The intention to kill is an essential element of the offense under Section 307 IPC, and in its absence, a conviction under that section cannot be sustained.

B. C. Chakrabarti, J. :- This revisional application is directed against an appellate order passed by the learned Additional Sessions Judge, Murshidabad in Criminal Appeal No.29 of 1981 confirming the order of conviction and sentence dated 5-5-1981 passed in Sessions Trial No.2 of Feb.1981 under S.307/34. I. P. C.

2. Four persons including the present petitioners stood trial on a charge under S.307/34, I. P. C. The petitioners were convicted while the other two were found not guilty of the charge. The prosecution case in brief was as follows:

On 11-11-1979 at about 3-00 p. m. Dobiruddin Mondal along with his sons Nasiruddin and Amiruddin were coming towards their house with a cart load of jute sticks from the canal side. When they reached near the house of P.W. Anisur Rahaman the petitioners along with two others intercepted and petitioner No.1 Sadeque challenged Amiruddin why he had abused petitioner No.2. Amiruddin denied the charge and thereafter Amiruddin and Dobiruddin were assaulted with lathi and gnaras as a result whereof they sustained bleeding injuries on the head and shoulder. Nasiruddin who was with the party of Dobiruddin went to the police station and lodged a complaint. Dobiruddin and Amiruddin were taken to the Primary Health Centre where they were confined in hospital for 20 days. Police after completion of investigation submitted charge-sheet against the two petitioners and the two others who have since been acquitted.

3. The defence pleaded that the occurrence did not take place at the site mentioned and in the manner alleged and that there was a sort of a free fight between the parties in course of which the petitioners also sustained injuries.

4. At the trial before the learned Assistant Sessions Judge 11 witnesses were examined on behalf of the prosecution. Of them P.Ws.1, 2, 3 and 5 are eye witnesses. P.Ws.1 and 2 Dobiruddin and Amiruddin are the victims of assault. P.W.3 Nasiruddin is the informant, P.W.5 Anisur Rahaman is the person in front of whose house the occurrence took place. The other important witness was the Doctor of the Health Centre who examined the victims at Sagarpara Subsidiary Health Centre. He found one incised wound 6" x 4" x 1" over the upper surface of the left shoulder joint, one vertically incised wound 6" x 4" x 2½" obliquely bone deep over the right side of the head on the person of Dobiruddin. The following injuries were found on the person of Amiruddin :- (1) One incised wound 4" x 1" 1½" over the middle of the spinal column exposing the bone; (2) one incised wound 1" x 1/3" x bone deep over the left scapular region; (3) one incised looking wound 2½" x 1/6" x 1/4" over the occipital region of the head (4) two lacerated wounds - one over the right little finger and another over the left little finger. In the opinion of the Doctor the incised wounds could be caused by a gnaras and nature of the injuries was grievous. On the side of the petitioners one Doctor was examined who found some superficial and simple injuries on the two petitioners. The doctor, D.W.1 conceded that the injuries might be cause by friendly hands.

5. The defence plea of a free fight and the plea of self defence was disbelieved by the trial Court. It was held that the materials on record were not enough to indicate preponderance of probability in favour of the plea. The learned Judge accepted the evidence adduced by the prosecution as trustworthy and found the petitioners guilty. In regard to the other two accused the evidence was insufficient. The defence also took a plea at the close of the trial that the petitioner Sadeque was entitled to be dealt with under S.6 of the Probation of Offenders Act. This plea was overruled and both the petitioners having been found guilty under S.307/34, I.P.C. were sentenced to suffer R. I. for four years each. They were also sentenced to pay a fine of Rs. 2,000/- each in default to suffer R.I. for one year more. There was a direction that if the fine be realised half o