Judgment :

K.S. Radhakrishnan, J.

Leave granted.

2. Appellant, a practicing advocate in the Patna High Court, had gone to his village at Nehra, in the district of Darbhanga for celebrating Holi festival. On 15-3-2006 at about 10.00 PM while he was sitting in the house of one Ranjit Chaudhary along with Gautam Chaudhary and others, few persons by name Ramesh Sahni, Dinesh Sahni and others, came there and demanded Rs.1,000/-as Rangdari for meeting Holi expenses. Appellant gave Rs.200/-but wanted the money to be returned which was not to the likings of the persons who came there. Twenty minutes thereafter, 2nd Respondent (1st accused) Sunil Sahni along with about 12 other persons came with Lathi, iron rod, Fursha, Talbar etc. and abused the appellant and dragged him out of the house and brutally assaulted him with the weapons and left the place after inflicting several injuries on the appellant.

3. The appellant was later admitted to the hospital at Sakri and his statement was recorded and a criminal case No. 46 of 2006 was registered under Ss. 147, 148, 504, 323, 384, 324, 307 and 341 I.P.C. against seven named persons and 10-15 unknown persons, vide FIR dated 16-3-2006. The police started investigation and, after completing the investigation, the police submitted its final report under S.173 Cr.P.C. and the accused persons were sent for trial.

4. The trial Court took cognizance of the offences on 9-10-2007 and the case was committed to the Sessions Court.

5. 1st accused then filed an application for quashing the charge-sheet vide Criminal Misc. No. 13987 of 2007 before the Patna High Court. Later, that application was withdrawn seeking liberty to agitate the grievances before the trial Court at the time of framing of charges, which was allowed by the High Court by its order dated 5-11-2007. 1st accused also filed an application under Ss. 227/228 Cr.P.C. on 15-1-2008 before the Additional Sessions Judge, Darbhanga stating that no offence under S.307 or 386 I.P.C. was made out and hence prayed for the discharge and that the case be returned to the Chief Judicial Magistrate after framing charge under rest of the provisions.

6. The Sessions Court, after hearing both the parties, came to the conclusion that no charge can be framed under Ss. 307, 386 I.P.C. against the accused, except the rest of the charges levelled against him. The Sessions Court vide its order dated 27-5-2008 transferred the case to the Chief Judicial Magistrate for trial. Aggrieved by the said order, the appellant herein preferred Criminal Revision No. 676 of 2008 before the High Court, which was dismissed on 23-2-2012, against which this appeal by special leave has been preferred.

7. Shri Santosh Kumar, learned counsel appearing for the appellant, submitted that the Courts below were not justified in holding that no offence under Ss. 307/308 I.P.C. was made out. Learned counsel pointed out that the Courts below have failed to appreciate the statement of the witnesses at paragraphs 5, 6, 17 and 19 of the case diary, which would clearly indicate that the 1st accused along with other accused persons inflicted blows by sharp weapons and had thus acted with the intention and knowledge that the same would cause the death of the appellant. Learned counsel also pointed out that the Courts below have failed to appreciate that when about 10-15 persons attacked an unarmed person with sharp weapons, one has to presume that the intention was to cause death and the injuries sustained by the appellant would also indicate that his life was in danger. Learned counsel submitted that, in order to sustain a charge under S.307 I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted and what the Court has to consider is whether the act, irrespective of the result, was done with the intention or knowledge that death would be caused. In support of his contention, learned counsel placed reliance on the judgment of this Court in State of Madhya