R.K. Chowdhary, J.
1. This is an appeal by three men, Badshah Singh, Khunni Stngh & Kunwar Singh, against the judgment and order of the learned Additional Sessions Judge of Shahjahanpur. He convicted and sentenced Badshah Singh to seven years' R. I. and a fine of Rs. 200/-, or further rigorous imprisonment for one year in default of payment of fine, under Section 307, I. P. C., Khunni Singh to one year's R. I, and Rs. 50/- fine, or further rigorous imprisonment for three months in default of payment of fine, under Section 323, I. P. C., and Kunwar Singh to six months' R. I under Sections 323/109, I. P. C. Khunni Singh and Kunwar Singh are uncles of Badshah Singh. One other tried along with the appellant, Munshi Singh, was acquitted mainly on the ground that the two main witnesses in this case were inimical to him.
2. The prosecution of the appellants was based upon an incident which, it is common. ground, did take place at about 8 a. m. on 12-8-1954 in a plot of land outside village Areli within police station Nigohi in the district of Shahjahanpur. It is common ground that Dular P. W. 1 and his nephew Raja Ram P. W. 3 were ploughing the field when the appellant Badshah Singh came up and tried to prevent them from doing so. Each party claimed to have been in possession of the field and accused the other of aggression.
According to the prosecution, Khunni Singh and Kunwar Singh appellants were also with Dadshah Singh and, when Dular refused to accede to the protests of Badshah Singh, Khunni Singh gave Raja Ram a lathi blow and Badshah Singh shot at Dular with a pistol at the instigation of Kunwar Singh.
3. Khunni Singh and Kunwar Singh pleaded alibi and Badshah Singh denied having fired at Dular and pleaded that when he protested he was assaulted by Dular and his companions. No counter report was lodged toy any of the appellants, nor did Badshah Singh get himself medically examined. The defence of Badshah Singh and Kunwar Singh was that when subsequently the latter came to know of the incident from the former both of them went to the police station to lodge a report but were prevented from doing so because they were placed under arrest there.
No defence was however led in support of this latter plea, nor was any question put relating to that plea to Head Constable Babu Ram P. W. 2, who registered the report lodged by Dular at P. S. Nigohi at 12-20 o'clock on the day of the occurrence, or to S. I. Hari Bhajan P. W. 6, Station Officer of the police station, who investigated the case.
4. The prosecution produced three eye-witnesses, the two victims Dular P. W. 1 and Raja Ram P. W. 3, and Hira Lal P. W. 4 who was scraping grass close to the field of occurrence, while the defence produced one witness Sita Ram. D. W. 3 in support of the counter version. The defence also produced two other witnesses Atjar Singh and Hulas Singh in support of the defence plea that the disputed field had been in possession of Badshah Singh.
The injuries of Dular and Raja Ram were examined by Dr. S. R. Khanna, Medical Officer in charge of the District hospital at Shahjahan-pur, in the midnight between the 12th and 13th August 1954, He found, the following injuries on Dular:
A large number of small and round gunshot wounds, each 1/10' x 1/10'x skin deep, spread in an area of 6' x 3 1/2' on the left buttock. He found blackening present on some wounds. Screening showed four small and round radio opaque shadows in outer and upper part of the left thigh resembling gunshots. The doctor took out 5 pellets from the wound. In the opinion of the doctor the firearm had been fired from a very close range. In the opinion of the doctor, the injury caused to Dular was a simple one. On the person of Raja Ram the doctor found one abrasion -- 3/4' x 1/6' on the front part of the phalanx of the left thumb, the injury being simple and appearing to have been caused with a blunt weapon like a lathi.
The injuries were stated before the doctor to have been caused at about 8 a. m. on 12-8-1954 which, in his opinion, was probable. The learned Sessions Judge relied upon the testimony of the prosecution witnesses & rejected that of the defence witnesses, including the Khasra extract produced by the defence witness Atraj Singh, the village Lekhpal.
5. The crucial question no doubt was as to which party was the aggressor, and for that purpose it was necessary to find as to who actually had been in cultivatory possession of the disputed plot. The learned Sessions Judge discarded the testimony of the Lekhpal who was produced as a defence witness on the ground that he was related to Badshah Singh and the relations between him and Dular had been strained.
It is noteworthy that the entry with regard to possession in favour of Badshah Singh was only in the remarks column and those entries do not appear ever to have been verified by any superior officer. Nor was the Zamindar produced on whose behalf Badshah Singh purported to have been in possession, and no rent receipts were produced either. Support for the prosecution version with regard to possession was, on the contrary, found in the statement of one of the defence witnesses himself. The learned Sessions Judge appears therefore to have been right about his finding relating to possession of the disputed plot having been with Dular. The learned counsel appearing for the appellants did not urge that the learned Sessions Judge was wrong in rejecting the testimony of the defence witness about the counter-version of the incident. The learned Judge seems to have been right also in relying upon the testimony of the eye-witnesses produced by the prosecution with regard to the details of the occurrence.
Of these three witnesses two were the victims themselves. It is also to be borne in mind that Badshah Singh never got his injuries examined and no counter-report of the incident was lodged.
6. The main argument of the learned counsel for the appellants however was that, regard being had to the nature of the injury caused to Dular, Badshah Singh could not be said to have committed the offence punishable under Section 307, I. P. C. According to him, the utmost that could be said was that Badshah Singh was guilty under Section 324, I. P. C.
For liability under Section 307 the prosecution has to prove the following facts: (1) that the accused did an act, and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder. If hurt is caused by such act, the offender becomes liable to transportation for life, otherwise the maximum term of imprisonment prescribed is 10 years. It would thus appear that the section itself does not take into consideration the effect of the act of the accused except as a measure of sentence to be imposed upon him.
That being so, it cannot be argued that Badshah Singh should not be held guilty of the offence of attempted murder simply because the injuries caused to Dular were of a superficial nature. What is to be seen is whether the act of Badshah Singh was of the nature contemplated by the section. The idea underlying the offence punishable under that section seems to be that by his act the accused should be deemed to have done all that was necessary to commit the offence of murder, the commission of that of-fence having been prevented by some event unknown to the accused and beyond his control.
In the present case the facts disclosed are that Badshah Singh fired a pistol at Dular, and that he did so from a very close range. These facts are, in my opinion, sufficient to bring Bad-shah Singh's act within the mischief of Section 307, I. P. C., since in view of those facts he would be deemed to have fired the pistol at Dular with at least the knowledge that the shot would prove fatal. If the injuries actually caused to Dular were only superficial, that may have been the result of some defect in the ammunition.
The argument of the learned counsel for the appellants was that Badshah Singh should be credited with having purposely used defective ammunition. He went on to argue that the prosecution should have produced an expert. He has however not taken into account the fact that the firearm was not recovered from the possession of Badshah Singh. On the other hand, there is nothing in the prosecution evidence from which it could even remotely be held, or even a doubt could arise, that Badshah Singh had purposively used defective ammunition.
In fact, the onus of proving the defence put forward by the learned counsel for the appellants would appear to have lain clearly on the defence. In a similar case reported as Emperor v. Vasudeo Balwant Gogte, ILR 56 Bom 434 : (AIR 1932 Bom 279) (A), in which the accused fired two shots from a revolver at point blank range at Sir Ernest Hotson, the Acting Governor of Bombay, but the bullets failed to take effect owing to some defect in the ammunition or to the intervention of a leather wallet and folded currency notes in his pocket, the Bombay High Court held that the accused was still guilty of the offence under Section 307, I. P. C.
I am therefore clearly of the opinion that facts proved by the prosecution clearly brought the act of Badshah Singh appellant within the mischief of Section 307, I. P. C., and that the burden of proving the aforesaid defence of defective ammunition having knowingly been used lay on the defence and the same had not been discharged. Badshah Singh was therefore rightly convicted under Section 307, I. P. C.
The learned counsel also made a plea for reduction of the sentence of Badshah Singh; but to that submission also it does not seem to be possible to accede. From his point of view he had done his worst, and if the result was not more serious the credit of it could not go to him. There is no reason therefore to reduce the sentence passed on Badshah Singh.
7. In the result, the appeal is dismissed and the convictions and sentences of the appellants are maintained. Khunni Singh and Kunwar Singh who are on bail shall surrender and serve out their sentences.