Interpretation of the expression 'any instrument which, used as a weapon of offence, is likely to cause death' under Section 326 IPC and its application to the case.

Rajendra Mahajan, J.

The applicant-complainant has filed this criminal revision under Section 397 r.w. 401 of the Cr.P.C. against the order dated 16.09.2016 passed by the First Additional Sessions Judge Varaseoni, District Balaghat under Section 228(1)(a) Cr.P.C. in Sessions Trial No.2400134/2016.

2. The short facts of the case are that in the night of 04.02.2016, applicant-complainant Anusuiya aged about 48 years was sleeping with her grand daughter in her house situated in village Kankigaya. At about 11:00 p.m. she heard noise of people and sound of stone-pelting coming from outside of her house. As a result, she woke up and came out of her house. She saw that respondent Nos.1 to 5/accused persons namely, Govind Ram @ Tappu, Damodar, Ravindra @ Sonu, Alam Singh and Devkibai were standing in front of her house. Seeing her, they shouted a torrent of abuse at her and told her that she had illegally constructed a house. They further told her threateningly that she had no right to live therein. She requested them not to abuse her. Thereafter, they physically assaulted her with lathis and shoes. Later on, respondents-accused persons namely, Ravindra @ Sonu and Alam Singh took her to Mahavir Chowk of the village by virtually dragging her. There, they also committed marpeet with her. Sheelabai, Rayabai, Ravi and other villagers came to her rescue. In the course of which, they also assaulted Sheelabai with lathis. As a result, she sustained a fracture in the forearm of her left hand and other parts of body. The applicant-complainant sustained injuries on her hands, legs and head. As a result she fell unconscious. She was removed to the hospital for treatment in an ambulance. Upon the report of the applicant-complainant, the police of Police Station Lalbarra, District Balaghat registered a case against the respondents-accused persons at Crime No.642/2016 under Sections 294, 323, 326, 355, 506 and 34 of the IPC. Upon completion of the investigation, the police charge sheeted the respondents-accused persons under Sections 294, 323, 355, 506, 147, 325 and 326 IPC in the court of Judicial Magistrate Varaseoni. The learned JMFC committed the case to the court of Session as the offence punishable under Section 326 IPC is triable by the court of Session in the State of M.P. Thereafter, Sessions Case No.2400134/2016 is registered and the same is made over to the First Additional Sessions Judge, Varaseoni for trial.

3. On 16.09.2016, the learned ASJ heard arguments over the framing of charge. On the self-same day, he passed the impugned order in the order-sheet of the case. Vide the impugned order, he has held that there is prima facie evidence on record for framing of charges against the respondents-accused persons under Sections 294, 323 (for causing simple injuries to applicant-complainant Anusuiya) 506, 355, 147 and 325 (for causing a grievous hurt to injured Sheelabai) IPC but the offence under Section 326 IPC is not made out against the respondents-accused persons as argued by the learned prosecutor on the grounds that as per injury report and X-ray report of injured Sheelabai, she sustained a fracture in the ulna bone of her left hand with a hard and blunt object. Upon the aforesaid findings, the learned ASJ has further held that the offences under Sections 294, 323, 506, 355, 147 and 325 IPC are not exclusively triable by the Court of Session and that the JMFC has also power to try the case under the aforesaid offences. Thus, he transferred the case under the provisions of Section 228(1)(a) Cr.P.C. to the court of JMFC Varaseoni directing him to frame the charges against the respondents-accused persons under the aforesaid Sections and try the case in accordance with the provision of the said Section.

4. Being aggrieved by the impugned order, the applicant-complainant has filed this revision.

5. Learned counsel for the applicant-complainant submits that on the basis of the medical evidence, it is obvious that injured Sheelabai sust