Shri Kant Tripathi - (1.) THE appellants Nakli Singh and Om Prakash, who are father and son, have preferred this appeal against the judgment and order dated 29.5.1982 passed by the Sessions Judge, Meerut in S.T. No. 402 of 1981, whereby the learned Sessions Judge has convicted the appellant No. 1 Nakli Singh under Section 326/34, I.P.C. and appellant No. 2 Om Prakash under Section 326, I.P.C. and sentenced each of them to undergo rigorous imprisonment of five years.
(2.) THE appellant No. 1 Nakli Singh died during the pendency of the appeal, consequently the instant appeal stood abated against him. I have heard the learned counsel for the appellant and the learned A.G.A. and perused the record. The prosecution story, in brief, is that on 3.10.1981, the complainant's brother P.W. 2 Madan Pal Singh had gone to Sakauti to meet his elder brother Rajvir Singh, who was serving there as a Chaprasi. The deceased Rajpal Singh had gone to Ghaziabad and on return from there, he also went to Sakauti at the house of his brother Rajvir Singh. It is also alleged that P.W. 2 Madan Pal Singh and the deceased Rajpal Singh were coming back to their village on the bus No. UTG 2941. The witnesses, Shish Pal Singh and Girish Kumar, and one Om Prakash, who is the brother-in-law of the deceased, met the deceased and P.W. 2 Madan Pal Singh at the bus station. They also travelled in the same bus. It is also alleged that both the accused persons, namely, Nakli Singh and his son Om Prakash were already sitting in the bus on a three seat berth. It is also alleged that in the bus, exchange of some hot words between the deceased Rajpal Singh and the appellant No. 1 Nakli Singh took place in connection with occupation of the seat lying vacant adjacent to the seat already occupied by the appellants. The passengers, however, intervened and Rajpal Singh, on the request of the bus driver, went towards front side of the bus and sat on the bumper of the engine. When the bus stopped near the culvert situating within the limits of village Sardhana, the appellant No. 1 Nakli Singh gave exhortation to the appellant No. 2 Om Prakash to kill the deceased Rajpal Singh. On the exhortation so given by the appellant No. 1, the appellant No. 2, who had a licensed gun of his father, fired on the deceased Rajpal Singh, consequently the deceased Rajpal Singh sustained gun shot injury on his thigh. After assaulting the deceased Rajpal Singh, the appellants fled away. P.W. 2 Madan Pal Singh rushed to his village and arranged a buggi for taking the deceased Rajpal Singh to hospital.
(3.) THE deceased Rajpal Singh lodged the F.I.R. Exhibit Ka-2 at the police station Sardhana, on which basis, the police prepared Chik report Ex. Ka-4 and registered the case for investigation in the G.D., copy whereof is on record as Ex. Ka-5. Initially the police registered the case under Section 307, I.P.C. Dr. N. S. Pant (P.W. 3) of P. L. Sharma Hospital, Meerut, medically examined the deceased Rajpal Singh and prepared the injury report Ex. Ka-3. The following injury was found on the person of the injured : "Punctured wound 3 cm. x 2.5 cm. x bone deep, front and outer part of left thigh 17 cm. above knee joint underneath bone was found fractured." ;