M. Sasidharan Nambiar, J.

1. Revision petitioners in Crl. R.P. 3539/2008 is the first accused and revision petitioners in Crl. R.P. 3718/2008 are accused 2 to 5 in SC 309/2007 on the file of Additional Sessions Court, (CBI/SPEII), Ernakulam. Revision Petitions are filed challenging the order passed by the learned Sessions Judge after hearing the prosecution and the defence under S.228 of Code of Criminal Procedure, framing charge for the offence under S.304 I.P.C.

2. Prosecution case is that first accused was working as Sub Inspector of Police, second accused as Head Constable and accused 3 to 5 as Constables of Alappuzha South Police Station during 1998 and in furtherance of their common intention they arrested deceased Thangal Kunju on 08.08.1998 and took him into custody from his residence and while he was in custody they voluntarily caused hurt to Thangal Kunju on his head and legs and also caused hurt to his wife Radhamani and grievous hurt to their son Binoj, by using lathi and hands and wrongfully confined deceased Thangal Kunju and inflicted the injuries which caused his death and thereby committed offences punishable under Ss.220, 323, 324, 325, 447, 451, 466, 304 and 509 read with S.34 I.P.C. After the case was committed to the Sessions Court and the accused appeared, as provided under S.227 of Code of Criminal Procedure prosecution and the defence were heard. The accused together had filed Crl. M.P. 1294/2008 for an order of discharge of the offence under S.304 of I.P.C. and contended that as no offence exclusively triable by the Sessions Court is involved, the case is to be transferred to Chief Judicial Magistrate. Learned Sessions Judge dismissed Crl. M.P. 1294/2008 holding that charge for the offences under S.220, 323, 324, 325, 447, 451, 466, 304 and 509 read with S.34 I.P.C. was already framed. Revision Petitions are filed challenging the dismissal of the application as well as framing of charge for the offence under S.304 of Indian Penal Code.

3. Learned counsel appearing for the revision petitioners, and Standing Counsel appearing for C.B.I. were heard.

4. Learned counsel for the revision petitioners submitted that the post-mortem certificate established that deceased Thangal Kunju did not sustain any fatal injury and the cause of death was due to occlusive coronary heart disease and not the injuries sustained. It was argued that prosecution has no case that any of the accused were aware that the deceased was suffering from coronary heart disease and the statement of the widow of the deceased reveal that even family members are unaware of the heart ailment and therefore when the injuries sustained by the deceased are not likely to cause the death of an ordinary human being, in the absence of knowledge of the accused that the deceased was suffering from coronary heart disease, it cannot be said that the injuries if any, were inflicted with the knowledge that it is likely to cause the death of the deceased and therefore no offence under S.304 I.P.C. is attracted and if that be the case no offence exclusively triable by the Sessions Court is involved and hence Sessions Judge should have transferred the case for trial to Chief Judicial Magistrate in respect of the remaining offences.

5. Learned Standing Counsel appearing for the CBI justified the order passed by the Sessions Judge contending that when the accused in furtherance of their common intention wrongfully confined the deceased and inflicted the injuries, the knowledge that it is likely to cause his death is to be imputed and therefore Sessions Judge was justified in framing charge for the offence under S.304 I.P.C.

6. Revision petitioners are not challenging the framing of charge for the remaining offences and their grievance is only against framing of charge for the offence under S.304 of I.P.C. Their case is that as no offence exclusively triable by the Sessions Court arises, Sessions Court cannot try the case and as provided under cl.(a) of sub-s. (1)