ORDER

The present revision is pending since 2013 and the proceedings of the court are stayed. In view of aforesaid, the revision is considered on merits. The present revision is filed against the order dated 6.12.2012 passed by III ASJ, Mandsaur in S.T.No. 268/2012 whereby the learned Judge has remanded back the case to the court of JMFC, Mandsaur that the offence is not made out under section 307 IPC and only offence under section 325 IPC is made out and section 325 IPC is not triable by Court of Session but triable by Magistrate.

3. Prosecution story is that on 1.11.2012 at about 8.00 a.m. a dispute arose between the parties regarding electricity bill of Rs.250/- and accused/respondent No.2-Mitthu singh assaulted the present applicant with lathi and due to which applicant sustained lacerated wound on his head and according to x-ray report there is fracture also. On the basis of said offence, FIR was registered under section 307 IPC against the respondent No.2. After investigation chargesheet was filed. By the impugned order the Court has held that no offence is made out under section 307 IPC and only offence under section 325 IPC is made out and since it is not triable by Court of Sessions and sent the case back to the Magistrate.

4. Upon perusal of the statement of complainant and the injury received by him that a lathi blow was given by the respondent No.2 on his head which caused injury, as per x-ray report there was fracture. Thus, trial court erred while holding that prima facie section 307 IPC for charge is not made out and offence is made out under section 325 IPC and sent the case back to the Magistrate for trial for offence under section 325 IPC. Once the complainant has stated that respondent No.2 had given a lathi blow on the head which is vital part of the body which resulted into fracture, the finding of the trail court that ofence under section 307 IPC prima facie is not made out, is not sustainable. For making out an offence under section 307 IPC, injury alone is not the criteria but it is the intention of the accused which has to be seen. In the present case prima facie allegation is that accused had caused injury on the head of complainant with the help of lathi which resulted into fracture. Prima facie his intention was to kill the complainant. Thus, the order of trial court that no offence under section 307 IPC is made out, is set aside. Trial court is directed to proceed in accordance with law on the basis of chargesheet filed by the police for commission of offence under section 307 IPC without being influenced by an observation made by this Court.

With the aforesaid, the revision is allowed and disposed off.

Record of the trial court be sent back forthwith.

(VIJAY KUMAR SHUKLA)

JUDGE MK