JUDGMENT

Asthana, J. - Pohap Singh has been convicted u/s 109 read with Section 307 I.P.C. and his son Bhujvir u/s 307 I.P.C. by the learned Additional Sessions Judge of Bulandshahr. Pohap Singh has been sentenced to 3 years' rigorous imprisonment and a fine of Rs. 75/-, and in default of payment of fine to 4 month's further rigorous imprisonment, and Bhujvir has been sentenced to 5 years' rigorous imprisonment and a fine of Rs. 100/-, and in default of payment of fine to 6 months' further rigorous imprisonment. They have filed the present appeal against their conviction and sentences.

2. Pohap Singh and Bani Singh are brothers. Smt. Bhagwati is the wife of Bani Singh. Bani Singh was formerly insane. Bani Singh and his wife Smt. Bhagwati have got two daughters, namely Smt. Ramwati and Smt. Sriwati or Sanai. They are both married to one Khazan who lives with Smt. Bhagwati. Smt. Bhagwati had brought a suit against Pohap Singh for partition of the holding and this case was fixed for hearing on the date on which the occurrence took place. It was alleged by the prosecution that on the 18th August, 1951 at about 8 A.M. in the morning Smt. Bhagwati and her daughter Smt. Sanai had gone to the jungle to ease themselves and while they were returning and had reached the field of one Bhim Sen, Smt. Bhagwati was shot with a gun by Bhujvir; that Pohap Singh, Bhujvir, Dharamvir, Manvir and Rajvir were then at a distance of two fields from Smt. Bhagwati; that Bhujvir had a gun with him and the others were armed with lathis; that Manvir, Dharamvir and Rajvir are also the sons of Pohap Singh; that Smt. Bhagwati and her daughter raised an alarm and thereupon Pohap Singh said to Bhujvir Singh that Smt. Bhagwati was not dead and asked him to fire another shot. It was further alleged that Bhujvir then fired another shot and Smt. Bhagwati then fell down, and that Ram Swarup, Girwar, Lakhpat, Dalvir, Chhajwa and many other persons had reached the place of occurence and had seen it. The accused then ran away.

3. Smt. Bhagwati was taken to the Police Station Jahangirabad by her husband and son-in-law and she made a report there the same day at 2.15 P.M. It may be mentioned here that Police Station Jahangirabad is 4 3/4 miles from the place of occurrence. This report was made against Pohap Singh and his four sons, namely, Manvir, Rajvir, Dharamvir and Bhujvir, and was registered under Sections 148, 149 and 307 I.P.C.

4. After the report Head Constable, Raghubir Singh was sent to the place of occurrence. He proceeded to the house of Pohap Singh and took in his possession the double-barrel gun of Pohap Singh along with the licence. Thereafter Sri Bhagwan Singh Yadav, Station Officer, Jahangirabad, went to the scene of occurrence. He found marks of blood on the ground. He collected the blood-stained earth and prepared its recovery memo. The accused Pohap Singh was arrested on the 18th August, 1951. His son Bhujvir could not be arrested as he was not found there. He subsequently surrendered himself on the 8th September, 1951.

5. Smt. Bhagwati was medically examined on the 20th August, 1951, at 4.15 P.M. in the evening by Dr. D.P. Sharma, Civil Surgeon, Bulandshahr. She had the following injuries on her person:

(1) Three gunshot wounds 1" x 1/2" x bone deep; 1/2" x 1/4" bone deep and 1/2" 1/4" x bone deep, respectively, in an area of l 1/2" x 1 1/2" on outer aspect of right elbow with fracture of arm bone underneath. Margins not scorched, blackened or tattooed. (These were wounds of entry).

(2) Two gunshot wounds 2" x 1" bone deep and 1" 3/4" bone deep 2" apart on back of right arm and elbow respectively. (Wounds of exit). Injuries Nos. 1 and 2 communicate with each other. Suspected fracture near elbow joint.

(3) Gunshot wound 1/2" 1/2" muscle deep in front of right forearm at the junction of middle and lower third-margins not blackened, scorched or tattooed. (Wounds of entry).

(4) Gunshot wound 1 1/4" 1" muscle deep on outer and back aspect of right forearm