ANJANI KUMAR CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Khurshid Alam, learned counsel for the petitioner, Mr. Jai Prakash Verma, learned counsel for opposite party no. 2 and Mr. Z. Hoda, learned A.P.P. for the State.

(2.) This application is directed against the order dated 27.05.2008 passed in Sessions Trial No. 350/2007 by the Additional District and Sessions Judge, F.T.C.V Darbhanga. By the impugned order the opposite party no. 2 has been given the benefit of charges not being framed against him under Sections 307 and 386 of the Indian Penal Code and only charges under Sections 147, 148, 504, 323 and 324 of the Indian Penal Code have been framed and the case transferred to the Court by the Chief Judicial Magistrate for trial. The impugned order has been passed on the petition filed by the opposite party no. 2 and others who are accused in the case on 15.01.2008 under Sections 227 and 228 of the Code of Criminal Procedure Code, 1973 (herein after referred to as the 'Code'). Earlier the opposite party no. 2 and others had moved this Court in Cr. Misc. No. 13987 of 2007 in which the order taking cognizance dated 16.01.2007 under Sections 147, 148, 504, 323, 324, 307, 386/34 of the Indian Penal Code was challenged. By order dated 05.11.2007 this Court has permitted the application to be withdrawn with a liberty to the petitioners of the said case to agitate their grievances on the basis of materials available on record before the trial Court at the time of framing of charge or during the trial The opposite party no. 2 and others preferred to file a petition under Sections 227 and 228 of the Code and the impugned order was the result thereof.

(3.) Learned counsel for the petitioner submits that there are strong indications from the materials collected during investigation that the opposite party no.2 and others had assaulted the informant with the intention to kill which is reflected by the statement of various witnesses as well as the fact that repeated blows by sharp weapon as well as lathi was inflicted upon the informant by opposite party no. 2 and others on the vital part of the body, that is, head. This according to him, is a sound ground for framing of charge under Section 307 of the Indian Penal Code. Learned counsel also points out that the portion of the impugned order in which the Court has stated that from the evidence of the witnesses at paragraphs no. 5, 6, 17 and 19 in the case diary it was evident that they had not supported the version of the prosecution as far as the ingredients required to be fulfilled under Section 307 of the Indian Penal Code are concerned, is erroneous. He has assisted this Court on the basis of the statements made in the case diary which earlier had been called for by this Court and since been received.