B.L. Hansaria, J.
1. The opposite parties, 4 (four) in number, were committed to the court of Session to face a trial Under Section 302/34, Penal Code. The learned Sessions Judge, however, has come to the conclusion that no charge could be framed against the accused-opposite parties under that section of law. Instead, a charge Under Section 323, Penal Code, was framed against the accused-opposite parties and the case was transferred to the Court of the learned Chief Judicial Magistrate for a trial as provided by law. The State has come up in revision as the impugned order amounts to discharge Under Section 302/34, IPC.
2. A perusal of the impugned order shows that it is founded on, if I may say so with respect, a misconception that the death in question was caused due to any particular assault, which has been repeatedly described in the impugned order as a fatal blow. This would be apparent if we look at the post-mortem report which does not show any particular injury as such to be responsible for the death of Dilip Kumar. The autopsy rather reveals that the deceased had 12 (twelve) injuries on his person of which 11 (eleven) were abrasions on different parts of the body and one lacerated injury 2.5 c.m. just above the lateral part of the left eye brow, The learned Sessions Judge, however, thought that the death was due to assault by one of the unidentified accused-opposite parties with a handle of a jeep, and as it could not be known as to who had dealt that blow described as fatal blow, the learned Court came to the conclusion that the accused-opposite parties could not be roped in with the aid of Section 34 of the Penal Code. Had it really been so that the death was due to one particular assault, then it would have been very relevant to find out if all the accused had shared the intention of causing of death by that blow. But that is not the case at hand. On this short ground, the impugned order could not have been set aside. But Shri Kataki has advanced another argument which merits due consideration. The submission is that on the face and the nature of the injuries found on post-mortem examination, it cannot be said that the accused-persons had shared the common intention of causing the injuries in question which could be said to be sufficient in the ordinary course of nature to cause death, or for that matter even likely to cause, death.
3. In so far as clause thirdly of Section 300, IPC, is concerned, the requirements to attract that clause are well known by now. The Supreme Court has settled the same in the leading decision of Virsa Singh v. State of Punjab : 1958CriLJ818 . The important aspect of this decision which may be noted for our purpose is whether the injury found is sufficient to cause death in the ordinary course of nature is a matter of inference, or deduction from the proved facts, and it has nothing to do with the question of intention, which is confined to the causing of bodily injury and at the part of the body where the injury is found. If the intention were to be stretched to the first aspect also, then there would have been no necessity of third clause, as in that case the first clause itself would have taken care of the case. (See paras 9 and 10).
3A. Let it be next considered as to whether the common intention of the participants has to be only of causing death to attract the mischief of Section 302 read with Section 34, IPC, or the intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death will do. From the conspectus of the decisions cited, before me, I entertain no doubt that even the latter intention would attract the operation of Section 34. Further, this section would apply even if a cumulative effect of the injuries be of the nature which would be sufficient in the ordinary course of nature to cause death. Whether the injuries in fact are of this nature or not, is a different question and has to be examined in the facts and circumstances of each case. But if the nature of injuries be such, or could be reasonably said to be such, all the participants in the crime would be roped in with the aid of Section 34, and for that matter, if the injuries be such which are likely to cause death, then the case could be of culpable homicide, and Section 34 could be pressed into service if the common intention was to cause those bodily injuries.
4. This conclusion follows from what has been stated in Sarwan Singh v. State of Punjab : 1978CriLJ1598 , in para 8 of which the cumulative effect of the injuries was considered and though the Court was not satisfied that they were sufficient in the ordinary course of nature to cause death, it held that the injuries were such which were likely to cause death, and being of this view the conviction Under Section 302/149 was altered to Under Section 304/149. The importance of this decision is that though no individual injury could be said to be such which was likely to cause death, the cumulative effect of the injuries was taken notice of even for the purpose of Section 149. There is of course no doubt that the nature of the injuries have to be borne in mind while deciding whether the case is one which would attract the mischief of Section 302 or 304, but the important point to note is that the intention to cause injury which is otherwise sufficient in the ordinary course of nature to cause death, or is likely to cause death, even cumulatively would be sufficient to attract Section 34. See Isak Mohammad v. State of Maharashtra : 1979CriLJ1092 . Of course, as follows from Section 38, Penal Code, participants in a crime may have different intentions also. Reference may be made, on this aspect to Bhaba Nanda v. State of Assam : 1977CriLJ1930 also.
5. Before we come to the nature of the injuries, we may remind ourselves that the main point under consideration is relating to framing of charge. The trial is yet to begin. Shri Kataki states that even at this stage the material must be such which, if unrebutted. would warrant conviction and refers in this connection to State of Karnataka v. Muniswamy : 1977CriLJ1125 . The learned Public Prosecutor, on the other hand relies on Suite of Bihar v. Ramesh Singh : 1977CriLJ1606 . where it has been held that even if there be a strong suspicion at the initial stage which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to discharge the accused. Shri Kataki would say that the ratio of this decision is confined to the case based on circumstantial evidence. I do not agree with him because on the legal question as to when charge can be framed, there can be no distinction between a case based on circumstantial evidence or on direct evidence.
6. To the broad facts now : The deceased, who was a driver of the vehicle which had caused some accident, had received a good beating, as is apparent from the fact that he had 12 (twelve) injuries at various parts of his body. It is also on record that the driver had breathed his last at the spot itself. By referring to the opinion of the autopsy surgeon it is. however, contended that there is nothing to show if the doctor had entertained the view that the injuries even taken cumulatively were sufficient in the ordinary course of nature to cause death. The submission is right as far as it goes, because in the opinion part of the report it is stated that 'Death in my opinion is due to syncope. All the injuries are ante-mortem and caused by blunt impact and the injuries are homicidal in nature.' There is thus no positive opinion that the injuries taken together were sufficient in the ordinary course of nature to cause death. Learned Public Prosecutor contends that this we shall know when the doctor is in the witness box. The doctor being silent in regard to the point under consideration, it has become difficult to come to any. positive conclusion either way. But it cannot be denied that the injuries being what they are, one can reasonably think that the death might have been caused, as distinguished must have been by the bodily injuries received by the deceased. It would bear repetition to say that at the stage of framing of charge, conclusion about possibility is enough. Though the fact of spot death is not material in this regard, the same cannot be tost sight of also. As at the stage of framing of charge, it is the presumption which has to guide the Court ; I am of the view that the possibility of the injuries inflicted were sufficient in the ordinary course of nature to cause death, cannot be ruled out. In any case, it cannot be said that the injuries were not likely to cause death. The latter view would attract the mischief of Section 304, and the former Section 302. As a case Under Section 104 is also triable by a Court of Session, it would not really make a difference even if a charge is framed Under Section 302/34. It may also be noted in this connection that the punishment for Section 304 is also up to imprisonment for life.
7. Before concluding. another submission of Shri Kataki may be dealt with. Learned Counsel states by referring to Section 398, Cr.P.C., that in such a case a direction is required to be given to make further enquiry. 1 would think that the section has conferred a discretion in this regard, and after all that has been stated above, any enquiry by the Chief Judicial Magistrate or any other Magistrate would sound hollow and redundant.
8. Accordingly, the impugned order is set aside and the learned Sessions Judge is directed to take the case back on his file and to proceed thereafter in accordance with law in the light of the observations made above.