ORAL JUDGMENT Rule. Service of rule is waived by Ld. APP Mr. Pandya and Mr. AB Munshi for the respondent State and original complainant. 2. The petitioner, who is original accused no. 4 in Sessions Case No. 143/2008 pending in the Court of Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, preferred this revision application under sec. 397 read with sec. 401 of the Code of Criminal Procedure [for short 'Cr. P.C'] challenging the legality and validity of the impugned order dated 4/3/2009 whereby his request to discharge him from the offences punishable under sections 307 and 120B of the IPC and section 135 of the Bombay Police Act [BP Act] came to be rejected. 3. The Sessions Case No. 143/2008 is pending against five accused persons. By preferring an application on 11/12/2008, all the five accused persons requested for their discharge as contemplated under sec. 227 of the Cr. P.C. The application came to be dismissed by the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar imposing special costs of Rs.5,000/=. However, the said order is challenged by the original accused no. 4 by preferring this revision application. 4. As per the prosecution case, the incident occurred on 12/1/2005 at about 12.45 in the noon in the area called Motipura near one Dulara Complex in the city of Himatnagar. It is alleged that at the relevant time when the first informant Maganbhai Parkhabhai Barot was passing on his motor-cycle, two persons who were standing near one Yamaha motor-cycle, came near him and inflicted knife blow on left back shoulder and when he tried to resist more blows, he sustained injuries in his right wrist and left hand little finger. It is alleged that cover of one knife remained in his hand. He shouted for help and his son Prafulbhai Maganbhai and one Prashantbhai Padhiyar, who were passing on their bike, came near him and others also gathered. Thereupon, both the assailants made their escape good on said Yamaha motor-cycle towards Idar. It is further alleged that out of the two assailants, one had covered his face by handkerchief and another had worn helmet. It is further alleged that both the assailants were of the age group of 22 to 24 years and they had worn colouring jacket and jeans and pants. It is further alleged that out of the two assailants, one had covered his face by handkerchief and another had worn helmet. It is further alleged that both the assailants were of the age group of 22 to 24 years and they had worn colouring jacket and jeans and pants. Maganbhai Parkhabhai Barot lodged FIR in connection with this incident in Himatnagar Town Police Station and the offences which came to be registered were punishable under section 324 read with section 114 of the IPC and section 135 of the BP Act. In the FIR itself, it is further stated that the first informant Maganbhai Barot had some dispute about the land with the present petitioner and his brothers and some representation was made about the dispute before the Collector, Sabarkantha and in pursuance of the said representation, one Talati-cum-Mantri had visited the place before about 2 days from the date of incident and panchnama came to be drawn by the said Talati-cum-Mantri and the construction was stayed. It is alleged in the FIR that due to such dispute, the present petitioner, who is original accused no. 4 and his persons as per some planning, caused the assault. 4.1. Investigating Officer [IO] commenced investigation and recorded statements of certain witnesses. It transpires that on 10/3/2005 IO prayed for ' A Summary and vide order dated 12/4/2005 the concerned Ld. Chief Judicial Magistrate granted A Summary permitting the IO to continue the investigation. 4.2. It further transpires that on 6/2/2007 the original accused nos. 1, 2 and 3, namely Mohmed Anvar Pathan, Mohmed Hanif Shaikh and Nasir alias Najjo Sikandarbhai Shaikh were found seated on Yamaha motorcycle bearing registration No. GCC 1525 and they were nabbed by the Assistant Commissioner of Police, Crime Branch, Ahmedabad City under section 41 (1)(a) of the Cr. P.C and during their interrogation, it transacted that they had some involvement in the offence for which the first informant Maganbhai Parkhabhai Barot had lodged the FIR. Therefore, those 3 accused persons were sent to Himatnagar Town Police Station. It transpires that thereafter statements of other witnesses were recorded as well as further statements of some of the witnesses were recorded. The motorcycle, clothes of the first informant Maganbhai and the accused persons came to be seized. Therefore, those 3 accused persons were sent to Himatnagar Town Police Station. It transpires that thereafter statements of other witnesses were recorded as well as further statements of some of the witnesses were recorded. The motorcycle, clothes of the first informant Maganbhai and the accused persons came to be seized. Certain other material like diary, etc., came to be seized by drawing necessary panchnamas and ultimately charge-sheet came to be filed in the Court of the Ld. Chief Judicial Magistrate, Sabarkantha at Himatnagar against in-all 5 accused persons, wherein the petitioner was original accused no. 4, for the offences punishable under sections 307, 120B of the IPC and section 135 of the BP Act. Since the offence punishable under section 307 of the IPC was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions, Sabarkantha at Himatnagar. 5. On the first day of appearance before the Sessions Court on 11/12/2008, all the 5 accused persons preferred an application under sec. 227 of the Cr. P.C requesting their discharge. The Ld. 2nd Addl. Sessions Judge, after considering the material available with him along with the charge-sheet, rejected the said application with special costs of Rs.5,000/=. 6. Ld. Senior Counsel Mr. Lakhani for Ld. Advocate Mr. Dagli for the petitioner submitted that the case of the prosecution even at investigation stage, is full of contradictions, material improvements and omissions. It is submitted that initially as per the FIR, which was a case of simple hurt, came to be treated as a conspiracy to kill the first informant Maganbhai Barot. It is further submitted that considering the FIR as well as two further statements of the first informant Maganbhai Barot recorded on 17/1/2005 and 8/2/2007 respectively, it clearly transpires that material improvement, which suits to the case of the prosecution, has been made. In the FIR, there was no case of the first informant Maganbhai that the petitioner paid some ransom amount to original accused no. 1 Mohmed Anvar Pathan to kill the first informant Maganbhai Barot and that the original accused no. 1 Mohmed Anvar Pathan distributed said amount to original accused no. 2 Mohmed Hanif and original accused no. 3 Nasir alias Najjo and through original accused nos. 2 and 3 the first informant Maganbhai Barot was assaulted. 6.1. 1 Mohmed Anvar Pathan to kill the first informant Maganbhai Barot and that the original accused no. 1 Mohmed Anvar Pathan distributed said amount to original accused no. 2 Mohmed Hanif and original accused no. 3 Nasir alias Najjo and through original accused nos. 2 and 3 the first informant Maganbhai Barot was assaulted. 6.1. It is further submitted that during the course of investigation on 12/1/2005 itself the police recorded statement of son of the first informant, named Prafulbhai Maganbhai and one witness Prashantkumar Jagdishbhai. They, in their statements, described the incident in the same line as it is described by the first informant Maganbhai in his FIR, but on 8/2/2007, their further statements came to be recorded and in their further statements, they alleged about some ransom amount paid by the petitioner accused no. 4 to accused nos. 1, 2 and 3 for killing the first informant Maganbhai and in furtherance of said conspiracy, the first informant Maganbhai came to be assaulted. That there is nothing in their statements about the source of such information. That thus, it can safely be said that after the A Summary was granted, the IO with the help of the first informant Maganbhai, predetermined the story about conspiracy and payment of ransom. 6.2. It is further submitted that even the arrest of original accused nos. 1, 2 and 3 creates reasonable doubt. They were allegedly found with Yamaha motorcycle bearing registration No. GCC 1525 on 6/2/2007, but considering the statement of witness Samsuddin Gafurbhai, the co-accused person had purchased the said motorcycle from him on 11/1/2005, but they resold said motorcycle to witness Samsuddin Gafurbhai on 17/1/2005 and thereafter motorcycle came to be sold to one Mohmed Nawaz and thereafter to one Anvarbhai Luhar. Therefore, on 6/2/2007 when the co-accused came to be arrested, allegedly found with the same Yamaha motorcycle, creates reasonable doubt about the possession of the motorcycle with the co-accused persons. It is submitted that thus such important link is missing during the course of the investigation and the possession of the motorcycle of the co-accused becomes seriously doubtful at this stage. 6.3. Ld. Sr. Counsel Mr. It is submitted that thus such important link is missing during the course of the investigation and the possession of the motorcycle of the co-accused becomes seriously doubtful at this stage. 6.3. Ld. Sr. Counsel Mr. Lakhani took me through the statements of Vajirbhai Yakubbhai, Sabbirbhai Habibbhai, Anvar Husen Shaikh and Akbarali Umravali and submitted that the IO collected stray evidence of one hotel owner and his Manager as well as owner of one motorcycle garage and tried to create a case that after inflicting blows on the first informant, the accused nos. 2 and 3 on their motorcycle left the place and while coming to Ahmedabad, because of some mechanical defect, the motorcycle stopped and, therefore, it was required to be kept in some garage and both the co-accused visited the place of their acquaintance, namely the house of witness Akbarali Saiyed and witness Safiyana and from there, they came to Ahmedabad and from Ahmedabad the accused no. 3 came with one mechanic Anvar Hussein to the place where the motorcycle was parked. It is submitted that considering the evidence of all these witnesses, no-where it prima-facie transpires that the assailants who visited those places were the accused nos. 2 and 3. During the course of investigation, Test Identification Parade [T I Parade] was arranged, but to identify the accused nos. 2 and 3 in T I Parade, only the first informant Maganbhai Barot was called and none of the witnesses, who are approximately 8 in number, who had allegedly occasion to see the accused nos. 2 and 3, were called in the T I Parade to identify the accused nos. 2 and 3. 6.4. It is further submitted that the IO allegedly recovered one diary wherein, as against the name of Kanu , some mobile numbers are mentioned. No investigation came to be made to ascertain the fact as to whether the name Kanu referred in the diary is the petitioner himself or not and that no investigation is made to show that the mobile numbers shown in the diary are the mobile numbers of the mobiles of the petitioner and about any talk took place through the said mobiles. 6.5. Ld. Sr. Counsel Mr. 6.5. Ld. Sr. Counsel Mr. Lakhani submitted that entire evidence collected by the IO at investigation stage is considered as it is, nowhere, so far as the petitioner is concerned, his involvement in the incident can be said to have been prima-facie established. In other words, it is stated that no prima-facie case is made out so far as the petitioner original accused no. 4 is concerned. 6.6. Relying upon the medical evidence, Mr. Lakhani submitted that the injury certificate issued by the concerned Medical Officer would reveal simple and superficial injuries on right wrist joint and left little finger of the first informant Maganbhai. In the FIR the first informant Maganbhai alleged that he received injury on his left side back shoulder, but his statement in the FIR does not get any corroboration, if the injury certificate is considered. During the course of investigation, the clothes of the first informant Maganbhai came to be recovered by drawing panchnama and it is alleged that there were some cut marks on the left back-side part of sweater, shirt and Baniyan, but even the contents of the panchnama do not get support from the medical evidence. Even the clothes of accused nos. 2 and 3 came to be recovered by drawing panchnama, but the description about the clothes of accused nos. 2 and 3 given by the witnesses in their statements does not tally with the description of the clothes alleged to have been recovered. The cover of the knife alleged to have remained in the hand of the first informant Maganbhai, is not attempted to be ascertained as to whether any of the knives seized, fits in the cover or not. It is further submitted that only after the statement of Rajendrasinh came to be recorded on 10/2/2007, a new story came on record during the course of investigation that the accused no. 3 Nasir alias Najjo has some defect in one eye. None of the witnesses stated about such important aspect of description of the original accused no. 3 in their statements. 6.7. Therefore, it is submitted that taking into consideration the entire evidence collected by the police during the course of investigation, no prima-facie case is made out against the petitioner original accused no. 4. None of the witnesses stated about such important aspect of description of the original accused no. 3 in their statements. 6.7. Therefore, it is submitted that taking into consideration the entire evidence collected by the police during the course of investigation, no prima-facie case is made out against the petitioner original accused no. 4. It is submitted that perusing the impugned order passed by the trial Court, it clearly transpires that the trial Court weighed and evaluated the evidence as if the final judgment is required to be pronounced. The trial Court in the order itself, has expressly recorded that this Court has totally gone into the depth and has found out the truth which is in the evidence. It is further submitted that some unwarranted remarks came to be passed in the impugned order by the trial Court against learned advocate representing the accused persons alleging that the learned advocate was playing delaying tactics. Those remarks are required to be expunged. 6.8. Alternatively, Mr. Lakhani submitted that at this juncture, if the Court comes to the conclusion that the petitioner is not entitled to get discharge in connection with all the offences alleged against him by the prosecution, then so far as the accusation for the commission of offence punishable under section 307 of the IPC is concerned, it cannot sustain as the medical evidence clearly reveals that this is a case of simple injury punishable under section 324 of the IPC. Therefore, it is alternatively submitted that the petitioner deserves discharge so far as the offence punishable under section 307 of the IPC is concerned and the case may proceed further against himself and rest of the accused persons for the offence punishable under section 324 read with sec. 114 of the IPC. 7. Ld. APP Mr. Pandya for the respondent State opposed this revision application and submitted that at this stage the Court has only to see as to whether there is a ground for presuming that the accused had committed an offence or not. It is submitted that under section 227 of the Cr. P.C the accused is entitled to get order of discharge provided if it transpires that there is no sufficient ground for proceeding against the accused. It is submitted that under section 227 of the Cr. P.C the accused is entitled to get order of discharge provided if it transpires that there is no sufficient ground for proceeding against the accused. It is submitted that at this stage the prosecution has collected sufficient material during the course of investigation to raise the presumption that the accused has committed the offence. Ld. APP Mr. Pandya submitted that in the FIR itself the first informant Maganbhai has raised some doubt about the role of the present petitioner original accused no. 4. On that line, the police investigation continued and ultimately it came to be revealed that a conspiracy was hatched for killing the first informant Maganbhai Barot. In the FIR the first informant Maganbhai attributed motive only against the petitioner original accused no. 4. So far as the original accused nos. 2 and 3, who according to the prosecution case, played their role in actual commission of the offence, are concerned, there is nothing that the accused nos. 2 and 3 had any motive to commit any offence qua the first informant. The relevant statements which came to be recorded by the police and required material seized by the police like diary, clothes of the first informant, etc., would reveal at this stage about the conspiracy regarding murdering the first informant. Ld. APP Mr. Pandya, therefore, submitted that at this stage, merely because the medical evidence reveals injuries on wrist and little finger of the first informant, it cannot be presumed that the offence of simple hurt is made out. As a matter of fact, as per the prosecution case, the first informant Maganbhai Barot was assaulted upon by the accused nos. 2 and 3 to see that he is murdered, but he resisted the assault and shouted for help and his son and other persons gathered and, therefore, the accused nos. 2 and 3 could not materialize their intention and escaped from the site. Therefore, it is submitted that keeping all these aspects in background, the charge-sheet filed for the commission of offences punishable under sections 307 and 120B of the IPC cannot be said to be illegal or irregular exercise of powers of the IO. 2 and 3 could not materialize their intention and escaped from the site. Therefore, it is submitted that keeping all these aspects in background, the charge-sheet filed for the commission of offences punishable under sections 307 and 120B of the IPC cannot be said to be illegal or irregular exercise of powers of the IO. Therefore, the trial Court rightly came to the conclusion that this is a fit case wherein the charge for the commission of offences punishable under sections 307 and 120B of the IPC should be framed. Therefore, it is submitted that the revision application may be rejected. 8. Ld. Advocate Mr. AB Munshi appeared in this application representing the first informant Maganbhai Parkhabhai Barot. Ld. Advocate Mr. Munshi adopted the arguments advanced by Ld. APP Mr. Pandya and took me through the statements of some of the witnesses and submitted that the conspiracy as alleged by the prosecution is prima-facie established. The first informant Maganbhai Barot has clearly expressed his doubt regarding involvement of the petitioner in the offence. The further investigation continued on that line and the IO collected required material and rightly filed charge-sheet for the commission of offences punishable under sections 307 and 120B of the IPC. Therefore, it is submitted that the revision application may be rejected. 9. First of all, considering the impugned order passed by the trial Court, it transpires that the trial Court made certain observations criticizing the conduct of the learned advocate who represented all the 5 accused persons in the trial Court. The trial Court observed that said learned advocate was creating hurdle in smooth progress of the Sessions case and by adopting different tactics, the smooth progress of the case was delayed. In the impugned order, it is observed that by hook and crook the trial was delayed. Even Ld. APP Mr. Pandya and Ld. Advocate Mr. Munshi, who appeared representing the first informant, stated that the trial Court should not have passed such remarks so far as the learned advocate representing the accused persons before the trial Court is concerned. 9.1. Moreover, the trial Court in the impugned order, observing that due to delaying tactics, the smooth progress of the Sessions case was hampered, imposed costs of Rs.5,000/= on the accused persons. 9.1. Moreover, the trial Court in the impugned order, observing that due to delaying tactics, the smooth progress of the Sessions case was hampered, imposed costs of Rs.5,000/= on the accused persons. As stated above, after the case came to be committed before the Court of Sessions, Sabarkantha at Himatnagar, 11/12/2008 was the first date of appearance of all the accused persons before the trial Court and on the first day of appearance, they filed the application under section 227 of the Cr. P.C. Merely because the accused filed application for discharge under sec. 227 of the Cr.P.C, it cannot be presumed that the accused have adopted delaying tactics. Section 227 of the Cr. P.C provides remedy to the accused to claim for discharge. Thus, if the accused have exercised the remedy provided under the statute, it cannot be said that it is a delaying tactic. Under such circumstances, the order of costs imposed upon the accused persons by the trial Court in the impugned order deserves to be set aside. 10. Considering provisions of section 227 of the Cr. P.C, it is provided that if the Court comes to the conclusion that there is no sufficient ground for proceeding against the accused, the Court shall discharge the accused. Section 228 of the Cr.P.C, if considered, provides that if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, then he shall frame charge in writing. So far as section 227 regarding the discharge is concerned, if the trial Court comes to the conclusion that there is no sufficient ground for proceeding against the accused, the trial Court shall discharge the accused and shall record his reasons for doing so. Under such circumstances, when the trial Court comes to the conclusion that there is no sufficient ground for proceeding against the accused and the order of discharge is required to be passed, then reasons for arriving at such conclusion are required to be assigned. 06/05/2009 : 11. Now it is required to be considered as to whether the petitioner original accused no. 4 is required to be discharged or that the charge is required to be framed against him and the case is required to be proceeded further. 06/05/2009 : 11. Now it is required to be considered as to whether the petitioner original accused no. 4 is required to be discharged or that the charge is required to be framed against him and the case is required to be proceeded further. Considering the FIR dated 12/1/2005, prima-facie it transpires that within two hours from the date of the incident, the FIR came to be filed. In the FIR itself, the first informant Maganbhai Barot has expressed some doubt about the role of the petitioner. It is stated in last paragraph of the FIR that there was some dispute about land between the first informant Maganbhai Barot and the petitioner and his brothers. About said dispute, some application came to be made to the District Collector, Sabarkantha at Himatnagar and pursuant to that application, 2 days before the date of the incident, Talati-cum-Mantri, named Vishnubhai had visited the site and panchnama was drawn and some construction work was stopped. The first informant Maganbhai therefore, expressed his doubt that some persons of the petitioner, by some planning, caused the assault upon him. In the FIR the first informant Maganbhai Barot has stated that he was assaulted by 2 persons with knife and according to him, one blow of knife was inflicted on left side of his back and while he tried to resist more blows, he sustained injuries on his right wrist and little finger of left hand. He further stated that in said process, a cover of one knife remained in his hand. It is further stated in the FIR that he shouted for help and immediately his son Prafulbhai and one Prashantbhai, who were passing on their bike at that time, came near him and on hearing his shout, other persons also gathered there and thereupon, the 2 assailants made their escape good on their Yamaha motorcycle towards Idar road. As per the prosecution case, the incident occurred in the area called Motipura, near Dulara complex in Himatnagar town. It is true that in the FIR names of the assailants have not been referred. However, it is stated that out of the 2 assailants, one had covered his mouth with a handkerchief and the other assailant had worn helmet. They were of the age group between 22 to 24 years. It is true that in the FIR names of the assailants have not been referred. However, it is stated that out of the 2 assailants, one had covered his mouth with a handkerchief and the other assailant had worn helmet. They were of the age group between 22 to 24 years. It is specifically stated in the FIR that he can identify those assailants if they are shown to him. 11.1. It is true that after the lodgement of FIR, IO commenced investigation and there is no dispute that on 10/3/2005 IO filed report before the Ld. Chief Judicial Magistrate, Himatnagar, claiming A Summary and by order dated 12/4/2005 the Ld. Chief Judicial Magistrate granted A Summary with direction to continue the investigation. 11.2. The IO continued investigation and ultimately, as stated above, charge-sheet came to be filed in the Court of Ld. Chief Judicial Magistrate, Himatnagar against 5 accused persons, wherein the petitioner herein is accused no. 4. The charge-sheet came to be filed for the offence punishable under sections 307 and 120B of the IPC and section 135 of the BP Act. 12. It is true that at the time of lodgement of FIR, the offences punishable under section 324 read with sec. 114 of the IPC and section 135 of the BP Act came to be registered. However, as prima-facie reveals from the papers annexed with the charge-sheet, it transpires that it is the case of the prosecution that because of some land dispute between the petitioner and the first informant Maganbhai Barot, the petitioner paid ransom amount to original accused nos. 1, 2 and 3 with the help of original accused no. 5 and original accused no. 2 Mohmed Hanif Shaikh and original accused no. 3 Nasir alias Najjo Shaikh intercepted the first informant Maganbhai Barot while he was passing on his motorcycle near the place of the incident and the first informant Maganbhai Barot was assaulted upon by the accused nos. 2 and 3. It is further the case of the prosecution that the petitioner had paid ransom amount to the original accused nos. 1, 2 and 3 to see that the first informant Maganbhai Barot is murdered. It is further the case of the prosecution that the first informant Maganbhai Barot was assaulted upon by the original accused nos. 2 and 3. It is further the case of the prosecution that the petitioner had paid ransom amount to the original accused nos. 1, 2 and 3 to see that the first informant Maganbhai Barot is murdered. It is further the case of the prosecution that the first informant Maganbhai Barot was assaulted upon by the original accused nos. 2 and 3 with knives with the intention and in furtherance of a conspiracy that the first informant Maganbhai is killed, but because the first informant Maganbhai resisted the attack and shouted for help and the persons who were in nearby vicinity gathered there and, therefore, the conspiracy which was hatched could not be materialized and the life of the first informant Maganbhai Barot was saved. 13. In the above background, now it is required to be considered as to whether the prosecution has made out prima-facie case or not. While undertaking said exercise, it is necessary to consider the decision rendered in the case of Dilawar Balu Kurane v/s. State of Maharashtra reported in [2002] 2 S.C.C. 135, wherein considering section 227 of the Cr. P.C, Hon'ble the Apex Court observed that while dealing with an application filed by an accused under section 227 of the Cr. P.C, a Court cannot act merely as a post office or mouthpiece of the prosecution. The Court has to sift and weigh the evidence for the limited purpose of finding out whether a prima-facie case has been made out. It is further observed that where two views are equally possible and evidence gives rise to some suspicion but not grave suspicion, he can discharge the accused. 13.1. Considering the ratio laid down by Hon'ble the Apex Court in the case of Dilawar Balu's case [supra], for limited purpose the evidence collected by the IO is required to be considered. There is no dispute that at this stage, no detailed discussion or detailed appreciation of evidence collected by the IO is required to be made. 14. Now, as stated above, in the FIR itself the first informant injured had expressed his doubt about the attack. It is specifically referred in the FIR that because of the land dispute between himself and the petitioner, the petitioner, as per his pre-plan, through his persons, caused the assault upon him. 14. Now, as stated above, in the FIR itself the first informant injured had expressed his doubt about the attack. It is specifically referred in the FIR that because of the land dispute between himself and the petitioner, the petitioner, as per his pre-plan, through his persons, caused the assault upon him. It is further pertinent to note that though in the FIR the registration number of the motorcycle of the assailants has not been stated, the description is given in the FIR that it was Yamaha motorcycle. It transpires that on or about 6/2/2007 the original accused nos. 1, 2 and 3 were found in suspicious circumstances near one Yamaha motorcycle bearing registration No. GCC 1525 and the Assistant Police Commissioner, Crime Branch, Ahmedabad City nabbed them under section 41(1)(a) of the Cr. P.C and upon some interrogation, their involvement in the offence came to be revealed and, therefore, they were sent to Himatnagar Town Police Station for further investigation. 15. Considering the statement of witness Samsuddin Gafurbhai, prima-facie it transpires that the accused nos. 1 and 2 had purchased the Yamaha motorcycle No. GCC 1525 on 11/1/2005 [a day before the date of incident] from this witness and the same was returned to this witness on 17/1/2005 stating that there was some problem in the wheel of the motorcycle. It is true that the said motorcycle came to be sold by witness Samsuddin Gafurbhai on 20/1/2005 to one Mohmed Nawaz and he thereafter sold it to one Anvarbhai. But prima-facie the fact remains that between 11/1/2005 to 17/1/2005 the motorcycle was in possession of original accused nos. 1 and 2. However, it is submitted on behalf of the petitioner that when the motorcycle was sold away to witness Samsuddin Gafurbhai on 17/1/2005, then how, the original accused nos. 1, 2 and 3 when they were nabbed on 6/2/2007, the same motorcycle was found in possession of those co-accused persons? In that context, it is further submitted that the statements of material witnesses like subsequent buyers of the motorcycle named Mohmed Nawaz and Anvarbhai have not been recorded by the police. However, I am of the opinion that at this stage, the evidence of the witnesses whose statements came to be recorded by the IO is not required to be appreciated and evaluated to come to any final conclusion. As stated above, considering section 228 of the Cr. However, I am of the opinion that at this stage, the evidence of the witnesses whose statements came to be recorded by the IO is not required to be appreciated and evaluated to come to any final conclusion. As stated above, considering section 228 of the Cr. P.C regarding framing of charge, it has been clearly stated that if a Court is of the opinion that there is a ground for presuming that the accused has committed an offence, the Court shall frame charge in writing against the accused. 16. Over and above this, considering the statement of witness Anvar Husen alias Annu, it transpires that at the instance of original accused no. 2, with original accused no. 3, he went to Idar Visnagar road near one hotel, where Yamaha motorcycle having damage in wheel bearing was lying and the same was brought to Ahmedabad. 17. Considering the statement of Akbarali Umravali and his wife Safiyana Akbarali, prima-facie it transpires that on the day of the incident the original accused nos. 2 and 3 had come to their house and they were found frightened and they left 2 knives and 2 jackets at their house and they stated that there was some brake down in their motorcycle. After some days, both the accused had again come to their house and they had taken back those knives and jackets from their house. Statement of witness Hasanali Ismailbhai would reveal that the motorcycle in brake down condition was parked near his Galla. 18. Considering the statements of witnesses Sabbirbhai Habibbhai and Vazirbhai Yakubbhai, it prima-facie transpires that on the night of 11/1/2005 at the instance of present petitioner and with the help of original accused no. 5, some accommodation was given in Navjivan Hotel to the co-accused persons and the hotel is situated in Himatnagar town itself. 19. After the lodgment of the FIR, further statements of the first informant Maganbhai came to be recorded by the police on 17/1/2005 and 8/2/2007 wherein the first informant Maganbhai elaborately assigned details regarding the doubt and suspicion he had raised in the FIR regarding the role of the present petitioner. It further transpires that on 8/2/2007 T I Parade was arranged and as it reveals from that panchnama, the first informant Maganbhai identified the original accused nos. 2 and 3 as the assailants, who assaulted upon him at the time of the incident. It further transpires that on 8/2/2007 T I Parade was arranged and as it reveals from that panchnama, the first informant Maganbhai identified the original accused nos. 2 and 3 as the assailants, who assaulted upon him at the time of the incident. Considering the relevant panchnamas, it further transpires that the weapon knife, clothes of the first informant and of the original accused nos. 2 and 3 were recovered. It further transpires that in presence of panchas, the house of the original accused no. 1 came to be searched and from the house of the original accused no. 1, one diary came to be seized wherein as against the name of Kanubhai two mobile numbers have been referred. It is submitted on behalf of the petitioner that no investigation came to be made by the IO about those mobile numbers as to whether those mobile numbers were of the mobile phones belonging to the petitioner Kanubhai or not and no investigation is made regarding some conversation made through any of such mobile phones. However, as stated above, at this stage, whatever evidence is collected by the IO during the course of investigation, is required to be seen. Under such circumstances, at this stage as it reveals from the panchnama of seizure of diary, prima-facie fact reveals that the diary which came to be seized from the house of the original accused no. 1 reveals name of Kanubhai and two mobile numbers are mentioned against said name. 19.1. Considering the statements and further statements of witnesses Prashantkumar Jagdishbhai and Prafulbhai Maganbhai, prima-facie, regarding the incident, they state that they have witnessed the incident when the first informant Maganbhai was assaulted upon by 2 assailants with knives. In their further statements, on the basis of some information, they stated about the conspiracy hatched by the petitioner to see that the first informant Maganbhai is murdered and for that purpose with the help of 4 co-accused persons, in furtherance to said conspiracy, the first informant Maganbhai was assaulted upon. What is the evidentiary value of the statements of both these witnesses can be tested after the full-fledged evidence is recorded before the trial Court. At this stage, those statements as they are, are required to be considered for the purpose of arriving at a prima-facie conclusion. 20. What is the evidentiary value of the statements of both these witnesses can be tested after the full-fledged evidence is recorded before the trial Court. At this stage, those statements as they are, are required to be considered for the purpose of arriving at a prima-facie conclusion. 20. However, on behalf of the petitioner, it was vehemently submitted that considering the medical evidence collected by the IO, only 2 simple injuries have been noted by the Medical Officer and those injuries were on right wrist and on left hand little finger and no injury came to be seen by the Medical Officer on the left side back of the first informant, as it is the allegation of the first informant Maganbhai in the FIR that he sustained knife injury on left side back of his body. Therefore, alternatively it was submitted that if at all the Court comes to the conclusion that the case is required to be proceeded further against the petitioner, then the offence which can be said to have been constituted is of simple hurt punishable under section 324 of the IPC and at any rate not the offence of attempt to murder made punishable under section 307 of the IPC. 20.1. It is true that the injury certificate reveals 2 simple injuries, namely one on right wrist and the same was muscle deep and the second one was on surface of left little finger. It is also true that the first informant Maganbhai left the hospital against medical advice. However, the certificate prima-facie reveals that the 2 injuries noted down in the certificate were possible by sharp cutting weapon. Considering the panchnama of the clothes of the first informant, it prima-facie transpires that some cut marks were on left side back of sweater, shirt and Baniyan. However, no injury came to be revealed on the left back side of the first informant. The bare reading of the medical certificate may reveal offence of simple hurt. However, at this stage, for the purpose of framing charge, the background of this offence is required to be considered. However, no injury came to be revealed on the left back side of the first informant. The bare reading of the medical certificate may reveal offence of simple hurt. However, at this stage, for the purpose of framing charge, the background of this offence is required to be considered. I need not again discuss the same here, but suffice it to say that in light of the above discussion regarding the prima-facie case emerges from the statements of the above referred witnesses, the prosecution case is that in furtherance of the conspiracy to see that the first informant Maganbhai is murdered, the act was committed. But because of the resistance offered by the first informant and the passers-by hearing the shout of the first informant Maganbhai, coming to his rescue, the conspiracy hatched and planned could not be materialized. In support of such case, the IO has collected prima-facie material as briefly stated above. Under such circumstances, at this stage it cannot be said that the charge cannot be framed for the offence of attempt to murder punishable under section 307 of the IPC. 21. In the aforesaid background, the decision rendered in the case of State of Maharashtra v. Som Nath Thapa reported in AIR 1996 S.C. 1744 is required to be considered. Hon'ble the Apex Court, considering section 228 of the Cr. P.C, observed that while framing of charge, prima-facie case is required to be considered and it is required to be seen as to whether prima-facie case is made out. The Court has also to consider that there must exist ground for presuming that the accused had committed the offence. Hon'nle the Apex Court in paras. 31 and 32 observed as under :- 31. Let us note that meaning of the word presume . In Black's Law Dictionary, it has been defined to mean to believe or accept upon probable evidence . (Emphasis ours). In Shorter Oxford English Dictionary, it has been mentioned that in law presume means to take as proved until evidence to the contrary is forthcoming . Stroud's Legal Dictionary has quoted in this context a certain judgment, according to which A presumption is a probable consequence drawn from facts [either certain, or proved by direct testimony] as to the truth of as a fact alleged. [Emphasis supplied]. Stroud's Legal Dictionary has quoted in this context a certain judgment, according to which A presumption is a probable consequence drawn from facts [either certain, or proved by direct testimony] as to the truth of as a fact alleged. [Emphasis supplied]. In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 22. Thus, as observed by Hon'ble the Apex Court, if on the basis of the materials on record, a Court could come to the conclusion that commission of the offence is probable consequence, a case for framing of charge exists. It is further observed that if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. At this stage, probative value of the materials on record cannot be gone into, but the materials brought on record by the prosecution has to be accepted as true at this stage. In the background of the ratio laid down by Hon'ble the Apex Court in Som Nath Thapa's case [supra] and in light of the entire above discussion, prima-facie it cannot be said that the Ld. Trial Judge erred in ultimately rejecting the request of the petitioner original accused no. 4 for discharge. As stated above and as observed by Hon'ble the Apex Court in Dilawar Balu's case [supra], even weighing the evidence for the limited purpose of finding out whether a prima-facie case has been made out, it prima-facie transpires in light of the entire above discussion that the evidence prima-facie reveals that the charge is required to be framed. 23. As stated above and as observed by Hon'ble the Apex Court in Dilawar Balu's case [supra], even weighing the evidence for the limited purpose of finding out whether a prima-facie case has been made out, it prima-facie transpires in light of the entire above discussion that the evidence prima-facie reveals that the charge is required to be framed. 23. The Revision Application, therefore, requires to be partly allowed. The order of costs awarded by the Ld. Trial Judge to the tune of Rs.5,000/- is required to be set aside. However, the impugned order, so far as it relates to the rejection of the request for discharge, deserves to be confirmed. 23.1. Last but not the least, considering the impugned order passed by the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, it transpires that the Ld. Judge scrutinized and evaluated at this stage the evidence collected by the IO and it has been expressly observed in the impugned order that, the Court has totally gone in depth and has found out truth which is there in the evidence. I am of the opinion that when ultimately the Ld. Judge came to the conclusion that the charge was required to be framed, no such scrutiny, appreciation of evidence or evaluation of evidence in depth and detail was warranted. As stated above, while discharging the accused under section 227 of the Cr. P.C, a Court is required to record reasons for coming to the conclusion that there is no sufficient ground for proceeding against the accused. While coming to the presumption that the accused has committed an offence as contemplated under section 228 of the Cr. P.C, no such detailed discussion and evaluation of evidence in depth was required. When such is the situation, it appears just and proper to this Court that the Ld. Sessions Judge, Sabarkantha at Himatnagar, should be directed either to transfer the Sessions Case No. 143/2008 to his Court for trial or to place the case before any other Court of Ld. Addl. Sessions Judge other than the Court of the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, who has passed the impugned order. 24. One more reason for passing such order is that in para. 9 of the impugned order, the Ld. Addl. Sessions Judge other than the Court of the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, who has passed the impugned order. 24. One more reason for passing such order is that in para. 9 of the impugned order, the Ld. Trial Judge observed that the learned advocate representing the accused adopted the tactics how to delay the matter by filing an application just like stone throwing in progress of the matter and in the operative part of the order, therefore, it is further observed that the said learned advocate to give his cooperation for the progress of this case. Learned advocates representing both the parties herein, stated that such remarks deserve expungement. 24.1. For the sake of clarification, it is hereby clearly observed that whatever discussions made by this Court in this order is confined only for the purpose of disposal of the present revision application and those observations shall not have any bearings whatsoever at the time of final disposal of the Sessions Case on the basis of the evidence that may be adduced in accordance with law in future in this case. The trial Court shall decide the case on the basis of the evidence that may be adduced in this case in accordance with law uninfluenced by whatever observations made in this judgment as well as made by the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, in the impugned order dated 4/3/2009. 25. For the foregoing reasons, the revision application is partly allowed. The impugned order passed by the Ld. 2nd Addl. Sessions Judge, Sabarkantha at Himatnagar, on 4/3/2009 below application exh. 4 in Sessions Case No. 143/2008 is quashed and set aside so far as it relates to the direction to the accused persons to pay special costs of Rs.5,000/= 26. The remarks passed by the Ld. Trial Judge in para. 9 and operative part of the impugned order regarding learned advocate representing the original accused persons in said Sessions Case, are hereby expunged. 26.1. However, the revision application partly stands dismissed so far as challenge to the rejection of the request for discharge under section 227 of the Cr. P.C is concerned and to that extent the impugned order is hereby confirmed. 27. The Ld. 26.1. However, the revision application partly stands dismissed so far as challenge to the rejection of the request for discharge under section 227 of the Cr. P.C is concerned and to that extent the impugned order is hereby confirmed. 27. The Ld. Sessions Judge, Sabarkantha at Himatnagar, is directed either to transfer the Sessions Case No. 143/2008 in his Court for trial or to transfer the case to the Court of any other Ld. Addl. Sessions Judge functioning at Himatnagar for trial in accordance with law other than the Court which passed the impugned order. Rule made absolute to the aforesaid extent.