The intention to kill is a crucial element in determining whether an offence falls under section 307 Indian Penal Code. The nature of the injury and the circumstances of the case must be considered to ascertain the accused's intention.

1. - The revision petition arises out of the judgment passed by the learned Additional Sessions Judge, No. 2. Hanumangarh dated January 27, 1978 by which he affirmed the conviction of the petitioner for the offence under section 307 Indian Penal Code passed by the Assistant Sessions Judge, Hanumangarh dated September 17, 1973. The learned Sessions Judge, has sentenced the petitioner for that offence to 21/2 years rigorous imprisonment and a fine of Rs. 100/-, in default to undergo two months rigorous imprisonment. In appeal, the learned Additional Sessions Judge, No. 2, Hanumangarh reduced the substantive sentence to two years rigorous imprisonment.

2. Petitioner along with four others was tried by the Assistant Sessions Judge, for the offence under sections 307, 148, 307/149 and 323 Indian Penal Code. The prosecution story leading to the trial was, that, there was some dispute relating to the irrigation of the fields of the accused party and the complainant Gopi Ram at 30 LLM. The allegation against Brijlal was that he was illegally taking the water from the water let, thereby causing loss to the complainant Gopiram and the latter complained the matter to the Executive Engineer, who ordered for action to be taken against the mischief mongers, if any. That, on April 8, 1972, the three co-accused Ramkumar, Jagdish and Sukhram wanted to open the water let in the field of Gopiram in order to show that he also committed theft of water. On being restrained by Gopiram, those three persons attacked him and Ramkumar caused `gandasa' injury to him. Dayalaram, brother of Gopiram is also said to have reached there. The three assailants then dragged Dayalram a few paundas away in the field of Surjaram. It is alleged that Brijlal and Devilal armed with 12 bore gun and 16 bore gun respectively were present therein that field. Brijlal is said to have fired two shots. One shot missed but the other hit the thigh of Dayalram causing injury to him.

3. Information against the five accused was lodged by Gopiram at Police Station, Hanumangarh Junction and PW 7 Jai Bhagwan, the Station House Officer investigated the matter and put up challan in the Court of Munsif and Judicial Magistrate, Hanumangarh. The case on commitment went to the court of the learned Additional Sessions Judge, Hanumangarh for trial. The learned Additional Sessions Judge, in view of the evidence recorded at the trial, arrived at a conclusion that there being two occurrences at different places and all of five accused not being together, there was no question of any unlawful assembly. He, therefore, held the assailants guilty for their individual acts only. Ramkumar was convicted for the offence under section 323 Indian Penal Code and was released on probation under section 4 of the Probation of Offenders Act. Petitioner Brijlal was convicted and sentenced for the offence under section 307 Indian Penal Code as stated earlier. Sukharam, Jagdish and Devilal were acquitted of the charges levelled against them. Brijlal preferred an appeal with the result of reduction in his substantative sentence as stated above.

4. I heard, Mr. B.R. Purohit, learned counsel for the petitioner and Mr. M.C. Bbati, learned Public Prosecutor for the State and examined the record of the case.

5. So far as the petitioner firing the gun hitting the thigh of Dayalram causing injury to him is concerned, there is the concurrent finding of the two courts and the learned counsel for the petitioner could not point out any ground for interference. This is not a case where the findings of the two courts may be assailed on the ground of inadmissible evidence being taking into consideration, or any material evidence being overlooked. Hence the point for determination in this revision petition is regarding the legality of conviction and sentence under section 307 Indian Penal Code.

6. Mr. Purohit strenuously contended that the circumstances of the case do not indicate that there was any occasion for the petition