The intention to kill is an essential element of the offense of attempt to murder. In the absence of such intention, the offense may be reduced to grievous hurt.

D.P.S.Choudhary, J.

1. This appeal has been preferred against the judgment and order dated 12th May, 1989 passed by 6th Addl. District & Sessions Judge, Siwan in Sessions Trial No. 451 of 1983/93-1987 arising out of Basantpur P.S. Case No. 134 dated 12-7-1982. Out of the five appellants, appellant No. 3 Surendra Raut has been convicted under Secs. 307 and 148 of the I.P.C. and sentence to undergo R.I. for seven years and one year respectively. Appellant No. 1 Jagannath Raut has been convicted for the offence under Secs. 307/114 and 147 of the I.P.C. and sentenced to undergo R.I. for seven years and one year respectively. Appellant No. 4 Lakhichand Raut has been convicted for the offence under Secs. 325 and 147 of the I.P.C. and sentence to undergo R.I. for three years and one year respectively. Appellant Nos. 2 and 5 Sipahi Raut and Harendra Raut have been convicted for the offence punishable under Secs. 323 and 147 of the I.P.C. and sentenced to undergo R.I. for six months each on both the counts. All the sentences have been directed to run concurrently.

2. The prosecution case, in brief, is that there was a land bearing R.S. plot No. 433 appertaining to Khata No. 520 area 1 Bigha 11 katha 7 dhurs situated in village Nagawa. The informant Ramsubhag Raut (P.W. 8) and the accused-persons who are cousins had share in the above land. The informant had eastern portion in his share and the accused in the western portion. There was a ridge (dandar) in the plot demarcating their shares.

3. It is further case of the prosecution that on 12-7-1982, the informant had grown ladies finger (Bhindi) in the land of his share. On this day at about 8.00 a.m., the informant along with his sons was weeding out the grass in his field. All of a sudden, all the accused-appellant variously armed with, came and began to demolish the dandar of the field. The informant protested and there was exchange of hot words between them. It is further alleged that in the meantime, Sahid Mian P.W. 3, Punadeo Tiwari (P.W. 1), Ramjeevan Raut (P.W. 4), Chandrika Pd. Yadav (P.W. 5) and Atmand Dubey (P.W. 6) and others came and tried to pacify the accused-persons. Accused-appellant Surendra Raut gave order, thereupon, appellant Jagannath Raut brought farsa and assaulted Ravindra Pd. Yadav died during the trial on his chest, head, fingers and other part of the body causing grievous injuries. It is further alleged that he also assaulted Sahid Mian with farsa on his head causing injury causing injury danagerous to his life. Accused Lakhichand Raut assaulted the informant with lathi causing fracture of right forearm. It is further alleged that accused Jagannath Raut also assaulted him on his shoulder. Accused Harendra Raut assaulted Chandrika Rai with Kudal causing injury on his finger. Accused Lakhichand Raut also assaulted him with lathi and accused Sipahi Raut assaulted Rameshwar Rai (P.W. 2) with lathi, causing injuries.

4. It is further case of the prosecution that after the occurrence, all the injured were brought to Basantpur stated dispensary for treatment. The S.I. Basantpur P.S. recorded the fardbeyan of the informant (Ext. II). All the injured were examined, and the injury reports have been marked Ext.- 7 to 7/4. The informant was also X-Rayed by Dr. Rameshwar Tiwari, P.W. 11 and his X-Ray plates have been marked Ext.-9 to 9/1 and his report is Ext.-10, On the basis of the X-Ray report, the doctor gave supplementary injury reports, which have been marked Ext.-6 and 6/1, After the cognizance the case was committed to the Court of Session for trial.

5. The prosecution has examined eight witnesses, out of which P.W. 1 Punyadeo Tiwary, P.W. 2 Rameshwar Rai, P.W. 3 Sahid Mian, P.W. 4 Ramjeewan Raut, P.W. 5 Chandrika Pd. Yadav, P.W. 8 Ramsubhag Raut (informant) and P.W. 11 Radha Mohan Singh are the eye-witnesses of the occurrence. P.W. 6 Atmanand Dubey was tendered for cross-examination and P.W. 7 Sachidanand Pd. is a formal witness who has proved protest peti