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2016 DIGILAW 635 (PAT)

Bharat Thakur v. State of Bihar

2016-05-17

I.A.ANSARI, NILU AGRAWAL

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JUDGMENT : Nilu Agrawal, J. The present appeal has been preferred against the judgment and order, dated 28.08.2014, passed by learned 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 510 of 2006/161 of 2013. 2. By the impugned judgment, the learned trial Court has acquitted respondent Nos. 7 to 9 herein of the charges framed against them under Sections 147, 323 and 307 read with Section 149 of the Indian Penal Code and respondent Nos. 2 to 6 herein of the charge framed against them under Section 307 read with Section 149 of the Indian Penal Code, but having found respondent Nos. 2 to 6 herein guilty of the charges framed against them under Section 147 and 323 of the Indian Penal Code, the learned trial Court convicted them accordingly. 3. Challenging the acquittal of respondent Nos. 2 to 9 of the charges framed against them under Section 307 read with Section 149 of the Indian Penal Code, the brother of the informant, Bharat Thakur, has filed this appeal on the ground that the learned trial Court did not consider the injury report, which, according to PW 8 (Officer-in-Charge), was procured and, hence, the learned trial Court committed an error holding that no case, under Section 307 of the Indian Penal Code, was made out against the respondent Nos. 2 to 9 herein. 4. The prosecution’s case, in brief, is that there was land dispute between the informant, Kamlesh Thakur (P.W.1), and his full brother, Amaresh Thakur. On 25.07.2004, at about 01:30 P.M., a panchayat was held to resolve the land dispute, but in the meantime, local M.L.A., Jai Nandan Yadav, came there and fixed the date for panchayat on 28.07.2004 as he was engaged in the work of flood relief. On the same day, at about 02:25 P.M., all the accused persons (respondents 2 to 9 herein), along with Amaresh Thakur and Nagendra Rai, came, armed with lathis, to the door of the informant and started searching for him and his, brother, Bharat Thakur, and when they tried to flee away, all the accused persons surrounded them and accused Amaresh Thakur (dead) gave blow by means of lathi on the head of his brother, Bharat Thakur (P.W. 2), whereupon Bharat Thakur fell down, accused Ramanuj Thakur and Kaushal Thakur also assaulted Bharat Thakur. When the informant tried to save him, accused Bijali Rai, Nagendra Rai (dead), Binod Rai and Manoj Rai caught him and inflicted blows by means of lathi. Accused Akhileshwar Thakur assaulted him by bricks on his chest, ear and upper portion of neck. The witnesses came there and took them to hospital for their treatment from where injured Bharat Thakur was referred to Sadar Hospital, Sitamarhi, for better treatment. 5. On the basis of the fardbeyan of the informant, Kamlesh Thakur (P.W. 1), Parihar Police Station Case No. 27 of 2004 was registered against 10 accused persons under Sections 147, 148, 149, 341, 323, 307, 337, 447 of the Indian Penal Code. During the pendency of the trial, two accused persons, namely, Amaresh Thakur, Nagendra Thakur, died and the trial against them stood abated. 6. The prosecution has examined altogether nine witnesses in support of its case. P.W. 1 (Kamlesh Thakur), the informant, has deposed that there was a dispute between him, including Bharat Thakur (P.W. 2), against his full brother, Amaresh Thakur, regarding cutting of trees and a panchayati was organized on 25.07.2004 by local M.L.A., which was deferred, and on the same date, at about 02:30 PM, Amaresh Thakur (now dead) gave blow by lathi on Bharat Thakur on his head and when PW 1 went to rescue his brother, accused persons, namely, Kapileshwar Thakur, Akhileshwar Thakur and Rajeev Thakur gave blows by means of lathi and also pelted brick bats, causing injury on his cheek. 7. P.W. 2 (Bharat Thakur), in his evidence, has deposed that there was land dispute between the parties concerned and that Amaresh Thakur gave blow by lathi on his head, Ramanuj Thakur and Kaushal Thakur also gave blows by lathi on him and when Mahanth Thakur and Kamlesh Thakur came to rescue him, Bijali Rai, Nagendra Rai, Ramanuj Thakur, Binod Rai assaulted Kamlesh Thakur by lathi and brick bats. Akhileshwar Thakur, Kapileshwar Thakur and Rajeev Thakur gave blows by lathi to Mahanth Choudhary, causing fracture of his rib and also injury on his head. 8. Thus, from the evidence of P.Ws. 1 and 2, it is evident that apart from other contradictions, P.W. 1 has named only Amaresh Thakur to have inflicted blows by means of lathi on the head of Bharat Thakur (P.W. 2), while Bharat Thakur had named Ramanuj Thakur and Kaushal Thakur to have given lathi blows on him. 8. Thus, from the evidence of P.Ws. 1 and 2, it is evident that apart from other contradictions, P.W. 1 has named only Amaresh Thakur to have inflicted blows by means of lathi on the head of Bharat Thakur (P.W. 2), while Bharat Thakur had named Ramanuj Thakur and Kaushal Thakur to have given lathi blows on him. P.W. 2 has also admitted land dispute between the informant side and the accused persons. 9. P.W. 3 (Manju Devi), wife of P.W. 2, in her evidence, has deposed that Amaresh Thakur gave blow by lathi on the head of her husband and Raushan Khatoon, Ramanuj Thakur also assaulted him by lathis. PW 3 has also admitted, in her evident, that Anju Devi, wife of Amaresh Thakur, has filed a case against her husband and others regarding the said occurrence of the same day. 10. P.W. 4 (Nandlal Rai) has also claimed himself to be an eye-witness to the occurrence and has deposed that accused Anuj and Kaushal @ Chhotan, have assaulted Bharat Thakur by means of lathis on his head. 11. P.W. 5 (Anil Kumar), son of Bharat Thakur (P.W. 2), in his statement, has deposed that Amaresh Thakur caused injury on the head of his father, PW 2; whereas, Ramanuj Thakur and Kaushal Thakur have also caused injury to P.W. 2. 12. P.W. 6 (Dr. Md. Ziauddin Zaved) is the doctor, who, on 25.07.2004, examined injured Bharat Thakur and Mahanth Choudhary. PW 6 had advised Bharat Thakur for the Xray of his skull and opined that the X-ray report shows no bony injury and the x-ray of the chest of P.W. 2 also shows no bony of soft tissues the doctor (PW 6) has clarified that he had found no other bony injury. In his cross-examination, PW 6 has deposed that he has given opinion on the basis of X-ray reports. 13. P.W. 7 (Lalan Thakur) has been declared hostile as he denied to have made any statement under Section 161 of the Code of Criminal Procedure. 14. P.W. 8 and PW 9 are the Investigating Officers of this case. 15. From the evidence on record, it appears that there are clear contradictions in the deposition of the prosecution’s witnesses not only with regard to the assailants but also the injuries sustained by the injured. 14. P.W. 8 and PW 9 are the Investigating Officers of this case. 15. From the evidence on record, it appears that there are clear contradictions in the deposition of the prosecution’s witnesses not only with regard to the assailants but also the injuries sustained by the injured. P.W. 1 has stated that it was only Amaresh Thakur, who had caused injury to Bharat Thakur (P.W.2), P.W. 2 has stated that Amaresh Thakur, Ramanuj Thakur and Kaushal Thakur gave blows by means of lathi on him, P.W. 3 has deposed that Amaresh Thakur, Raushan Khatoon, Ramanuj Thakur caused injury to P.W. 2, whereas P.W. 4 has deposed that Anuj and Kaushal @ Chhotan caused hurt to P.W. 2 by lathi, P.W. 5 (son of P.W. 2) states that Amaresh caused head injury and Nagendra and Bijali caused hurt by lathi and bricks. This shows that the prosecution has failed to which shows that there are contradiction as to who was responsible for causing injuries on the person of P.W. 2. 16. The trial Court has also observed that the medical evidence does not corroborate the version of the prosecution’s witnesses with regard to the nature of injuries. The witnesses have deposed about the injury caused on Bharat Thakur, Kamlesh Thakur and Mahanth Choudhary by lathi and brick bats. The injury on Mahanth Choudhary was fracture of ribs, which the informant stated was caused by pelting of stones and bricks, while Bharat Thakur (P.W. 2) stated that the injury on Mahanth Choudhary was caused by lathi and bricks, but the prosecution has not been able to show as to who was responsible for the injury, if any. The prosecution witnesses have also claimed that Bharat Thakur (PW 2) was seriously injured, the doctor (PW 6) had not found any grievous injury and, thus, the learned trial Court has rightly observed that the prosecution has miserably failed to bring home the charge under Section 307 of the Indian Penal Code. 17. In view of the discussion made above, we find no infirmity, legal or factual, in the findings of the learned trial Court with regard to the acquittal of respondent Nos. 7 to 9 herein. 18. As regards the conviction of respondent Nos. 17. In view of the discussion made above, we find no infirmity, legal or factual, in the findings of the learned trial Court with regard to the acquittal of respondent Nos. 7 to 9 herein. 18. As regards the conviction of respondent Nos. 2 to 6 under Section 147 and 323 of the Indian Penal Code, we express no opinion inasmuch as they have not yet challenged that part of the order of the learned trial Court, but we make it clear that no case, under Section 307 read with Section 149 of the Indian Penal Code, is made out against the accused-respondent Nos. 2 to 6 herein. 19. In the result and for the foregoing reasons, this appeal is not admitted and shall accordingly stand dismissed. I.A. Ansari, ACJ. : I agree.