Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.8799 of 2011 ====================================================== 1. Lekha Rai S/O Late Amiri Rai Resident Of Village- Susta Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur .... .... Petitioner/s Versus 1. The State Of Bihar 2. Bisheshwar Rai S/O Prabhu Rai Resident Of Village- Susta Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur 3. Aseshwar Rai S/O Prabhu Rai Resident Of Village- Susta Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur 4. Chandeshwar Rai S/O Dayali Rai Resident Of Village- Susta Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur 5. Shesh Narayan Rai S/O Ishri @ Ishwari Rai Resident Of Village- Susta Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Md. Anis Akhtar, Adv. For the O.P.No.2 to 5 : Mr. Arun Kumar Sinha, Adv. For the State : Manoj Kumar No.1, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 23-08-2012 In this case, petitioner is challenging the order dated 10th February 2011 passed in Sessions Trial No. 326 of 1997 arising out of Gaighat P.S.Case no. 5 of 1996 whereby and whereunder the court below has rejected the application dated 22nd November 2010 filed [STATUTE] (in short, ‗Code‘) making a prayer for summoning O.P.Nos. 2 to 5. From the FIR it appears that the informant‘s father had gone to purchase fertilizer from the adjacent village and while he was returning back, the informant met his father near Susta Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 2 / 11 2 Bazar at 5:00 P.M. when both were returning, they saw 15 persons near the Darwaza of Deo Narayan Rai. When they further proceeded, heard the noise of Pakro-Pakro. Then the informant saw that all the accused persons are beating his father with Chura, Lathi, Danda, Int, Patthar etc. and when the co-villager and sister of the informant came to rescue his father, they were also beaten by the accused. In consequence of this assault, father of the informant had died and the dead body was brought by the accused on Khatia and they kept it on the Darwaza of the informant and thereafter fled away. Thereafter the present case was registered as Gaight P.S.Case No. 5 of 1996 [STATUTE] he investigation was taken up. During investigation, large number of persons were examined and charge- sheet was submitted against seven accused [STATUTE] gainst rest of the accused, investigation was kept pending and thereafter Police submitted supplementary charge-sheet against four persons under the aforesaid Sections but the O.P.Nos. 2 to 5 were not sent up for trial. Charges were framed against those sent up accused Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 3 / 11 3 for the offences [STATUTE] r framing of charge, trial proceeded and altogether eight witnesses have been examined. It appears from the record that the informant had filed an application [STATUTE] en witnesses were examined on behalf of prosecution. In the application, it has been stated that sufficient incriminating materials have come against them, during deposition of witnesses and materials sufficient for calling them to stand trial. It appears from the record that the court below passed the impugned order and rejected the prayer. Counsel for the petitioner submits that the court below has fallen in error in considering evidences collected by Police during investigation as he was required to confine his consideration to the depositions which were recorded during trial. It was further submitted that P.Ws. 1, 2, 3 & 6 have deposed sufficiently which may likely lead to conviction of O.P. Nos. 2 to 5. Counsel for the O.P has submitted that the court below has not committed any wrong in refusing to summon O.P. Nos. 2 to 5 to stand trial but he has agreed on one point that the Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 4 / 11 4 court below while passing the order should not have traveled to examine the statements recorded by Police, while exercising the power [STATUTE] eration to the statements recorded during the trial and not the statement collected during investigation. He has stated that the occurrence had taken place on 18th January 1996, 1st charge–sheet was filed on 20th July 1996 where seven persons were sent up for trial and thereafter supplementary charge-sheet was filed on 25th October 1996 where four persons were sent for trial. The case was committed to the court of Sessions in the year 1997, charges were framed on 22nd July 2005. P.W.1 was examined in 2009 who is full brother of victim, P.W.2 is the daughter in-law, P.W.5 is the daughter of victim and P.W.6 (informant) is the son of the deceased. It is submitted that they are highly interested witnesses and their statements cannot be a ground for calling the P.Ws. 2 to 5 to stand trial. He has further submitted that the case was lodged in the year 1996 and at this stage, after lapse of such long time, it is not desirable to call upon them to face trial because the Hon‘ble Supreme Court opined that the stage of trial and time consumed are important factors for consideration, while deciding the case [STATUTE] (4) dt.23-08-2012 5 / 11 5 Having consider the rival contention of the parties, it is desirable to consider tenor and spirit of the provisions of Section 319 of the Code which is as follows: Section 319: Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.