RANDHIR Vs. STATE OF M P

JUDGEMENT

(1.) THIS revision application has been preferred against the order dated the 17th of july, 1961 passed by the First Addl. Sessions Judge Morena, in Criminal Revision no. 42 of 1961, whereby he directed the present applicants to be committed to the Court of Sessions to stand their trial for an offence under Section 307. I. P. C.

(2.) THE facts giving rise to the case are that on 28-12-1959 a fight took place between Rameshwar and his brother Babu on the one hand and the present applicants along with certain others on the other side in the course of which both parties received injuries. The police Ambah after due investigation submitted challans against bota parties for offences under Sections 323 and 307 react with section 34, I. P. C. In Criminal Case No. 120 of 1960 out of which the present revision application arises the Magistrate First Class Ambah observed on perusal of the papers filed along with the challan that it was difficult to hold that the intention of the accused was to cause death. He, therefore, ordered that a charge Under section 325, I. P. C. be framed against Randhir and that Rajaram be tried on a charge Under Section 323, I. P. C.

(3.) IN the first place it would appear from the medical certificate that Rameshwar had an incised wound measuring 1 3/4" X 1/4" X 1/4" on the right parietal region as a result of which there was bleeding from the right ear. The patient was in an unconscious state at the time of his admission in the hospital. An X-ray examination revealed fracture of the skull. Another certificate of the medical officer Civil Dispensary Ambah discloses that the patient continued to be unconscious for 5 or 6 days after his admission to the hospital. An injury caused on the skull with a sharp-edged instrument which was attended with such consequences could in all probability have ended in death. I am, therefore, of the opinion that the learned Magistrate ought not to have held without examining the doctors under whose treatment Rameshwar was kept that the injuries on his head were not such as could in all probability have resulted in death. Since it was a case of a pitched fight between the two parties the persons who took part on either side would prima facie be constructively liable for the offences committed by other members of their party. At any rate the question of constructive liability of Rajaram for the offence committed by Randhir was a matter which could be decided only after the entire circumstances of the case had been proved by legal evidence. A Committing Court is not supposed to take upon itself the responsibility of deciding what offence will ultimately be found proved against each accused at the conclusion of the trial. An attempt of this nature by the Committing Magistrate to usurp jurisdiction to try a case of such a serious nature by framing a charge for lesser offences cannot be too strongly deprecated. An injury was caused to Rameshwar with a 'farsa' on the head which resulted in fracture of the skull. Rameshwar remained unconscious for a number of days and thereafter developed symptoms of neurosis due to brain injury. Certainly in a case of this nature a charge Under Section 307, I. P. C. against Randhir and Section 307. read with Section 34 along with Section 323, I. P. C. against Rajaram was called for. The learned counsel for the applicants did not seriously dispute this position when faced with the medical certificates showing fracture of Rameshwar's skull. He, however, contended that since the Magistrate had framed a charge for lesser offences against the present petitioner the Sessions Judge could not in exercise of his powers under Section 437, Cri. P. C. set aside the order of discharge in respect of the offence Under Section 307, I. P. C. According to the learned counsel Section 437, Cri P. C. would not apply to those cases where a charge for some offence is framed by a Magistrate against the accused.