THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.7437 of 2007 Date of Order: 17-02-2011 Between: Vattikundla Munirattnam Naidu ..Petitioner And 1. The State of A.P., rep. by its Public Prosecutor, High court of A.P., Hyderabad and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.7437 of 2007 ORAL Order: This petition under Section 482 Cr.P.C. is to quash the order of the III Additional Sessions Judge, Tirupathi passed in Crl.R.P.No.60 of 2006, dated 12-11-2007. Petitioner, who is accused No.8 in C.C.No.353 of 2002 on the file of Additional Judicial First Class Magistrate, Srikalahasti, is facing trial for the offence punishable under Sections 147, 148, 323, 341, 420, 427, 506 r/w 149 IPC. After examining six witnesses, the State through Public Prosecutor filed Crl.M.P.No.2349 of 2006 under Section 323 Cr.P.C. to commit the case to the Court of Sessions. On contest, the learned Magistrate held that the evidence of P.W.1 shows that A1 and A2 with an intention to kill P.W.1 and A1 to A3 and A10 kept a knife on his stomach and P.W.1 prevented them by keeping his hand; P.W.2’s evidence shows that A1 beat P.W.1 with an iron rod; then he raised cries, at that time A1 holds a knife and tried to kill P.W.1; P.W.2, L.Ws.3 and 4 tried to intervene, then the accused left P.W.1 and escaped from the place. The doctor, who examined as P.W.5, stated that he examined P.W.1 and issued wound certificate— Ex.P4 and found no external injuries. If it is so, there is no such bodily injury. When there is lack of sufficient injury likely to cause death, it cannot be said that the overt acts of accused are likely to cause death. Therefore, there is no evidence to commit the case to the Court of Sessions. Holding so, the learned Magistrate dismissed the M.P. On revision being filed by the complainant, the learned Sessions Judge allowed the revision holding that for the offence under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. For the purpose of constituting an attempt under Section 307 IPC, two ingredients are required: 1. An evil intent or knowledge, and secondly an act done. When the evidence of P.Ws.1 and 2 prima-facie show that a charge under Section 307 IPC is to be famed, the lower court erroneously dismissed the MP and thus committed a grave error which amounts to flagrant miscarriage of justice and requires to be interfered and accordingly allowed the revision directing the Magistrate to follow the procedure prescribed under law. Sri Mastan Naidu Cherukuri, learned counsel for the petitioner by placing reliance on the Division Bench judgment of this Court in STATE v. RAJKUMAR GATTHI[1] strenuously contended unless the Magistrate comes to the conclusion that the accused may have to be given a heavier sentence than what he could impose, it would not be proper for the Magistrate to straightway act under Section 323 Cr.P.C. and commit the case to the Court of Session. He also contends that it is only the satisfaction of the Magistrate concerned upon which, at any sage of the case, he can commit the case to the Court of Sessions but no right is conferred on the complainant more so, when the application is filed at the fag end of the trial. Therefore, the evidence adduced by P.Ws.1 and 2 is not sufficient to hold that there was intention to commit murder to attract Section 307. In the absence of any injury caused to P.W.1, and except P.Ws.1 and 2 no other witnesses have spoken about the intention, it is unsafe to believe their evidence to commit the case to the Court of Sessions when there is political rivalry between P.Ws.1 and 2 and accused. By placing reliance on the judgment of the Supreme Court in HARI KISHAN & STATE OF HARYANA v. SUKHBIR SINGH[2] he contends that in the absence of inflicting injury the intention to commit murder cannot be inferred. Per contra, the learned Public Prosecutor while sustaining the impugned order contended that the evidence of P.Ws.1 and 2 is sufficient to hold that the accused had intention to kill P.W.1. The provision of Section 307 IPC does not require that the injury must necessarily be caused to victim. Doing an act with an intention or knowledge is sufficient to attract Section 307 IPC. Whether the accused are entitled to conviction on the above evidence or not cannot be gone into at the stage of exercising jurisdiction under Section 323 Cr.P.C. Whereas the learned counsel for the 2nd respondent/complainant while adopting the arguments of the Public Prosecutor would contend that the evidence of P.Ws.1 and 2 clearly indicate three persons pushed the complainant on the ground and kept the knife on his chest, stomach and head with an intention to kill him; when he raised cries, on seeing the persons who came on the spot to rescue, the accused have fled away. The Supreme Court in STATE OF MAHARASHTRA v. BALRAM BAMA PATIL[3] categorically held to justify a conviction under Section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and way even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned under Section 307. Actual injury capable of causing death is not necessary to attract Section 307 as held by the Supreme Court in OM PRAKASH v. STATE OF PUNJAB[4] and SARJU PRASAD v. STATE OF BIHAR[5]. What is required to constitute an offence under Section 307 is the intention or knowledge and some physical act is required but it need not be the penultimate act. Though the marginal note under Section 307 is “attempt to murder”, the section itself does not lay down any such requirement. Hence, intention has come to acquire a dominant place to constitute the offence under Section 307. This Court in STATE v. RAJKUMAR GATTHI (1 supra) held it should however be remembered that, before acting under Section 323 Cr.P.C., there is a provision under Section 325 which specifically deals with cases for punishment more than what the trial Magistrate can award. When, from the records, it appears to a Magistrate that the accused may have to be given a heavier sentence than what he could impose, it would not be proper for the Magistrate to straightway act under Section 323 Cr.P.C. and commit the case to the Court of Session. It would be appropriate that he tries the case and reaches the stage contemplated in Section 325 and if he opines, after hearing the prosecution and the defence evidence, that the accused is guilty he may take recourse to Section 325 in which case he will have to forward the records to the Chief Judicial Magistrate who is empowered to impose a sentence of seven years' imprisonment. The other cases on which reliance is placed by the learned counsel for the petitioner are misplaced to the facts of the present case. The complainant, who was examined as P.W.1, deposed that he was coming to Srikalahasti from his village in a car, when he reached to Telugu Ganga Kalva, all the accused formed themselves into unlawful assembly and abused him in filthy language; when he quested about their illegal acts, the accused, holding deadly weapons like iron rods, knifes and sticks, grew wild and damaged the car to a tune of Rs.50,000/-; when he resisted the acts of the above persons, A1 and A2 caught hold of his shirt and torn out his shirt; when he was making cries about the atrocities, A1, A2 and A10 pushed him down and kept knives on his chest, stomach and head with an intention to kill; when he raised alarm, neighbouring people came and rescued from the above said culprits. They bored grudge on him with regard to contract work. P.W.2 also corroborated the said evidence stating that he observed the accused damaged the car of P.W.1 and pushed him on the floor. A3 and some others beat him on the mouth and he lost the teeth. A1 beat P.W.1 with iron rod then he raised cries; himself, L.Ws.3 and 4 tried to intervene then the accused left P.W.1 and escaped from the place. In view of the above evidence, the learned Sessions Judge rightly held that a charge under Section 307 IPC is to be framed and since the case is triable by Court of Sessions, the Magistrate was directed to follow the procedure prescribed under law. The order passed by the learned Sessions Judge does not suffer from any illegality warranting interference by this court. The Criminal Petition is accordingly dismissed. _________________ A.GOPAL REDDY, J. 17-02-2011 Murthy [1] 1980 (2) APLJ 179 [2] AIR 1988 SC 2127 [3] AIR 1983 SC 305 = (1983) 2 SCC 28 [4] AIR 1961 SC 1782 [5] AIR 1965 SC 843