IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20906 of 2011 1. Rafiuddin Haider @ Dabloo, S/O late Haider Mian 2. Gafoor Mian, S/O late Ibrahim Mian 3. Ashfaque @ Afzal Ansari S/O Gafoor Mian 4. Ayub Ansari S/O Hamid Mian 5. Md. Yunus Ansari @ Mantu S/O Idris Ansari, all are R/O village-Brahampur, P.S. Masharak, Distt-Chapra……..Petitioners. Versus The State Of Bihar……… Opposite Party. ----------- For petitioners:- M/s Sarwan Kumar, Adv Vipin Kumar. For State:- Mr. P. Kr. Pandey, APP -------- 2/ 29/11/2011 Heard learned counsel for the petitioner and learned Additional P.P. for the State. 2. Petitioner is aggrieved by an order dated 8.4.2011 by 1st Additional Sessions Judge, Saran at Chapra in connection with Sessions Trial No. 51/2011 whereby and whereunder prayer of the petitioner has been refused. 3. Contention on behalf of the petitioner is that from the FIR itself it is evident that the deceased, Jabbar Mian was struck down while he came in rescue of informant, Tarbeer Hussain @ Shatrughan Mian at the hands of accused persons for which neither the accused persons carried an intention nor assaulted him having a knowledge that by such act his death will ultimately, be the result. So submitted that in the aforesaid background, no offence under Section 302 of the IPC is made out. 2 4. On the other hand, learned A.P.P. opposed the prayer and submitted that the prayer of the petitioner is not at all maintainable. 5. As per submission coupled with the order, charge under Section 302 of the IPC along with other minor offences had already been framed against the petitioner. Therefore, the prayer in its present form appears to be non tenable. However, the learned lower court will be at liberty to see at the proper stage of the trial after scrutiny of the evidence whether it happens to be a case covering Section 304 of the IPC for which the learned lower court is itself competent in light of Sub-Section 2 of Section- 222 of the Cr.P.C. without being influenced by the order impugned. 6. With the aforesaid observation, the instant petition is disposed of. perwez (Aditya Kumar Trivedi,J.)