CRIMINAL REVISION No.219 OF 2002 ----------- Against the order dated 28.2.2002 passed by the second Fast Track Court, Siwan, in Sessions Trial No.124 of 1999. ----------- 1. VYAS PANDEY , son of Ram Kripal Pandey 2. Surendra Yadav @ Surendra Chaudhary, son of Ram Bilash Yadav 3. Hare Ram Chaudhary, son of Radha Kishun Chaudhary 4. Yogendra Chaudhary, son of Bhola Chaudhary All are residents of vill.-Nawalpur, P.S.-Hussainganj, Distt.-Siwan---- ---------------------------------------------------------------(Petitioners) Versus STATE OF BIHAR---------------------------------------------(Opp. Parties) ------------- For petitioners : Mr. Udit Narayan Singh, Advocate Mrs. Poonam Kumari, Advocate For the State : Mrs. Indu Bala Pandey, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE MANDHATA SINGH Mandhata Singh,J. This revision application has been filed against the order dated 28.2.2002 passed by the Second Fast Track Court, Siwan, in Sessions Trial No.124 of 1999 by which petitioners application for discharge has been rejected and order for framing of charge has been passed. 2. Brief fact of the case is that a cow and a bullock of petitioners Vyas Pandey and Surendra Yadav were stolen. On alarm village people gathered and went on in search of the cattle- thieves. Two of the thieves of the stolen cattle were caught and assaulted by villagers of Chhata, Mahual and Badaram. Ultimately they succumbed to their injuries. After the cognizance the case was fixed for hearing. At that stage a petition under section 227 of the Code of Criminal Procedure was submitted on behalf of the 2 petitioners praying therein to discharge as no offence under section 304 of the Indian Penal Code was made out. After hearing the parties, prayer was refused. Legality, correctness and propriety of which are only in question for filing revision petition. 3. Submission of learned counsel for the petitioners is that their (petitioners’) guilt is that their cattle were stolen. Otherwise, there is no mention anywhere that petitioners were among assailants. Admittely, F.I.R. does not mention petitioners’ names as assailants. According to the learned counsel, in paragraph-28 of the case diary petitioners’ names surfaced in course of investigation that also is to the effect that these petitioners caught (apprehended) two of the thieves. Thereafter, villagers of Chhata gathered there, took both the thieves in their custody and brutally assaulted them. However, petitioners are not named as assailants. The only circumstance which can go against the petitioners is that they failed to prevent assailants from assaulting thieves. But the informant, chowkidar, who was with another chowkidar (Amarnath Manjhi) was present there and they also could not succeed to prevent the thieves from assault of the villagers though they were trying their best for the same. 4. I am also of the opinion that non-action in the above circumstances when two chowkidars also could not succeed to prevent can never be taken for accusation for the offence even under section 304 of the Indian Penal Code. 5. Accordingly, the revision petition is allowed. 3 Petitioners are discharged from their liability. The order dated 28.2.2002 passed by the Second Fast Track Court, Siwan, in Sessions Trial no.124 of 1999 is set aside. Patna High Court, 7th December,2009, NAFR/Sudip ( Mandhata Singh,J )