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Judgment
D.K. Sinha, J.—Petitioners have preferred this criminal revision for setting aside the order impugned dated 13.1.2009 passed by the learned
Additional Sessions Judge, F.T.C-III, Dhanbad in S.T. No. 476 of 2008 arising out of Baghmara (Barora) P.S. Case No. 60 of 2008 for the
alleged offence under Sections 323/341/307/302/34 of the Indian Penal Code by which the petition filed u/s 227 of the Code of Criminal
Procedure for their discharge was rejected.
Prosecution story in short was that the informant Dhananjay Kumhar (since deceased) while was digging earth near his house for connecting
water pipeline on 4.3.2008, it was opposed by the petitioners, who abused and there held altercation. Pursuant to that, it was alleged that the
petitioner Anup Kurnhar, who was holding iron rod in his hand, inflicted blow causing injuries on the head of the informant. When his son came to
rescue his father informant, he was also assaulted and thereby sustained injuries. Informant then presented a written report before the police station
on the same day on 4.3.2008 whereupon the police registered a case for the alleged offence under Sections 341/323/307/504/34 of the Indian
Penal Code against the petitioners. Informant Dhananjay Kumhar was referred to the Regional Hospital at Baghmara for his treatment and'''' the
doctor found lacerated injury measuring 2"" x� x� on his left parietal region of scalp with a small abrasion over his left shoulder. The said
injuries, in the opinion of the Doctor, were caused by hard and blunt object, inflicted within six hours of his examination. The nature of the injuries
was kept reserved awaiting the X-ray report of the scalp of the injured. When the injuries of the informant Dhananjay Kumhar could not be treated
at Baghmara hospital, he was then referred to the Central Hospital, Saraidhella on 12.3.2008 where he died on 13.3.2008 in course of treatment
and only thereafter the offence u/s 302 of the Indian Penal Code was added in the F.I.R. The learned Sr. Counsel explained that in the post-
mortem report of the Dhananjay Kumhar, the doctor found stitched wound on the body of; the deceased towards left occipital region and abrasion
on the left shoulder. On dissection, 50cc deep brown coloured liquid was found in the stomach which was taken out arid preserved for sending to
Forensic Science Laboratory to ascertain the actual; cause of death along with the other visceras. In the meantime, cognizance of the offence was
taken under Sections 341/323/307/504/34 of the Indian Penal Code after receiving the charge sheet. The case was committed and thereafter the
petitioners filed their petition u/s 227 of the Code of Criminal Procedure for their discharge relying upon the report of the Forensic Science
Laboratory dated 13.11.2008 wherein it was stated that the viscera of the Dhananjay Kumhar contained endosulfan which was chloro-organo
pesticide, commonly used in agriculture for killing pests and it was poisonous, but their petition was rejected;
The learned Sr. Counsel Mr. Tripathy submitted that the occurrence did not take place in the manner presented by the informant of the instant
case Dhananjay Kumhar, rather the actual version was that when the petitioner No. 3 Rupa Devi: along with her elder daughter-in-law was busy
on the alleged date of occurrence on 4.3.2008 in making preparation for the marriage of her son Ahup Kumhar, she heard alarm from the outside
and when she came out of her house, she noticed that Dhananjay Kumhar, his two sons along with other female members were-digging the ground
in front of her door and on query, Dhananjay Kumhar replied that he had to lay pipelines for water supply to which Rupa Devi objected and asked
him not to do so as the marriage of her son was going to be solemnizedion 13th March and her such ''reply resulted into altercation and exchange''
of filthy language. Thereafter Dhananjay Kumhar and other members of his family brought sticks and swords from their house and upon entering
and trespassing into the courtyard of Rupa Devi, they assaulted her daughter-in-law and the informant Rupa Devi as well. In the meantime, her son
Bharat Kumhar came and tried to pacify the situation but of no avail. On the written report of the Rupa Devi {petitioner No. 3), police registered a
case against the said Dhananjay Kumhar and five others for the alleged offence under Sections 341/323/354/448/504/34 of the Indian Penal Code
giving rise to Baghmara (Barora) P.S. Case No. 59 of 2008 first point in time before institution of the instant case.
Learned Sr. Counsel pointed out that Dhananjay Kumhar got himself admitted on 4.3.2008 with a small injury oh his head and one abrasion on
his left shoulder. As the injuries were found simple, he was discharged from the said hospital on 7.3.2008. On 12.3.2008, he was brought to the
Central Hospital, Saraidhella where he died on 13.3.2008. The Sr. Counsel further pointed out that as the pesticide was found in the stomach of
the deceased in the report of the Forensic Science Laboratory, his cause of death could be either culpable homicide by administering poison or
suicide committed by him and therefore, the injuries sustained by him on his head could not be the cause of his death. He was discharged from the
hospital on 7.3.2008 after he was found fit after his injury was bandaged and it was not the case that petitioners had administered poison at any
point of time or that the injuries found on the head of the victim, in the opinion of the Doctor, were sufficient to cause death. It would be relevant to
mention that Dhananjay Kumhar was hale and hearty, physically capable and he had surrendered on 12.3.2008 in the Court of Chief Judicial
Magistrate, Dhanbad in connection with Baghmara (Barora) P.S. Case No. 59 of 2008'' instituted at the instance of the Rupa Devi (petitioner No.
3) as would be evident from the order of the Chief Judicial Magistrate dated 12.3.2008 (Annexure-7). But the learned Additional Sessions Judge,
F.T.C-IH, Dhanbad, ignoring this material fact available on the record, rejected the petition filed on behalf of the petitioners u/s 227 of the Code of
Criminal Procedure on erroneous consideration that all the witnesses in the case diary had supported the factum of the incidence as alleged in the
F.I.R. arid that post mortem report suggested that the victim had sustained head injuries, materials sufficient: for framing of charge against the
accused-petitioners for the alleged offence under Sections 323/341/307/302/34 of the Indian Penal Code.
Finally, the learned Sr. Counsel submitted that the order impugned recorded by the learned Additional Sessions Judge was based upon
erroneous consideration as the Court failed to appreciate that there was no material on the record to suggest that the petitioners had administered
poison as a result of which he died. Even if it could be admitted for the argument sake that Dhananjay Kumhar had sustained injuries oh his head,
there was no material in the case diary to suggest that the head injury sustained by him was sufficient to cause his death.
On the other hand, the learned Counsel Mr. Mahesh Tewari appearing for the opposite party No. 2 strongly opposed the contention advanced
by Mr. Tripathy on the ground that the injuries sustained; by the victim Dhananjay Kumhar at the hands of the petitioners could not be denied as
the factum of occurrence Was corroborated by several witnesses as has been referred in the order impugned recorded by the learned Additional
Sessions Judge. It was not the case of the prosecution that the accused persons had administered poison, rather the petitioner No. 1 Anup
Kumhar inflicted blow with iron rod on his head in furtherance of common intention with the co-accused causing injuries having got bearing in the
injury report as well as in the post mortem report of the deceased. However, I find that Mr. Tewari, the learned Counsel is silent as to the finding
of pesticide in the stomach of the deceased in the viscera report furnished by the Forensic Science Laboratory which gives altogether a different
circumstances as to the cause of death of Dhananjay Kumhar.
Having regard to the facts and circumstances, arguments advanced on behalf of the parties, I come to the conclusion that no offence in the given
situation is made out u/s 302 or 307 of the Indian Penal Code against any of the petitioners; and at best, it could be u/s 325 of the Indian Penal
Code as the materials prima facie suggest without much more discussion and without prejudice to the merit of the case. As regards complicity of
the petitioner Rupa Devi in the alleged offence is concerned, her earlier version before the police suggests that it was Dhananjay Kumhar who was
aggressor and therefore, prima facie charge under Sections 325/34 of the Indian Penal Code cannot be, in my view, directed against her and I find
material sufficient to consider her case for discharge and accordingly she is'' discharged in Baghmara (Barora) P.S. Case No. 60 of 2008. For the
reasons stated above, I find prima facie materials to proceed against other two petitioners for the charge under Sections 325/34 of the Indian Penal
Code and accordingly they be proceeded after their record be transferred to the Chief Judicial Magistrate, Dhanbad u/s 228(1)(a) of the Code of
Criminal Procedure. Accordingly, this petition is disposed of by allowing it in part in the manner indicated above.