The intention to commit murder is an essential element of the offense under Section 307 IPC, and without such intention, there can be no attempt to murder.

JUDGEMENT

P. K. Mohanti, J. :- This appeal has been preferred against a judgement of the learned Additional Sessions Judge of Sundargarh conviction the appellant under Sections 302 and 301, I.P.C. and sentencing him to undergo imprisonment for life on each count.

2. Prosecution case was that the appellant was in the habit of quarrelling with his wife and on the date of occurrence, that is, 12-2-76 at about 5 p.m. he picked up a quarrel in course of which he dealt blows with the handle of an axe causing several injuries on her person. When Samaru Mahakud, a close neighbour, intervened the appellant dealt some axe blows on his head as a result of which he sustained several injuries and fell down. The appellant suddenly started running away with his axe. While Samaru Mahakud, was being carried to the Hospital he died. F.I R. was lodged by P.W. 2 Bairagi Mahakud at Bonai P.S. on the same day at about 9.15 p.m. While the villagers were guarding the dead body of the deceased near the village school, the appellant went there and shot an arrow which struck P.W. 6 Hiradhar Sethi, After midnight the Investigating Officer reached the spot and arrested the appellant. While in custody, the appellant made a statement before the Investigating Officer leading to discovery of the axe from the thatch of a house. After due investigation the appellant was charge-sheeted under Sections 302 and 307 I.P.C.

3. At the trial, the appellant pleaded not guilty to the charge. His contention was that on the date of occurrence he had been to the house of a neighbour to attend a feast, During his absence the deceased entered into his house and attempted to commit rape on his wife and being resisted, he committed assault on her. The appellant reached the spot in course of the assault and caught hold of the axe held by the deceased. There was mutual fight and scuffle in course of which the deceased sustained fatal injuries on his head.

4. The trial court, on a consideration of the evidence led by the prosecution, believed the prosecution case and discarded the defence plea. On appeal, it is urged that the order of conviction is not borne out by any credible evidence and that even accepting the entire prosecution case to be true, no offence under Section 307 I.P.C. is made out.

5. On 13-2-76 the doctor P.W. 1 examined P.W. 5 Kanti Dei, the wife of the appellant and found the following injuries on her person;

(1) Contusion 3" x 2" on the roof of the left ear.

(2) Contusion 3" x 2" on the back of the right forearm with fracture of the ulna.

(3) Abrasion 3/4" x ½" on the front of the right leg.

(4) Contusion 3" x 1" in front of the left leg.

(5) Incised wound 2" x ¼" into skin deep on the right scapular region of the back.

(6) Linear incision 3" x skin deep on the back.

(7) Linear incision 3½" x skin deep on the back In the doctor's opinion, injury No. (2) was grievous in nature. He also opined that injury Nos. (1) to (4) might have been caused by the blunt side of the handle of an axe and injury Nos. (5) to (7) by the sharp end of an axe.

6. The doctor P.W. 1 held postmortem examination over the dead body of the deceased and found the following external injuries.

(1) One oblique deep incised wound behind the left ear 4" x 1½" x 2½" extending to the neck. The injury has involved the anterior part of the left sternomastoid muscle and involved large vessels behind it.

(2) Incised wound 1½" x ¼" into bone deep on the occipital region of the scalp.

(3) Incised wound -" x ½" skin deep on the middle of the scalp.

In the doctor's opinion, all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. He also opined that the injuries might have been caused by the sharp end of the axe M. O. I and that the death was due to shock and haemorrhage. According to him, three separate blows were necessary to cause the injuries which were found on the dead body. The doctor's evidence leaves no room for doubt that the death of the deceased was hom