IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.83855 of 2024 Arising Out of PS. Case No.-1365 Year-2023 Thana- AHIYAPUR District- Muzaffarpur ====================================================== Rajnish Kumar @ Golu Kumar @ Golu @ Chhotu S/O Sunil Shahi R/O Sahwazpur, P.S- Ahiyapur, Distt.- Muzaffarpur. ... ... Petitioner Versus 1. The State of Bihar 2. Anita Devi W/O Late Bhola Nath Thakur R/O Village- Sahbajpur, P.S- Ahiyapur, Distt.- Muzaffarpur. ... ... Opposite Party With CRIMINAL MISCELLANEOUS No. 3009 of 2025 Arising Out of PS. Case No.-1365 Year-2023 Thana- AHIYAPUR District- Muzaffarpur ====================================================== Shivam Mishra @ Shivam Kumar Mishra @ Shivam Kumar S/o- Ashok Kumar Mishra R/o- Sahwazpur PS-Ahiyapur Dist- Muzaffarpur ... ... Petitioner Versus 1. The State of Bihar 2. Anita Devi W/o- Late Bhola Nath Thakur Village- Sahbajpur Ps- Ahiyapur Dist- Muzaffarpur ... ... Opposite Party ====================================================== Appearance : (In CRIMINAL MISCELLANEOUS No. 83855 of 2024) For the Petitioner/s : Ms.Smiti Bharti, Advocate For the Opposite Party/s : Mr.Shailendra Kumar Singh, APP (In CRIMINAL MISCELLANEOUS No. 3009 of 2025) For the Petitioner/s : Mr.Smiti Bharti, Advocate For the Opposite Party/s : Mr.Anuj Kumar Shrivastava, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT Date : 25-03-2025 Heard Ms. Smiti Bharti, learned counsel appearing for the petitioner(s) and learned A.P.P. for the State. 2. Both aforesaid petitions have been filed for quashing of the order dated 26.09.2024 as passed by learned 3rd Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 2/11 Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 142 of 2024 arising out of Ahiyapur P.S. Case No. 1365 of 2023, where learned trial court has refused the prayer of discharge as pressed on behalf of the petitioner(s) under Section 227 of the Code of Criminal Procedure. 3. The brief facts of the prosecution case as it appears out of information furnished by Anita Devi, wife of deceased late Bhola nath Thakur that on 17.10.2023 at about 8:40 P.M., while her husband was returning home after closing his shop and was about ten steps away from his house, three miscreantes who were hiding behind a Litchi tree accosted him and opened indiscriminate firing upon him. The informant, after hearing the gunshot, rushed towards the place of occurrence and saw Golu Kumar @ Chhotu (petitioner) shooting at her husband with a country made pistol. She further alleged that other miscreants found covered their face with a cloth, but the moment the cloth got off, she identified them as Shivam Kumar (petitioner) and Md. Rehan, who were also involved in firing at her husband. The informant, after the occurrence, took her husband Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 3/11 immediately for treatment in Maa Janki Hospital, Muzaffarpur, but her husband was declared brought dead, thereafter, the body was taken to Sri Krishna Medical College Hospital Muzaffarpur for autopsy. The informant also raised suspicion regarding involvement of Soni Kumari, Sunil Shahi, Md. Murtaza towards commission of this offence. 4. On the basis of aforesaid information, Ahiyapur P.S. Case No. 1365/2023 was registered for the offences punishable under Section 302, 120B/34 of the Indian Penal Code and Section 27 of the Arms Act. 5. The police after investigation submitted charge- sheet in this case on 10.01.2024 against three accused persons namely, Md. Rehan, Rajnish @ Golu Kumar @ Chhotu and Shivam Kumar under section 302/120B/34 of the I.P.C. and section 27 of the Arms Act and submitted closure report against Sunil Shahi, Md. Murtaza and Soni Kumari @ Suman @ Sonam. Accordingly, learned Chief Judicial Magistrate was pleased to take cognizance of the offences punishable under Sections 302/120B/34 of the I.P.C. and section 27 of the Arms Act against petitioner(s) vide order Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 4/11 dated 12.01.2024. 6. Ms. Smiti Bharti, learned counsel appearing for the petitioner(s) submitted that petitioner(s) were taken into custody before lodging of the F.I.R. and the Investigating Officer failed to assign any reason for their arrest. It is also submitted that none of the witnesses supported the presence of petitioner(s) at the place of occurrence during the investigation and also his involvement towards commission of the offence. It is further submitted that accused-petitioner(s) implicated in this case just because he was a witness in Ahiyapur P.S. Case No. 97 of 2023, in which son of the informant is an accused. 7. Beside aforesaid, learned counsel also raised certain issues regarding manipulation in the case diary by way of overwriting and further submitted that scientific evidence like CCTV footage and CDR could not obtain during investigation despite of direction of the supervising authority. It is submitted that materials available on the record may assign motive and suspicion but not “grave suspicion”, which if not rebut, may cause conviction and, therefore, the Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 5/11 impugned order rejecting petition under section 227 of the Cr.P.C. by the learned trial court is bad in the eyes of law and same is fit to be set-aside/quashed. 8. Learned A.P.P. for the State, while opposing the aforesaid petition, submitted that informant is the eye witness of the occurrence, where she stated categorically that occurrence took place hardly ten steps away from her house and petitioner along with two other accused persons opened indiscriminate firing upon her husband causing his death. It is submitted that the issue, which has been raised by learned counsel for the petitioner(s), cannot be looked at this stage because in view of statement of informant, who is none but the widow of the deceased Bhola Nath Thakur, is sufficient to arrive on prima-facie conclusion that petitioner(s) be put on trial after framing of charge as same is not “groundless”. 9. It is further submitted by learned A.P.P. that as per seizure list six empty cartridges were recovered from the place of occurrence, on back of which there was a clear mark of firing. 10. In support of his submission, learned A.P.P. Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 6/11 relied upon the legal report of Hon’ble Supreme Court as available through State of Tamil Nadu Vs. R. Soundirarasu and Ors. reported in 2022 SCC Online SC 1150 and State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489]. 11. It would be apposite to reproduce the F.I.R. in issue and seizure list for better understanding of the facts, which are as under: “QnZC;ku vfurk nsoh mez djhc 40 ifr Hkksyk ukFk Bkdqj xzke&”kgoktiqj Fkkuk & vfg;kiqj] ftyk& eqt0 iqj vfHk0 iq0 v0 fu0 fot; izlkn vfg;k iqj ftyk& eqtQ~Qjiqj Fkkuk ftyk eqt-iqj S.KM.C.H. dSEil dt. 18-10-2023 le; 12:15 P.M. gekjk uke vfurk nsoh mez djhc 40 o’kZ ifr Hkksyk ukFk Bkdqj xzke “kkgoktiqj Fkkuk vfg;kiqj ftyk eqtQ~Qjiqj dk fuoklh gwWA vkt fnukad 18-10-23 dks le; 12:15 P.M cts S.K.M.C.H. dSEil eq0iqj esa vki vfg;kiqj Fkkuk ds iqfyl ink0 ds le{k esa viuk C;ku ns jgh gWw dh fnukad 17@10@23 dks le; djhc 15:00 P.M “kke dks gekjs ifr HkksykukFk Bkdqj vius ?kj ls vius fdjkuk nqdku [kksyus ds fy, fudys fQj “kke djhc 20-40 P.M esa viuk nqdku cUn djds ?kj ds fy, okil vk jgs Fks dh jkLrs esa vius ?kj ls 10 dne igys jruiqj fuoklh ds ?kj ds ikl Fkkuk&vfg;kiqj ftyk&eqt0iqj ds ckn cxy esa fyfp ds ckxokuh esa ?kkr yxk dj Nqis rhu O;fDr ftldk mez djhc 18 ls 25 o"kZ ds chp ds Fks ftlesa nks O;fDRk eqWg ij diM+k ckW/k dj j[kk Fkk vkSj ,d vkneh viuk psgjk diM+k ugha j[kk Fkk fruks fyfp ds ckxokuh ls fudy dj gekjs ifr Hkksyk ukFk Bkdqj ds ckbZd ls ?kj vk jgs Fks muij fruks feydj cxy ls xksyh ekjus yxk ge xksyh dh vkokt lqu ge nkSM+ iM+h D;ksafd ml le; ge vius ?kj ds ikl gh Fkh ge tc nkSM+ ds ?kVuk LFky ij igwWph rks ns[kk dh 1- xksyw dqekj mQZ NksVw firk lwfuy Patna High Court CR. MISC. MISC. No.83855 of 2024 dt.25-03-2025 7/11 “kkgh vius gkFk esa ns”kh dVk ls gekjs ifr Hkksyk ukFk Bkdqj dks xksyh ekj fn;k rhuks ds gkFk esa ns”kh dVk Fkk fruks ds }kjk xksyh Qk;j djds gekjs ifr dks 5&6 xksyh ekjk gejk ifr ogha ij xaHkhj :i ls t[eh gks x;s vkSj tehu ij fxj x, rHkh nksuksa ds eqg ij ls diM+k gVrs gh ge igpku dj fy;s ftles a,d dk uke 2- f”koe dqekj firk v”kksd dqekj feJk nksuksa xzke “kkgokt iqj 3- eks jsgku is0 eqrZtk xzke eqjkn iqj nqYyk fruksa Fkkuk vfg;kiqj ftyk eqt0iq ds Fks tks xksyh ekjds fQj fyfp ds ckxokuh ds rjQ Hkkx fudys fQj eSa xkzfe.kksa ds lg;ksx ls ekW tkudh cSfj;k xksyEcj ij eqt0 iqj esa bykt gsrw ys x;s tgkW ij ekW tkudh gkWLihVy ds MkWDVj }kjk ns[krs gh e`r ?kksf"kr dj fn;k fQj eS vfg;kiqj Fkkuk iqfyl ds lkFk ,Ecqysa”k }kjk S.K.M.C.H. dSEil eqt0iqj esa ykdj vius ifr Hkksyk ukFk Bkdqj dk iksLV ekVZe djk;k x;k gS eq>s iw.kZ fo”okl gS dh gekjs ifr Hkksyk ukFk Bkdqj dks xksyh ekjus esa lkth”k ds rgr 4- lksuh dqekjh mQZ lque ifr larks"k >k 5- lqfuy “kgh is0 ukekyqe nksuks xzke “kkgoktiqj 6- eks0 eqrZtk is0 ukekyqe xzke eqjkniqj nqYyk lHkh Fkkuk vfg;k iqj ftyk eqt0 iqj dk gkFk gS mijksDr lHkh ds lkftl ds rjg gekjs ifr dks xksyh ekj dj gR;k fd;k x;k gS xksyw dqekj f”koe~ dqekj ,oa jsgku nks fnu ls esjs ?kj ds vkl ikl jWdh dj jgk FkkA ;gh gekjk C;ku gS eSa viuk C;ku dks i<+ o i<+okdj lqu o le> fy;k lgh fy[kk ikdj ge vius ekeh vk”kk >k ds le{k ge viuk vaxwBk dk fu”kku yxk fn;kA fot; izlkn 18-10-23 iq0 v0 fu0 vfg;kiqj Fkkuk dSEil K.M.C.H. dSEil eqtQQjiqj Registered Ahiyapur P.S. Case No. 1365/23 dated – 18.10.23 u/s 302/120B/34 I.P.C. & 27 Arms Act Sunil Kumar will pl. investigated this case Sd/- 18-10-23 SI Ahiyapur” “tIrh lwph 1- izlax&vfg;kiqj Fkkuk dkaM la0 365@28 fnukad 18-10-23 /kkjk Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 8/11 302/120B/34 Hkk0 n0 fo0 2- frfFk o le;& 17-10-23 le; 21-15 ctsA 3- og LFkku tgkW tIr fd;k x;k& xzke “kkgcktiqj fLFkr oknhuh ds ?kj ds 20 dne nf{k.k xzkeh.k lksfyax lM+d ij ,oa ikl ls Fkkuk vfg;kiqj 4- xokgksa ds uke @ irk ftlds le{k tIr fd;k x;k& 1- fl0 988 jkgqy dqekj 2- g0 fcjsUnz cSBk 5- tIr lkekuksa dk fooj.k& Qk;j fd;k gqvk dkrZql dk [kksa[kk lHkh [kks[kk ds iSans ij 7-65 km >Q vafdr gSA rFkk lHkh isan ij Qk;fjax lhu dk fu”kku gSA 6- xokgksa dk gLrk{kj& 1- g0 fcjsUnz cSBk 2- fl0 988 jkgqy dqekj 7- iqfyl inkf/kdkjh dk gLrk{kj ftuds }kjk tIr fd;k x;k& Sunil Kumar 17-10-23 SI Ahiyapur Camp & Shahbajpur” 12. In this context, it is relevant to reproduce paragraph 8, 9, 10, 11 & 12 of the impugned order for a ready reference: “ 8. At the stage of Section 227 Cr.P.C., the Court is not required to hold mini trial and to come to conclusion that the material adduced in the case could warrant conviction. The Court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the court disclosed grave suspicion against the accused which has not been properly explained, it will be justified that a charge is framed and the trial is proceeded with. It would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case without affording reasonable opportunity to prosecution to substantiate the allegation. 9. The perusal of case diary shows that the informant Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 9/11 reiterated her allegation in ber re-statement in para 15 of case diary, the allegation also finds support from witness in para 16. Para 27, 59 the accused Rajnish Golu and Rehan @ Injmaam have confessed their guilt and role of other accused persons in this case. The witness Anil Jha has also supported the allegation in para 46 against the petitioner and other accused persons. The independent witnesses in para 88 and 89 have stated that due to previous enmity, the petitioner Golu Chhotu along with co-accused Shivam Kumar and Md. Rehan had shot at Bhola Nath Thakur due to which he got injured and later on died, that there was dispute between the parties for vacating the grocery shop. The above material shows that the informant and other witnesses had seen Md. Rehan, Rajnish @ Golu @ Chhotu and Shivam Kumar firing gunshots towards the deceased leading to his death Para 135 shows the motive of the accused persons to eliminate the deceased Bholanath Thakur as he was the informant and witness in Ahiyapur PS case no. 946/23 lodged by him for murder of his son by Md. Rehan and Shivam Kumar and others. 10. On the basis of above materials there appears credible ground to proceed against the petitioner Rajnish @ Golu Kumar @ Golu @ Chhotu. 11. So far as the grounds taken by the petitioner in the discharge petition that there was delay in filing the FIR, the non-extraction of the mobile location, CDR and CCTV footage, non-examination of independent witness is concerned, this Court not sitting in its revision jurisdiction and the accused persons will have the opportunity to raise these matters when the case comes at the stage of defence evidence. 12. In light of above discussion, I am of opinion that there is credible material against the accused person in the case diary and there exists sufficient ground to proceed against the accused Rajnish @ Golu Kumar @ Golu @ Chhotu in this case.” 13. It would be further apposite to reproduce para Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 10/11 ‘7’ of L. Muniswamy case (supra), which reads as under: "This section is contained in Chapter XVIII called 'Trial before a Court of Sessions. It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reason to be recorded that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused.” 14. In view of the aforesaid facts and legal discussion, it transpires that the impugned order in question is well-reasoned and discussed, where different witnesses, during course of investigation, supported the involvement of the petitioner(s), moreover, informant herself is the eye witness of the occurrence and found petitioner(s) firing upon her husband, who was declared brought dead by the private hospital at Muzaffarpur. 15. In view of all such credible materials, the issue raised for quashing of discharge order not appears convincing to look in its probative value at this stage, for which the learned trial court rightly rejected the prayer of discharge as pressed by petitioner(s) under Section 227 of the Cr.P.C. Patna High Court CR. MISC. No.83855 of 2024 dt.25-03-2025 11/11 16. Accordingly, both above mentioned applications stand dismissed. 17. Let a copy of this order be sent to the learned trial court/concerned court immediately. Rajeev/- (Chandra Shekhar Jha, J) AFR/NAFR AFR CAV DATE NA Uploading Date 07.04.2025 Transmission Date 07.04.2025