The absence of murderous intent is essential to justify a conviction under Section 307 IPC.

JUDGMENT :

Manjari Nehru Kaul, J.

The instant appeal has been filed against the judgment and order dated 12/15.06.2004 passed by Addl. Sessions Judge, Faridabad vide which the appellant Khem Chand was convicted and sentenced as under:

2. Both the sentences were ordered to run concurrently.

3. The case of the prosecution in brief is that on 06.03.2003 at about 3.00 pm in village Mujessar when the complainant Birbati-PW-7 was giving fodder to her buffaloes, she heard the cries of one Ravi to the effect 'Bhabhi mujhe bachao'. On being attracted by his cries, the complainant saw that the appellant Khem Chand @ Pappu was inflicting knife blows on the person of Ravi. She thereupon rushed to the rescue of Ravi and tried to separate the two. However, the appellant whipped out a country made pistol and fired upon her as a result of which, she received a bullet injury on her left thigh. Raj Pal-PW-8, who happened to be close by also witnessed the said occurrence. A huge crowd gathered at the spot but the appellant managed to flee with the weapon of offence. The complainant Birbati-PW-7 thereafter was removed to the hospital by Raj PalPW-8 for treatment. On the basis of her statement, FIR Ex.PD was registered against the appellant by the police. The appellant was arrested and in pursuance to his disclosure statement Ex.PH, the police recovered and took into possession from him the country made pistol used in the alleged occurrence vide recovery memo Ex.PJ. The police also took into possession the salwar of the complainant as well as the bullet recovered from her person vide recovery memo Ex.PG. After completion of investigation, challan was presented. The charges were framed under Section 307 IPC and 25/54/59 Arms Act against the appellant to which he pleaded not guilty and claimed trial.

4. Prosecution in support of its case examined as many as 12 witnesses including PW-7 Birbati, complainant, PW-8 Raj Pal, eye-witness, PW-10 Dr. P.S. Parihar, who conducted x-ray upon the complainant, PW-11 SI Ram Kumar, Investigating Officer and PW-12 Dr. Sudhir Khurana, who medico-legally examined the complainant Birbati.

5. After the conclusion of the prosecution evidence, all the incriminating evidence appearing against the appellant were put to him under Section 313 Cr.PC to which he pleaded false implication by complainant Birbati in connivance with his brothers with whom he had some property dispute. In his defence, the appellant examined Ravi as DW-1.

6. After analysing and perusing the evidence available on record, the trial Court convicted the appellant and sentenced him as already detailed above.

7. Learned counsel for the appellant has strenuously urged that even though it is a case of false implication, however, assuming for the sake of arguments that the alleged occurrence had indeed taken place, the mischief of under Section 307 IPC would not be attracted. He further submitted that the learned trial Court completely failed to appreciate that Ravi with whom the appellant was allegedly quarrelling and who had cried out for help, was not even examined by the prosecution but had in fact appeared as a defence witness and demolished the case of the prosecution by deposing that no occurrence as alleged had taken place. Learned counsel for the appellant further urged that PW-12 Dr. Sudhir Khurana, who medico-legally examined the complainant soon after the alleged occurrence, did not give any opinion regarding the nature of the injury sustained by her. Hence, in the absence of any definite opinion of the docto