IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8101 of 2008 1. Ram Kewal Sah @ Shanti Sah, son of Shital Sah, 2. Ramjee Sah, 3. Bisun Sah, 4. Laxman Sah, 5. Surendra Sah, all sons of Hari Sah, village Jaitpur, PS Haspura, district Aurangabad – petitioners. Vs. 1. The State of Bihar, 2. Md. Zainuddin Ansari, son of Late Amanat Ansari, village Jaitpur, PS Haspura, district Aurangabad – opp. parties. 2 25.1.2010 Heard the parties. This application has been filed for quashing the order, dated 21.1.2008 passed by the Additional Sessions Judge, FTC I, Aurangabad in S.T. No. 448/2007/303/2007, arising out of Haspura PS Case No. 11/2006, by which the court has refused to discharge the petitioners for the offence under section 302 of the Penal Code. Learned counsel for the petitioners submits that on account of scuffle the deceased fell down and the allegations contained in the F.I.R. are not true specially if the court considers them along with the injury report. At the stage of discharge the court cannot consider the injury report and pass an order discharging the petitioners. These aspects will have to be examined in a full-fledged trial after the evidence is evaluated by the court. Counsel for the petitioners also submits that in any event it is not a case under section 302/34 of the Penal Code as there was no pre-meditation to commit murder and in the facts aforesaid the present case would come within the purview of section 304 of the Penal Code. 2 It would always be open to the petitioners to raise this issue in the trial and the court after considering the fact can very well convict the petitioners if found guilty for the lesser offences. In the circumstances I find no illegality in the impugned order. This application is dismissed. haque (Sheema Ali Khan, J.)