The central legal point established in the judgment is the significance of intention or knowledge in determining the nature of the offence under Section 307 I.P.C., and the court's emphasis on the lack of common intention in the case.

JUDGMENT :

1. Heard Shri Jai Pal Singh, learned counsel for the appellants as well as Shri Rajesh Kumar, learned Additional Government Advocate for the State and perused the record.

2. The instant appeal has been preferred by the appellant nos.1 and 2 namely Tahir and Ameen respectively against the judgment and order dated 22.01.2008 passed by the Additional Sessions Judge, Room No.2, Barabanki in Sessions Trial No.36 of 2004 (State vs. Tahir And another) arising out of Case Crime No.8 of 2003, under Section 307 I.P.C., Police Station Ram Nagar, District Barabanki, whereby the appellants were convicted for the offence under Section 307 read with Section 34 I.P.C. and were sentenced to undergo for five years rigorous imprisonment along with fine of Rs.2000/- each with default clause.

3. The prosecution case as is emerging from the record is to the tune that on 29.01.2003 an F.I.R. was lodged by the informant Indal Yadav against the named accused persons Tahir and Ameen stating therein that on 29.01.2003 at about 05:00pm. on the basis of prior enmity, the appellant Tahir after taking gun from his brother Ameen has fired gunshots towards the informant/injured which had hit him at left shoulder. On the basis of this, F.I.R. was lodged at 22:30 hours at Police Ram Nagar, District Barabanki and the investigation was entrusted to the investigating officer.

4. The injured Indal Yadav was medically examined on 30.01.2003 at 01:30am. by Dr. Sanjay Kumar under police custody and one lacerated wound 1.5 x 1.1 cm was found on his left shoulder, which was muscle deep and was also having blackening around it. The wound was found bleeding and the injured was advised X-ray. The wound was kept under observation and was opined to have been caused by firearm. Duration of injury was noted fresh.

5. The investigating officer after recording the statement of the prosecution witnesses including that of injured and after preparing site plan etc. submitted charge sheet against the accused persons under Section 307 I.P.C.

6. After commitment of the case, charges against the appellants were also framed under Section 307 I.P.C. to which they denied and claimed trial.

7. The prosecution in order to prove its case before the trial court has produced P.W.1 Indal Kumar Yadav (injured), P.W.-2 Nirmal Yadav, P.W.-3 Tasauwwar, P.W.-4 Samgam Lal, P.W.-5 Girdhari, P.W.-6 Dr. Sanjay Kumar, P.W.-7 Constable Ram Chandra Arya and P.W.-8 Investigating officer Suresh Chandra Sen and has also relied documentary evidence e.g. tehreer exhibit Ka-1, seizure memo of bloodstained and simple soil exhibit Ka-2, injury report exhibit Ka-3, chik F.I.R. exhibit Ka-4, G.D. Kayami exhibit Ka-5, Site Plant exhibit Ka-6 and charge-sheet exhibit Ka-7.

8. After conclusion of the evidence of the prosecution statement of the accused persons was recorded under Section 313 Cr.P.C. , wherein they denied the evidence produced by the prosecution and contended that they have not committed any offence.

9. Learned trial court after appreciating the evidence available on record found the case of the prosecution proved beyond reasonable doubt and convicted the appellants for committing offence under Section 307/34 I.P.C. and sentenced them in the manner as shown in the second paragraph of this judgement.

10. Learned counsel for the appellants while drawing attention of this Court towards the judgement and order of the trial court submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellants for the offence, which has never been committed by them.

11. It is further submitted that doctor namely P.W.-6 Sanjay Kumar, who has examined the injured Indal Yadav, found a superficial injury, which was not dangerous to the life on the person of injured and on the basis of that conviction under Section 307 I.P.C. could not be done. It is also submitted that the manner in which the incident is shown to have occurred may not resul