DEOKI NANDAN PRASAD, J. - (1.) THIS is an application under Section 397/401 of the Code of Criminal Procedure against the order dated 5.3.2002, whereby and whereunder the learned Additional Sessions Judge, Fast Court No. 1, Dhanbad rejected the prayer of the petitioners for discharge in connection with S.T. No. 225 of 2001.
(2.) PROSECUTION case in brief as stated that one Sudama Ram alleged that on 1.12.2000 at about 8.30 p.m., the petitioners accompanied with others came and by breaking open lock of the old house of the informant they started keeping their belongings in the said house forcibly. It is further alleged that Arun Sharma and Raju Sharma claimed the said house to be their own. It is also alleged that accused persons including the petitioners assaulted Sanjay Kumar Ram with fists and slaps, as a result of which he became unconscious and then he was brought to State Hospital, Taldanga but he was declared dead by the doctor. The FIR was lodged under Section 302/34, IPC. The police investigated into the case and submitted charge -sheet against the accused persons/petitioners. The learned counsel appearing on behalf of the petitioners submitted that the offence under Section 302, IPC, is not made out as there was no intention to commit murder of Sanjay Kumar as well as there was only allegation about assault with fists and slaps. It is further submitted that as a matter of fact, the petitioners got a decree with regard to the house in question, since the uncle of the petitioners namely Muneshwar Sharma filed a Title Suit No. 40 of 1985 which was decreed and thereafter the petitioners and other family members are in peaceful possession of the said house whereas the informant party being the aggressor made an attempt to enter into the house. It is also submitted that there is a general allegation of assault by fists and slaps and the instant case was initiated out of mala fide intention, which will be evident from C.P. Case No. 908 of 2001 which was registered under Sections 323/417/500/506/379/427, IPC, and the allegation as made out will at best attract for the offence under Section 304, Part II, of the IPC, and as such the Court below committed error in rejecting the prayer of the petitioners.
(3.) ON the other hand, the learned A.P.P. contended before me that there is a specific and direct allegation against all the accused persons including the petitioners for assaulting Sanjay Kumar Ram with an intention to kill him as the deceased was caught and get him throw to the field and thereafter the accused persons assaulted him with leg and fists as well as the injury caused on the vital part of the body, which is sufficient to indicate that the accused persons had intention to kill him and as such Court below rightly rejected the prayer for discharge of the petitioners.;