The central legal point established in the judgment is that the evidence must establish the intent to commit murder for a conviction under section 307 I.P.C., and the nature of the injuries is crucial in determining the appropriate section under the Indian Penal Code.

JUDGMENT :

1. Heard Shri Anurag Shukla, Advocate holding brief of Shri Kunwar Bhadur Dixit, learned counsel for the appellant, Shri V.K. Singh Parmar, learned AGA for the State and perused the record.

2. Appeal with respect to appellant no. 3 has already been dismissed as abated vide order dated 13.11.2018.

3. This appeal has been field by the appellants Kehari and Hori Lal against the judgement and order dated 29.03.1984 passed by VI Additional Sessions Judge, Mainpuri, whereby the appellants have been convicted under section 307 read with 34 I.P.C. and have been sentenced to undergo 3 years rigorous imprisonment.

4. The prosecution story in brief is that on 05th December, 1980 at around 3 p.m., informant and his real brother Ramesh alongwith Mohan Lal resident of village Baroli, Kanuji Singh resident of Hamlet Baley Khet and Layik Singh of the village went towards the field at Nagla Swamy for cutting the mustard crop. A litigation between Mohan Lal and accused persons Badan and Hori Lal was pending with regard to the mustard field. On the field, accused Hori Lal, Kehari and Tulsi Ram were present, who were armed with the illegal weapon, they exhorted Mohan Lal, who was with the informant and said that ''today the case will be decided and your gang will be finished'. Accused Hori Lal, Kehari and Tulsi Ram who were armed with the country made pistol and pauniya (another form of country made pistol), with the intent to commit murder made indiscriminate firing, which resulted fire arm injury to brother Ramesh on his abdomen and left arm, who felt on the spot and somehow the informant and Mohan Lal were saved by the pellets. On hue and cry Ram Singh resident of Nagla Swami, Uma Shanker resident of Rustam Pur etc. came running with exhortation to the accused, on this, the accused persons ran away from the place of occurrence. Due to the serious condition of the brother Ramesh, he was got admitted in the District Hospital Mainpuri.

5. A written report regarding the incident was given by the informant which is Ext.-Ka-1. Consequently, a chik F.I.R. in Case Crime No. 252 of 1980, under section 307 I.P.C. was registered. The chik F.I.R. is Ext. Ka-5. The injury report of the injured Ramesh is Ext.-Ka-6. The Investigating Officer after conducting the investigation and taking statement, submitted charge-sheet, which is Ext.-Ka-4. After committal charges were framed by the learned Sessions Judge vide order dated 21.08.1982 and the accused persons were charged under section 307 read with 34 I.P.C.

6. To bring home the charges the prosecution has examined P.W.-1 Suresh Chandra, brother of the injured, P.W.-2 Mohan Lal, eyewitness, P.W.-3 S.I. Sri Ameer Ulla, Investigating Officer and P.W.-4 Dr. S.C. Dubey, Medical Officer who examined the injuries of the injured.

7. Learned counsel for the appellants submits that cross case were lodged by both the sides. Appellants side have also been injured. The prosecution has not been able to prove it's case beyond reasonable doubt, in as much as the accused with intent to commit murder had fired on the injured. He further submits that injured has not been examined by the prosecution.

8. Per-contra, learned AGA has opposed and he has submitted that the presence of the accused is admitted in view of the cross version of the F.I.R. Prosecution has successfully examined the eyewitnesses P.W.-1 and P.W.-2 to show the complicity of the accused persons. As per the opinion of Dr. S.C. Dubey, the injury no. 4 was fatal which came to the accused.

9. Learned counsel for the appellants has further submitted that appeal is of the year 1984 and appellant no. 3 has already died, appellant no. 1 Hori Lal is 75 years old and appellant no. 2 Kehari is 80 years old, they do not have any criminal antecedents. Learned counsel for the appellants fairly submits that if the statement of the P.W.-1 and P.W.-2 who are only eyewitness of the prosecution, are considered, both eye witnesses have clearly stated that while they arrived at t