K. Lahiri, J.
1. This criminal revision under Section 439 of the Criminal Procedure Code is filed against an order dated 29-12-1972 passed by Shri A. Mazid, Additional District Magistrate (Judicial), Tezpur in C. R. Case No. 497 of 1972 holding that there is no prima fade case against accused Sampatlal under Section 307 of the Indian Penal Code, however, framing charges against accused persons under Sections 452/323/34 of the Indian Penal Code and the judgment and order dated 28-7-1973 passed by Shri S. Haque, Sessions Judge, Dar-rang at Tezpur in Criminal Motion No. 8 of 1973, rejecting the application of the petitioner under Section 435/437 of the Code of Criminal Procedure.
2. It is really unfortunate that a matter so old is still pending on account of the delay in disposal of a preliminary point as to whether the accused persons should be committed to the Court of Session on framing charges under Section 307 of the Indian Penal Code against one of the accused persons.
3. It may be stated here that the incident had happened as far back as on 26-4-1972. Such a delay is definitely telling both on the complainant as also on the accused persons. I find from the record that neither the trial court nor the learned Sessions Judge nor this Court was any way responsible for the delay in question.
4. The petitioner is the complainant, who, on 28-4-1972 filed a complaint before the Magistrate First Class at Tezpur, alleging inter alia, that on 26-4-1972 (Wednesday) the opposite party No. 1, the proprietor, along with his sons the opposite parties Nos. 2, 3 & 4 and accompanied by opposite party Nos. 5 and 6, the employees, at about 8 P. M. came to the shop of the petitioner. It was alleged by the complainant that the opposite party No. 1 was to vacate the house rented out in November last but on default the complainant filed a Civil Suit against the accused persons. It was also alleged that the accused persons all along demanded of the complainant for repairing the house in question which was situated very near the shop house of the complainant.
On the date of the occurrence the opposite party Sampatlal and Bhawarilal entered the shop house and threatened the complainant that if the water pipe of the house be not repaired then he would be assaulted, at which the complainant protested and the other accused persons coming near the door-way threatened the complainant. It was alleged that the accused Sampatlal caught hold of the neck of the complainant who was gasping but the accused Bhawarilal was pushing him from behind. Then the complainant bit Sampatlal in his hand and those persons who were present there became very much excited and they wanted to kill him but he was saved by the other persons and one police-man who came there, took the complainant to the Police Station and from there he went to the hospital and the Doctor found some injuries on his neck. But, however, in the police station no ejahar was recorded.
5. That on receipt of the aforesaid complaint the learned trial court after examining the complainant issued warrants of arrest against the accused persons under sections 452/307/34, Indian Penal Code and thereafter the accused persons appeared in Court and the complainant examined his witnesses who were nine in number including the complainant. On examination of the witnesses under Section 208 of the Criminal Procedure Code, 1898, the trial Court found that there were no sufficient grounds for committing the accused persons for trial before the Court of Session, inasmuch as, there was prima facie case against the accused persons under Section 452 read with Sections 34 and 323 of the Indian Penal Code but found that there was no prima facie case against the accused per-sons or any of them under Section 307 of the Indian Penal Code.
6. That a Magistrate proceeding under Chapter XVIII of the Code of Criminal Procedure, that is to say, in an enquiry into oases exclusively triable by the Court of Session, ordinarily commits the accused to stand their trial in the Court of Session and thereby lightens his burden. But in the instant case instead of short circuiting the matter the learned Magistrate took upon himself the burden of trying the case. In the present case, the learned Magistrate did not discharge the accused persons of all the charges which were brought against them. But instead of committing the accused persons to the Court of Session, as he did not find sufficient grounds for such committal, framed charges which were triable by him and desired to continue with the trial. In fact, the court below wrote a very reasoned order detailing almost all the relevant facts and circumstances of the case and also stated the reasons as to why he did not find the essential ingredients of the offence to be present in the case.
The trial court came to the conclusion on perusal of the entire evidence that there was nothing at all in the case to show that the accused Sampatlal and/or any other accused had any intention to kill the complainant nor did any of the accused commit any act which could have caused the death of the complainant. The trial court held that the burden of proof of the essential ingredients of the offence that the accused had the intention to kill or that they did any act to cause the death of the complainant were to be proved by the prosecution. He also took into consideration the evidence of the Doctor who had examined the complainant who found only some simple injuries. He also found that the evidence of the Doctor disclosed that such simple injuries may even be caused by a fall or dashing against hard substance.
7. Thereafter, the complainant being aggrieved by the order dated 29-12-1972 passed by the Additional District Magistrate (Judicial), Tezpur, came up before the Court of Session under Section 437 of the Criminal Procedure Code, praying that the accused persons may be directed to be committed to the Court of Session to stand their trial under Section 307 of the Indian Penal Code. The said application was registered as Criminal Motion No. 8 of 1973. It may be worthwhile to state here that the power to order commitment is entirely entrusted to the Sessions Judge and the District Magistrate. Herein we find that excepting these two Courts no other Court including the High Court is specifically empowered to make an order of commitment. In the present case on committal the case would have been tried by the Sessions Judge and/or Assistant Sessions Judge. As such, the case in fact came up before a Court which would have tried the case on merit had the accused been committed for trial before the Court of Session.
8. The learned Sessions Judge admitted the petition of the complainant and upon hearing the parties by his judgment and order dated 28-7-1973 rejected the application of the petitioner made to the Court of Session under Section 437, Criminal Procedure Code. The learned Sessions Judge perused the evidence of all the witnesses and considered their evidence and took into consideration the facts and circumstances of the case and also the manner in which the incident had taken place and came to the conclusion that no prima facie case was made out against accused Sampatlal and further held that the prosecution had failed to establish that the accused Sampatlal had any intention of causing death or to cause such bodily injury knowing that the same was likely to cause death. The learned Sessions Judge also considered the fact that the neck is a vital part of the body and that sufficient pressure on or throttling of that part may cause death. On perusal of the entire evidence the learned Sessions Judge came to the conclusion that there was no evidence that the accused pressed the neck hard or that the complainant became any way incapacitated or inactive as a result of the attack. The learned Sessions Judge also came to the conclusion that there was no prima facie case established by the prosecution against the accused under Section 307, Indian Penal Code.
9. Against the aforesaid concurrent findings of the Courts below holding that the essential ingredients of the offence under Section 307, Indian Penal Code, were not established by the prosecution, the petitioner, by way of this application under Section 439, Criminal Procedure Code, calls upon this Court to invoke the revisional power or jurisdiction to set aside the orders of the courts below relating only to and in respect of the order of the Courts below holding that there was no prima facie case against the accused persons under Section 307, Indian Penal Code. On the prayer of the complainant-petitioner this Court while issuing the Rule, stayed all further proceedings of the case and as such the trial of the case was stalled.
10. Mr. J. P. Bhattacharjee, the learned Counsel appearing on behalf of the petitioner has made the following grievances:
(1) that the trial court acted illegally and without jurisdiction and violated the provisions contained in Section 209 of the Criminal Procedure Code, inasmuch as the trial court had no jurisdiction vested in it by law to refuse to commit the accused persons when there was a prima facie case against the accused-opposite parties;
(2) that the trial court was not within its jurisdiction to sift the evidence and to see as to whether there was any credible evidence which would sustain conviction. He submitted that the trial court being a committal court had no jurisdiction to evaluate the evidence and to accept one version out of the two conflicting versions and in fact usurped the function of a trial court; and
(3) the Sessions Judge did not at all consider the grievances which were made before him to the effect that the Additional District Magistrate (Judicial) exceeded his power vested in him under Section 209, Cr. P.C. and merely considered the case as if it was an appellate court.
11. The learned Counsel appearing on behalf of the petitioner submitted before me that P.W. 1, the complainant, in fact, proved a prima facie case and placed before me the extract of the evidence quoted by the petitioner in paragraph 6 of the petition. The learned Counsel relied on the following portion of the evidence of the complainant and strenuously argued that the same was sufficient to establish the essential ingredients of an offence under Section 307 of the Indian Penal Code:
Bhawrilal threatened me by saying that on my failure to repair the water pipe and the electricity in the house where they were living, I would be beaten. While I challenged them against the proposed action, Sampatlal throttled my neck. Then accused Maganlal and Jaharmal spoke in Marwari asking him (Sampatlal) to bring me outside and saying what he was looking for inside. Jaharmal again asked him to kill me. There was dragging and pushing. I bit Sampatlal to save my life. In the meantime the two accused dragged me out. I would have been killed had I not bitten the accused Sampatlal in his hand.
12. It may be noted here that the entire allegation of P.W. 1, so far as holding the complainant by his neck was made, was against the accused Sampatlal. He did not state in his evidence that he was 'throttled' i. e., choked by the pressure of the wind pipe. He stated merely that his neck was pressed. This act or action of Sampatlal was attributed by the complainant to be an offence under Section 307, Indian Penal Code. Even on the plain reading of his evidence as a whole, I do not find that the prosecution has established that Sampatlal had any intention of causing death or 'the holding of the neck' was done with the intention of causing such bodily injury as Sampatlal knew to be likely to cause death or was sufficient in the ordinary course of nature to cause death. The portion of the evidence wherein the complainant had staled that 'I would have been killed had I not bitten accused Sampatlal in his hand, 'does not at all relate to the act of catching hold of the neck by accused Sampatlal. The evidence of P.W. 1 on its face value do clearly go to show this much and no further that Sampatlal caught hold or pressed the complainant's neck. The evidence of P.W. 2 the son of the complainant also go to show this much and no further that accused Sampatlal caught hold of the neck and brought him out. The evidence of the rest of the witnesses also do not go to show anything more than that accused Sampatlal did anything excepting holding the neck of the complainant.
13. If a person holds the neck of another person and gets sufficient time, as in the present case, and yet does cot put much pressure thereon, he cannot be shid to have an intention of causing death etc. as contemplated under Section 307 of the Indian Penal Code. It is apparent that accused Sampatlnl caught hold of the neck and was holding the neck for a pretty long time but there is no complaint by the complainant that he sustained any serious or grievous injury on his neck. Even no injury was found which can be said to be inflammatory in nature. There is no material emanating from the evidence of the complainant that his wind pipe was compressed. Nor there is any evidence that his face became cyanosed or there was any bleeding or that his hands became clenched. The Doctor who had examined him and who appeared in Court as a witness for the complainant, did not state anywhere that from the nature the injuries he could even presume that it was a murderous assault. Therefore, I do not find anything to differ from the views expressed by the Courts below.
14. The learned Counsel for the petitioner submitted before me that the neck of a human being is by itself a very sensitive and vital organ of the body and any attack on such a vital part of the body by itself should be considered as 'murderous' and such an attack by itself constitutes an offence under Section 307, Indian Penal Code and the prosecution has at least proved the prima facie case under Section 307, Indian Penal Code, by proving that the attack was on the 'neck'.
15. I am afraid, I cannot agree with the contention of the learned Counsel. It is true that the learned Sessions Judge has come to the conclusion that the neck by itself is a vital organ of a human body. But I am of the view that the neck is only an organ of a human body which is situated between shoulder or thorax and the head. Like many other sensitive organs of the body this may be one of such sensitive organs. Any standard medical dictionary would show that neck is one of the important organs of the body. The word 'vital' is very relative. Any part of the body which may be said to be supporting or necessary to life or life-giving or essential or highly important, can be loosely termed as 'vital'. In the loose sense it is undoubtedly a vital part of the body.
16. In 'neck' itself there are parts on which if attacks are made, the same may be fatal. As for instance 'the wind pipe' is one of such parts of the organ on which if much pressure is applied, it may cause death. It has been stated by the Doctor examined in connection with the case that in the organ of the body called 'neck', there are such parts on which attacks are made, they may be fatal or mortal or calamitous. It is undoubtedly true that there are some spots or places in the organ called neck on which if assaults are made may cause death. Unfortunately in the present case the medical evidence also do not go to show that any such parts of the neck which might have caused death was attacked by the accused. The injuries found by the Doctor were nothing but simple abrasions. There is no evidence that the accused held those parts of the neck which are the fatal parts of the neck. Under these circumstances, when there is no evidence coming from the prosecution that any such murderous attack was made by the accused on any 'such fatal part of the neck,' I cannot persuade myself to hold that merely by stating that the attack was on the neck and that too by hand, is by itself is sufficient to establish even a prima facie case against an accused to face a trial before the Court of Session to meet a charge in which a person may be convicted even for life.
17. However, even if I hold that a mere attack on the neck by itself is an attack on a vital organ, yet I find no sufficient materials to hold that the prosecution has established its case under Section 307, Indian Penal Code against the accused person.
18. The learned Counsel for the petitioner has submitted before me and very rightly that an offence under Section 307, Indian Penal Code contemplates that the act committed by the accused persons must be such that for the intervention of some circumstance it would, if completed, have resulted in death. The learned Counsel submits that but for the biting, the life of the complainant was saved. But I find from the record that there was a time-gap between the catching of the neck and the biting by the complainant. Even in spite of the fact that the accused got so much time and opportunity but yet did not cause any such injury on the neck from which either his intention or his knowledge as contemplated under Section 307, Indian Penal Code may even be inferred. These circumstances are also relevant factors in favour of the accused and justify the orders of the Courts below.
19. The burden of proof that the accused had the intention or knowledge as contemplated under Section 307, Indian Penal Code must be established by the complainant before he can ask the court to frame a charge against the accused persons under Section 307, Indian Penal Code. In order to constitute an offence under Section 307, Indian Penal Code two of the essential ingredients are- (1) an evil intention or knowledge and, (2) the act done. The act done in the instant case, namely, catching hold of the neck in the manner as alleged by the complainant does not establish that the accused had any such intention or knowledge as is required under the said section.
20. The learned Counsel appearing OH behalf of the petitioner cited the decisions reported in : 1970CriLJ903 (Rajpal Singh v. Jai Singh) : AIR1962SC1195 ) and : 1958CriLJ244 (Ramgopal Ganpatrai Ruia v. State of Bombay) and submitted that the duty of the committal court in a proceeding before it is only to satisfy itself that a prima facie case is made out against the accused person and it has no jurisdiction to- (1) evaluate the evidence, (2) to accept one of the two conflicting versions, (3) disbelieve any witness, and (4) whenever there is some credible evidence which would sustain a conviction it is duty-bound to commit an accused person and in the instant case the Additional District Magistrate (Judicial) as also the Sessions Judge misdirected themselves in not considering the powers and jurisdiction of a committal Magistrate under Section 209 of the Criminal Procedure Code,
21. I am, however, of the opinion that none of the decisions are applicable in the present case. I find that in all the decisions cited above as also in the decision reported in : 1970CriLJ860 (Alamohan Das v. The State of West Bengal) their Lordships in the Supreme Court specifically laid down that a Magistrate holding a preliminary enquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit. In the last named decision their Lordships observed that-
A Magistrate holding an enquiry preparatory to commitment is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused....
22. In the present case I do not find that the trial Court or the Court of Session considered the evidence on record for any other purpose other than holding that there was no prima facie evidence.
23. In my view while considering as to whether the essential ingredients of the offence under Section 307, Indian Penal Code has been established or not, the Court is bound to consider the evidence to find out as to whether the prosecution has been able to establish the intention or knowledge as contemplated under the said section. He has also to consider the nature of the act, namely, as to whether the act was so imminently dangerous that it must in all probability cause- (a) death or (b) such bodily injury as is likely to cause death.
24. Under such circumstances when a Magistrate in fact considers the evidence for the purpose of finding out as to whether a prima facie case has been made out or not, it cannot be said that he has exceeded the power or jurisdiction under Section 209 of! the Criminal Procedure Code.
25. In the present case the learned Counsel for the petitioner could not show me any part of the findings of the Courts below which may be said to be in excess of the jurisdiction under Section 209 of the Criminal Procedure Code excepting the following observations of the Additional District Magistrate (Judicial):
Prosecution could not show that the accused had intention to kill nor they did any act to cause the death. Doctor opined that the nature of injury on the complainant was simple which may be caused even by fall or dashing against hard substance. There is therefore no prima facie against the accused under Section 307 I.P.C.
26. In the above part of the finding of the trial court I do not find that it has exceeded its jurisdiction. It is within the jurisdiction of the Court to find out as to whether the accused had the requisite intention and it is also bound to consider the evidence of the Doctor if there be any, to find out the nature of the injury for the purpose of coming to the conclusion as to whether a case under Section 307, Indian Penal Code, has been made out or not.
27. As such, I find that the trial Court has considered the factors only for the purpose of arriving at the conclusion as to whether a prima facie case against the accused under Section 307, Indian Penal Code, was made out by the prosecution or not and for no other purpose. I also do not find that there was anything wrong with the judgment and order of the learned Sessions Judge.
28. Under these circumstances, I am definitely of the view that the complainant has failed to establish a prima facie case against any of the accused persons under Section 307, Indian Penal Code, and, as such, I reject this revision petition and direct the trial court to proceed on expeditiously with the case and to dispose it of as early as possible. The stay order stands vacated.