R. C. LAHOTI, J. ( 1 ) POLICE Station, Civil Lines, Morena, filed a challan against the accused/ non-applicants complaining of the commission of the offences punishable u/ss. 323, 324,307/149,147 and 148 of the Indian Penal Code. The case was committed to the Court of Session, which on hearing the parties on question of framing the charges, held, that a case triable by the Court of Session was not made out and directed the case to be transferred for trial to the Chief Judicial Magistrate, Morena, u/s. 228 (1) (a) of the Code of Criminal Procedure. The State has come up in revision. ( 2 ) ACCORDING to the FIR, the parties had frequent disputes between them, though over petty matters. At the time of incident, the six accused non-applicants opened a simultaneous attack, armed with different weapons and injuring at least six on the side of the complainant. Of these, Mahesh s / o Radhakishan sustained four injuries, of which one is an incised wound on right parietal region. The injury was bleeding at the time of medico-legal examination and X-ray was advised for determining the nature of the injury. On X-ray, fracture of the skull bone was detected. The authorship of this injury is attributed in the FIR to the accused Prakash. ( 3 ) SIMILARLY Bishambhar sustained five injuries including those above the left eye brow, on the pinna on left side, over nose-bridge with bleeding from nostrils, and on the left check. As to the bleeding injury over the nose-bridge, X-ray was advised and he too was found to have sustained a fracture over left temproparietal region. Bishambhardayal was hospitalised. The condition, as reported by the P. S. O. (Neuro-surgery) of G. B. Medical College, Gwalior, was that Bishambhardayal was unable to speak and the injury sustained by him could be dangerous to life. ( 4 ) THE question to be considered is whether or not, looking to the nature of injuries sustained by Mahesh and Bishambhardayal, a charge u/s. 307 I. P. C. should have been framed and hence whether the Session Court was justified in transferring the case to C. J. M. Morena. ( 5 ) APPLICABILITY of S. 308, IPC is attracted when the accused has done an act with the intention or knowledge and under such circumstances, as are referred to therein. ( 5 ) APPLICABILITY of S. 308, IPC is attracted when the accused has done an act with the intention or knowledge and under such circumstances, as are referred to therein. To justify the conviction u. S. 307 it is not essential that a bodily injury capable of causing death must have been inflicted, though the nature of injury actually caused does provide valuable assistance to the Court in arriving at finding as to the intention of the accused. The presence of the requisite intention coupled with an overt act, in execution thereof, suffices. A variety of facts and circumstances have to be taken into consideration by the Court to determine whether the accused intended to cause death or knew that his act was going to canse death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive, the nature and size of the injuries actually caused, the parts of the victim's body chosen by the accused while causing the injury, severity of the blow/blows, are such factors which the Court has to take into consideration while determining the guilt of the accused, of course at the end of the trial, when both the parties have had full opportunity of having their respective say in the matter. If the Court finds material enabling it to infer the requisite intention of the accused, it would be for him to explain why the intention could not be attributed to him. At this stage, the Court may find that an injury inflicted by the accused may have endangered the life but was not necessarily fatal and the Court may be inclined to give the benefit of doubt to the accused, altering the conviction to one u/s. 326 from that u/s. 307, IPC. Left in doubt about the intention or knowledge of the accused, the Court may extend the benefit thereof to the accused and may hold him guilty u/s. 308 and not u/s. 307. But as already stated, that judicial exercise has to be undertaken when the Court is called upon to record the ultimate finding on the guilt of the accused. S. 228 of the Code of Criminal Procedure, which provides for framing of charge by a Court of Session, speaks of 'the ground for presuming, if the accused has committed an offence triable by a Court of Session'. S. 228 of the Code of Criminal Procedure, which provides for framing of charge by a Court of Session, speaks of 'the ground for presuming, if the accused has committed an offence triable by a Court of Session'. ( 6 ) IN State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 : (1977 Cri LJ 1606) their Lordships of the Supreme Court laid down the law as under at page 2021 of AIR : - "reading Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter u/s. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of Criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of Criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pen (sic) as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order u/s. 227 or 228, then in such a situation ordinarily and generally the order which will have to be made will be one u/s. 228 and not under S. 227. " ( 7 ) AGAIN in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar, AIR 1980 SC 52 : (1979 Cri LJ 1390) their Lordships observed at page 55 of AIR :"at the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the Investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of S. 227 or 228. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of S. 227 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. "( 8 ) IN Union of India v. Prafulla Kumar, AIR 1979 SC 366 : (1979 Cri LJ 154), their Lordships realising the difficulty of laying down any rule of universal application, cautioning the test of determining a prima facie case to depend upon the facts of each case, observed : -"by and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. "their Lordships realised that S. 227 of the Code has placed faith in the seniority and experience of the Session Court who would not act simply as a post office or a mouthpiece of the prosecution, but at the same time hastened to add :"this however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. " ( 9 ) THE distinction is this : while recording the ultimate findings there is every presumption in favour of the innocence of the accused in the matter of determining his guilt and even in the matter of determining his intention or knowledge affecting the gravity of the crime, but at the stage of framing the charge, even a strong suspicion of course founded upon material, and a presumptive opinion, would enable the Court in framing a charge against the accused. ( 10 ) JUDGED by the standards laid down hereinabove, deduced from the authorities of the Apex Court it follows that the grievous injuries sustained by Mahesh and Bishamdhardayal should have been made subject matter of charges under Section 307, I. P. C. , simply against their authors, and with the aid of Section 34 and/or 149, I. P. C. against the co-accused persons. The case would then have remained triable exclusively by the Court of Session. ( 11 ) THE revision is allowed. The impugned order dated 15-4-1988 of the Session Court, to the extent to which it transfers the case for trial to the Court of Chief Judicial Magistrate, is set aside. The case shall go back to the Court of Session, Morena, who shall proceed to frame the charges in accordance with the observations made hereinabove and thereafter proceed with the trial in accordance with law. ( 12 ) THE accused/non-applicants are directed through their counsel to remain present before the Court of Session on 3-4-89. Revision allowed. .