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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.

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.