LALBABU PRASAD @ LALBABU MAHTO SON OF LATE LAXMI MAHTO AND ORS Vs. STATE OF BIHAR; RAMJEE MAHTO SON OF LATE RAMANAND MAHTO

JUDGEMENT

(1.) Heard learned Counsel for the petitioner, State and the Opp. Party No. 2.

(2.) The petitioners have challenged the order dated 11th September,2007 passed by Addl. Sessions Judge, F.T.C.II, Ara in Sessions Trial No. 319 of 2006 arising out of Ara Mufassil P.S. Case No. 11 of 2004 by which the petition for discharge of accused persons from the offence under Section 307 of the Indian Penal Code was rejected.

(3.) Learned Counsel for the petitioners submits that on bare perusal of the F.I.R., it is evident that there was no intention to kill the informant, though in the F.I.R. it has been alleged that one of the accused persons was carrying pistol in his hand. Learned Counsel further refers Annexures 2 and 3 to the petition which, according to him, are typed copy of the injury reports. Firstly, in para 5 of the petition, stand has been taken by the petitioners that the informant managed the police as well as the doctor in concocting false injuries report. Learned Counsel for the petitioners submits that with a view to apply Section 307 of the Indian Penal Code, the court is required to at least examine the three points: (i) manner of occurrence, (ii) weapon used in the occurrence and (iii) repetition of assault by the accused persons. The allegation of the F.I.R. has been incorporated in paragraph 3 of the petition. As per the F.I.R. when the informant fell down on the ground during the occurrence, one of the accused pointed pistol close to the informant. Others caught hold of the informant and pushed him on the ground. Some of the accused put legs on the chest as well on the hands of the informant and thereafter by putting rope around the neck of the informant accused persons started dragging the informant. In the meanwhile, on hearing sound of whining of the informant, the son of the informant arrived at the place of occurrence and immediately thereafter all the accused persons fled away. On the basis of the F.I.R., learned Counsel for the petitioners submits that no offence under Section 307 I.P.C. is made out and, as such, learned Sessions Judge while rejecting their petition for discharge from Section 307 I.P.C. has completely erred in the law and on this ground alone, the order is liable to be set aside. Learned Counsel for the petitioners further submits that it was a case, in which the learned Sessions Judge was required to exercise power under Section 228(1)(a) Cr.P.C., but the court below has failed to do so and order rejecting discharge petition is illegal.