Honble Rajesh Chandra, J.—This application under Section 482, Cr.P.C. has been filed for quashing the order dated 8.6.2009 passed by the Addl. Sessions Judge/F.T.C. III, Rampur, framing charges under Sections 307/34, 504, 506, IPC in S.T. No.135/09, State v. Zakir Husain and others of P.S. Kotwali, District Rampur. It has further been prayed that the proceedings of the aforesaid Sessions Trial may be stayed.

2. In brief the facts of the case are that one Rafat Yar Khan submitted a report at the police station Kotwali, District Rampur on 23.10.2006 at 12.20 a.m. alleging therein that on 23.10.2006 at about 11.15 p.m. when he was returning to his house and reached near the graveyard, accused Zakir Husain Khan and Wasim met him. They enquired from the complainant as to why he is not giving divorce to his wife. They stated that they will marry her somewhere else. The complainant refused to divorce her and stated that he wants to keep his wife with him. The accused-persons then used abusive language. Accused Zakir Khan fired, but the fire missed. Thereafter the accused Imran fired causing injuries on the arm and chest of the complainant. On an alarm being raised by the complainant, witnesses Wasim Khan, Naseem Khan were attracted to the scene of occurrence. After seeing the witnesses the accused persons stated “abki to bach gaya, dobara mauka milte hi mar denge” and fled away from the spot.

3. After the charge-sheet was submitted, the Fast Track Court-III, Rampur charged the accused persons for the offence under Sections 307 read with 34, IPC and Sections 504, 506, IPC, vide order dated 8.6.2009 and it is against this order that the present application has been filed before this Court.

4. I have heard the learned counsel for the accused-applicants as well as the learned AGA.

5. The contention of the learned counsel for the applicants is that in the FIR it has nowhere been mentioned by the complainant that the fire was opened upon him with an intention to commit his murder. Similarly no such statement was given under Section 161, Cr.P.C. His contention is that in the absence of any such averment in the FIR and the statement recorded during investigation, the learned lower Court could not have framed the charge under Section 307, IPC.

6. I have considered over this argument and I feel that it is misplaced. The impression or the perception of the injured as to whether the assailants wanted to cause his death or some bodily injury is not the determining factor to decide the nature of offence. It is the intention of the accused coupled with some overt act which decides the offence committed. Thus if the victim has not mentioned in the FIR or has not stated under Section 161, Cr.P.C. that the injury was caused by the accused with an intent to commit his murder, it does not conclude that the intention of the accused was not to commit his murder. What is material is the intention of the accused which may be gathered from the words spoken by the accused, weapon used by him and some time the nature of injury sustained by the victim. In this connection a Division Bench judgment of Rajasthan High Court in Ramchander and others v. State of Rajasthan, 1970 Cri LJ 653 may be referred in which the following was observed :

“In cases of attempt to commit murder by fire-arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires and something happens to prevent the shot taking serious turn, offence under Section 307, IPC is brought home. If a person fires at another, it would ordinarily mean that he wants to kill that person. The fact that the person fired at was not killed does not necessarily mean that he had no intention to kill that man. A person may at times be excited and for that a reason he may not be able to hit properly, or the aim may be missed because the person aimed at may