IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9690 of 2008 1. BABULAL SAH 2. BHARAT SAH 3. SURENDRA SAH @ SURENDRA PRASAD …PETITIONERS Versus 1. STATE OF BIHAR 2. RAMCHANDRA SAH …OPPOSITE PARTIES For the petitioners : Mr. Ranjan Kumar Dubey For the State : Mr. Jharkhandi Upadhyay,APP For o.p.nop.2 : Mr. Sunil Kr. Pandey ----------- 03. 11.10.2010 Heard counsel for the parties. Petitioners faced accusations under sections 364 and 406/34 IPC based on the allegations contained in the FIR leading to investigation and filing of charge-sheet. Impugned order dated 13.12.2007 was passed by learned trial court in S.T.No.130/06/37/06, whereby their application filed under section 227 of the Code of Criminal Procedure (for short ‘the Code’) seeking discharge has been considered and rejected. Petitioners and informant are related to each other. Allegation is that the son of informant was enticed away by accused persons and taken to Delhi where he was subjected to torture and was killed. In course of investigation, the son of informant returned and made statements which were recorded under sections 161 and 164 of the Code. On a consideration of materials collected in course of investigation, including statements of the victim, charge-sheet was submitted which gave rise to the aforesaid sessions trial. The application of petitioners 2 seeking discharge was considered and rejected on the reasonings that there is/are sufficient evidence on record indicating the complicity of petitioners. Learned Addl. Sessions Judge referred to paragraphs 54 and 62 of the case diary which contain the statements of victim made under sections 161 and 164 of the Code respectively. It is the contention of the petitioners that learned trial court failed to consider the statements of victim made under section 164 in right perspective. As per the petitioners, the victim son has not alleged about kidnapping/abduction at the hands of petitioners. He has also not alleged that he was subjected to torture at the hands of accused persons (petitioners). Learned counsel appearing on behalf of the State as well as the opposite party, supported the impugned order. It has been stated that several witnesses have supported the prosecution case. Let it be recorded that no submission has been made with regard to the implication of section 406 IPC. Learned counsel for the petitioners has fairly stated that materials on record justify taking cognizance under section 406/34 IPC. Learned court below on perusal of materials on record including the case diary, has found that there is sufficient evidence on record justifying framing of charge under section 364 as well as 406/34 IPC. The implication of the statement of the victim made under section 164 shall be considered by the 3 court at the appropriate stage of the case/trial. This Court on a consideration of submissions made on behalf of the parties and on going through the impugned order is satisfied that the same does not call for any interference. The application is accordingly dismissed. hr ( Kishore K. Mandal )