Short Note : 1. Complainant injured Pahalwansingh's father Hamirsingh and appellant's father Bhawanisingh were real brothers. On 29-9-1973 complainant pahalwansingh (P.W. 4) caused injuries to Bhawanisingh. Relations between them were strained. Thereafter on 26-10-73 at about 9 in the morning, complainant Pahalwansingh (P.W. 4) and Sundra (P.W. 1) were sitting at Bihari's field. The appellant came there from behind and proceeded ahead carrying muzzle loading gun with him. Short time after the appellant fired his gun towards the complainant Pabahlansingh (P.W. 4) causing pellet injuries on his person. When (P.W. 1) Sundra took exception to this action of the appellant, the latter abused and stated that he would kin and then went away. 2. Since Pahalwansingh was injured, he asked Sundra (P.W. 1) to carry him to the village. As that was not possible for Sundra, he Went to the village to bring people. In the meanwhile, the appellant came back to the spot and tried to attack Pahalwansingh (P. W. 4). However, he (P. W. 4) managed to catch hold of the gun and snatched it away from the appellant. He then tried to hit the appellant with the gun but he warded off the attack and ran away. In that process the gun happened to hit the ground and was broken. The appellant, while running away, left back the gun on the spot. 3. Trial Court convicted the appellant under section 307 IPC., and under section 27 Arms Act and sentenced to 8 years' R.I. and with a fine of Rs. 300 respectively. Hence appeal. 4. Held: For an offence under section 307, Indian Penal Code, the crucial ingredient is that the appellant Intended to kill the complainant. This has to be gathered from the attending facts and the circumstances. The learned trial Court bringing the offence under section 307 Indian Penal Code, found that the appellant had declared that he would kill the complainant. This appears to be against the evidence on record. On going through paragraphs 5 and 18 of the deposition of the complainant pahalwansingh (P. W. 4), it would appear that when the appellant injured the complainant by gun-fire, Sundra (P. W. 1) demanded the appellant as to why he was doing so and to this the appellant threatened Sundra (P. W. 1) that he would beat him also. On going through paragraphs 5 and 18 of the deposition of the complainant pahalwansingh (P. W. 4), it would appear that when the appellant injured the complainant by gun-fire, Sundra (P. W. 1) demanded the appellant as to why he was doing so and to this the appellant threatened Sundra (P. W. 1) that he would beat him also. Similar is the statement of (P.W. 1) Sundra in para 5 of his deposition :- cUnwd pykus ds ckjs esa eSusa deyflag ls dgk Fkk fd rwus cqjk fd;kA deyflag us eq>s xkyh nsdj dgk fd ekj nwaxk vksj pyk x;kA^^ 5. Thus, it was not a case where the appellant had declared to kill the complainant. Further, it is pertinent to note that the appellant came back for the second time to the complainant while he was lying injured. Had the appellants intention to kill the complainant, he would have opened fire at him from a reasonable distance to finish him off. This obviously be did not do. 6. The other circumstance worth-noting is that the gun-fire was not levelled at vital part. The main i.e., the first' in jury would show that the pellet-injury was caused on knee joint and lateral aspect over the head of fibula. The mere fact that the accused caused injuries by gun. would not by itself make out a case under section 307, Indian Penal Code. The burden of proof to establish intention and knowledge, as contemplated under section 307, Indian Penal Code, lies on the prosecution. The facts and the circumstances as discussed above, in my view. does not make out the intention or knowledge and, therefore, the offence would not fall under section 307, Indian Penal Code and on the other hand, it would be under section 324, Indian Penal Code. Conviction altered under section 324 read with section 27 Arms Act. Sentenced to already undergone.