Goutam Bhaduri, J.

The challenge in this petition is to the order dated 07.07.2016 passed by the Additional Sessions Judge, Durg in Sessions Trial No.33 of 2016 whereby the application filed u/s 227 of the Code of Criminal Procedure to discharge the petitioner was rejected. Consequently the charges were framed against the petitioner under Sections 307, 323 read with section 506 Part-II of IPC. The impugned order is filed as Annexure P-1 and the charges so framed is filed as Annexure P-2.

2. As per the prosecution case on 26.09.2015 a written report was made by one Suraj Singh against one Sunil Gupta and petitioner Virendra Pratap Gupta. It was stated that on 26.09.2015 at about 9.30 a.m., he along-with his other co-workers of contract labourers were on strike at ACC plant. When they were on strike, Sunil Gupta with others came there and initially abused and told them that they are illiterate and since the bank was closed as such no payment could be made and asked them to leave the premises. However, the complainant and other workers continued with their strike. At that time, they were abused and assaulted by the present petitioner. Subsequently, Sunil Gupta, the General Manager of the ACC asked the petitioner who was his gun-man to shoot at them by pistol upon which the petitioner fired a gun shot from pistol which caused bullet injury to one Ashok Singh who sustained injury on his right hand finger. The other workers who were on strike were also assaulted by Lathi. On report being made, a crime was registered bearing No.451 of 2015 by the Police Station Jamul for the offences punishable u/ss 307, 294, 506-B, 323 read-with Section 34 IPC. Subsequently after investigation, charge sheet was filed against Virendra Pratap Singh, the petitioner herein. During the course of trial, an application was filed by the petitioner u/s 227 of Cr.P.C., to discharge the petitioner from the charges which was dismissed by the impugned order and the charges were framed.

3. (i) Learned counsel for the petitioner Shri Kishore Shrivastava, Sr. Advocate, referring to the nature of injury placed reliance in case of Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 and would submit that when there is a conflict between oral testimony and medical evidence and there are varied dimensions and shapes and in case the nature of injuries do not tally to the size and dimension of the weapon and when the injuries found on the victim were not supported by the kind of weapon used, then it can be inferred that the oral evidence regarding assault by use of particular weapon is not truthful. It is submitted that the injury is to be considered in the light of allegation and use of weapon. Referring to the injury, it is further submitted that the injury report would show that the injury is simple in nature which was caused by hard and blunt object. He further referred to the query report and stressed upon the query reports dated 07.10.2015 & 13.10.2015 and would submit that both the doctors have opined that the injury sustained by the victim cannot be caused by the bullet.

(ii) Referring to a case law reported in (2008) 16 SCC 99 Kapildeo Mandal and others v. State of Bihar the counsel would further submit that when there is variance between the medical evidence and ocular evidence and when the evidence given by the eyewitness is totally inconsistent to the evidence of the medical expert, then the entire evidence is to be appreciated in different perspective by the Courts. Further referring to the document of seizure, it is contended that though the seizure of Pistol was made but empty cartridges were not seized from the spot and it is not the case of the prosecution that the police tried to seize the cartridges and not found but the cartridges were not searched for. So the prosecution was sanguine of the fact that bullet was not fired at all. Further referring to FSL report, it is contended that the pistol sent for examination cannot be said