- (1.) PRESENT criminal revision is directed against the order impugned dated 31.7.2008, passed by Sub Divisional Judicial Magistrate, Bokaro in G.R. No.417 of 2007 by which petition of the petitioners for their discharge under Section 239 of the Code of Criminal Procedure was rejected.
(2.) PROSECUTION story, in short, was that on 31.3.2003 at about 6.30 p.m. while informant was sitting along with the other witnesses at Telgaria turning, he was apprehended and surrounded by the petitioners and one Jitendra Nath Mishra. It was specifically alleged against the principal accused Jitendra Nath Mishra that he with the intention to commit murder, attempted to inflict blow with dagger to the informant, but the latter warded off with his right hand and in that action, he sustained cut injuries in his right hand. Jitendra Nath Mishra then repeated his blow to which informant this time applied his left hand to prevent the attack but he sustained cut injuries in his left finger. It was alleged against the petitioners, that they were holding the informant, while the principal accused was attempting on the life of the informant. On the alarm, the witnesses arrived at the scene. Yet, it was specifically alleged that the co -accused Sapan Mishra (Petitioner No.3) escaped after removing the wrist watch from the possession of the informant and that the occurrence was given effect to in furtherance of common intention by the accused persons with the intention to commit his murder. The learned counsel submitted that the occurrence did not take place in the manner presented by the informant Pankaj Kumar Roy. Contrary to the allegation, on the date and time of the alleged occurrence, informant along with another Bikram Roy had come to the betel shop of the accused Jitendra Nath Mishra and in course of altercation, informant broke the looking glass, which was hanging in the betel shop of the accused Jitendra Nath Mishra and on protest, they assaulted Jitendra Nath Mishra. As a matter of fact the petitioners were not there at the alleged place of occurrence, therefore, their participation in the alleged occurrence did not arise. This fact was considered by the investigating officer in course of investigation and supported by the Sub Divisional Police Officer, Bokaro on whose supervision note charge sheet was submitted only against Jitendra Nath Mishra and that the petitioners herein were not sent up for trial.
(3.) LEARNED counsel pointed out that since complicity of the petitioners could not be found in course of investigation, the investigating officer submitted charge sheet only against Jitendra Nath Mishra for the alleged offence under Sections 341/323/324/504 of the Indian Penal Code. But the learned C.J.M., Bokaro took cognizance of the offence under aforesaid Sections of the Indian Penal Code against all the accused persons without appreciating that there was no material against the petitioners in the case diary alleging their complicity.;