Sharad Manohar, J.
1. The order of the Sessions Court impugned by this petition has got to be set aside on the ground that it is just plainly unsustainable in law.
2. The facts are simple. One Kasturbai filed a complaint at the Police Station against accused Eknath complaining that she had been slapped by him when she objected to the accused taking cattle over her land. Eknath and other accused, who are respondents here, got annoyed and assaulted various persons, apparently associated with her on 22-9-1982. What they are alleged to have done is that on the said date that is on 22nd September, 1982 while two persons Vishnu and Arjun were sitting in the open site behind Mahadeo temple in the village, Accused Nos. 1 to 13 rushed towards them with sticks and axes in their hands and questioned them as to why Kasturbai, daughter-in-law of one of them, had filed the complaint at the Police Station. Simultaneously they started beating and assaulting both Vishnu and Arjun with sticks and axes.
It is unnecessary to state the facts in more details at this stage. It is enough here to state that one Uttam who had intervened Arjun and some other members of the family concerned, sustained various injuries (as stated by the learned Sessions Judge himself in his impugned order). Uttam and other injured persons went to the Police Patil of the village and thereafter went to the Police Station and lodged an F.I.R. The Police registered the offence under sections 147, 148, 307 and 454 of the Indian Penal Code and registered the offence as Criminal Case No. 69 of 1983. The injured persons were thereafter sent by the Police to the Civil dispensary at Parande where they were treated. The necessary injury certificates were given to the injured persons; subsequent investigation was done and all the accused were charge-sheeted by the Police in the Court of the Judicial Magistrate, 1st Class at Parande for the above mentioned offences.
3. The learned Magistrate perused the necessary papers and passed the necessary order of committal of all the accused to Sessions Court for trial for the above mentioned offences including the offence under section 307 of the I.P.C. of attempt to commit murder.
4. The reason for committal of the case to the Sessions by the learned Magistrate was that one of the offences for which the charge-sheet was filed against the accused was under section 307 of the Indian Penal Code as mentioned above. Since the said offence was triable exclusively by the Sessions Court, the learned Magistrate had no other option but to commit the case to the Sessions for trial.
5. When the case came up for framing charge before the learned Sessions Judge, an argument was advanced on behalf of the accused that even taking the entire prosecution story to be correct and even after examining the material produced by the Police for framing charge, it would be seen that no offence under section 307 involving the intention to commit murder could be said to have been made out. This argument seems to have gone home to the learned Judge and the learned Judge held that the prosecution had not placed any material before the Court for coming to the conclusion that the case for trial of offence under section 307 was made out. If that offence was excluded from the trial, then, according to the learned Judge, the remaining offences were triable by the learned Magistrate. Hence the learned Sessions Judge quashed the committal order passed by the learned Magistrate and sent the matter back to the Magistrate for trial of the accused in respect of the offences other than one under section 307 of the Indian Penal Code. It is against this order that the present revision application is filed by the original injured persons.
6. As stated at the outset the order passed by the learned Sessions Judge is plainly unsustainable. The entire material brought by the prosecution before the learned Judge leaves no room for doubt that ---
(a) Some of the weapons used by the accused while committing offence were such lethal weapons as axes;
(b) the persons whose statements have been recorded by the Police have clearly stated that some of the accused were wielding axes and the injuries received by the injured persons were in the nature of incised wounds which could be caused by lethal weapons such as axes etc.
The medical certificates produced by the prosecution also leave no room for doubt that axes might have been the weapons used by the assailants, who so ever they might be while causing certain injuries on the persons concerned. Atleast prima facie, therefore, there is no reason to hold that the accused had no intention to use the axes for committing offences.
7. The question then arises as to what intention could be imputed to the offenders who had-
(a) wielded weapons such as axes;
(b) caused injuries with the axes;
(c) caused those injuries at vital part of the body.
8. I do not wish to examine the entire evidence in this behalf in this judgment, because, I am afraid the detailed discussion by me at this stage about the material on the basis of which charge under section 307 can be sustained is likely to prejudice the accused in the trial. But it is enough here to state that even the learned Judge who has tried to examine this question has not been able to hold that injuries on the vital part of the bodies of the injured persons with axes were not caused or that there existed no evidence in that behalf. If that is the position there is no reason why charge cannot be framed against these accused for offence under section 307. Surprisingly enough while considering the question as to how the intention of the accused was to be gathered, the learned Judge has made the following observations :
'The question whether the accused had necessary intention referred to in this section must depend upon the facts and circumstances of the particular case. The nature of the weapon used, the expressed intention of the accused at the time of the act, the motive of the accused, and, where injuries are caused, the nature of the injuries and severity and persistence of his blows given may all be taken into consideration for coming to the conclusion on the question of intention'.
But in the same breath the learned Judge observed further as follows :---
'However, it is well established that the intention referred to in this section cannot be inferred merely from the nature of injuries in the absence of other circumstances. It is also well settled that the mere fact that bodily injury inflicted by the accused did not cut in vital organ of the factum is not by itself sufficient to take the act of the accused out of the purview of section 307 I.P.C.'
9. The later observation of the learned Judge, to my mind, is difficult to be justified. It is not the case of the prosecution that all that the accused did was that they gave bodily injuries to the injured persons. It is not that giving of bodily injury was the ' mere fact' as expressed by the learned Judge. It is difficult to understand as to what he meant by 'mere fact', when an accused person is alleged to have caused serious injury in a vital part of a victim with lethal weapon such as axe. The mere fact that the victim does not die does not mean that the intention of the assailants was not to cause death. It may be that by virtue of evidence that will be forthcoming in the trial, ultimately, the Court may come to the conclusion, having regard to the conspectus of the various circumstances brought on record, that the intention of the accused could not be causing death. But all that would be a matter of evidence. It could not be said at the threshold that the intention of the accused was only to threaten the injured persons and not to cause their death. There is nothing on record in the present case to warrant such an inference that the intention of the accused was only to cause bodily injury to the injured persons and nothing further.
10. In para 10 of the judgment the learned Judge has observed as follows :---
'There is nothing in the statements of prosecution witnesses to show that the relations between accused on one hand and prosecution injured witnesses on the other hand were highly strained before the occurrence which took place on 20-9-1982'.
In para 11 of this judgment the learned Judge has made observations to the following effect : (The observations are set out verbatim as far as possible, but not wholly because of the grammatical mistakes).
'Now had it been a fact that accused had intention to cause death either of Arjun or Vishnu or Uttam or other injured prosecution witnesses then they would not have stopped assaulting them and assaulted others. At any rate they would have again assaulted Arjun, Vishnu and Uttam after assaulting other injured persons. However, as per the statements of witnesses the accused had stopped the assault on Vishnu, Arjun and Uttam and then they had gone at the house of Uttam and assaulted. There is no evidence to show that nobody had intervened and restrained accused from assaulting Vishnu, Arjun and Uttam. Therefore it is obvious that none of the accused possessed intention of causing death of any of the injured person.'
In find scant justification for such an inference at this stage. The entire evidence is yet to come on record. The reason why the accused stopped giving further blows is to be gathered from the evidence that will be forthcoming. What is there before the Court, by way of statements of various persons before the Police is only the skeleton of the evidence. Many important circumstances may come on record which are not necessarily part of the material already collected by the Investigating Agency. To give a clean chit to the accused, at this stage itself, when there is enough material on record to show that they had gone almost berserk is a departure from judicial approach.
11. Surprisingly enough in para 12 of his self-same judgment the learned Judge has himself observed as follows:---
'The said Medical certificates further shows that one of the injuries sustained by Suresh was in respect of wound on his scalp which can be caused by sharp and cutting object.'
If this is the position, it follows that axes might have been used by the accused for causing injury on such a vital part such as scalp. Such injury is not caused by the blunt end of the weapon. Evidently it was caused only by the sharp end; just a little more force behind the blow and the injury might have resulted in instantaneous death of the victim. It is impossible to hold at this stage that moderation of the force behind the relevant axe-blow was the result of a measured and restrained action on the part of the accused. Everything will depend upon the circumstances that will be brought on record.
12. Mr. Bhavthankar the learned Advocate appearing for the petitioner rightly invited my attention to the judgment of the Allahabad High Court, reported in 1984, Vol. 90-2, Criminal Law Journal page 1003, in the case of L.D. Jaikwal v. State of U.P.. The general observations made in the said report are of quite some assistance in the present case. This is what Allahabad High Court observed in the said case :---
'While considering the question of framing charge in a case committed to the Court of Session, the Sessions Judge is to consider the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution, has to decide whether prima facie there is an offence which is exclusively triable by the Court of Session, and if it is so, he has to frame charge accordingly and proceed with the trial. At that stage the Sessions Judge is not required to consider the pros and cons of the matter and weigh the evidence as if he was conducting a trial.'
I am in complete agreement with the observations made by the Allahabad High Court. In any event, in the context of the material brought on record by the prosecution in the instant case, it is impossible to hold that the material on record does not warrant even the framing of charge under section 307.
13. I make it clear that nothing in the observations made by me above would mean that I have expressed any final opinion on the question in the sense that I have held any of the accused to be guilty of any of the offences. All that I have aimed at, this stage is that if the material brought by the prosecution on record is strictly proved, it will not be impossible for the Court to come to the conclusion that the intention entertained by the accused was to attempt to commit murder. It may be that after scanning the entire evidence the Court may come to the conclusion that the intention was not to commit murder but only to cause simple hurt or grievous hurt. Everything will depend upon the manner in which the evidence shall be adduced.
14. The order passed by the learned Sessions Judge is, therefore, set aside. The committal order passed by the learned Magistrate is restored. The Sessions Court is directed to take up the case for trial and to dispose of the same in accordance with the provisions of law.