JUDGMENT 1. - I am of the opinion that this revision petition should be disposed of the stage of admission 2. This revision petition arises out of the order dated 10th March, 1989, of the learned Munsiff and Judicial Magistrate, Hindaun City, in F.l R. No. 69 of 1986 in Criminal Case No. 94 of 1938, taking cognizance of the offence against the accused petitioners in a case in which police after investigation had filed a final report. 3. The revision petition arises on the following circumstances:- 4. First Information Report No. 69/1986, under S. 397 IPC had been registered against the Ramkhilari, who is the informant in this case. It appears that Ramkhilari and few other remained in judicial custody for about 11 years and they had been released on bail. Complainant Ramkhilari, filed a report on 3rd June, 1986, i.e. next date of his release on bail, in the police station, in which it has been stated that as a result of previous enemity on 3 6.1986, in the afternoon all the accused persons, after forming unlawful assembly with the common object in kill him and the members of his family came to his house and encircled the house. Mahendra, his wife was given a blow by sharp edged weapon by Jagan and other accused persons gave lathi blows. Lathi blows were also given to his sister namely Harpati. In the said report, it was also stated by Ramkhilari, that a pharsi blows was given by Jagan to his brother Mukesh, as a result of which he died on the spot. Ramkhilari, has also stated in the said report that his brother had gone to Toda Bhim to attend a marriage caremony. On hearing hues Bharosi, Nihal Singh and Vishram, came for the rescue. 5. A case was registered, the investigation was set in motion and the Medical Officer, Government Dispensary, Mahua, suspected some foul play in so far as the death of Munesh aged about 4 to 5 years is concerned, and therefore, he refused to conduct the post-mortem examination and instead he advised that the post-mortem examination should be conducted by a Medical Board. A Medical Board, was constituted in the General Hospital, Karauli, and the Medical Board, examined the deceased and found the following injuries on his person:- (1) Oblique lacerated wound 3 c. m. 1/2 cm. A Medical Board, was constituted in the General Hospital, Karauli, and the Medical Board, examined the deceased and found the following injuries on his person:- (1) Oblique lacerated wound 3 c. m. 1/2 cm. upto bone deep on left parietals paet of scalp with no clotting of blood around the wound No gaping of wound. No clotting of blood over the hairs of scalp around the wound with irregular margins. No clotted cover over the surrounding area of wound. (2) Oblique lacerated wound 1 c. m. x # c. m. upto bond deep of right parietal part of scalp with no dotting of blood around the wound and surrounding areas. No gapping of the wound. No clotting of blood over the hairs of scalp around the sound with irregular margin. 6. All injuries are post-mortem in nature and caused by blunt object. 7. The Medical Board, has opined that the cause of death is hypovaclumic and shock due to dehydration. The bead injuries are post-mortem in nature (after death). The Medical Board, was also of the opinion that the deceased has died as a result of post-mortem injuries caused by blunt weapon. 8. The injuries of Smt. Mahendra wife of Ramkhilari, and Mst. Harpati, his sister were also examined on 3-t--1986. As many as 10 injuries were found on the person of Mrs. Mahendra. All injuries were caused by blunt weapon. All the injuries are simple in nature. X-ray, was advised. One of the injury according to Mr. Tibrewal, learned counsel for the petitioners i.e. injury No. 8, was found to be grievous. Mst Harpati, received as many as two injuries and all are simple in nature and caused by blunt weapon. X-ray was also advised by the Doctor, for one of the injury of Smt. Harpati, which was injury No. 1, on the fore-arm. 9. The police investigated the case and submitted the negative report under S. 169 Cr. P.C. which in this country is know as a final report. Learned Magistrate, considered the final report and under the impugned order dated 10th March, 1988, took the cognizance of the offence under Sections 147, 148, 323, 326, 325,307, 302 read with S. 149 IPC against all the accused persons. 10. I have heard the rival contentions made by the learned counsel for the petitioners and the learned Public Prosecutor, who is assisted by Mr. Nazw. 10. I have heard the rival contentions made by the learned counsel for the petitioners and the learned Public Prosecutor, who is assisted by Mr. Nazw. learned counsel for the complainant, who is representing Ramkhilari, the complainant who has been arrayed as a party in this revision petition. According to Mr. Tibrewal, the police after investigation had reached to a certain conclusion and without dealing with the reasoning the learned Magistrate, should not have taken the cognizance against the petitioners. His contention is that at any rate from the material placed before the learned Magistrate, alongwith final report the case under Sections 302/149, prima-facie was not made out and even a case under S. 326, 307 IPC was not made out. Mr. Nazvi, learned counsel for the complainant has contended that the learned Magistrate, could have taken the cognizance of the offence including an offence under S 302/149 IPC, when there was direct testimony notwithstanding that the medical evidence did not support it. He contends that.it was not the stage where the learned Magistrate, was required to analyse the evidence and then to have come to a conclusion as to whether the cognizance in the matter should not be taken or not. It may be stated that the learned Magistrate, has not correctly appreciated the evidence on record so far as the offence under Section 302/149 IPC is concerned, the said offence relates to the death of Mukesh, a boy aged about 4 to 5 years. There is and was material on record and the learned Magistrate, has not cared even to consider that Mukesh, had been admitted as an indoor patient with CPC No. 9570 dated 3.6.1986 at 8.30 a.m. at Government Dispensary, Mahua, and according to the report it was a case of vomitings, pain abdomen and diarrhea. The medicines were prescribed, including injunction Baralgan. The Medical Officer, Government Dispensary Mahua, referred the patient to General Hospital, Bharatpur/Jaipur, for further treatment at 3.30 p m From the perusal of the report, it appears that Mukesh remained as an indoor patient in Government Dispensary, Mahua. from 8.3i a m. to 2.30 a.m. But it does not appear that as advised by the Doctor, Government Dispensary, Mahua, Mukesh, was taken either to General Hospital, Bharatpur, or to S.M S. Hospital, Jaipur. The Incharge Doctor. from 8.3i a m. to 2.30 a.m. But it does not appear that as advised by the Doctor, Government Dispensary, Mahua, Mukesh, was taken either to General Hospital, Bharatpur, or to S.M S. Hospital, Jaipur. The Incharge Doctor. Government Dipensary, Mahua, where the Mukesh was, an indoor patient has suspected some foul play and refused to conduct the post-mortem which was conducted by the Medical Board at General Hospital, Karauli, and the Medical Board, is of definite opinion that the injuries on the head were post-mortem injuries and in my opinion, the Medical Board, reached to the conclusion because on internal examination, though the fracture of left and right parietal bones were found but there was no clotted blood around the fracture region and inside the brain matter there was no intra cerebral and subdural haemorrhage. If the injuries would have been anti-mortem in nature then there should have been clotted blood as well as haemorrhage or at least one of them Other symptoms which should have been present in case death would have been anti-mortem were not present. Eyes were shruken, dry and there was de-hydration also and these factor contribute for coming to the conclusion that the injuries were post-mortem. Therefore, on this clinching medical evidence, when Mukesh had been admitted as in indoor patient he was advised to be taken to General Hospital, Bhaiatpur, or at S.M.S. Hospital, Jaipur, because his condition was serious. In my opinion, it was not a case where it could be said that despite there being occular evidence the learned Magistrate, should have refused to accept the final report so far an offence under S 302/149 IPC is concerned It may also be stated that as per Ramkhilari, complainant, the single blow by dharia, a sharp edged weapon had been given on the head of Mukesh, by the accused petitioner Jagan, and he and other witnesses do not state that any other blow was given by any other accused petitioners. Even the Medical Board, found that there were two injuries on his person and both were caused by blunt weapon. 11. I am, therefore, of the opinion, that the learned Magistrate, could not have and should not have taken the cognizance against the accused petitioners for the offence under S. 302/149 IPC for the alleged murder of Mukesh. 12. Even the Medical Board, found that there were two injuries on his person and both were caused by blunt weapon. 11. I am, therefore, of the opinion, that the learned Magistrate, could not have and should not have taken the cognizance against the accused petitioners for the offence under S. 302/149 IPC for the alleged murder of Mukesh. 12. It may be stated that some incident might have taken-pUce about which no final opinion can be expressed and should be expressed and in that incident Smt. Mahendra, and Mst. Harpati, also received injuries but the injuries received by them were caused by blunt weapon and not by the sharp edged weapon. 13. I, therefore, partly allow this revision petition and set-aside the order of the learned Magistrate, so far as cognizance of the offence under S. 203/149 IPC is concerned. There is also no material so far as for the offence under S. 326 IPC is concerned. So far as other offence are concerned., including the offence under S. 307 IPC as and when the case is committed to the court of Sessions, it will be for the Sessions Court to apply its mind on the material available on record and to decide as to whether the case falls under clause (a) and (b) of sub-section (1) of S. 228 of the Cr. P.C. and to pass an order according to law. *******