The intention to commit murder is the primary criterion for establishing an offense under Section 307 IPC, regardless of the nature of the injury or its consequences.

This appeal has been preferred by two real sibling brothers Ganesh and Dinesh who are aggrieved by their conviction under Section 307/34 IPC and imposed sentence of 4 years R.I. therefore, recorded by Ist Additional Session's Judge, Ballia, in S.T. No. 156 of 1980, State Vs. Dinesh and others, relating to P.S. Maniar, District Ballia, vide impugned judgment and order dated 29.8.81.

2. Prosecution allegations against the appellants, as are perceptible from the F.I.R. and testimonies of fact witnesses during the Session's trial, stated laconically, indicate that on 27.6.1979 at 12 noon, PW3 Rameshwar, his son Pawan Kumar, P.W.1, with two labours Videshi and Banarasi, PW2,who were brothers, were tilling their land, in their village Hathauz, when the two appellants, armed with lathi and spear (ballam), approached them and forbade them from such tilling. P.W.1 Pawan Kumar refused to abide by their threats by stating that the field belonged to them. On this, appellant Dinesh caught hold of P.W.1 from behind and another appellant Ganesh thrusted a spear blow in his chest with an intention to annihilate him. This incident was witnessed by the persons present there namely, Bideshi, Banarsi,PW2, and informant father Rameshwar P.W.3.

3. After the incident, injured and informant P.W.1&3, went to the police station Maniar, and lodged written FIR, Ext. Ka-1 same day at 3.20 p.m. Head Moharrir, Kalpa Nath Ram, registered the case by preparing chik FIR, Ext. Ka 6, and GD entry Ext. Ka 7. On an application dated 28.6.79, moved by the injured Pawan Kumar, crime was converted from 323/324 to 307 IPC by the orders of Chaman Lal, Superintendent of Police, Ballia vide Ext. ka2. From the police station, injured was dispatched for his medical examination to Maniar Hospital.

4. Dr. K.N. Dubey, M.O. PHC, Maniar, PW5, had examined the injured on 27.6.1979 at 4 p.m. and had prepared his medical examination report, Ext. Ka 8. Doctor had noted following external injuries on his body:-

1. Incised wound 2 cm x 1 cm x 1.2 cm, 10 cm medial from the right nipple.

Patient is conscious, responds to question.

Opinion-Injury kept under observation, caused by sharp and pointed weapon.

Duration-Fresh.

5. P.W.4 S.I. Shyama Prasad Singh had investigated the case and on 3.7.1979, he had interrogated injured in the primary health centre and had seized and sealed, his blood soaked attire, gamcha, which is material Ext.1, and seizure memo in that respect is Ext. Ka.3. From the Primary Health Centre, I.O. went to the incident scene in village Hathauz, where informant P.W.3 was present. I.O. firstly interrogated him and recorded his statement under Section 161 Cr.P.C. and thereafter conducting spot inspection prepared site plan map Ext. Ka.4. Accused persons were searched by the I.O. but they could not be apprehended. On 29.7.79, witness Banarsi, PW2, was interrogated by the I.O. and subsequently, on 4.8.1979, accused Dinesh was arrested from the village. On 19.9.79 witness Bideshi was interrogated by the I.O., who concluding the investigation, charge-sheeted appellants accused, vide Ext. Ka.5.

6. Charge-sheet against accused appellants resulted in registration of case against them before the Magistrate, who finding their crime triable by Session's Court, committed their case to Session's Court, u/s 309 Cr.P.C., after observing due formalities u/s 207 Cr.P.C., where it was registered as S.T. No. 156 of 1980, State Vs. Dinesh and another.

7. Learned trial Judge charged the appellants with crime u/s 307/34 I.P.C., which charge was denied by the appellants, who claimed to be tried and hence to bring home their guilt successfully, trial procedure commenced.

8. In it's effort to establish the charge against the appellants, prosecution relied upon oral testimonies of five witnesses out of whom injured Pawan Kumar, P.W.1, eye witness Banarsi, P.W.2 and informant father Rameshwar Prasad, P.W.3, were the fact witnesses. P.W.4 I.O. Shyama Prasad Singh, P.W.5 Dr. K.N. Dubey were