B. Venkataswami, J.
1. This petition by the State is directed against an Order made by the First Class Magistrate, Hassan, in C.C. No. 912 of 1971 and the Order of affirmance made by the learned Sessions Judge at Hassan, in Cr. R. P. No. 7 of 1971.
2. A charge sheet was placed by tha Police of Sakleshpur against the respondents, levelling charges under Sections 302 and 324 read with 34, IPC Apart from the two respondents herein, there was another accused by name Sadhu. In view of the fact that Sadhu had been alleged to be a minor, separate proceedings were instituted against him under Juvenile Offenders Act. We are not concerned with his case for the present.
3. The prosecution case is that on 7-5-1971 at about 6.30 p. m. one Alban Lobo was assaulted by the three accused with sticks and stones and was also throttled, as a result of which he died almost immediately.
The proceedings were conducted in accordance with the provisions of Section 207-A, Criminal P. C. During the committal stage, the wife and son of the deceased have been examined. The post-mortem report of the Doctor is that the death was the result of throttling and not on account of the assault with sticks and stones. The learned Magistrate examined the papers relevant and also the evidence and came to the conclusion that a prima facie case under Section 326, I. P. C had been made out against the respondents, and accordingly framed a charge. He cama to the conclusion that there were no sufficient grounds to commit the respondents under Section 302, I. P..C.
Aggrieved by the said Order, the State preferred a revision petition before the Court of Sessions under Section 435, Cri. P. C presumably seeking a direction under Section 437 of that Code. It was dismissed.
4. It is seen from the Order made by the learned Magistrate under Section 207-A, that the question relative to the charge under Section 34, IPC has not been examined, But the learned Sessions Judge, in a brief order, while affirming the order of the learned Magistrate, has examined that question and come to the conclusion that the case under Section 34, IPC had not been established.Hence this petition by the State.
5. Before adverting to the contentions urged on behalf of the State, it is relevant to refer to' an enunciation of the Supreme Court in the case of Alamohan Das v. The State of West Bengal, : 1970CriLJ860 in order to clear the ground relative to the law governing the matter. The enunciation read thus:
In terms, Section 209 applies to cases which are instituted otherwise than on a police report. But the principle underlying that section applies to cases which are instituted on a police report. 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; if there is some evidence on which a conviction may reasonably be based, he must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction.
(Underlining is mine)
6. It is also relevant to examine the provisions of Section 34, IPC The words 'in furtherance of the common intention of all' mean the element of common intention prescribing the condition under Which each of the accused may be criminally liable. It is the intention to commit the crime, and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed. It is difficult, if not impossible, to procure direct evidence of such intention. In most cases it has to be inferred from the acts or conduct of the accused and such other relevant circumstances. To my mind, all such questions have to be examined by a trial Court after all the evidence is adduced.
7. Keeping the above principles in view, I shall now proceed to examine whether the Order impugned is correct. I have earlier mentioned that the question of common intention has not been examined by the Committal Magistrate. It is also to be remarked that the learned Sessions Judge has aot examined the evidence at any length. But, he has examined the question of common intention and observed thus:..The facts are that the son of the deceased and his wife, namely P. Ws. 1 and 2 before the lower Court, had a quarrel with accused Sadhu, and on the return of the deceased to the house, they reported the matter to him and he goes out and questions that Sadhu and there was a quarrel between them. At that stage, the present respondents intervened on being informed and they are alleged to have assaulted the deceased. This circumstance establishes that there could not have been any common intention between Sadhu and these accused-respondents. Even according to the evidence it was the act of the third accused Sadhu that led to the death of the deceased Alban Lobo, and not by the blows given by these accused. Wherefore, there could not be any case of Section 302, IPC against the two respondents. According to the prosecution case itself they could not have had the common intention with the accused Sadhu whose act has resulted in his death. Common intention requires a prior consent or a pre-planning. That is lacking in this case. Therefore Section 34, IPC cannot be invoked....
8. It seems to me that the above reasoning of the learned Sessions Judge is clearly misplaced in the context of the jurisdiction to be exercised by a Committal Magistrate. It is. seen from the charge levelled by the Police that Section 34, IPC has been invoked, in fact. It is also relevant to note that such common intention can develop at or about the time of the incident, and whether or not such common intention is inferable from the facts and circumstances of the case necessarily involves appreciation of evidence. Such a question ordinarily has to be examined only by tho trial Court, namely the Court of the Sessions ludge. In the instant case, the order of the learned Sessions Judge is, therefore, clearly unsustainable.
9. Without expressing any concluded opinion on the question of common intention, it may be relevant to note that on the facts alleged in this case, there are certain circumstances which ought to have been taken into account in expressing any concluded opinion as to common intention. Without being exhaustive, I may merely refer to two circumstances. They are: (1) the earlier incident wherein Sadhu alone was concerned, and the same being the background for the incident resulting in the death of Lobo; (2) the relationship between A-l and A-2, tha respondents herein, and the third accused Sadhu. These circumstances, among others that may be found to have been present in the case, have not been considered at all by either of the Courts below. Hence, no importance can be attached to the conclusion of the learned Sessions Judge on such a question.
10. Now reverting to the Order of the Committal Magistrate, it is seen that he has found that there is a prima facie case as regards the happening of the incident id question. It was, therefore, his duty to have examined the question of common intention in the light of Section 34, IPC Not hav ing examined that question, it was not at all permissible for him to have concluded that there were no grounds to commit the accused under Section 302, IPC It is no doubt true that the Committal Court is not a mere recording machine, and to a certain extent it would be entitled to sift and weigh the evidence in order to see whether or not there is a case for trial before the Court of Session. But that is not to say that he can scrutinise the evidence closely in order to see whether or not a case for conviction had been made out. In the instant ,case, the learned Magistrate has examined the evidence of P. Ws. 1 and 2 in the context of the Post-Mortem Report and come to a conclusion, as it seems to me, that the throttling was exclusively the act of the third accused, Sadhu, who is not concerned in the present revision, and that the present respondents-accused were merely concerned with the acts of assault by sticks and stones. In this view he has come to the conclusion that there was no case for trial under Section 302, IPC This is clearly an erroneous view, for two reasons : (1)' It was no part of his duty to examine the evidence of P. Ws. 1 and 2 in the context of the postmortem report as it is clearly a case of appreciation of evidence in order to determine whether there was a prima facie case regarding the guilt or the innocence of the accused; and (2) if Section 34, IPC is found applicable to the facts of the case, the acts of Sadhu would also make the other accused, liable for such acts. I have earlier opined that whether or not a case falls under Section 34, IPC is ordinarily a question falling within the purview of the trial Court, which in the instant case would be a Court of Session. Therefore, the Order made by the Committal Magistrate that the respondents herein should stand trial under Section 326, I. P. C, would be clearly untenable, and ha to be set aside.
11. In the result, this petition succeeds and is allowed. Consequently, the charge framed in C.C. No. 912 of 1971 against accused one and two by the learned First Class Magistrate, Hassan, under Section 326, IPC is set aside, and he is hereby directed to frame charges under Section 302 read with Section 34 and Section 324, IPC against accused one and two and commit them for trial before the Court of Session at Hassan.