IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14883 of 2007 1. GUNNA NANDA YADAV 2. Kanhiya Yadav. 3. Krishna Yadav @ Krishnmohan Yadav. 4. Shivan Yadav, All are sons of Ram Adhin Yadav. 5. Bechan Yadav. 6. Deo Narain Yadav @ Debu Yadav son of Bashit Yadav. 7. Dekhi Yadav son of Chotkan Yadav. 8. Lohit @ Lobhit Yadav son of Dukhi Yadav. 9. Jai Narain Yadav. 10. Ram Shobhit Yadav, son of Gokhul Yadav, All are resident of village Nawa Bakhare P.S. Kishanpur, District Supaul. ………………… Petitioner. Versus 1. STATE OF BIHAR 2. Sakaldeo Yadav S/o- Late Ramjee Yadav, village-Nawa Bhakhar, P.S. Kishanpur, District-Supaul ………………… opposite party ----------- 6 30.04.2009 Heard learned counsel for the petitioners and learned A.P.P for the State. Despite valid service of notice issued earlier in the matter, no one appears on behalf of the opposite party No.2. Vide order dated 1.2.2007 the discharge petition filed on behalf of the petitioners stands rejected by the learned Additional Sessions Judge, F.T.C.IV, Supaul in Sessions Trial No. 170 of 2006. In the discharge petition it had been stated by these petitioners that even though in the F.I.R. there is categorical statement that the accused persons had used fire arms and even shoot at one Kameshwar Yadav and the bullet hit Kameshwar Yadav in which he lost three fingers there is no material to support it. Other allegations have also been made on the basis of 2 which Kishanpur P.S. Case No. 37/94 came to be instituted. The limited prayer in the discharge petition was that mere allegation in the F.I.R. will not make out a case under Section 307 of the I.P.C because there is nothing to support such a charge. From the materials which has come during investigation it appears that neither the said Kameshwar Yadav has been examined by the I.O. nor his statement taken under Section 161 Cr.P.C. nor any injury report of any kind has been produced before the I.O. to substantiate the allegation of firing and injury which will amount to a substantive offence under Section 307 of the I.P.C. The petition for discharge had been rejected on the ground that there is statement not only in the F.I.R. but some doctor had been also examined who has said that he had attended to the injured and referred him to Saharsa hospital for further treatment. But there was nothing to show that this doctor’s recommendation for further treatment was ever accepted by the injured or any kind of medical opinion had turned up in this regard. Mere allegations do not made an offence. To verify the position and to look into the basic material which had come during the course of investigation, case diary had been called for by this Court. Learned A.P.P for the State has pointed by taken 3 this Court though the case diary. Certain glaring facts which emerge is that Kameshwar Yadav had at no point of time ever appeared before the I.O. and the I.O. made no effort to record his statement to verify the allegation made in the F.I.R. In view of the fact that there is no injury report even by the so called doctor who attended on Kameshwar Yadav, the case seems to be wishy-washy and to that extent the Court is inclined to interfere with the order impugned dated 1.2.2007. The order dated 1.2.2007, therefore, stands quashed but liberty is given to the trial Court that in the event any cogent material and evidence emerges during the course of trial then appropriate steps may be taken in accordance with the provisions of Section 216 of the Code of Criminal Procedure. This application stands allowed. Bibhash (Ajay Kumar Tripathi, J.)