Govinda Menon, J.
1. This is a reference by the District Magistrate at South Kanara requesting this Court to set aside the conviction of the accused under B. 387, Penal Code, by the Stationary Sub-Magistrate, Puttur, in o. o. no. 352 of 1948 and to order a further enquiry against the accused foe an offence under Section 307, Penal Code, which according to the evidence adduced, is, in the opinion of the District Magistrate, the offence committed by the accused. My learned brother Bajagopalan J. in issuing notice to the Public Prosecutor, made the following observation:
Rule 269, Criminal Rules of Practice hag not been complied with. There was no call for an explanation from the Sub-Magistrate by the District Magistrate. No doubt it is unlikely the Sub-Magistrate will have anything to add to the lengthy explanation he furnished to the Sub-Divisional Magistrate.
It is virtually a question of appreciation of evidence-mainly of oral evidence.
Notice may be ordered to the Public Prosecutor and the ease posted before a single Judge.
After the entire records were translated, the matter now comes up for passing orders.
2. The charge sheet filed against the accused was for an offence under Section 307, Penal Code, in that he attempted to murder his son p. W. l by shooting him with a single barelled muzzle loading gun at a distance of 8 yards with such intention or with such knowledge and under such circumstances that if, by that act, he had caused the death of p.W. 1, the act would have amount-ed to murder.
3. 15 witnesses were examined on the side of the prosecution and two for the defence. Though the inquiry originally began as a preliminary register case, during its progress, the Sub-Magistrate was of opinion that the only offence that was committed on the evidence placed before him was under B. 337, Penal Code, and thereafter a charge was framed under that provision of law and the accused further questioned. Accepting in pArticle the statement of the accused and the evidence of the two witnesses examined for him, the Court of first instance convicted him of an offence as stated above and sentenced him to pay a fine of Rs. 200. The Sub-Divisional Magistrate of Puttur, on perusing the calendar of this case in his administrative capacity called for a report from the Sub-Magistrate on the various questions raised by him and wanted the Sub-Magistrate to state why the case was converted as a calendar case and the accused convicted only of a minor offence. In answer to this, the Sub-Magistrate submitted a lengthy explanation stating the reasons for the course adopted by him. He also expressed his conclusion regarding the credibility of various portions of the prosecution evidence and why the whole of it should not be accepted. The Sub-Divisional Magistrate was not satisfied with the explanation and, therefore, submitted the papers to the District Magistrate who, after expressing his view, has referred the whole matter to this Court.
4. My learned brother Bajagopalan J. has not issued notice to the accused at all and in the circumstances if I were inclined to agree with the expression of opinion made by the Sub-Divisional Magistrate and the District Magistrate, under Section 439, of (2), Criminal P. C, it would not be legally possible for this Court to pass any order to the prejudice of the accused unless he has had an opportunity of being heard either personally, or by pleader. Such being the case, I have to issue notice to the accused before passing an order to his prejudice; but for the reasons which will be given presently, it seems to me that no further action is necessary in this case.
5. When the Sub-Magistrate framed a charge under Section 337, Penal Code and did not frame one under 8,307, Penal Code, his action amounted to a discharge of the accused of an offence under the latter section. In that case, it is open to the Distriot Magistrate under Sections 436 and 437, Criminal P. C, either to order a further enquiry or to order commitment to the Court of Session. The fact that the Court of first instance has convicted the accused of an offence under 8. 337i Penal Code, will not in any way interfere with the order of disoharge under Section 807, Penal Code.
6. 'Section 403, Criminal P. C., is clear to the effect that the conviction or acquittal of a person of a minor offence is no bar to the further trial of the same person for a more serious offence which might include the ingredients which already conatituted the offence under the minor section. The facts arid circumstances which according to the Court of first instance constituted the offence under Section 337, Penal Code, along with other ingredients might constitute an offence under 8.307, Penal Code, and there is no prohibition in law in trying the accused for the more serious offence, the conviction under Section 337, Penal Code, not being a bar. The District Magistrate, if he had been so inclined, could have himself ordered a further enquiry for the offence under Section 807, Penal Code, instead of making the reference which is the subject-matter of discussion now.
7. But the learned Public Prosecutor con-tends that as the case depends mostly, if not solely, on the appreciation of oral evidence, it is very unlikely that on the evidence as it stands, any Court will come to a conclusion that the accused will be guilty of an offence under Section 307, Penal Code. He places particular reliance on the evidence of p. ws. 12 and 13 and contends that since injuries nos. 18 and 11 could only be caused by the bullet striking against something and deflecting at an angle to the right or to the left, not necessarily at right angles, it would be impossible that a shot fired at such a close range as eight yards would have been the cause of the injuries on p. w. 1. The evidence of v. Ws. 12 and 13 is clear that the injuries could be caused by one gun-shot passing through a window with-in a range of 21 feet. According to the learned Public Prosecutor, if the gun was fired at such a short distance, there could not have been this deflection. Moreover, it is pointed out by the learned Public Prosecutor that there are other infirmities in the prosecution evidence which the Court of first instance had rightly taken into consideration. 1 am inclined to agree with these contentions. I would, therefore, hold that no further action is necessary, The records are returned to the District Magistrate, South Kanara.