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. 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 at the level of injury No. 3. (Wound of exit). 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 at the level of injury No. 3. (Wound of exit). Injuries Nos. 3 and 4 communicate with each other. 6. All these wounds were septic and were caused by a firearm. They were about three days old. Smt. Bhagwati was later X'rayed and X'ray report indicated that there was comminuted fracture of the lower end of right humerus with fracture of olecranon process of ulna and that displacement was present. It further disclosed that the fractures were under injuries Nos. 1 and 2 and for that reason the injuries Nos. 1 and 2 were grievous. 7. After further investigation the accused Bhujvir and Pohap Singh were sent up for trial u/s 307 and 307/109, respectively. 8. The accused Pohap Singh in his statement admitted that a case for partition of holding was pending between him and Smt. Bhagwati in August, 1951. He further stated that the gun which was taken from his possession by the police after the occurrence had been fired about 8 or 10 days before the occurrence. He, however, denied that he was present at the alleged place of occurrence or that he had asked his son Bhujvir to shoot Smt. Bhagwati on account of the partition case. The accused Bhujvir pleaded alibi and stated that he had gone to the village of his father-in-law which is at a distance of about 120 miles from his village, and was there at the time of the alleged occurrence. 9. In view of the medical evidence there is no doubt that Smt. Bhagwati was twice shot at on the date and at the time alleged by the prosecution. There is also evidence that she was shot at near the field of Bhim Sen in village Kishanpur as blood-stained earth was recovered from there by the police during the investigation. 10. The question which arises for consideration is whether she was shot at by Bhujvir accused at the instance of his father Pohap Singh on account of the case for partition of holding which was pending at that time. 10. The question which arises for consideration is whether she was shot at by Bhujvir accused at the instance of his father Pohap Singh on account of the case for partition of holding which was pending at that time. It was admitted by the accused Pohap Singh in his statement that there was such a case and it was pending at that time. There can be no doubt that on account of this fact there must have been enmity between Pohap Singh and Smt. Bhagwati who was responsible for filing this case. The evidence for the prosecution consists of the statements of Smt. Bhagwati, Smt. Sanai, Ram Swarup, Lakhpat Singh, Girwar Singh and Dalbir Singh. They have all consistently supported the prosecution case. Smt. Bhagwati is the injured person. Smt. Sanai is her daughter and was accompanying her at the time of the alleged occurrence. Ram Swarup (P.W. 3) was working in his field which is quite adjacent to the place of occurrence. His presence, therefore, at the scene of the occurrence is quite natural and probable. There is nothing in his statement to show that there is any enmity between him and the accused on account of which he has made an attempt to falsely implicate hem. Lakhpat Singh (P.W. 4) is also a resident of the same place. According to him he was going to his field from the jungle when he saw the occurrence. There is nothing in his cross-examination to disbelieve his testimony. Girwar Singh (P.W. 5) was inspecting his sugarcane field, which is at a distance of about 20 yards from the place of occurrence, and his attention was directed towards the occurrence when he heard the report of the gun and the screams of Smt. Bhagwati and Sanai. Dalbir Singh (P.W. 6) is also a resident of the same village and according to his statement he had gone to a drain of the tube-well to answer the call of nature and on the way he heard the report of a gun and then went to the place of occurrence. Ail these witnesses deposed that both the shots were fired by Bhujvir Singh. Ail these witnesses deposed that both the shots were fired by Bhujvir Singh. Smt. Bhagwati, Smt. Sanai, Girwar and Dalbir further stated that the second shot was fired by Bhujvir Singh on the orders of Pohap Singh, who said, "She is not dead, fire the gun again." Smt. Bhagwati was shot at in broad daylight and if she had really been shot by some persons other than the accused there does not appear any satisfactory reason why the prosecution witnesses are all shielding the real assailants and are implicating the accused persons. So far as Smt. Bhagwati and Smt. Sanai are concerned it may be said that on account of the partition case their relations with the accused are not good, but there is nothing against the other prosecution witnesses who have supported the statements of Smt. Bhagwati and Smt. Sanai. 11. The accused Pohap Singh examined three witnesses, in order to prove that he was not present at the place of occurrence. They are Mohd. Hamid Khan, Lakhpat Singh and Achpal Singh. Mohd. Hamid Khan stated that Pohap Singh had brought a summons to him on the 17th August, 1951 and that he stayed with him on the night between the 17th and the 18th August, 1951 and in the morning of the 18th August, 1951 he and Pohap Singh went to Aligarh. It appears from his cross-examination that he is an old friend of Pohap Singh and knows him for the last 19 years. He had to admit in his cross-examination that he did not maintain any diary and that he did not remember what he had written on the back of the summons which had been brought to him. He further on stated that he had noted his inability to attend the court on the back of the summons. 12. Lakhpat Singh is a bus conductor and his bus runs between Aligarh and Bulandshahr. He was shown a certain ticket issued on the 18th August, 1951 and he stated that he had issued this ticket. His evidence, however, proves nothing. 13. Achpal Singh stated that about 7 or 7 1/2 months ago the Head Constable had been to the house of Pohap Singh but he was not at his house as he had left the village on the preceding day at about 8 or 9 a.m." This witness was not produced before the police during the investigation. 13. Achpal Singh stated that about 7 or 7 1/2 months ago the Head Constable had been to the house of Pohap Singh but he was not at his house as he had left the village on the preceding day at about 8 or 9 a.m." This witness was not produced before the police during the investigation. It appears from his own statement that he did not remember that the date on which he had a talk with Pohap Singh. His statement, however, does not prove that on the date of the alleged occurrence Pohap Singh was not present in the village. 14. After a consideration of the entire evidence on the record I have not been able to find any satisfactory reason to disbelieve the evidence of the prosecution witnesses. It appears to me that on account of the partition case Pohap Singh and the members of his family were aggrieved against Smt. Bhagwati who was responsible for that case, and, therefore, thought of taking revenge against her, and it was with this object in view that Pohap Singh and Bhujvir Singh way laid Smt. Bhagwati when she was returning with her daughter and shot her with the gun. I am also inclined to believe the evidence of the prosecution witnesses that it was at the instance of Pohap Singh that Bhujvir Singh fired the gun at Smt. Bhagwati. 15. It has been contended on behalf of the Appellants that even if the prosecution evidence was accepted as correct the offence did not fall u/s 307 I.P.C. but only u/s 324 I.P.C. Section 307 runs thus: Section 307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to transportation for life,' or to such punishment as is hereinbefore mentioned. 16. Illustration (a) to this section is as follows: (a) A shoots Z with intention to kill him under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. 17. 16. Illustration (a) to this section is as follows: (a) A shoots Z with intention to kill him under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. 17. Illustration (c) to this section is as follows: (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section and, if by such firing he wounds Z, he is liable to the punishment proved by the latter part of the first paragraph of this section. 18. Section 324 runs as follows: Section 324. Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death...shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 19. Section 326 I.P.C. applies to those cases where grievous hurt is voluntarily caused by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death. 20. It will appear from a perusal of the above sections that the intention is the main ingredient of Section 307 I.P.C. If the intention of the accused in the present case was to commit the murder of Smt. Bhagwati and it was with that intention that she was shot at, there can be no doubt that the offence would fall u/s 307 I.P.C. It is immaterial that the injuries which were caused to her were not of such a nature as to have caused her death or that they were merely simple hurts. It appears from the evidence in this case that Smt. Bhagwati was shot at twice and the second shot was fired at her when the accused Pohap Singh said to his son Bhujvir Singh that she had not died and she should be fired at again. This evidence itself indicates that she was shot at with the intention of being killed but fortunately the shots did not hit her on any vulnerable part of her body and she managed to survive. This evidence itself indicates that she was shot at with the intention of being killed but fortunately the shots did not hit her on any vulnerable part of her body and she managed to survive. In my opinion, the accused Pohap Singh has been rightly convicted u/s 307/109 I.P.C. and the accused Bhujvir Singh, who actually fired the shots, u/s 307 I.P.C. 21. It was also contended that the sentence of 5 years' rigorous imprisonment on Bhujvir Singh was somewhat severe. I am unable to accept this contention. 22. The result is that this appeal is dismissed and the conviction and sentences of the Appellants are maintained. As they are on bail they shall surrender to it and serve out their sentences.