. On the relevant date i. e. on 17-10-1977, Nasir Khan alongwith servants and labourers had started sowing the disputed land with alsi. Parsu alias Purshottam armed with a gun alongwith his henchmen, had arrived at the field to protest aglinst such sowing operation. The appellants accused Nasir Khan and Awadhbebari at the relevant time, sitting at the medh of the field near a tree while the accused Prabhat Kumar and others were busy in sowing operation. A gun was hanging with sling on the shoulder of Prabhat Kumar while be was doing the sowing operation. Nasir Khan, after snatching the gun from Prabhat Kumar, had suddenly fired the gun, which though did not cause any injuries, whatsoever, to Parsu but the terrylene shirt worn by him came to have holes with burnt spots showing the presence of nitrate on the margins of these spots. Baniyan underneath the shirt also came to have blackening. With the proved facts as above, the trial Court, in the light of evidence, convicted and sentenced the appellants accused to the extent as stated at the outset. Hence, now, the present appeal and the connected one. Baniyan underneath the shirt also came to have blackening. With the proved facts as above, the trial Court, in the light of evidence, convicted and sentenced the appellants accused to the extent as stated at the outset. Hence, now, the present appeal and the connected one. ( 3 ) THE learned counsel for the respective appellants-accused, though not challenging the facts of the incident in the least, has urged that no offence at all, was possible to be made out against Awadhbehari and Prabhat Kumar; and that the only offence that could be made out against the principle accused Nasir would at worst be under Section 324 of the Indian Penal Code but in no case under Section 308 of the Indian Penal Code. Considering the circumstances of the incident, it is principally pressed that sentence of fine alone would meet the ends of justice, particularly when the incident is now about 7 years old and also when Nasir Khan is already on bail throughout since the stage of trial. ( 4 ) I have considered the arguments on both sides. Although the facts of the incident as held proved have DO longer been challenged, suffice it to say in the light of evidence of P. W. 6 Hariram Vaidya, P. W. 1 Parsu alias Purushottam and P. W. 13 Munnilal that it stands clearly established that none of the rival claimants viz. Nasir Khan and Hariram Vaidya were in actual possession of the disputed land on or before the date of incident and that both the rival claimants, on the strength of the particular documents in their favour were making vain attempts to take possession to the exclusion of the other. Their evidence equally brings out that these rival claims of ownership had come into being due to the reckless conduct of the wayward vendor Himanchal in executing the agreements and the sale-deeds in favour of both within a span of short period and it was this circumstance that had even led to the proceedings under Section 145 of the Code against both the rivals and their respective henchmen. The fact that the accused Nasir Khan had fired the gun on Parsu is equally amply proved by the evidence of P. W. 1 Parsu duly corroborated in a large measure by P. W. 2 Khurra, P. W. 3 Anari, P. W. 4 Hariram alias Kallu and P. W. 5 Achchhelal. ( 5 ) ADMITTEDLY, Parsu had not sustained any injuries whatsoever on any part of his person. Firing of the gun had simply grazed Parsus terrylene shirt. The evidence of the Ballistic Expert P. W. 15 J. P. Nigam shows that the gun in question, which had been seized, had been recently discharged and that the shirt was found to have four burnt spots with presence of nitrate showing that the burns had been caused by the gun powder or wadding. The slight blackening on the baniyan too had also been gaused by the disposition of combustion products of gun powder. According to the Expert, only gunpowder had been used for firing and use of such gun powder could only cause grievous hurt and could pierce the skin. From his evidence, it is clear that death could not have been caused by mere use of gun powder in the gun which was fired. In view of such circumstances and there being no possibility of causing death, the offence under Section 308 of the Indian Penal Code could not be made out and as such, the offence has to be consider, d from the view point of attempting to cause hurt by means of a dangerous weapon, viz. , the gun, the offence punishable under Section 324 read with section 511 of the Indian Penal Code. ( 6 ) IN view of the clear evidence that Nasir Khan had fired the gun containing gun powder, which was likely to cause grievous hurt to Parsu alias Purshottam, the appellant-accused Nasir Khan, who had voluntarily and deliberately fired the gun, deserves to be convicted of the offence under Section 324 read with Section 511 of the Indian Penal Code. Circumstances of the incident show that he had suddenly wrested the gun from Prabhat Kumar and had fired a shot. This was done in an attempt to resist Parsu, Hariram Vaidya and others from taking possession of the field which Nasir Khan had started sowing with the help of servants and labourers. Circumstances of the incident show that he had suddenly wrested the gun from Prabhat Kumar and had fired a shot. This was done in an attempt to resist Parsu, Hariram Vaidya and others from taking possession of the field which Nasir Khan had started sowing with the help of servants and labourers. I am of the view that sentence of heavy fine of Rs. 1000/instead of any sentence of imprisonment would quite meet the ends of justice. ( 7 ) SO far as the other two appellant accused Avadhbehari and Prabhat Kumar are concerned, they are not found to have committed any offence whatsoever. Nasir Khan is not found to have fired the gun in furtherance of any common intention with these two appellant-accused. Even though Prabhat Kumar was armed with the gun, it can not be said that he was armed with any specific purpose of injuring any person with the gun. It may well be for his own safety in emergency. Nasir Khan, as is evident from the record, is found to have suddenly taken away. Prabhat Kumar's gun, which was hanging on his shoulder and is then found to have fired the shot. Prabhat Kumar could not have any inkling about the intention of the appellant-accused Nasir Khan. Prabhat Kumar is, thus, found to have no band in the firing of the gun by Nasir Khan. He deserves to be acquitted of the offence under Sections 308/34 of the Indian Penal Code or even of the offence under Sections 324/34/511 of the Indian Penal Code. As regards the accused Avadhbehari, his inculpation in the instant (sic) is not found in the least; and as such, be too deserves to be acquitted. ( 8 ) IN the result, thus, the present appeal and so also the connected one are allowed, one partially and the other fully setting aside the order of convictions and sentences passed against the accused Nasir Khan under Section 308 of the Indian Penal Code, he be and is now convicted only under Sections 324/511 of the Indian Penal Code and is sentenced to pay the fine of Rs. 1,000/- (Rupees one thousand) and in default of fine, to undergo nine months rigorous imprisonment. 1,000/- (Rupees one thousand) and in default of fine, to undergo nine months rigorous imprisonment. ( 9 ) FURTHER setting aside the order of conviction and sentence passed against the other two accused persons Awadhbehari and Prabbat Kumar under Section 308/34 of the Indian Penal Code, they be and are acquitted of the said offence or even of the lesser offence punishable under Section 324 with the aid of Section 34 or 511 of the Indian Penal Code. ( 10 ) THE appellant-accused Nasir Khan do deposit the whole fine amount by 9-2-1984 failing which, he be remanded to judicial custody to undergo the sentence of imprisonment in default of fin e Bail bonds of the other two accused Awadhbehari and Prabbat Kumar stand discharged. .