The Magistrate has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in Section 173 of the Code, if he is of the opinion that it is not necessary to take evidence.

Judgment

SUBBA RAO, J. : These two appeals raise rather an important question on the interpretation of the provisions of S. 207A of the Criminal Procedure Code (hereinafter referred to as the Code).

2. The facts that have given rise to these appeals may be briefly stated. The appeals arise out of an incident that took place on November 29, 1957, when one Sadashiv was murdered in the courtyard of his house in village Nimgaon. The case of the prosecution was that the four appellants, armed with sticks, went to the house of the deceased, dragged him out of the house and beat him with sticks in the courtyard; and that as a result of the beating he died on the next day at about 5 p.m. at Bhandara Hospital. After investigation, the police submitted their report to the Magistrate under S. 173 of the Code along with the relevant documents. After forwarding the report, the officer in charge of the police station furnished the appellants with a copy of the report forwarded under sub-s. (1) of S, 173, the First Information Report recorded under S. 154 and all other documents or relevant extracts thereof on which the prosecution proposed to rely, including the statements recorded under sub-s. (3) of s. 161 and also intimated them of the persons the prosecution proposed to examine as its witnesses. The Magistrate posted the case for inquiry on February 10, 1958, and on that date the prosecution intimated that it did not intend to examine any witnesses in the Magistrate s Court. On behalf of the appellants no objection was raised to that course. But the Magistrate adjourned the inquiry to February 12, 1958, as he wanted to consider whether any evidence was necessary to be recorded before commitment. On February 12, 1958, he expressed his opinion that no witness need be examined at that stage; thereafter, he framed charges against accused-appellants under S. 302, read with S. 34, of the Indian Penal Code, and also under S. 448 thereof and committed the appellants to the Sessions Court.

3. Before the learned Sessions Judge the prosecution led four types of evidence, i.e., (1) eye-witnesses, namely, P. Ws. 6, 11, 20 and 25; (2) dying declaration, Ex. P-15, supported by P. Ws. 18, 22 and 19; (3) the identification of the appellants in jail by P. Ws. 20 and 25; and (4) recovery of various articles at the instance of the accused-appellants. The defence examined four witnesses. On a consideration of the entire evidence, the learned Sessions Judge held that the prosecution case had been amply borne out and that the four appellants entered into the house of the deceased and beat him in the manner described by the prosecution witnesses. As no less than 12 contused wounds were inflicted on the deceased, which resulted in the fracture of his ribs and injury to the lung, and as the doctor opined that the death was due to shock and haemorrhage resulting from the said fracture, the learned Sessions Judge held that the accused-appellants were guilty of murder and convicted them under S. 302, read with S. 34, Indian Penal Code, and he further convicted them under S. 448 of the Indian Penal code for trespassing into the house of the deceased. On these findings the learned Sessions Judge sentenced the appellants to undergo imprisonment for life on the first count and for 3 months rigorous imprisonment on the second count. The appellants preferred an appeal against their convictions and sentences to the High Court of Bombay at Nagpur. The learned Judges of the High Court, on a resurvey of the entire evidence, agreeing with the learned Sessions Judge, accepted the prosecution case, but they held that the appellants were guilty only under S. 304, Part I, read with S. 34, Indian Penal Code, and in the result they reduced the sentence from life imprisonment to 10 years rigorous imprisonment in regard to appellant 1 and to 7 years rigorous imprisonment in regard to appellants 2 to 4. Against the said convictions and sentences, the appellants have preferred, by spec