JUDGMENT 1. - This appeal is directed against the judgment of the learned Andl. Sessions Judge No. I Hanumangarh, whereby the learned lower court has held the accused appellants Bhupendra Singh, Midia and Banwarilal guilty of the offence under section 307 read with section 34 IPC and sentenced them to four year's RI together with a fine of Rs. 200/-each and in default of this amount of fine the accused persons have been ordered to undergo two months' RI each but all the three accused persons have been acquitted of the offence under section 452 IPC. 2. The facts of this case briefly stated are that the complainant Manphooi was working as `siri (labourer) of Bhupendra Singh. It appears that he did not go to work in the field of Bhupendra Singh for the past about seven days before the date of the occurrence. Bhupendra Singh and his companions thought that he has purposely not come to work. On 14-7-74 it was the turn of Bhupinder Singh for watering of his field. Bhupendra Singh went to the house of Manphooi accompanied by accused Mithia @ Midia and Banwarilal. Bhupendra Singh was armed with a double barrel 12 bore gun whereas Mithia was armed with a `gandasa' and Banwarilal was armed with a lathi. When they reached near the house of Manphooi they demanded explanation from him as to why he has not come to work for the past seven days. He informed them that he was ill whereupon Bhupendra Singh informed him that on that day it was his turn for watering of the field and so he i.e. Manphooi must come to work. Manphooi told them that the turn starts at 1.30 in the night and, therefore, he will return to work on that very night itself. However, the auger of the accused persons generated due to the absence of Manphooi from work did not subside and, therefore, they started abusing Manphooi. Bhupendra Singh, however, told that he will kill them. On hearing this Manphool's wife Mst. Shanti pushed her husband inside the house but by that time Bhupendra Singh has already fired from his gun. The gun shot hit Manphool's wife Mst. Shanti. Later, Mithia and Bhanwarila also adopted threatening postures against them. Bhupendra Singh, however, told that he will kill them. On hearing this Manphool's wife Mst. Shanti pushed her husband inside the house but by that time Bhupendra Singh has already fired from his gun. The gun shot hit Manphool's wife Mst. Shanti. Later, Mithia and Bhanwarila also adopted threatening postures against them. In the meanwhile, on hearing noise of gun fire Manphoofs ueighbourers Ram Kishan, Jesaram s/o Mani Ram and Mothu Ram s/o Jesaram arrived at the spot. This further enraged the accused persons and they started beating the persons who came to the rescue of Manphool's family. When these two accused persons were availing the new comers, Bhupendra Singh again fired from his gun, the pellets of which hit Ram Kishan and Jesaram. Mithia inflicted injuries with `gandasa' to Ram Kishan on his mid and left side of the head. He also inflicted injury to Jesaram on his head. Jesaram received the gun shot injury on his right hand. Mothu Ram was hit by lathis. After this beating the accused persons ran away from the place of the occurrence. 3. Manphooi then accompanied by Ram Kishan went to report the matter to the police where he lodged a report which has been marked Ex. P. 5. A case under sections 307, 324 and 323 IPC read with section 34 IPC was registered against the accused persons. The police inspected the site and the site plan has been marked Ex. P. 6 and the site inspection memo has been marked Ex. P. 6(a). Seven pellets and two wads were also recovered from the spot vide seizure memo Ex. P. 7. The blood stained soil has been seized vide seizure memo Ex. P. 8. Blood stained clothes of Mst. Shanti, Ram Kishan and Jesaram were recovered vide seizure memos Ex. P. 9 to Ex. P. 11 respectively. The injuries of the injured persons were got medically examined. The injury reports of Mst. Shanti, Ram Kishan, Mothu Ram and Jesaram have been marked Ex. P. 1 to Ex. P. 4 respectively. The accused persons were arrested. On the information by the accused Bhupendra Singh one 12 bore gun was recovered. Its information memo has been marked Ex. P. 15. The recovery memo has been marked Ex. P. 16. The injury reports of Mst. Shanti, Ram Kishan, Mothu Ram and Jesaram have been marked Ex. P. 1 to Ex. P. 4 respectively. The accused persons were arrested. On the information by the accused Bhupendra Singh one 12 bore gun was recovered. Its information memo has been marked Ex. P. 15. The recovery memo has been marked Ex. P. 16. The accused persons Mithia and Banwarilal also gave information about the recovery of the `gandasa' and `lathi' consequently they too were recovered, After usual investigation the case against the accused persons was challenged in the court of the learned Judicial Magistrate, Hanumangarh, from where the accused persons were sent up for trial to the court of learned Addl. Sessions Judge No. 1, Hanumangarh. 4. The accused persons were charged with the offence under sections 307, 307/34 and 452 IPC etc. They did not plead guilty to the charges and claimed trial, whereupon the prosecution examined in all eight witnesses in support of its case. The statements of the accused persons were recorded under section 313 Cr. P.C. It has been admitted by accused Bhupendra Singh that he along with Mithia who is his driver and Banwarilal who was working with him for the past about two months, went to the house of Manphooi at about 9.30 p.m. in the night to bring back Manphooi to work as on that day it was their turn for watering his fields. His gun was actually carried by Banwarilal and he and Mithia went without any arms. According to him some hot words were exchanged between them and on hearing the noise of that verbal altercation Ram Kishan came there armed with a `gandasa' and he immediately struck a blow on his head with a `gandasa' by which he fell down and after that he become unconscious.Actually Banwarilal and Mithia brought him from there. Pie then lodged a report in the police and on this basis a case against Ram Krishan is pending in the court of Munsif & Judicial Magistrate, Hanumangarh. Certain influential persons were inimical to him and, therefore, they have instigated the complainant-party to lodge a false complaint against them. To the same effect is the statements of the accused Mithia and accused Banwarilal. They examined none in their defence. After hearing the parties the learned lower court decided the case as aforesaid. Certain influential persons were inimical to him and, therefore, they have instigated the complainant-party to lodge a false complaint against them. To the same effect is the statements of the accused Mithia and accused Banwarilal. They examined none in their defence. After hearing the parties the learned lower court decided the case as aforesaid. Aggrieved against this judgment the accused persons have come up in appeal before this Court. 5. Mr. B.K. Chauhan at the very out set informed this Court by submitting an application that accused Bhupendra Singh has been murdered. This fact was brought to his notice by the father of late Shri Bupendhra Singh. For the satisfaction of the Court he requested to call for the record of the S.B. Criminal Bail Application No. 1213/85 Dhanna Singh v. State which has been filed on behalf of the murder of Shri Bhupendra Singh. The record of this case was summoned and perused by me in the presence of both the parties. After perusal of the record of this fact was not controverted by the learned public prosecutor appearing for the State.In this view of the matter the appeal against Bhupendra Singh abates. Thus I have now to consider the appeal filed on behalf of two other accused appellants i.e. Banwarilal and Mithia @ Midia. 6. I have hear Mr. Chauhan appearing on behalf of the appellants and Mr. M.C. Bhati appearing for the State. I have also gone through the record of the case. 7. The learned lower court has held that actually Manphool was working as a labourer of Bhupendra Singh. He did not go to work for seven days and this probably enraged Bhupendra Singh and, therefore, he went to the house of Manphool accompanied by his two companions. He told him either to return back to work in the field or he may pay back his debt which has been advanced to him by Bhupendra Singh on a pronote. Some hot words were also exchanged between them. This enraged the accused party who went there, fully armed. When Bhupendra Singh fired from his gun at Manphool, Manphool's wife pushed him (i.e. Manphool) inside the house and, therefore. Manphool could not be injured. Actually Mst. Shanti who is the wife of Manphool has been injured. Some hot words were also exchanged between them. This enraged the accused party who went there, fully armed. When Bhupendra Singh fired from his gun at Manphool, Manphool's wife pushed him (i.e. Manphool) inside the house and, therefore. Manphool could not be injured. Actually Mst. Shanti who is the wife of Manphool has been injured. Later, the other accused persons i.e. Mithia who was armed with a 'gandasa' and Banwarlala who was armed with a lathi opened an attack on the person who came to the rescue of Manphool. They landed certain blows to these three persons who came to the rescue of Manphool, and his family. Bhupendra Singh again fired from his gun and the pellets disbursed from it hit Ram Kishan and Jesaram. After that the accused person ranway. The learned lower court, therefore, concluded that the attack was opened by the accused party on the complainant and son his companions in furtherance of their common intention, Bhupendera Singh used his gun twice and as such the court has held that all the accused persons were guilty of the offence under sections 307/34. The story put forth during investigation and at the trial that the accused entered into the house of Manphool and Ram Kishan was, however, disbelieved y the learned lower court and, therefore, all the accused persons have been acquitted of the offence under section 452 IPC. 8. Mr. Chanuhan appearing for the accused appellants has submitted that if the story put forth by the prosecution is believed as such then too the firing of gun by Bhupendra Singh was his own individual act. He did not fire either on the instigation of the other accused persons on their exortation. Actually these two companions of Bhupendra singh have started beating the companions of Manphool only when Bhupendra Singh was landed a blow. Otherwise on both the occasions when the gun was fired no instigation was given by these two accused persons and, therefore, if at all somebody is guilty of the offence under section 307 IPC., it is accused Bhupendra Singh alone who should have been convicted for that offence and not the others. All the injuries received by them by the gun fire were simple in nature. No vital organ has been hit. Mst. All the injuries received by them by the gun fire were simple in nature. No vital organ has been hit. Mst. Shanti received injuries on her left wrist and arm which is not vital organ and all the four injuries received were simple in nature. Ram Kishan has actually not received any injury as such by the gun shot but the doctor who examined his injury has found Blackening in as area of 31/2"x 21/2". After cleaning it with a wet swab an abrasion 1 3/1"x 1" was observed just above the right iliac crest. Jesaram has received lacerated wound 1/2"x 1/4" muscle deep just below elbow joint postero-laterally and in his opinion this injury was simple in nature. The doctor was not definite whether this injury has been received from a gun shot or it has resulted due to an impact of blunt weapon. Be that as it may, all these injuries were simple in nature. In this respect he drew my attention to the statement of PW 1 Ram Kishan, who has stated at the trial that Bhupendra Singh fired twice from his 12 bore gun. This witness when he was examined by the Police has stated in Ex. D. 4 portion A to B that when Shri Bhupendra Singh fired the first from his 12 bore gun, the pellets first passed by the right side of his chest below his arm pit and then that pellet actually hit Mst. Shanti on his left arm, when she was standing in the gate of her house. In portion C to D of his police statement Ex. D. 4 he has stated that the second shot was fired by Bhupendra Singh in the air. He was confronted with these portions. He has, however, stated that his statement before the court was correct and the statement recorded by the police was not correct. He has further stated that how he police has recorded these facts in his statements, he cannot say. This of course is explanation. From this evidence it transpires that second shot was fired by Bhupendra Singh in the air. Only the first shot has hit the injured persons and that shot was fired all of a sudden by Bhupendra Singh. He has further stated that how he police has recorded these facts in his statements, he cannot say. This of course is explanation. From this evidence it transpires that second shot was fired by Bhupendra Singh in the air. Only the first shot has hit the injured persons and that shot was fired all of a sudden by Bhupendra Singh. It is true that when the accused persons went to the house of Manphool they were all armed but their purpose was not to kill anybody but it was to bring back Manphool to work in the field of Bhupendra Singh because Manphool has already been advanced a sum of Rs. 1300/- on the pronote Ex. D. 3 on his agreement to work in the field of Bhupendra Singh and, therefore, the intention of the accused persons was to bring back Manphool to work and not to kill him and, if there was any common intention existing amongst them it was to forcibly bring back Manphool to work in the field of Bhupendra Singh all of a sudden not in furtherance of their common intention but out of his own volition after Manphool agreed to come back to work i.e. after the object for which they went, stood achieved. The rest of it happened because Bhupendra Singh was not able to control and contain his anger. The other two resorted to beating because as per them Rama Kishan struck a blow on the head of Bhupendra Singh. Even at the time of the firing neither Mithia nor Banwarilal instigated or exhorted, Bhupendra Singh to fire from his gun. The situation was within their control. They were fully armed and, therefore, there was no occasion for them to use the gun. If somebody inflicted a blow to Bhupendra Singh with a 'gandasa' or Dhariya on his head, they could have taken revange by inflicting blows with laths and gandasa which were possessed by Banwarilal and Mithia respectively. These two accused persons only inflicted simple blows with 'gandasa' and 'laths'. The blows inflicted by them can at the most be covered by the provisions of sections 324 and 323 IPC and, therefore, these accused persons that is Mithia @ Midia and Banwarilal can not be held guilty of he offence under section 307/34 IPC. 9. Mr. These two accused persons only inflicted simple blows with 'gandasa' and 'laths'. The blows inflicted by them can at the most be covered by the provisions of sections 324 and 323 IPC and, therefore, these accused persons that is Mithia @ Midia and Banwarilal can not be held guilty of he offence under section 307/34 IPC. 9. Mr. Bhati, However, submitted that all the three accused persons went to the house of Manphool fully armed and, therefore, it should be concluded that they had a common intention to kill Manphool. I cannot agree with this contention. The sole purpose of the accused persons was to bring Manphooi back to work because they advanced money to him to work in the field of Bhupendra Singh for one year. They thought that Manphooi was avoiding to come to work and, therefore, they went to his house to forcibly bring him back to work but that at best could have given rise to common intention to use force against him if he did not come to work. There could not have been any intention to kill him because by killing him nobody would have gained. It appears that Bhupendra Singh was enraged and even when Manphool assured him that he will go to work that very nieht to water the field of Bhupendra Singh but it appears that he was unable to control his anger and as such in the heat of passion he fired from his gun. Ram Kishan has admitted in his police statement Ex D4 that the second shot was fired by Bhupendra Singh in the air. If they had any common intention to kill accused Bhupendra Singh would not have fired the second shot in the air. There were many persons present there before him and if he shared any intention to kill with others he could have killed one or two of them in prosecution of their common object by firing on them, Rather the other two accused would have inatigated him to fire on the crowd assembled there. The prosecution has initially come with a case that the second shot was fired by Bhupendra Singh in the air to scare the companions of Manphooi not to attack him and so, I feel inclined to agree with Mr. The prosecution has initially come with a case that the second shot was fired by Bhupendra Singh in the air to scare the companions of Manphooi not to attack him and so, I feel inclined to agree with Mr. Chauhan that actually the intitial firing of the gun by Bhupendra Sing was his individual act and the accused persons did not act in prosecution of any common object to kill any one of the injured persons. It is true that from the testimony of eye-witnesses i.e. PW 1 Ram Kishan, PW 3 Jesaram, PW 3 Shanti, PW 5 Mothu Ram and PW 6 Manphooi it has clearly been established that accused Mithia was armed with a gandasa and he inflicted blows with gandasa to Ram Kishan PW 1 and Jesaram PW 2 whereas Banwarilal inflicted lathi and inflicted blows with it to Ram Kishan PW 1, Jesaram PW 3 and Mothu Ram PW 5. All the injuries inflicted by these accused persons were found simple in nature. Mr. Chauhan, however argued that Bhupendra Singh was attacked by Ram Kishan and so these accused persons were within their right to retaliate in exercise of their right of private defence of person. I am unable to accept this plea of the learned counsel for the appellants. Actually these accused persons went to the house of Manphool fully armed and when Manphool agreed that he was ready to come back to work on that very night, they had no business to indulge in beating or firing from the gun at them. Bhupendra Singh fired at them from his gun which of course hit Mst. Shanti and when Manphool's neighbourers came there, they even started beating them and in this process if somebody has inflicted any blow to Bhupendra Singh. they were within their right to do so. If anybody was aggressive they were the accused persons and so the injured persons of Manphool's party were within their right to resist the aggressive designs of the accused persons who fired at Manphool without any rhyme or reason. Under these circumstances if right of private defence was available to anybody it was only available to Manphool and his companions and not to the accused persons. Under these circumstances if right of private defence was available to anybody it was only available to Manphool and his companions and not to the accused persons. I, therefore feel inclined to hold that accused Mithia @ Midia should have been convicted for the offence under sections 324 read with section 323/34 IPC and the accused Banwarilal should have been held guilty of the offences under sections 323 and 324 read with section 34 IPC. On the point of sentence Mr. Chauhan submitted that the occurrence has taken place on 14-7-74 i.e. almost before 111/2 years. The accused Banwarilal who was armed with lathi was already remained in custody during the investigation and trial for 75 days and the accused Mithia @ Midia has remained in custody for about 5 months and 21 days and, therefore, ends of justice would be met if they be sentenced to the period of their custody. 10. I feel persuaded to agree to his submission. As the occurrence has taken place in the year 1974 and the accused persons are facing trial for the past about 111/2 years and so they must have remained in physical and mental agony for all these years and thus it will be just and proper in the circumstances of this case that accused persons are sentenced only to the period of their custody. 11. In the result the appeal field by the appellant Bhupandra Singh abates. 12. The appeal field by the accused Mithis @ Midia and Banwarilal partially succeeds. The conviction of accused appellant Mithia and Banwarilal under section 307/34 IPC is set aside. The accused Mithia @ Midia is held guilty of the offences under sections 324 and 323/34 IPC, whereas, the accused Banwarilal is held guilty of the offences under sections 323 and 324 read with section 34 IPC. On both these counts they are sentenced to the period of their custody. They are already on ball, they need not surrender to their bail bonds. The appeal is decided accordingly.Appeal partly allowed. *******