JUDGMENT 1. 1. This petition has been filed challenging the order of Sessions Judge Swaimadhopur, Camp Gangapur, dated 18.12.87, whereby the court discharged the accused persons from under Section 307 IPC and remanded the case to the court of Addl. Chief Judicial Magistrate, Gangapur for disposal in accordance with law under S. 228(1)(a) Cr. P. C. 2. Brief facts giving rise to this petition are that on 6.3.1987 a report was lodged by one Bazeer at police station, Baseerpur wherein it was alleged by him that in the morning at 8.00 AM he was carrying milk to Gangapur and when he reached near the School Mohammad, Gabroo, Basheer, Munir sons of Sannu Habu, Chhaju sons of Bhasbal, Amardin son of Shakoor, Shamsuddin son of Mohammad, Samsuddin son of Manti and one more relation of theirs way-laid him. They were armed with various deadly weapons, details of which were also mentioned in the report. Seeing them he fled for a safety but he was over-powered near the house of Mansukh Meena Basheer gave a Dharia blow on his head. Mohammad also gave a Gandasi blow on his Head. Others inflicted injuries on his both legs, hands and shoulder. They also inflicted injuries on his person with lathies. He was saved by his brother Akbar, mother Keshar, wife Mariyam and sister Rajjo who too were beaten. He became unconscious and was taken to the hospital where the police recorded his statement which is basis of this first information report. He received the following injuries on his person: 1 . Incised wound 1" x 1/4" x bone deep on right temporal region. 2. Abrasion 1" x 1/4" on the posterior surface of the left hand. 3. Abrasion 4" x 1" on the posterior madial surface. 4. Bruise 4" x 1" on the anterio lateral surface. 5. Bruise 11/2" x 1" on the lateral surface. 6. Abrasion with swelling 4" x 1" on the lateral left thigh, surface of the left elbow. 7. 6 bruises of various sizes on the later surface. 8. Bruise 3" x 11/2" on the left side of back. 9. Bruise 3" x 4" on the left arm. 10. Bruise 8" x 11/2" on the back. 11. Bruise 1" x 1" on the upper surface of the left shoulder. 12. Bruise 41/2" x 1" on the lower right side of back. 3. 8. Bruise 3" x 11/2" on the left side of back. 9. Bruise 3" x 4" on the left arm. 10. Bruise 8" x 11/2" on the back. 11. Bruise 1" x 1" on the upper surface of the left shoulder. 12. Bruise 41/2" x 1" on the lower right side of back. 3. The police after investigation of the case submitted a charge-sheet for under Sections 147, 148, 149, 323, 341, 324, 326 and 307 IPC against the accused. The learned Magistrate committed the accused to the court of Sessions vide order, dated May 18, 1987. The learned Sessions Judge, Sawaimadhopur by impugned order came to the conclusion that having read the statements of the witnesses recorded under Section 161 Criminal Procedure Code coupled with the injury reports and the fact that Doctor has not stated that the injuries were fatal or dangerous to life. This is not a case for framing charge under Section 307 Indian Penal Code, he, therefore, did not frame the charge under Section 307 Indian Penal Code and remanded the case to the court of Addl. Chief Judicial Magistrate which order has been challenged in this petition. 4. Learned counsel for the petitioner submits that the learned Sessions Judge has transgressed jurisdiction vested in him and had appreciated the statements of the witnesses as if he was finally disposing of the case. He was only expected to look into the prima facie case for framing charge. It is submitted that there is over-whelming evidence to suggest that the injuries were inflicted with an intention to cause death and the witnesses have also categorically stated that the injuries were inflicted with intention to cause death. It is submitted that the learned Sessions Judge has misread the evidence and his observation that even Akbar does not say that injuries were caused with an intention to cause death, is erroneous. It is submitted that this witnesses has stated categorically that Bazeer was surrounded and the injuries were inflicted by lathies Gandasies and sword with a common intention to cause death and has further stated that the accused had left the place considering that he and Bazeer both have died as a result of the injuries. It is submitted that this witnesses has stated categorically that Bazeer was surrounded and the injuries were inflicted by lathies Gandasies and sword with a common intention to cause death and has further stated that the accused had left the place considering that he and Bazeer both have died as a result of the injuries. It is submitted that when deadly weapons have been used on vital parts of the body and there are corresponding injuries also resulting into the fracture:, the learned Sessions Judge should not have sent the case to the Court of Addl. Chief Judicial Magistrate. Learned counsel in this respect has relied on Gharsi Ram v. State of Rajasthan, 1983 RLR 836 , Jagpal & Ors. v. The State of Rajasthan, 1983 (6) R.Cr.C. 400 , State of Andhra Pradesh v. Rayawarapu Punneys and Anr. (1976) 4 SCC 382 . 5. Learned counsel for the accused submits that there is no warrant for interference in a petition filed by the complainant injured because firstly the State has not come to this court challenging the order and secondly there is no evidence on record to suggest then there was either intention to kill or that the injuries inflicted were such that the accused would have been guilty of murder had the injured died. It is submitted that the evidence in the case clearly discloses that it was a sudden fight where unintended injuries have been caused and further that there is no infirmity in the order of learned Sessions Judge, Sawaimadhopur. Learned counsed relied on Badan Singh & others v. The State of Rajasthan 1981 Cr.L.R. (Raj.) 347 and Jagga @Jaggaram v. The State of Rajasthan, 1981 Cr. L.R. (Raj.) 632. 6. I have heard learned counsel for the parties and perused the record. 7. Regarding the objection raised by the accused that the petition filed by the complainant should not be entertained suffice it to say that Bazeer had filed it complaint in the court on 21.3.1987 about the incident which is on record and had sustained injuries on his person. I have heard learned counsel for the parties and perused the record. 7. Regarding the objection raised by the accused that the petition filed by the complainant should not be entertained suffice it to say that Bazeer had filed it complaint in the court on 21.3.1987 about the incident which is on record and had sustained injuries on his person. The complainant petitioner, Akbar has also sustained several injuries and in that eventuality, in my opinion, he has a right to approach this court against the impugned order, otherwise also if this court has power to take suo motu notice of the illegalities, if any in the order of the lower court and if this is brought to the notice of the court by way of petition by the complainant unless it is borne out that it is moved for wreacking personal vengeance till then this court can entertain the petition, hence the objection is not sustainable. 8. Regarding the case law submitted by the learned counsel for the parties in Gharsi Ram v. State of Raj . (Supra) this court on consideration of various cases decided by their Lordships of the Supreme Court considered as to when the accused should be discharged or a charge should be framed against him, the court held as under:- "The law is, thus, well settled as to when an accused is to be discharged and when a charge is to be framed against him. The truth, veracity and effect of the evidence is not to be judged at the initial stage of trial, while framing the charge. The standard of test, proof and judgment regarding guilt or innocence of the accused should not be applied at the stage of framing the charge. It is the broad features and probabilities of the case, which alone are taken into consideration to see whether a charge should or should not be framed. If the material collected by the investigating agency discloses the commission of a particular a charge for that is to be framed. Even a grave suspicion against the accused is sufficient to frame a charge against him. Whether the case will ultimately result in conviction or acquittal of the accused is not the matter to be taken into consideration at this stage. Even a grave suspicion against the accused is sufficient to frame a charge against him. Whether the case will ultimately result in conviction or acquittal of the accused is not the matter to be taken into consideration at this stage. The eye should not be on the ultimate result of conviction or acquittal but to see whether the accused should or should not be called to face trial. The evidence collected by police is not to be examined microscopically to pick up holes in the prosecution case." In State of Andhra Pradesh v. Rayavarapu Punnayya & Anr. (supra) their Lordships of the Supreme Court considered the scope of opinion of a Doctor and held that court should look into the report and arrive at its conclusion on the basis of the datas and should not only rely on what the Doctor has stated. It has been held that:- "It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement was qualified by the learned author by saying that compound fractures involving haemorrahge, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial haemorrhage. In the face of this finding, Modi's opinion far from advancing the contention of the defence, discounts it." 9. In Jagmal & Ors. v. The State of Rajasthan (supra) this court held that the victim has received multiple injuries in his parieto-occipital region and skull bones got fractured due to infliction of the blow, then the nature of the injuries, the part of the body where the injuries were inflicted and the weapons used is prima facie sufficient to make out an under S. 307 IPC. On the other hand in Badan Singh & ors. v. The State of Rajasthan (supra) this court held that intention to commit murder cannot be, gathered from number and nature of the injuries. This was however, a case not at the stage of charge but while appreciating the evidence in appeal. In the same volume at page 632 the court laid distinction between the ingredients of under Sections 307 and 326 IPC. This was however, a case not at the stage of charge but while appreciating the evidence in appeal. In the same volume at page 632 the court laid distinction between the ingredients of under Sections 307 and 326 IPC. The court held that when there is no direct evidence about the intention it can be inferred from the type of weapon used, nature of the injuries and the circumstances of the case. This again was held while deciding an appeal against the conviction. Having perused the case law cited above and other relevant law on the subject I am of the opinion that the question of framing charge under a particular section depends on the facts and circumstances of that particular case. In broad aspect the court has to consider as to whether there is sufficient material collected by the investigating agency which discloses prima Facie case to frame a charge. It is not a consideration before the court as to whether the case would result in conviction or acquittal and therefore, neither it is obligatory nor expected of the court to consider in details and weigh the evidence in sensitive balance the evidence collected by investigation on record. But in the language of their Lordships of the Supreme Court, even if there is strong suspicion founded upon the material available to form a presumptive opinion as to existence of ingredients constitute the alleged which may justify framing of the charge against the accused in respect of commission of that . It is in this back-ground that the facts of this case have to be looked into. In the instant case the complainant-petitioner, Akbar, had sustained 12 injuries on his person of which one of the injuries is on the right temporal region with clean margin averted, which has been caused by sharp weapon and resulted in fracture of the skull bone. Besides this, injury No. 7 is multiple bruise six in number. Therefore, there are about 18 injuries on the person of Akbar. 10. The oral evidence of the witnesses also is to the effect that accused persons were armed with deadly weapons and inflicted injuries with an intention to cause death. Besides this, injury No. 7 is multiple bruise six in number. Therefore, there are about 18 injuries on the person of Akbar. 10. The oral evidence of the witnesses also is to the effect that accused persons were armed with deadly weapons and inflicted injuries with an intention to cause death. In such a case there would be a very thin line of demarcation as to whether the would be one under S. 307 or S. 326 IPC if proved, suffice it to say that may be that an alternative charge can be framed, but to say that S. 307 IPC is totally ousted is going beyond scope in the circumstances of this case, and in my opinion the learned Sessions Judge was not right in holding that prima facie case for framing the charge under S. 307 IPC is not made out in the circumstances of the case. I may make it clear that any observation made in this order is not taken to a final opinion into the matter as that would depend on the evidence which comes at trial. It is only that there is strong suspicion for which charge under S. 307 IPC be framed in the instant case. 11. Consequently the petition is allowed. The order of the learned Sessions Judge, dated 18.12.87 is set aside and he is directed to frame the charge in light of discussions made above and proceed with the trial.Petition allowed. *******