IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.640 of 2022 Arising Out of PS. Case No.-73 Year-2016 Thana- BIHRA District- Saharsa ====================================================== Manoj Thakur @ Surendra Thakur, S/O Late Umakant Thakur, Resident of Village- Barhasher, P.S.- Bihra, District- Saharsa. ... ... Appellant Versus 1. The State of Bihar 2. Manvendra Thakur, S/o Mahendra Thakur, R/o Village- Barhasher, P.S.- Bihra, District- Saharsa. 3. Ranjit Thakur, S/o Kishori Thakur, R/o Village- Barhasher, P.S.- Bihra, District- Saharsa. 4. Rajan Thakur, S/o Amrendra Thakur, R/o village- Barhasher, P.S.- Bihra, District- Saharsa. 5. Moni Kumar, S/o Pulendra Singh R/o Village- Barhasher, P.S.- Bihra, District- Saharsa. 6. Soni Kumar, S/o Pulendra Kumar, R/o village- Barhasher, P.S.- Bihra, District- Saharsa. ... ... Respondents ====================================================== Appearance : For the Appellant : Mr. Amarnath Jha, Advocate For the Respondents : Mr. Binod Bihari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY) Date : 11-04-2025 Heard Mr. Amarnath Jha, learned counsel for the appellant and Mr. Binod Bihari Singh, learned Additional Public Prosecutor for the State. 2. The present appeal has been preferred for setting aside the judgment of acquittal dated 31.05.2022 (hereinafter referred to as the ‘impugned judgment’) passed by learned Additional Sessions Judge-II, Saharsa (hereinafter referred to as the Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 2/16 ‘learned trial court’) in Sessions Trial Case No. 72 of 2014 arising out of Bihra P.S. Case No. 73 of 2018 whereby and whereunder Respondent Nos. 2 to 6 have been convicted only for the offences under Sections 147, 341, 504, 506 and 323 of the Indian Penal Code (in short ‘IPC’) and acquitted for the offence under Section 307 were released after due admonition under Section 3 of the Probation of Offenders Act, 1958. Prosecution Case 3. The case of the appellant/prosecution in short is that on 30.05.2016 at about 10:30 P.M., when the informant (P.W.-3) was going to bed after having meals, he heard noise. Then he came out of his house and found that Manvendra Thakur, Ranjit Thakur, Soni Thakur, Moni Kumar and Rajan Thakur along with 10-15 other persons being armed with lathi, danda, iron rod, farsa etc. started abusing and assaulting the brother of the informant Arun Thakur. They were also pulling him. When the informant went to rescue, Soni Kumar and Moni Kumar assaulted with farsa on the head of Arun Kumar which hit on his head and hand due to which Arun Kumar got injured. After that Manvendra Thakur with intention to kill, assaulted the informant on his head with iron rod due to which he received bleeding injury on his head. The informant and his brother both fell down Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 3/16 there. After this, the neighbourers gathered there and the injured were rushed to hospital. The farsa was stuck in the hand of Arun Thakur and it was removed by the Doctor. It has also been stated in the FIR that cause of occurrence is panchayat election. 4. On the basis of the fardebyan of the informant, Bihra P.S. Case No. 73 of 2016 was lodged. After investigation police submitted chargesheet against the Respondent Nos. 2 to 6 under Section 147, 148, 149, 341, 323, 324, 307 and 504 IPC. The learned trial court took cognizance and committed the case to the court of session. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. The charges were framed against the accused persons/Respondent Nos. 2 to 6 for the offences under Section 147, 148, 149, 341, 323, 324, 307, 504 and 506 Indian Penal Code. 5. After the evidence of the prosecution statement of the accused persons were recorded under Section 313 of the Criminal Procedure Code (in short ‘Cr.P.C.’) wherein they denied the evidence of prosecution and claimed to be innocent. 6. In course of trial, the prosecution examined altogether four witnesses to substantiate the case. Apart from this, prosecution has also adduced documentary evidence which is Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 4/16 given herein for ready reference:- List of Prosecution Witnesses P.W.-1 Chandan Rishu P.W.-2 Arun Kumar Thakur P.W.-3 Manoj Thakur P.W.-4 Dr. Nand Kumar Sada List of Documentary Evidence on behalf of Prosecution Ext.-1 Signature of Chandan Rishu on FIR Ext.-1/1 Signature of Manoj Thakur on FIR Ext.-2 Dr. Ratan Kumar Jha’s handwriting and signature on the injury report of the alleged injured Arun Thakur 7. As against this, defence has also adduced certain documentary evidences. List of Documentary Evidence on behalf of Defence Ext.-A Certified copy of FIR of Bihra P.S.-76/16 Ext.-B Certified copy of charge-sheet of Bihra P.S.- 76/16 Ext.-C Certified copy of FIR of Bihra P.S.-195/14 Ext.-D Certified copy of charge-sheet of Bihra P.S.- 195/14 Ext.-E Certified copy of judgment of S.T.-169/16 Findings of the learned trial Court 8. Learned trial court has held that there is allegation against accused, mainly against Soni and Moni that they have Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 5/16 assaulted with farsa to Arun Kumar. Farsa is a sharp cutting weapon and for proving the injury, the examination of the Doctor is essential. In this case, the injury report was prepared by Doctor Ratan Kumar Jha but he was not examined by the prosecution. Prosecution has not even explained the reasons why the said Doctor was not examined. The injury report was proved by an another Doctor who had the opportunity to work with the said Doctor Ratan Kumar Jha. From perusal of the injury report it is clear that it is mentioned in the report that the farsa so removed after operation at Sadar Hospital Saharsa is preserved after proper removing of weapon. But the said farsa has not been brought before the court. Learned trial court has opined that as the Doctor who has prepared the injury report has not been examined, the respondents/accused persons could not get the liberty to cross-examine the said witness. Learned trial court has opined that injury report has not been properly proved rather only the handwriting of said Doctor is proved. Learned trial court has further opined that in this case, the I.O. is also not examined. Due to non-examination of the I.O., the place of occurrence could not be proved and that from the evidence of the witnesses it has come that there was blood on the place of occurrence and the soil of place of occurrence was soaked with Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 6/16 blood which could not be brought before the court. 9. It has also been held by the learned trial court that from the cross-examination of the prosecution witnesses it is clear that there is enmity between the parties and they are on litigating terms. 10. On the basis of above facts and circumstances, the trial court has held the accused persons/Respondent Nos. 2 to 6 guilty for the offences under Sections 147, 341, 504, 506 and 323 IPC. Submissions on behalf of the appellant 11. Learned counsel for the appellant has submitted that the present judgment of the trial court is bad in law as the trial court has convicted Respondent Nos. 2 to 6 only for the lesser offences under Section 147, 341, 504, 506/323 IPC and also gave benefit of Section 3 of the Probation of Offenders Act, 1958 (hereinafter to be referred as the ‘Act’). Learned trial court has passed the judgment ignoring the basic principles of law. The trial court has failed to appreciate that there was sufficient evidence against Respondent Nos. 2 to 6 and they were liable to be convicted for the offences inter-alia one under Section 307 IPC for which they were charged. It has also been submitted that respondents are not entitled to the benfit under Section 3 of the Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 7/16 Act. The trial court has passed the impugned judgment in haste. The trial court has not applied its judicial mind. Submission on behalf of the Respondents 12. The learned counsel for the respondents has submitted that trial court has rightly passed the impugned judgment and trial court has rightly appreciated the materials on the record and has passed the impugned judgment after going through the evidences available on the record. It is submitted that the trial court has rightly given the benefit of Section 3 of the Act to the respondents. There is no illegality or irregularity in the impugned judgment. Learned trial court has held that in this case the witnesses have orally supported that Soni and Moni have assaulted Arun Kumar (the brother of the informant). Arun Kumar has also stated in his examination-in-chief that Soni Kumar assaulted with farsa on his head and Moni Kumar assaulted with farsa on his hand and it has also been stated by the injured witness that the farsa was stuck in the bones of the injured Arun Kumar. Consideration 13. We have heard learned counsel for the parties and perused the trial court records. This is an appeal against acquittal of Respondent Nos. 2 to 6. In this case the prosecution has Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 8/16 examined as many as 4 witnesses on the ‘facts’ in which one witness is the Doctor who has identified the handwriting of the Doctor who has examined the injured Arun Kumar. 14. On perusal of the FIR, it is clear that the informant has stated in his fardbeyan that Soni Kumar and Moni Kumar were armed with farsa, they assaulted with farsa with an intention to kill on the head of Arun Kumar which hit on the head and hand due to which he fell down. In the FIR, it is not clear as to who has assaulted on the head and who has assaulted on the hand of Arun Kumar. The informant in his further statement has stated the same thing which he has stated in his fardbeyan. 15. The statement of the injured was recorded on 28.07.2016 and he has stated in his statement that Soni Kumar has assaulted with farsa. But during his examination-in-chief before the court, he has deposed that Soni and Moni both assaulted him with farsa. The occurrence is of 30.05.2016, the injured Arun Thakur has given his statement before police on 28.07.2016, i.e. much after the FIR and he has developed the version of prosecution and has stated that Soni Kumar assaulted him with farsa. While in his depostion he has stated that Soni Kumar assaulted with farsa on the head and Moni Kumar assaulted with farsa on his hand which was stuck in his hand. Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 9/16 16. The injured witness has developed the case of the prosecution in his statement before the police, and even in his deposition before court. At one place, i.e. before poice he has stated that only Soni has assaulted with farsa and in court he has stated the Soni and Moni both have assaulted with farsa. He has tried to implicate both in the occurrence but his statements have contradictions regarding the assault of farsa by Soni and Moni. 17. On perusal of the FIR it is clear that after the occurrence, so many persons gathered but in this case only the family members i.e. Manoj Thakur, Arun Thakur and one Chandan Rishu (P.W.-1) has been examined. Chandan Rishu is son of Manoj Thakur. The prosecution story has been developed by the prosecution witnesses P.W.-1, P.W.-2 and P.W.-3 and all of them have stated that Soni and Moni both have assaulted with farsa to Arun Kumar which is against the prosecution case and it is against the statement of the injured before the I.O. (not examined). But due to non-examination of the I.O., the defence could not get an opportunity to prove the previous statement of the injured recorded in the case diary. It is the case of the prosecution that the injured was assaulted with sharp cutting weapon. For proving the injury of sharp cutting weapon, examination of Doctor is necessary. In this case Doctor has not Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 10/16 been examined. The witnesses during their cross-examination have admitted that there is enmity between them and they are on litigating terms. 18. On perusal of the injury report it is clear that farsa was preserved after proper labelling but the same has not been produced before the trial court to ascertain that such weapon was used and was preserved. In this case, the defence has suggested the witnesses regarding their statement before the I.O. which they have denied. The I.O. has not been examined in this case. Without the examination of the I.O., the defence is deprived of the right of cross-examining the I.O. and this has certainly caused serious prejudice to the defence. 19. On perusal of the evidence of prosecution this court finds no plausible evidence to take a view that the accused are guilty of committing offence under Section 307 IPC. Section 307 IPC reads as under:- “307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 11/16 mentioned.” 20. From bare perusal of Section 307 of the IPC, it is clear that it is only the intention which is punished. The injury is not at all essential. In the case of State of M.P. v. Saleem, reported in (2005) 5 SCC 554 , the Hon'ble Apex Court has held that determinative question is intention to kill or knowledge that death will be caused by the act of accused, irrespective of the result, hence nature of injury is irrelevant though helpful in deducing the intention. It is said that even devil cannot know the intention. Intention is always gathered from the acts. In this case it is alleged that accused persons were armed with farsa and it is also alleged that farsa blow which was given by Soni and Moni, the farsa got stuck in the hand of Arun Thakur. It is also alleged that the accused persons namely Soni and Moni gave two farsa blow. But in this case neither Doctor nor I.O. has been examined. There is allegation of assaulting Arun Kumar with sharp cutting weapon. The injuries of sharp cutting weapon cannot be proved only on the basis of oral evidence and proving the injuries of sharp cutting weapon, the examination of Doctor is essential. In this case the Doctor who has examined the injured, namely Arun Thakur has not been examined rather Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 12/16 one other Doctor Nand Kumar Sada who has the opportunity to work with the said Doctor Ratan Kumar Jha who has identified the signature has been examined. The defence has been devoid of the opportunity of cross-examination of the Doctor as well as the Doctor has not been examined in this case. As such, only this much is proved that accused persons have assaulted Arun Thakur. 21. The trial court has convcited them for the offence under Sections 147, 341, 504, 506 and 323 of the IPC and has given them the benefit of Section 3 of Probation of Offenders Act, 1958. Section 3 of the Act reads as under :- “3. Power of Court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 13/16 sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.Explanation. - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.” 22. It is clear that this is the first offence of the accused persons. From perusal of the record of the trial court it transpires that the accused persons were not previously convicted. The occurrence has took place on trivial issue. Both parties have filed case against each other and accused persons/Respondent Nos.2 to 6 convicted for the offences under Sections 147, 341, 504, 506 and 323 of the IPC and in that circumstance trial court has given them the benefit of Section 3 of the Probation of Offenders Act. From perusal of the Section 3 of the Act and the order of the trial court giving the benefit of the said provision it is clear that the trial court has rightly observed that considering in nature of the offences in which the accused persons/respondent nos.2 to 6 have been convicted, they have been given the benefit of Section 3 of the Probation of Offenders Act. 23. In an appeal against acquittal, the Hon’ble Supreme Court in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 has laid down guidelines for Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 14/16 exercising powers under Section 378 of the Code of Criminal Procedure against the acquittal appeal filed by the State against the order of acquittal passed by the concerned trial court. It is observed in paragraph no.42 as under :- “42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach it sown conclusion, both on questions of fact and of law; (3)Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 15/16 him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 24. Recently, the Hon'ble Supreme Court in the case of Nikhil Chandra Mondal v. State of West Bengal, reported in (2023) 6 SCC 605 has observed in paragraph no. 22 as under: "22. Recently, a three-Judges Bench of this Court in the case of Rajesh Prasad v. State of Bihar has considered various earlier judgments on the scope of interference in a case of acquittal. It held that there is double presumption in favour of the accused. Firstly, the presumption of innocence that is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the court. It has been further held that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial court." Patna High Court CR. APP (DB) No.640 of 2022 dt.11-04-2025 16/16 25. In totality of the discussions made hereinabove, we are of the view that the trial court has rightly acquitted the Respondent Nos. 2 to 6 of the charge under Section 307 IPC. There is no reason to interfere with the impugned judgment. This appeal has got no merit. 26. Accordingly, this appeal is dismissed. Durgesh/- (Rajeev Ranjan Prasad, J) (Ashok Kumar Pandey, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 05.05.2025 Transmission Date 05.05.2025