IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38477 of 2008 Prakash Yadav son of jagdeo Yadav, Resident of village- Pitounghiya, P.S. Gogari, District Khagaria. ….. Petitioner . Versus The State Of Bihar . ----------- 02. 21.07.2011 Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State. Learned counsel for the petitioner is aggrieved with the order refusing to discharge the petitioner in Sessions case no. 141 of 2008. The fact would reveal that the deceased died after several days of the occurrence. The post mortem reveals, that there was a stitched wound on the stomach of the victim. It has been submitted that the victim had undergone an operation, and he died due to ‘pus’ formation on the wound, due to infection. It is submitted that the prosecution has been instituted maliciously. No such occurrence took place. Taking advantage of death of the deceased and the previous enmity between the parties, this case has been instituted. Learned counsel for the petitioner submits that post mortem indicates that no case has been made out under section 302 of the Indian Penal Code, whereas the court has relied on the evidence of the case diary to reject the application for discharge. It appears to a case where the oral evidence is in conflict with the medical evidence. This aspect of the matter will need to be tested in trial as such this court cannot interfere with the order impugned. This application is disposed of with the aforesaid observation. Devendra/ (Sheema Ali Khan, J)