In this Revision Application filed under Sections 397 and 401 of the Code of Criminal Procedure (in short ‘the Code’), the four petitioners have challenged the order dated 30.03.2010 passed by Additional Sessions Judge, F.T.C.- II, Chatra in S.T. No. 37 of 2010 whereby and whereunder the petition filed by the petitioners, for their discharge under Section 227 of the Code, has been rejected.

2. The petitioners have been made accused in Tandwa P.S. case no. 27 of 2008 corresponding to G.R. Case no. 390 of 2008 for the offence under Sections 302/34 of the Indian Penal Code on the allegation that on 07.04.2008 at about 8:30 P.M., the petitioners came to the house of the informant Malti Devi and called her husband Sarvjit Yadav and took him along with them for eating chicken but when the husband of the informant did not return in the night, she tried to search her husband when one Prabhu Yadav, who found the husband of the informant lying dead on the road in the morning, informed the informant. The informant came to know that after eating chicken, her husband along with the petitioners had gone for quarrying boulder in village Koyad whereafter the dead body was found. The informant suspects that petitioners have killed her husband.

3. It appears from the record that after investigation, the police submitted the charge sheet against only one accused Chandrasekhar Singh under Sections 279, 304(A) of the Indian Penal Code and also under Section 134 of M.V. Act and submitted the final form against the other petitioners namely Kedar Yadav, Bishun Ganjhu @ Bigan Ganjhu @ Rambesar Ganjhu and Chaturgun Sao and they were not sent up for trial. The learned Chief Judicial Magistrate finding sufficiency of evidence and materials on record including the statements of two witnesses Lal Kishun Yadav and Triveni Yadav differing from the police report, took cognizance of the offence under Section 302/34 of the Indian Penal Code not only against the petitioner no.1 Chandrasekhar Singh but also against the other three petitioners. Thereafter, the case was committed to the Court of Sessions where the petitioners filed the petition under Section 227 of the Code for their discharge, which was rejected vide order dated 30.03.2010. It further appears from the record that the petitioners never challenged the order taking cognizance before any Court.

4. Mr. Jitendra S. Singh, learned counsel for the petitioners, while assailing the order impugned submitted that the court below without appreciating the evidence on record rejected the prayer for discharge of the petitioners on erroneous ground. Learned counsel has taken the Court through various paragraphs of the case diary and submitted that on mere perusal of those paragraphs of the case diary, it would appear that without appreciating the contents of those paragraphs though the entire allegation is based on circumstantial evidence, the order impugned was passed. It was further seriously contended that though the charge sheet was submitted under Sections 279 and 304(A) of the Indian Penal Code and 134 of M.V. Act but merely relying upon the statements of two witnesses, who were not even the eye witnesses of the occurrence, took cognizance under Section 302/34 of the Indian Penal Code. It was also submitted that the entire case of the prosecution case rests on suspicion though it is well settled that on mere ‘suspicion however strong it may be’ cannot take place of evidence though several independent witnesses have supported the factum of accidental death. Learned counsel further relying upon a judgment reported in (2008) 10 SCC 394 submitted that the Hon’ble Supreme Court has held that “if two views are equally possible and the Judge is satisfied that evidence produced gives rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or not.”

5. Refuting the content