Patna High Court
Manoj Thakur @ Surendra Thakur vs The State Of Bihar on 11 April, 2025
Author: Ashok Kumar Pandey
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
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
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'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
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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
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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 SadaList 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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.”
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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.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
Durgesh/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 05.05.2025 Transmission Date 05.05.2025
