H.C. Mishra, J. - (1.) Heard learned counsel for the petitioner and learned counsel for the State. The petitioner has challenged the order dated 31.08.2010 passed by the learned Additional Sessions Judge, F.T.C.-II, Dhanbad in S.T. No. 314 of 2009 whereby, the application filed under Section 227 of Cr.P.C. by the petitioner for discharge was rejected by the Court below and the petitioner was directed to be present in the Court for framing of the charge.
(2.) It appears that the petitioner has been made accused for the offence under Section 376 of the Indian Penal Code in Tundi P.S. Case No. 64/2006 corresponding to G.R. No. 3050/2006, and there is direct allegation against the petitioner and the other accused to have committed gang rape upon the informant. In the F.I.R. itself, it is mentioned that prior to the occurrence, there was some altercation between the parties also due to which this occurrence had taken place. However, the fact remains that the alleged occurrence is of the night of 17.09.2006 whereas, the fardbeyan about the occurrence was given on 26.09.2006. It also appears that for the earlier occurrence also, information was given in the police station.
(3.) The impugned order shows that after investigation the police had submitted the charge-sheet against the accused persons only for the offences under Sections 323, 324, 452, 354/34 of the Indian Penal Code and had not submitted the charge-sheet for the offence under Section 376 of the Indian Penal Code and the cognizance was also taken by the Court below accordingly, and the trial was conducted in the Court of Magistrate. It appears that in course of the trial, three witnesses were examined who were the victim, the husband of the victim and the mother-in-law of the victim and all of them deposed in their evidence that rape was committed upon the victim by the accused persons, whereupon, the case was committed to the Court of Session. The petitioner filed application under Section 227 of the Cr.P.C., for discharge which was rejected by the Court below by the impugned order dated 31.08.2010.;