Patna High Court
Ram Kumari Devi & Ors vs The State Of Bihar on 28 November, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1 of 2015
Arising Out of PS.Case No. -73 Year- 2008 Thana -SURSAND District- SITAM ARHI
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1. Ram Kumari Devi, wife of Pachchu Thakur.
2. Pachchu Thakur, son of Late Jhapsi Thakur.
3. Ram Babu Thakur, son of Ram Briksha Thakur.
4. Bishwanath Thakur, son of Pachchu Thakur.
5. Umesh Thakur, son of Pachchu Thakur.
6. Jagarnath Thakur, son of Pachchu Thakur, all are resident of village-Bakhari,
P.S. Sursand, District-Sitamarhi.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur-2-Advocate
For the Respondent/s : Mr. Binod Bihari Singh- A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 28-11-2017
Appellants, Ram Kumari Devi, Pachchu Thakur, Ram
Babu Thakur, Bishwanath Thakur, Umesh Thakur and Jagarnath
Thakur have been found guilty for an offence punishable under
Section 323 of the I.P.C. and each one has been directed to undergo
S.I. for six months as well as to pay fine appertaining to Rs.1,000/-, in
default thereof, to undergo S.I. for one month additionally, under
Section 324 of the I.P.C. and sentenced to undergo R.I. for two years
as well as to pay fine appertaining to Rs.1,000/-, in default thereof, to
undergo S.I. for one month, under Section 325/ 34 of the I.P.C. and
each one has been directed to undergo S.I. for three years as well as to
pay fine appertaining to Rs.1,000/- and in default thereof, to undergo
Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 2
S.I. for one month by the Adhoc Additional Sessions Judge-1st ,
Sitamarhi in Sessions Trial No.05 of 2009/ 456 of 2013 vide judgment
of conviction and sentence dated 04.12.2014.
2. PW-10 Ram Yad Thakur gave his fard-bayan on
12.07.2008at about 9.00 p.m. while he was admitted at P.H.C.,Sursand disclosing therein that on the same day at about 5.00 p.m. while he was watching construction of house of his cousin brother Baidehi Sharma lying in front of his house, his neighbour Ram Kumari Devi, Pachchu Thakur began to abuse over which he inquired why they are abusing. Pachchu Thakur disclosed that I am not abusing you rather I am abusing those persons, who come to fetch water from the hand-pump. They further asserted that they will not allow anybody to fetch water from the hand-pipe. He protested and said that as it happens to be a government hand-pipe on account thereof, you could not forbid anybody from fetching water. Furthermore, he had gone to hand-pipe with a bucket over which Ram Babu Thakur, Vishwanath Thakur, Umesh Thakur and Jagarnath Thakur armed with lathi, danda, rod came and began to assault indiscriminately on account of which, he sustained injury over his head from which blood oozen out. During course thereof, Ram Babu Thakur gave iron rod blow over his hand as a result of which, he sustained fracture of his right hand as well as there was abrasion over Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 3 his fingers. He fell down and then thereafter, all of them assaulted with lathi and danda. His sister Ranju Devi, brother Ram Kumar Thakur, cousin brother Manoj Kumar, parents came in rescue, who were also assaulted by the accused persons with lathi, danda. On hue and cry raised by his sister and brother, Ram Dahin Thakur, Vaidehi Thakur, Binod Kumar, Karpuri Thakur came and saved them. During course thereof, Ram Babu Thakur stealthily taken away a bicycle. Subsequently thereof, they were shifted to hospital. It has further been disclosed that the dispute arose on account of fetching water from a government hand-pipe.
3. After registration of Sursand P. S. Case No.73 of 2008, investigation commenced and concluding the same, chargesheet was submitted facilitating the trial which ultimately concluded in a manner, the subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has specifically been pleaded that prosecution party were the aggressor and they assaulted Umesh Thakur and his father Pachchu Thakur as a result of which, they were taken to hospital where police came and recorded fard-bayan of Umesh Thakur, on the basis of which, Sursand P. S. Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 4 Case No.74 of 2008 was registered. To substantiate the same, relevant documents have also been exhibited.
5. In order to substantiate its case, prosecution had examined altogether 12 PWs, out of whom, PW-1 Shyam Rai, PW-2 Vaidehi Thakur, PW-3 Ram Karpuri Sharma, PW-4 Ram Kumar Thakur, PW-5 Bindeshwar Thakur, PW-6 Sunaina Devi, PW-7 Manoj Kumar Sharma, PW-8 Amarnath Prasad Gupta, PW-9 Ranju Devi, PW-10 Ram Yad Thakur, PW-11 Vakil Prasad Singh and PW-12 Manir Alam Khan. Side by side, had also exhibited the documents viz. Exhibit-1 series, signature of informant Ram Kumar over the fard-bayan, Exhibit-2 series, injury report furnished by the doctor, Exhibit-3 admission ticket, Exhibt-4 fard-bayan, Exhibit-5 injury report prepared by the police, Exhibit-6 formal F.I.R., Exhibit-7 series rent receipts, Exhibit-8 Ladavi dated 17.11.1973, material exhibit first X-ray plate. Defence had also examined two DWs viz. DW-1 Vikau Thakur, DW-2 Gajendra Chaudhary as well as had also exhibited the documents viz. Exhibit-A series, affidavit sworn by the witnesses, Exhibit-B formal F.I.R. of Sursand P. S. Case No.74 of 2008, Exhibit- C fard-bayan of Sursand P. S. Case No.74 of 2008, Exhibit-D, injury report, Exhibit-E series, document prepared in pen of the then Sarpanch Ram Naresh Rai as well as other Panches' order, Exhibit-F series, objection letter, Exhibit-G, F.I.R., Exhibit-H injury report, Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 5 Exhibit-I, protest petition.
6. The learned counsel for the appellants while challenging the judgment impugned has submitted that while disbelieving the prosecution case relating to other offences, the learned lower Court should have treated and considered the evidence having been adduced on behalf of prosecution in similar way with regard to remaining offences also whereupon, ought not have recorded finding against the appellants in a manner, the subject matter of instant appeal. To substantiate the same, it has been submitted that from the P.O., it is evident that I.O. had not shown presence of house of cousin brother of informant namely Baidehi Sharma being constructed in front of his house that means to say, presence of informant as claimed. Furthermore, it has been submitted that when there happens to be version and counter-version for an occurrence, then in that circumstance, the Court has to scrutinize the evidence in order to search out whether manner as well as genesis of occurrence as propounded by the prosecution happens to be acceptable one, apart from the fact that, who happens to be the aggressor. Because of the fact that there happens to be absence of house of Baidehi Sharma cousin brother of PW-10 (informant), on account thereof, presence of informant at the house of Baidehi Sharma is being completely ruled out. That being so, presence of informant at that very place while Ram Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 6 Kumari and her husband Pachchu Thakur were abusing, also became doubtful. When the genesis of occurrence is found improbable, then in that event, the ultimate beneficiary would be the appellants. That being so, the judgment of conviction and sentence recorded by the learned lower Court is fit to be set aside.
7. On the other hand, learned Additional Public Prosecutor while controverting the submission having made on behalf of appellants has submitted that there happens to be consistent view of the Hon'ble Apex Court that non-explanation of injury having sustained by the accused by the prosecution has got no relevancy as well as would not give adverse impact upon the case of the prosecution, whenever there happens to be consistency amongst the prosecution witnesses wherefrom, prosecution case is found duly substantiated. So, submitted that appeal is fit to be dismissed.
8. In order to appreciate rival submission, first of all, evidence of informant (PW-10) is to be taken note. PW-10 had deposed that he happens to be informant. He had drawn case against Pachchu Thakur, Ram Kumari Devi, Bishwanath Thakur, Ram Babu Thakur, Umesh Thakur and Jagarnath Thakur. Occurrence took place on 12.07.2008 at about 6.00 p.m. At that very time, he was at his house. At that very time, Ram Kumari and Pachchu Thakur were abusing his mother. He arrived there and forbidden them not to abuse, Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 7 whereupon they said that they will abuse against those, who comes to fetch water from the hand-pipe. As a mark of protest, he took bucket and gone to hand-pipe, whereupon Pachchu Thakur and Ram Kumari ordered to kill. Then other accused namely Ram Babu Thakur armed with rod while other accused persons armed with lathi came. Ram Babu gave one rod blow from backside over his head as a result of which, he sustained hurt over his head. He gave repeated blow as a result of which, he sustained fracture of his hand. Other accused persons also began to assault with lathi and danda. His sister Ranju Devi, mother Sunaina Devi, father Bindeshwar Thakur, brother Ram Kumar Thakur, Manoj Thakur came, who were also assaulted by the accused persons. Ram Babu assaulted Manoj and Ranju with iron rod. Ram Dahin Thakur, Baidehi Thakur, Karpuri Thakur and Binod Thakur came in rescue. Accused persons left the place and during course thereof, Ram Babu Thakur took away old bicycle. Thereafter, they were taken to hospital. During course of treatment, the Officer- in-charge of Sursand P.S. came and recorded his fard-bayan (exhibited), identified the accused. Further stated that accused persons attempted to kill him. During cross-examination, he had stated that Survey Plot No.2107 is the piece of land over which hand-pipe is situated. Although, at the first part of Para-5 of the cross-examination, he had denied any kind of land dispute, but subsequently at Paras-5, 6 Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 8 , 7 and Para-8, there happens to be admission at the end of the informant with regard to dispute relating to land as well as road. In Para-10, he had admitted presence of counter-case having instituted at the end of appellant Umesh Thakur against him as well as his family members, which was also running before the same Court as Sessions Trial No.541 of 2009. He had further admitted the allegation whatever incorporated therein though stated that those allegations happen to be false, frivolous and only to meet out the present case, same has been registered. In Para-11, he had stated that no hand-pipe is sunk at his darwaza. 10-12 houses lies in the surrounding and for the same, there happens to be only one hand-pipe. He had further stated at Para-13 that the houses of Baidehi Thakur, Chandeshwar Thakur, Bhuneshwar Thakur, Karpuri Thakur, Ram Dahil Thakur, Pachchu Thakur and others lies in the viscinity. On the alleged date and time of occurrence, all the persons of the aforesaid houses were present. In Para-14, he had again tried to dislodge the suggestion of the appellants that both the parties are on strained relationship due to land dispute, but again admitted at Para-14 and further also admitted that on 07.01.2009, there was Panchayati, which could not be materialized. In Para-15, he had stated that when he reached at the hand-pipe, there were 4-5 persons. He had gone alone with bucket. Pachchu Thakur, Ram Kumari Devi, Bishwanath Thakur, Umesh Thakur, Jagarnath Thakur, Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 9 Ram Babu Thakur were present. His brother, sister, parents followed him. He is unable to disclose names of other, who arrived subsequently thereof. In Para-19, he had stated that he remained there at the P.O. about 5-6 minutes, marpit took place about five minutes before that there was altercation amongst the parties. In Para-20, he had stated that soon after the occurrence, they were shifted to hospital. In Para-21, he had stated that both the parties have indulged in an altercation before the occurrence. In Para-23, he had denied presence of Umesh Thakur at the hospital. He had further stated at Para-24 that first of all, he was treated then thereafter, his parents, sister and brother. In Para-26, there happens to be contradiction with regard to his fard-bayan, further statement. Then had denied the suggestion that they were the aggressor and assaulted Umesh Thakur and his father Ram Babu on account of, which they were shifted to Sursand Hospital where fard-bayan of Umesh Thakur was recorded. Only to meet out the aforesaid allegation, this case has been filed taking the police in his collusion in order to make out a counter-case.
9. PW-11 is the I.O. He had stated that while he was on patrolling, the Officer-in-Charge of the P.S. transmitted him O.D. Slip sent from the hospital wherefrom he reached there and recorded fard- bayan of Ram Yad Thakur (PW-10), issued injury report relating to respective injured. Then thereafter, he was entrusted with the Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 10 investigation and during course thereof, he had visited the place of occurrence. P.O. lies in a lane away from village road where both the parties indulged in marpit. It has further been disclosed that hand-pipe lies behind the back of house of Pachchu Thakur. It happens to be government hand-pipe where informant had gone along with bucket and during course thereof, he was assaulted. He had further shown boundary of the P.O. as South-Pachchu Thakur, North-Bindeshwar Thakur, East-Baidehi Thakur, Bindeshwar Thakur and West- Muneshwar Thakur and Bindeshwar Thakur. He had recorded statement of witnesses/ injured, procured injury report, supervision note and then thereafter, submitted chargesheet under Section 341, 323, 324, 325, 307, 504/34 of the I.P.C. During cross-examination at Para-8, he had stated that Sursand P.S. Case No.74 of 2008 has been registered on the fard-bayan of injured Umesh Thakur while he was admitted at Primary Health Centre, Sursand, thereafter he had also investigated the aforesaid case and after completing the same, submitted chargesheet. The P.O. of the aforesaid case happens to be the darwaza of Umesh Thakur. In Para-9, he had stated that though he had incorporated in the case diary that he had inspected the P.O. as shown by the witness, but had not detailed the same in the case diary and for that, no explanation is there. Then there happens to be some sort of suggestion with regard to collusive conduct of the I.O. on Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 11 account of being unduly influenced by the prosecution party and for that, he has again been suggested that the fard-bayan of Umesh Thakur has been changed and for that, his attention has been drawn up to that effect. In Para-19, he had stated that nothing was found at the P.O. including the blood. He had shown finding regarding commission of the marpit amongst both the parties. In Para-20, he had stated that though villagers have disclosed that this hand-pipe had sunk by the government, but he has not tried to see the relevant paper relating thereto. From Para-29 to 37, there happens to be contradiction of different witnesses.
10. PW-1 had stated that on the alleged date of occurrence while he was returning from a pond as soon as reached near the government hand-pipe lying near the house of Ram Yad Thakur, he saw Ram Kumari Devi, Pachchu Thakur, Ram Babu Thakur, Umesh Thakur, Jagarnath Thakur and Bishwanath Thakur were abusing Ram Yad Thakur. On protest made by Ram Yad Thakur, Pachchu Thakur ordered to kill, whereupon all of them gone to their house and returned back armed with lathi, rod and began to assault. During course thereof, Ram Babu Thakur assaulted Ram Yad Thakur with iron rod over head causing injury thereupon. He also gave second blow over right hand of Ram Yad Thakur as a result of which, he sustained fracture. Ram Kumar, parents Bindeshwar Thakur Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 12 and mother, sister, Manoj came in rescue, who were also assaulted by the accused persons. Manoj was assaulted by Pachchu with the blade side of the rod (Khanti), identified the accused. During cross- examination, he had exhibited signature over petition dated 14.08.2008 as well as over an affidavit (Exhibited- A, A/1), but for that, he had explained that accused persons procured his signature after terrorizing him. In Para-8, he had stated that when he reached at the P.O., he had seen 15-20 persons. He named some of them as Ramjinis Gupta, Devendra Ram, Ram Binod Thakur, Pachchu Thakur along with all the accused as well as he himself. In Para-9, he had stated that he tried to pacify the matter. He stayed for half an hour. He is unable to say whether anybody, during midst thereof, came or not. In Para-11, he had stated that all the victims lie down on the ground on account of assault. In Para-12, he had stated that he had not talked with anybody at the P.O. In Para-13, he had stated that he had not seen injury over the person of accused Umesh Thakur as well as Pachchu. In Para-15 is the material contradiction, which is found duly substantiated from the evidence of PW-11, Para-29.
11. PW-2 had stated that on the alleged date and time of occurrence, he was at his house, there was ruckus near about government hand-pipe, which is sunk upon the land of Ram Yad Thakur. He had gone there and seen Pachchu Thakur, Ram Kumari Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 13 Devi, Ram Babu Thakur, Bishwanath Thakur, Umesh Thakur, Jagarnath Thakur were there. Ram Babu was armed with iron rod and rest accused were armed with lathi and rod. They all were abusing. As Ram Yad Thakur protested, whereupon Pachchu and his wife ordered to kill. Ram Babu gave iron rod blow over head of Ram Yad Thakur . Second blow was given on right hand on account of which, Ram Yad Thakur sustained fracture. Blood oozen out from injury having over the head. Rest accused persons began to inflict indiscriminate blow of lathi. Bindeshwar Thakur, father, mother, sister Ranju, brother Ram Kumar, Manoj came in rescue, who were also assaulted by the accused persons. Manoj was assaulted by Ram Babu Thakur with the blade side of rod over his head. Then thereafter, Ram Babu Thakur took away old bicycle of Ram Yad Thakur. During cross-examination at Para-5, he had stated that Bishwanath Thakur and Ram Yad Thakur are not Pattidar rather they belong to same caste and are close neighbours. He had also stated in Para-6 that ten houses are in the surrounding. Three hand-pipes are there from which all persons of ten houses fetch water. In Para-8, he had stated that he came out from his house ten minutes after uproar, again corrected that at the time of uproar, he reached at the P.O. When he reached at the P.O., he found 15-20 persons, apart from victim as well as accused persons those were Mukesh Ram, Baidehi Thakur, Shyam Rai, Karpuri Sharma, Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 14 Chandeshwar Thakur, Bhuneshwar Thakur and others. In Para-10, he had stated that when he saw Ram Yad, blood was coming out from his head. He was lying over the ground. He was conscious. In Para-12, he had admitted that Umesh Thakur had instituted a case against his son Manoj and others with regard to same date of occurrence. In Para-14, he had stated that he had not talked with anybody at the P.O. As soon as the quarrel was over, he also returned back. In Para-15, there happens to be material contradiction and the same is found duly corroborated by PW-11 under Para-30.
12. PW-3 is Ram Karpuri Sharma, who had stated that on the alleged date and time of occurrence, he was at his house, there was uproar near about government hand-pipe whereupon, he had gone there and saw Pachchu, his wife Ram Kumari Devi, Bishwanath Thakur, Umesh Thakur, Ram Babu Thakur, Jagarnath Thakur armed with lathi. Ram Babu Thakur was armed with iron rod. They all were abusing Ram Yad Thakur. Ram Yad Thakur protested, whereupon Pachchu Thakur, his wife Ram Kumari Devi ordered to kill. All the accused persons began to assault and during midst thereof, Ram Babu Thakur gave rod blow over head of Ram Yad Thakur as a result of which, he sustained injury. Ram Babu gave another blow which caused fracture of his right hand, rest accused assaulted with lathi. His father, mother, sister, brother came in rescue, who were also assaulted Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 15 by the accused persons. Ram Babu had assaulted with rod over head of Manoj as a result of which, he sustained injury. After marpit, Ram Babu took away bicycle of Ram Yad Thakur. During cross- examination, he had admitted that Ramdahi Thakur, Baidehi Thakur, Karpuri Sharma, Ram Dahila Sharma to be his full brother. All the brothers have got common house. In Para-4, he had stated that after hearing hulla, he alone had gone to the P.O. At that very time, parties were abusing each other. He stayed there for 10-15 minutes during midst thereof, so many persons, 20-25 in number came. Again corrected that those were standing since before his arrival. After his arrival, none came. In Para-5, he had stated that all the persons were silent expectator of the marpit, which took place for 10-15 minutes. In Para-7, he had stated that he had not seen any document in support that the aforesaid government hand-pipe was sunk over the land of Ram Yad Thakur. In Para-8, he had stated that after sustaining injury, Ram Yad Thakur had fallen down over the ground. In Para-10, he had further stated that the persons, who came in rescue also sustained injury. In Para-11, he had stated that he had not talked with anybody at the P.O. As soon as marpit was over, he returned back. In Para-15, he had disclosed the identity of the P.O. as North- house of Ram Yad Thakur, South-house of Pachchu Thakur, East-house of Baidehi Thakur and West-Bhuneshwar Thakur as well as he himself. In Para- Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 16 17, he had stated that he had not seen Umesh Thakur in an injured condition. In Paras-16 and 18, there happens to be contradiction, which is found duly corroborated under Para-31 of the PW-11.
13. PW-4 is Ram Kumar Thakur, who had deposed that on the alleged date and time of occurrence, he was at his house. At that very time, there was uproar near the hand-pipe of Ram Yad Thakur. The aforesaid hand-pipe happens to be State oriented. He had gone there and then saw Pachchu Thakur, Ram Kumari Devi, Bishwanath Thakur, Jagarnath Thakur, Umesh Thakur, Ram Babu Thakur were abusing Ram Yad Thakur, over which Ram Yad Thakur protested. Pachchu and Ram Kumari ordered to kill, whereupon Ram Babu Thakur gave Khanti blow over head of Ram Yad Thakur as a result of which, he sustained injury thereupon. Blood oozen out. Then he had inflicted second blow causing fracture of right hand. Then thereafter, other accused persons had assaulted with lathi and danda. He along with father, mother, sister and Manoj rushed in rescue, who were also assaulted. Manoj was assaulted with iron rod as a result of which, he also sustained injury. Accused persons also took away his bicycle. Then thereafter, they took Ram Yad Thakur to hospital. Doctor had examined him and then, police was informed. Police came and recorded statement of Ram Yad Thakur over which he had also put his signature (exhibited), identified the accused. During cross- Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 17 examination at Para-5, he had stated that he happens to be full-brother of Ram Yad Thakur and is living in the same house. He had further stated at Para-6 that he can produce the relevant document relating to the land over which State sponsored hand-pipe is sunk. He denied the suggestion that it survey plot happens to be survey plot no.2107 and belongs to Pachchu Thakur. In Para-10, he had stated that just after hearing uproar, he reached at the place of occurrence. At that very time, both the parties were indulged in abusing each other. In Para-11, he had stated that whole occurrence finished within 10-15 minutes. In Para-13, he had stated that when he intervened, he was assaulted. In Para-14, he had stated that Sunaina Devi (mother), Ranju (sister) also sustained injuries. Ranju had sustained injury over her head, she had also sustained knife blow over her hand. Then thereafter, they have gone to police station. In Para-17, there happens to be contradiction and same is found corroborated under Para-32 of the evidence of PW-
11. In Para-18, he had denied to have seen the accused Umesh Thakur in an injured condition. He denied institution of Sursand P. S. Case No.74 of 2008 at his instance.
14. PW-5 is Bindeshwar Thakur, who had deposed that on the alleged date and time of occurrence while he was at his darwaza, he rushed to the place after hearing uproar where he saw Pachchu Thakur, Bishwanath Thakur, Ram Kumari Devi, Umesh Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 18 Thakur, Ram Babu Thakur and Jagarnath Thakur were abusing Ram Yad Thakur. Ram Yad Thakur protested as a result of which, Ram Kumari Devi ordered her husband to assault whereupon Ram Babu Thakur gave rod blow over head of Ram Yad Thakur. Another blow was given by him over his hand as a result of which, he sustained fracture. Other accused persons also assaulted. He along with his wife Sunaina Devi, his another son Ram Kumar Thakur, daughter Ranju, grandson Manoj rushed in rescue and during course thereof, they were also assaulted, Manoj was assaulted by Ram Babu Thakur. Old bicycle of Ram Yad Thakur was taken away by Ram Babu. Thereafter, they were taken to hospital. At Para-5, he had stated that the land over which hand-pipe is sunk belongs to him, but he is unable to divulge its survey plot number. In Para-6, he had further stated that it happens to be a government sponsored. In Para-8, he had stated that he was alone at his darwaza at the time of occurrence. He had gone to the place of occurrence alone. Ten persons were since before namely Ram Babu, Pachchu Thakur, Ram Kumari, Bishwanath, Jagarnath, Umesh Thakur. Then disclosed that he is not remembering the names of others. He stayed there for ten minutes. He is unable to say, who came after him. In Para-9, he had stated that he was assaulted by slap over his head. In Para-10, there happens to be contradiction and same happens to be corroborated by the evidence of PW-11, under Para-33. Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 19 Then had denied the suggestion that they were the aggressor, assaulted Umesh Thakur and Pachchu Thakur for which on the fard- bayan of Umesh Thakur, Sursand P. S. Case No.74 of 2008 was registered.
15. PW-6 is Sunaina Devi. She had deposed that on the alleged date and time of occurrence, she was at her house. Ram Kumari Devi, wife of Pachchu Thakur was abusing her son Ram Yad Thakur at the public hand-pipe over which, she rushed and saw Pachchu Thakur, Bishwanath, wife of Pachchu, Umesh Thakur and Ram Babu and one another (name not remembering). Pachchu and others were armed with lathi, danda, Ram Babu was armed with iron rod. They all began to assault Ram Yad Thakur. Ram Babu gave rod blow over head of Ram Yad as a result of which, he sustained injury. He repeatedly assaulted as a result of which, his hand got fractured. Others were also assaulted. They were saying that they will not allow Ram Yad to be alive. She along with her husband, daughter, another son, Manoj rushed in rescue, who were also assaulted. Manoj was assaulted by Ram Babu with Khanti. Ram Babu took away bicycle. Then thereafter, they were taken to hospital. In Para-5, she had stated that her house as well as house of the accused persons are contiguous to each other. At the time of occurrence, she along with her son, daughter, husband, grandson were at her house. At Para-6, she had Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 20 stated that at the time of occurrence, persons having houses in her surrounding were not present. They all have gone to market. In Para- 7, she had stated that the boundary of the hand-pipe belonged to Pachchu Thakur happens to be North-her house, South-house of Pachchu, East-house of Baidehi, West-house of Bhuneshwar. In Para- 8, she had stated that when she reached at the P.O., they were abusing each other. All the family members of Pachchu as well as she herself were present. In Para-9, she had stated that marpit did not take place till her arrival. Marpit took place in her presence. It has taken place about half an hour. In Para-10, she had stated that all the victims were conscious after sustaining injuries. They all have gone to hospital. In Para-16, there happens to be contradiction and same is found corroborated with Para-34 of the PW-11. In Para-18, she had admitted presence of counter-case.
16. PW-7 is Manoj Kumar Sharma, who had deposed that on the alleged date and time of occurrence, he was at his house. After hearing sound of uproar, he had gone near public hand-pipe where Pachchu Thakur, Ram Babu Thakur, Bishwanath Thakur, Jagarnath Thakur, Umesh Thakur were assaulting Ram Yad with iron rod as well as danda. Ram Babu Thakur gave iron rod blow as a result of which, his right hand fractured. Ram Yad Thakur had also sustained injury over his head as a result of which, blood oozen out. Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 21 He also rushed in rescue. Again said that Manoj Sharma, Bindeshwar Thakur, Ram Kumar Sharma, Sunaina Devi, Ranju Devi all have gone in rescue and during course thereof, Umesh Thakur had assaulted him with khanti over his head causing injury. Others were also assaulted. Ram Babu took away bicycle belonging to Ram Yad Thakur. All of them had gone to hospital. During cross-examination, he had stated that Baidehi Thakur, Ram Dahin Thakur, Karpuri Thakur are own brothers. Binod Thakur, Saroj Thakur and Santosh Thakur are his cousin brothers while Ram Yad Thakur happens to be cousin uncle. In Para-6, he had stated that at the time of occurrence, his wife as well as mother were present, but they have not come out to witness the occurrence. In Para-8, he had stated that when he reached at the P.O., Ram Yad Thakur was lying. When he saw Ram Yad Thakur, blood was oozing out from his injury. He was conscious. None of the victim became unconscious. In Para-9, he had stated that he sustained injuries over his head as well as over waist. In Para-13, he had stated that Umesh Thakur was not treated at the hospital on the same day. In Para-15, he had stated that P.O. was seen by the I.O. I.O. had seen blood at the spot. They have not given blood stain cloth to the I.O. In Para-16, there happens to be contradiction and same is corroborated from the evidence of PW-11 under Para-35.
17. PW-9 is Ranju Devi, sister of informant, who had Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 22 deposed that on the alleged date and time of occurrence, she was at her house. After hearing uproar, she came out and rushed to hand-pipe where saw Pachchu Thakur, Bishwanath Thakur, Jagarnath Thakur, Ram Babu Thakur, Ram Kumari Devi, Umesh Thakur were abusing her brother and were saying to kill. Ram Yad protested. Ram Babu Thakur, was armed with iron rod while others with lathi. Ram Babu Thakur gave iron rod blow over head of Ram Yad Thakur. Ram Babu gave another blow causing fracture of his right hand, rest also assaulted with lathi. Bindeshwar Thakur, Ram Kumar Thakur, Manoj Thakur, Sunaina Devi, she herself rushed in rescue, whereupon Ram Kumari Devi gave lathi blow upon her as a result of which, she sustained injury over her head. Remaining persons were also assaulted. Ram Babu had given lathi blow over head of Manoj as a result of which, he sustained injury. Ram Babu had also taken away one old bicycle. During cross-examination at Para-8, she had stated that she along with Bindeshwar Thakur, Ram Kumar Thakur, Manoj Thakur, Sunaina Devi conjointly rushed to the spot. In Para-9, she had stated that when they reached, they have not seen Ram Yad Thakur lying. About 15-16 persons were there and then named Ram Babu Thakur, Bishwanath Thakur, Jagarnath Thakur, Pachchu Thakur, Ram Kumari Devi, Bindeshwar Thakur, Ram Kumar Sharma, Manoj Thakur, Sunaina Devi, she herself, Ranju Devi, Shyam Rai. In Para- Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 23 10, she had stated that none came after their arrival. In Para-11, she had stated that after sustaining injury, Ram Yad Thakur fallen down, but was conscious, rest victims were also conscious. In Para-12, she had denied presence of injury over the person of Umesh Thakur. In Para-15, she had admitted that there happens to be land dispute in between Pachchu Thakur and her brother. In Para-16, she had stated that blood had not fallen over the ground. In Para-17, there happens to be contradiction and same is found corroborated with PW-11 under Para-36. She had denied the suggestion that on account of assault having over the person of Umesh and Pachchu, for which, they had instituted a case, this case has been filed.
18. PW-8 is the doctor, who had examined respective victims on 12.07.2008 while he was posted at Sursand P.H.C. as I/c Medical Officer and found the following injuries:-
Ram Yad Thakur
(i) Laceration 3" x 1" x ¼" on right parietal region on scalp.
(ii) Fracture of right forearm.
(iii) Abrasion 1" x ¼" right index finger.
(iv) Bruise 4" x 3" left upper part of thigh.
Age of injury within six hours. M/1-old scar mark on back of left hand near wrist. All injuries were caused by hard, rough and blunt substance such as lathi, rod. Injury no.II grievous in Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 24 nature. X-ray plate shows fracture of shaft of radius and ulna right side. Rest injuries were simple in nature.
Ranju Devi
(i) Laceration mid scalp 1" x ½" x ¼".
Age within six hours. M.I.-Old scar mark on left index finger. Opinion-Simple in nature, caused by hard, rough and blunt substance such as lathi.
Manoj Singh
(i) Incised wound 1" x ¼" x skin deep on mid scalp.
(ii) Bruise 3" x 2" on back of chest.
(iii) Bruise 2" x 2" on right knee.
Age of injury within six hours. M.I.- Old scar mark on root of right ring and middle finger.
Opinion-Injury No.(ii) and (iii) simple in nature and caused by hard and blunt substance. Injury No.(i) simple in nature and caused by sharp cutting weapon, such as khanti.
Ram Kumar Sharma
(i) Bruise 2" x 2" back of left shoulder.
(ii) Bruise 1" x ½" mid forehead.
Age- within six hours. M.I.-Old clear mark on mid front of right leg.
Opinion- Both injuries were simple in nature, caused by hard and blunt substance, such as lathi.
19. From the evidence of PW-8, it is crystal clear that all the injured namely Ram Yad Thakur, Ranju Devi, Manoj Singh Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 25 and Ram Kumar Sharma were examined by him. With regard to the injuries having over the person of other injured, it appears to be superficial, but the injury no.2 of Ram Yad Thakur being fractured of right forearm has been found grievous and for that, there happens to be consistent version of the witnesses identifying Ram Babu Thakur to be author including that of injury no.1 having over head of Ram Yad Thakur. It is further evident that majority of witnesses, whoever been examined, happens to be an injured family members and that being so, their presence at the P.O. could not be denied, more particularly, in the background of their presence in the counter-case as an accused. Apart from this, after having minute observation of the evidences, it is apparent that appellants have nor denied, not controverted with regard to presence of injuries over the person of the respective victims nor they have pleaded that they exercised right of private defence or the villagers in order to rescue them assaulted nor they plead its case of free-fight. Though PW-11 the I.O., who during course of inspection of the P.O. had shown other place than the hand- pipe to be the P.O. and further, admitted presence of Umesh Thakur at P.H.C. Sursand where his fard-bayan was recorded by him and after registration of the case, investigation was carried by him, but while examining PW-8, the doctor, nothing has been suggested to him whether he had examined Umesh Thakur on the alleged date and Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 26 time of occurrence or not. Be that as it may, from the injury report (Exhibit-1), it is apparent only two injuries were found over the person of Umesh Thakur having dimension incised wound over right eye upper 2" x ¼" x ¼", incised wound right upper part 2" x ½" x ¼"
caused by sharp cutting weapon, injury simple in nature.
20. When the evidence of the prosecution is found consistent, then in that circumstance, non-explanation of injuries having over the person of accused, more particularly, simple in nature would not cause any kind of dent in the prosecution case as has been conclusively decided by the Hon'ble Apex Court in Rajendra Singh and others vs. State of Bihar reported in A.I.R. 2000 SC 1779, it has been held:-
"3. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 27 hand accused-appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these injuries, the penetrating wound on the left axillary area in the 5th intercostal space ½ ×1/3 × 3/4 was grievous in nature as per the evidence of the doctor, PW 3 who had examined him. On the basis of the evidence of PW 3 as well as PW 11 the courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused-appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai v. State of Bihar (1968) 3 SCR 525, this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the plea taken by the accused persons. But in Lakshmi Singh v. State of Bihar (1976)4 SCC (Cri) 671, this Court considered Mohar Rai (1968) 3 SCR 525 and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution.
Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 28 The question was considered by a three-Judge Bench of this Court in the case of Vijayee Singh v. State of U.P. (1990) 3 SCC 190 and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh's case (supra) the Court held that non- explanation of injury on the accused person does not affect the prosecution case as a whole."
21. As such, after analyzing, crystallizing the evidences available on the record, as discussed hereinabove, it is found that prosecution has succeeded in substantiating its case. That being so, finding recorded by the learned lower Court is hereby affirmed, subject to modification that only appellant Ram Babu Thakur is found guilty for an offence punishable under Section 325 of the I.P.C. and that being so, other co-appellants are exonerated there from. In likewise manner, there happens to be no substance visualizing from the prosecution case relating to Section 324 of the I.P.C. and the same is accordingly annulled affirming the finding relating to Section 323 of the I.P.C. So far sentence is concerned, considering the nature of the evidence as well as the consequence, which is found duly exposed. All the appellants are directed to avail Patna High Court CR. APP (SJ) No.1 o f 2015 dt.28-11-2017 29 the privilege of Probation of Offenders Act and so, are directed that they be admonished under the guise of Section 3 of the Probation of Offenders Act and for that, appellants are directed to surrender before the learned lower Court within four weeks, failing which the learned lower Court will proceed against them in accordance with law. With regard to appellant, Ram Babu Thakur as his conviction is maintained under Section 325 of the I.P.C. Sentence as inflicted by the lower Court is modified to undergo R.I. for six months while enhancing the quantum of fine appertaining to Rs.25,000/- in default thereof, to undergo S.I. for six months, additionally. In case of deposit of the fine, half of the same will be given to the informant Ram Yad Thakur on proper identification. In terms thereof, this appeal is partly allowed. Bail bond of Ram Babu Thakur is cancelled directing him to surrender before the learned lower Court within fortnight to serve out remaining part of sentence, failing which the learned lower Court will proceed against him in accordance with law.
(Aditya Kumar Trivedi, J) Vikash/-
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